CRLR/230/2011 of ARSHAD Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Revision No.230 of 2011

Arshad ......Revisionist (In Jail) Vs. State of Uttarakhand ......Respondent

With

Criminal Revision No.231 of 2011

Arshad ......Revisionist (In Jail)

State of Uttarakhand ......Respondent Mr. Mohd. Safdar, Advocate for the revisionist. Mr. Siddhartha Bisht, Brief Holder for the State.

Hon’ble Sharad Kumar Sharma, J.

In the aforesaid two criminal revisions in Case Crime No.42 of 2010 which finds reference in Criminal Revision No.230 of 2011, the incident as occurred when the complainant Harish is said to have gone to his parental village at Bijnor and taking advantage of his absence his house was broken and the accused/revisionist is said to have conducted their offence as narrated in FIR. Similarly the revisionist herein is also held to be an accused for commission of offence as involved in Criminal Revision No.231 of 2011, which was registered as Case Crime No.109 of 2010 wherein taking advantage of the absence of Yogesh Kumar Sharma, the complainant who had gone for Kumbh Bath on 13.04.2010 the incident has occurred wherein the lock of his house was broken and the valuable articles were stolen. As per the story of the complainant Harish and Yogesh Kumar Sharma in the FIRs as already referred above, it was to the effect that when the complainants have gone out of the home by the respective works as mentioned above, it was in the night of 9/10.02.2010 and 13.04.2010 when there was house breaking and as consequence thereto, thevaluable articles which were lying in the house were stolen and later on, on culmination of the investigation, which was initiated by the Investigating Officer in pursuance to the FIR charge sheet was submitted by the Investigating Officer in the aforesaid two Case Crime Numbers being Charge Sheet No.104 of 2010 dated 01.07.2010 and Charge Sheet No.105 of 2010 dated 01.07.2010. Ultimately on submission of the charge sheet before the Magistrate concerned by the Investigating Officer the cognizance was taken and it was registered as Criminal Case No.5378 of 2010, State vs. Navin Verma and another and Criminal Case No.5379 of 2010, State vs. Navin Verma and another. In the proceedings before the Investigating Officer and also before the court below, the case of the prosecution was that the offence as complained of against the revisionist under Sections 380 and 411 IPC, it was shown to be established because the stolen articles from the residence of the complainant, they were recovered on the pointing out of the accused person Navin Verma on 16.06.2010 and some of the articles were recovered on the pointing out of the present revisionist on 17.06.2010. On their pointing it’s the Sub Inspector Mahendra Singh and other police personnel of the team. The articles thus stolen were recovered from the possession of the present revisionist. Accordingly in the charge sheet thus submitted it was observed by the Investigating Officer that though the offence when it was registered on 10.02.2010 and 13.04.2010 at the initial stage it was registered as against unknown accused persons because at that point of time the direct involvement of the present revisionist in commission of the aforesaid offences was not apparently made out and due to this reason the prosecution was unable to name any accused person in the FIR shown to be directly involved in the commission of offence, but later on, on the basis of the warrant which was issued on the identification and the pointing out of the revisionist when the articles were recovered on 16.06.2010 and 17.06.2010 respectively since they were recovered from the possession of the present revisionist, who has further fortified the fact that the stolen articles were also lying in possession of the other co-accused persons Mr. Navin Verma. In pursuance to the registration of the said

charge sheet which was submitted before the learned trial court of Chief Judicial Magistrate, Haridwar, the Criminal Case No.5378 of 2010, State vs. Navin Verma and another and Criminal Case No.5379 of 2010, State vs. Navin Verma and others was initiated for being tried.

2. The learned trial court while parting with the judgment as observed that on the initiation of the investigation for the commission of the aforesaid offences, which is said to have been chanced on 09/10.2.2010 and 13.04.2010 respectively in relation to the aforesaid two Case Crime numbers when the stolen articles which were sought to be recovered which included the valuable ornaments and other household material, it was found by the Investigating Team which on the basis of raids conducted by the police officials and on the basis of the information received it had found that some of the stolen articles were recovered from Navin Verma and some of the articles were also recovered from the possession of the present revisionist-Arshad on 17.06.2010. The Sub Inspector Mahendra Singh on his pointing when the articles were recovered has recovered the articles which were directly found to be in the custody of the present revisionist and the other co-accused persons.3. The case of the prosecution was that on registration of the FIR and during the course of investigation, five witnesses were examined by the Investigating Officer in relation to the offence, which was registered as Case Crime No.42 of 2010 as referred in the Charge Sheet No.104 of 2010. On the other hand the Investigating Officer has named yet another five witnesses, who recorded their statements in relation to the FIR No.109 of 2010 in which yet again five witnesses were examined in the aforesaid offence, which was registered as Case Crime No.109 of 2010. The trial court thereafter on considering the site plan of the place of incident and on being satisfied that there was sufficient material with regards to the involvement of Navin Verma and the present revisionist in the commission of the offences, which was registered against them had tried the revisionist for offences under

Section 457, 380 and 411 IPC in Case Crime No.42 of 2010 and for the offences under Section 380 and 411 IPC for Case Crime No.109 of 2010.

