Himachal Pradesh High Court
Sonu Ram & Anr vs State Of H.P on 28 July, 2025
( 2025:HHC:24428 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 230 of 2016
.
Reserved on: 07.07.2025
Date of Decision: 28.07.2025
Sonu Ram & Anr. ...Petitioners
Versus
State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. P.K. Verma, Advocate.
For the Respondent-State : Mr. Ajit Sharma, Deputy
Advocate General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 19.05.2016, passed by the learned Additional Sessions
Judge-I, Shimla Camp at Rohru, H.P. (learned Appellate Court)
vide which the judgment of conviction dated 18.04.2009 and order
of sentence dated 23.04.2009, passed by learned Sub Division
Judicial Magistrate, Court No.1, Rohru, H.P. (learned Trial Court),
were partly upheld. (Parties shall hereinafter be referred to in the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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same manner as they were arrayed before the learned Trial Court for
convenience.)
.
2. Briefly stated, the facts giving rise to the present
petition are that the police presented a challan before the learned
Trial Court against the accused for the commission of offences
punishable under Sections 379, 411 and 201 of the Indian Penal
Code (in short “IPC“), Section 5 of the Telegraph Wires (Unlawful
Possession) Act (in short “TWUP”), 1950 and Section 3 of the
Prevention of Damage to Public Property Act (in short “PDP” Act),
1984. It was asserted that complainant Babu P.V. Giri (PW1) was
posted as Junior Telecom Officer in the Telephone Exchange
Rohru at Rohru. Madhosh (PW3) was posted as a Lineman in the
Telecom Department. He received a complaint on 25.02.2006 that
the telephones were not functioning. He checked the cable and
found that the cable had been stolen by an unknown person at
Kanewara, the place where the telephone facility was disrupted.
He and P.V. Giri Babu (PW1) made a written complaint (Ex. PW1/A)
to the police, upon which FIR (Ex.PW7/A) was registered. Raj
Kumar (PW7) conducted the investigation. He visited the spot and
prepared the site plan (Ex.PW7/B). The police found a 90-meter
wire kept in the field, and seized it vide seizure memo (Ex.PW1/B).
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The police also found burnt wire at Makhinalla, which was seized
vide memo (Ex.PW1/C). The police searched the shops of the junk
.
sellers and found the aluminium and copper wires in the shop of
Ajay Thakur, located at Makhinalla. These were weighted, and the
weight of the copper wire was found to be 01 Kg. Ajay Thakur
revealed on inquiry that he had purchased the wire from the
accused Sonu Ram. The police arrested Sonu Ram. He made a
disclosure statement (Ex.PW1/D) that he had concealed the cable
wire at Makhinalla, which could be got recovered by him. He got
recovered 20 pairs of cable wire weighing 8½ kg. These were
seized vide memo (Ex.PW1/E). The police also seized the Register
(Ex.PD) containing the entry of ½ kg copper dated 26.02.2006 and
01 kg copper dated 27.06.2006. This register was seized vide
memo (Ex.PW4/A). The photographs (Ex.PA1 to Ex.PA3) were
taken. Site plans (Ex. PW7/C and Ex.PW7/D) were prepared. The
statements of witnesses were recorded as per their version, and
after the completion of the investigation, the challan was prepared
and presented before the learned Trial Court.
3. Learned Trial Court charged the accused Sonu Ram
with the commission of offences punishable under Section 379 of
the IPC, Section 5 of the TWUP and Section 3 of the PDP Act, and
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the accused Ajay Thakur with the commission of an offence
punishable under Section 411 of the IPC, to which the accused
.
pleaded not guilty and claimed to be tried.
4. The prosecution examined 07 witnesses to prove its
case. Babu P.V. Giri (PW1) reported the matter to the police. Ismail
Mohammad (PW2) is the witness to the disclosure statement and
recovery. Madhosh (PW3) is the Lineman who had detected the
theft. HHC Ramesh Kumar (PW4) is the official witness to
recovery. Constable Rajinder Singh (PW5) is the witness to the
recovery of the Register. Partap Singh (PW6) is the witness to the
recovery. Raj Kumar (PW7) conducted the investigation.
5. The accused, in their statements recorded under
Section 313 of the CrPC, denied the prosecution’s case in its
entirety. They stated that they were innocent and were falsely
implicated. No defence was sought to be adduced by the accused.
6. Learned Trial Court held that the testimonies of
prosecution witnesses corroborated each other. The police
recovered cable wire from the shop of Ajay Thakur. The cable wire
and burnt cable wire were recovered at the instance of Sonu Ram.
The possession after the theft showed that the accused Sonu Ram
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had committed the theft, and Ajay Thakur had received the stolen
property. The case was based upon circumstantial evidence and
.
circumstances were duly proved; therefore, the accused were
convicted and sentenced as under: –
Section(s) Sentence(s)
Section 379 of the Convict- Sonu Ram was ordered to
IPC undergo simple imprisonment for
one year and pay a fine of ₹1,000/-.
Section 5 of the Convict- Sonu Ram was ordered to
Telegraph Wires undergo simple imprisonment for
Act, 1950 one year and pay a fine of ₹1,000/-.
Section 3 of the Convict – Sonu Ram was ordered to
PDP Act, 1984 undergo simple imprisonment for six
months and pay a fine of ₹500.
Section 411 of IPC Convict- Ajay Thakur was ordered to
undergo one year and a fine of
₹1,000/-
In default of making the payment of fine by both the
convicts, they were ordered to undergo further simple
imprisonment for six months for the aforesaid offences.
The substantive sentences of imprisonment awarded to
the convict, Sonu Ram, were ordered to run concurrently.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused filed an appeal which was
decided by the learned Additional Sessions Judge-1, Shimla, Camp
at Rohru, District Shimla (H.P) (learned Appellate Court). Learned
Appellate Court concurred with the findings recorded by the
learned Trial Court that the prosecution’s case regarding the
recovery of the copper wire was duly proved by the statements of
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the witnesses. Accused Sonu Ram made a disclosure statement
leading to the recovery of the stolen cable. The immediate
.
possession after the theft leads to an inference of theft. Therefore,
the learned Trial Court had rightly held accused Sonu Ram guilty
for the commission of an offence punishable under Section 379 of
IPC, and accused Ajay Thakur guilty for the commission of an
offence punishable under Section 411 of IPC. However, the learned
Trial Court erred in convicting the accused Sonu of the
commission of offences punishable under Section 5 of the TWUP
Act & Section 3 of the PDP Act. The prosecution was required to
prove that the telecom wire had a diameter specified in the Act;
however, no person had specified the diameter of the cable, and
the case would not be covered under Section 2, to attract the
provisions of Section 5 of the TWUP Act. It was further held that
the property was not proved to be owned by the Central
Government, State Government, Local Authority, Corporation
established by the Central, Provincial or State Act or a Government
Company defined under Section 617 of Companies Act; therefore,
conviction recorded by the learned Trial Court for the commission
of offences punishable under Section 5 of TWUP Act & Section 3 of
PDP Act were set aside.
