IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 63 of 2009 Date of Decision : 27.07.2011 Noor Mohammad ….Petitioner. Versus. State of H. P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the petitioner : Mr. M.S. Guleria, Advocate For the respondent : Mr. P.K. Sharma, Addl. A.G. with Ms. Shubh Mahajan, Dy. A.G. Justice Dev Darshan Sud, J. The petitioner is aggrieved by his conviction under Sections 457 and 380 of the Indian Penal Code for which he was sentenced to undergo imprisonment (S/C simple/rigorous?) for 18 months and fine of Rs.3000/- for offence under Section 380, IPC, rigorous imprisonment for 18 months and fine of Rs.3000/- for offence under Section 457. In case of default of payment of fine, the petitioner herein, one of the co-accused was sentenced to undergo simple imprisonment for 21 days. The sentences were directed to be run concurrently. 2. The case of the prosecution is that the accused was charged for the offences under Sections 457/380, IPC on the allegations that on 7.12.2007 Vinod Kumar complainant lodged a report at Police Station Bharmour that he is running Shop under Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 the name and style of Manish Electronic at Bharmour which was burgled by both the accused after breaking open the locks of the shutters of the shop and decamped with the electronic articles. After investigation, both the accused were arrested. Sonu on 16.2.2008 at Dharwala. On 17.2.2008 a disclosure statement under Section 27 of the Evidence Act, Ex. PW8/C was purportedly made by this accused which was witnessed by H.C. Naresh Kumar and Saran Dass. Pursuant to this statement, recovery was purportedly effected vide recovery memo Ex.PW2/C which was witnessed by Samim Akhtar and Jakir Hussain, PW3. According to this recovery memo, Ex.P1 to Ex.P12 seized goods being in the nature of the electronic equipment etc., were recovered from the house of the accused. 3. On the evidence on record, the learned trial Court proceeded to convict the petitioner herein by invoking the provisions of Section 114-A of the Evidence Act holding that there is presumption of guilt if stolen property is recovered from the accused immediately after the incident. Both the accused were accordingly sentenced. Appeal was preferred against the judgment and sentence which was heard by the learned Additional Sessions Judge, Fast Track Court, Chamba. The learned Court, on the material on record proceeded to affirm the judgment of the trial Court. 4. The petitioner herein now is in revision before this Court. Before considering the submissions made by learned counsel appearing for the petitioner, I will note one objection urged by learned Additional Advocate General. He submits that 3 in exercise of jurisdiction under Sections 397/401 of the Cr.P.C., it is not open to this Court to reassess the evidence afresh. Learned Additional Advocate General submits that the jurisdiction of this Court is limited only to correct errors of jurisdiction and intervene in cases of manifest perversity. 5. There is no dispute so far as this proposition of law is concerned. But in order to convict the petitioner for the offence as charged, there should be evidence on record which establishes beyond reasonable doubt that the petitioner was in fact involved in lurking house trespass and theft. 6. PW3 Jakir Hussain, who was also signatory to the recovery memo Ex.PW2/B, states in his examination-in-chief that he has witnessed and signed this recovery memo. However, his cross-examination totally destroys the case of the prosecution because he states (a) that recovery was never effected in his presence (b) he signed the recovery memo in the presence of police personnel (c) that when he affixed the signature, the goods were already lying in the jeep of the police personnel. 7. In these circumstances, it is difficult to accept the reasoning of the two Courts below that the recovery was in fact effected in the presence of this witness. But I am amazed to see that this witness had neither been declared hostile nor re-examined to bind him down to his statement under Section 161 Cr.P.C. and to draw his attention to the fact that his statement in examination-in-chief is totally different from that what he states in cross-examination. PW1 is Saran Dass, is relied upon by the prosecution to prove Ex.PW8/C which is purportedly 4 a disclosure statement. He denies ever having been associated with the investigation regarding statement etc. His cross- examination is extremely brief and does not touch the relevant point to establish his presence that he was present when the disclosure statement was recorded. Again I am surprised at the manner in which the prosecution has conducted the case. 8. Learned Additional Advocate General submits that statement of PW4 Shamim Akhtar conclusively proves the case of the prosecution because she states that she had seen her husband (petitioner herein) and other accused with these articles. She is deaf and dumb and her statement was recorded with the help and assistance of her sister. 9. I have carefully scrutinized the statement of PW4 Shamim Akhtar. I cannot find anything in her statement which established the case of the prosecution or the conclusion arrived at by the two Courts below that the petitioner was guilty of possessing stolen articles subject matter of this case. With respect to the presumption under Section 114-A of the Evidence Act, all that I need to say is that the fact regarding which presumption has to be drawn, must be established/proved before invoking the provisions of law. It cannot be done on conjectural basis. 10. Learned counsel appearing for the petitioner relies upon the decision of the Supreme Court in Mukhtiar Ahmed Ansari versus State (NCT of Delhi), (2005)5 SCC 258 to urge that the statement of PW3 which assists the petitioner, should be relied upon by this Court for the reason that he has not been 5 declared hostile or cross-examined. There is no dispute with respect to this proposition of law. In C. Magesh and others versus State of Karnataka, (2010)5 SCC 645 it has been held that it is not merely sufficient to extract some portions of the statement of a witness and then say that a point stands proved. What is required to be done is to assess the entire evidence and then see as to whether a particular fact is proved/not proved/disproved. The Court holds that: “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasize, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U. P.,(2008)16 SCC has held: (SCC p.704 para 14) “14. ’21…..The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy;…… the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.’ “ 46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the 6 evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. ”(pp…655) 11. To repeat in this case, what I find is that the recovery and disclosure statement Ex.PW8/C are the very basis for conviction, having not been established. In this view of the matter, the judgments of the two Court below are illegal and against law. The revision petition is allowed accordingly and the judgments sentencing the petitioner are set aside and quashed. The bail bonds furnished by the petitioner are discharged. Record of the Courts below be sent back forthwith. (Dev Darshan Sud), 27th July, 2011. Judge. (jai)