State of J. and K. vs Abdul Rehman and Another

Arun Kumar Goel, J.—This appeal is directed against the judgment passed by Sessions Judge, Bhaderwah dated 23-5-80. By means of

impugned judgment, respondents who were tried and found guilty and then having been convicted for offences under Sections 380/411 of the RPC

and were sentenced u/s 380 to one year rigorous imprisonment and also to pay fine of Rs. 200/-each, in default of payment whereof, they were

required to undergo further rigorous imprisonment for three months each. In appeal both the respondents have been acquitted by the appellate

Court below.

Brief facts giving rise to this case arc that a complaint was lodged by Mahant Baba Sal Narayan PW 1 on the allegations that a theft had taken

place from a locked room of the Dhram Shala while Mahant Baba Sat Narayan had gone to Tirath Yatra (pilgrimage). This complaint was made at

Police Station, Bhaderwah on 10-4-71 on the basis of which came to be registered and...investigation of the case commenced Further case of the

prosecution was that during the intervening night of 22nd and 23rd of March, 1971, theft was committed by the accused and stolen property

consisting utensils, blankets, a golden Chatir weighing 1/4 tola, silver Chatir weighing 6 tolas besides some pulses etc. Further case of the

prosecution is that the stolen property was of the value of Rs. 453/-. During the course of investigation, Abdul Rehman stated to have made a

disclosure statement on 29-4-72 which lead to recovery of the stolen property partly from his house and partly from the house of respondent 2,

Juma. Disclosure made by Abdul Rehman was recorded vide EXPM which lead to subsequent recoveries of the stolen property. In the face of the

statement of complainant and other witnesses namely; Baba Satharayan, Prema and Sohan Lal, the trial Court was satisfied that the prosecution

has been able to bring home the guilt against the respondents and therefore it convicted them, which conviction was set aside by the appellate

Court below.

In support of this appeal, learned Government Advocate forcefully urged that the appellate Court below had fallen into error while allowing the

appeal and acquitting the respondents. It was further submitted by Mr. Singh that EXPM was a disclosure statement and can in no case be termed

as confession having been made to Police Officer by respondent 1 while in custody. On the strength of this document, as per learned Government

Advocate for the appellant, recovery effected is legal and valid and thus he prayed for upholding the judgment of trial Court by allowing the appeal.

Prima facie the argument based on EXPM appears to be quite attractive and alluring. But when it is examined in the light of the evidence as well

as the provisions of Evidence Act 1977 (1920 AD), it has been raised simply to be rejected. A perusal of EXPM to which reference has been

made by the Appellate Court below clearly shows that it is by and large in the nature of confession of an accused and in no terms it can be said to

be a disclosure within the meaning of Section 27 of the Evidence Act (supra), which ultimately led to recovery of the stolen property. This is one

aspect of the case.

Now testing the EXPM, taking it to be a disclosure statement, still there is nothing to suggest that the place where the stolen articles were firstly

found was in the exclusive knowledge of Abdul Rehman respondent 1, in addition to this being in his exclusive possession so as to accept the

recovery made even if it is held to be that EXPM is a disclosure statement under law. There is positive evidence of PWs that there were other

persons residing in the house of Abdul Rehman, from where the stolen property was recovered and as such on this count also, the recovery falls to

the ground.

Another reason for not accepting the EXPM is that to whom it was made there is no evidence. Scribe of this document has admittedly not been

examined by the prosecution during the course of trial. This further effects the so called recovery and therefore, also this document needs to be

discarded. Regarding exclusive possession, evidence of PWs Baba Sat Narayan and Sohan Lal is material and they have not said a word in that

behalf. So far recovery of articles from the house of respondent-Juma is concerned, it was admittedly searched in his absence. Seizure memo

EXPC was prepared in the presence of PWs. Aziz, Abdul Gani and Baba Sant Narayan, Abdul Aziz has specifically stated that he had seen the

articles outside the house of Juma-respondent before the police and his signatures were obtained there. This completely belies the seizure memo

EXPC as also the recovery of so called recovery of the articles mentioned therein.

Another reason to discard the prosecution case is that the articles recovered are in fact of common use which are ordinarily found in household.

There is no specific identification of such articles which should have been got done by the police in accordance with law from the complainant so as

to establish their identity during the course of trial. No such attempt appears to have been made by the prosecution. Regarding Juma being not

there at the time of search of his premises statement of police official about the search in his cross-examination during the course of trial gives the

final blow to the prosecution case.

Presumption of innocence of an accused, respondent in the present case is there in law and it is for the prosecution to prove the offences for

which they were charged beyond reasonable doubt. In view of the brief discussion made hereinabove, it is clear what the prosecution has failed to

cover the distance between 'may have been' and must have been.' In addition to this, presumption of innocence of an accused as re-enforced ""with

his acquittal, unless of course it could be shown that the judgment of acquittal is perverse and is based on no evidence, it is not to be interfered with

lightly while examining appeal against acquittal and finally by now it is well settled that when on examination of the entire case, two views are

possible, one favourable to the accused needs to be followed. Above all, view taken by the appellate Court below, prima facie appears to be

balanced and reasonably based on proper appreciation of evidence and correct application of law, therefore, it calls for no interference in this

appeal.

No other point has been urged.

As a result of the aforesaid discussion, there is no merit in this appeal, which is accordingly dsmissed, Bail bond if any, furnished by the

respondent is ordered to be discharged.