The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 372 of 2019 Vikash Baraik S/o Late Mangru Baraik, aged 20 years, Resident of Village- Saldega Tongritoli, P.O. & P.S.- Simdega, District- Simdega (Jharkhand) … … Petitioner -Versus- The State of Jharkhand … … Opp. Party --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State --- : Mr. Kripa Shankar Nanda, Advocate : Mr. Tarun Kumar, A.P.P. Lastly heard on 02.05.2024 08/22.07.2024 --- This criminal revision application has been filed by the petitioner for setting aside the judgment of conviction dated 13.03.2018 and order of sentence dated 15.03.2018 passed by the learned C.J.M., Simdega in G.R. No.303/2017 / T.R. No. 400/2018 (arising out of Mufassil P.S. Case No.09/2017 dated 15.07.2017) whereby and whereunder the petitioner has been convicted under Sections 392, 411/34 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced to undergo Rigorous Imprisonment for 05 years with fine of Rs.5,000/- for offence under Section 392/34 of IPC and Rigorous Imprisonment for 03 years with fine of Rs.5,000/- for offence under Section 411/34 of IPC and in default of payment of fine, to undergo extended rigorous imprisonment for 03 months for each section and both the sentences have been directed to run concurrently. A prayer has also been made to set aside the appellate court judgement dismissing the appeal. The appellate judgement dated 02.03.2019 has been passed by the learned Sessions Judge, Simdega in Criminal Appeal No.20/2018. Arguments on behalf of the petitioner 2. Learned counsel for the petitioner submitted that the petitioner and the co-accused namely, Raju Yadav and Anish Soreng were identified by the Informant-victim (PW-6) during test identification parade, but in his cross-examination, PW-6 admitted that the accused persons present in court had not committed the occurrence. PW-6 1 further admitted categorically that the accused persons were shown to him at the police station and he was told to identify them and therefore, he had identified the accused persons in the test identification parade held on 11.08.2017 in the Divisional Jail, Simdega. PW-5, the wife of the Informant in her cross-examination also stated that the persons present in court had not committed the
Legal Reasoning
occurrence of loot. The learned counsel further submitted that PW-5 and PW-6 have not been declared hostile by the prosecution on the point of identification of the accused persons in court and even no question has been put to PW-6 by the prosecution on the point that he had earlier identified the accused persons in the test identification parade, although he failed to identify them in court. He further submitted that there is no recovery of any looted article from the possession of the petitioner. The looted mobile set and the motorcycle have been recovered from the possession of the co-accused namely, Raju Yadav on the basis of his confession. Raju Yadav has not filed any criminal revision against the judgment passed by the learned appellate court and he has already served the sentence. 3. Learned counsel for the petitioner further submitted that Section 30 of the Indian Evidence Act alone cannot be the basis of conviction as confession of co-accused cannot be relied upon as substantive evidence and therefore, no conviction can be recorded solely on the basis of the confession of the co-accused. 4. He relied upon the judgment passed by the Hon’ble Supreme Court in the cases of Haricharan Kurmi -vs- State of Bihar AIR 1964 SC 1184 (Para-16) and Subramanya -vs- State of Kerala 2022 LiveLaw (SC) 887. 5. He further submitted that in the present case, the confession of the co-accused Raju Yadav leading to recovery is admissible against him only and not against the petitioner. He further submitted that PW- 1, PW-3 and 7 are hearsay witnesses and PW-2 and PW-4 have been declared hostile by the prosecution. The petitioner and Raju Yadav have been convicted on the basis of the evidence of the Sub-Divisional Judicial Magistrate, Simdega who conducted the test identification 2 parade and there is no other corroborative evidence against the petitioner. 6. Learned counsel for the petitioner further submitted that without prejudice to the arguments on merits, the petitioner does not have any criminal antecedent and he has remained in custody for a period of about 22 months and, therefore, the facts and circumstances of the case calls for modification of the sentence of the petitioner. Arguments on behalf of the State 7. Learned counsel appearing on behalf of the Opposite Party- State, on the other hand, opposed the prayer made on behalf of the petitioner and submitted that the petitioner has committed serious nature of the offence and the learned courts have given concurrent findings and the scope of interference in revisional jurisdiction is very limited. He further submitted that considering the facts and circumstances of the case, no interference is called for in the impugned judgments. Findings of this Court 8. The prosecution case is based on the fardbeyan of the Informant-victim namely, Rajendra Kachhap (PW-6) recorded by S.I. Naval Kishor Singh (PW-8), Officer-in-charge, Mufassil P.S. on 15.07.2017 at about 08.00 P.M. in presence of Raj Kumar Gupta (PW- 1) alleging that on 14.07.2017 at about 07:30 P.M., he was inside his house alongwith