Chattisgarh High Court
Raj Kumar And Ors vs State Of Chhattisgarh on 25 April, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
2026:CGHC:19183
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 216 of 2005
Judgment Reserved on : 02.04.2026
Judgment Delivered on : 25.04.2026
1. Raj Kumar S/o. Sahak Ram, Aged about 31 years, R/o Village -
Telaidhar, District Koria (C.G.)
2. Bali Singh S/o Nepal Singh, Aged about 20 years, Occupation -
Farmer, R/o Dumapani, P.S. Baikunthpur, District - Koria (C.G.)
3. Gulab Singh S/o Pran Singh, Aged about 20 years, Occupation -
Farmer, R/o Dumapani, P.S. Baikunthpur, District - Koria (C.G.)
4. Agar Sai (dead) S/o Phul Sai, Aged about 26 years, Occupation -
Farmer, R/o Village - Indarpur, P.S. Khadgavan, District - Koria (C.G.)
5. Bhaiyalal (dead) S/o Rajwar, Aged about 35 years, Occupation -
Farmer, R/o Village - Indarpur, P.S. Khadgavan, District - Koria (C.G.)
--- Appellant(s)
versus
The State of Chhattisgarh, Through Police Station Patna, District
Koriya (C.G.)
--- Respondent(s)
CRA No. 427 of 2005
1. Danfer Singh S/o Naharsai Singh, Aged about 20 years, Occupation
– Agriculture, R/o village Indrapur, P.S. – Khadgawan, District – Korea
(C.G.)
2. Hira Singh S/o Naharsai Singh, Aged about 20 years, Occupation –
Agriculture, R/o village Indrapur, P.S. – Khadgawan, District – Korea
(C.G.)
— Appellant(s)
Versus
The State of Chhattisgarh
Digitally
signed by
MANISH
MANISH YADAV
YADAV Date:
2026.04.25
15:23:00
+0530
2
— Respondent(s)
For Appellant(s) : Mr. Mahendra Dubey, Advocate
For Respondent/ : Mr. Krishna Gopal Yadav, Dy. Government
State Advocate and Mr. Manish Kashyap, Panel LawyerHon’ble Shri Justice Narendra Kumar Vyas
CAV Judgment
1. Since both the appeals arise out of the same crime number and by
common judgment, the appellants have been convicted by the
learned Additional Sessions Judge Baikunthpur, therefore, they are
heard analogously and are being disposed of by this common
judgment.
2. During the pendency of the appeals, the appellant No. 4 Agar Sai
and appellant No. 5 Bhaiyalal in CRA No. 216/2005 have expired,
therefore, CRA No. 216/2005 to the extent of the appellant No. 4 and
5 stands abated.
3. The appellants have filed these criminal appeals under Section
374(2) of the Criminal Procedure Code against judgment of
conviction and order of sentence dated 07.01.2005 passed by
learned Additional Sessions Judge, Baikunthpur, District Koria (C.G.)
in Sessions Trial No. 241/2004 whereby the appellants have been
convicted and sentenced in the following manner:-
Conviction Sentence
U/s 457 of I.P.C. : R.I. for 5 years
U/s 395 of I.P.C. : R.I. for 10 years with fine amount Rs. 5,000/-
in default of payment of fine amount R.I. for 1
year.
(Both jail sentences are directed to run concurrently).
4. The prosecution case, in brief, is that the complainant, Raghurairam
3
(P.W. 1) who is resident of village Thihai-para, Kasara works in the
office of District Education Officer, Baikunthpur lodged an FIR on
27.12.2003 before Police Station – Patna, District Koriya alleging that
on previous night i.e. 26.12.2003 at about 9 O’clock in the night after
taking meals he was sleeping in the room and about 3 O’clock in the
night, he heard the noise of the persons, saw 10 persons standing in
the courtyard and out of them some persons have entered into
different rooms of his house. The persons who have entered into the
rooms have assaulted complainant and his family members with
sticks and threatened him to show the valuable properties,
accordingly they have looted Rs. 20,000/-, some gold and silver
ornaments which were kept in the almirah. They have also looted Rs.
