2003 ALL MR (Cri) 2182
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.G. CHITRE, J.

Surinder Singh Jora Singh Punjabi Vs. State Of Maharashtra

Cri. Appeal No.396 of 1997

30th September, 2002

Petitioner Counsel: Mr. M. N. RAJPUT
Respondent Counsel: Mr. SHRINGARPURE

Evidence Act (1872), S.27 - Recovery evidence - Dacoity - Disclosure of information under S.27 of the Act as to a car which was allegedly used for committing offence of dacoity - Car within knowledge of many persons - Such an information alone can not be sufficient to warrant conviction.

Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as "Evidence Act" for convenience) 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, it will have to be seen as to what was the fact which was discovered in pursuance of the information which was given by the present appellant. The fact that a car bearing above mentioned number was stationed in the compound of Bhandup Police Station was discovered and that is distinctly related to the information which has been given by the present appellant. There is no evidence on record to show that the said car was kept in Bhandup Police Station in a concealed way and was not capable of being seen by the persons who could have visited Bhandup Police Station. Bhandup Police Station being a public office, many persons are expected to visit it. As submitted by Shri. Rajput, the appellant was involved in some cases connected with Bhandup Police Station. Therefore, he must have been also visiting it frequently and during such visits might have seen that car. In the present case, the prosecution has not led any acceptable and reliable evidence to prove that the present appellant had a nexus with the said dacoity and said car which was alleged to have been used in the said dacoity. Therefore, the evidence in respect of the disclosure of the information in respect of the said car or act of appellant leading the investigating officers and the panch witnesses to Bhandup Police Station and of pointing out the said car would not be of any help to the prosecution for getting a conviction against the present appellant. The learned trial judge has not understood the proper meaning of section 27 of Indian Evidence Act and its application to the present case. Therefore, he landed in error in passing the order of conviction and sentence against this appellant and also in holding that he was one of the dacoits committing the dacoity in the said jewellery shop. Penal Code (1860), S.395. [Para 4,5]

JUDGMENT

JUDGMENT :- Mr. M. N. Rajput is appearing for the appellant who is in custody since 1997. Another appeal bearing Criminal Appeal No.633 of 1997 is also tagged with this appeal. But Mrs. Dhuru appearing for that appellant is not present. This Court has waited for sufficiently long time for her presence but even then she has not come. Therefore, this Court finds it necessary that the appeal of Surender Singh Jorasingh Punjabi needs to be separated from that appeal and it needs to be heard. Thus, Criminal Appeal bearing No.396 of 1997 has been separated and has been heard. Criminal Appeal No.633 of 1997 is to be again shown on board for final hearing next week.

2. Shri. Rajput, counsel appearing for the appellant, submitted that only evidence against the appellant is that when he was arrested and interrogated by police, it was revealed that he was involved in C.R. No.103 of 1992 from Bhandup Police Station in connection with theft of a car. So far as present case is concerned, he was further interrogated and in the said interrogation, he showed his willingness to disclose the information that the car bearing no. MMF 6166 has been kept in the compound of Bhandup Police Station. He led the investigation officer and punchas to Bhandup Police Station and pointed out that car. He further submitted that it is the prosecution case that said car was used when dacoity was effected on Alankar Jewellers shop to which this present case is connected. Shri. Rajput submitted that except this, there is no evidence against this appellant whatsoever showing his involvement in the present crime. Shri. Rajput submitted that this evidence is also not sufficient to warrant a conviction because the said car was within the knowledge of many persons who had visited Bhandup Police Station. He submitted that the appellant be acquitted by allowing his appeal.

3. Shri. Shringarpure, the Additional Public Prosecutor appearing for the prosecution, submitted that the said car was used in said dacoity and the said car was pointed out by the present appellant and, therefore, the learned Judge was right in convicting and sentencing him.

4. Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as "Evidence Act" for convenience) 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, it will have to be seen as to what was the fact which was discovered in pursuance of the information which was given by the present appellant. The fact that a car bearing above mentioned number was stationed in the compound of Bhandup Police Station was discovered and that is distinctly related to the information which has been given by the present appellant. There is no evidence on record to show that the said car was kept in Bhandup Police Station in a concealed way and was not capable of being seen by the persons who could have visited Bhandup Police Station. Bhandup Police Station being a public office, many persons are expected to visit it. As submitted by Shri. Rajput, the appellant was involved in some cases connected with Bhandup Police Station. Therefore, he must have been also visiting it frequently and during such visits might have seen that car. In the present case, the prosecution has not led any acceptable and reliable evidence to prove that the present appellant had a nexus with the said decoity and said car which alleged to have been used in the said dacoity. Therefore, the evidence in respect of the disclosure of the information in respect of the said car or act of appellant leading the investigating officer and the panch witnesses to Bhandup Police Station and of pointing out the said car would not be of any help to the prosecution for getting a conviction against the present appellant.

5. The learned trial judge has not understood the proper meaning of section 27 of Indian Evidence Act and its application to the present case. Therefore, he landed in error in passing the order of conviction and sentence against this appellant and also in holding that he was one of the dacoits committing the dacoity in the said jewellery shop. The learned trial judge committed the error of resultantly sentencing him for the offence punishable under section 395 IPC simplicitor to R.I. for 7 years and to pay a fine of Rs.1000/-, in default to suffer further R.I. for 3 months. The said order of conviction and sentence needs to be set aside. Thus, the final order.

6. The appeal is allowed. The order of conviction and sentence passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.1325 of 1993 against Surender Singh Jorasingh Punjabi stands set aside and he stands acquitted in that case. He be released, if not required for any inquiry, investigation, proceeding or trial. No interference in the order in respect of the disposal of the property. From the argument it has been indicated that this appellant happens to be connected with number of crimes. Therefore, the Superintendent of Jail shall not release him unless he is fully satisfied that he has been acquitted in all criminal cases and that he is no more needed by the police in custody.

7. Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.

Appeal allowed.