1 2025:HHC:27400 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.60 of 2013 Reserved on: 30.07.2025 Decided on: 13.08.2025 Mahinder Singh ...…..Petitioner Versus State of H.P. …..Respondent Coram The Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner: Mr. N.K. Tomar, Advocate. For the Respondent: Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The present revision petition is directed against the judgment dated 23.02.2013, passed by learned Sessions Judge, Sirmour District at Nahan (learned Appellate Court) vide which the judgment of conviction dated 18.3.2011 and order of sentence dated 22.3.2011 passed by learned Judicial Magistrate First Class, Rajgarh, District Sirmour, H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the 1Whether the reporters of the local papers may be allowed to see the Judgment?No 2 2025:HHC:27400 ) same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present revision are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 457 and 380 of the Indian Penal Code (in short “IPC”). It was asserted that informant Ravi Dutt (PW1) was working as a carpenter and was residing at Pabiyana. He and his son Neeraj (PW2) left for their work on 29.11.2009, after locking the room and the kitchen. The informant returned home at 9:00 A.M and found that the locks were broken. The articles in the kitchen and the room were scattered. He found that a pair of silver anklets, a gold nose pin, three coins of silver, and one gas cylinder were missing. The informant suspected Mahinder Singh (the present accused) because he was involved in the commission of a similar offence earlier. He made a complaint to the police. His statement (Ex.PW7/A) was recorded, and F.I.R. (Ex.PA) was registered in the police station. HC Ranjit Singh (PW7) conducted the investigation. He prepared the site plan (Ex.PW7/B). The photographs of the spot (Ex.PW4/A to Ex.PW4/D) were taken. One stone (Ex. P3) and two broken locks (Ex. P1 & Ex. P2) were 3 2025:HHC:27400 ) found on the spot. These were put in a cloth parcel and the parcel was sealed with seal “R”. Seal impression (Ex.PW7/C) was taken on a separate piece of cloth. The accused made a disclosure statement (Ex.PW1/A) that he could get the gas cylinder recovered. He led the police to a place where the gas cylinder was concealed. The police recovered the cylinder and seized it vide memo (Ex. PW1/B). The accused produced a pair of silver anklets (Ex. P4), a nose pin (Ex. P5), and two silver 'kangan' (Ex. P6), which were seized vide memo (Ex.PW3/A). Site plan of the place of recovery (Ex.PW7/D) was prepared. Statements of witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court found sufficient reason to summon the accused. When the accused appeared, he was charged for the commission of offences punishable under Sections 457 & 380 of the IPC, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined seven witnesses to prove its case. Ravi Dutt (PW1) is the informant. Neeraj (PW2) is his son. Jeet Singh (PW3) witnessed the recovery. Naresh (PW4) 4 2025:HHC:27400 ) took the photographs. HC Roshan Lal (PW5) was working as MHC with whom the case property was deposited. R.S. Chauhan (PW6) prepared the challan. HC Ranjeet Singh (PW7) conducted the investigation. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. He did not lead any defence evidence. 6. Learned Trial Court held that the statement of the informant proved that a theft had taken place. The accused made a disclosure statement leading to the recovery of a gas cylinder. He also produced the stolen articles. There was no reason for the informant to falsely implicate the accused. Therefore, the accused was convicted of the commission of offences punishable under Sections 457 and 380 of the IPC and was sentenced as under:- Section(s) Sentence(s) Section 457 of the IPC The convict was ordered to undergo simple imprisonment for three years and pay a fine of ₹5,000/-. Section 380 of the IPC The convict was ordered to undergo simple imprisonment for three years and pay a fine of ₹ 5,000/-. In default of making the payment of fine, the convict was ordered to undergo further simple imprisonment for nine months for the aforesaid offences. The 5 2025:HHC:27400 ) substantive sentences of imprisonment awarded to the convict were ordered to run concurrently. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal which was decided by the learned Sessions Judge, Sirmour District At Nahan (learned Appellate Court). Learned Appellate Court held that theft in the house of the informant was duly proved. It was proved that the accused had produced the stolen articles. He made a disclosure statement leading to the recovery of the cylinder. These circumstances cumulatively led to the only inference that the accused had committed the theft. Learned Appellate Court also held that the sentence imposed by the learned Trial Court was excessive and reduced the simple imprisonment from three years to six months. 8. Being aggrieved by the judgments and order passed by the learned Courts below, the accused filed the present revision, asserting that the learned Courts below erred in appreciating the material placed before them. The witnesses were interested and inimical. The F.I.R. was the result of deliberation. The allegations against the accused were not proved. Neeraj (PW2) stated that all the articles were found at home, which made the prosecution's case highly suspect. The 6 2025:HHC:27400 ) disclosure statement was not witnessed by the independent witnesses and was not proved as per the law. There were major contradictions in the statements of prosecution witnesses, and the learned Trial Court erred in relying upon the statements. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside. 9. I have heard Mr. N.K. Tomar, learned counsel for the petitioner/accused and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 10. Mr. N.K. Tomar, learned counsel for the petitioner/accused, submitted that the learned Trial Court erred in appreciating the matter placed before them. There was no evidence that the cylinder recovered by the prosecution was stolen from the informant’s possession. The informant admitted that he did not have the subscriber copy issued by the gas agency, which made his version highly doubtful that the cylinder was issued in his name. There is a discrepancy between the articles recovered and the articles stated to have been stolen. There was no proper identification of the stolen articles. Learned Courts below did not advert to this aspect of the case, 7 2025:HHC:27400 ) and the judgments and order passed by them are not sustainable. Hence, he prayed that the present petition be allowed and the judgments and order passed by the learned Courts below be set aside. 11. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, supported the judgments and order passed by the learned Courts below. He submitted that the accused was found in possession of stolen property immediately after the theft, and a presumption that he had committed theft would apply to the present case. Learned Courts below rightly held that the recovery of the stolen articles proved the commission of theft by the accused. This was a reasonable view taken by the learned Courts below, and this Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. He prayed that the present revision be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: 8 2025:HHC:27400 ) (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: - “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality, or propriety of any finding, sentence, or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 14. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect 9 2025:HHC:27400 ) or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case 10 2025:HHC:27400 ) substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under CrPC.” 16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) “27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as 11 2025:HHC:27400 ) made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. *** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. *** 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but it is an opinion formed prima facie.” 17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statements of witnesses, and it is not legally permissible. The High Courts ought to be 12 2025:HHC:27400 ) cognizant of the fact that the trial court was dealing with an application for discharge. 15. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169: “12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) “5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we 13 2025:HHC:27400 ) have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …” 13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) “14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power of the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.” 14. In the above case, the conviction of the accused was recorded, and the High Court set aside [Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao 14 2025:HHC:27400 ) Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis. 16. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205: “16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well- established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.” 17. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 18. The informant Ravi Dutt (PW1) stated that he and his son had left for work. When he returned on the 30th, he saw that the locks were broken. The articles were lying scattered. The cylinder was stolen. Anklet, silver 'kangan', nose pin and three 15 2025:HHC:27400 ) coins of silver were missing. He informed Jeet Singh about the theft. He stated in his cross-examination that Jeet Singh(PW3) had called the accused. He denied that he had mentioned the gold nose pin and gold coins in the F.I.R. He volunteered to say that these were of silver. 19. His statement is corroborated by Jeet Singh (PW3), who stated that Ravi Dutt told him about the damage to the locks and theft of the cylinder. He (Jeet Singh) went to the spot and saw that the locks were broken. Ravi Dutt said that the silver anklet and, silver nose pin were also missing. He also informed the police. He stated in his cross-examination that he had not seen any passbook/receipt of the cylinder. He denied that the cylinder was inside the room. 20. The testimony of Ravi Dutt regarding the commission of theft is also corroborated by the statement (Ex.PW7/A), which was made on 30.11.2009 at 8:30 P.M. 21. Neeraj (PW2) stated that no recovery was effected in his presence. He was permitted to be cross-examined. He denied that the police seized the stone and broken locks from the spot in his presence. He admitted that he and his father had left for work after locking the house. He admitted that his father 16 2025:HHC:27400 ) told him about the damage to the lock and theft of articles and the cylinder. He denied that the police made inquiries from the accused, and the accused got recovered the stolen articles. He stated in his cross-examination by learned counsel for the accused that all the articles were lying inside the house when he returned to the spot. 22. It was submitted that the testimony of this witness makes the prosecution's case highly suspect. This submission is not acceptable. He is not a witness to the disclosure statement (Ex.PW1/A), recovery memo (Ex. PW1/B), stone and broken pieces of locks (Ex. PW2/A), and recovery memo (Ex. PW3/A) of silver anklet, nose pin and 'kangan'. Therefore, the fact that he has not supported the prosecution case regarding the recoveries and disclosure statement will not make the prosecution case suspect. Further, his statement that all the articles were lying in the house at the time of his return does not mean that no theft was committed. He was not accompanying the informant, and he returned after the police were called. The police had effected the recovery before his arrival, and his testimony that articles were lying in the house does not mean that no theft had taken place. Therefore, the testimony of this witness will not assist the accused. 17 2025:HHC:27400 ) 23. Jeet Singh (PW3) stated that the accused got recovered the cylinder. He also produced a silver ‘kangan’ and an anklet, which were seized by the police. He identified the articles in the Court. The accused made a disclosure statement (Ex.PW1/A), which was witnessed by him. The police seized the stone and broken pieces of locks, which were seized in his presence. He stated in his cross-examination that his house and the house of Ravi Dutt are separated by 10 houses. 5-6 houses are located adjacent to the house of Ravi Dutt, which are scattered. He admitted that stone is commonly available. He denied that no recoveries were effected, and he put the signatures in his home. He denied that he had enmity with the accused. 24. The cross-examination of this witness does not show that he has any enmity with the accused. He categorically denied his enmity with the accused and denied suggestion does not amount to any proof. Thus, the learned Trial Court had rightly relied upon his testimony. 25. The informant also supported the recoveries. He stated that the police picked up stones, broken locks and seized them. He identified the stone and the locks. The accused made a 18 2025:HHC:27400 ) disclosure statement that he could get the cylinder recovered. He led the police and got the cylinder recovered. The accused also produced a silver anklet and a ‘kangan’, which were seized by the police. He denied in his cross-examination that no recovery was effected in his presence. 26. HC Ranjit Singh (PW7) stated that he interrogated the accused. The accused made a disclosure statement (Ex.PW1/ A). He also produced one pair of silver anklets (Ex.P4), a nose pin and two ‘kangan’, which were seized by the police. The accused led the police to a place from where the gas cylinder was recovered. He stated in his cross-examination that 10-12 houses were located on the spot. The house of Ravi Dutt was at a distance of 15 meters from the road. He did not seize the passbook. He denied that no recovery was effected. His testimony also corroborates the informant’s testimony. 27. It was submitted that the police did not associate the independent witness, which makes the prosecution case highly suspect. This submission cannot be accepted. The police associated Jeet Singh (PW3), who is an independent person. Further, there is no requirement to associate an independent 19 2025:HHC:27400 ) witness while recording the disclosure statement and effecting the consequential recovery. 28. In State Versus Sunil 2001 (1) SCC 652, the recovery was discarded by the High Court on the ground that no independent witness had signed the memo, and it was signed only by a highly interested person. It was held by the Hon'ble Supreme Court that there is no requirement under Section 27 of the Indian Evidence Act or Section 161 of Cr.P.C. to obtain the signatures of independent witnesses. The requirement of independent witnesses is when the recovery is effected under Section 100(4) of the Cr.PC and not when the recovery is effected pursuant to the disclosure statement. It was further observed that statements of police officials cannot be doubted because they are official witnesses. It was observed:- “17. Recovery of the nicker is evidenced by the seizure memo, Ext. PW-10/G. It was signed by PWlO-Sharda be- side its author, PW17-Investigating Officer. The Division Bench of the High Court declined to place any weight on the said circumstance purely on the ground that no other independent witness had signed the memo, but it was signed only by "highly interested persons". The ob- servation of the Division Bench in that regard is ex- tracted below: "It need hardly be said that in order to lend assur- ance that the investigation has been proceeding in a fair and honest manner, it would be necessary for the Investigating Officer to take independent 20 2025:HHC:27400 ) witnesses to the discovery under Section 27 of the Indian Evidence Act; and without taking indepen- dent witnesses and taking highly interested per- sons and the police officers as the witnesses to the discovery would render the discovery, at least, not free from doubt." 18. In this context, we may point out that there is no re- quirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure to obtain the signature of independent witnesses on the record in which the statement of an accused is written. The legal obligation to call Independent and respectable inhabitants of the locality to attend and witness the ex- ercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such a search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or another person, and signed by such wit- nesses. It must be remembered that a search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or some guesswork that it could possibly be ferreted out in such prowling. It is a stark reality that during searches, the team which conducts the search would have to meddle with lots of other articles and documents also, and in such a process, many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the lo- cality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But the recovery of an object pursuant to the in- formation supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference be- tween the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & Anr. v. S. Sardar Ali & Ors. 21 2025:HHC:27400 ) 1. Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: "Section 100 of the Criminal Procedure Code, to which reference was made by the counsel, deals with searches and not seizures. In the very nature of things, when the property is seized and not re- covered during a search, it is not possible to com- ply with the provisions of subsections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure (under the Motor Vehicles Act), there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself." 19. Hence, it is a fallacious impression that when recov- ery is effected pursuant to any statement made by the accused, the document prepared by the Investigating Officer contemporaneous with such recovery must nec- essarily be attested by independent witnesses. Of course, if any such statement leads to the recovery of any article, it is open to the Investigating Officer to take the signa- ture of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence un- reliable. The court has to consider the evidence of the In- vestigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. 20. We feel that it is an archaic notion that the actions of the police officer should be approached with initial dis- trust. We are aware that such a notion was lavishly en- tertained during the British period, and policemen also knew about it. Its hangover persisted during post-inde- pendent years, but it is time now to start placing at least initial trust in the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. 22 2025:HHC:27400 ) As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presump- tion and recognised even by the legislature. Hence, when a police officer gives evidence in court that a certain arti- cle was recovered by him on the strength of the state- ment made by the accused, it is open to the court to be- lieve the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-ex- amination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a partic- ular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other inde- pendent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not col- lect signatures of independent persons in the documents made contemporaneous with such actions.” 29. It was held in Praveen Kumar Versus State of Karnataka (2003) 12 SCC 199, that there is no requirement to associate independent witnesses at the time of the disclosure statement. It was observed: - “20. The learned counsel for the appellant, however, contended that the alleged statement, Ext. P-35 was made to PW 33, not in the presence of any independent witness; hence, the same should be rejected. He also contended that the said statement was made on 2-3- 1994, but the recovery was made only on 3-3-1994; therefore, the said recovery cannot be correlated to the statement, if any, made by the accused on 2-3-1994. He also challenged the fact of recovery, stating that the panch witnesses to the said recovery cannot be believed. 23 2025:HHC:27400 ) 21. Section 27 does not lay down that the statement made to a police officer should always be in the presence of independent witnesses. Normally, in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the courts seek corrobora- tion as a matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the court seek corroboration from an independent source, in such cases, while assessing the evidence of the police. But in cases where the court is satisfied that the evidence of the police can be independently relied upon, then in such cases, there is no prohibition in law that the same cannot be accepted without independent corroboration. In the instant case, nothing is brought on record to show why the evidence of PW 33 10 should be disbelieved in regard to the statement made by the accused as per Ext. P-35. Therefore, the argument that the statement of the appel- lant as per Ext. P-35 should be rejected because the same is not made in the presence of an independent witness has to be rejected.” 30. The Full Bench of the Hon’ble Rajasthan High Court has also considered this question in State of Rajasthan vs. Mangal Singh, AIR 2017 Raj. 68 and gave the following reasons for not insisting upon the presence of independent witnesses during the disclosure statements: 22. We are of the firm opinion that the insistence to keep attesting witnesses present when the Investigating Offi- cer records the information supplied by the accused un- der Section 27 of the Evidence Act is absolutely unwar- ranted and rather amounts to a direct infringement of the confidentiality of the investigation. There are strong reasons behind this conclusion. We summarise a few il- lustrations to fortify the same: (a) Investigation commences the moment an F.I.R. is registered for a cognizable offence. An Investigating 24 2025:HHC:27400 ) Officer, having custody of the accused, cannot pre- dict in advance the precise moment when the accused would decide to reveal the information, which could lead to the discovery of an incriminating fact. Thus, if attestation of the information by an independent witness is insisted upon, as a direct corollary thereto, the Investigating Officer would be required to keep the witnesses in attendance right from the moment the accused is arrested till the information is elicited. This would lead to an absolutely absurd situation and is likely to frustrate the investigation. The very sanc- tity of investigation and the privilege available to the Investigating Officer to keep the investigation se- cluded from prying eyes would be compromised. (b) Another possible situation may be that the ac- cused might divulge the information under Section 27 of the Evidence Act to the Investigating Officer at a particular point in time when independent witnesses are not available. For adhering to the procedure of seeking attestation by independent witnesses, the Investigating Officer would then be required to sum- mon independent witnesses and request the accused to repeat the information in their presence. At this point in time, the accused may either refuse to di- vulge the information given earlier or may oblige the Investigating Officer with the information, which would then be taken down in writing in the presence of the independent attesting witnesses. However, there is a fundamental glitch in adopting this proce- dure, which would certainly make the information, if any, received the second time around in the presence of the witnesses, inadmissible in evidence. Law is well settled by a catena of decisions of the Hon'ble Supreme Court, including the judgment in the case of Aher Raja Khima v. The State of Saurashtra, reported in AIR 1956 SC 217, that information of a fact already known to the Investigating Officer is inadmissible in evidence. Thus, in case the Investigating Officer, while making an investigation of the accused in his custody, is provided information under Section 27 of 25 2025:HHC:27400 ) the Evidence Act and soon thereafter, calls the Pan- chas and records the same in their presence, then he would be recording the memorandum of information already known to him. Such information would be inadmissible at the outset, and thus, the entire en- deavour would become nothing short of an exercise in futility. (c) There is yet another risk involved, which could severely prejudice the accused if the information provided by the accused under Section 27 is recorded in the presence of independent witnesses. The infor- mation under Section 27 of the Evidence Act often comprises two parts: one being confessional, which has to be excluded, and the other, which leads to the discovery of an incriminating fact and is admissible in evidence to the extent of the discovery made in pursuance thereof. In case independent witnesses are kept present when the information is given by the accused, the prosecution may make an endeavour to prove even the confessional part of the information as being an extrajudicial confession made in the presence of independent witnesses. There may even arise a situation where the independent witness present to attest to the memorandum prepared under Section 27 of the Evidence Act is a Magistrate. In such a case, the confessional part of the information un- der Section 27 of the Evidence Act would almost as- sume the character of a confession under Section 26 of the Evidence Act, thereby condemning the accused to face severe consequences. There is a high proba- bility of this situation arising in cases involving the recovery of narcotics where the Investigating Officer gives an option to the accused that be searched in the presence of a Magistrate or a Gazetted Officer. Con- templating that option to be searched in the presence of a Magistrate is given, and a search of the accused is conducted, and during the process, he is also ques- tioned in the presence of the Magistrate. At this time, the accused may provide information under Section 27 of the Evidence Act to the Investigating Officer, 26 2025:HHC:27400 ) which is partly confessional in nature and is taken down in writing and witnessed by the Magistrate by adhering to the requirement of attestation. In such a situation, the accused would be faced with severe consequences because the prosecution would then, by lifting the prohibition contained in Section 26 of the Evidence Act, insist to prove the whole of the in- formation as amounting to a confession made in the presence of a Magistrate. Thus, the requirement seeking attestation of the memorandum prepared under Section 27 of the Evidence Act does not have any logic or rationale behind it.” 31. Therefore, the disclosure statement cannot be discarded on the ground that independent witnesses were not associated. 