his wife who was feeding her child. In the meantime, one person called him from eastern door to open the door. When the Informant opened the door, all of a sudden, three persons entered into his house and pointed pistol on him. The miscreant asked him what was bid amount of the small bridge and the Informant replied that he is only ward member and the construction work has been taken up under NAREGA scheme. Then miscreants threatened his wife and told her to bring the money kept in the house. On their threatening, his wife produced Rs.9,000/- from the box. The miscreants saw jewellery of his wife and took away silver chain, nose pin and ear-rings of roll- gold with them. They also took Samsung Mobile Phone-1110 set, took out the sim and handed over to him. They also took away one Hero 3 Splendor I-Smart Motorcycle No. JH-20C-8177, Engine No. JA06EPGHG05918, Chasis No. MBLJ06AXGHJ05974. They left the Informant by giving threatening that since he has got small kids, they are sparing them although they were directed by the senior to kill them. They also threatened to give Rs.30,000/- at about 10:00 A.M. on the next day and thereafter, they would return the mobile phone and motorcycle to the informant . They also threatened them that if matter is reported to police, he would be buried 5 ft. inside the earth and thereafter, they fled away. The Informant saw from the window that the miscreants had parked their motorcycle at a distance of 200 ft. from his house in the southern side and when they started the motorcycle, he saw their red colour motorcycle. The Informant further stated that out of three miscreants, two persons were 5½ ft. in height and of simple stature and one person was short in height and dark in complexion and were using Sadari language. The Informant claimed to identify the miscreants on seeing them. 9. On the basis of the fardbeyan of the Informant, the case was registered as Mufassil P.S. Case No.09/17 dated 15.07.2017 under Section 392 of IPC against three unknown miscreants. In course of investigation, the Investigating Officer recovered the Hero Splendor I- Smart Motorcycle No. JH-20C-8177 from the house of Raju Yadav. After completion of investigation, the Investigating submitted charge- sheet under Sections 392/411 of IPC against Raju Yadav, Vikash Baraik and Anish Soreng upon which cognizance of the offence under Sections 392/411 of IPC was taken in the case on 26.09.2017. At the stage of appearance, the co-accused namely, Anish Soreng was found to be a juvenile-in-conflict with law and accordingly, his case record was separated from the original case record and sent to the court of the learned Principal Magistrate, Juvenile Justice Board, Simdega. 10. On 08.12.2017, the charges under Sections 392/411 of IPC were framed against the petitioner and Raju Yadav which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4 11. In course of trial, the prosecution examined altogether nine witnesses to prove its case. PW-1 is Raj Kumar Gupta, PW-2 is Santosh Gwala, PW-3 is Somara Ram, PW-4 is Nelson Dang, PW-5 is Santoshi Devi, wife of the Informant-victim, PW-6 is Rajendra Kachhap who is the Informant-victim of the case, PW-7 is Pitamber Paik and PW-9 is Arun Kumar Dubey, S.D.J.M., Simdega who had conducted T.I.P. of the accused persons. 12. The prosecution exhibited the signatures of PW-1 and PW-6 on the fard-beyan as Exhibits-1 and 1/1, fardbeyan as Exhibit-1/2, formal F.I.R. as Exhibit-2, Production-cum-seizure list as Exhibit-3, Certificate under Section 65(B) of the Indian Evidence Act alongwith CDR as Exhibit-4, seizure list as Exhibit-5, confessional statement of Raju Yadav as Exhibit-6, confessional statement of Vikash Baraik as Exhibit-6/1, confessional statement of Anish Soreng as Exhibit-6/2, another seizure list as Exhibit-7, Memo of arrest of Anish Soreng, Vikash Baraik and Raju Yadav as Exhibits-8, 8/1 and 8/2 respectively, Charge-sheet as Exhibit-9, TIP Chart as Exhibit-10 and signature of Lalan Kumar Bharti, witness to TIP, in TIP Chart as Exhibit-10/1. 13. PW-1 and 3 are formal and hearsay witnesses. PW-7 has supported the prosecution case, but has admitted that he is not the eye witness of the case and he has no personal knowledge of the occurrence. PW-2 and PW-4 have been declared hostile by the prosecution. 14. PW-5 is the victim and is also the wife of the Informant-victim. She in her examination-in-chief stated that the occurrence is of 14.07.2017 at about 07:30 P.M. when she was in her house with her husband. Some person called her husband to open the door and when her husband opened the door, three persons entered into the house, threatened them, pointed pistol and assaulted her husband. They directed her to search the money and looted away cash of Rs.9,000/-, motorcycle, mobile of her husband and their golden and silver jewellery and fled away. She failed to identify the accused persons in court. In her cross-examination, she stated that the persons present in court had not committed the occurrence of loot. 5 15. PW-6 is the Informant-victim of the case. In his examination- in-chief, he stated that the occurrence is of 14.07.2017 at 07:30 P.M. when he was in his house with his wife. Some persons called him to open the door and when he opened the door, three persons entered into the house, pointed pistol and assaulted him. They directed his wife to search the money and looted away cash of Rs.9,000/-, his Motorcycle No. JH-20C-8177, mobile of Samsung company and golden and silver jewellery. They directed him to give Rs.30,000/- till the next evening, otherwise he will face dire consequences. He disclosed the entire occurrence to Rajkumar on the next morning and reported the matter to the police and his fard-beyan was recorded. He exhibited his signature on the fard-beyan as Exhibit-1/1. Later on, the police recovered his motorcycle and handed over to him by the order of the court. He denied to identify the accused persons in court. He further stated that he had attended the TIP held in jail and had identified the accused persons in presence of the Magistrate. In cross-examination, he stated that the accused persons who were present in court had not committed the occurrence of loot. The accused persons were shown to him at the police station and he was told that they had committed the crime in his house and he has to identify them in the parade and therefore, he had identified both the accused persons on 11.08.2017 in the Divisional Jail, Simdega, whereas in fact the accused persons present in court had not committed the occurrence of loot. 16. the Investigating Officer of PW-8 is the case. In his examination-in-chief, he stated that on 15.07.2017, he was posted in Simdega Mufassil police station as officer-in-charge. On receiving information that the house of the Informant has been looted, he went to his house and recorded his fard-beyan. He identified his writing and signature on fard-beyan which also bears signature of the Informant and Raj Kumar Gupta. He exhibited the entire document as Exhibit- 1/2. On the basis of fard-beyan, he registered the case as Mufassil P.S. Case No. 09/17 and himself took up investigation. He exhibited the formal FIR as Exhibit-2. He recorded the re-statement of informant and the statements of witnesses namely, Santoshi Devi, Nelson Dang, 6 Raj Kumar Gupta, Somara Ram, Santosh Gwala, Pitamber Paik who supported the prosecution case. Place of occurrence is situated at a distance of 42 Km. from Mufassil P.S. in western side which is the house of Informant-victim situated in Village-Banabira, Dumardih. The motorcycle was kept near back door of the entry point of the house from where it was looted. Victim disclosed him that from the southern side room, unknown accused miscreants looted jewellery, cash and mobile phone. He mentioned the boundaries that cultivating land of Ravi Prasad is situated on the north side and thereafter transformer, house of Rupesh Prasad situated in southern side, pond of Randhir Prasad is situated on eastern side, soil road is situated besides the house of informant going towards Dumardih to Tangertoli in western side. He seized empty box of looted mobile phone, for which production-cum-seizure list was prepared. He exhibited his writing and signature as Exhibit-3. On the basis of mobile box, he requested the technical cell of Superintendent of police to provide CDR. He received CDR vide Memo No. 143 dated 25.07.2017 from technical cell which bears signature of Superintendent of police Sri Rajiv Kumar Singh and it also bears signature of System administration Ravi Shanker Singh under Section 65(B) of Indian Evidence Act which is marked as Exhibit-4. From perusal of CDR, he got knowledge that looted mobile bearing IMEI No. 358964085576520 was used with Airtel SIM No. 7761052929 of Raju Yadav who had talked for nine seconds on 15.07.2015 with Mobile No.8292129041 of Jitendra Yadav. The SIM No. 7761052929 was used by Raju Yadav in looted mobile and he again talked with Jitendra Yadav for 49 seconds on 26.07.17. He reached Saldega Chowk and enquired Raju Yadav who accepted his guilt . He searched looted mobile IMEI number and SIM was seized from the pocket of Raju Yadav in presence of two independent witnesses and prepared a seizure list which bears his writing and signature and also bears signature of Raju Yadav. He exhibited the seizure list as Exhibit-5. He recorded confessional statement of Raju Yadav in five sheets which bears his writing and signature and also bears signature of Raju Yadav. He exhibited the 7 confessional statement of Raju Yadav as Exhibit-6. On the disclosure of Raju Yadav, he went to the rented house of Raju Yadav situated at Saldega Pahantoli and recovered the Motorcycle No. JH-20C-8177 from his house and prepared another seizure list which bears signatures of Raju Yadav and witnesses namely, Satyanarayan Ram and Sanjit Kumar. He exhibited the seizure list as Exhibit-7. Raju Yadav in his confessional statement disclosed the names of Vikash Baraik and Anish Soreng and thereafter, he arrested both of them from their respective houses. They also confessed their guilt in their confessional statements which bears his writing and signature and also bears signature of both accused. He exhibited their confessional statements as Exhibits-6/1 and 6/2. He prepared memo of arrest of all three accused persons. He exhibited the memo of arrest as Exhibits-8, 8/1 and 8/2. He recorded criminal antecedent of Raju Yadav, conducted TIP of arrested accused by S.D.J.M., Simdega, received TIP chart and after receiving supervision from superior officials submitted charge-sheet his writing and signature. He exhibited Charge-sheet as Exhibit-9. He identified Raju Yadav, Vikash Baraik before the court. In cross examination, he admitted that he cannot say the contents of the certificate of CDR. He had not recorded the statement of Ravi Kumar Singh as witness who had issued the certificate of CDR. He had not obtained CAF application form. He has no knowledge as to how CDR is obtained. He had not recorded the statement of Nodal officer, Airtel. He had not submitted the finger prints of the accused persons on the seized articles to the expert. The accused has remained in his custody for 10 to 12 hours and on next day, they were produced in the court during the day time and that he had produced the accused persons in court without covering their faces. He has denied the suggestion that the informant was shown the accused in the police station. 