Yog Raj vs Romal Singh and Others

G.D. Sharma, J.—Through the medium of this petition purporting to be made under the provisions of Section 435 read with Section 561-A,

Cr.P.C., the reversal of the order dated 29-1-1994 passed by the learned Sub-Judge, Judicial Magistrate, 1st Class, Jammu, is sought whereby

he has refused the exhibition of the seizure memo dated 22-12-1991.

The factual matrix of the case is that in Challan No. 219/93 titled State v. Romal Singh and Ors., respondents 1 to 7 herein, are facing the trial

for the commission of offences falling under Sections 326/452/148/323, RPC read with Section 4/25 of the Arms Act. Yog Raj, petitioner herein,

is the complainant in the case as well as a marginal witness of the seizure memo in question. The contents of the said seizure memo are that the

respondent-accused Romal Singh had produced the alleged weapon of offence, namely, Toka, in the police station in the presence of the

complainant Yog Raj and Kuldeep Raj. The statement of the complainant Yog Raj was being recorded on 7-12-1993 when the prosecutor sought

to prove an exhibit the said seizure memo but an objection was raised on behalf of accused-respondents 1 to 7 that weapon of offence was not

recovered in consequence of the information given by the accused but it was the voluntary production by the accused himself and that could not be

proved and exhibited. The learned Magistrate had relied upon the judgment of the Supreme Court of the case of Bahadul alias Ghanshyam Padhan

Vs. State of Orissa, .

It is alleged in the petition that a fundamental right is available to an accused person only to the extent that he cannot be compelled to be a

witness against himself and this concession can be waived voluntarily in answer to a question and the accused can produce an incriminating material

himself. In case the prosecution is not allowed to prove the seizure memo in question, a vital link in the prosecution story will be broken and that

will not be in the interests of justice.

I have heard the arguments of learned Counsel for the parties.

Mr. Bhat, learned Counsel for the petitioner-complainant has contended that the Supreme Court in Bahadul's case (supra) had not considered

the import of Section 8 of the Evidence Act. Respondent-accused Romal Singh had voluntarily produced the alleged weapon of offence and that

production is not incriminating. Rather, the production shows the conduct of the accused which is a relevant fact u/s 8 of the Evidence Act and has

to be considered for the purposes of proving the seizure memo in question. In support of his contention Mr. Bhat cited the cases of Prakash Chand

Vs. State (Delhi Administration), and Himachal Pradesh Administration Vs. Om Prakash, .

Mr. J.P. Singh, learned Counsel appearing for accused-respondents 1 to 7 has contended that in the seizure memo in question, the conduct of

the accused is not a relevant issue. According to him, the only relevant fact in this seizure memo is the production of the alleged weapon of offence

and that the respondent-accused had himself produced the weapon before the police and the admissibility of the contents of this document is the

germane point. According to him, this question was considered by the Apex Court in Bahadul alias Ghanshyam Padhan Vs. State of Orissa, and

after due consideration had found that there was nothing on the record to show that the appellant therein had made any statement u/s 27 of the

Evidence Act relating to the recovery of the said weapon of offence and the factum of recovery itself, was held not admissible u/s 27 of the

Evidence Act. The Supreme Court in Prakash Chand Vs. State (Delhi Administration), had drawn a distinction between the conduct of a person

against whom an offence is alleged and which is admissible u/s 8 of the Evidence Act and the statement made to a police officer in the course of an

investigation which is hit by Section 162, Cr.P.C. The evidence of the circumstance, simpliciter, that an accused person led a police officer and

pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be

admissible as conduct u/s 8 of the Evidence Act irrespective of whether any statement by the accused contemporaneously with or antecedent to

such conduct, falls within the purview of Section 27 of the Evidence Act. Section 8 of the Evidence Act, has not to be read in isolation to Section

A conjoint and harmonious reading has to he given to both these sections and the conduct of an accused becomes admissible in evidence as far

as it leads to the discovery of a distinct fact and not directly in-criminating evidence which is prohibited under the provisions of Section 162,

Cr.P.C. as well as the constitutional mandate of Article 20.

In Himachal Pradesh Administration Vs. Om Prakash, the testimony of the investigating Officer was held admissible u/s 8 of the Evidence Act

and this ruling is of no help to Mr. Bhat. The production of the alleged weapon of offence by the accused himself, is the sole fact which has to be

proved by the contents of this seizure memo in question which fact cannot be proved by the inhibition contained in Section 27 of the Evidence Act.

No infirmity is found in the impugned order dated 29-1-1994 passed by the learned trial Magistrate which requires any interference by invoking

the inherent powers of this Court vested in it under the provisions of Section 561-A, Cr. P. C.

Accordingly this petition has no merits and is dismissed as such. The learned trial Magistrate is directed to proceed ahead with the trial of the

case and the Registry is directed to send back the record.