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HIMACHAL PRADESH HIGH COURT
Tarlok Singh Chauhan, J.
Sanjeev Kumar and Ors. —Petitioners
versus
State of Himachal Pradesh —Respondent
Cr. Revision No.96 of 2009
Decided on 30.5.2018
For the Petitioners:Mr. Anoop Chitkara and Ms. Sheetal Vyas, Advocates
For the Respondent:Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocate Generals
with Mr. Bhupinder Thakur, Deputy Advocate General.
IMPORTANT POINT
Once a fact is discovered from the other source, there can be no fresh discovery even if relevant information is extracted from the accused and the Courts have to be watchful against the ingenuity of the Investigating Officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Evidence Act is not whittled down by the mere manipulation of the records of the case diary.
Headnote:(i) Indian Penal Code, 1860—Sections 379/34—Accused petitioners were acquitted by trial court of offence u/s 379/34 IPC and Sections 41 and 42 of Indian Forest Act—On appeal preferred by State, acquittal of offences u/ss 41 and 42 of Forest Act was maintained but accused were convicted u/s 379/34 IPC—Revision—Twelve number of “Devdar” wood slippers were found stolen from pasture of complainant and stolen property was stated to have been recovered from petitioners, recovered pursuant to the disclosure given by them before police—Magistrate lightly found that police had failed to establish recovery of sleepers beyond reasonable doubt there were contradictions and embellishments—Independent witness of recovery did not support the prosecution case—Conviction could not be sustained.
Held: The testimonies of PW-1 and PW-2 have already been discussed above. In addition thereto, it would be noticed that as per the testimony of PW-4, he was maintaining the register in which the names of the persons keeping the wood were recorded. But the Investigating Agency has failed to take the same into possession constraining this Court to draw an adverse inference against it.
As already observed above, the prosecution has failed to prove the words G.R. written by the complainant and rather it has come on record that the said words were inscribed/written later on. As rightly observed by the learned Magistrate, the police had failed to establish the recovery of sleepers beyond reasonable doubt and that nothing has come on record about transporting of the sleepers without transport permit.
Apart from the contradictions, embellishments which go to the root of the case, it would be noticed that there is no evidence that the alleged wood could have been procured from the cutting of the trees as the Investigating Officer did not bother to compare the diameter of the trunk with the sleepers so recovered.
As observed earlier, there are as many as three disclosure statement purported to be recorded under Section 27 of the Indian Evidence Act. Section 27 provides that when any fact is deposed to as discovered in consequence of 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. Therefore, there can be no gainsaying that once a fact is discovered from the other source, there can be no fresh discovery even if relevant information is extracted from the accused and the Courts have to be watchful against the ingenuity of the Investigating Officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Evidence Act is not whittled down by the mere manipulation of the records of the case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the petitioners’ guilt. (Paras 22 to 25)
(ii) Evidence Act, 1872—Section 27—More than one disclosure statement purported to be given by different accused related to recovery of stolen article—Once a fact was discovered from source, there could be no fresh discovery even if relevant information was extracted from accused. (Paras 25 and 27)
Result: Revision allowed.
JUDGMENT (ORAL)
Tarlok Singh Chauhan, J.—The petitioners were acquitted by the learned trial Magistrate for the offence punishable under Section 379 read with Section 34 of the Indian Penal Code (for short ‘IPC’) and Sections 41 and 42 of the Indian Forest Act (for short ‘Act’). On an appeal preferred by the State, the petitioners were though acquitted of offences punishable under Sections 41 and 42 of the Act, however, they came to be convicted under Section 379/34 IPC.
2. The allegations against the petitioners were that on 11.01.2005, the complainant Geeta Ram presented one application before the police regarding theft of 12 sleepers wherein it was stated that on 15.06.2004, he had placed 12 sleepers of ‘Devdar’ in his pasture (ghasni) after cutting three trees measuring 10x10x5 three in number, 10x7x7 three in number, 10x10x5 three in number, 8x10x5 two in number and 10x5x6 one in number. Thereafter, he had inscribed his name G.R. with red colour on the same. He used to check his sleepers from time to time, but on 11.01.2005 at about 10.30 a.m., he noticed that his sleepers were not there. The petitioners had been roaming around the road in a vehicle bearing registration No.HP-13-0911 and, therefore, he had suspicion that they might have stolen his sleepers which were of the value of Rs.13,000/.
3. The investigation was carried out by the police and thereafter all the petitioners were arrested and their statements under Section 27 of the Indian Evidence Act were recorded, which led to the recovery of 12 sleepers ‘Devdar’, out of which 5 sleepers were recovered from the cowshed and remaining 7 sleepers were recovered from the sawmill of Pawan Kumar. Thereafter, an FIR came to be registered against the petitioners under Section 379/34 IPC and Sections 41 and 42 of the Act.
4. The petitioners were summoned and on their appearance, they were supplied copies of the challan and other documents.
5. The learned trial Court on finding a prima facie case framed charges against the petitioners for the aforesaid offences to which they pleaded not guilty and claimed trial. The prosecution examined 12 witnesses in all and closed its evidence.
6. After closure of the prosecution evidence, petitioners were examined under Section 313 Cr.P.C. wherein they denied the entire prosecution story and stated that they did not want to lead any defence evidence.
7. The learned trial Court after recording the evidence and evaluating the same acquitted the petitioners. However, on an appeal being preferred by the State, the judgment of the learned trial Magistrate acquitting the petitioners of the offences punishable under Sections 41 and 42 of the Act was affirmed, whereas, their acquittal under Section 379/34 IPC was set aside and they were sentenced to undergo simple imprisonment for six months each and to pay a fine of Rs.5,000/- each for the offence punishable under Section 379/34 IPC. In default of payment of fine, the petitioners were further directed to undergo simple imprisonment for one month.
8. Aggrieved by the judgment of conviction and sentence, the petitioners have filed the instant revision on the ground that the findings recorded by the learned Additional Sessions Judge are perverse and, therefore, deserve to be set aside.
9. I have heard the learned counsel for the parties and have gone through the records of the case.
10. It would be noticed that the entire edifice of the prosecution is based upon the testimonies of PW-1 and PW-2. PW-1 is the complainant, whereas, PW-2 is the person before whom disclosure statements are alleged to have been made.
11. As regards the testimony of PW-1, even though he tried to justify his case by stating that he had inscribed the letters G.R. on the sleepers and had recognized the same from this inscription, but it would be noticed that the story put forth by the complainant was eventually not accepted by the learned trial Magistrate because when the case property along with inscriptions was physically