3,000/- which was kept in the box and snatched Rs. 3,000/- from the
pocket of pant of the complainant. It is also the case of the
prosecution that after robbery and dacoity they fled away from
courtyard. After reconciling the looted property, it was found that they
have looted Rs. 20,000/- cash, two silver chains, four sets of silver
anklet, waist band, one gold locket, gold nose ring, old radio, hawai
chappal, shoes and valuable materials valued at Rs. 38,500/-. On
the basis FIR an offence under Section 395 of IPC was registered
against the unknown persons and the accused were arrested on
06.01.2004, 17.01.2004 and 22.01.2004 respectively and remained
in jail during trial.
5. The prosecution after usual investigation has submitted charge-sheet
before the learned Chief Judicial Magistrate, Baikunthpur who has
committed the criminal case for trial before the learned Additional
Sessions Judge, Bikunthpur, which was registered as Sessions Trial
4
No. 241/2004.
6. The prosecution was set in motion by examining the witnesses and
placing on record the documents which were marked as Exhibit P/1
to Exhibit P/31 and examined 18 witnesses. The accused to prove
his innocence have exhibited documents namely Statement of
Umashankar (Ex. D/1), Arrest Memo of Agar Sai (Ex. D/2), Statement
of Suresh (Ex. D/3), Statement of Samudri Bai (Ex. D/4), Statement
of Dinesh (Ex. D/5) and Statement of Raghurai (Ex. D/6) and were
examined under Section 313 of Cr.P.C before the trial Court.
7. Learned trial Court on the basis of evidence, material on record has
convicted the appellants for commission of offence under Sections
457 and 395 of I.P.C. and awarded sentence as detailed above.
Being aggrieved with the order of conviction the appellants preferred
both these appeals.
8. Learned counsel for the appellants while criticizing the order of
sentence passed by the learned trial Court would pray for setting
aside the conviction on the following submissions:
(a) He would submit that the judgment is based on surmises and
conjectures without appreciation of evidence, material on record
and would further submit that for conviction of accused involved
in the commission of dacoity and robbery the Test Identification
Parade (T.I.P.) should be conducted by the prosecution by
providing necessary safeguards while conducting the T.I.P.. In
the present case the T.I.P. has not meticulously followed the
safeguard, as such T.I.P. is void ab initio and on the basis of this
tented T.I.P., conviction of the appellants is unsustainable.
(b) It has been further submitted that the T.I.P. was held three
5months later from the date of incident, as such, it does not have
any evidentiary value as the incident took place in darkness,
during the short period in darkness it is not expected that the
witnesses who were frightened could have remembered the
features of the accused after three months, as such, the alleged
identification of the accused persons is absolutely unreliable.
(c) He would further submit that the identification of the accused in
the Court itself doubtful. It has also been contended that the
seized material concerned in the Dacoity could be taken into
account, but in this case no seizer was made on the spot as per
the prosecution witnesses itself, thus, the seizure does not
sufficient to convict the accused.
(d) He would further submit that the learned trial Court erred in using
the inadmissible portion of memorandum of the accused
recorded U/s. 27 of the Indian Evidence Act, as such, on this
basis the conviction is bad-in-law. To substantiate his
submissions he referred to the judgments of the Hon’ble
Supreme Court in case of Satrughana @ Satrughana Parida
and Others vs. State of Orissa reported in 1995 Supp. (4) SCC
448, Prakash vs. State of Karnataka reported in 2014 (12) SCC
133, Gireesan Nair and Others vs. State of Kerala reported in
2023 (1) SCC 180, Alauddin and Others vs. State of Assam
and Another reported in 2024 (12) SCC 224, Raja Khan vs.
State of Chhattisgarh reported in 2025 (3) SCC 314, Tukesh
Singh and Others vs. State of Chhattisgarh reported in 2025
SCC Online SC 1110 and Nazim and Others vs. State of
Uttarakhand reported in 2025 SCC Online SC 2117.
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9. Per contra, learned counsel for the State opposing the submission
made by learned counsel for the appellants would submit that
learned trial Court has not committed any illegality in convicting the
appellants. He would further submit that even if the T.I.P. is held to be
illegal, the witnesses have identified the accused in the Court and
also give explanation for identification, as such, conviction of the
appellants for commission of offence under Sections 457 and 395 of
IPC is legal, justified and would pray for dismissal of the appeals.
10. I have heard learned counsel for the parties and perused the record
of the trial Court with utmost circumspection.
11. From the submissions made by the parties, the point emerged for
determination by this Court is whether the conviction of the
appellants under Sections 457 and 395 of IPC is legal, justified and
does not warrant interference by this Court.
12. To appreciate the point emerged for determination, it is expedient for
this Court to thread-baring analysis of evidence, material on record
lead by the prosecution as well as considering the provisions of law.
Section 395 of IPC provides punishment for dacoity and dacoity has
been defined in Section 391 of IPC which reads as under:-
“Section 391. Dacoity – When five or more persons conjointly
commit or attempt to commit a robbery, or where the whole
number of persons conjointly committing or attempting to
commit a robbery, and persons present and aiding such
commission or attempt, amount to five or more, every person
so committing, attempting or aiding, is said to commit “dacoity”.
Section 395. Punishment of dacoity – Whoever commits
dacoity shall be punished with 1[imprisonment for life], or with
rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.”
13. Section 9 of the Indian Evidence Act, 1872 (in short “Act of 1872”)
provides facts necessary to explain or introduce relevant facts which
7
establishes the identity of anything or whose identity is relevant.
Therefore, in a case of dacoity the identification of accused is
necessary for their conviction. Section 9 of the Act of 1872 reads as
under: –
“Section 9. Facts necessary to explain or introduce
relevant facts – Facts necessary to explain or introduce a fact
in issue or relevant fact, or which support or rebut an inference
suggested by a fact in issue or relevant fact, or which establish
the identity of any thing or person whose identity is relevant, or
fix the time or place at which any fact in issue or relevant fact
happened, or which show the relation of parties by whom any
such fact was transacted, are relevant in so far as they are
necessary for that purpose.”
On the above facts and legal position, this Court is now
examining the submission of the appellants with regard to
legality of the Test Identification parade:
14. Learned counsel for the appellants while criticizing the T.I.P.
conducted by the prosecution has contended that the T.I.P. was
conducted after three months of incident on 29.03.2004 vide Ex. –
P/5, without any explanation of such delay, as such identification of
the accused is doubtful, the parade has been conducted in presence
of the Police officer, therefore, it is illegal are being considered.
15. From perusal of the record, it is quite vivid that the incident took
place on 27.12.2003 in the mid night, F.I.R. was registered against
unknown persons and the accused namely Rajkumar Maravi, Bali
Singh, Gulab Singh, Hira Singh, Danfer Singh were arrested on
06.01.2004, Bhaiyalal was arrested on 17.01.2004 and Agar Sai was
arrested on 22.01.2004. T.I.P. for seized items was conducted on
27.03.2004 vide Ex. P/4 and T.I.P. of the accused were conducted on
29.03.2004 in presence of Dilesh Sahu (PW-10) who has identified
Hira Singh, Gulab Singh, Bhaiyalal, Rajkumar Ramashankar as the
8
accused entered into the house by carrying torch and they woke up
him. Similarly, Raghurai Ram Sahu (PW-1) has identified Bhaiyala,
Gulab Singh, Bali Singh as the accused came to his house and
demanded cigarette from him. The other witness Suresh Kumar
(PW-8) has identified accused namely Hira Singh, Rajkumar Maravi,
Gulab Singh, Bhaiyalal as he saw them sitting in the house.
Umashankar Sahu (PW-2) has identified Bhaiyalal as when he was
sleeping in the house he has assaulted him. From perusal of
Identification Proceeding (Ex. P/5), a certificate was also enclosed
wherein it has been stated that along with the accused three other
persons who are of same age and same face were included in the
identification parade. It has also been mentioned in the certificate
that before identification the accused were allowed to change their
places. The certificate also consists the certification that all the
accused and other prisoners who were included in the T.I.P. were
covered by the blanket except the face in the District Jail infront of
prayer hall of the jail.
16. J.R. Rathiya, Naib Tehsildar (PW-6) who has conducted the T.I.P.
has stated in the evidence that in the T.I.P., 35 persons were
included and reiterated the reasons assigned by the witness for
identifying these accused. This witness in the cross-examination has
stated that the Police persons were not present at the time of T.I.P.
and the Jailer was present and all the paper work was done by him.
