Confessions made without arrest lack evidentiary value; possession of stolen property and direct evidence suffice for conviction despite claimed silence during questioning.

ORDER :

SUBHENDU SAMANTA, J.

1. The present Criminal Revision Case is directed against the judgment dated 03.10.2011 in Crl.A. No. 55 of 2011 on the file of the learned VI Additional Sessions Judge (FTC), East Godavari District, Rajahmundry, whereby the learned Sessions Judge dismissed the appeal preferred by the petitioner by modifying the conviction and sentence imposed on him from three (3) years of rigorous imprisonment to one year of rigorous imprisonment. The said criminal appeal arose out of the judgment dated 27.01.2011 passed by the learned Additional Judicial First Class Magistrate, Ramachandrapuram, in C.C. No. 307 of 2010, whereby the petitioner (A1), along with the other accused (A2 and A3), was convicted for the offence punishable under Section 411 of the Indian Penal Code, 1860 (“ IPC ” hereinafter).

2. The brief facts of the case are that, based on multiple complaints relating to the theft of motorcycles, police registered the complaints and conducted an investigation. During the course of the investigation, as many as 26 motorcycles were recovered from the possession of the petitioner (A1) and the other accused (A2 and A3). Out of the said 26 motorcycles, three motorcycles are the subject case property of the present Calendar Case in C.C. No. 307 of 2010 on the file of the Court of the Additional Judicial First Class Magistrate, Ramachandrapuram. After completion of the trial, the learned Trial Court found the petitioner (A1) and the other accused (A2 and A3) guilty of the offence punishable under Section 411 IPC and sentenced them to undergo rigorous imprisonment for a period of three years. Aggrieved thereby, the petitioner (A1) preferred Crl.A. No. 55 of 2011 before the learned VI Additional Sessions Judge (FTC), East Godavari District, Rajahmundry. The learned Appellate Court, while modifying the conviction and sentence from three years to one year of rigorous imprisonment, dismissed the appeal. Hence, the present Criminal Revision Case has been filed.

3. The learned counsel for the petitioner raised two pertinent legal questions before this Court to challenge the order of conviction and sentence passed by the learned Trial Court.

4. Firstly, it is the contention of the learned counsel for the petitioner that the entire prosecution case is based on the confession of the petitioner (A1). It has been stated in the prosecution case that on the basis of confessional statement of A1, the motorcycles were recovered and the other co-accused were arrested. The learned counsel further submits that at the time of recording confession, A1 was not arrested, thus, he could not be treated as a person in custody and as such, his confessional statement has no evidentiary value according to the provision of Section 27 of the Indian Evidence Act, 1872 [“the Evidence Act” hereinafter]. In support of the contention, the learned counsel places reliance on the judgment of the Hon’ble Supreme Court in Rajesh & Anr. v. The State of Madhya Pradesh, 2023 INSC 839 (Criminal Appeal Nos.793-794 of 2022).

5. Secondly, the learned counsel for the petitioner submits that, at the time of examination of the accused under Section 313 of the Code of Criminal Procedure, 1973 [“CrPC” hereinafter], it was alleged that the accused persons did not provide proper explanation for his custody of the stolen motorcycles. It is argued that the accused persons shall have the liberty to maintain silence during the course of examination under of CrPC and such silence cannot be treated as an