Chattisgarh High Court
Raj Kumar And Ors vs State Of Chhattisgarh on 25 April, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
2026:CGHC:19183
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 216 of 2005
Judgment Reserved on : 02.04.2026
Judgment Delivered on : 25.04.2026
1. Raj Kumar S/o. Sahak Ram, Aged about 31 years, R/o Village -
Telaidhar, District Koria (C.G.)
2. Bali Singh S/o Nepal Singh, Aged about 20 years, Occupation -
Farmer, R/o Dumapani, P.S. Baikunthpur, District - Koria (C.G.)
3. Gulab Singh S/o Pran Singh, Aged about 20 years, Occupation -
Farmer, R/o Dumapani, P.S. Baikunthpur, District - Koria (C.G.)
4. Agar Sai (dead) S/o Phul Sai, Aged about 26 years, Occupation -
Farmer, R/o Village - Indarpur, P.S. Khadgavan, District - Koria (C.G.)
5. Bhaiyalal (dead) S/o Rajwar, Aged about 35 years, Occupation -
Farmer, R/o Village - Indarpur, P.S. Khadgavan, District - Koria (C.G.)
--- Appellant(s)
versus
The State of Chhattisgarh, Through Police Station Patna, District
Koriya (C.G.)
--- Respondent(s)
CRA No. 427 of 2005
1. Danfer Singh S/o Naharsai Singh, Aged about 20 years, Occupation
- Agriculture, R/o village Indrapur, P.S. - Khadgawan, District - Korea (C.G.)
2. Hira Singh S/o Naharsai Singh, Aged about 20 years, Occupation - Agriculture, R/o village Indrapur, P.S. - Khadgawan, District - Korea (C.G.)
--- Appellant(s) Versus The State of Chhattisgarh Digitally signed by MANISH MANISH YADAV YADAV Date:
2026.04.25 15:23:00 +0530 2
--- Respondent(s) For Appellant(s) : Mr. Mahendra Dubey, Advocate For Respondent/ : Mr. Krishna Gopal Yadav, Dy. Government State Advocate and Mr. Manish Kashyap, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. Since both the appeals arise out of the same crime number and by common judgment, the appellants have been convicted by the learned Additional Sessions Judge Baikunthpur, therefore, they are heard analogously and are being disposed of by this common judgment.
2. During the pendency of the appeals, the appellant No. 4 Agar Sai and appellant No. 5 Bhaiyalal in CRA No. 216/2005 have expired, therefore, CRA No. 216/2005 to the extent of the appellant No. 4 and 5 stands abated.
3. The appellants have filed these criminal appeals under Section 374(2) of the Criminal Procedure Code against judgment of conviction and order of sentence dated 07.01.2005 passed by learned Additional Sessions Judge, Baikunthpur, District Koria (C.G.) in Sessions Trial No. 241/2004 whereby the appellants have been convicted and sentenced in the following manner:-
Conviction Sentence
U/s 457 of I.P.C. : R.I. for 5 years
U/s 395 of I.P.C. : R.I. for 10 years with fine amount Rs. 5,000/-
in default of payment of fine amount R.I. for 1
year.
(Both jail sentences are directed to run concurrently).
4. The prosecution case, in brief, is that the complainant, Raghurairam 3 (P.W. 1) who is resident of village Thihai-para, Kasara works in the office of District Education Officer, Baikunthpur lodged an FIR on 27.12.2003 before Police Station - Patna, District Koriya alleging that on previous night i.e. 26.12.2003 at about 9 O'clock in the night after taking meals he was sleeping in the room and about 3 O'clock in the night, he heard the noise of the persons, saw 10 persons standing in the courtyard and out of them some persons have entered into different rooms of his house. The persons who have entered into the rooms have assaulted complainant and his family members with sticks and threatened him to show the valuable properties, accordingly they have looted Rs. 20,000/-, some gold and silver ornaments which were kept in the almirah. They have also looted Rs. 3,000/- which was kept in the box and snatched Rs. 3,000/- from the pocket of pant of the complainant. It is also the case of the prosecution that after robbery and dacoity they fled away from courtyard. After reconciling the looted property, it was found that they have looted Rs. 20,000/- cash, two silver chains, four sets of silver anklet, waist band, one gold locket, gold nose ring, old radio, hawai chappal, shoes and valuable materials valued at Rs. 38,500/-. On the basis FIR an offence under Section 395 of IPC was registered against the unknown persons and the accused were arrested on 06.01.2004, 17.01.2004 and 22.01.2004 respectively and remained in jail during trial.