He has also stated that identifying witness has not described the
accused. The witness in the cross-examination has admitted that
persons who have to identify the appellants has not gone with him
and they were present in the jail premises. The Jailer informed him
9
that the appellants are accused and similar to their physical
appearance have been taken into consideration. He has also
admitted that Raghurai Ram Sahu has not identified Rajkumar
Maravi and Hira Singh. He has denied that identifying persons have
been shown the accused before T.I.P.. The witness has also stated
that for conduction of T.I.P. he has been informed in writing on the
same day. The witness has also admitted that before identification,
no identification of accused was informed to Dilesh Sahu (PW-10)
and after identification of the accused, they have been removed from
the line and their names were asked by him. He has also stated that
at the time of identification by other persons, the line was rearranged
and they are free to stand any place.
17. Dilesh Sahu (PW-10) in the Court statement has identified Bali
Singh, Agar Sai, Danfer Singh and Gulab Singh and also stated that
he was having torch and with the torch he has identified them and in
other room the lamp was also burning. He has stated that accused
Danfer was having stick and he has given money to Gulab Singh.
The accused Agar Sai has brought hot oil to burn him. The accused
Agar Sai has shown the torch and they have carried the torch
possessed by the witness. The witness was cross-examined by the
defence wherein he has stated that he has seen the accused in the
Police Station after 15-20 days of incident and Identification parade
was conducted in the Jail and identification parade was conducted
after five months of identification proceeding in the Police Station. He
has also stated that the accused were not known to him before the
incident and he is not aware about the names. He has stated that no
Police persons were present at the time of Identification parade. The
10
witness in further cross-examination has stated that four persons
have entered into his room and out of which two persons remained
in the room for 5-7 minutes and two persons remained in the house
for half an hour.
18. Umashankar Sahu (PW-2) who is son-in-law of Raghurai Ram (PW-
1) has stated that 4-5 person have entered into his room and started
assaulting him by sticks causing injury in his head and thereafter,
they have looted Rs. 12 cash from his pocket, sleepers,
undergarments and gold ornaments, cash from his in-laws house.
The witness has stated that the identification proceeding was
conducted in Baikunthpur Jail and in Ex. P/5 he has put his
signature. The witness in the cross-examination has stated that
about 20-25 persons were present and Police persons were also
present. He has also stated that he is not aware whether
identification proceeding was written by the Police person and also
admitted that similar to accused Bhaiyalal no other persons was
there.
19. Raghurai Ram Sahu (PW-1) in his examination-in-chief has stated
that he knew accused Rajkumar before the incident and also
identified accused Bhaiyalal, Hira Singh as they were involved in the
commission of offence. He has also stated that he has identified the
looted material (Ex. P/3 and P/4). In the cross-examination he has
admitted that he has identified two persons, but in Ex. P/1 if it has
not been mentioned, then he cannot explain, but he has stated that
he has informed the Police regarding identification. In the cross-
examination, he has denied that he has seen the accused persons
and the looted material in the Police Station and also denied that he
11
has not identified the accused Rajkumar in the jail and Ex. P/5 if the
name of Rajkumar is not mentioned, then he cannot explain. He has
admitted in the cross-examination that the accused persons
remained in the house about 40 minutes, therefore, he has gathered
idea about the physical appearance of the accused. The witness in
his further cross-examination has stated that he identified Bali Singh
till today when the learned trial Court has asked him to identify then
he has identified Gulab Singh as Bali Singh.
20. Suresh Kumar (PW-8) (Test Identification witness) who has admitted
in the cross-examination that he has seen the accused, in the Police
Station and has not gone to jail to identify them. He again stated that
he has identified 3 accused in T.I.P. and has seen them in the Police
Station.
