M.L. Jain, J.
1. Two persons Murari Lal and Inder Singh were challaned under Sections 365 and 392 I.P.C. Inder Singh absconded during trial. The appellant Murari Lal was convicted by the learned Addl. Sessions Judge on 16-4-1981 under Section 392 read with Section 397 I.P.C. By a separate order of the same date, he was sentenced to rigorous imprisonment for seven years. He was acquitted of the charge under Section 365 because there was no evidence to show that Murari Lal had an intention to kidnap Rakesh Kumar in order to secretly and wrongfully confine him.
2. Briefly, the case of the prosecution is that Jagdish Prasad Mittal complainant (PW 4) of Mittal Metal Corporation along with Rakesh Kumar Singhal (PW 9) went from his shop in Sadar Bazar to M/s Bhanwar Lal & Bros. Pataudi House, Darya Ganj, Delhi, in an Ambassador car DHG 852 driven by accused Inder Singh. Jagdish Prasad collected Rs. 50,000/- from the said firm and put them in two brown paper bundles. He handed over the bundles to Rakesh Kumar and asked the driver to carry him to his house. This occurred at about 12. 45 p m. on 20-8-1979. After sometime Jagdish Prasad checked at his house but found that Inder Singh and Rakesh Kumar had not reached. At about 3.20 p.m. he approached the Darya Ganj Police Station. His statement was recorded there in daily diary at No. 81-B (copy Ex. PW 19/A) which was forwarded to Jama Masjid Police Station as Pataudi House fell into their area. It was delivered there at 4.20 p.m. vide Ex. PW 17/A (DD No. 17 P.S. Jama Masjid). It was then marked for further action to Raja Ram S.I. (PW 17). Meanwhile, Jagdish Prasad received a message from Shanti Lal proprietor of M/s Bhanwar Lal & Bros, resident of Anand Lok, New Delhi, that his car DHG 852 was lying parked outside his house. The car was locked and its keys were placed on the front seat. There was no sign of struggle inside the car. The car was seized, vide Memo Ex. PW 3/A. Raja Ram (PW 17) recorded the statement of Jagdish Prasad Ex. PW 4/A at 7.30 p.m. and sent it to the Police Station where FIR Ex. PW 10/A was recorded. Rakesh Kumar (PW 9) lodged a report with the Police Station Chanakya Puri at 8.40 p.m, Ex. PW 9/A which bears the date 20/ 21-8-1979 at top of it, vide DD No. 18-A. In this report name of the driver is Kishan (not Inder Singh). On 23-8-1979, his statement was also recorded under Section 164 Cr. P.C. which has been put to Rakesh but not exhibited. The further case of the prosecution is that the driver took the car on to Rani Jhansi Road and stopped it at some place telling Rakesh that he was going to bring tyre tubes. He returned 3-4 minutes thereafter and started the car. As soon as he did so, the accused Murari Lal came and said that the repaired tyre was at his shop and occupied the front seat near the driver. The driver then drove the car to some lonely road. Murari Lal then jumped over to the back seat, whipped a knife, placed it at his waist and took the bundles of currency notes from him. Thereafter Rakesh Kumar and Murari Lal both came on the front seat. The driver then gave him two currency notes of Rs. 5/- each (Ex. P9 and Ex. P10) and dropped him at a road junction at Satya Marg. Murari Lal and the driver drove away with the car and the bundles. Rakesh Kumar went to Sadar Bazar, but he could not find the place of the complainant. He then came to Darya Ganj, but failed to locate the place where the bundles were given to him. He then made his way to Connaught Place, took up a bus and reached Greater Kailash to the place of Rajesh. Kumar Garg where his brother Mahinder (PW 2) was married. He narrated the incident to the mother-in-law of his brother. She telephoned and called her husband R K. Garg. He came and took him to Pahari Dhiraj and. Darya Ganj, but failed to verify anything. He then made the aforesaid report at police station Chanakya Puri, Ex. 9/A. In this report the police officer recorded that the whole story was suspect and needed verification. He dispatched Rakesh from the Police Station. But Raja Ram (PW 17) got at him. Rakesh produced before the Investigating Officer Raja Ram the two currency notes (Ex. P 9 and Ex. P 10) given to him by Inder Singh, vide memo Ex. PW 4/D of 2-8-1979.