17. PW-9 in his examination-in-chief stated that on 11.08.2017, he was posted as S.D.J.M., Simdega and pursuant to the order passed by the learned C.J.M., Simdega in G.R. Case No. 303/2017, he had conducted TIP of the suspects namely, Bikash Baraik, Anish Soreng 8 and Raju Yadav in Mandal Kara, Simdega and he had prepared the report which bears his writing and signature. He exhibited the TIP Chart as Exhibit-10. In TIP, the witness Rajendra Kachhap (informant) disclosed that Bikash Baraik had pointed pistol at him, Raju Yadav had told his wife to disclose the place where the money was kept and went inside and Anish Soreng was standing outside his house keeping watch. He had conducted the TIP in presence of Lalan Kumar Bharti, In-charge, Jailor. He exhibited the signature of Lalan Kumar Bharti, In-charge, Jailor in TIP as Exhibit-10/1. In cross- examination, he stated that Investigating Officer had produced the witness (informant) before him and the witness was explained the purpose of conducting the TIP. He stated that so long as the accused were not standing for identification as per law, the witness remained outside the jail. 18. On 16.02.2018, the statements of the petitioner under Section 313 of Cr.P.C. were recorded wherein the petitioner denied the incriminating evidences. The gist of entire prosecution story as narrated by the witnesses were put to the petitioner and the petitioner denied the allegations and claimed to be innocent. 19. The learned trial court considered the evidences and materials available on record and recorded its findings at Para-13 which reveals that the incident was proved, accused Raju Yadav used the looted mobile and upon arrest he confessed his guilt , narrated the entire incident and role of the two other accused including the petitioner and upon confessional statement of Raju Yadav looted motor cycle was recovered from his house and the two other accused including the petitioners were also arrested and their confessional statements were also recorded. The learned trial court recorded that the Prosecution witnesses supported very much the case of prosecution. 20. With regards to role of the petitioner and his identification in TIP which is the bone of contention in the present case, the discussions are in paragraphs 14, 15 and 16 which read as under: "14. It is raised by the learned defence counsel that none of the witnesses have identified Raju Yadav while they were adducing 9 evidence in the dock. They very much categorically stated that Raju Yadav and Vikash Baraik are not the persons who looted them. Since the victim of this case have not identified accused persons before the court accused persons are entitled to be acquitted. 15. In this regard if I gone through the case record, I do find that this case is registered on the fard-beyan of Rajendra Kachhap which is marked Ext.-½ signature of Rajendra Kachhap and Raj Kumar Gupta is marked Ext. 1/1 & 1. The case was registered against unknown accused persons. During course of investigation 10 seized empty box of looted mobile upon which IMEI No. 35896408-557652-3, IMEI No. 35896508-557652-0 written which is Ext.3. IO taken CDR and CAF which is Ext.4 of mobile no. 7761052929 which was issued in the name of Raju Yadav and from here the case was unfolded. Police caught Raju Yadav who confessed his guilt, in his confessional statement, he disclosed that Vikash Baraik, Anish Soreng along with he went to the house of Rajendra Kachhap and looted motorcycle, Jewelery, cash of Rs. 9,000/- and mobile phone in which looted motorcycle was recovered from the house of Raju Yadav which is Ext. 7, P.W.8 SI Nawal Kumar Singh who is IO of this case who arrested Raju Yadav has identified him. It is also pertinent to mention here that Rajendra Kachhap who is P.W.6 in this case identified Raju Yadav and Vikash Baraik during the course of TIP. TIP chart is marked Ext. 10. In TIP Rajendra Kachhap identified Vikash Baraik as person holding pistol and Raju Yadav demanded money from his wife, Anish Soreng was identified as person watching the thing outside the house of Rajendra Kachhap. P.W.6 very much identified accused persons during TIP in presence of SDJM, Simdega inside the jail who is examined as P.W.9. P.W.9 Arun Kumar Dubey S.D.J.M., Simdega stated that in his testimony he conducted TIP as per law. In his presence none of the witnesses or accused persons claimed that police had shown accused persons to Rajendra Kachhap in police station probably due to fear PW.6 Rajendra Kachhap and P.W.5 Santoshi Devi who is wife of Rajendra