5. The prosecution after usual investigation has submitted charge-sheet before the learned Chief Judicial Magistrate, Baikunthpur who has committed the criminal case for trial before the learned Additional Sessions Judge, Bikunthpur, which was registered as Sessions Trial 4 No. 241/2004.
6. The prosecution was set in motion by examining the witnesses and placing on record the documents which were marked as Exhibit P/1 to Exhibit P/31 and examined 18 witnesses. The accused to prove his innocence have exhibited documents namely Statement of Umashankar (Ex. D/1), Arrest Memo of Agar Sai (Ex. D/2), Statement of Suresh (Ex. D/3), Statement of Samudri Bai (Ex. D/4), Statement of Dinesh (Ex. D/5) and Statement of Raghurai (Ex. D/6) and were examined under Section 313 of Cr.P.C before the trial Court.
7. Learned trial Court on the basis of evidence, material on record has convicted the appellants for commission of offence under Sections 457 and 395 of I.P.C. and awarded sentence as detailed above. Being aggrieved with the order of conviction the appellants preferred both these appeals.
8. Learned counsel for the appellants while criticizing the order of sentence passed by the learned trial Court would pray for setting aside the conviction on the following submissions:
(a) He would submit that the judgment is based on surmises and conjectures without appreciation of evidence, material on record and would further submit that for conviction of accused involved in the commission of dacoity and robbery the Test Identification Parade (T.I.P.) should be conducted by the prosecution by providing necessary safeguards while conducting the T.I.P.. In the present case the T.I.P. has not meticulously followed the safeguard, as such T.I.P. is void ab initio and on the basis of this tented T.I.P., conviction of the appellants is unsustainable.
(b) It has been further submitted that the T.I.P. was held three 5 months later from the date of incident, as such, it does not have any evidentiary value as the incident took place in darkness, during the short period in darkness it is not expected that the witnesses who were frightened could have remembered the features of the accused after three months, as such, the alleged identification of the accused persons is absolutely unreliable.
(c) He would further submit that the identification of the accused in the Court itself doubtful. It has also been contended that the seized material concerned in the Dacoity could be taken into account, but in this case no seizer was made on the spot as per the prosecution witnesses itself, thus, the seizure does not sufficient to convict the accused.
(d) He would further submit that the learned trial Court erred in using the inadmissible portion of memorandum of the accused recorded U/s. 27 of the Indian Evidence Act, as such, on this basis the conviction is bad-in-law. To substantiate his submissions he referred to the judgments of the Hon'ble Supreme Court in case of Satrughana @ Satrughana Parida and Others vs. State of Orissa reported in 1995 Supp. (4) SCC 448, Prakash vs. State of Karnataka reported in 2014 (12) SCC 133, Gireesan Nair and Others vs. State of Kerala reported in 2023 (1) SCC 180, Alauddin and Others vs. State of Assam and Another reported in 2024 (12) SCC 224, Raja Khan vs. State of Chhattisgarh reported in 2025 (3) SCC 314, Tukesh Singh and Others vs. State of Chhattisgarh reported in 2025 SCC Online SC 1110 and Nazim and Others vs. State of Uttarakhand reported in 2025 SCC Online SC 2117.6
9. Per contra, learned counsel for the State opposing the submission made by learned counsel for the appellants would submit that learned trial Court has not committed any illegality in convicting the appellants. He would further submit that even if the T.I.P. is held to be illegal, the witnesses have identified the accused in the Court and also give explanation for identification, as such, conviction of the appellants for commission of offence under Sections 457 and 395 of IPC is legal, justified and would pray for dismissal of the appeals.