3. On 26-8-1979, Investigation Officer Raja Ram (PW 17) got a secret information that Murari Lal was involved in the crime and was to come to the Paharganj bridge on that day. So, the Police along with Rakesh and Jagdish and other persons posted themselves at the Railway over-bridge, Paharganj and were successful in apprehending the accused Murari Lal at the pointing out made by Rakesh. Eight currency notes of Rs. 10/-each (Ex. PI to Ex. P8) were recovered from him, vide seizure memo Ex. PWl/B. Murari Lal made a disclosure statement Ex. PW4/G that money was kept by him with his relative Thakurdas at Govindpuri. He took the police party to the house of Thakurdas and at his asking Thakurdas (PW 3) produced the bag from which currency notes worth Rs. 16,125/- were recovered, vide memo Ex. PW 4/C. Meanwhile, Inder Singh appears to have gone to Agra and purchased a car No. USA 2597 from Muzaffar Khan (DW 13). He was arrested on 8-9-1979 and a sum of Rs. 8600/- was recovered in cash from him. The car USA 2597 was also seized. He also purchased a wrist watch, a cycle and some clothes.
4. The police after investigation challaned Inder Singh and Murari Lal. Inder Singh then absconded. Murari Lal was convicted as aforesaid. The defense suggested to the prosecution witnesses was that Jagdish Prasad and Rakesh Kumar had gambled and lost the money to him. There was no other way of quick recovery of the money except to concoct a false case of abduction and robbery. But in his statement under Section 313 Cr. P.C. the accused Murari Lal did not take up this defense. He simply denied the prosecution case as incorrect and led no evidence in defense.
5. Several infirmities and discrepancies in the prosecution story were pointed out by Mrs. Usha Kumar, the learned counsel for the appellant (legal aid) :
(1) Three Police Reports :
It was urged by her that the whole situation was quite confusing inasmuch as three reports in the police were lodged one (Ex. PW 19/A) at 3.20 p.m. at Darya Ganj Police Station, another (Ex PW10/A) at Jama Masjid at 7.30 p.m. on 20-8-1979 and the third (Ex. PW 9/A) at Chanakya Puri Police Station at 8.40 pm. either on 20-8-1979 or 21-8-1979. There is no reason why the report Ex. PW 19/A be not treated as FIR. And the subsequent reports are inadmissible under Section 162 Gr. P.G. Yet, they can be used for showing the conduct of the prosecution witnesses Jagdish and Rakesh under Section 8 of the Indian Evidence Act. The versions contained in the three reports do not tally.
(2) Employment of Rakesh :
It was the case of Rakesh Kumar (PW 9) that Nipil Kumar Goel (PW 1) had brought him to the house of Mamchand, brother of Jagdish at about 19.15 a.m. op 20-8-1979 by train from their village in U.P. Jagdish Prasad immediately offered him a job but Rakesh Kumar wanted time as he was not prepared for this sudden offer but Jagdish Prasad did not listen to his protestation and immediately kept him and carried him in the manner aforesaid, vide Ex. PW 9/A. In his deposition in the court he said that he had not been employed by Jagdish Prasad before he was taken to Darya Ganj. Jagdish Prasad (PW 4) did not say in the examination-in-chief that Rakesh was employed by him. It was in cross-examination that he said that Rakesh had come for employment but the terms of salary had not yet settled. Thus the very story of service of Rakesh is suspicious.
(3) Was Rakesh new to Delhi :
It was pointed out that the case of the prosecution is that Rakesh Kumar was new to Delhi, but the same was not stated in the daily diary (Ex. PW 4/A, because he was not. He came in the Barat of his brother to Delhi and his subsequent journeys from Satya Marg to Pahari Dhiraj, Darya Ganj, Connaught Place and Greater Kailash belie that he was new to Delhi. It was pointed out that he was Science Graduate aged about 20 years. Thus, the air of innocence projected by or for him is without basis.
(4) Relationship :
In Ex. PW 19/A it is mentioned that Rakesh Kumar was the son of the maternal uncle of Jagdish Prasad. This relationship was omitted from the FIR lodged at Jama Masjid. As per the Chanakya Puri report he was introduced by Nipil Kumar to Jagdish Prasad but no relationship was mentioned by him. Later on in his examination in the court Jagdish Prasad (PW 4) stated that he knew Rakesh because he was like a son of his maternal uncle. There being no relationship and no previous acquaintance, it is not possible to believe that he will be employed immediately and also taken along on an important mission.