Kachhap and are the victim have denied to identified accused persons before the court. Moreover, Raju Yadav was caught with looted motorcycle and the person who recovered motorcycle bearing Reg. JH-20C-8177 from Raju Yadav very much identified him. Therefore, objection raised by the learned defence counsel itself fails. It is also raised by learned defence counsel that prosecution has not produced certificate of service provider mentioned U/s 65(B) of I.E. Act which is very much essential to get admissible CDR in this case. In this regard if I gone through Ext.4 which is CDR which bears signature of Superintendent of police, Simdega which is marked 10 Ext.4 which is in 23 sheets. It is produced before the court vide memo No. 143 technical cell dated 25.07.17 of Superintendent of police, Simdega. The CDR and CAF is with certificate U/s 65(B) of I.E. Act by the System administrator technical cell, Simdega which is very much as per the law. It is true that the certificate of service provider should have been produced by the prosecution, but only on that basis entire case of prosecution shall not been thrown away. Since on the basis of CDR the looted motorcycle was recovered from the possession of Raju Yadav. Mobile CDR is produced before the court by the Superintendent of Police, Simdega which is high rank police officer there is nothing before this court to disbelieve the CDR and CAF. Moreover U/s 114 of I.E. Act burden of proof shift upon defence, section 114(a) speaks that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. But in this case defence fails to explain that how the motorcycle bearing Reg. No. JH-20C-8177 was seized from his possession. Therefore, I do find that there is no merit in the objection raised by defence. Accordingly, I am not in favour to give benefit to accused as looted motorcycle is seized from his possession. 16. Considering the above facts & circumstances and on above made discussion, I do find that in this case prosecution witnesses are very much able to substantiate the case against Raju Yadav and Vikash Baraik that in the night of 14.07.17. they along with Ram and Anish Soreng looted Rajendra Kachhap and his wife Santoshi Devi in their house situated at Banabira Dumardih under Mufassil P.S. and looted motorcycle, mobile phone, jewelery or cash of Rs. 9,000/-, in which looted motorcycle bearing Reg. JH-20C-8177 was recovered from the possession of Raju Yadav in furtherance of common intention. Therefore, accused persons are found and held guilty for offence punishable U/s 392,411/34 of IPC. Accused persons are in jail put up the record for hearing on the point of sentence on 15.03.2018.” 21. This Court further finds that the learned appellate court also considered the evidences on record and summarized its findings at Para-9 which reads as under: “9. This case was instituted U/s 392,411/34 I.P.C against three miscreants who committed robbery in the house of informant at gun point. They looted ornaments, cash and took the Motorcycle of the informant. The Informant claimed to identify the person committed robbery in his house. During course of investigation three persons were arrested and a T.I.P was conducted by the SDJM, Simdega. It also transpires that the looted Motorcycle Hero 11 Splendor was recovered from the house of Raju Yadav and subsequently charge sheet were submitted against three accused persons, one was declared a juvenile. the manner of is elaborative regarding During the course of trial 9 witnesses were examined. P.W 5 wife of the informant and the informant have supported the entire factum of the incident that on the alleged date three persons were entered in their house threatened them at gun point looted Rs. 9000/ ornaments, mobile and took the Motorcycle of the informant. On perusal I find that testimony of other prosecution witnesses regarding factum of the incident taken place in the house of informant receives support. The testimony of P.W 8 the I.O of this case investigation, conducting of T.I.P by the Magistrate and subsequently recovery of looted Motorcycle and mobile phone. On the basis of CDR procured by the police looted Samsung mobile was recovered from the possession of the accused Raju Yadav and later on his looted Motorcycle was also confession and disclosure recovered. The recovery of both the looted articles has been proved and there is no doubt about the fact they were recovered from the possession of the accused. I also find that after arrest of the accused persons a T.I.P was conducted on 11.08.17 which is marked as Exhibit 10. The Magistrate conducting the T.I.P was examined as P.W 9 who in his testimony has categorically stated that after following all the procedure established as per law the T.I.P was conducted and in his presence the informant Rajendra that accused Vikash Baraik had Kachhap had disclosed threatened him at gun point and Raju Yadav and another person looted cash, ornaments and took the Motorcycle. It shows that the T.I.P was conducted inside the Jail Premises and there is no evidence on record to show that it was done in presence of police. Subsequently during course of trial, the informant for reasons best known to him choose not to identify the accused persons in the court. the It is well settled that once a witness has identified the accused at the T.I.P conducted before the Magistrate