32. It was submitted that the recovery was effected from an open place which was accessible to all, and the recovery cannot be relied upon. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in State of H.P. v. Jeet Singh, (1999) 4 SCC 370: 1999 SCC (Cri) 539: 1999 SCC OnLine SC 282 that an article may be concealed in a place which is open and accessible to all. The question is not whether the article was recovered from an open and accessible place, but whether it was visible to others or not. It was observed at page 378: “26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is “open or accessible to others”. It is a fallacious notion that when recovery of any 27 2025:HHC:27400 ) incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying in public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such an article is disinterred, its hidden state will remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others. 27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered, but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it (Pulukuri Kottaya [Pulukuri Kottaya v. Emperor, AIR 1947 PC 67: 74 IA 65]). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra [(1969) 2 SCC 872], K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788], Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330: 1983 SCC (Cri) 447], Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430: 1995 SCC (Cri) 753], State of Rajasthan v. Bhup Singh [(1997) 10 SCC 675: 1997 SCC (Cri) 1032].) 33. It was laid down by the Hon’ble Supreme Court in Limbaji v. State of Maharashtra, (2001) 10 SCC 340: 2001 SCC OnLine SC 1460 that merely because the recovery was effected from an open place is not sufficient to discard the recovery and the statement that accused had hidden the articles could be 28 2025:HHC:27400 ) relied upon to show the possession of the accused. It was observed: “IV(b). [14] We are left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of the accused under Section 27 of the Evidence Act, if the discoveries are to be believed, which ought to be. The next two questions are whether the accused shall be deemed to be in possession of the articles concealed at various spots and whether such possession could be said to be recent possession. But for the decision of this Court in Trimbak v. State of M.P. [AIR 1954 SC 39: 1954 Cri LJ 335], the first question need not have engaged our attention at all. That was a case in which, at the instance of the accused, the stolen property was recovered at a field belonging to a third party, and the accused gave no explanation about his knowledge of the place from which the ornaments were taken out. The High Court, while absolving the appellant of the charge of dacoity, convicted him under Section 411 IPC for receiving the stolen property by applying the presumption that he must have kept the ornaments at that place. On appeal by the accused, this Court took the view that there was no valid reason for convicting the appellant under Section 411 IPC. The Court pointed out that one of the ingredients of Section 411, namely, that the stolen property was in the possession of the accused, was not satisfied. The Court observed thus: (AIR p. 40, para 6) “6. When the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts, and that being so, the fact of discovery cannot be regarded as conclusive proof 29 2025:HHC:27400 ) that the accused was in possession of these articles.” If this view is accepted, there is the danger of seasoned criminals, who choose to keep the stolen property away from their places of residence or premises, escaping from the clutches of presumption, whereas the less resourceful accused who choose to keep the stolen property within their house or premises would be subjected to the rigour of presumption. The purpose and efficacy of the presumption under Section 114(a) will be practically lost in such an event. We are, however, relieved of the need to invite the decision of a larger Bench on this issue in view of the confessional statement of the accused that they had hidden the articles at particular places and the accused acting further and leading the investigating officer and the panchas to the spots where they were concealed. The memoranda of Panchnama evidencing such statements are Exhibits 26, 28 and 30. If such a statement of the accused, insofar as the part played by him in concealing the articles at the specified spots is admissible under Section 27 of the Evidence Act, there can be no doubt that the factum of possession of the articles by the accused stands established. We have the authority of the three-judge Bench decision of this Court in K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788: (1963) 1 Cri LJ 8] to hold that the statement relating to concealment is also admissible in evidence by virtue of Section 27. In that case, the question was formulated by Wanchoo, J., speaking for the Court, as follows: (AIR p. 1792, para 9) “9. Let us then turn to the question whether the statement of the appellant to the effect that ‘he had hidden them (the ornaments)’ and ‘would point out the place’ where they were is wholly admissible in evidence under Section 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments.” After referring to the well-known case of Pulukuri 30 2025:HHC:27400 ) Kottaya v. Emperor [AIR 1947 PC 67: 74 IA 65], the question was answered as follows: (AIR p. 1793, para 10) “10. If we may respectfully say so, this case clearly brings out what part of the statement is admissible under Section 27. It is only that part which distinctly relates to the discovery which is admissible, but if any part of the statement distinctly relates to the discovery, it will be admissible wholly, and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of a confession or not. Now, the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge had held that part of this statement, which is to the effect ‘where he had hidden them’, is not admissible. It is clear that if that part of the statement is excised, the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement, in our opinion, relates distinctly to the discovery of ornaments and is admissible under Section 27 of the Indian Evidence Act. The words ‘where he had hidden them’ are not on par with the words ‘with which I stabbed the deceased’ in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is, however, urged that in a case where the offence consists of possession, even the words ‘where he had hidden them’ would be inadmissible as they would amount to an admission by the accused that he was in possession. There are, in our opinion, two answers 31 2025:HHC:27400 ) to this argument. In the first place, Section 27 itself says that where the statement distinctly relates to the discovery, it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves *though they may show possession of the appellant would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are therefore of the opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence, and the Sessions Judge was wrong in ruling out part of it.” *(emphasis supplied) In the light of this decision, we must hold that the accused must be deemed to be in exclusive possession of the articles concealed under the earth, though the spots at which they were concealed may be accessible to the public. It may be mentioned that in the Trimbak case [AIR 1954 SC 39: 1954 Cri LJ 335], this Court did not refer to the confessional statement, if any, made by the accused falling within the purview of Section 27 and the effect thereof on the aspect of possession. 34. This position was reiterated in Ibrahim Musa Chauhan v. State of Maharashtra, 2013 SCC OnLine SC 254, wherein it was observed: “15. In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370, this court dealt with the issue of recovery from a public place and held: “21. The conduct of the accused has some rele- vance in the analysis of the whole circumstances against him. PW 3 Santosh Singh, a member of the 32 2025:HHC:27400 ) Panchayat hailing from the same ward, said in his evidence that he reached Jeet Singh's house at 6.15 a.m. on hearing the news of that tragedy and then accused Jeet Singh told him that Sudarshana com- plained of pain in the liver during the early morn- ing hours. But when the accused was questioned by the trial court under Section 313 of the Code of Criminal Procedure, he denied having said so to PW 3 and further said, for the first time, that he and Sudarshana did not sleep in the same room, but they slept in two different rooms. Such conduct on the part of the accused was taken into account by the Sessions Court in evaluating the incriminat- ing circumstance spoken to by PW 10 that they were in the same room on the fateful night. We, too, give accord to the aforesaid approach made by the trial court.” 16. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622, this Court held: “22. In the present case, the grinding stone was found in tall grass. The pants and underwear were buried. They were out of the visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had re- mained unhampered. The respondent alone knew where they were until he disclosed it. Thus, we see no substance in this submission, also.” 17. In view of the above, it cannot be accepted that a re- covery made from an open space or a public place which was accessible to everyone should not be taken into consideration for any reason. The reasoning behind it is that it will be the accused alone who will know the place where a thing is hidden. The other persons who had ac- cess to the place would not be aware of the fact that an accused, after the commission of an offence, had con- cealed contraband material beneath the earth or in the garbage.” 