Important Point
Confession made before the police officer which led to recovery of by another police officer is inadmissible in evidence and first statement alone is admissible.

JUDGMENT

Ch. S.R.K. Prasad, J.— The accused has preferred this appeal against the judgment of conviction and sentence of rigorous imprisonment for a period

of one year and imposition of fine of Rs. 5,000/- for the offence under Section 353, IPC, passed by the III Additional Metro-politan Sessions Judge-cum-Special Judge for trial of cases under the Essential Commodities Act in S.C. No. 516 of 1995.

2. The factual matrix that arises for consideration can be briefly stated as follows:

On the strength of the wireless message received on 10.8.1994 at about 2.15 a.m., the in­charge Assistant Sub-Inspector of Police, Chandrayangutta P.S. took the assistance of one Head Con-stable and three other police constables and rushed to the scene of offence at Barkas, and found that the accused and his associate by name Hasnu were attacking the victim by name Sirajul Hassan. In spite of warning to surrender, the accused did not surrender and attempted to attack the Assistant Sub-Inspector of Police and others. Therefore, the Assistant Sub-Inspector of Police fired two rounds aiming below the knees of the accused and then the accused had escaped from the scene of offence. On 5.9.1994 the accused was apprehended and on the strength of the confession made by him, MO 1 was recovered. There-upon, the accused was charge-sheeted for the offence under Sections 307 read with Section 34 and Section 353 read with Section 34, IPC. Accused pleaded not guilty for the charges. The prosecution in all examined seven witnesses. PW 1 is the Assistant Sub-Inspector of Police. PW 2 is the Head Constable. PWs 3 and 4 are the Panch witnesses, who have turned hostile. PW 5 is the Sub-Inspector of Police attached to Special Party of Chatrinaka Division. PW 6 is the Inspector of Police, P.S. Chandrayangutta and PW 7 is also Inspector of Police, PW 6 speaks about taking up investigation on 10.8.1994, visiting the scene of offence, recording the confession statement of the accused and handing over the case to his successor PW 7. PW 7 speaks about taking charge of this case from PW 6 and seizing of knife at his instance from open place in front of Barkas in the presence of Panchas. After trial, the III Additional Metropolitan Sessions Judge has recorded finding of guilt under Section 353, IPC and, accordingly, convicted and sentenced the accused to undergo rigorous imprisonment for one year and imposed a fine of Rs. 5,000/-, in default, rigorous imprisonment for six months. Aggrieved thereby, the accused has preferred this appeal.

3. The point that arises for consideration is “whether the prosecution has proved the guilt of the accused beyond all reasonable doubts for the offence punishable under Section 353, IPC”?

4. The learned Counsel appearing for the appellant contends that non-examination of Sirajul Hassan is fatal to the version of the prosecution. It is further contended that recovery was not made by the officer who recorded the confession statement and it was recovered by another police officer, who took charge of this case. Moreover, there is discrepancy in the evidence of police officials and the independent witnesses regarding recovery of the property. Therefore, it is contended that the accused is entitled to be given benefit of doubt.

5. The learned Public Prosecutor on the other hand contends that the evidence of police officials is reliable and has to be accepted. It is also contended that the lower Court has rightly come to the conclusion in finding the accused guilty of the offence punishable under Section 353, IPC.

6. Adverting to the said contentions, I am of the view that the prosecution has to prove that there was an attack on Sirajul Hassan, and the prosecution had examined Sirajul Hassan. Non­-examination of the said witness is certainly fatal to the prosecution case; since no explanation is forthcoming for failure to prove the said version. Further, no independent evidence is forthcoming corroborating the evidence of Police Officer. In th