then the Magistrate becomes a witness of the T.I.P held inside the Jail premises. During his testimony he has to categorically state that the T.I.P was conducted after following due procedure of law and all the precautions were taken by him so that witness can pick the accused at the T.I.P without the help of police. In this case it is apparently clear that police was not present at the time of conducting the T.I.P nor any objection was raised by the accused persons. No material has been brought on record to prove that the rules and procedure of T.I.P were not followed. If a witness clearly and correctly identifies an accused at the T.I.P and not before the court, then the evidence of the Magistrate conducting T.I.P and his statement that the witnesses identified the accused 12 becomes important. From the perusal of Exhibit 10, the T.I.P. Chart, I find that the informant had disclosed in presence of the Magistrate that Vikash Baraik pointed gun at him and directed him to sit down and the other accused looted cash and ornaments whereas the third person was giving guard at the front door. The identification of the accused is clear that these three persons had entered the house of informant threatened, assaulted him at gun point and looted cash, mobile and Motorcycle. The informant has assigned the role played by these miscreants on the date of occurrence. It is also important to see whether the trial court has recorded the reasons of the informant regarding his non identification of the accused in the open court. The statement of the Magistrate coupled with the recording of the trial court in its judgment that the witnesses was frightened and due to such fear was unable to identify the accused is sufficient to substantiate the factum of the involvement of the accused. In this case I find that learned trial court has recorded this fact and has held that the informant out of fear has not identified the accused in the court. Apart from this the evidence brought on record i.e. the recovery of the looted articles on the disclosure statement of the accused persons. It is well settled that when more than one person is tried jointly for the same offence then in such cases the confession of one of the accused if found admissible as evidence must be taken as a confession against all other accused persons who are jointly tried. Section 30 of the Evidence Act empowers the court to take into consideration a confession made by an accused against the others when jointly tried. In this case the accused Raju Yadav made the confessional statement disclosing all details regarding looting the informant along with two others. They loot cash, Mobile + Motorcycle. The confessional statement of Raju Yadav led to recovery of looted articles. The fact of his involvement along with Vikash Baraik and another is proved. His confession and stated facts are re-affirmed by the statement of another co-accused. Theory of re-affirmation is applicable and after recovery burden of proof shifts upon the accused. The involvement and participation of accused persons in the alleged occurrence is proved. Hence after analysis of the entire evidence I do not find any material irregularity or illegality in the impugned judgment. Both the appeals bearing No. 31/18 & 20/18 are devoid any merit, hence dismissed.” 22. After going through the impugned judgments and the materials on record, this Court finds that PW-1, PW-3 and PW-7 are hearsay witnesses and PW-2 and PW-4 have been declared hostile by the prosecution. PW-6 is the Informant-victim of the case and PW-5 is the 13 wife of the Informant who is also the victim. PW-8 is the Investigating Officer of the case. In course of investigation, the Investigating Officer arrested the co-accused namely, Raju Yadav and on the basis of the disclosure made by Raju Yadav, Motorcycle No. JH-20C-8177 of the Informant was recovered from the rented house of Raju Yadav and the seizure list (Exhibit-7) was prepared which bears the signature of Raju Yadav. On the basis of the confessional statement of Raju Yadav, the petitioner and the juvenile Anish Soreng were arrested from their respective houses. 23. P.W-5 had stated in her examination-in-chief itself that she will not be able to identify the accused. However, during cross- examination, she stated that the petitioner and the co-accused were not the miscreants. P.W-5 never participated in the TIP of the accused persons. P.W-5 was not declared hostile by the prosecution on any point much less on the point of identification of the petitioner. Hence, it was open to the petitioner to rely upon the evidence of P.W-5. 24. From perusal of the evidence of PW-6 (informant), this Court finds that he has admitted that he had identified the accused persons including the petitioner during TIP, but during cross-examination, he deposed that the accused persons were shown to him at the police station and he was told to identify them and therefore, he had identified the accused persons in the TIP held on 11.08.2017 in the Divisional Jail, Simdega. The evidence of the I.O. reveals that the accused were arrested on 26.07.2017 and were sent to judicial custody on 27.07.2017. Even P.W-6 was not declared hostile by the prosecution on any point much less on the point of identification of the petitioner and no further question was put to P.W-6 by the prosecution. Hence, it was open to the petitioner to rely upon the evidence of P.W-6 also. 25. This Court further finds that on 11.08.2017, PW-9, S.D.J.M., Simdega conducted the test identification of the of the suspects namely, Vikash Baraik, Anish Soreng and Raju Yadav in which the Informant-victim identified the petitioner as the person who had pointed pistol at him and identified Raju Yadav as the person who had 14 told his wife to disclose the place where the money was kept and had gone inside the house. This witness has categorically stated in cross- examination that the witness (informant-P.W.