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8. Being aggrieved by the judgments and order passed by
the learned Courts below, the accused have filed the present
.
revision asserting that the learned Courts below erred in
appreciating the prosecution evidence. The prosecution had failed
to prove its case beyond a reasonable doubt. Learned Courts below
drew the wrong conclusion from the evidence on record and acted
upon the evidence, which was not convincing, cogent and
inspiring. Therefore, it was prayed that the present revision be
allowed and the judgments and order passed by the learned Courts
below be set aside.
9. I have heard Mr. P.K. Verma, learned counsel appearing
on behalf of the petitioners/accused, and Mr. Ajit Sharma, learned
Deputy Advocate General, for the respondent-State.
10. Mr. P.K. Verma, learned counsel appearing on behalf of
the petitioners, submitted that the learned Courts below erred in
appreciating the material placed before them. Once it was held that
the provisions of Section 5 of TWUP Act & Section 3 of PDP Act
were not attracted, the conviction could not have been recorded
for the commission of offences punishable under Sections 379 and
411 of IPC; therefore, he prayed that the present petition be
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allowed and the judgments and order passed by the learned Courts
below be set aside.
.
11. Mr. Ajit Sharma, learned Deputy Advocate General,
supported the judgment and orders passed by the learned Courts
below and submitted that no interference is required with them. It
is permissible to record the conviction for the commission of
offences punishable under Sections 379 & 411 of the IPC and
acquittal under Section 5 of the TWUP Act. He relied upon the
judgment of this Court in Criminal Appeal No. 191 of 2008 and Cr.
Appeal No.283 of 2008, titled State of Himachal Pradesh Vs. Sanjeev
Kumar & Anr., decided on 01.06.2017, in support of his submission.
12. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
13. It was laid down by the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022)
3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is
not an appellate court and it can only rectify the patent defect,
errors of jurisdiction or the law. It was observed at page 207: –
“10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
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( 2025:HHC:24428 )detailed appreciation of the material and evidence brought
on record. The High Court in criminal revision against
conviction is not supposed to exercise the jurisdiction like.
the appellate court, and the scope of interference in revision
is extremely narrow. Section 397 of the Criminal Procedure
Code (in short “CrPC“) vests jurisdiction to satisfy itself or
himself as to the correctness, legality or propriety of anyfinding, sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior court. The
object of the provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-foundederror which is to be determined on the merits of individual
cases. It is also well settled that while considering the same,
the Revisional Court does not dwell at length upon the facts
and evidence of the case to reverse those findings.
14. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC
1294, wherein it was observed at page 695:
14. The power and jurisdiction of the Higher Court under
Section 397CrPC, which vests the court with the power tocall for and examine records of an inferior court, is for the
purposes of satisfying itself as to the legality andregularities of any proceeding or order made in a case. The
object of this provision is to set right a patent defect or anerror of jurisdiction or law or the perversity which has crept
in such proceedings.
15. It would be apposite to refer to the judgment of this
Court in Amit Kapoor v. Ramesh Chander [Amit
Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC
(Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397
has been considered and succinctly explained as under:
(SCC p. 475, paras 12-13)
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )legality and regularity of any proceedings or order made
in a case. The object of this provision is to set right a
patent defect or an error of jurisdiction or law. There has.
to be a well-founded error, and it may not be appropriate
for the court to scrutinise the orders, which, upon the
face of it, bear a token of careful consideration and
appear to be in accordance with law. If one looks into the
various judgments of this Court, it emerges that the
revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous, there is
no compliance with the provisions of law, the finding
recorded is based on no evidence, material evidence is
ignored, or judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes, but are
merely indicative. Each case would have to be
determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction itself
should not lead to injustice ex facie. Where the Court is
dealing with the question as to whether the charge has
been framed properly and in accordance with law in a
given case, it may be reluctant to interfere in the exercise
of its revisional jurisdiction unless the case substantially
falls within the categories aforestated. Even framing of
charge is a much-advanced stage in the proceedings
under CrPC.”
16. This Court in the aforesaid judgment in Amit Kapoor
case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 :
(2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid
down principles to be considered for exercise of jurisdiction
under Section 397 particularly in the context of prayer for
quashing of charge framed under Section 228CrPC is sought
for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1
SCC (Cri) 986], SCC pp. 482-83, para 27)
“27. Having discussed the scope of jurisdiction under.
these two provisions, i.e. Section 397 and Section 482 of
the Code, and the fine line of jurisdictional distinction, it
will now be appropriate for us to enlist the principles
with reference to which the courts should exercise such
jurisdiction. However, it is not only difficult but
inherently impossible to state such principles with
precision. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of
the principles to be considered for proper exercise of
jurisdiction, particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section
397 or Section 482 of the Code or together, as the case
may be:
27.1. Though there are no limits to the powers of the
Court under Section 482 of the Code but the more the
power, the more due care and caution is to be exercisedin invoking these powers. The power of quashing
criminal proceedings, particularly, the charge framed in
terms of Section 228 of the Code, should be exercisedvery sparingly and with circumspection and that too in
the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith primafacie establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion, and
where the basic ingredients of a criminal offence are not
satisfied, then the Court may interfere.
27.3. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or
not at the stage of framing of charge or quashing of
charge.
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***
27.9. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
.
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, is it an abuse of
the process of court leading to injustice.
***
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined to
permit continuation of prosecution rather than its
quashing at that initial stage. The Court is not expected
to marshal the records with a view to decide
admissibility and reliability of the documents or records,
but is an opinion formed prima facie.”
17. The revisional court cannot sit as an appellate court and
start appreciating the evidence by finding out
inconsistencies in the statement of witnesses, and it is not
legally permissible. The High Courts ought to be cognizant
of the fact that the trial court was dealing with an
application for discharge.
15. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC
165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine
SC 651 that it is impermissible for the High Court to reappreciate
the evidence and come to its conclusions in the absence of any
perversity. It was observed at page 169:
“12. This Court has time and again examined the scope of
Sections 397/401 CrPC and the ground for exercising the
revisional jurisdiction by the High Court. In State of::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )Kerala v. Puttumana Illath Jathavedan Namboodiri [State of
Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2
SCC 452: 1999 SCC (Cri) 275], while considering the scope of.
the revisional jurisdiction of the High Court, this Court has
laid down the following: (SCC pp. 454-55, para 5)
“5. … In its revisional jurisdiction, the High Court can
call for and examine the record of any proceedings tosatisfy itself as to the correctness, legality or propriety of
any finding, sentence or order. In other words, the
jurisdiction is one of supervisory jurisdiction exercised
by the High Court for correcting a miscarriage of justice.
But the said revisional power cannot be equated with the
power of an appellate court, nor can it be treated even as
a second appellate jurisdiction. Ordinarily, therefore, it
would not be appropriate for the High Court toreappreciate the evidence and come to its conclusion on
the same when the evidence has already been
appreciated by the Magistrate as well as the Sessions
Judge in appeal unless any glaring feature is brought to
the notice of the High Court which would otherwisetantamount to a gross miscarriage of justice. On
scrutinising the impugned judgment of the High Court
from the aforesaid standpoint, we have no hesitation inconcluding that the High Court exceeded its jurisdiction
in interfering with the conviction of the respondent byreappreciating the oral evidence. …”
13. Another judgment which has also been referred to and
relied on by the High Court is the judgment of this Court
in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court
held that the High Court, in the exercise of revisional
jurisdiction, shall not interfere with the order of the
Magistrate unless it is perverse or wholly unreasonable or
there is non-consideration of any relevant material, the
order cannot be set aside merely on the ground that another
view is possible. The following has been laid down in para
14: (SCC p. 135)
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“14. … Unless the order passed by the Magistrate is
perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
.
relevant material or there is palpable misreading of
records, the Revisional Court is not justified in setting
aside the order, merely because another view is possible.
The Revisional Court is not meant to act as an appellate
court. The whole purpose of the revisional jurisdiction is
to preserve the power in the court to do justice in
accordance with the principles of criminal jurisprudence.
The revisional power of the court under Sections 397 to
401 CrPC is not to be equated with that of an appeal.
Unless the finding of the court, whose decision is sought
to be revised, is shown to be perverse or untenable in law
or is grossly erroneous or glaringly unreasonable or
where the decision is based on no material or where the
material facts are wholly ignored or where the judicial
discretion is exercised arbitrarily or capriciously, the
courts may not interfere with the decision in exercise of
their revisional jurisdiction.”
14. In the above case, also conviction of the accused was
recorded, and the High Court set aside [Dattatray Gulabrao
Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom
1753] the order of conviction by substituting its view. This
Court set aside the High Court’s order holding that the High
Court exceeded its jurisdiction in substituting its views, and
that too without any legal basis.
16. This position was reiterated in Bir Singh v. Mukesh
Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)
309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
“16. It is well settled that in the exercise of revisional
jurisdiction under Section 482 of the Criminal Procedure
Code, the High Court does not, in the absence of perversity,
upset concurrent factual findings. It is not for the Revisional
Court to re-analyse and re-interpret the evidence on record.
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17. As held by this Court in Southern Sales &
Services v. Sauermilch Design and Handels GmbH [Southern
Sales & Services v. Sauermilch Design and Handels GmbH,.
(2008) 14 SCC 457], it is a well-established principle of law
that the Revisional Court will not interfere even if a wrong
order is passed by a court having jurisdiction, in the absence
of a jurisdictional error. The answer to the first question is,therefore, in the negative.”
17. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
18.
The learned Appellate Court held that the cable wire
was not proved to be owned by the Central Government, State
Government, Local Authority, Corporation established under the
Central Provincial or the State Act or any Company defined under
Section 617 of the Companies Act. It was submitted that this
finding is incorrect since the Bharat Sanchar Nigam Limited (in
short “BSNL”) is established by the Central Government. It is not
permissible for this Court to go into this finding because no appeal
has been preferred against the judgment acquitting the accused
for the commission of the offences punishable under Section 3 of
the PDP Act; however, this acquittal will not affect the
prosecution’s case. Even, if it was not proved that the telephone
cable pertained to the Company owned by the Government, it
could have been a subject matter of theft, because there is no
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prohibition that the property of a private person or a Company
cannot be stolen or damaged.
.
19. Similarly, the acquittal of the accused under Section 5
of the TWUP Act will also not make any difference because even if
the cable is not proved to be telephone wire, it does not mean that
it could not be damaged or stolen. The specific case of the
prosecution was that the theft of telephone cable was committed.
If it was not proved to be telegraph cable within the meaning of
the Act, it does not cease to be capable of being stolen; hence, the
submission that the learned Courts below erred in convicting and
sentencing the accused of the commission of offences punishable
under Sections 379 and 411 of IPC, after acquitting the accused for
the commission of offences punishable under Section 5 of TWUP
Act & Section 3 of PDP Act is not acceptable.
20. Madhosh (PW3) stated that he was posted as a
Lineman. He received a complaint from the people on the 25 th. He
checked the line and found 90 meters of wire had been thrown on
the spot, and 300 meters of 20 pair cable had been stolen. He
reported the matter to the junior engineer.
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21. Babu P.V. Giri (PW1) stated that he received a complaint
regarding the theft of the telephone cable. He went to the spot
.
with the police and found a 90-meter wires on the spot. Neither of
these witnesses was cross-examined regarding the fact that the
telephone cable was not laid by the BSNL; rather, it was suggested
to Madhosh (PW3) in the cross-examination that the wires were
damaged during the snowfall. Similarly, it was suggested to Babu
P.V. Giri (PW1) in his cross-examination that he was under a duty
to maintain the wire, and he had lodged a false complaint. Thus,
the accused did not dispute the fact that the Telecom Department
had laid the line and learned Courts below had rightly held that the
telephone cable belonged to “BSNL”, which was found missing by
its employees.
22. Babu P.V. Giri (PW1) stated that a search of junk sellers
located at Rohru was conducted. Ajay Thakur owns the shop at
Makhinalla. The copper wire and aluminium wire were found in
the shop, kept in the bags. The weight of the copper wire was
around 01 kg. The police seized the wires. He stated in his cross-
examination that a search of 04 shops was conducted. 02 shops
were located at Samala Road, 02 shops were located at Char Gaon
Road, and 03 shops were located at Makhinalla. 01 shop was
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closed, one shop had some furniture, and the 03 rd shop had junk.