(5) Car and driver :
Though the impression created is that the car belonged to the corn plainant yet in cross-examination he said that the car was not registered in his name. It is in the name of Jethanand of Janak Manufacturing Co. He has not said how he got it, but Jethanand (PW 8) said that he had given his car for use to Jagdish in 1979. According to Ex. PW 9/A, the driver was Kishan. However, according to Jagdish Prasad, his name was Inder Singh. He was a tempo driver and was employed only a month before the occurrence. He was not his registered employee but was paid out of business funds.
(6) Rs. 50,000-/:
In Ex. PW 4/A, Jagdish Prasad has stated that he had come to Darya Ganj from Sadar Bazar to take payment. In his deposition, he said that he realised a sum of Rs. 50,000/-. No man of Bhanwar Lal & Bros, was produced, but two persons of Choudhri Metal Industries Ltd. a sister concern, both owned by S.M. Choudhri came, Chander Mohan (PW 11) prepared the ledger Ex. PW 5/c, Cash Register Ex. PW 5/B and the voucher Ex. PW 5/A were prepared by R.K. Varma (PW 5) of Bhanwar Lal & Bros. They show the amount as loan but the ledger Ex. PW 5/C does not. No agreement or pronote was executed and Jagdish Prasad has not said that the money was borrowed by him, nor was the receipt proved by him. The receipt which is said to have, been signed by Jagdish Prasad does not contain the amount. A bare look of the ledger reveals that from January to August, 1979 two purchases of some goods were made by Jagdish Prasad from Bhanwar Lal & Bros. He made payments against them. The last is the debit entry or Rs. 50,000/- in question. This does not at all indicate that there had been very many transactions between the parties so as to generate so much of confidence as a huge amount would be advanced without any instrument capable of enforceable in a court of iaw. The learned counsel for the accused, thereforee, urged that the manner of giving and taking shows that the whole theory of collecting the amount from Darya Ganj is nothing but false and has been subsequently invented.
(7) Handing over of money to Rakesh :
Jagdish Prasad (PW 4) deposed that he handed over the amount to Rakesh and told Inder that he be safely conveyed to house. He has been given Rs. 50,000/- in the paper bags. He and driver left at 1.45p.m. but In the Darya Ganj report, it was stated that they left at 12.45 p.m. and he checked from his house at 1.45p.m. Rakesh (PW 9) deposed that he did not know what was contained in the bundles. Jagdish Prasad did not tell him that the bundles had currency notes. It is not in the natural course of conduct that such a huge sum could be entrusted to a driver who was engaged only a month before and to a person who was not known earlier and was not even employed and without telling him what he was carrying. The initial doubts which the Chanakya Puri Police Officer entertained do still persist.
(8) Where to carry :
In Darya Ganj report it was said that Rakesh Kumar was directed to carry the cash to office, while in the Jama Masjid report and the depositions it was stated that Rakesh Kumar was sent to the house. The office and the house are not in the same premises and are a distance apart. Why could the complainant be not certain even on this small but an important detail, questioned the learned counsel for the appellant. Obviously, the details are being changed to suit the situation and conceal something which is true.
(9) Recovery of car :
The learned counsel for the accused then stated that the prosecution commenced with the case that the car was recovered from outside the house of Shanti Lal but he was with held and there is no one to corroborate that the car was found in front of his house locked with keys inside. The memo of recovery of Ex. PW 3/A does not mention that the car was recovered from in front of the house of Shanti Lal, but instead it says that it was found parked on the open main road in Anand Lok. It was taken in possession along with a bunch of four keys kept in a purse like thing. It is not stated how the car was opened. Why these contradictions It cannot be just by chance that the car should be parked near the house of the man who had provided money. The story of recovery of car is as mysterious as its ownership.
(10) Place of occurrence and conduct of Rakesh :
The charge mentions Filmistan as the place of occurrence but Rakesh stop short of it and only said that the accused joined them on the Rani Jhansi Road. The conduct of Rakesh Kumar is assailed as quite unnatural because he did not care to shout when he was being taken in the car at the point of knife--noting that it was almost noon time in a busy area of Filmistan and he failed to raise an alarm when dropped at the place where even rikshaws are available. He had been to Darya Ganj once by himself and later along with R.K. Garg and instead of lodging the report at Darya Ganj Police Station, the report is managed to be lodged by him next day at Chanakya Puri Police Station.
