Vijay Kumar v. The State Of Bihar

acquittal while petitioner stood convicted by the trial court which found approved by the appellate court, hence this revision.

5. Learned counsel for the petitioner while challenging the successive judgments has submitted that learned lower court had simply copied the evidence of the PWs without making sincere effort to scrutinize the same to come to the conclusion whether the evidence so adduced conclusively held petitioner to be guilty for the offence so alleged. It has also been submitted that he has been made an scapegoat and the I.O. coming in collusion with the persons who were mainly responsible for removing the amount from the Nezarath got him involved in this case, otherwise there was no occasion for the petitioner to commit such crime as is evident from the evidence of PWs who were deputed as night guard. In likewise manner, it has also been submitted that so- called recovery of the stolen amount was not from his house rather happens to be clear cut plantation and that is the reason for presence of inconsistency amongst the evidences of the PWs on 4 that very score. The police had forcibly taken signature of the petitioner on different blank papers which was later on converted into seizure list, extra-judicial confessional statement which the petitioner was only able to expose by way of cross-examining the I.O. however, for want of examination of I.O., this theme remained unresolved. Therefore, at least petitioner should have been given benefit of doubts on the ground of having his interest pre-judicial by non examination of I/O.

6. On the other hand, learned APP opposed the prayer and submitted that by examining altogether 10 PWs including seizure list witnesses, the prosecution has succeeded in proving its case and on account thereof, there is concurrent findings of the courts below which, as the petitioner failed to place that the evidence were not considered and scrutinized in proper way, should not be interfered with during course of revision.

7. In light of Section 114 of the Evidence Act certain things are to be presumed to have happened which the court could take into its judicial notice, however, subject to rebuttal. It has been explained by illustration whereunder Illustration-A speaks that recovery of booty soon after the occurrence will also liable the accused for offence of theft. The aforesaid legal provision has been taken at first instance with some purpose because of the fact 5 that none of the witnesses so examined on behalf of prosecution had claimed to be an eyewitness of commission of theft by opening the lock through duplicate key by the petitioner, Vijay Kumar. Because of the fact that prosecution has at its first hand insisted upon recovery of booty appertaining to Rs. 1,32,021/- from the house of petitioner along with bunch of duplicate keys on his confessional statement then in that event, not only for the purpose of Section 411 IPC, with the aid of Section 114 of the Evidence Act, the petitioner would automatically be held liable for Section 380 and 457 IPC.

8. Therefore, in light of aforesaid discussions, the first and foremost question has to be taken into consideration whether the prosecution has succeeded in getting the factum of recovery of the booty from the house of petitioner beyond doubt. PWs-5 and 6 are the seizure list witnesses relating to recovery of the booty out of whom PW-5, Sudama Rai had stated that recovery was made from the house of Vijay Kumar while Paigambar Rai, PW-6 has disowned the same. PW-5 has not spoken a word that the aforesaid recovery was made on pointing out by the petitioner. However, the fact remains that both the witnesses have shown their presence over seizure list and on account thereof, the genuineness of seizure list cannot be doubted. 6

9. PW-8, Sheo Kumar Singh and PW-9, Krishna Singh are the witnesses of fact as well as with regard to search and seizure of bunch of keys. From the evidence of PW-8, it is apparent that he had simply endorsed the written report submitted by Nazir while under para-2, he had denied that the bunch of duplicate keys was recovered in his presence and in likewise manner is the evidence of PW-9, Krishna Singh although he had stated the Vijay Kumar’s duty as night guard was in the second half.

10. In Ramesh Harijan Vs. State of U.P. reported in 2012 (5) SCC 777, the relevant para is 22.4 which is as follows:-

22.4. The recovery of part of the sheet and white clothes having blood and semen as per the FSL report has been disbelieved by the trial court in view of the fact that Ram Prasad alias Parsadi (PW 5) and Bhikari (PW 10) did not support the prosecution case like other witnesses who did not support the last seen theory. The trial court failed to appreciate that both the said witnesses, Ram Prasad alias Parsadi (PW 5) and Bhikari (PW 10) had admitted their signature/thumb impression on the recovery memo. The factum of taking the material exhibits and preparing of the recovery memo with regard to the same and sending the cut out portions to the serologist who found the blood and semen on them vide report dated 21-3-1996 (Ext. Ka-21) is not disputed. The serological report also revealed that the vaginal swab which was taken by the doctor was also human blood and semen stained.

