S.S. Sharma, J. (On difference of opinion between N.C. Dwivedi and C.P. Singh JJ.)
1. Respondent Chandansingh was tried for an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 for being unlawfully in possession of some Railway property. The trial Magistrate convicted the respondent for that offence and sentenced him to a fine of Rs. 300/- in default rigorous imprisonment for three months. Respondent preferred an appeal against his conviction and sentence. Fifth Additional Sessions Judge. Jabalpur, in Criminal Appeal No. 146 of 1971 by his judgment dated 9-8-1971 allowed the appeal and set aside the conviction and sentence awarded to him. Aggrieved by this, the State preferred the present appeal.
2. This appeal by the State was heard by a Division Bench. In view of the difference of opinion, in between the learned Judges constituting the Division Bench, this appeal has been placed before me.
3. The prosecution case rested against the respondent on two types of evidence. Firstly, the confession Ex. P-5, made by the respondent to Mr. R. Roy (P.W. 1) and secondly, the discovery of the stolen property on an information given by the respondent. The learned Judges have differed on the question of voluntariness of the confession Ex. P-5 as also on the question whether on the basis of the evidence regarding the discovery of seizure, the respondent could be taken to be the person in possession of the alleged stolen property.
4. There is no dispute on the question that Shri R. Roy (P.W. 1) who was a Sub-Inspector of the Railway Protection Force, is not a police officer (See Badri Vishal v. State of Madh Pra 1973 M.P. LJ 82 and Ranjitsingh v. State of Madh. Pra. 1973 MP LJ 663 : 1974 Cri LJ 719, Dwivedi, J., in his differing opinion has referred to various decisions of their lordships of the Supreme Court and came to the conclusion that such confessional statements do not come within the inhibition of Sections 24 and 25 of the Evidence Act and even if it is held that Section 24 of the Evidence Act is applicable, then they have to be considered in the light of the evidence adduced on the question whether inducement, threat or promise was made to the person concerned during the enquiry. In fact, there does not appear to be any difference on the question of admissibility of the confessional statement Ex. P-5 but the difference is only on the question of voluntariness of that statement. According to C.P. Singh, J., Mr. R. Roy (P.W. 1) being a prosecutor was a person in authority and the onus of proving that the confession was voluntary lay upon him. According to the learned Judge 'In the absence of the prosecution having proved that the accused-respondent had made a confession voluntarily before Mr R. Roy (P.W. 1) who had recorded it, it remains irrelevant and cannot be used against him. Moreover this extra judicial confession contained in the document in Ex. P-5 does not have the signatures of the witnesses before whom it is alleged to have been made.' The question whether the confession was as a result of some inducement, threat or promise is essentially a question of fact. their lordships of the Supreme Court in Ratan Gond v. State of Bihar : 1959CriLJ108 had examined a confession made by the accused before some witnesses who were Mukhia, Sarpanch and Panch of the Gram Panchayat. their lordships observed that 'We agree with Mr. Ayengar that having regard to the provisions of the Bihar Panchayat Raj Act (Bihar Act VIII of 1948) the aforesaid three persons can be said to be persons in authority within the meaning of Section 24. The question, however, is.-are there any circumstances which tend to show that the making of the confession appears to have been caused by any inducement, threat or promise, having reference to the charge against the appellant and proceeding from any one of the aforesaid three persons and sufficient in the opinion of the Court to give the appellant grounds which would appear to him to be reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. After examining the evidence, their lordships held the extra-judicial confession to be admissible. In Aher Raja Khima v. State of Saurashtra : 1956CriLJ426 their lordships have laid down that while the Court is considering the question whether the confession is voluntary or not, the question whether it is true or false does not arise.
5. In the instant case not a question was put to Mr. R. Roy (P.W. 1) to show or suggest that the confession Ex. P-5 was involuntary or was the result of any threat or inducement. Even in his examination under Section 342 Cr.P.C. when this Ex. P-5 was put to him, he merely denied to have given that statement. Nowhere during the trial did he make any challenge to Ex. P-5 being involuntary or suffering from any other defect so far as to be irrelevant. Even in the memo of appeal before the Court of Session no ground challenging the voluntariness of the statement Ex. P-5 Was raised.
6. Mr. R. Roy (PW 1) in his evidence clearly stated that the accused gave the statement Ex. P-5 to him. He even gave out that statement which the respondent had given to him. Mr. R. Roy further stated that the statement was read over to the respondent and he accepted it to be correct and thereafter signed it. By this evidence and there being no challenge to this in the cross-examination, the conclusion is irresistible that the statement Ex. P-5 was voluntary and without any threat or inducement. The burden, if any, on the prosecution stands fully discharged in view of the Circumstances as they exist. In my opinion, therefore, the statement Ex. P-5 cannot be rejected as being involuntary and is relevant and admissible in evidence.