4. On commencement of the trial and in order to support their contention regarding the aforesaid Case Crime numbers, the prosecution has placed on record the documentary evidence i.e. the Report Ex.Ka.1, Fard Baramadgi Ex.Ka.2 and Ex.Ka.3, Site Plan of the place of incident was placed on record as Ex.Ka.4 and charge sheet as Ex.Ka.7.

5. The prosecution in support of the incident of 09/10.02.2010 and in order to substantiate the involvement of the revisionist in commission of the offence has also adduced the oral evidence while recording the statement of the complainant PW1, PW2 Rakam Singh and PW3 the constable Arvind Nautiyal as well as PW4 Sub Inspector, who were involved in conducting the investigation. The police officials who appeared in the witness box to record their statement were the police officials who were also indulged in the recovery of the valuable stolen material from the custody of the present revisionist. Whereas in the connected revision being Criminal Revision No.231 of 2011, at the time of conducting the trial for the offence registered as Case Crime No.109 of 2010 for the offences under Sections 380 and 411 IPC, the prosecution has placed on record the documentary evidence i.e. Tahrir Report Ex.Ka.1, Fard Baramadgi Ex.Ka.2 and Ex.Ka.3, the Site Plan of the incident i.e. Ex.Ka.4 and Ex.Ka.6, the Charge Sheet as Ex.Ka.7 and Chik Information Report Ex.Ka.8. Besides this the prosecution has also led the oral testimony of the complainant Yogesg Kumar Sharma as PW1, Constable Arvind Nautiyal as PW2 and the Sub Inspector Mahendra Singh PW3.

6. As far as the denfence is concerned, the revisionist accused has appeared in the witness box and has recorded his statement under Section 313 of Cr.P.C. which was placed on record as Paper

No.23 Ka.1 in Criminal Case No.5378 of 2010 while denying the allegations in the statement recorded under Section 313 Cr.P.C. on 12.11.2010, the reply if at all it is taken into consideration in the light of the exhibits and in the light of the consideration of the statement recorded by the prosecution witnesses, the accused revisionist has made very cursory statement while denying the statements recorded by the prosecution witnesses for considering their evidence on record. Similarly in the Criminal Revision No.231 of 2011 yet again in the statement of the revisionist as recorded on the same day i.e. 12.11.2010 almost the same set of response/reply was recorded by the revisionist in relation to the statement of the prosecution witnesses wherein he has submitted that the statement of prosecution witnesses are false.7. What would be relevant at this stage to be pointed out herein is that for the purposes of determination of the controversy resulting into the conviction of the revisionist for commission of the offence under Section 457, 380 and 411 IPC in relation to the Case Crime No.42 of 2010 and for the offences under Section 380 and 411 IPC in Case Crime No.109 of 2010, this Court is of the view that in order to convict the revisionist if the appreciation of the statement recorded of the revisionist under Section 313 of Cr.P.C. is taken into consideration, apart from the fact that the statement thus recorded he had cursorily denied the statement recorded by the prosecution witnesses but as far as the statement pertaining to the recovery of articles in two case crime numbers and that too from the custody of the revisionist, the same was not specifically denied by the revisionist in his statements. Hence it leads to an inference that the recovery of the stolen articles from the possession of revisionist remains an uncontroverted fact. It could also be said that if the statement thus recorded under Section 313 Cr.P.C. is read to the contrary to the statement recorded by the prosecution witnesses, the revisionist has submitted that the articles thus shown to be recovered though the possession was claimed and proved to have been made from the possession of the revisionist himself but in order to show that the

articles recovered were the same as that of the stolen goods of the complainant. The complainants themselves when they have appeared in the witness box, in order to substantiate that the articles recovered were articles stolen, the revisionist came up with case that the recovered articles were not the stolen articles but they were the articles which were, in fact, belonged to the revisionist himself and they were his self acquired possession. Consequently, the revisionist despite of having being called upon on several occasions by the learned trial court as well as by the police authorities during the course of investigation to substantiate his defence that the articles recovered were self acquired possession of the revisionist, he was called upon by the Investigating Officer as well as by the trial court to show by evidence that the articles recovered were his own procurements. He was also called upon to show the evidence or title to the effect that the articles recovered belonged to him if the evidence before the trial court led by the revisionist is taken into consideration, he has apparently failed to bring on record any evidence to show or he has been failed to place on record any document of title or procurement of an article as such to show that the articles recovered from him, which was contended by the prosecution to be the stolen articles, were the self acquired possession of the revisionist and that it was purchased by him. Whenever in defence an accused of robbery under Section 380 IPC to be read with Section 411 IPC where the recovery of the stolen articles is made in that case the defence if it is of purchase or an acquisition of the property, the burden to prove the same otherwise is to be showed as by the revisionist which in the instant case even on the perusal of the evidence which has been placed on record since after having been scrutinized the same both the courts below and even this Court is of the view that the revisionist has not been able to prove beyond evidence by bringing any independent document on record to show that the source from where the articles were purchased, his purchasing capacity in order to show that it was his own procurement.8. Particularly, the learned counsel for the revisionist has made reference to the cross examination of the witnesses of the prosecution, which was recorded and as referred in para 14 of the trial courts judgment which deals with the cross examination of the prosecution witnesses, the revisionist is contending thereof that if the statement and the oral testimony of the witnesses is taken into consideration, there happens to be massive contradiction with regards to the actual articles which were stolen from the residence of the complainants, then those which has been recovered from the revisionist. For this minor contradiction with regards to the number of articles stolen with regards to its description and its dimensions with precision as given therein in the statement considered in para 14, Court is of the view that, that in itself will not dilute the set of allegations as it has been levelled against the present revisionist by the prosecution, because in case if the statement of the accused revisionist which has been recorded under Section 313 Cr.P.C., it is taken into consideration rather the statement of the revisionist himself shows an admission of the fact that the articles which was recovered from him, are the same articles which were stolen on 09/10.02.2010 and 13.04.2010 from the residence of the complainants.

Ikz’u ua 1% vfHk;kstu Ik{k dh lk{; esa vk;k gS fd fnukad 13.04.2010 dks le; vne rgjhj LFkku edku oknh ekS0 nsorku Tokykiqj Fkkuk Tokykiqj ftyk gfj}kj esa vkius oknh ds ?kj dk rkyk rksMdj 43 gtkj :Ik;s udn o lksus pkanh ds tsojkr pksjh dj fy;s rFkk vkids dCts ls mDr pksjh fd;s x;s tsojkr esa ls dqN lkeku vkids dCts ls cjken gqvkA bl ckjs esa vkidks D;k dguk gS\

mRrj% >wB gSA

9. The statement recorded under Section 313 Cr.P.C. particularly the question no.1 which was posed to the revisionist regarding the recovery of the articles, he has simple asserted that the allegation of recovery is false. He has never led any evidence to the contrary of the recovery of the articles, which was recovered by the team of police officials, was not made from him. An identical statement has been recorded by the revisionist in his defence under Section 313 Cr.P.C. as recorded in Criminal Case No.7379 of 2010 as involved consideration in Criminal Revision No.231 of 2011. The

finding in relation thereto as referred in para 31 as to how the stolen goods were recovered from the revisionist, how it came in his possession? These two vital aspects which could have been shown the entitlement to retain the article by the revisionist is concerned they were not proved. Consequently, the trial court has held that in such an eventuality the strong presumption has to be made that the revisionist was indulged in commission of the offence of robbery and stolen articles were recovered from his possession.

10. Furthermore, if the finding which has been recorded in para 31 of the judgment of the trial court is taken into. It has rather recorded specific finding that despite of giving of ample of opportunity to the revisionist to show and prove that the articles recovered from his custody, were his own procurements, he has not been able to prove the same rather to the contrary, once the revisionist claims it to be his procurement, then under Section 103 of Evidence Act, because the burden shifts upon the revisionist to prove that the articles recovered from his possession were his own procurement, once he himself claims in defence, to derive benefit out of it, as not to be stolen property and it was property belonging to him. Since the revisionist having failed to do so, the Government Advocate submits that even if his statement recorded before trial court and the finding which has been recorded by the Investigating Officer in the charge-sheet and the statement as recorded under Section 313 Cr.P.C., it amounts to that it was an admission which had been made by the accused person that the articles stolen were recovered from his custody.11. Hence, the Government Advocate in his argument submits that for the purposes of proving that it was not the stolen articles, then the entire burden shifts upon the defence to prove it otherwise which he has utterly failed to establish in view of the statement of the revisionist convict himself recorded under Section 313 Cr.P.C. Hence after considering the statement of revisionist and the witnesses which was adduced by the parties, particularly, the counsel for the revisionist who

has placed reliance on para 14 of the judgment of the learned Trial Court, wherein it has considered various exhibits, which was placed on record by the parties and further in order to prove the theory of recovery, he submits that since the incident happens to be of 09/10.02.2010 and 13.04.2010 respectively in the two cases, the purported recovery made from his custody to be that of 17.06.2010, it will have no nexus with regards to the incident for the reason that the recovery of the articles itself has taken place belatedly much thereafter from the date of the occurrence of the incident as narrated in the FIR which was registered on 10.02.2010 and 13.04.2010 respectively. But the said statement as recorded in para 14 cannot be exclusively read in an isolated manner for the purposes of, to ascertain the case as projected by the defence before the trial court, the same has also to be read in reference to the finding which has been recorded in para 19 of the impugned judgment, which is quoted hereunder:-

“,sls esa vfHk;qDr ds Lo;a ds LohdjksfDr ls ;g Li”V gks tkrk gS fd iqfyl }kjk ftl lkeku dh cjkenxh vfHk;qDrx.k ds ?kj ls nf’kZr dh x;h gS] og lkeku vfHk;qDrx.k ds ?kj ls cjken gqvk gS rFkk vfHk;qDrx.k }kjk ,slk dksbZ fo’oluh; lk{; U;k;ky; ds }kjk volj fn;s tkus ds mijkUr Hkh nkf[ky ugha fd;k x;k] ftlls ;g lkfcr gks lds fd ;g lkeku vfHk;qDrx.k ds }kjk vFkok muds ifjokj ds O;fDr;ksa }kjk [kjhn fd;k x;k gSA”

on which the reliance has been placed by the Government Advocate, wherein, the statement of the revisionist as recorded before the trial court, if it is read in its totality in fact he rather admits the fact of commission of the offence and also the fact of the recovery of the stolen articles from his custody. Because the finding has come on record before trial court that the recovery of the article from the revisionist were of those articles which was being sought to be recovered by the Investigating Officer while conducting his inquiry as were shown to be the stolen articles as explained by the complainants and they were shown to have been found and proved to be recovered from the custody of the revisionists and were recovered from his possession by the investigating team of police officials in the raid conducted by them from his residence. The trial court has held that when the aforesaid case of the defence, was not substantiated on

account of the recovery of goods which was made from the residence of the revisionists and when no evidence to the contrary was ever adduced by the revisionist to show that the recovery of the article which was made from him in fact was not that of the stolen articles which were stolen from the residence of the complainants.

12. The learned counsel for the revisionist further submits that if the statement of the complainants itself is taken into consideration in view of the finding which has been recorded in para 16 of the said judgment, which is quoted hereunder:-

“cpko Ik{k us oknh ds c;kuksa dh vksj U;k;ky; dk /;ku vkdf”kZr djkrs gq, ;g dFku fd;k fd oknh us vius c;kuks esa ;g Hkh Li”V fd;k gS fd mlds }kjk lkeku dh f’kuk[r ugha dh x;h Fkh] mls [kqyk gqvk lkeku fn[kk;k x;k Fkk rFkk pwafd vf/kdrj lkeku L=h/ku lkeku pksjh gqvk Fkk] ysfdu mlds ckotwn mldh csVh] cgqvksa dks lkeku ugha fn[kk;k x;k FkkA”

wherein the prosecution has recorded finding that the complainant himself was unable to identify the recovered property, which was recovered from the custody of the revisionists, whether it constituted as to be the part of the property which was stolen from their residence on 09/10.02.2010 and 13.04.2010 respectively and that it belonged to him, hence the revisionist contended that the offence cannot be said to be substantiated particularly when the complainant himself was unable to identify the stolen property and the revisionist submitted that once there was vagueness in the details of the property stolen from the residence of the complainants, which was provided by them in that eventuality, the finding as recorded in para 19 of the judgment to the effect that on scrutiny of the statement made under Section 313 Cr.P.C. as it has been dealt with by the Trial Court that it was amounting to be an admission of commission of an offence by the revisionist due to the recovery being made from the possession of the revisionist, he submits that the said statement of the prosecution witnesses and finding of para 19 cannot be read in an isolation, as it has to be read in harmony and in accordance with the statement of the complainants, themselves and when the complainants themselves have not able to identify the property it cannot be said that the property

which is shown to be recovered from the custody of the revisionist were the stolen property and he submits that there is no nexus with regards to the evidence and the manner of its appreciation to derive conclusion as made by the learned Trial Court for the purposes of convicting the revisionist for the offences under Sections 457, 380 & 411 IPC.

13. The learned Government Advocate on the contrary submits that the Investigating Officer and the team of police official who have recovered the articles from the residence of the revisionist, was in fact made as soon as it was complained with, that the articles which were shown to be stolen from the complainant’s residence and if it was different then that to the stolen articles and if it was case of the revisionist that it was his own procurement then the burden shifts upon him to show the source of its procurement and its valid custody in his favour. But since he has not proved the same by adducing any evidence as such the learned Trial Court has accordingly after considering and after appreciating the evidence which was placed on record by the prosecution, as well as that the statement recorded under Section 313 Cr.P.C. has imposed the punishment on the revisionist by sentencing the revisionist to undergo simple imprisonment for period of two years and penalty of Rs.5,000/- has been imposed for the offence under Section 457, for an offence under Section 380, he has been directed to undergo simple imprisonment for period of one year and half year and for the offence under Section 411 IPC. He has been sentenced to undergo imprisonment of six months and penalty of Rs.1,000/- has been imposed upon the revisionist by the impugned judgments of the Chief Judicial Magistrate dated 23.10.2010 as rendered in Criminal Case No.5378 of 2010, State vs. Naveen Verma and another.

14. In Criminal Case No.5378 of 2010 (i.e. Criminal Revision No.230 of 2011, Arshad vs. State of Uttarakhand), the following sentence was imposed vide judgment dated 23.11.2010:-

“vfHk;qDrx.k uohu oekZ ,oa vj’kn dks Hkk0na0la0 dh /kkjk 457] 380] 411 ds vkjksiksa esa nks”kfl) fd;k tkrk gS] ftlds fy, vfHk;qDr izR;sd dks /kkjk 457 Hkk0n0la0 ds vijk/k ds fy, nks&nks o”kZ ds lk/kkj.k dkjkokl dh ltk ls ,oa 5000@&#i;s] 5000@& #i;s ¼ikWp&ikWp gtkj #i;s½ ds vFkZn.M ls nf.Mr fd;k tkrk gSA vFkZn.M dh jkf’k vnk u djus ij vfHk;qDrx.k izR;sd dks ,d&,d ekg dk vfrfjDr lk/kkj.k dkjkokl Hkqxruk gksxkA

/kkjk 380 Hkk0na0la0 ds vijk/k ds fy, Ms<& Ms< o”kZ ds lk/kkj.k dkjkokl dh ltk ls ,oa 3000@&#i;s] 3000@&#i;s] ¼rhu&rhu gtkj #i;s½ vFkZn.M ls nf.Mr fd;k tkrk gSA vFkZn.M dh jkf’k vnk u djus ij vfHk;qDrx.k izR;sd dks iUnzg&iUnzg fnu dk vfrfjDr lk/kkj.k dkjkokl Hkqxruk gksxkA

/kkjk 411 Hkk0na0la0 ds vijk/k ds fy, N%&N% ekg ds lk/kkj.k dkjkokl dh ltk ls ,oa 1000@&#i;s] 1000@&#i;s ¼,d&,d gtkj #i;s½ ds vFkZn.M ls nf.Mr fd;k tkrk gSA vFkZn.M dh jkf’k vnk u djus ij vfHk;qDr izR;sd dks lkr&lkr fnu dk vfrfjDr lk/kkj.k dkjkokl Hkqxruk gksxkA

vfHk;qDrx.k }kjk tsy esa fcrk;h x;h vof/k dks mijksDr ltk esa lek;ksftr ekuk tk;sxkA lHkh ltk;s lkFk&lkFk pysxhA vfHk;qDrx.k dk ltk;kch okj.V cukdj mUgs ltk Hkqxrus gsrq tsy Hkstk tk;sA”

In Criminal Case No.5379 of 2010 (i.e. Criminal Revision

No.231 of 2011, Arshad vs. State of Uttarakhand), the following sentence was imposed vide judgment dated 23.11.2010:-

“vfHk;qDrx.k uohu oekZ ,oa vj’kn dks Hkk0na0la0 dh /kkjk 380] 411 ds vkjksiksa esa nks”kfl) fd;k tkrk gS] ftlds fy, vfHk;qDrx.k izR;sd dks /kkjk 380 Hkk0n0la0 ds vijk/k ds fy, Ms<&Ms< o”kZ ds lk/kkj.k dkjkokl dh ltk ls ,oa 3000@&#i;s] 3000@&#i;s] ¼rhu&rhu gtkj #i;s½ ds vFkZn.M ls nf.Mr fd;k tkrk gSA vFkZn.M dh jkf’k vnk u djus ij vfHk;qDrx.k izR;sd dks iUnzg&iUnzg fnu dk vfrfjDr lk/kkj.k dkjkokl Hkqxruk gksxkA

/kkjk 411 Hkk0na0la0 ds vijk/k ds fy, N%&N% ekg ds lk/kkj.k dkjkokl dh ltk ls ,oa 1000@&#i;s] 1000@&#i;s ¼,d&,d gtkj #i;s½ ds vFkZn.M ls nf.Mr fd;k tkrk gSA vFkZn.M dh jkf’k vnk u djus ij vfHk;qDrx.k izR;sd dks lkr&lkr fnu dk vfrfjDr lk/kkj.k dkjkokl Hkqxruk gksxkA vfHk;qDrx.k }kjk tsy esa fcrk;h x;h vof/k dks mijksDr ltk esa lek;ksftr ekuk tk;sxkA lHkh ltk;s lkFk&lkFk pysxhA vfHk;qDrx.k dk ltk;kch okj.V scukdj mUg ltk Hkqxrus gsrq tsy Hkstk tk;sA

fu.kZ; dh ,d izfr vfHk;qDrx.k dks fu%’kqYd iznku dh tk;sA”

15. It is these judgments of conviction rendered by the Chief Judicial Magistrate which was challenged by the revisionist unsuccessfully in Criminal Appeals before the Court of Additional District Judge/II[nd] FTC, Haridwar in Criminal Appeal No.171 of 2010, Arshad and others vs. State of Uttarakhand and others and Criminal Appeal No.172 of 2010, Arshad and others vs. State. The Appellate Court in the appeals, too, after considering the prosecution story as well as the defence taken by the revisionist before the learned Trial Court as well as before the learned Appellate Court, with regards to creating doubt about the propriety of the recovery of the articles from

his residence, the Appellate Court has considered the case of the revisionist as well as that of the case as built up by the prosecution i.e. ADGC (Cr.), wherein, he has supported the prosecution case by way of an evidence adduced by the prosecution on 23.11.2010, and on scrutinization of the statement of the ADGC (Criminal) also as recorded during the course of argument before the court below, the Appellate Court too, has held even if the statement of PW1 i.e. the complainant Harish Chandra and Yogesh Kumar Sharma is taken into consideration, it goes to show and establish beyond doubt that the articles which has been recovered from the possession of the revisionist in fact were the article which was actually stolen from the residence of the complainants. Because the finding which has been recorded by both the courts below concurrently is that in the statement recorded by PW1 of the two cases they have specifically come up with the case that the articles recovered from the revisionist residence were not different to the article which was stolen from their residence. Hence the Appellate Court too has held that on examination of the statement recorded by the oral witnesses and as well as the fard baramadgi, which was placed on record it show that there was no difference in the articles stolen from the complainant then that which was recovered from the custody of the revisionist.

16. Hence, the argument of learned counsel for the revisionist, to the effect that since the theory of recovery was not substantiated and there was massive contradiction in the statement of PW1, cannot be of much relevance for the reason being that minor contradiction with regards to the nature of articles stolen and the nature of the articles which were recovered from the custody of the revisionist and more particularly, when the factum of recovery of the articles stolen from the revisionist is not controverted or proved otherwise by the revisionist himself and that too when it is read in co relation with the statement recorded under Section 313 Cr.P.C. of the revisionist.

17. The Appellate Court too after considering the ratio propounded in (2004) 48 ACC 940, (Supreme Court) Dhanaj Singh @ Shera and others vs. State of Punjab has held as hereunder:-

“5. In the case of defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. See Karnel Singh vs State of M.P.

In Paras Yadav and others. v. State of Bihar, it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

As was observed in Ram Bihari Yadav v. State of Bihar and Ors, if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again re-iterated in Amar Singh v. Balwinder Singh and Ors. As noted in Amar Singh's case (supra) it would have been certainly better if the firearms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on part of the IO cannot affect credibility of the prosecution version.

6. The stand of the appellants relate essentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of non-examination of weapons of assault or the pellets etc. in the background of defective investigation have been considered in Amar Singh's case (supra). In the case at hand, no crack in the evidence of the vital witnesses can be noticed.”

It has rather held that if the oral testimony of the complainants is read in support of the testimony of other oral witnesses who has supported the story of the prosecution of recovery of the articles from the residence of the revisionist. The Court in the said case

has held that minor contradiction in the statement of list of articles which was stolen then that which was recovered will have no bearing as far as settlement of an offence under Sections 457, 380, 411 and Section 380 IPC is concerned, the Court has held that even if the statement recorded under Section 313 Cr.P.C. itself if it is even spilited in its interpretation into two parts as “inculpatory” and “exculpatory”, hence when inculpatory part is the main part of the statement of witnesses which has been recorded, in that eventuality, then the entire statement has to be read against the revisionist as has been settled in judgment reported in AIR 1969 Supreme Court 422, Nishi Kant Jha vs. State of Bihar.Para 15 and 23 of the judgment are quoted hereunder:-

“15. It was contended before us by learned counsel for the appellant that if the statement is to be considered at all, it must be taken as whole and the Court could not act upon one portion of it while rejecting the other. Counsel sought to rely on three judgments of this Court in aid of his contention that statement which contains any admission or confession must be considered as whole and the Court is not free to accept one part while rejecting the rest. In our view, the proposition stated so widely cannot be accepted. As Taylor puts it in his Law of Evidence (11[th] edition) Article 725 at page 502 that with regard to the general law of admissions, the first important rule is that

"the whole statement containing the admissions must be taken together; for though some part of it may be favourable to the party, and the object is only to ascertain what he has conceded against himself, and what may therefore be presumed to be true, yet, unless the whole is received, the true meaning of the part, which is evidence against him, cannot be ascertained. But though the whole of what he said at the same time, and relating to the same subject, must be given in evidence, it does not follow that all the parts of the 'statement should be regarded as equally deserving of credit; but the jury must consider, under the circumstances, how much of the entire statement they deem worthy of belief, including as well the facts asserted by the party in his own favour as those making against him."

With regard to criminal cases, Taylor states:

"In the proof of confessions--as in the case of admissions in civil causes-the whole of what the prisoner said on the subject at the time of making the confession should be taken together...

But if, after the entire statement of the prisoner has been given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so; and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another. Even without such contradiction it is not to be supposed that all the parts of confession are entitled to equal credit. The jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient grounds for so doing. If what he said in his own favour is not contradicted by evidence offered by the prosecutor, nor is improbable in itself, it will be naturally believed by the jury; but they are not bound to give weight to it on that account, being at liberty to judge of it, like other evidence, by all the circumstances of the case."

In Roscoe's book on Criminal Evidence (16[th] Edition, page 52), the statement of law is much to the same effect. Roscoe also cites decision in Rex v. Clewes,(1830) 4 Car and p.221 where the confession of the prisoner charged with murder 'that he was present at the murder but that it was committed by another person and that he took no part in it, was left to be considered by the jury with direction that the jury might, if they thought proper, believe one part of it and disbelieve another. According to Archbold's Criminal Pleading, Evidence and Practice (Thirty-sixth Edition, page 423):

"In all cases the whole of the confession should be given in evidence; for it is general rule that the whole of the account which party gives of transaction must be taken together; and his admission of fact disadvantageous to himself shall not be received, without 'receiving at the same time his contemporaneous assertion of fact favourable to him, not merely as evidence that he had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge .... It has been said that if there be no other evidence in the case, or none which is incompatible with the confession, it must be taken as true; but the better opinion seems to be that, as in the case of all other evidence, the whole should be left to the jury, to say whether the facts asserted by the prisoner in his favour be true."23. In this case the exculpatory part of the statement in Ex.6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under section 342 Cr. P.C. to the effect that he had received the injury in scuffle with herdsman. The injury found on his body when he was examined by the doctor on 13[th] October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having bath in the river Patro, the amount of bleeding and the washing of the

bloodstains being so considerable as to attract the attention of Ram Kishore Pandey, P.W. 17 and asking him about the cause thereof. The bleeding was not simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the postmortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex.6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime.”

interpretations to the statement that has been recorded under Section 313 Cr.P.C. but on conjoint reading it has been established that the article which was recovered from the revisionist were the same to the one which was stolen thus the Appellate Court too has affirmed the judgment of conviction as rendered by the learned Trial Court by dismissing the appeal vide its judgment dated 18.07.2011.