10. I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.
11. From the submissions made by the parties, the point emerged for determination by this Court is whether the conviction of the appellants under Sections 457 and 395 of IPC is legal, justified and does not warrant interference by this Court.
12. To appreciate the point emerged for determination, it is expedient for this Court to thread-baring analysis of evidence, material on record lead by the prosecution as well as considering the provisions of law. Section 395 of IPC provides punishment for dacoity and dacoity has been defined in Section 391 of IPC which reads as under:-
"Section 391. Dacoity - When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
Section 395. Punishment of dacoity - Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
13. Section 9 of the Indian Evidence Act, 1872 (in short "Act of 1872") provides facts necessary to explain or introduce relevant facts which 7 establishes the identity of anything or whose identity is relevant. Therefore, in a case of dacoity the identification of accused is necessary for their conviction. Section 9 of the Act of 1872 reads as under: -
"Section 9. Facts necessary to explain or introduce relevant facts - Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose."
On the above facts and legal position, this Court is now examining the submission of the appellants with regard to legality of the Test Identification parade:
14. Learned counsel for the appellants while criticizing the T.I.P. conducted by the prosecution has contended that the T.I.P. was conducted after three months of incident on 29.03.2004 vide Ex. - P/5, without any explanation of such delay, as such identification of the accused is doubtful, the parade has been conducted in presence of the Police officer, therefore, it is illegal are being considered.
15. From perusal of the record, it is quite vivid that the incident took place on 27.12.2003 in the mid night, F.I.R. was registered against unknown persons and the accused namely Rajkumar Maravi, Bali Singh, Gulab Singh, Hira Singh, Danfer Singh were arrested on 06.01.2004, Bhaiyalal was arrested on 17.01.2004 and Agar Sai was arrested on 22.01.2004. T.I.P. for seized items was conducted on 27.03.2004 vide Ex. P/4 and T.I.P. of the accused were conducted on 29.03.2004 in presence of Dilesh Sahu (PW-10) who has identified Hira Singh, Gulab Singh, Bhaiyalal, Rajkumar Ramashankar as the 8 accused entered into the house by carrying torch and they woke up him. Similarly, Raghurai Ram Sahu (PW-1) has identified Bhaiyala, Gulab Singh, Bali Singh as the accused came to his house and demanded cigarette from him. The other witness Suresh Kumar (PW-8) has identified accused namely Hira Singh, Rajkumar Maravi, Gulab Singh, Bhaiyalal as he saw them sitting in the house. Umashankar Sahu (PW-2) has identified Bhaiyalal as when he was sleeping in the house he has assaulted him. From perusal of Identification Proceeding (Ex. P/5), a certificate was also enclosed wherein it has been stated that along with the accused three other persons who are of same age and same face were included in the identification parade. It has also been mentioned in the certificate that before identification the accused were allowed to change their places. The certificate also consists the certification that all the accused and other prisoners who were included in the T.I.P. were covered by the blanket except the face in the District Jail infront of prayer hall of the jail.
16. J.R. Rathiya, Naib Tehsildar (PW-6) who has conducted the T.I.P. has stated in the evidence that in the T.I.P., 35 persons were included and reiterated the reasons assigned by the witness for identifying these accused. This witness in the cross-examination has stated that the Police persons were not present at the time of T.I.P. and the Jailer was present and all the paper work was done by him. He has also stated that identifying witness has not described the accused. The witness in the cross-examination has admitted that persons who have to identify the appellants has not gone with him and they were present in the jail premises. The Jailer informed him 9 that the appellants are accused and similar to their physical appearance have been taken into consideration. He has also admitted that Raghurai Ram Sahu has not identified Rajkumar Maravi and Hira Singh. He has denied that identifying persons have been shown the accused before T.I.P.. The witness has also stated that for conduction of T.I.P. he has been informed in writing on the same day. The witness has also admitted that before identification, no identification of accused was informed to Dilesh Sahu (PW-10) and after identification of the accused, they have been removed from the line and their names were asked by him. He has also stated that at the time of identification by other persons, the line was rearranged and they are free to stand any place.
17. Dilesh Sahu (PW-10) in the Court statement has identified Bali Singh, Agar Sai, Danfer Singh and Gulab Singh and also stated that he was having torch and with the torch he has identified them and in other room the lamp was also burning. He has stated that accused Danfer was having stick and he has given money to Gulab Singh. The accused Agar Sai has brought hot oil to burn him. The accused Agar Sai has shown the torch and they have carried the torch possessed by the witness. The witness was cross-examined by the defence wherein he has stated that he has seen the accused in the Police Station after 15-20 days of incident and Identification parade was conducted in the Jail and identification parade was conducted after five months of identification proceeding in the Police Station. He has also stated that the accused were not known to him before the incident and he is not aware about the names. He has stated that no Police persons were present at the time of Identification parade. The 10 witness in further cross-examination has stated that four persons have entered into his room and out of which two persons remained in the room for 5-7 minutes and two persons remained in the house for half an hour.
18. Umashankar Sahu (PW-2) who is son-in-law of Raghurai Ram (PW-
1) has stated that 4-5 person have entered into his room and started assaulting him by sticks causing injury in his head and thereafter, they have looted Rs. 12 cash from his pocket, sleepers, undergarments and gold ornaments, cash from his in-laws house.
The witness has stated that the identification proceeding was conducted in Baikunthpur Jail and in Ex. P/5 he has put his signature. The witness in the cross-examination has stated that about 20-25 persons were present and Police persons were also present. He has also stated that he is not aware whether identification proceeding was written by the Police person and also admitted that similar to accused Bhaiyalal no other persons was there.
19. Raghurai Ram Sahu (PW-1) in his examination-in-chief has stated that he knew accused Rajkumar before the incident and also identified accused Bhaiyalal, Hira Singh as they were involved in the commission of offence. He has also stated that he has identified the looted material (Ex. P/3 and P/4). In the cross-examination he has admitted that he has identified two persons, but in Ex. P/1 if it has not been mentioned, then he cannot explain, but he has stated that he has informed the Police regarding identification. In the cross- examination, he has denied that he has seen the accused persons and the looted material in the Police Station and also denied that he 11 has not identified the accused Rajkumar in the jail and Ex. P/5 if the name of Rajkumar is not mentioned, then he cannot explain. He has admitted in the cross-examination that the accused persons remained in the house about 40 minutes, therefore, he has gathered idea about the physical appearance of the accused. The witness in his further cross-examination has stated that he identified Bali Singh till today when the learned trial Court has asked him to identify then he has identified Gulab Singh as Bali Singh.
20. Suresh Kumar (PW-8) (Test Identification witness) who has admitted in the cross-examination that he has seen the accused, in the Police Station and has not gone to jail to identify them. He again stated that he has identified 3 accused in T.I.P. and has seen them in the Police Station.
21. From the above evidence, now this Court has to examine that the T.I.P. has been conducted in accordance with the law or not. It is well settled position of law that while conducting the T.I.P., sufficient precautions could have been taken to ensure that witnesses who are to participate in T.I.P. do not have an opportunity to see the accused before T.I.P. is conducted. In the present case, the witness Dilesh Sahu (PW-10) in his cross-examination has admitted that he has seen the accused in the Police Station after 15-20 days of incident and Identification parade was conducted in the Jail and identification parade was conducted after five months of identification proceeding in the Police Station. Suresh Kumar (PW-8) has also admitted in the cross-examination that he has seen the accused in the Police Station and has not gone to Jail to identify them, as such, the T.I.P. remains inconsequential as held by the Hon'ble Supreme Court in 12 case of Maya Kaur Baldevsingh Sardar vs. State of Maharashtra reported in 2007 (12) SCC 654. Similarly, in case of Sk. Umar Ahmed Shaikh vs. State of Maharashtra reported in 1998 (5) SCC 103 wherein the Hon'ble Supreme Court has held that when the accused were already shown to the witness, their identification in the Court by the witness is meaningless. Thus, it is quite vivid that before conducting T.I.P. the witnesses have seen the accused, therefore, the T.I.P. conducted by the prosecution deserves to be vitiated.
