BANSHI Vs. STATE

JUDGEMENT

(1.) The learned Sessions Judge under his judgment dated Sept. 15, 1978 convicted the appellant under Sec. 394 and 460 Penal Code and sentenced him to undergo rigorous imprisonment for three years and a fine of Rs- 10/ or in default of payment of fine to further suffer rigorous imprisonment for nine months under each count. Alongwith accused-appellant one Mahadeva was convicted and sentenced as aforesaid, but it is not known whether he has preferred any appeal against his conviction or not or if filed, what is the result of that appeal.

(2.) The ease of the prosecution is that in the night intervening April 12 and 13, 1975, the accused appellant alongwith three others Mahadeva, Gadiva and Mooliya entered the house of Bodu Ram PW. 2. Patashi, daughter-in-law of Bodu was sleeping and it is alleged that the accused- appellant and others snatched away golden ornaments from her and when she raised alarm, they caused injuries to the inmates of the house. A report of the incident was lodged wherein it was stated that two accused persons Gadiya and Mooliya were apprehended at the spot They were beaten. It may be stated that two above named persons who were apprehended and were beaten by the persons died. The accused appellant Banshilal was arrested on Aug. 22, 1975- While in police custody, the accused-appellant is said to have made disclosure-statement which is contained in writing Ex. P/15 that he has concealed the golden zolia in a pit near a tivadi and he could get it recovered. Consequent upon that he got recovered the golden zolia Art 2 which was put up for identification before the Magistrate and Patashi and other ladies identified the same. The learned Magistrate placing reliance upon the statement of the co-accused contained in FIR as well as in the evidence of the prosecution witnesses that the golden zolia had been taken away by the accused and further placing reliance on the recovery of golden zolia convicted the accused-appellant as aforesaid.

(3.) It is well known that the FIR is not a substantive pice of evidence. Bodu Ram had lodged the FIR wherein it was stated that two accused Gadia and Mooliya had given out that ornaments had been taken away by the accused-appellant and his companion Mahadeva. When Bodu Ram was examined in the court he did not state that such a statement was made by any of the accused. No doubt other witnesses stated that named the appellant and Mahadeva as the persons who took away the ornaments, but this part of the evidence cannot be relied upto. Apart from this even if it is assumed for the sake of argument that the two deceased Mooliya and Gadiya made the statement that their companions were the accused-appellant and Mahadeva the court should not have relied upon the confession of the co-accused and there must be some independent evidence which should be examined first and then if that evidence is relied upon, the confession can be pressed into service for the purpose of corroboration. In the case of Nathu Vs. State of U.P., AIR 1956 SC 56 , it has been observed by their Lordships of the Supreme Court that confessions of co-accused are not evidence as defined in Sec. 3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as ending assurance to that conclusion and for fortifying it. Therefore, the court must look at the independent evidence to connect the accused with the crime. In (he instant case, the only evidence is that the accused after his arrest made discovery statement consequent upon which a golden zolia was recovered. The witnesses of search were Ramjilal and Bhagirath, but none of them has been examined The prosecution examined a number of witnesses. The only evidence is of Gauri Shanker PW 17 and the recovery was made from the place accessible to all. Under the circumstances, it will not be safe to rely on the evidence of recovery of golden zolia. If that evidence is excluded, then there will be no evidence left against the accused-appellant.