Krishan Dass alias Kisan Dass and etc. vs State of H.P.

R.L. Khurana, J.—The abovenoted two revision petitions arising out of the judgment dated 1-12-2000 of the learned Sessions Judge, Solan, passed in Cr. A. No. 3-S/10 of 2000 are being disposed of together by this judgment.

Each of the two petitioners hereinafter referred to as the accused stands convicted for the offence u/s 379 read with Section 34, Indian Penal Code, by the two Courts below and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1000/-, in default of payment of fine, each of the two accused has been sentenced to undergo simple imprisonment for a further period of one month.

Prosecution story, briefly, may be thus stated, truck bearing registration No. HPN-845 belongs to one Mohanpal Singh. P.W. 4 Mohinder Singh is the father-in-law and general attorney of the said Mohanpal Singh and is operating the truck. On 21-1-1994 the truck developed a mechanical defect. It was, therefore, parked at village Dhiana. On the following day, a window of the truck was found open. On checking the "diesel pump", the "self starter" and the "tools Kit" were found stolen from the truck. A report Ex. PW 4/A was, therefore, made to the police by PW. 4 Mohinder Singh on the basis of which a case for the offence u/s 379, Indian Penal Code, came to be registered vide FIR Ex. PW/ 7/A.'' In such report PW. 6 expressed suspicion against accused Kishan Dass, since he was a driver by profession and capable of committing such theft.

During the course of investigation the two accused were arrested. Whilst in custody the two accused are alleged to have made a disclosure statement leading to the recovery of "diesel pump" from Patiala, "self starter" from Mani Majra and the "tools Kit" from the house of accused Kishan Dass.

The two accused were accordingly sent up for trial for the offence u/s 379 read with Section 34, Indian Penal Code. They pleaded not guilty to the charge and claimed trial.

The prosecution in support of its case examined ten witnesses in all. The defence of the two accused was that of denial and false implication. No defence was led by them.

The two accused came to be convicted and sentenced by the two Courts below as aforesaid.

The two Courts below while convicting and sentencing each of the two accused have primarily relied upon the disclosure statement Ex. PW. 2/A alleged to have been made by the two accused and the recoveries of "diesel pump", "Self starter" and "tools Kit" alleged to have been made in pursuance of such disclosure statement. Admittedly, there is no eye-witness of the theft. Nor there is any other circumstance to connect the two accused with the commission of the offence.

As per the prosecution case, both the accused while in custody on 29-1-1984 is alleged to have made a joint disclosure statement Ex. P.W. 2/A before PW. 7 Head Constable Shyam Lal in the presence of PW. 2 Bhagat Ram and one Chet Ram. Though this Chet Ram has been examined as PW. 1 he is silent with regard to the making of the disclosure statement Ex. PW. 2/A by the two accused.

The question arising in the present case is as to the admissibility of a joint disclosure statement shown to have been made by the two accused and the alleged recovery in pursuance thereof.

In Rex v. Gokul Chand Dwarkadas Morarka, Criminal Appeals No. 454 and 464 of 1949 decided on 11-1-1950, a question arose before the Hon''ble Supreme Court --whether the joint statement attributed to the two accused in that case was admissible in evidence without specifying what statement was made by a particular accused which led to discovery of the relevant fact. It was held that a joint statement by more than one accused was not contemplated by Section 27, Evidence Act.

A Division Bench of the High Court of Andhra Pradesh in Kanuru Yanadi Changaiah and Others Vs. State of A.P., while dealing with a similar question has held that where several accused were charged with the offence of dacoity and no separate statements of such accused were recorded, their joint statement recorded leading to the recovery of stolen articles is inadmissible in evidence and no reliance can be placed upon any recoveries alleged to have been made in pursuance of such joint statement.

In Raghava Nadar Reghu and Others Vs. The State, a Division Bench of the High Court of Kerala also has the occasion to deal with a similar question. In the said case three accused were charged with the offence of murder. As per the prosecution case in pursuance of a joint statement made by such three accused weapons of offence were recovered. The trial Court did not rely on such joint statement and the recoveries alleged to have been effected in pursuance thereto. The High Court in appeal held that the trial Court rightly did not rely on such joint statement and the recoveries alleged to have been made in pursuance thereof.

A similar question again arose be fore the Hon''ble Supreme Court in Mohd. Abdul Hafeez Vs. State of Andhra Pradesh, In that case four accused were tried for the offence of robbery punishable u/s 392 read with Section 34. Indian Penal Code. During the course of investigation three accused made a joint statement before the investigation officer leading to the recovery of a ring, which was sold by them to a jeweller. The trial Court as well as the High Court relying upon such evidence convicted and sentenced the accused therein. In appeal before the Hon''ble Supreme Court by the principal accused who was charged with the substantive offence u/s 392, Indian Penal Code, it was held that if evidence otherwise confessional in character is admissible in evidence u/s 27, Evidence Act, it is obligatory upon the investigating officer to state and record who gave the information; when the investigating officer is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person.

It was further held that the evidence that one accused along with all other gave information leading to recovery of robbed articles and the evidence of receiver of robbed property that accused No. 1 to 3 sold him the ring and that accused No. 1 to 3 asked him to produce the ring when they came with the police party do not present any incriminating evidence against the accused.

The above ratio applies to the facts of the present case on all fours. A joint disclosure statement Ex. PW/2/A was recorded. There is nothing to suggest which particular information was given by a particular accused. Nor there is evidence to show as to which particular article was recovered in pursuance of the information given by which accused. Therefore, the two Courts below have erred in placing reliance on the joint disclosure statement Ex. PW. 2/A and the alleged recoveries made in pursuance thereto.

As stated above, save and except the I alleged disclosure statement Ex. PW. 2/A and the alleged recoveries made in pursuance thereof, there is no other evidence to connect the accused with the crime.

As a result, both the revision petitions are allowed. The conviction and sentence imposed upon each of the two accused by the two Courts below are set aside and they are acquitted of the offence.

Each of the two accused is on bail. Their bail bonds shall stand cancelled and discharged. The amounts of fine, if already realised, shall be paid/refunded to each of the two accused. Case property shall be dealt with in accordance with the directions of the learned trial Court.