11. The prosecution has also exhibited extra-judicial confessional statement of petitioner and virtually, that is the sheet 7 anchor of the whole prosecution case on account of being inculpatory in nature. The aforesaid statement was recorded by the I.O.. Before its reliance, its validity is to be taken into account. Section 25 of the Evidence Act suggests that any confessional statement made before the police is not at all admissible in the eyes of law.

12. On the other hand, Section 26 of the Evidence Act forbids acceptance of legal identity of confession made before the police directing that it cannot be proved against the maker of the document. Now happens to be Section 27 of the Evidence Act wherein some sort of relaxation has been provided permitting acceptance of the confessional statement leading to recovery. For better appreciation Section 27 of the Evidence Act is being incorporated hereinbelow:- to as discovered

27. How much of information received from accused may be proved.- Provided that, when any fact in consequence of is deposed 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.

13. Therefore, a confession has been made admissible to the extent of facts discovered in pursuance of the confession so made, that means to say, there should be positive linkage in 8 between the confession so made with the discovery.

14. Now coming to the facts of the case, none of the PWs had deposed that Vijay Kumar had made inculpatory extra- judicial confessional statement leading to recovery in their presence and for want of evidence of the I.O., who was not at all examined during course of trial, hence, mystery persists. The controversy with regard to genuineness of the prosecution version is found to be more deepened when there is conjoint scrutiny of the respective seizure lists along with inculpatory extra-judicial confessional statement. The inculpatory extra-judicial confessional statement is found to be recorded on 03.11.1993 at 18:00 hours while from the seizure list (Ext-4 relating to seizure of bunch of keys happens to be dated 03.11.1993 at 17:00 hours) and seizure with regard to recovery of Rs. 1,32,021/- is of dated 03.11.1993 at about 14:00 hours. In none of the seizure list, it has been incorporated that aforesaid recovery was made at the instance of petitioner, Vijay Kumar.

15. That means to say, the prosecution by its own document has suggested the recovery of booty at 2:00 P.M. on

03.11.1993 while the bunch of keys at 5:00 P.M. on 03.11.1993 and the inculpatory extra-judicial confessional statement at 6:00 P.M. on 03.11.1993. This controversy is found unexplained by the 9 witnesses whoever been examined on behalf of prosecution. The I.O. has not been examined and in absence of the evidence of I.O. whether, the so-called inculpatory extra-judicial confessional statement is to be accepted in terms of Section 27 of the Evidence Act or appears to be barred under Section 26 of the Evidence Act. On account of inconsistency with regard to seizure inconsonance recording of inculpatory extra-judicial confessional statement. Petitioner may be a culprit, the booty might have been recovered from his possession but in absence of legal evidence against him in accordance with Section 27 of the Evidence Act, petitioner cannot be held accountable for offence punishable under Section 411 IPC because of the fact that there is complete lacking of the evidence adduced on behalf of prosecution that recovery was made leading to inculpatory extra-judicial confessional statement and on account thereof is found to be inadmissible in terms of Section 26 of the Evidence Act when the recovery followed with inculpatory extra-judicial confession is found to be not supported then, in that circumstance the presumption of Section 114 of the Evidence Act will come into play.

16. From the successive judgments, it is evident that learned courts below have only considered the inculpatory extra- judicial confessional statement in superficial manner without 10 tracing that it has properly been proved. At the cost of repetition, it is apparent from the evidence of the PWs that none had supported with regard to apprehension of accused petitioner followed with inculpatory extra-judicial confession leading to recovery.

17. Even accepting the seizure list in the background of judicial pronouncement as referred above is not going to change the fate of the case because of the fact that the inculpatory extra- judicial confessional statement leading to discovery is found missing and for that at least, the petitioner is found entitled of benefit of doubts

18. Consequent thereupon, the successive judgments are set aside. Revision is allowed.

19. Since petitioner is in jail custody, he is directed to be released forthwith if not wanted in any other case. (Aditya Kumar Trivedi, J) Patna High Court 29th Day of July 2013 Md. Perwez Alam/AFR