22. Similarly, the presence of Police persons as stated by Umashankar Sahu (PW-2), the legality of T.I.P. in presence of Police officer tantamounts to statement made to the Police Officer under Section 162 of Cr.P.C. as held by the Hon'ble Supreme Court in case of Chunthuram vs. State of Chhattisgarh reported in 2020 (9) SCC
733. As such, T.I.P. falls within the Ban of Section 162 of Cr.P.C., therefore, T.I.P. is vitiated.
23. The Hon'ble Supreme Court in case of Gireesan Nair and Others vs. State of Kerala reported in 2023 (1) SCC 180 and again in case of Kattaveli vs. State of Tamilnadu reported in 2025 SCC Online SC has examined the entire law on T.I.P. and has held in paragraph 38 as under:
"38. The investigating authorities conducted a test identification parade - asking PW-5 to identify the Appellant- convict from a long line of habitual offenders. He did so thrice. This has been taken as another circumstance against the convict Appellant. Before proceeding to the merits of this circumstance, let us appreciate the law on this point.
38.1 No provision of law casts an obligation upon the investigating authorities to conduct a test identification parade. If it is conducted, the provision that governs is Section 162, Cr.P.C. [See: Munshi Singh Gautam v. State of M.P.28; Malkhansingh v. State of M.P.29; Visveswaran v. State30; and Ashok Debbarma v. State of Tripura31.] 38.2 The onus to show that the T.I.P. has been conducted in 13 accordance with law lies on the prosecution, and only after this burden stands prima facie discharged, does the (2005) 9 SCC 631 (2003) 5 SCC 746 (2003) 6 SCC 73 (2014) 4 SCC 747 question of considering objections in this regard arise. [See: Umesh Chandra v. State of Uttarakhand32.] 38.3 It is not a substantive piece of evidence. Its only purpose is for the investigating authorities to analyse the correctness, or lack thereof, of the direction in which they are steering the investigation. [See: Hari Nath v. State of U.P.33; and Iqbal v. State of U.P.34] 38.4 If the prosecution does not establish, by examination of witnesses to the T.I.P., and the Magistrate entrusted therewith, it cannot be said that it was conducted per law. [See: Umesh Chandra (supra).] 38.5 There is no hard and fast rule about delay in conducting T.I.P. being fatal to the case of the prosecution. In certain cases, relatively small delay has been considered fatal yet in others, a delay of as much as 40 days is not fatal. [See: Raja v. State35.] 38.6 The prosecution must establish that prior to the test identification parade being conducted, the witness had no opportunity to see the accused. In other words, the accused (2021) 17 SCC 616 (1988) 1 SCC 14 (2015) 6 SCC 623 (2020) 15 SCC 562 must be kept 'baparda'. [See: Gireesan Nair v. State of Kerala36; and Budhsen v. State of U.P.37.] 38.7 If the above has not been ensured, the evidence of the T.I.P. becomes inadmissible. It has also been held that if, prior to the T.I.P. the witness has the opportunity to see even the photograph of the accused person, such process becomes inconsequential. [See: Maya Kaur Baldevsingh Sardar v. State of Maharashtra38; C. Muniappan v. State of T.N.39; and Sk. Umar Ahmed Shaikh v. State of Maharashtra40.] 38.8 Dock identification by the informant, even in the absence of T.I.P., can be accepted, but generally, as a matter of prudence, a witness's identification of an accused in Court is sought to be corroborated by the identification by the former of the latter in previously conducted identification proceedings [Rajesh v. State of Haryana41; and Mukesh v.