-6) was made to stand outside the jail till the accused were made to stand as per the procedure and that the TIP was conducted as per law. 26. This Court finds that the evidence of P.W-9 clearly shows that there was no occasion for the witness (P.W-6) to see the accused including the petitioner prior to conduct of TIP and that no police was present during TIP and all precautions were taken to conduct the TIP as per law. However, the evidence of P.W-9 does not show that the witness (P.W-6) had not seen the accused including the petitioner while they were in the police station. There is noting in the evidence of P.W-9 to disbelieve the evidence of P.W-6 who although admitted that he had identified the accused including the petitioner in TIP, but during cross examination categorically stated that the police had shown the accused to him at the police station. The P.W-8 (I.O) in his cross-examination has admitted that he had kept the accused in his custody for 10 to 12 hours and the accused were produced in the court during the day time without covering their faces. However, he denied the suggestion that the informant was shown the accused while they were detained in the police station. This Court is of the considered view that the P.W-5 and P.W-6 having not been declared hostile, it was open to the defence to rely on their evidences. Further, there is no explanation from the side of the prosecution as to why no request was made to the learned trial court to declare P.W-5 and 6 hostile who were not only the eye witnesses, but also the victims of the crime. Having not declared these two witnesses hostile, it was not open to the learned trial court to assume and presume that these two witnesses did not support the prosecution case on the point of identification as they were under fear and thereby discarded their statements made during cross examination without declaring them hostile. The evidence of the Sub-Divisional Judicial Magistrate, Simdega (P.W-9) was not sufficient to disbelieve the evidence of P.W-6 that he could identify the accused as the police had shown him the accused earlier in the 15 police station while the accused were in police custody. This Court is of the considered view that the impugned judgement of the learned trial court suffers from perversity as the trial court has discarded the evidence of P.W- 5 and 6 with respect to the point of identification of the accused on the ground that they were under fear during deposing in the court, although these witnesses were never declared hostile on the point of identification and consequently, their entire evidence remained intact and it was open to the petitioner to rely upon the evidence of P.W- 5 and 6. This Court is of the considered view that if the evidence of the P.W- 5 and 6 were to be given due weightage on the point of identification of accused, the petitioner was certainly entitled to benefit of doubt. This having not been done, the petitioner has certainly suffered miscarriage of justice on account of non- consideration of the evidence of P.W- 5 and 6 on the point of identification and thus making the judgement of trial court perverse. This aspect of the matter has not been considered by the learned appellate court while upholding the judgement of the trial court. 27. The identification of the petitioner assumes much importance as because there was no other admissible evidence to link the petitioner with the offence. Although the petitioner had confessed before police, but there was no recovery of any incriminating material from the possession of the petitioner or at the instance of the petitioner. The only other material which was available was the confessional statement of the co-accused, Raju Yadav leading to recovery from his possession in the light of Section 30 of the Evidence Act, as both the petitioner and Raju Yadav were tried together. The learned appellate court after having confirmed the reasoning of the learned trial court on the point of identification relied upon the confessional statement of the co-accused, Raju Yadav by referring to section 30 of the Evidence Act to sustain the conviction of the petitioner. 28. Section 30 of the Evidence Act is quoted as under:- "30. Consideration of proved confession affecting person making it and others jointly under trial for same offence. - 16 When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. [Explanation. - "Offence" as used in this section, includes the abetment of, or attempt to commit, the offence.] 29. The Hon’ble Supreme Court in the case of Kashmira Singh v. State of M.P. (1952) 1 SCC 275, had observed as under: “7. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused [sic co-accused [As clarified by a later Bench in (2004) 7 SCC 779 in paras 21 to 24 at p. 790]] person can be used against a co-accused [sic accused [ As clarified by a later Bench in (2004) 7 SCC 779 in paras 21 to 24 at p. 790]] It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. R. (1948-49) 76 IA 147: 1949 SCC OnLine PC 12: “… It does not indeed come within the definition of ‘evidence’ contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.” 8. Their Lordships also point out that it is: (Bhuboni Sahu case) “… obviously evidence of a very weak type. … It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.” They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in “support of other evidence”. 11. Translating these observations into concrete terms they come to this. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.” 30. The Hon’ble Supreme Court in the case of Haricharan Kurmi vs. State of Bihar, AIR 1964 SC 1184 has considered numerous judgements with respect to Section 30 of the Evidence Act dealing 17 with the extent to which a confession of an accused can be used to convict a co-accused being tried together. The points laid down are as under: - a) a confession cannot be treated as evidence which is substantive evidence against a co-accused person. b) While dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right and a confession can only be used to “lend assurance to other evidence against a co-accused”. c) Section 30 of the Evidence Act goes not further than this: “where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence”. d) A confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. e) Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence. 18 f) It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. g) The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. h) The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh [(1952) 1 SCC 275 : (1952) SCR 526] where the decision of the Privy Council in Bhuboni Sahu case [(1949) 76 IA 147 at p. 155] has been cited with approval. 31. In the said judgement of Haricharan Kurmi (supra), the confession of the co-accused was considered in the following manner while giving benefit of doubt to the appellant: - "16. It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused 19 person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.” 32. In the judgement passed by the Hon'ble Supreme Court in the case of Subramanya -vs- State of Kerala 2022 LiveLaw (SC) 887: 2022 SCC OnLine SC 1400, the Hon'ble Supreme Court while dealing with Section 30 of the Evidence Act reiterated the law laid down in the case of Haricharan Kurmi (supra), but observed that confession recorded under Section 15 of TADA is a substantive piece of evidence and accordingly held in the facts of that case that section 30 of the Evidence Act need not be invoked. 33. Applying the aforesaid ratio laid down by the Hon'ble Supreme Court in the case of Haricharan Kurmi (supra), this Court is of the considered view that the confessional statement of the co-accused Raju Yadav leading to recovery who was facing trial with the petitioner is not a substantive piece of evidence as against the petitioner, but it could have been at best permissible to be used in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the other evidence. Meaning thereby, the conviction of the petitioner cannot be sustained solely on the basis of confessional statement of the co-accused. 34. This Court having held that the petitioner was entitled to benefit of doubt on the point of his identification in TIP with regards to his participation in the commission of crime, there being no other admissible evidence to link the petitioner to the commission of crime, the conviction of the petitioner cannot be sustained by resorting to Section 30 of the Evidence Act. 20 35. Considering the entire facts and circumstances of the case, this Court finds that the prosecution has failed to prove the case against the petitioner beyond reasonable doubts. This Court holds that the learned trial court as well as learned appellate court has committed serious error in law in discarding the evidence of the P.W.-5 and P.W.6 on the point of identification by observing that the witnesses were probably under fear, without declaring the said two witnesses hostile on the point of identification of the petitioner. Further, in absence of any other evidence, the conviction of the petitioner cannot be sustained by referring to section 30 of the Evidence Act. 36. As a cumulative effect of the aforesaid findings, this Court is of the considered view that the judgements of the trial court as well as that of the appellate court are perverse and having caused miscarriage of justice calls for interference in revisional jurisdiction of this court. 37. Accordingly, the judgment of conviction and the order of sentence passed by the learned trial court convicting the petitioner under Sections 392, 411/34 of IPC and the confirming judgment passed by the learned appellate court against the petitioner are set- aside and the petitioner- Vikash Baraik is acquitted from the charges under Sections 392 and 411 of IPC. 38. The bailors of the petitioner are discharged from the liability of their bail bonds. 39. Accordingly, this criminal revision is allowed. 40. Let a copy of this judgment be communicated to the learned trial court through ‘e-mail/FAX’. MUKUL (Anubha Rawat Choudhary, J.) 21