21. From the above evidence, now this Court has to examine that the
T.I.P. has been conducted in accordance with the law or not. It is well
settled position of law that while conducting the T.I.P., sufficient
precautions could have been taken to ensure that witnesses who are
to participate in T.I.P. do not have an opportunity to see the accused
before T.I.P. is conducted. In the present case, the witness Dilesh
Sahu (PW-10) in his cross-examination has admitted that he has
seen the accused in the Police Station after 15-20 days of incident
and Identification parade was conducted in the Jail and identification
parade was conducted after five months of identification proceeding
in the Police Station. Suresh Kumar (PW-8) has also admitted in the
cross-examination that he has seen the accused in the Police
Station and has not gone to Jail to identify them, as such, the T.I.P.
remains inconsequential as held by the Hon’ble Supreme Court in
12
case of Maya Kaur Baldevsingh Sardar vs. State of Maharashtra
reported in 2007 (12) SCC 654. Similarly, in case of Sk. Umar
Ahmed Shaikh vs. State of Maharashtra reported in 1998 (5) SCC
103 wherein the Hon’ble Supreme Court has held that when the
accused were already shown to the witness, their identification in the
Court by the witness is meaningless. Thus, it is quite vivid that before
conducting T.I.P. the witnesses have seen the accused, therefore,
the T.I.P. conducted by the prosecution deserves to be vitiated.
22. Similarly, the presence of Police persons as stated by Umashankar
Sahu (PW-2), the legality of T.I.P. in presence of Police officer
tantamounts to statement made to the Police Officer under Section
162 of Cr.P.C. as held by the Hon’ble Supreme Court in case of
Chunthuram vs. State of Chhattisgarh reported in 2020 (9) SCC
733. As such, T.I.P. falls within the Ban of Section 162 of Cr.P.C.,
therefore, T.I.P. is vitiated.
23. The Hon’ble Supreme Court in case of Gireesan Nair and Others
vs. State of Kerala reported in 2023 (1) SCC 180 and again in case
of Kattaveli vs. State of Tamilnadu reported in 2025 SCC Online
SC has examined the entire law on T.I.P. and has held in paragraph
38 as under:
“38. The investigating authorities conducted a test identification
parade – asking PW-5 to identify the Appellant- convict from a
long line of habitual offenders. He did so thrice. This has been
taken as another circumstance against the convict Appellant.
Before proceeding to the merits of this circumstance, let us
appreciate the law on this point.
38.1 No provision of law casts an obligation upon the
investigating authorities to conduct a test identification
parade. If it is conducted, the provision that governs is
Section 162, Cr.P.C. [See: Munshi Singh Gautam v. State of
M.P.28; Malkhansingh v. State of M.P.29; Visveswaran v.
State30; and Ashok Debbarma v. State of Tripura31.]
38.2 The onus to show that the T.I.P. has been conducted in
13accordance with law lies on the prosecution, and only after
this burden stands prima facie discharged, does the (2005)
9 SCC 631 (2003) 5 SCC 746 (2003) 6 SCC 73 (2014) 4
SCC 747 question of considering objections in this regard
arise. [See: Umesh Chandra v. State of Uttarakhand32.]
38.3 It is not a substantive piece of evidence. Its only
purpose is for the investigating authorities to analyse the
correctness, or lack thereof, of the direction in which they
are steering the investigation. [See: Hari Nath v. State of
U.P.33; and Iqbal v. State of U.P.34]
38.4 If the prosecution does not establish, by examination
of witnesses to the T.I.P., and the Magistrate entrusted
therewith, it cannot be said that it was conducted per law.
[See: Umesh Chandra (supra).]
38.5 There is no hard and fast rule about delay in
conducting T.I.P. being fatal to the case of the prosecution.
In certain cases, relatively small delay has been considered
fatal yet in others, a delay of as much as 40 days is not
fatal. [See: Raja v. State35.]
38.6 The prosecution must establish that prior to the test
identification parade being conducted, the witness had no
opportunity to see the accused. In other words, the accused
(2021) 17 SCC 616 (1988) 1 SCC 14 (2015) 6 SCC 623
(2020) 15 SCC 562 must be kept ‘baparda’. [See: Gireesan
Nair v. State of Kerala36; and Budhsen v. State of U.P.37.]
38.7 If the above has not been ensured, the evidence of the
T.I.P. becomes inadmissible. It has also been held that if,
prior to the T.I.P. the witness has the opportunity to see
even the photograph of the accused person, such process
becomes inconsequential. [See: Maya Kaur Baldevsingh
Sardar v. State of Maharashtra38; C. Muniappan v. State of
T.N.39; and Sk. Umar Ahmed Shaikh v. State of
Maharashtra40.]
38.8 Dock identification by the informant, even in the
absence of T.I.P., can be accepted, but generally, as a
matter of prudence, a witness’s identification of an accused
in Court is sought to be corroborated by the identification by
the former of the latter in previously conducted identification
proceedings [Rajesh v. State of Haryana41; and Mukesh v.
State (NCT of Delhi)42.]
38.9 Considering the facts and circumstances of the case
at hand, it is open for the Court to draw an adverse
inference against the witness, should they put forth a
refusal to (2023) 1 SCC 180 (1970) 2 SCC 128 (2007) 12
SCC 654 (2010) 9 SCC 567 (1998) 5 SCC 103 (2021) 1
SCC 118 (2017) 6 SCC 1 participate in the identification
proceedings. [See: Mohd. Anwar v. State (NCT of
Delhi)43.]”
24. Considering the entire evidence and law on subject, it is quite vivid
that the evidence of T.I.P. has become inadmissible, but the learned
14trial Court in its impugned judgment has convicted the accused not
on the basis of T.I.P., but on the basis of seizure of looted materials
which have been identified by the family member of the victim. In
such circumstances this Court is examining whether conviction of
appellants for commission of offence of robbery based upon
presumption of recovery is sustainable.
25. Learned counsel for the appellants would submit that the learned
trial Court has committed illegality in convicting the appellants solely
on the basis of alleged recovery of looted material in violation of
Section 27 of the Act of 1872 and also contended that the recovery
has not been proved by the prosecution as the seizure witness and
memorandum statement has turned hostile and even in the cross-
examination by the prosecution, he has not supported the case of
the prosecution. It has been further contended that the seizure of the
looted material on the strength of statement of the accused recorded
under Section 27 of the Act of 1872 cannot be used against the
accused and only the facts deposed to as recovery can be utilized,
but in the present case same has not been supported by the seizure
witness, thus, the conviction of the appellants on the basis of
memorandum statement of the accused by the learned trial Court is
erroneous and perverse finding. To substantiate this submission he
has referred to the judgment of the Hon’ble Supreme Court in case
of Raja Khan vs. State of Chhattisgarh reported in 2025 (3) SCC
314 and would refer to paragraph 31 which reads as under:
“31. The question as to whether evidence relating to recovery is
sufficient to fasten guilt on the accused was considered by this
Court in Bodhraj Alias Bodha & Ors. v. State of Jammu &
Kashmir, (2002) 8 SCC 45, wherein it has been held as under:-
“18… Section 27 of the Indian Evidence Act, 1872 (in short
“Evidence Act“) is by way of proviso to Sections 25 to 26
15and a statement even by way of confession made in police
custody which distinctly relates to the fact discovered is
admissible in evidence against the accused. This position
was succinctly dealt with by this Court in Delhi Admn v.
Balakrishan [(1972) 4 SCC 659] and Mohd. Inayatullah v.
State of Maharashtra [(1976) 1 SCC 828]. The words “so
much of such information” as relates distinctly to the fact
thereby discovered, are very important and the whole force
of the section concentrates on them. Clearly the extent of
the information admissible must depend on the exact nature
of the fact discovered to which such information is required
to relate. The ban as imposed by the preceding sections
was presumably inspired by the fear of the Legislature that a
person under police influence might be induced to confess
by the exercise of undue pressure. If all that is required to lift
the ban be the inclusion in the confession of information
relating to an object subsequently produced, it seems
reasonable to suppose that the persuasive powers of the
police will prove equal to the occasion, and that in practice
the ban will lose its effect. The object of the provision i.e.
Section 27 was to provide for the admission of evidence
which but for the existence of the section could not in
consequence of the preceding sections, be admitted in
evidence. It would appear that under Section 27 as it stands
in order to render the evidence leading to discovery of any
fact admissible, the information must come from any
accused in custody of the police. The requirement of police
custody is productive of extremely anomalous results and
may lead to the exclusion of much valuable evidence in
cases where a person, who is subsequently taken in to
custody and becomes an accused, after committing a crime
meets a police officer or voluntarily goes to him or to the
police station and states the circumstances of the crime
which lead to the discovery of the dead body, weapon or any
other material fact, in consequence of the information thus
received from him. This information which is otherwise
admissible becomes inadmissible under Section 27 if the
information did not come from a person in the custody of a
police officer or did come from a person not in the custody of
a police officer. The statement which is admissible under
Section 27 is the one which is the information leading to
discovery. Thus, what is admissible being the information,
the same has to be proved and not the opinion formed on it
by the police officer. In other words, the exact information
given by the accused while in custody which led to recovery
of the articles has to be proved. It is, therefore, necessary
for the benefit of both the accused and prosecution that
information given should be recorded and proved and if not
so recorded, the exact information must be adduced through
evidence. The basic idea embedded in Section 27 of the
Evidence Act is the doctrine of confirmation by subsequent
events. The doctrine is founded on the principle that if any
fact is discovered as a search made on the strength of any
information obtained from a prisoner, such a discovery is a
16guarantee that the information supplied by the prisoner is
true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact, it
becomes a reliable information. It is now well settled that
recovery of an object is not discovery of fact envisaged in
the section. Decision of Privy Council in Palukuri Kotayya v.
Emperor [AIR (1947) PC 67], is the most quoted authority of
supporting the interpretation that the “fact discovered”
envisaged in the section embraces the place from which the
object was produced, the knowledge of the accused as to it,
but the information given must relate distinctly to that effect.
[See State of Maharashtra v. Dam Gopinath Shirde and Ors,
(2000) 6 SCC 269]. No doubt, the information permitted to
be admitted in evidence is confined to that portion of the
information which “distinctly relates to the fact thereby
discovered”. But the information to get admissibility need not
be so truncated as to make it insensible or
incomprehensible. The extent of information admitted should
be consistent with understandability. Mere statement that
the accused led the police and the witnesses to the place
where he had concealed the articles is not indicative of the
information given.
(emphasis supplied)”
26. On the other hand, learned counsel for the State would submit that
the conviction of the appellants on the basis of memorandum
statement is legal, justified and does not warrant interference by this
Court and would pray for rejection of this submission made by the
appellants.
27. Section 27 of the Act of 1872 is always subject matter of examination
before the Hon’ble Supreme Court and various Courts. The Hon’ble
Supreme Court in the latest judgment has examined the provisions
of Section 27 of the Act of 1872 in case of Nilu @ Nilesh Koshti vs.
State of Madhya Pradesh reported in 2026 INSC 173 and in
paragraphs 20 to 22 has held as under:
“20) It is trite that Sections 25 and 26 of the Evidence Act
stipulate that confession made to a Police Officer is not
admissible. However, Section 27 is an exception to Sections 25
and 26 and serves as a proviso to both these sections. Section
27 of the Evidence Act reads as follows:
“27. How much of information received from accused may
be proved.– Provided that, when any fact is deposed to as
17discovered inconsequence 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.”
The scope and ambit of Section 27 have been examined by this
Court in Delhi Administration vs. Bal Krishan and Others.
21. Elucidating on what constitutes “discovery of fact” under
Section 27 of the Evidence Act, this Court in Udai Bhan vs.
State of Uttar Pradesh observed as follows :
“11. Thus it appears that Section 27 does not nullify the ban
imposed by Section 26 in regard to confessions made by
persons in police custody but because there is the added
guarantee of truthfulness from the fact discovered the
statement whether confessional or not is allowed to be
given in evidence but only that portion which distinctly
relates to the discovery of the fact. A discovery of a fact
includes the object found, the place from which it is
produced and the knowledge of the accused as to its
existence. ….” (Emphasis supplied)
22. The aforesaid legal position was comprehensively reiterated
and elaborated upon by this Court in Bodhraj Alias Bodha and
Others vs. State of Jammu and Kashmir4, wherein the question
of whether evidence relating to recovery is sufficient to fasten
guilt on the accused was examined at length. This Court held
that for evidence under Section 27 to be admissible, the
information must emanate from an accused who is in police
custody. The Court elucidated that the basic idea embedded in
Section 27 is the doctrine of confirmation by subsequent events
– when a fact is discovered on the strength of information
obtained from a prisoner, such discovery serves as a guarantee
of the truthfulness of the information supplied. The Court further
observed that whether the information is confessional or non-
inculpatory in nature, if it results in the discovery of a fact, it
becomes reliable information. Significantly, it was held that the
mere recovery of an object does not constitute the discovery of
fact envisaged in the section. Relying on the Privy Council’s
decision in Pulukuri Kottayya and Others vs. King Emperor, the
Court held that the “fact discovered” embraces not merely the
object recovered, but the place from which the object was
produced and the knowledge of the accused as to its existence,
and that the information given must relate distinctly to that
effect.”