State (NCT of Delhi)42.] 38.9 Considering the facts and circumstances of the case at hand, it is open for the Court to draw an adverse inference against the witness, should they put forth a refusal to (2023) 1 SCC 180 (1970) 2 SCC 128 (2007) 12 SCC 654 (2010) 9 SCC 567 (1998) 5 SCC 103 (2021) 1 SCC 118 (2017) 6 SCC 1 participate in the identification proceedings. [See: Mohd. Anwar v. State (NCT of Delhi)43.]"
24. Considering the entire evidence and law on subject, it is quite vivid that the evidence of T.I.P. has become inadmissible, but the learned 14 trial Court in its impugned judgment has convicted the accused not on the basis of T.I.P., but on the basis of seizure of looted materials which have been identified by the family member of the victim. In such circumstances this Court is examining whether conviction of appellants for commission of offence of robbery based upon presumption of recovery is sustainable.
25. Learned counsel for the appellants would submit that the learned trial Court has committed illegality in convicting the appellants solely on the basis of alleged recovery of looted material in violation of Section 27 of the Act of 1872 and also contended that the recovery has not been proved by the prosecution as the seizure witness and memorandum statement has turned hostile and even in the cross-
examination by the prosecution, he has not supported the case of the prosecution. It has been further contended that the seizure of the looted material on the strength of statement of the accused recorded under Section 27 of the Act of 1872 cannot be used against the accused and only the facts deposed to as recovery can be utilized, but in the present case same has not been supported by the seizure witness, thus, the conviction of the appellants on the basis of memorandum statement of the accused by the learned trial Court is erroneous and perverse finding. To substantiate this submission he has referred to the judgment of the Hon'ble Supreme Court in case of Raja Khan vs. State of Chhattisgarh reported in 2025 (3) SCC 314 and would refer to paragraph 31 which reads as under:
"31. The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was considered by this Court in Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45, wherein it has been held as under:- "18... Section 27 of the Indian Evidence Act, 1872 (in short "Evidence Act") is by way of proviso to Sections 25 to 26 15 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn v. Balakrishan [(1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828]. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken in to custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a 16 guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor [AIR (1947) PC 67], is the most quoted authority of supporting the interpretation that the "fact discovered"
envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See State of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.
(emphasis supplied)"
26. On the other hand, learned counsel for the State would submit that the conviction of the appellants on the basis of memorandum statement is legal, justified and does not warrant interference by this Court and would pray for rejection of this submission made by the appellants.
27. Section 27 of the Act of 1872 is always subject matter of examination before the Hon'ble Supreme Court and various Courts. The Hon'ble Supreme Court in the latest judgment has examined the provisions of Section 27 of the Act of 1872 in case of Nilu @ Nilesh Koshti vs. State of Madhya Pradesh reported in 2026 INSC 173 and in paragraphs 20 to 22 has held as under:
"20) It is trite that Sections 25 and 26 of the Evidence Act stipulate that confession made to a Police Officer is not admissible. However, Section 27 is an exception to Sections 25 and 26 and serves as a proviso to both these sections. Section 27 of the Evidence Act reads as follows:
"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as 17 discovered inconsequence of information received from a person accused of any offence, in the custody of a police- officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
The scope and ambit of Section 27 have been examined by this Court in Delhi Administration vs. Bal Krishan and Others.
21. Elucidating on what constitutes "discovery of fact" under Section 27 of the Evidence Act, this Court in Udai Bhan vs. State of Uttar Pradesh observed as follows :
"11. Thus it appears that Section 27 does not nullify the ban imposed by Section 26 in regard to confessions made by persons in police custody but because there is the added guarantee of truthfulness from the fact discovered the statement whether confessional or not is allowed to be given in evidence but only that portion which distinctly relates to the discovery of the fact. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. ...." (Emphasis supplied)
22. The aforesaid legal position was comprehensively reiterated and elaborated upon by this Court in Bodhraj Alias Bodha and Others vs. State of Jammu and Kashmir4, wherein the question of whether evidence relating to recovery is sufficient to fasten guilt on the accused was examined at length. This Court held that for evidence under Section 27 to be admissible, the information must emanate from an accused who is in police custody. The Court elucidated that the basic idea embedded in Section 27 is the doctrine of confirmation by subsequent events
- when a fact is discovered on the strength of information obtained from a prisoner, such discovery serves as a guarantee of the truthfulness of the information supplied. The Court further observed that whether the information is confessional or non- inculpatory in nature, if it results in the discovery of a fact, it becomes reliable information. Significantly, it was held that the mere recovery of an object does not constitute the discovery of fact envisaged in the section. Relying on the Privy Council's decision in Pulukuri Kottayya and Others vs. King Emperor, the Court held that the "fact discovered" embraces not merely the object recovered, but the place from which the object was produced and the knowledge of the accused as to its existence, and that the information given must relate distinctly to that effect."
28. Now to appreciate this submission and the legal position, it is expedient for this Court to extract Section 27 of the Indian Evidence Act, 1872, which reads as under:
"27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered inconsequence of information received from a person 18 accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
29. From bare perusal of Section 27 of the Act of 1872, it is quite vivid that the essential ingredients of Section 27 of the Evidence Act are threefold:
i. The information given by the accused must led to the discovery of the fact which is the direct outcome of such information.
ii. Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused.
iii. The discovery of the facts must relate to the commission of such offence.
30. In light of above legal position, now this Court is examining the legal sanctity of memorandum statement (Ex. P/13) of accused Bali Singh and credibility and evidentiary value of seizure witness Sudama Prasad (PW-11). The accused Bali Singh has stated in his memorandum statement that about 10 days before at village Kasra he along with other accused Hira Singh, Danfer, Gulab Singh, Rajkumar, Tejbhan, Ramashankar, Agar Sai, Bhaiyalal, Vijay Gond and Badwa @ Kaleshwar have committed dacoity in the house of Raghurai Ram Sahu and in his share one Philips radio and one pair of shoes were given which he has kept in the box in his house which has been seized from his house. The seizure memo was signed by Sudama Prasad (PW-11) and Vikas Singh. The seizure witness Sudama Prasad (PW-11) who was examined before the trial Court and in the cross-examination has admitted that he has put his signature in the Police Station and also admitted that materials were seized in the Police Station. He further stated that he cannot tell which material is seized from which accused and also admitted that 19 from where the materials were seized he has not gone there.
31. Thus, from the evidence of seizure witness Sudama Prasad (PW-11) who turned hostile, it is quite vivid that there are contradictions in the testimony of the witnesses to (i) both Section 27 memorandums and
(ii) seizure memos who are one in the same. Sudama Prasad (PW-
11) was cited as witness to the Section 27 of the Act of 1872 statements made by the accused and suspicion had fallen upon him as he has admitted in the evidence that he has put his signature in the Police Station and also admitted that materials were seized in the Police Station. He further admitted that he cannot tell which material is seized from which accused and also admitted that from where the materials were seized he has not gone there.
32. Thus, it is evident that the witness has neither turned hostile nor corroborated the case of prosecution on any material particulars in relation to the recoveries beyond just admitting his signature in the memorandum and seizure memos and from the record of the case, it is quite vivid that the accused were continuously remained in judicial custody during the trial, the said hostility and non-corroboration can also not be attributed to any influence or tampering on their part. The recovery circumstance, therefore, remains legally tenuous. As such, the conviction of the appellants on the basis of recovery by the trial Court is erroneous and perverse finding, therefore, the conviction of the appellants deserves to be set aside by granting the benefit of doubt as prosecution is unable to prove its case beyond reasonable doubt.
33. Consequently, both the appeals filed by the appellants namely -
Rajkumar, Bali Singh, Gulab Singh, Danfer Singh and Hira Singh 20 are allowed and so far as appeal with regard to appellants No. 4 and 5 stand abated on account of their death.
34. The appellants are acquitted from the commission of offence under Sections 457 and 395 of IPC and their bail bonds shall remain in force for six months as per Section 437(6) of Cr.P.C./Section 480(6) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Sd/-
(Narendra Kumar Vyas) Judge Manish