33 2025:HHC:27400 ) 35. Similarly, it was held in Perumal Raja v. State, 2024 SCC OnLine SC 12, that if the accused does not tell the Criminal Court that his knowledge of the concealment was based on the possibilities that absolve him, an inference can be drawn that the accused had concealed those articles. It was observed: “32. In State of Maharashtra v. Suresh (2000) 1 SCC 471, this Court, in the facts therein, held that recovery of a dead body, which was from the place pointed out by the accused, was a formidable incriminating circumstance. This would, the Court held, reveal that the dead body was concealed by the accused unless there is material and evidence to show that somebody else had concealed it, and this fact came to the knowledge of the accused either because he had seen that person concealing the dead body or was told by someone else that the dead body was concealed at the said location. Here, if the accused declines and does not tell the criminal court that his knowledge of the concealment was on the basis of the possibilities that absolve him, the court can presume that the dead body (or physical object, as the case may be) was concealed by the accused himself. This is because the person who can offer the explanation as to how he came to know of such concealment is the accused. If the accused chooses to refrain from telling the court as to how else he came to know of it, the presumption is that the concealment was by the accused himself. 33. The aforesaid view has been followed subsequently and reiterated in Harivadan Babubhai Patel v. State of Gujarat (2013) 7 SCC 45, Vasanta Sampat Dupare v. State of Maharashtra (2015) 1 SCC 253, State of Maharashtra v. Damu S/o Gopinath Shinde (2000) 6 SCC 269, and Rumi Bora Dutta v. State of Assam (2013) 7 SCC 417.” 34 2025:HHC:27400 ) 36. It was specifically mentioned in the FIR that the silver anklet was missing. The accused produced a pair of silver anklets, which were identified by the informant as his own. There is nothing in his cross-examination that suggests his identification is incorrect. Therefore, the silver anklet is proven to be stolen property. 37. The informant categorically stated that his cylinder was also stolen. The accused got recovered a gas cylinder. The informant identified the gas cylinder, and there is nothing to doubt the informant’s identification. It was submitted that the gas distribution book was not produced to show that the cylinder was issued in the name of the informant. This submission will not help the accused. The gas distribution book would have been required if the statement of the informant was found to be untrustworthy, but there is nothing in the informant’s statement to discredit it. The place was seen by Jeet Singh, and the cylinder was found missing. Therefore, there is sufficient material on record to show that the cylinder was stolen. The identity of the cylinder was not challenged in the cross-examination. Therefore, the identification made by the informant cannot be doubted. The theft is committed against 35 2025:HHC:27400 ) the possession and not against the ownership. Therefore, it was not necessary to prove the ownership of the gas cylinder. 38. It was submitted that the informant stated that the gold nose pin was stolen, whereas the recovery of the silver nose pin was effected. Therefore, the nose pin is not proven to be the stolen property. This has to be accepted as correct. The FIR specifically mentioned that the gold nose pin was stolen, and the recovery of the silver nose pin does not make it stolen property. However, this fact will not make the prosecution’s case suspect because other articles are proven to have been stolen and recovered at the instance of the accused. 39. The recovery of the stolen articles immediately after the theft will lead to a presumption that the accused had committed the theft. Section 114 Illustrations (a) provides that a person found in possession of the stolen goods soon after the theft is presumed to be a thief or the receiver of the stolen property. It was laid down by the Hon’ble Supreme Court in Dakkata Balaram Reddy v. State of A.P., (2023) 19 SCC 461: 2023 SCC OnLine SC 474 that where the accused was found in possession of the stolen goods, a presumption would arise under Section 114 of the Indian Evidence Act and the burden to 36 2025:HHC:27400 ) rebut the presumption is upon the accused. It was observed at page 471: “27. In this regard, it may also be noted that A-2 was found in possession of a bag carrying some of the stolen ornaments and, therefore, such possession itself speaks against him, in terms of Section 114(a) of the Evidence Act, 1872. Being a fact especially within his knowledge, it was for A-2 to explain how he came to be in possession of those stolen ornaments, under Section 106 of the Evidence Act, 1872. However, no explanation was offered by him. As regards A-1, it is the prosecution's case that he confessed to the commission of the crime and upon being questioned as to the stolen gold ornaments, he went into the other room in his house and brought out a bag containing the gold ornaments. This part of his confession would, therefore, be admissible under Section 27 of the Evidence Act, 1872, as it led to the recovery of the stolen gold ornaments.” 40. Therefore, learned Courts below were justified in holding that the accused had committed the theft. This was a reasonable inference which would be drawn, and no interference is required for it. 41. The learned Appellate Court has already reduced the sentence of imprisonment to six months and has taken a lenient view. No further interference is required with the sentence. 42. No other point was urged. 43. In view of the above, the present revision petition fails, and the same is dismissed. 37 2025:HHC:27400 ) 44. Records of the learned Courts below be sent back forthwith, along with a copy of this judgment. (Rakesh Kainthla) Judge 13 August 2025. (yogesh)