Ajay Thakur, the accused, was present on the spot. He was
.
standing outside the shop. He denied that the accused was not the
owner of the shop. He volunteered to say that the accused stated
that he was running the shop. The wires were kept in the open. He
denied that the shop did not belong to the accused.
23. His statement is corroborated by Madhosh (PW3). He
stated that the police went to Rohru and conducted a search of the
shop of junk sellers. 01 kg of copper wire and pieces of aluminium
were found in the shop, which were seized by the police. He stated
in his cross-examination that the search of 10-12 shops was
conducted. Makhinalla had a shop of a junk seller. There were 04
shops, some of which were closed. There was one shop of
furniture. The copper wire and other junk articles were lying
inside. Accused Ajay Thakur was inside the shop. There were 3-4
people inside the shop. He could not say whether Ajay Thakur is
the owner of the shop or a mere worker.
24. The statements of these witnesses are corroborated by
the statement of Raj Kumar (PW7). He stated that copper wire was
recovered from the shop of Ajay Thakur, located at Makhinalla,
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which was seized by the police. He stated in his cross-examination
that he had not associated any independent person. He had not
.
recorded the statement of the owner of the shop from where the
recovery was effected.
25. Pratap Singh (PW6) stated that a search of the shop of
accused Ajay Thakur was conducted in his presence, during which
two bundles of copper wire were recovered. These were identified
by Madhosh (PW3) and Babu P.V. Giri (PW1). They were weighed
and their weight was found to be 01 kg. He stated in his cross-
examination that he did not know the owner of the building in
which the shop was located. There were other shops, some of
which were open. No independent person was associated, and only
the officials of the Telecom Department were associated.
26. It was submitted that the police had not associated any
independent witnesses, and the recovery has not been proved as
per the law. This submission is not acceptable. Babu P.V. Giri
(PW1) and Madhosh (PW3) were already associated by the police.
The mere fact that they were the employees of “BSNL” does not
show that they were not independent. Nothing was suggested to
these witnesses as to why they would make a false statement
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against the accused; therefore, their testimonies cannot be
ignored on the ground that an independent witness was not
.
associated by the prosecution.
27. It was submitted that the ownership of the shop was
not proved. This submission will not help the defence. The
prosecution was required to prove the possession of the stolen
property to prove the theft or the receipt of the stolen property.
Hence, ownership was not required to be proved in the present
case. The witnesses categorically stated that the accused was
present in the shop when the police went to the spot. He has not
stated in his statement recorded under Section 313 of the Cr.PC
that he was a customer and was wrongly apprehended. The
witnesses consistently stated that the accused was running the
shop; therefore, he was in a position to exercise control over the
articles kept inside the shop and would be deemed to be in
possession.
28. The police also seized a Register (Ex. PD) from the
possession of Ajay Thakur. It contains the entries of various
articles received by Ajay Thakur. The entries of ½ kg of copper
were made on 26.02.2006. Similarly, an entry of 01 kg of copper
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was made on 27.02.2006. This Register was produced in the
presence of Constable Rajinder Singh (PW5). He was not cross-
.
examined at all, which means that his testimony was accepted to
be correct by the accused. The production of Register by accused
Ajay Thakur from the shop corroborates the prosecution version
that he is the owner and the possessor of the shop, and the
submission that he has not been connected with the shop is not
acceptable. r
29. Thus, it was duly proved that the police had recovered
the burnt copper wire and aluminum pieces from the shop of
accused Ajay Thakur. These were identified by Babu P.V. Giri (PW1)
as belonging to the Telecom Department and the aluminum pieces
used to wrap the wire. These were recovered on 27.02.2006, two
days after the theft. Learned Courts below had rightly held that
presumption would arise under Section 114 of the Indian Evidence
Act, regarding the theft or possession of the stolen property by its
recent possession.
30. The police arrested the accused Sonu Ram. He made a
disclosure statement that he could show the place where he had
buried the telephone cable. This statement was made in the
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presence of Babu P.V. Giri (PW1), Ismail Mohammad (PW2), and
HHC Ramesh Kumar (PW4). Babu P.V. Giri (PW1) stated that the
.
accused Sonu Ram was arrested, who disclosed on inquiry that he
could get the cable recovered. The statement was reduced to
writing. Ismail Mohammad (PW2) stated that he had gone to the
police station in connection with his work. The police had
apprehended Sonu who revealed that he had concealed the cable,
which could be got recovered. The statement was reduced to
writing. A similar statement was made by Raj Kumar (PW7).
31. Ismail Mohammad (PW2) stated that the accused led
the police to the spot where he had kept a bag containing wire in a
pit covered with stone. The police seized the same. He stated in his
cross-examination that Makhinalla is located on Jalgaon Road.
The pit was about ½ feet to 1 feet deep. It was not visible to
passersby. He denied that he was making a false case. He stated
that he had gone to the police station to get his driving license,
which was seized by the police.
32. There is nothing in his cross-examination to show that
he has any interest to depose falsely against the accused. He has
given a legitimate reason to visit the Police Station, namely to take
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back his driving license, seized by the police; hence, his presence
in the police station cannot be doubted.
.
33. HHC Ramesh Kumar (PW4) stated that the accused led
the police to the spot and got recovered a bag containing 8 ½ kg of
copper wire. The bag was concealed with the stones. The police
seized the bag. He stated in his cross-examination that he had put
his signature on the memo on the spot. The pit was about 03 feet
deep. Stones were kept over the bag, and some bushes were also
put in it. He denied that the signatures were put in the Police
Station.
34. Babu P.V. Giri (PW1) stated that the accused led the
police to the spot from where 8½ Kg of 20 pairs of cable was
recovered. He stated in his cross-examination that they went to
the spot after one day. The public passage is located adjacent to
the place where the recovery was effected. He denied that the bag
was visible to the passerby. He denied that the recovery was not
effected and he was making false statements.
35. The statements of these witnesses are corroborating
each other. There is nothing on record to show that they were
making a false statement, and they had any motive to dispose
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against the accused. Learned Courts below had rightly accepted
their testimonies.
.
36. It was submitted that the recovery was effected from an
open place which was accessible to all and the recovery cannot be
relied upon. This submission is not acceptable. It was laid down by
the Hon’ble Supreme Court in State of H.P. v. Jeet Singh, (1999) 4
SCC 370: 1999 SCC (Cri) 539: 1999 SCC OnLine SC 282 that an article
may be concealed in a place which is open and accessible to all.
The question is not whether the article was recovered from an
open and accessible place but whether it was visible to others or
not. It was observed at page 378:
“26. There is nothing in Section 27 of the Evidence Act
which renders the statement of the accused inadmissible ifrecovery of the articles was made from any place which is
“open or accessible to others”. It is a fallacious notion that
when recovery of any incriminating article was made from a
place which is open or accessible to others, it would vitiatethe evidence under Section 27 of the Evidence Act. Any
object can be concealed in places which are open or
accessible to others. For example, if the article is buried on
the main roadside or if it is concealed beneath dry leaves
lying in public places or kept hidden in a public office, the
article would remain out of the visibility of others in normal
circumstances. Until such an article is disinterred, its
hidden state will remain unhampered. The person who hid
it alone knows where it is until he discloses that fact to any
other person. Hence, the crucial question is not whether the
place was accessible to others or not but whether it was::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )ordinarily visible to others. If it is not, then it is immaterial
that the concealed place is accessible to others.
27. It is now well settled that the discovery of fact referred
.
to in Section 27 of the Evidence Act is not the object
recovered, but the fact embraces the place from which the
object is recovered and the knowledge of the accused as to it
(Pulukuri Kottaya [Pulukuri Kottaya v. Emperor, AIR 1947 PC67: 74 IA 65]). The said ratio has received unreserved
approval of this Court in successive decisions. (Jaffar
Hussain Dastagir v. State of Maharashtra [(1969) 2 SCC
872], K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC1788], Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330:
1983 SCC (Cri) 447], Shamshul Kanwar v. State of U.P. [(1995)
4 SCC 430: 1995 SCC (Cri) 753], State of Rajasthan v. Bhup
Singh [(1997) 10 SCC 675: 1997 SCC (Cri) 1032].)
37. It was laid down by the Hon’ble Supreme Court in
Limbaji v. State of Maharashtra, (2001) 10 SCC 340: 2001 SCC OnLine
SC 1460 that merely because the recovery was effected from an
open place is not sufficient to discard the recovery and the
statement that accused had hidden the articles could be relied
upon to show the possession of the accused. It was observed:
“IV(b). [14] We are left with the evidence of recovery of the
ornaments of the deceased on the basis of the confessional
statement of the accused under Section 27 of the Evidence
Act if the discoveries are to be believed, which ought to be.
The next two questions are whether the accused shall be
deemed to be in possession of the articles concealed at
various spots and whether such possession could be said to
be recent possession. But for the decision of this Court
in Trimbak v. State of M.P. [AIR 1954 SC 39: 1954 Cri LJ 335],
the first question need not have engaged our attention at
all. That was a case in which, at the instance of the accused,::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )the stolen property was recovered at a field belonging to a
third party, and the accused gave no explanation about his
knowledge of the place from which the ornaments were.
taken out. The High Court, while absolving the appellant of
the charge of dacoity, convicted him under Section 411 IPC
for receiving the stolen property by applying the
presumption that he must have kept the ornaments at thatplace. On appeal by the accused, this Court took the view
that there was no valid reason for convicting the appellant
under Section 411 IPC. The Court pointed out that one of the
ingredients of Section 411, namely, that the stolen propertywas in the possession of the accused, was not satisfied. The
Court observed thus: (AIR p. 40, para 6)
“6. When the field from which the ornaments were
recovered was an open one and accessible to all andsundry, it is difficult to hold positively that the
accused was in possession of these articles. The fact
of recovery by the accused is compatible with the
circumstance of somebody else having placed the
articles there and of the accused somehow acquiringknowledge about their whereabouts, and that being
so, the fact of discovery cannot be regarded as
conclusive proof that the accused was in possessionof these articles.”
If this view is accepted, there is the danger of
seasoned criminals, who choose to keep the stolen property
away from their places of residence or premises, escaping
from the clutches of presumption, whereas the less
resourceful accused who choose to keep the stolen property
within their house or premises would be subjected to the
rigour of presumption. The purpose and efficacy of the
presumption under Section 114(a) will be practically lost in
such an event. We are, however, relieved of the need to
invite the decision of a larger Bench on this issue in view of
the confessional statement of the accused that they had
hidden the articles at particular places and the accused
acting further and leading the investigating officer and the
panchas to the spots where they were concealed. The
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memoranda of Panchnama evidencing such statements are
Exhibits 26, 28 and 30. If such a statement of the accused,
insofar as the part played by him in concealing the articles
.
at the specified spots is admissible under Section 27 of the
Evidence Act, there can be no doubt that the factum of
possession of the articles by the accused stands established.
We have the authority of the three-judge Bench decision of
this Court in K. Chinnaswamy Reddy v. State of A.P. [AIR 1962
SC 1788: (1963) 1 Cri LJ 8] to hold that the statement relating
to concealment is also admissible in evidence by virtue of
Section 27. In that case, the question was formulated by
Wanchoo, J., speaking for the Court, as follows: (AIR p. 1792,
para 9)
“9. Let us then turn to the question whether the
statement of the appellant to the effect that ‘he had
hidden them (the ornaments)’ and ‘would point out
the place’ where they were is wholly admissible in
evidence under Section 27 or only that part of it is
admissible where he stated that he would point out
the place but not that part where he stated that he had
hidden the ornaments.”
After referring to the well-known case of Pulukuri
Kottaya v. Emperor [AIR 1947 PC 67: 74 IA 65], the question
was answered as follows: (AIR p. 1793, para 10)
“10. If we may respectfully say so, this case clearly
brings out what part of the statement is admissible
under Section 27. It is only that part which distinctly
relates to the discovery which is admissible, but if any
part of the statement distinctly relates to the
discovery, it will be admissible wholly, and the court
cannot say that it will excise one part of the statement
because it is of a confessional nature. Section 27
makes that part of the statement which is distinctly
related to the discovery admissible as a whole,
whether it be in the nature of a confession or not.
Now, the statement in this case is said to be that the
appellant stated that he would show the place where
he had hidden the ornaments. The Sessions Judge had
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held that part of this statement, which is to the effect
‘where he had hidden them’, is not admissible. It is
clear that if that part of the statement is excised, the
.
remaining statement (namely, that he would show
the place) would be completely meaningless. The
whole of this statement, in our opinion, relates
distinctly to the discovery of ornaments and is
admissible under Section 27 of the Indian Evidence
Act. The words ‘where he had hidden them’ are not on
par with the words ‘with which I stabbed the
deceased’ in the example given in the judgment of the
Judicial Committee. These words (namely, where he
had hidden them) have nothing to do with the past
history of the crime and are distinctly related to the
actual discovery that took place by virtue of that
statement. It is, however, urged that in a case where
the offence consists of possession, even the words
‘where he had hidden them’ would be inadmissible as
they would amount to an admission by the accused
that he was in possession. There are, in our opinion,
two answers to this argument. In the first place,
Section 27 itself says that where the statement
distinctly relates to the discovery, it will be
admissible whether it amounts to a confession or not.
In the second place, these words by themselves
*though they may show possession of the
appellant would not prove the offence, for after the
articles have been recovered, the prosecution has still
to show that the articles recovered are connected with
the crime, i.e., in this case, the prosecution will have
to show that they are stolen property. We are
therefore of the opinion that the entire statement of
the appellant (as well as of the other accused who
stated that he had given the ornament to Bada Sab
and would have it recovered from him) would be
admissible in evidence, and the Sessions Judge was
wrong in ruling out part of it.” *(emphasis supplied)
In the light of this decision, we must hold that the accused
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must be deemed to be in exclusive possession of the articles
concealed under the earth, though the spots at which they
were concealed may be accessible to the public. It may be
.
mentioned that in the Trimbak case [AIR 1954 SC 39: 1954 Cri
LJ 335], this Court did not refer to the confessional
statement, if any, made by the accused falling within the
purview of Section 27 and the effect thereof on the aspect of
possession.
38. This position was reiterated in Ibrahim Musa Chauhan v.
State of Maharashtra, 2013 SCC OnLine SC 254, wherein it was
observed:
“15. In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC
370, this court dealt with the issue of recovery from a public
place and held:
“21. The conduct of the accused has some relevance
in the analysis of the whole circumstances againsthim. PW 3 Santosh Singh, a member of the Panchayat
hailing from the same ward, said in his evidence that
he reached Jeet Singh’s house at 6.15 a.m. on hearingthe news of that tragedy and then accused Jeet Singh
told him that Sudarshana complained of pain in theliver during the early morning hours. But when the
accused was questioned by the trial court under
Section 313 of the Code of Criminal Procedure, hedenied having said so to PW 3 and further said, for the
first time, that he and Sudarshana did not sleep in the
same room, but they slept in two different rooms. Such
conduct on the part of the accused was taken into
account by the Sessions Court in evaluating the
incriminating circumstance spoken to by PW 10 that
they were in the same room on the fateful night. We,
too, give accord to the aforesaid approach made by the
trial court.”
16. Similarly, in State of Maharashtra v. Bharat Fakira
Dhiwar (2002) 1 SCC 622, this Court held:
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( 2025:HHC:24428 )“22. In the present case, the grinding stone was
found in tall grass. The pants and underwear were
buried. They were out of the visibility of others in.
normal circumstances. Until they were disinterred, at
the instance of the respondent, their hidden state had
remained unhampered. The respondent alone knew
where they were until he disclosed it. Thus, we see no
substance in this submission, also.”
17. In view of the above, it cannot be accepted that a
recovery made from an open space or a public place which
was accessible to everyone should not be taken into
consideration for any reason. The reasoning behind it is
that it will be the accused alone who will know the place
where a thing is hidden. The other persons who had access
to the place would not be aware of the fact that an accused,
after the commission of an offence, had concealed
contraband material beneath the earth or in the garbage.”
39. Similarly, it was held in Perumal Raja v. State, 2024 SCC
OnLine SC 12, that if the accused does not tell the Criminal Court
that his knowledge of the concealment was based on the
possibilities that absolve him, an inference can be drawn that the
accused had concealed those articles. It was observed:
“32. In State of Maharashtra v. Suresh (2000) 1 SCC 471, this
Court, in the facts therein, held that recovery of a dead
body, which was from the place pointed out by the accused,
was a formidable incriminating circumstance. This would,
the Court held, reveal that the dead body was concealed by
the accused unless there is material and evidence to show
that somebody else had concealed it, and this fact came to
the knowledge of the accused either because he had seen
that person concealing the dead body or was told by
someone else that the dead body was concealed at the said
location. Here, if the accused declines and does not tell the::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )criminal court that his knowledge of the concealment was
on the basis of the possibilities that absolve him, the court
can presume that the dead body (or physical object, as the.
case may be) was concealed by the accused himself. This is
because the person who can offer the explanation as to how
he came to know of such concealment is the accused. If the
accused chooses to refrain from telling the court as to howelse he came to know of it, the presumption is that the
concealment was by the accused himself.
33. The aforesaid view has been followed subsequently and
reiterated in Harivadan Babubhai Patel v. State of Gujarat(2013) 7 SCC 45, Vasanta Sampat Dupare v. State of
Maharashtra (2015) 1 SCC 253, State of Maharashtra v. Damu
S/o Gopinath Shinde (2000) 6 SCC 269, and Rumi Bora
Dutta v. State of Assam (2013) 7 SCC 417.”
40. It was submitted that the police did not associate any
independent witnesses, and the disclosure statement and recovery
were not proved. This submission will not help the accused. In
State Versus Sunil 2001 (1) SCC 652, the recovery was discarded by
the High Court on the ground that no independent witness had
signed the memo, and it was signed only by the highly interested
person. It was held by the Hon’ble Supreme Court that there is no
requirement under Section 27 of the Indian Evidence Act or
Section 161 of Cr.P.C. to obtain the signatures of independent
witnesses. The requirement of independent witnesses is when the
recovery is effected under Section 100(4) of the Cr.PC and not
when the recovery is effected pursuant to the disclosure
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( 2025:HHC:24428 )
statement. It was further observed that statements of police
officials cannot be doubted on the grounds that they are official
.
witnesses. It was observed: –
“17. Recovery of the nicker is evidenced by the seizure
memo, Ext. PW-10/G. It was signed by PWlO-Sharda
beside its author, PW17-Investigating Officer. The
Division Bench of the High Court declined to place any
weight on the said circumstance purely on the groundthat no other independent witness had signed the memo,
but it was signed only by “highly interested persons”.
The observation of the Division Bench in that regard is
extracted below:
“It need hardly be said that in order to lend
assurance that the investigation has been proceeding
in a fair and honest manner, it would be necessary
for the Investigating Officer to take independent
witnesses to the discovery under Section 27 of theIndian Evidence Act; and without taking independent
witnesses and taking highly interested persons and
the police officers as the witnesses to the discoverywould render the discovery, at least, not free from
doubt.”