28. Now to appreciate this submission and the legal position, it is
expedient for this Court to extract Section 27 of the Indian Evidence
Act, 1872, which reads as under:
“27. How much of information received from accused may be
proved – Provided that, when any fact is deposed to as
discovered inconsequence of information received from a person
18accused 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.”
29. From bare perusal of Section 27 of the Act of 1872, it is quite vivid
that the essential ingredients of Section 27 of the Evidence Act are
threefold:
i. The information given by the accused must led to the
discovery of the fact which is the direct outcome of such
information.
ii. Only such portion of the information given as is distinctly
connected with the said recovery is admissible against the
accused.
iii. The discovery of the facts must relate to the commission
of such offence.
30. In light of above legal position, now this Court is examining the legal
sanctity of memorandum statement (Ex. P/13) of accused Bali Singh
and credibility and evidentiary value of seizure witness Sudama
Prasad (PW-11). The accused Bali Singh has stated in his
memorandum statement that about 10 days before at village Kasra
he along with other accused Hira Singh, Danfer, Gulab Singh,
Rajkumar, Tejbhan, Ramashankar, Agar Sai, Bhaiyalal, Vijay Gond
and Badwa @ Kaleshwar have committed dacoity in the house of
Raghurai Ram Sahu and in his share one Philips radio and one pair
of shoes were given which he has kept in the box in his house which
has been seized from his house. The seizure memo was signed by
Sudama Prasad (PW-11) and Vikas Singh. The seizure witness
Sudama Prasad (PW-11) who was examined before the trial Court
and in the cross-examination has admitted that he has put his
signature in the Police Station and also admitted that materials were
seized in the Police Station. He further stated that he cannot tell
which material is seized from which accused and also admitted that
19
from where the materials were seized he has not gone there.
31. Thus, from the evidence of seizure witness Sudama Prasad (PW-11)
who turned hostile, it is quite vivid that there are contradictions in the
testimony of the witnesses to (i) both Section 27 memorandums and
(ii) seizure memos who are one in the same. Sudama Prasad (PW-
11) was cited as witness to the Section 27 of the Act of 1872
statements made by the accused and suspicion had fallen upon him
as he has admitted in the evidence that he has put his signature in
the Police Station and also admitted that materials were seized in
the Police Station. He further admitted that he cannot tell which
material is seized from which accused and also admitted that from
where the materials were seized he has not gone there.
32. Thus, it is evident that the witness has neither turned hostile nor
corroborated the case of prosecution on any material particulars in
relation to the recoveries beyond just admitting his signature in the
memorandum and seizure memos and from the record of the case, it
is quite vivid that the accused were continuously remained in judicial
custody during the trial, the said hostility and non-corroboration can
also not be attributed to any influence or tampering on their part. The
recovery circumstance, therefore, remains legally tenuous. As such,
the conviction of the appellants on the basis of recovery by the trial
Court is erroneous and perverse finding, therefore, the conviction of
the appellants deserves to be set aside by granting the benefit of
doubt as prosecution is unable to prove its case beyond reasonable
doubt.
33. Consequently, both the appeals filed by the appellants namely –
Rajkumar, Bali Singh, Gulab Singh, Danfer Singh and Hira Singh
20
are allowed and so far as appeal with regard to appellants No. 4 and
5 stand abated on account of their death.
34. The appellants are acquitted from the commission of offence under
Sections 457 and 395 of IPC and their bail bonds shall remain in
force for six months as per Section 437(6) of Cr.P.C./Section 480(6)
of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Sd/-
(Narendra Kumar Vyas)
Judge
Manish