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2009 DIGILAW 522 (JK)

Mohd. Sadiq v. State Of J. &K.

2009-10-30

BARIN GHOSH

body2009
1. The First Information Report led to an investigation which resulted in the arrest of the revision petitioner. While in custody, the revision petitioner is alleged to have made disclosure as to location of the stolen goods. The information so supplied is not in writing of the revision petitioner. Investigators also did not take the accused to the places which, according to the investigation, were disclosed by the revision petitioner for recovery of the stolen goods. However, the stolen goods were recovered from three different places. 2. Prosecution witness no. 2 was declared hostile. He stated in his evidence that the revision petitioner did not make any disclosure in his presence. He added that, however, the Police called him and took him when the revision petitioner was taken to a village. The prosecution case, however, was not that the revision petitioner was taken to the places from where recoveries were made. The courts below, on the strength of the evidence of PW-2, held that revision petitioner was taken to the places or to a place from where recoveries were made. 3. Prosecution witness no. 6 deposed that, at the request of the revision petitioner, he carried stolen goods from a place to another place wherefrom a part of the stolen goods was recovered. This evidence of prosecution witness no. 6 has not been corroborated by any other evidence, be that reliable or otherwise. 4. The seizure memos did not contain signature of the revision petitioner. None of the stolen goods was recovered from any place within the domain known to be in control of the revision petitioner. 5. The whole case appears to have been decided against the revision petitioner only on the basis of the information given by him to the police in custody. 6. There is no dispute that Section 27 of the Evidence Act is an exception to the general rule contained in Section 26 of the Act to the effect that no confession made by any person, while he is custody of a Police Officer, shall be proved as against such person, but 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 the same amounts to a confession or not, as it relates distinctly to a fact thereby discovered, may be proved. In other words, if the information leads to a discovery, only that much may be proved. The information, which led to the discovery, was, therefore, required to be independently proved. The same having not been done in the instant case, no reliance could be placed on the alleged information on the basis whereof the revision petitioner was convicted. 7. In the circumstances, the revision petition is allowed and the judgments under revision are quashed holding that the same have been rendered on the basis of no evidence at all. 8. The trial court records be returned.