18. In this context, we may point out that there is no
requirement either under Section 27 of the Evidence Act
or under Section 161 of the Code of Criminal Procedure to
obtain the signature of independent witnesses on the
record in which the statement of an accused is written.
The legal obligation to call Independent and respectable
inhabitants of the locality to attend and witness the
exercise made by the police is cast on the police officer
when searches are made under Chapter VII of the Code.
Section 100(5) of the Code requires that such a search
shall be made in their presence and a list of all things
seized in the course of such search and of the places in
which they are respectively found shall be prepared by
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( 2025:HHC:24428 )
such officer or another person, and signed by such
witnesses. It must be remembered that a search is made
to find out a thing or document which the searching
.
officer has no prior idea where the thing or document is
kept. He prowls for it either on reasonable suspicion or
some guesswork that it could possibly be ferreted out in
such prowling. It is a stark reality that during searches,
the team which conducts the search would have to
meddle with lots of other articles and documents also,
and in such a process, many such articles or documents
are likely to be displaced or even strewn helter-skelter.
The legislative idea in insisting on such searches to be
made in the presence of two independent inhabitants of
the locality is to ensure the safety of all such articles
meddled with and to protect the rights of the persons
entitled thereto. But the recovery of an object pursuant to
the information supplied by an accused in custody is
different from the searching endeavour envisaged in
Chapter VII of the Code. This Court has indicated the
difference between the two processes in the Transport
Commissioner, Andhra Pradesh, Hyderabad & Anr. v. S.
Sardar Ali & Ors 1. Following observations of Chinnappa
Reddy, J. can be used to support the said legal
proposition:
“Section 100 of the Criminal Procedure Code, to
which reference was made by the counsel, deals with
searches and not seizures. In the very nature ofthings, when the property is seized and not
recovered during a search, it is not possible to
comply with the provisions of subsections (4) and (5)
of Section 100 of the Criminal Procedure Code. In the
case of a seizure (under the Motor Vehicles Act),
there is no provision for preparing a list of the things
seized in the course of the seizure for the obvious
reason that all those things are seized not separately
but as part of the vehicle itself.”
19. Hence, it is a fallacious impression that when recovery
is effected pursuant to any statement made by the
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( 2025:HHC:24428 )
accused, the document prepared by the Investigating
Officer contemporaneous with such recovery must
necessarily be attested by independent witnesses. Of
.
course, if any such statement leads to the recovery of any
article, it is open to the Investigating Officer to take the
signature of any person present at that time, on the
document prepared for such recovery. But if no witness
was present or if no person had agreed to affix his
signature on the document, it is difficult to lay down, as a
proposition of law, that the document so prepared by the
police officer must be treated as tainted and the recovery
evidence unreliable. The court has to consider the
evidence of the Investigating Officer who deposed to the
fact of recovery based on the statement elicited from the
accused on its own worth.
20. We feel that it is an archaic notion that the actions of
the police officer should be approached with initial
distrust. We are aware that such a notion was lavishly
entertained during the British period, and policemen also
knew about it. Its hangover persisted during post-
independent years, but it is time now to start placing at
least initial trust in the actions and the documents made
by the police. At any rate, the court cannot start with the
presumption that the police records are untrustworthy.
As a proposition of law, the presumption should be the
other way around. That official acts of the police have
been regularly performed is a wise principle of
presumption and recognised even by the legislature.
Hence, when a police officer gives evidence in court that a
certain article was recovered by him on the strength of
the statement made by the accused, it is open to the court
to believe the version to be correct if it is not otherwise
shown to be unreliable. It is for the accused, through
cross-examination of witnesses or through any other
materials, to show that the evidence of the police officer
is either unreliable or at least unsafe to be acted upon in a
particular case. If the court has any good reason to
suspect the truthfulness of such records of the police, the
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( 2025:HHC:24428 )
court could certainly take into account the fact that no
other independent person was present at the time of
recovery. But it is not a legally approvable procedure to
.
presume the police action as unreliable to start with, nor
to jettison such action merely for the reason that police
did not collect signatures of independent persons in the
documents made contemporaneous with such actions.”
41. This question was also considered by the Hon’ble
Supreme Court in Praveen Kumar Versus State of Karnataka (2003)
12 SCC 199, in which a contention was raised that the statement
recorded by the police under Section 27 of the Indian Evidence Act
was not witnessed by any independent witness and the same
should be rejected. It was held that there is no requirement to
associate independent witnesses at the time of the disclosure
statement. It was observed: –
“20. The learned counsel for the appellant, however,
contended that the alleged statement, Ext. P-35 wasmade to PW 33, not in the presence of any independent
witness; hence, the same should be rejected. He also
contended that the said statement was made on 2-3-1994, but the recovery was made only on 3-3-1994;
therefore, the said recovery cannot be correlated to the
statement, if any, made by the accused on 2-3-1994. He
also challenged the fact of recovery, stating that the
panch witnesses to the said recovery cannot be believed.
21. Section 27 does not lay down that the statement made
to a police officer should always be in the presence of
independent witnesses. Normally, in cases where the
evidence led by the prosecution as to a fact depends solely
on the police witnesses, the courts seek corroboration as
a matter of caution and not as a matter of rule. Thus, it is::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )only a rule of prudence which makes the court seek
corroboration from an independent source, in such cases,
while assessing the evidence of the police. But in cases.
where the court is satisfied that the evidence of the police
can be independently relied upon, then in such cases,
there is no prohibition in law that the same cannot be
accepted without independent corroboration. In theinstant case, nothing is brought on record to show why
the evidence of PW 33 10 should be disbelieved in regard
to the statement made by the accused as per Ext. P-35.
Therefore, the argument that the statement of theappellant as per Ext. P-35 should be rejected because the
same is not made in the presence of an independent
witness has to be rejected.”
42. The Full Bench of the Hon’ble Rajasthan High Court has
also considered this question in State of Rajasthan vs. Mangal
Singh, AIR 2017 Raj. 68 and gave the following reasons for not
insisting upon the presence of independent witnesses during the
disclosure statements:
22. We are of the firm opinion that the insistence to keep
attesting witnesses present when the Investigating
Officer records the information supplied by the accusedunder Section 27 of the Evidence Act is absolutely
unwarranted and rather amounts to a direct infringement
of the confidentiality of the investigation. There are
strong reasons behind this conclusion. We summarise a
few illustrations to fortify the same:
(a) Investigation commences the moment an F.I.R. is
registered for a cognizable offence. An Investigating
Officer, having custody of the accused, cannot predict
in advance the precise moment when the accused
would decide to reveal the information, which could
lead to the discovery of an incriminating fact. Thus, if::: Downloaded on – 28/07/2025 21:24:35 :::CIS
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( 2025:HHC:24428 )attestation of the information by an independent
witness is insisted upon, as a direct corollary thereto,
the Investigating Officer would be required to keep.
the witnesses in attendance right from the moment
the accused is arrested till the information is elicited.