(11) Identification of Murari Lal :
The police knew before hand that Murari Lal was involved in the occurrence. They arrested him at the pointing of Rakesh. But his evidence of pointing is inadmissible being hit by Section 162 Cr.P.C. In the absence of identification in a test parade, the identification in the court made by him is of little value.
(12) Disclosure statement and recovery :
The disclosure statement of Murari Lal Ex. PW 4/G is inadmissible unless it led to discovery. Rakesh says that prior to the arrest of the accused, he was taken to Govindpuri by the Police. Why? It seems that the police already knew where the money was lying and a fact already discovered cannot be discovered again. The statement, thereforee cannot be read against the accused. There is a difference also amongst the witnesses. Some say Thakurdas was there at his house when the police went there with Murari Lal while other say that he was called from neighborhood.
(13) Identification of the crime property :
Moreover, no identification of the notes was made. Kirpal Singh (PW 12) did state that he initialled the notes he gave to Jagdish Prasad. In the court he identified his initials on five bundles of Rs. 10/- each and two bundles of Rs. 20/- each, Ex. PW 12/6 andEx. PW 12/7. There is no no evidence that these bundles contained the same notes which were recovered from the house of Thakurdas.
(14) Knife :
The knife has not been recovered in this case and the evidence of Rakesh Kumar is not satisfactory with regard to the use of knife. There is only a suggestion of use of knife. No one knows the size of its blade and unless the size is known a knife cannot ordinarily be classified as a deadly weapon with in the meaning of Section 397 I.P.C.
(15) Withholding of witnesses :
The prosecution has withheld the material witnesses namely Shanti Lal and R.K. Garg. Inference should be drawn that if produced they would not hav supported the prosecution version. Reliance was placed upon Ram Ranjau Roy v. Emperor, : AIR1950Cal545 .
6. It was finally urged by Mrs. Kumar that the prosecution evidence is replete with material infirmities and discrepancies and, thereforee, stands thoroughly and totally discredited. The prosecution appears to rely heavily upon the disclosure statement (Ex. PW 4/G) and the recovery of the currency notes from the house of Thakurdas, but in pursuance of this statement no new fact was discovered which was not already known to the police. The recovery by itself cannot connect the accused with the crime. She relied upon Kedar Nath Chakravarty v. State, : AIR1959Cal280 , wherein it was held that the mere circumstances of a trunk which was proved to have been taken away in the robbery having been recovered as a result of what the accused has said to the police cannot connect the accused with any offence under Section 394 IPC.
7. She further urged that though the defense has led evidence to prove its case, but in view of the circumstances of the case and conduct of Rakesh Kumar and Jagdish Prasad, the defense that they lost money in gambling is not improbable but is rather plausible and there is no more burden on the defense than to show this much. The accused, thereforee, deserves to be acquitted. She attacked the disclosure statement and the recovery of currency notes as of no consequence or effect. She cited Jaffar Hussain Dastagir v. The State of Maharashtra, : 1970CriLJ1659 , to urge that where the accused had made a statement to the police that he knew where the stolen articles were and would lead them to the third person who had them, the discovery of the articles with the third accused would be admissible in evidence under Section 27 only if the police had no information about the complicity of the third accused with the crime. If an accused charged with a theft of articles states to the police 'I will show you the articles at the place where I have kept them' or 'I will show you the person to whom I have given the articles' and the articles are actually found at such place or with such person, there can be no doubt that the information given by him led to the discovery of a fact, i.e. keeping of the articles by the accused at the place or person mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place or with a particular person. In the instant case the police had visited the house of Thakurdas prior to the arrest of Murari Lal as stated by Rakesh and that shows that the police already knew of the fact that Thakurdas had got the stolen articles, otherwise there was no purpose--none has been shown --in the police visits prior to the disclosure statement. thereforee, there is no new discovery of any fact rendering the disclosure statements admissible within the meaning of Section 27 of the Evidence Act capable of providing corroboration to the statement of Rakesh or independent evidence for conviction. Thimma v. The State of Mysore, : 1971CriLJ1314 , has warned that the courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Evidence Act are not whittled down by the mere manipulation of the record of the case diary. It was further submitted that even if one were to hold that money was recovered at the instance of the appellant, it was not in itself a proof of the guilt of the accused but is only a corroborative piece of evidence. In view of the material discrepancies in the evidence of Rakesh Kumar, he is not at all worthy of credit and, thereforee, there remains nothing to which the discovery made under Section 27 of the Evidence Act can lend support. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has beed established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused : Kali Ram v. State of H.P. : 1974CriLJ1 . thereforee, a man cannot be convicted on the basis of suspicion or public belief or even the moral conviction of the Judge, but the guilt is solely required to be proved by evidence on record. In this case the discrepancies and infirmities do show that the occurrence has not been placed before the court in the manner it had occurred. There is considerable padding in the case. Every link in the chain of events is demonstrably improbable and doubtful. It cannot be said, thereforee, that the guilt has been brought home to the accused beyond any manner of reasonable doubt. The prosecution evidence does not inspire confidence and it is unsafe to convict a man on the basis of such type of evidence.
8. In the alternative, she submitted that in any case, it was not proved that the knife alleged to have been used for the commission of robbery was a deadly weapon. The accused, thereforee, cannot be sentenced under Section 397. He can be punished only under Section 392 I.P.C. The appellant has been in jail for over three years and four months by now and deserves at least to be released on the sentence already so suffered by him.
9. I have considered over the arguments. There is no doubt that the only important piece of evidence against the appellant is his statement under Section 27, Evidence Act. Section 27 of the Evidence Act, 1872 runs like this :
Section 27. How much of information received from accused may be proved: Provided 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.
In respect of this section, in para 10 of Kotayya v. Emperor AIR 1947 P.C. 67, the Privy Council laid down :
(1) Normally, this section is brought into operation when a person in police custody produces from some place of concealment some object such as a dead body, a weapon or ornaments said to be connected with the crime of which the informant is accused and about which the accused has given information.
(2) It is fallacious to treat the fact discovered within the section as equivalent to the object produced. The fact of discovery embraces (a) the object produced, (b) the place from which the object is produced, and (c) the knowledge of the accused in respect of both; and
(3) The information given should distinctly relate to the aforesaid fact.
It appears from the use of the word 'normally' by the Privy Council in Kotayya (supra) that it is not necessary that this section can be pressed into service only when some object is discovered because it mentions about the disclosure of any fact and not of any objects. It follows that this section can be brought into operation even where the accused does not or cannot himself produce the object. The words of Section 27 simply show that when evidence is led that any accused was in the custody of the police and has given information in consequence whereof some fact is discovered, then that portion of the information which relates distinctly to the fact thereby discovered can be proved. thereforee, what has to be seen is whether the discovery is in consequence of the information. There is nothing in Section 27 that only that disclosure shall be admissible which is made at the instance (pointing) of the accused. It is just possible that the accused may give some information and the police officer thereafter may discover that object of which he had no previous knowledge, then though there has been no pointing by the accused, yet it shall be said that the disclosure took place in consequence of the information given by the accused; see Narain Pillai v. State of Kerala 1968 Cri. L.J. 1362, and Jujhar Singh v. State of Rajasthan 1976 W.L.N. 288, where the stolen article is discovered at the instance of the accused, then it can be read in evidence against him. There is no doubt that here there is evidence to the effect that the police had visited the place of Thakurdass, but it docs not mean that they knew that some money was lying in some bag placed with him by the appellant. They came to know of this fact only when they arrested the appellant. thereforee, it cannot be said that the police already knew where the money was lying. One has, thereforee, to conclude that the money was discovered following the disclosure statement of the accused. I am in agreement with the counsel for the State that in spite of the valiant effort made by the learned counsel for the appellant to demolish it, the hard core of the case remains intact that money was recovered at the instance of the accused. The accused does not claim the money nor docs Thakurdass. The money was taken away by the driver along with Murari Lal and shared by them. Out of the money the driver Inder Singh purchased a car and spent money in various other ways. Some remained unspent. That shows that he and Rakesh were entrusted with the money claimed by the complainant and it has been taken away in the manner alleged by the prosecution. I, thereforee, cannot accept the contention that the accused deserves to be acquitted. However, I am in agreement with the learned counsel for the appellant that the case of the appellant does not fall within Section 397 so as to attract the maximum penalty.
10. Accordingly, I partly accept this appeal and direct that the petitioner shall be guilty Only of Section 392 I.P.C. and his sentence shall be reduced to what he has already undergone. The appellant shall be released forthwith if not wanted in any other case. The directions regarding disposal of the case property shall be maintained.