Yog Raj vs Romal Singh

Through the medium of this petition purporting to be made under the provisions of Sec. 435 read with Sec. 561A Cr.P.C., the reversal of the

order dated 29.01.1994 passed by the learned SubJudge 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 Vs. Romal Singh and others, respondents 1 to 7 herein, are facing the

trial of the commission of offences falling under Sees. 326/452/148/ 323 RPC read with Sec. 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 suid siezurememo 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 07.12.1993 when the prosecutor

sought to prove and exhibit and the [SIC] 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 voluntarily 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 Vs.

State of Orissa (AIR 1979 SC 1262).

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 interest 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 Bhahadul's case (supra ) had not considered

the import of Sec. 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 under Sec. 8 of the Evidence Act

and has to be considered for the purposes of proving the seizurememo in question. In support of his contention Mr. Bhat cited the cases of

Prakash Chand Vs. Delhi Administration (AIR 1979 S.C. 400) and Himachal Pradesh Administration Vs. Om Prakash (AIR 1972 SC 975).

Mr. J.P.Singh, learned counsel appearing for accusedrespondents 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 Bahadurs case (supra) and after due consideration had found

that there was nothing on the record to show that the appellant therein had made any statement under Sec. 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 under Sec. 27 of the Evidence Act. The

Supreme Court in Prakash Chand's case (supra) had drawn a distinction between the conduct of a person against whom an offence is alleged and

which is admissible under Sec. 8 of the Evidence Act and the statement made to a police officer in the course of an investigation which is hit by

Sec. 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 under Sec.

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 Sec. 27 of the Evidence Act. Sec. 8 of the Evidence Act, has not to be read in isolation to Sec. 27. A conjoint and harmonious reading

has to be given to both these sections and the conduct of the accused becomes admissible in evidence as far as it leads to the discovery of a

distinct fact and not directly incriminating evidence which is prohibited under the provisions of Sec. 162 Cr.P.C. as well as the constitutional

mandate of Article 20.

In Om Parkash's case (supra), the testimony of the Investigating Officer was held admissible under Sec. 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 as to be proved by the

contents of this seizure memo in question which fact cannot be proved by the inhibition contained in Sec, 27 of the Evidence Act. No infirmity is

found in the impugned order dated 29.01.1994 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 Sec. 561A 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.