18. Even if, the authority on the said aspect of minor contradictions in the statement of witnesses in case which is exclusively based on the interpretation of oral evidence recorded by the prosecution and defence evidence, it would not be of much relevance so as to be attracted for acquitting an accused person that too on establishment of offence, that is what has been propounded by Hon’ble Apex Court in judgment reported in AIR 2001 Supreme Court 142, State of U.P. vs. Hari Mohan and others. Para 15 and 18 are quoted hereunder:-

“15. On 13.3.1977 the deceased is proved to have written letter to his father PW1, stating therein that she should be immediately taken back from the house of her in-laws otherwise her brother-in-law, respondent No.1, mother-in-law and the husband would kill her. The letter being in the hand-writing of deceased, as noticed earlier, stands proved by the testimony of PW4, her brother. No effort was made by the accused persons, if they doubted the authenticity of the letter, to get it compared with the admitted hand-writing of the deceased. The mere fact that the prosecution witness did not letter to his father PW1, stating therein that she should be immediately taken back from the house of her in-laws otherwise her brother-in-law, respondent No.1, mother-in-law and the husband would kill her. The letter being in the hand-writing of deceased, as noticed earlier, stands proved by the testimony of PW4, her brother. No effort was made by the accused persons, if they doubted the authenticity of the letter, to get it compared with the admitted hand-writing of the deceased. The mere fact that the prosecution witness did notproduce other letters allegedly written by the deceased, could not be made basis to hold that they had made by any attempt to suppress the evidence which the respondent could have utilised for the purposes of comparing the hand-writing of the deceased. In view of the positive evidence of PW4 we have no reason to hold that the letter Exhibit Ka.1 was not written by the deceased. The alleged discrepancy or over-writing on the top of the letter regarding its date in no way helps the accused persons.”

18. On the basis of prosecution evidence led in the case and despite mis-handling of the case by the investigation officer, we are satisfied that the circumstances enumerated hereinabove have been fully established by the prosecution. The circumstances are chain, complete in itself and inconsistent with the innocence of accused Hari Mohan. On the touchstone of the tests regarding appreciation of circumstantial evidence enumerated hereinabove, we have no doubt in our mind that prosecution had proved its case beyond any reasonable doubt that Hari Mohan, respondent No.1 had caused the death and thus committed the murder of Roop Devi. He was rightly convicted by the trial court under Section 302 of the IPC and wrongly acquitted by the High Court on erroneous considerations.”

19. After having heard learned counsel for the parties at length, the only distinction which has been sought to be carved out by the learned counsel for the revisionist is on two aspects:-

1. The story of the prosecution is not corroborated with the evidence which was placed on record by the prosecution to support the theory of recovery because the revisionist claimed it to be his personal acquisition.

2. No offence as alleged against the revisionist would be said to be made out because there being contradiction in the statement recorded by PW1 i.e. the complainants, with regards to the inventory of article which was stolen and the inventory of article which was actually recovered from the residence of the present revisionists.

20. As it has already been observed that this alone will have no effect because since admittedly the recovery has been made from the residence of the revisionist the articles were found to be in his possession and the identification of the article stolen was made by the

PW1 i.e. the complainants themselves. Hence minor discrepancies in the identification of the articles in its totality will not effect the prosecution story and would not debar to the sanctity of the judgment of conviction as rendered against the revisionist in view of the statement recorded being inculpatory statement.

21. Consequently, the grounds taken by the learned counsel for the revisionists is that there is no corroboration made by the prosecution with regards to the recovery is absolutely untenable because when the fact of the recovery is admitted to have been made from the custody of the revisionist then the burden immediately shifts upon the revisionists to prove it otherwise that the articles recovered from him were his own procurement which he has utterly failed to do so or prove to the contrary by bringing any evidence on record.

22. Accordingly, this Court does not find any error in the judgment of conviction as rendered by both the courts below, because as soon as the recovery of stolen articles itself is proved by the prosecution from the possession of the revisionist, it results into an authenticated conviction under Section 380 to be read with Section 411 of IPC. Consequently, the present revisions are dismissed. The sentence as imposed by both the courts below is affirmed. The revisionist is on bail as granted by the Coordinate Bench of this Court vide its order dated 14.09.2011 is cancelled, the revisionist is directed to surrender forthwith before the Chief Judicial Magistrate, Haridwar and to serve the remaining sentence apart from the sentence which she has already undergone. However, the surety which was extended at the time of availing the bail in pursuance to the order dated 14.09.2011 would stand discharged.