7. The articles which have been seized are admittedly the Railway properties. These articles were recovered from a Railway ground which according to the prosecution were buried underneath. According to the prosecution evidence, respondent had given an information to Mr. Roy (P. W. 1) about his having buried these articles which he would get discovered. Ex. P-2 is the memo in which that statement was recorded. Saukatali (PW 3) and Santoshsingh who also has been wrongly numbered as P. W. 3 are the witnesses in whose presence this statement Ex. P-2 was allegedly given. They also are the witnesses for the seizure memo Ex. P-3 of those articles. Of these witnesses Santoshsingh did not fully support the prosecution and so questions in the nature of cross-examination were put to him by the prosecutor.
8. C.P. Singh, J., is of the opinion that 'the statement of the accused, therefore, confessional as it is in nature, without first proving that it was voluntary cannot be used to establish the connection of the accused with the two articles. In other words it was necessary in these circumstances for the prosecution to prove independently that it was the accused who had concealed the articles at the place from where they were dug out later on'. He further observed that the two articles being small in size could have easily been concealed elsewhere not accessible like a Sports ground to the public at large. Learned Judge also considered that in absence of a ready market for these articles, the respondent had no use for them and were mere scraps. He has relied on the evidence of Santoshsingh (P. W. 3) in preference to that of Shaukatali as the presence of the latter was doubtful. Thus the recovery was held to be not at the instance of the respondent.
9. Dwivedi, J., after referring to the evidence of Mr. R. Roy (P. W. 1), Shoukatali and Santosh Singh found that Santoshsingh was suppressing the truth and his evidence cannot be used to throw doubt on the testimonies of Mr. R. Roy (P. W. 1) and Saukatali (P. W. 3). He also considered the defence evidence. The conclusion of the learned Judge is that the two articles were discovered at the instance of the respondent from a place which is not open or accessible to all persons. The respondent has been found to be the author of concealment.
10. I have been taken through the evidence of witnesses. The theft of the two articles took place on 17-6-1970. It was on 18-6-1970 that the respondent gave a statement incorporated in Ex. P-2 to the effect that he after committing the theft of those articles buried them in the Railway ground near the wall which he would get discovered. The evidence of Mr. Roy and Saukatali fully proves that the respondent did give such a statement. The evidence of Santoshsingh also supports the fact of the respondent having given such statements to Mr. R. Roy. Both according to Mr. R. Roy and Shaukatali, it was the respondent who led them to a spot in the Railway ground and from near the wall dug out those articles and handed them over to Mr. Roy. The memo in this behalf Ex. P-3 and the consequent seizure Ex. P-4 has been proved by them. Now the version of Santoshsingh with regard to this recovery and seizure is that after reaching the ground a Sainik came there and handed over some articles to respondent. Thereafter, they all returned back. This Santoshsingh, in the question, put to him by the prosecutor, admitted his signatures on Ex. P-2, Ex. P-3 and Ex. P-4. He also admitted that he was an educated person. From his evidence it is clear that his version about some Sainik having handed over these articles to the respondent is an utter he. This was not even the version of the respondent. In his examination under Section 342 Cr.P.C. no such suggestions appear to have been made even to Mr. R. Roy (P. W. 1) Shaukatali (P. W. 3) in their respective cross-examination. I am, therefore, of the view that from the evidence of Mr. R. Roy (P. W. X) and Shaukatali (P. W. 3) it is abundantly proved beyond doubt that it was the respondent who gave the statement Ex. P-2 in consequence of which the respondent dug out the two articles in question which were buried underneath the earth and were thereafter seized.
10-A. These properties were recovered buried underneath the earth from near the wall of the Railway Sports ground. This is just behind the house of the respondent. It has also been abundantly made out from the evidence that these articles were buried about six inches underneath the earth. They could not be visible to anyone. Respondent may have his own reasons for not taking them away when they were taken out from the Railway Engine. There is nothing to show that the statement Ex. P-2 was in any manner involuntary or was obtained by any threat or inducement. In that statement respondent had clearly admitted that he committed the theft of those articles and had buried them in the ground. This gets further support from the discovery of those articles. The decision in Trimbak v. State of M. P. : AIR1954SC39 has rightly been distinguished by Dwivedi X, in view of the facts of present case. The evidence of the defence witnesses has also been rightly rejected by him and I have nothing to usefully add to those reasonings.
11. In view of what I have said above, in my opinion, this appeal by the State deserves to be allowed and the respondent should be convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. The sentence of fine of Rs. 300/- in default rigorous imprisonment for three months as was awarded to him by the trial Magistrate should be restored.