We see that while observing so, the Single Judge Bench of Hon’ble Mr Justice Ziyad Rahman AA held that the Trial Court’s reliance on the disclosure statements without sufficient corroborative evidence was unjustifiable. The Bench also held that:
…apart from the aforesaid disclosure statement, there is nothing to connect the accused persons with the commission of the offences, and since I have found that the disclosure statements are inadequate for holding the appellants guilty, the only irresistible conclusion possible is that the prosecution miserably failed in establishing the guilt of the accused.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Ziyad Rahman AA sets the ball in motion by first and foremost putting forth in para 1 that:
The appellants are the accused numbers 3 and 5 in S.C.No.1179/2005 on the files of the Court of Additional Sessions Judge(Adhoc)III, Kollam. The aforesaid case arises from Crime No.96/2004 of Paravur Police Station. As per the final report submitted therein, six persons were implicated as accused persons alleging offences punishable under section 395 of the Indian Penal Code (IPC).

To put things in perspective, the Bench envisages in para 2 that:
The prosecution case is as follows:

On 10.3.2004 at about 1.30 p.m. accused persons came in an autorickshaw bearing registration No. KL01 J 3930, driven by the 5th accused near the house of CW1 taking building No.13/134 of Paravur Municipality. Thereafter, accused Nos.1,3,4 and 6 trespassed into the residence of CW1 after breaking open the door at the eastern side and keeping the 2nd and 5th accused outside the house to guard them. Thereafter, they committed theft of 44 sovereigns of gold ornaments and currency note worth Rs.1,000/- kept locked in a suitcase on the table placed in the bedroom, including two sovereigns of gold bangles and three sovereigns of gold chain with locket kept inside the almirah in the dining room thereby committed theft of gold ornaments and currency notes worth Rs.1,55,000/-.

The investigation was conducted by the Sub Inspector of Police, Paravur and the final report was submitted before the Judicial First Class Magistrate Court, Paravur, where it was taken into file as C.P.No.58/2005. Later, the matter was committed to the Sessions Court, Kollam, and the same was made over to the Additional Sessions Court (Adhoc)III, Kollam, where it was tried as S.C.No.1179/2005. Even though the offence alleged against the accused persons in the final report was under section 395 IPC, the learned Sessions Judge framed the charge against the accused persons for the offences punishable under Sections 380,454 and 461 r/w. Section 34 of the IPC.

As we see, the Bench then states in para 3 that:
In support of the prosecution case, PWs.1 to 15 were examined, Exhibits P1 to P23 were marked, and material objects 1 to 4 were identified. After completion of the prosecution evidence, the accused persons were examined by the court under section 313 of the Code of Criminal Procedure Code (Cr.PC) and incriminating materials brought out during the trial were put to them. All of them denied the same and pleaded not guilty.

As it turned out, the Bench enunciates in para 4 that:
After appreciating the materials placed on record, the learned Sessions Judge arrived at the finding that the appellants herein, who are accused Nos.3 and 5, are guilty of the offences, whereas the other accused were found not guilty. Consequently, the appellants herein were sentenced to undergo simple imprisonment for four years under section 380 of the IPC and two years under section 454 and 1 year under section 461 r/w section 34 of the IPC. This appeal is submitted in such circumstances challenging the aforesaid conviction and sentence.

Do note, the Bench notes in para 9 that:
I have gone through the records. On examining the materials placed before me, it can be seen that as rightly pointed out by the learned Amicus Curiae, the learned Sessions Judge arrived at the conclusion that the appellants are guilty of the offences by merely placing reliance upon the fact that the recovery of gold ingots was affected based on the disclosure statements. When coming to the factual aspects of the case, it is to be noted that the crime was registered based on the information furnished by PW1, the owner of the house from which the gold ornaments and the amount were stolen. The evidence of PW1 is in the manner as follows:

She was working as Postmistress during the relevant period, and on that day, when she came back to her house from her office and on opening the front door of the residence, the door on the eastern side of her house found opened by breaking the iron bolt. On further examination, she could find that the gold ornaments kept in the suitcase, which was locked in an almirah in the bedroom, were found broken, and articles were taken away. Immediately, the matter was informed to the Police and Exhibit P15 FIR was registered after recording Exhibit P1 F.I. statement of PW1. On the next day, she came to know that one gold chain of three sovereigns and one gold bangle of two sovereigns kept by her in the cupboard in the dining hall were also stolen. An additional statement was also recorded by the Police.

It cannot be glossed over that the Bench observes in para 10 that:
When going through the evidence of PW1, it can be seen that, even though the act of burglary was revealed from her statement, there is nothing in her deposition to connect the accused persons with the aforesaid offence. It is discernible from the materials placed on record that after registering the FIR based on the information furnished by PW1, an inspection was conducted by PW10 in the premises immediately thereupon, along with the police party, dog squad and fingerprint experts. Exhibit P3 is the mahazar prepared by PW7 after inspection of the house of PW1 and recovery of MO1 small tin box, MO2 star screw driver and MO3 key.