This would lead to an absolutely absurd situation and
is likely to frustrate the investigation. The very
sanctity of investigation and the privilege available to
the Investigating Officer to keep the investigation
secluded from prying eyes would be compromised.
(b) Another possible situation may be that the accused
might divulge the information under Section 27 of the
Evidence Act to the Investigating Officer at a
particular point in time when independent witnesses
are not available. For adhering to the procedure of
seeking attestation by independent witnesses, the
Investigating Officer would then be required to
summon independent witnesses and request the
accused to repeat the information in their presence. At
this point in time, the accused may either refuse to
divulge the information given earlier or may oblige
the Investigating Officer with the information, which
would then be taken down in writing in the presence
of the independent attesting witnesses. However,
there is a fundamental glitch in adopting this
procedure, which would certainly make the
information, if any, received the second time around
in the presence of the witnesses, inadmissible in
evidence. Law is well settled by a catena of decisions
of the Hon’ble Supreme Court, including the
judgment in the case of Aher Raja Khima v. The State of
Saurashtra, reported in AIR 1956 SC 217, that
information of a fact already known to the
Investigating Officer is inadmissible in evidence.
Thus, in case the Investigating Officer, while making
an investigation of the accused in his custody, is
provided information under Section 27 of the
Evidence Act and soon thereafter, calls the Panchas
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and records the same in their presence, then he would
be recording the memorandum of information already
known to him. Such information would be
.
inadmissible at the outset, and thus, the entire
endeavour would become nothing short of an exercise
in futility.
(c) There is yet another risk involved, which could
severely prejudice the accused if the information
provided by the accused under Section 27 is recorded
in the presence of independent witnesses. The
information under Section 27 of the Evidence Act
often comprises two parts: one being confessional,
which has to be excluded, and the other, which leads
to the discovery of an incriminating fact and is
admissible in evidence to the extent of the discovery
made in pursuance thereof. In case independent
witnesses are kept present when the information is
given by the accused, the prosecution may make an
endeavour to prove even the confessional part of the
information as being an extra-judicial confession
made in the presence of independent witnesses. There
may even arise a situation where the independent
witness present to attest to the memorandum
prepared under Section 27 of the Evidence Act is a
Magistrate. In such a case, the confessional part of the
information under Section 27 of the Evidence Act
would almost assume the character of a confession
under Section 26 of the Evidence Act, thereby
condemning the accused to face severe consequences.
There is a high probability of this situation arising in
cases involving the recovery of narcotics where the
Investigating Officer gives an option to the accused
that be searched in the presence of a Magistrate or a
Gazetted Officer. Contemplating that option to be
searched in the presence of a Magistrate is given, and
a search of the accused is conducted, and during the
process, he is also questioned in the presence of the
Magistrate. At this time, the accused may provide
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information under Section 27 of the Evidence Act to
the Investigating Officer, which is partly confessional
in nature and is taken down in writing and witnessed
.
by the Magistrate by adhering to the requirement of
attestation. In such a situation, the accused would be
faced with severe consequences because the
prosecution would then, by lifting the prohibition
contained in Section 26 of the Evidence Act, insist to
prove the whole of the information as amounting to a
confession made in the presence of a Magistrate.
Thus, the requirement seeking attestation of the
memorandum prepared under Section 27 of the
Evidence Act does not have any logic or rationale
behind it.”
43. Therefore, the disclosure statement cannot be
discarded on the ground that independent witnesses were not
associated.
44. Therefore, it was duly proved on record that the
telephone cable was stolen. The burnt wire and copper wire were
recovered from the shop of accused Ajay Thakur, and the copper
wire was recovered at the instance of accused Sonu Ram. The
accused denied the prosecution’s case in its entirety and did not
provide any explanation for the possession of the telecom cable.
Section 114 Illustrations (a) provides that a person found in
possession of the stolen goods soon after the theft is presumed to
be a thief or the receiver of the stolen property. It was laid down by
the Hon’ble Supreme Court in Dakkata Balaram Reddy v. State of
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A.P., (2023) 19 SCC 461: 2023 SCC OnLine SC 474 that where the
accused was found in possession of the stolen goods, a
.
presumption would arise under Section 114 of the Indian Evidence
Act and the burden to rebut the presumption is upon the accused.
It was observed at page 471:
“27. In this regard, it may also be noted that A-2 was found
in possession of a bag carrying some of the stolenornaments and, therefore, such possession itself speaks
against him, in terms of Section 114(a) of the Evidence Act,
1872. Being a fact especially within his knowledge, it was forA-2 to explain as to how he came to be in possession of
those stolen ornaments, under Section 106 of the Evidence
Act, 1872. However, no explanation was offered by him. As
regards A-1, it is the prosecution’s case that he confessed to
the commission of the crime and upon being questioned asto the stolen gold ornaments, he himself went into the other
room in his house and brought out a bag containing the gold
ornaments. This part of his confession would, therefore, beadmissible under Section 27 of the Evidence Act, 1872, as it
led to the recovery of the stolen gold ornaments.”
45. Therefore, the learned Courts below were justified in
concluding that the accused was either a thief or receiver of the
stolen property. In the absence of any explanation, learned Courts
below were justified in holding the accused Sonu Ram guilty of the
commission of an offence punishable under Section 379 of IPC
based on his disclosure statement and the accused Ajay Thakur
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guilty of the commission of an offence punishable under Section
411 of the IPC based on his recent possession.
.
46. The learned Trial Court sentenced the accused Sonu
Ram to undergo simple imprisonment for a period of 01 year and
pay a fine of ₹1,000/-. Learned Trial Court had also sentenced the
accused Ajay Thakur to undergo simple imprisonment for one year
and pay a fine of ₹1,000/- for the commission of an offence
punishable under Section 411 of IPC. Considering the fact that the
public was deprived of the facility of the telephone for a “petty
gain”, the sentence of one year cannot be said to be excessive and
no interference is required with it.
47. No other point was urged.
48. In view of the above, the present revision fails, and the
same is dismissed.
49. Records of the learned Courts below be sent back
forthwith, along with a copy of this judgment.
(Rakesh Kainthla)
Judge
28th July, 2025
(Shamsh Tabrez)
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