Thereafter, even though an investigation was conducted, the Police could not find out the accused persons, and thereupon a UN report was submitted by PW10 showing the same as undetected. Thereafter, accused Nos.1 to 5 were arrested by PW13, the Sub Inspector of Police, Paravur station, at a later point of time and during the course of interrogation, the accused made a confession statement to the effect that they committed the crime, which is the subject matter of this case. Immediately PW13, based on Ext.P17(a) disclosure statement given by the 5th accused, recovered 172 ½ grams of gold ingots from PW2, who was conducting a jewellery shop.

Thereafter, accused persons were produced before the jurisdictional court, and a request for re-opening the investigation was submitted. Further investigation was conducted by the PW10 Circle Inspector of Police, and during his investigation, further recovery of gold ingots was affected. Based on Exhibit P2(a) disclosure statement made by the 3 rd accused, who is the 1st appellant herein, 28 grams of gold ingots were recovered from the possession of PW4. Similarly, based on Ext.P7(a) disclosure statement made by the 5th accused, the 2nd appellant herein, 40 gms of gold ingots were recovered from the possession of PW11. After completing the investigation, the final report was submitted, and the trial in the manner as mentioned above was conducted.

Finally and far most significantly, the Bench then to put it shortly holds in para 14 that:
There is yet another aspect which justifies the view taken by me as above. As rightly pointed out by the learned Amicus Curiae, the evidentiary value of the disclosure statements made by the accused under Section 27 of the Evidence Act and the article recovered consequent to such disclosure statement are categorically considered by the Privy Council in Pulukuri Kottaya’s case (supra). Thus it is evident that as far as the recovery effected based on the disclosure statement under section 27 of the Evidence Act is concerned, the admissibility thereof is confined to the knowledge of the accused as to its concealment and the objects which were recovered on the basis of such disclosure. Merely because of the reason that the material object was recovered, it cannot be concluded that the accused are guilty of the offences alleged against them unless there are materials connecting the object so recovered with the commission of the offences.

Thus, the recovery based on such disclosure statements by itself is not a ground to hold the appellants guilty of the offences unless there are other materials indicating that the article recovered was used for the commission of the crime or the same was obtained by the accused through the commission of the said crime. In this case, even if it is assumed for the sake of the argument that the MO1 series was duly recovered based on the disclosure statements given by the appellants herein, there are no other materials indicating that MO1 series were the gold stolen from the residence of PW1 and that act of stealing of the articles was done by the appellants. In Muhammed Yousaf’s case (supra), it has been categorically held by this Court that no inference can be drawn against the accused under Section 27 of the Evidence Act only based on the recovery of material object pursuant to the disclosure statement made by the accused to the Police Officer.

It is the burden of the prosecution to establish a close link between the recovery of material objects and their use in the commission of the offence. In this case, even after scanning through the entire materials produced by the prosecution, I am unable to find any link between the material object with the commission of the crime. PW1, in her cross-examination, had clearly mentioned that the articles stolen from her residence were gold ornaments, and she further deposed that she could not say that the gold ingots recovered by the police were made by using the gold ornaments taken away from her residence.

No other evidence is forthcoming to establish the link between the material object and the commission of the crime. In such circumstances, the finding of the learned Sessions Judge holding the appellants guilty of the offences by placing reliance only upon the recovery of MO1 series of articles effected based on disclosure statements given by the said accused is not at all proper, and therefore it is liable to be interfered with.

As observed above, apart from the aforesaid disclosure statement, there is nothing to connect the accused persons with the commission of the offences, and since I have found that the disclosure statements are inadequate for holding the appellants guilty, the only irresistible conclusion possible is that the prosecution miserably failed in establishing the guilt of the accused.

In such circumstances, I find merits in the contentions raised by the learned Amicus Curiae, and the findings entered by the learned Sessions Judge are not legally sustainable. In the result, this appeal is allowed. The judgment rendered by the Court of Additional Sessions Judge (Adhoc) III, Kollam on 20.9.2006 in S.C.No.1179/2005 is hereby set aside. The appellants/accused Nos.3 and 5 are found not guilty of the offences and are acquitted of all charges accordingly. This Court is happy to acknowledge the efforts of the learned Amicus Curiae, Smt. Pooja Pankaj, in ably assisting this Court to dispose of this appeal, which were valuable and highly appreciable.

In sum, we thus see that the Kerala High Court has very rightly propounded that corroborative statement is necessary to prove guilt of the accused. It is also made clear by the Court that mere recovery statement is insufficient. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh