R.S. Chauhan, J.@mdashThe appellant, Vaman Narain Ghiya, has challenged the judgment dated 20.11.2008 passed by the Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur whereby the learned Judge has convicted and sentenced him as under:-
The learned Judge has, however, acquitted the appellant for offences under Sections 379/120B, 413/120B, 414, 414/120B, 401 IPC and for offences under Sections 5/25(2) of the Antiquities and Art Treasures Act, 1972 (for short, ''the AAT Act'').
2. According to the prosecution, in the year 2002, two FIRs, namely FIR No. 128/02 and FIR No. 142/02 were registered at Police Station Vidyadhar Nagar, Jaipur City (North) for offence u/s 411 IPC. These FIRs were not registered against the present appellant; they were against other persons. While investigating these two FIRs, the police discovered that allegedly there was a gang of thieves operating in Rajasthan and Madhya Pradesh which was indulging in stealing antique sculptures and artifacts, and in exporting and selling them abroad. It was also discovered that Jaipur is the epicenter of their nefarious activities. In order to carry out an extensive investigation with regard to these activities, Mr. Anand Srivastava, the Superintendent of Police, Jaipur City (North), constituted a team of investigators. The team kept surveillance over the alleged offenders.
3. On 6.6.2003, Ram Singh (P.W. 76), the SHO, P.S. Vidyadhar Nagar, received secret information that four persons were discussing about the sale of antique statues at Ganesh Park, which fell under the jurisdiction of his police station. Immediately, a team of policemen reached the park. They found four persons sitting behind a tree. Mr. Chandra Purohit, S.I. (P.W. 58) eavesdropped on their conversation. He heard them talking about buying and selling of antique statues and artifacts. The police party called for two independent witnesses, namely Suresh Kumar Agrawal (P.W. 15) and Shankarlal (P.W. 10). The police searched the four persons. From their search, the police not only recovered antique statues, but also discovered photographs of antique sculptures. It seized the statues and the photographs, and a motorcycle belonging to one of the four persons, namely Banne Singh. The four persons were arrested. Upon returning to the Police Station, Ram Singh (P.W. 76) registered a formal FIR, namely FIR No. 146/2003 for offences u/s 379, 411, 401 IPC, and for offences under Sections 5, 14/25(2) of the AAT Act.
4. After interrogating these four persons, the police realized that the appellant, Vaman Narain Ghiya, was equally involved in stealing, in receiving stolen properties, and in exporting antique statues and artifacts. Therefore, on 7.6.2003 at 5:35 AM, a police team raided the appellant''s house situated at Plot No. 41, Everest Colony, Lalkothi Scheme, Jaipur. Prior to initiating the raid, the police collected two recovery witnesses, namely Duli Chand Sharma (P.W. 47) and Kishanlal (not produced as a Prosecution Witness). Since the main-gate of the house was locked, the police kept on ringing the door bell. After twenty minutes, a person came and opened the maingate. He introduced himself as Vaman Narain Ghiya. Ram Singh (P.W. 76) introduced himself and informed the appellant about the purpose of the raid. Ram Singh (P.W. 76) had himself, and the recovery witnesses searched before the appellant. But nothing incriminating was recovered either from the police personnel, or from the recovery witnesses.
5. According to the prosecution, the appellant''s house was a double storied structure with a basement. The appellant''s family lived on the first floor. The police tried to search the first floor. However, when they tried to enter through the Eastern gallery of the house, they found that the door was locked. Despite their best efforts, no one opened the door. Suddenly the police realized that smoke was coming out of the building. And they could hear loud noises of children and women. Therefore, the police broke down the door. As they entered the inner quarters of the house, the police discovered that the appellant''s wife, son, daughter and daughter-in-law were busy burning photographs in the appellant''s bedroom. Although the police tried to prevent the burning of the photographs, most were burnt. Those which were half-burnt were doused with water. Subsequently the half-burnt, and the few unburned photographs and ashes were recovered and were seized by the police. They were sealed in a plastic bag; the packet was marked with "Mark-A". A photographer, Ram Babu Vijay (P.W. 61) was called. He photographed the unburned, the half-burnt photographs, and the ashes as well as the broken door of the house.
6. Searching further, from under the appellant''s bed, the police discovered eleven photographs of antique statues; from an alcove, on the northern wall of his bedroom, the police recovered seven photographs of antique sculptures. In total, the police discovered eighteen photographs, besides the half-burned/unburned photographs, mentioned above.
7. From the drawing room of the house, the raiding party also found thirty-four catalogs of Sotheby, and thirty-four catalogs of Christie Auction Houses. Thus, in total, the raiding party recovered sixty-eight catalogs from the appellant''s house. From the same drawing room, the police also discovered seventy-two paintings. After completing the raid, the police drew up the Seizure Memo (Ex. P. 163). It seized a total of eighteen photographs, sixty-eight catalogs, and seventy-two paintings along with half-burnt/unburned photographs, mentioned above. After completing the raid, by Arrest Memo (Ex. P. 164) the appellant was arrested in his house. However, the police neither sealed any of the recovered items, nor prepared any site plan of the place of recovery.
8. Further according to the prosecution, after completing the recovery proceedings at the appellant''s house, he was taken to his showroom. However, despite searching the showroom, the police did not find any incriminating evidence against the appellant. But a memo of the proceedings was drawn up (Ex. D. 368).
9. Furthermore according to the prosecution, on 14.6.2003, allegedly, the appellant made a statement (Ex. P.1121) u/s 27 of the Evidence Act; he informed Ram Singh (P.W. 76) that he had given seven antique statues for repair to one Satyadev Sharma, a sculptor at New Delhi. He could take the police to Delhi and get the said statues recovered from Satyadev Sharma''s workshop. Therefore, on 15.6.2003, a police party, along with the appellant, reached Satyadev Sharma''s house. According to Satyadev Sharma, the appellant and one Madanlal Agrawal had brought seven statues for repairs. Out of seven statues, he had repaired all of them except that of Nandi, the bull. Accompanied by Satyadev Sharma, the police party went to his workshop where the appellant pointed out the sculptures, which were lying under a tin-shed. The police discovered a Shiva-Parvati sculpture (Art. 956) wherein Goddess Parvati is sitting on the thigh of Lord Shiva, a long sculpture of Sitarvadak (Sitar player) (Art. 957), an idol of Lord Agni (God of Fire) (Art. 962), a bust of Lord Surya (the Sun God) (Art. 961) where the Sun god is carrying lotuses in both his hands, a small sculpture of Nandi (Art. 960), the bull, and two heads of Lord Buddha (Arts. 958 and 959). The police seized the seven sculptures by Recovery Memo (Ex. P.220). A Site Plan (Ex. P.221) was prepared. Panchu Ram (P.W. 68), ASI, and Satyadev Sharma (not produced as Prosecution Witness) witnessed the recovery. Though none of these sculptures were sealed on the spot, they were deposited with the Malkhana (storeroom) of the Police Station, Vidyadhar Nagar, Jaipur.
10. On 17.6.2003, allegedly again the appellant made a statement (Ex. P. 1122) u/s 27 of the Evidence Act to Ram Singh (P.W. 76). He informed the police that he has hidden three antique statues at his farmhouse situated at village Kukas near Jaipur. Upon this information, the police party reached his farmhouse. The police party also took Seduram (P.W. 53) and Laduram (not produced as a Prosecution Witness) as recovery witnesses. When the police party reached the farm house, Rajendra Prasad (D.W. 2), the gardener-cum-guard, opened the gates. Near the Northern wall, from underneath a bougainvillea creeper, allegedly the appellant dugout three statues: one of a ''Devi'' (''the Goddess'', for short) (Art. 954), another of a Jain Tirthankar ("the Jain idol" for short) (Art. 55), in a sitting position, and the third of a Lion (Art. 955) in a crouching position. The police drew up the Recovery Memo (Exh. P.174) and the Site Plan (Exh. P.175). Although the police did not seal the sculptures on the spot, they were deposited in the Malkhana of the Police Station.
11. During the course of further investigation, it was discovered that the statue of the Goddess (Art. 954) was allegedly stolen in the year 2002 from village Bhanpura, District Mandsor, Madhya Pradesh. For the theft of the Goddess, a FIR was registered, namely FIR No. 51/2002 at Police Station Bhanpura. Subsequently, the appellant was tried for having received the stolen sculpture of the Goddess. By judgment dated 24-2-2006, in Cr. Case No. 380/2003, the Judicial Magistrate (1 Class), Bhanpura, convicted the appellant for offence u/s 411 IPC. The appellant had filed an appeal against the judgment dated 24-2-2006 before the Learned Additional Sessions Judge (''ASJ'', for short) Bhanpura. Prior to the passing of the present impugned judgement, the appeal was pending before the learned ASJ. But subsequently by judgment dated 28-10-2009, the learned ASJ has acquitted the appellant for the offence u/s 411 IPC. The State of M.P. has filed an appeal before the Hon''ble M.P. High Court, which is still pending.
12. Moreover, it was discovered that the statue of the Jain idol (Art. 55) was allegedly stolen from village Bhadesar, in District Chittorgarh, Rajasthan. Even for this stolen Jain idol, on 24-11-1997, a FIR was duly registered at Police Station Bhadesar, namely FIR No. 286/97 for offences under Sections 457, 380 IPC. In connection with the said FIR, the appellant did face a trial at Bhadesar court for offence u/s 411 IPC. But as the appellant was convicted in the present case for having received the stolen Jain idol--for offence u/s 411 IPC, the trial at Bhadesar was eventually dropped against the appellant.
13. It is also essential to note that different FIRs were lodged against the appellant for recovery of alleged antique sculptures/artifacts from him and from other co-accused persons in the present case: FIR No. 84/1989 registered at P.S. Ataru, Dist. Baran for offences u/s 411 and 413 IPC; FIR No. 55/90, at P.S. Harnavda Shavji, for offence under Sections 379 read with 34 IPC; FIR No. 41/98, at P.S. Rawatbhata, Dist. Chittorgarh for offences under Sections 411, 413, and 120B IPC; FIR No. 31/2000, at P.S. Bhanpura, Dist. Mandsor, (M.P.); FIR No. 36/2001 at P.S. Bijolia, Dist. Bhilwara for offences under Sections 379, 411 IPC; FIR No. 39/2001, at P.S. Jigana, Dist. Shivpuri (M.P.) for offences u/s 379 IPC; FIR No. 82/02, at P.S. Mandar, Dist. Sirohi for offences under Sections 411, 413, and 120B IPC; FIR No. 49/2003, at P.S. Pindawara, Dist. Sirohi for offence under Sections 411, 413, and 120B IPC; FIR No. 109/03 at P.S. Harnavda Shavji for offences under Sections 379, 411, 414, and 120B IPC; FIR No. 33/06 at P.S. Dholpur for offences u/s 411 IPC; FIR No. 113/06 at P.S. Bayana, Dist. Bharatpur for offences u/s 379 IPC. Thus, relating to recoveries of different sculptures/antiques, the appellant was and is being tried in other courts for different FIRs.
14. Moreover, on 21-6-2003, the appellant was also arrested in FIR, namely FIR No. 109/03, registered at Police Station Harnavda Shavji in District Baran. During the course of investigation in the said FIR, and while being interrogated by Ram Singh (P.W. 76), on 24.6.2003, the appellant allegedly gave another statement (Ex. P. 1123) u/s 27 of the Evidence Act. He informed Ram Singh (P.W. 76) that he had sent a consignment of antique artifacts to M/s. Indian Crafts situated at New Delhi. On 25.6.2003, the police party, along with the appellant, and with Bajrang Singh (P.W. 60) the SHO, P.S. Harnavda Shavji, reached the warehouse belonging to M/s. Indian Crafts. When the police knocked at the gate of the warehouse, a man came out who introduced himself as Pradeep Malhotra. He claimed to be the owner and manager of the warehouse. Taking Dr. Arun Sharma (P.W. 72) and Beni Prasad Verma (not produced as a Prosecution Witness) as recovery witnesses, the police searched the warehouse. They discovered forty-one wooden boxes [initially in his testimony Ram Singh (P.W. 76) claimed that forty-eight wooden boxes were discovered]. Upon opening these wooden boxes, the police recovered a large consignment of handicraft items/antique artifacts consisting of marble latticework, wooden latticework, wooden windows with latticework, marble inlay panels, marble stools, wooden stools, antique pillars, stone slabs with calligraphy, wooden panels with Urdu and Persian calligraphy, red sandstone fountains, and paintings of Rajas and Ranis, swords, sword handles, daggers, parts of armors and small metallic sculpture of animals and birds. All these artifacts were recovered through Recovery Memo (Ex. P.40). A Site Plan (Ex. P. 1105) was also drawn. During the course of the raid, Bharat Singh (P.W. 24), a Constable, did the videography. The video cassette was recovered by Recovery Memo (Ex. P.41). Although the forty-one wooden boxes were never sealed, they were loaded in a truck and brought back to Jaipur. These articles were marked as Article- 963 to Article-1468. They, too, were stored in the Malkhana of the Police Station Vidyadhar Nagar.
15. During the course of investigation, it was further discovered that in all twenty-five persons were involved in committing theft, receiving stolen properties, and exporting antique sculptures and artifacts. According to the Police, these twenty-five persons, including the appellant, belonged to a gang of thieves who habitually engaged in dealing with or receiving stolen property. In fact, the prosecution has dubbed the appellant as the leader of the gang. Therefore, the large number of FIRs against the appellant and against the other co-accused persons.
16. On 3.9.2003, the police submitted a charge-sheet against nineteen persons including the present appellant. Subsequently on 15.5.2004, the police submitted another charge-sheet against six persons. The trials of both the charge-sheets were consolidated by the learned Judge.
17. In order to prove its case, the prosecution examined eighty-three witnesses, submitted 1189 documents, and produced 1468 articles. On the other hand, the defence produced ten witnesses, and submitted 679 documents. Since during the course of the trial four people absconded, by judgment dated 20.11.2008, the learned Judge convicted eighteen persons, including the appellant, and acquitted three persons. The appellant was convicted and sentenced as mentioned above. Hence, this appeal before this court.
18. The case against the appellant consists of four different recoveries, namely recovery on 7-6-2003, 15-6-2003, 17-6-2003 and 25-6-2003. Whereas the first recovery was the result of a raid conducted by a police party, the other three recoveries were the result of statements allegedly given by the appellant u/s 27 of the Evidence Act. Since the recoveries are separate and distinct, they shall be dealt with separately by this court.
19. However, Mr. Vivek Bajwa, the learned counsel for the appellant, has raised a large number of legal issues which simultaneously cover all the four recoveries. Therefore, in the interest of justice, this court would first discuss legal issues which loom large over all the four recoveries. And then enter into the details, and into the specific contentions raised with regard to the individual recoveries.
20. Further, in order to fully understand the extent of this judgment, it is pertinent to point out that during the course of the trial, the appellant had challenged the Charge Order dated 4.9.2004 before this court in S.B. Criminal Misc. Petition No. 14/2005. During the pendency of the miscellaneous petition, he had also pleaded that he had filed an application under Sections 216, 218, 184, 186 and 300 Cr.P.C. before the trial court. However, by order dated 13.3.2007 the learned trial court had dismissed the said application. Therefore, challenging the order dated 13.3.2007 the appellant had filed another petition, namely S.B. Criminal Revision Petition No. 345/2007, before this court. By a common judgment, dated 14.3.2008, this court dismissed both the Criminal Misc. Petition and the Criminal Revision Petition filed by the appellant. Since the appellant was aggrieved by the judgment dated 14.3.2008, he filed a SLP before the Hon''ble Supreme Court, namely SLP No. 2124-2125/08, Vaman Narain Ghiya v. State of Rajasthan. By order dated 11.4.2008, the Apex Court granted liberty to the appellant to raise all the contentions with regard to the charge, with regard to alteration of the charges, before the appellate court in case an appeal were eventually filed by him. Having given him this liberty, the Apex Court dismissed the SLP. Thus, according to Mr. Bajwa this court is not only required to appreciate the evidence, and to adjudicate on the legal issues, but to begin with it must also examine the legality or illegality of the Charge Order dated 4-9-2004. Since a liberty has been granted, since various contentions have been raised with regard to the Charge Order, we shall first examine the legal validity of the said Charge Order.
21. By Order dated 4-9-2004, the learned trial court had charged the appellant for the following offences: i) under Sections 379 read with 120B IPC, and in the alternative with offence u/s 411 IPC; ii) offences under Sections 413 read with 120B IPC; iii) offences u/s 414 IPC, and in the alternative for offence under sections 414 read with 120B IPC; iv) offence u/s 401 IPC; v) offences under Sections 3 read with 25(1) of the AAT Act; vi) offences under Sections 5 read with 25(2) of the AAT Act; vii) offences under Sections 14 read with 25(2) of the AAT Act.
Challenge to Charge No. 1:
22. According to the Charge Order dated 4-9-2004, the Charge No. 1 is as under:
Charge No. 1: For the last thirty, prior to 6-6-2003, you along with the other co-accused persons, have removed old and rare sculptures, such as Natraj, Brahma, Vishnu, Bharma-Bhramani, Ardhnareshwar, Jain Goddess, Jain Tirthankar, Shiv-Parvati, Agni God (God of Fire), Surya (Sun God), Nandi, Yakshi, of Women, Mahisasura Mardani (Goddess Durga killing the demon Mahisasura), etc. from temples of archeological importance and from protected sites, without the permission of the authorized persons, both from Jaipur and from other parts of Rajasthan, and have taken colored photographs with mala fide intention, and by such acts have committed theft or entered into a conspiracy to commit theft, thereby committing the offences under Sections 379 read with 120B IPC, of which I have already taken cognizance.
Or in the alternative
Along with the other co-accused persons, on the specified date, time and place, you have kept under your possession these rare sculptures/art objects/and antiques and their colored photographs knowing that they were stolen properties. This act of yours falls within the offence u/s 411 IPC of which I have already taken cognizance.
(English Translation of Charge in Hindi)
23. According to Mr. Vivek Bajwa Section 212 Cr.P.C. requires that the charges shall contain such particulars as to the time and place of the alleged offence, and the thing in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.
24. However, Charge No. 1 does not follow the mandate of Section 212 Cr.P.C. For, it does not specify the time, place and the objects in respect of which the alleged offences were committed. Instead, the charge deals with a period of "thirty years"--a time too long to be understood clearly. Moreover, the learned Judge has not confined the charge to the sculpture/art objects/antiques which were either allegedly recovered from the appellant, or allegedly recovered upon his information. In fact, the learned Judge has included sculptures which were recovered from other co-accused persons, but with which the appellant is unconcerned. Furthermore, the learned Judge has included some alleged antique sculptures which were recovered in other FIRs registered against the appellant, and for which the appellant was facing trials at other places. Hence, Charge No. 1 covers a large number of sculptures/art objects/antiques, some mentioned and other unmentioned, in the charge. Thus, charge No. 1 is vague and confusing.
Secondly, since the correct particulars have not been given, the appellant had no idea of the allegations being leveled against him; he had no way of defending himself. Prejudice has been caused to the appellant. Hence, his right to a fair trial has been violated.
25. On the other hand, Mr. Ajay Bajpai and Mr. Sarfaraz Haider Khan, the learned Special Public Prosecutors, have submitted the following pleas: firstly, Charge No. 1 is crystal clear. Since there were large numbers of recoveries made by the police, since it was not possible to mention each and every sculpture/art object/antique, the learned Judge has used the word "etcetera" to connote other artifacts recovered from the appellant''s possession, or upon his information, or from other co-accused persons. Secondly, since the recoveries were too large, it was not possible for the learned Judge to give facts with regard to dates and time of each recovery and of each object. Thirdly, the purpose of framing of a charge is to give the accused information about the offence(s) with which he/she is alleged to have committed. The offences were clearly stated in Charge No. 1: offences were either under Sections 379 read with 120B IPC, or u/s 411 IPC. Hence, the charge not only gave the gist of the prosecution case, but also informed the appellant about the offences he is being tried for. Hence, no prejudice was caused to the appellant.
Framing of Charge:
26. Framing of charge has an ancient ancestry in the principles of Natural Justice; it has modern parentage in the concept of Fair Trial; its cradle is Art. 21 of the Constitution of India. Framing of charge serves three purposes: firstly, it informs the offender about the allegations leveled against him; secondly, it informs him about the alleged offence committed by him; thirdly, it reveals the gist of the evidence which would be used against him. The ultimate aim of framing of charges is to give an opportunity to the accused to understand the ambit and scope of the prosecution case against him, to comprehend the evidence likely to be marshaled out against him, and to give him an opportunity to prepare his defence against the onslaught of the prosecution. Thus, framing of charges is an essential part of the right of fair trial enjoyed by the accused. [Ref. to
Chapter XVII of Cr.P.C. deals with the ''form of charges'' and with ''joinder of charges''. The chapter is divided into two parts: while Part A deals with ''form of charges'', Part B deals with ''joinder of charges''. Part A comprises of Sections 211 to 217 Cr.P.C.; Part B, of Sections 218 to 224 Cr.P.C. We shall deal with each of the parts separately.
Form of Charge:
27. Section 211 Cr.P.C. is as under:
211. Contents of charge: (1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the Court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed.
28. Section 212 Cr.P.C. further prescribes as under:
212. Particulars as to time, place and person:
(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, It shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219:
Provided that the time included between the first and last of such dates shall not exceed one year.
29. Section 213 Cr.P.C. lays down as follows:
213. When manner of committing offence must be stated: When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.
30. These provisions prescribe the contents of the charges, the particulars which should be mentioned in the charges, the circumstances and the manner of committing the offence which need to be mentioned in the charges. According to these provisions it is imperative that the charge is clear, concise, and lucid. It should neither be vague, nor confusing. In unequivocal terms the charge should state the gist of the prosecution case against the accused. It should be in simple language so that the accused may understand the allegations against him. He must understand what he has to defend himself against. Needless to say, the framing of charge is not a ceremony to be performed; it is an essential step to be taken in the trial. It may be a small step for the trial court; it is a giant leap for the accused person. Therefore, care and caution should be observed while framing the charges.
31. While realizing the cardinal importance of framing of charge, the legislature has also safeguarded the interest of the society at large. Section 215 Cr.P.C. clearly states that "no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned failure of justice". Therefore, merely because there is omission in mentioning the offence, or in the particulars required to be stated in the charge, it would not vitiate the trial unless such omission causes failure of justice, or prejudice has been caused to the accused.
32. While dealing with the legality of the form of charges two tests, thus, need to be applied: firstly, whether clear and sufficient information has been given to the accused in order for him to understand the prosecution case against him or not? Secondly, if not, whether any prejudice has been caused to the accused? While examining the validity of the charges framed against the appellant, we would have to keep both these tests in mind.
33. A bare perusal of Charge No. 1, quoted above, clearly shows that it is a bundle of confusion. For the facts are absolutely unclear. Firstly, it covers a period of thirty years prior to 6-6-2003. Thus, the span of time is too long, too uncertain for pinpointing the appellant''s alleged illegal activities.
Secondly, the learned Judge has not confined the charge of theft, conspiracy to commit theft, or the charge of receiving stolen property to the sculpture/art objects/antiques which were allegedly recovered from the appellant in the present FIR. For example, according to the prosecution, the police had allegedly recovered "the Goddess" and the "Lion" statues from the appellant''s farm house. However, neither of them is specifically mentioned in the charge. Moreover, even the sculptures which were allegedly recovered at the instance of the appellant, such as the two "Buddha Heads", and the "Sitarvadak" have not been mentioned. In fact, the learned Judge has merely used the word "etc." to define the sculptures/art objects/antiques/paintings allegedly recovered from the appellant. But the word "etc" is too vague to reveal the gist of the case of the prosecution against the appellant. It was imperative for the learned Judge to precisely mention these sculptures/artifacts so as to make the prosecution case absolutely clear to the appellant.
Thirdly, the charge also includes sculptures/antiques/and art objects for which the appellant was/is being tried at other places. For example, "Natraj" has been mentioned. But a FIR was registered, as far back as 1998, at Police Station Rawatbhata, District Chittorgarh, namely FIR No. 41/1998, for which the appellant is still facing trial. Similarly, a "Jain Devi" has also been mentioned. This sculpture was allegedly recovered from Bane Singh, a co-accused in the present case. With regard to this sculpture, a FIR, namely FIR No. 109/2003, was registered at Police Station Harnavda Shavji, District Baran. Along with Bane Singh, the appellant is still facing the trial for the said sculpture at Harnavda Shavji.
Fourthly, the names of even those sculptures have been mentioned which were not recovered from the appellant per se in the present FIR, namely FIR No. 146/2003. Many of these sculptures were, in fact, recovered from the other co-accused persons in the present FIR. But the appellant is not even remotely connected with these recoveries. For example, the charge mentions "Shiv-Parvati "--the said sculpture was recovered from co-accused Bane Singh. Allegedly the said sculpture was stolen from Jahajpur, District Bhilwara. A FIR, namely FIR No. 46/2003, was lodged at Police Station Jahajpur with regard to the theft of the said sculpture. In fact, Bane Singh is facing trial at Jahajpur for the above mentioned FIR. But the appellant is not even a co-accused in the said criminal trial. Similarly, the charge mentions "Yakshi Nari"--a sculpture recovered from Madan Lal Agarwal, another co-accused. But the appellant is again unconnected with the said sculpture and with the said recovery. Thus, it is absolutely unclear as to how these sculptures are connected with the appellant either for offences u/s 379 read with section 120B IPC, or for offence u/s 411 IPC. Hence, it is puzzling as to why the names of these sculptures were mentioned in Charge No. 1 when the appellant apparently had nothing to do with either the recovery, or with the trials carried out for the theft of these sculptures.
34. Hence, Charge No. 1 is confusing. It is neither clear, nor concise, nor simple in its language or contents. In fact, it is like a tossed salad of names of sculptures/art objects/paintings/antiques. It does not specify how these objects/things are either inter-related to each other, or to other FIRs and trials, or to the appellant. Framed in convoluted sentence structure, the charge does not project a clear picture of the prosecution case against the appellant. Therefore, Charge No. 1 has not followed the mandate of Sections 211, 212 and 213 Cr.P.C.
35. But the moot issue is has the confusing charge caused prejudice to the appellant? A bare perusal of the voluminous record of the case clearly reveals that the appellant had defended himself very well to the charges framed against him. Considering the fact that he had examined ten witnesses as defence witnesses, he had submitted 679 documents as defence exhibits, he had raised all possible objections to Charge No. 1 during the final arguments. Thus, it cannot be claimed that his cause was prejudiced.
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37. Since in the present case the appellant has been given "a full and fair chance to defend" himself, he cannot claim that his case has been prejudiced by the confusion caused in Charge No. 1. Therefore, the contention raised by Mr. Bajwa with regard to Charge No. 1 is unacceptable.
Joinder of Charges:
38. According to Mr. Bajwa Sections 218 to 224 Cr.P.C. deal with ''Joinder of Charges''. Section 218 Cr.P.C. lays down that for every distinct offence there shall be separate charge and every such charge shall be tried separately. section 219 Cr.P.C. does permit three offenses of same kind, committed within twelve months, to be tried together. But according to the prosecution, the appellant was indulging in the offences for last thirty years. Hence, while framing the charges for offences under Sections 379/120B, in the alternative for offence u/s 411 IPC, the time limit prescribed by section 219 Cr.P.C. has been ignored.
39. Moreover, although section 220 Cr.P.C. does permit trial of more than one offence, but the offences must be done ''together as to form the same transaction''. However, the allegations made against the appellant do not show that all the sculptures/art objects/antiques were either stolen, or received as stolen properties ''in a single transaction''. Therefore, the different offences allegedly spread over a period of thirty years could not have been tried together as they do not form part of ''the same transaction''.
40. However, according to Mr. Bajpai and Mr. Khan, the investigation agency was not only dealing with a large number of accused persons, but was also dealing with large number of facts and figures, with large number of recoveries made from different co-accused persons, and with a large number of offences. Thus, at the initial stage, the nature of the precise offence committed by the appellant was unclear to the learned Judge. Hence, the case is neither covered u/s 218, nor Section 219, nor section 220 Cr.P.C. In fact, the case falls within the scope of section 221 Cr.P.C. Thus, the learned trial court has not committed the mistake of mis-joinder of charges. It has legally and validly framed the charges under its power u/s 221 Cr.P.C.
41. Sections 218 to 224 Cr.P.C. deal with joinder of charges. section 218 Cr.P.C. is as under:
218. Separate charges for distinct offences.-(1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223.
42. While section 218 Cr.P.C. deals with the general law and lays down that every distinct offence shall be tried separately, Sections 219 to 222 Cr.P.C. are exceptions to section 218 Cr.P.C. For, these sections carve out situations where separate trials need not be held for distinct offences.
43. section 219 Cr.P.C. is as follows:
219. Three offences of same kind within year may be charged together. (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law:
Provided that, for the purposes of this section, an offence punishable u/s 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable u/s 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
44. section 220 Cr.P.C. lays down as under:
220. Trial for more than one offence: (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in Sub-section (2) of section 212 or in sub-section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).
45. section 221 Cr.P.C. is as under:
221. Where it is doubtful what offence has been committed: (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
46. Obviously, these three provisions deal with three different situations: section 219 Cr.P.C. comes into force when the accused has allegedly committed more offences than one, of the same kind, either in respect of the same person, or another person, but within a period of twelve months. If so, then three of such offences can be tried together. This section imposes certain limits on the power of the court to try charges together: the court cannot try more than three offences of the same kind, and the offences must have been committed within a period of twelve months. Thus there is both a limit on the number of offences which may be tried together, and a time-limit during which the offences must have been committed.
47. section 220 Cr.P.C. deals with a situation when a series of acts are so connected together so as to form the "same transaction". If so, then the accused may be tried at one trial for every such offence. Sub-sections (2) of section 220 Cr.P.C. deals specifically with the situation where the accused is alleged to have committed falsification of account in order to facilitate, or to conceal the commission of criminal breach of trust, or dishonest misappropriation of property. If so, then he may be tried at one trial for every such offence. Moreover, sub-section (3) deals with a case where the acts allegedly constitute an offence falling within two or more separate definitions given by any law, by which offences are defined or punished. If so, then the accused may be charged with, and tried at one trial for each of such offences. Furthermore, sub-section (4) comes into being where the accused does several acts, of which one or more than one would by itself or themselves constitute an offence, or constitute a different offence when combined. If so, then such an accused can be tried at one trial for the offence constituted by such acts when combined, and for any offences constituted by any one, or more, of such offences. Thus, these sub-sections deal with different permutations and combinations which may arise when either a single act, or several acts are done by the accused, although these acts may or may not form part of the same transaction.
48. Section 221(1) Cr.P.C. deals with a situation where the court is in doubt about the exact nature of the offence(s) committed by the accused because of the single act, or series of acts done by him. In such a case, the court may charge the accused with having committed all, or any of such offences, or it may charge him in the alternative with having committed some of the said offences. The court may try any number of such charges at once. Sub-clause (1) is an enabling provision which allows the court to deal with a situation where the facts are clear, but the nature of the offence is unclear. This sub-clause is an exception to section 219 Cr.P.C. for it neither limits the number of offences which can be tried together, nor prescribes a time-limit for commission of offences. It is equally an exception to section 220 Cr.P.C. for it does not require that the offences should have been done in the same transaction.
49. Further sub-section (2) of section 221 Cr.P.C. empowers the court to convict an accused even for an offence for which he could have been charged under sub-section (1), which has been established by the evidence, but for which he was not charged.
50. Mr. Bajwa would have the charges framed under the mandate of Sections 218 to 220 Cr.P.C. To say the least, the said contention is misplaced. For, the said plea ignores the existence of section 221 Cr.P.C. While dealing with the scope of section 221 Cr.P.C., in the case of Laisal Haque (Supra), the Apex Court observed as under:
section 218 embodies the general rule as to the trial of accused persons which provides for separate trial of each accused person for every distinct offence and is based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. section 221 applies to a case only when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person. There must not be any doubt as to "a single act or series of acts" which constitutes the transaction, that is to say, there must not be any doubt as to the facts. The doubt must be as to the inference to be deduced from these facts, thus making it "doubtful" which of several offences the facts which can be proved will constitute.
51. In the present case, there are series of acts which have created a doubt in the mind of the court as to which precise offence has been committed by the appellant. Thus, the learned trial court was justified in framing the charge for offence u/s 379 read with 120B IPC. Most importantly, the learned trial court has framed the charge for offence u/s 411 IPC in the alternative. Hence, the learned Judge has followed the mandate of section 221 Cr.P.C. Although the learned Judge may have fumbled in narrating the facts in the Charge No. 1, but as mentioned above, it has not caused any prejudice to the appellant. Thus, the framing of Charge No. 1--both on contents of charge, and joinder of charge--cannot be faulted. Thus, the contention raised by Mr. Bajwa is unacceptable.
Challenge to Charge No. 2:
52. Mr. Bajwa''s frontal attack is on the framing of Charge No. 2 for offence u/s 413 read with section 120B IPC. Firstly, according to him, section 413 IPC makes it an offence for persons to "deal with" or "to habitually receive stolen property." section 410 IPC defines the words "stolen property". According to the definition, before a property can be said to be ''stolen'', it must be established that it was subject of theft, or extortion, or robbery, or criminally misappropriated, or against which criminal breach of trust has been committed.
Secondly, while section 411 IPC deals with ''dishonestly receiving stolen property'', section 413 IPC with ''habitually dealing with stolen property''. Both the offences cannot be charged together. For, either the offender has received a stolen property once, or he is in the habit of receiving stolen property. But he cannot do both the acts simultaneously. However, the learned Judge has charged the appellant simultaneously with offence u/s 411 IPC and u/s 413 IPC. Hence, the charge suffers from mis-joinder of charges.
Thirdly, the said charge could not have been framed against the appellant at the initial stage of this case. For, in order to prove ''the habit'' of an offender, it must be established that the offender has repeatedly ''received stolen property'' i.e. repeatedly he has been convicted for offence u/s 411 IPC. For, a single conviction does not reveal ''habit''. The word ''habit'' implies a repetitive conduct or behaviour. Hence, there must be two or more convictions for offence u/s 411, before it can be said that the offender is "habitually" dealing with or receiving stolen property. Hence, it is not just enough to allege that the offender is involved in a series of FIRs for offence u/s 411 IPC; before an offender can be charged for offence u/s 413 IPC, he must be convicted previously, at least twice, for offence u/s 411 IPC.
Fourthly, since an offender can be convicted for an offence u/s 413 IPC only if he has been previously convicted for offence u/s 411 IPC, therefore conviction under the former section is based upon the conviction under the latter section. Moreover, Section 413 IPC provides for ''a punishment of a different kind'' for the ''subsequent offence'' u/s 411 IPC. Therefore, the procedure u/s 211(7) read with section 236 Cr.P.C. needs to be followed while charging an accused for offence u/s 413 IPC. However, the learned Judge has failed to do so. Instead at the initial stage of framing of the charge, without any evidence of any previous conviction, the learned Judge has framed the charge for offences u/s 413 read with 120B IPC. In order to buttress this plea, the learned counsel has relied upon the case of The Empress v. Uttam Kundoo [(1882) ILR 8 Cal. 634].
Fifthly, at the time of framing of the charges, the appellant had no previous conviction against him. In fact, he was convicted by the Judicial Magistrate (First Class), Bhanpura, on 24-2-2006, for receiving the stolen sculpture of the Goddess, for offence u/s 411 IPC, i.e. much after the framing of charge for offence under Sections 413 read with 120B IPC. Furthermore, at the time of conviction in the present case, the appellant had been convicted only once. Therefore, it could not be concluded that he was ''habitually'' receiving stolen property.
Sixthly, the learned Judge has created a very anomalous situation: the learned Judge had never informed the appellant that he is being tried for allegedly having received the stolen Jain idol from Bhadesar. Ironically during the pendency of the present trial, the appellant was also being tried at Badi Sadri for offence u/s 411 IPC for having received the stolen Jain idol. According to the prosecution, the court was merely using the FIR registered at Bhadesar as an example to show that the appellant was "habitually" receiving stolen property. Keeping this in mind, the prosecution did not examine all the witnesses of the FIR registered against the appellant at P.S. Bhadesar. Hence, the appellant could not cross-examine all the witnesses from the Bhadesar case. Therefore, the appellant has been deprived of his right of fair trial. Yet, subsequently, the learned Judge has convicted the appellant for offence u/s 411 IPC for receiving the stolen Jain idol. Thus, the appellant has been subjected to a truncated trail vis-�-vis the FIR registered at Police Station, Bhadesar. Most importantly, the learned Judge has used the said conviction for further convicting the appellant for offence u/s 413 IPC simpliciter. Again a grave prejudice, if not injustice, has been caused to the appellant.
Seventhly, while convicting the appellant for offence u/s 413 IPC, the learned Judge has taken the appellant''s conviction by the Judicial Magistrate, Bhanpura, and the conviction recorded by the learned Judge himself, for the Jain idol stolen from Bhadesar, as the scaffolding for finding the appellant as being ''habitual in receiving stolen property''. However, neither of these two cases was even mentioned in Charge No. 2 dealing with offences under Sections 413 read with 120B IPC. Thus, the Charge No. 2 nowhere specifies that the appellant is being tried either for receiving the Jain idol stolen from Bhadesar, or that the conviction by the court at Bhanpura would be read against him. Again the appellant is left in the dark with regard to the allegations against him. He has been denied the right to defend himself. His right to fair trial has been violated. A grave prejudice, nay injustice, has been caused to the appellant.
53. On the other hand, Mr. Bajpai and Mr. Khan have raised the following counter-contentions: firstly, two different FIRs for offence u/s 379 IPC were chalked out for the Goddess and for the Jain idol. Thus, these two sculptures were alleged to be ''stolen''. Moreover, there were a series of FIRs where the appellant was being tried, or is presently being tried, for offence u/s 411 IPC. Thus, the sculptures recovered from the appellant were "stolen property" as defined u/s 410 IPC; the appellant had received or dealt with these two stolen properties. Therefore, he was in the ''habit'' of dealing with or receiving stolen property. Thus, he could be charged with offence u/s 413 IPC at the initial stage itself.
Secondly, section 413 IPC is both preventive and punitive in nature. Being preventive, it is not necessary that there should be previous conviction. The words habit and ''habitually'' imply a series of repeated acts. If there are a series of FIRs for the same offence, then it can safely be inferred that the offender is in the ''habit'' of committing the same offence. Thus, the conviction u/s 413 IPC is based not on previous conviction, but on an inference of the offender''s conduct. In order to support this plea, the learned counsel has relied on the case of
Thirdly, as previous conviction for offence u/s 411 IPC is not a pre-requisite, the appellant could be charged with offence u/s 413 IPC at the initial stage itself. In fact, the prosecution had produced a large number of FIRs, chalked out against the appellant, in order to establish that the appellant was in the ''habit'' of dealing with or receiving stolen property.
Fourthly, there was no need for the learned Judge to follow the procedure laid down in Section 211(7) Cr.P.C. or to follow the procedure u/s 236 Cr.P.C. For, section 413 is a distinct offence. It does not require previous conviction. Therefore, the question of ''punishment of different kind'' does not even arise. Since the present case does not fall u/s 211(7) Cr.P.C. the question of following the procedure u/s 236 Cr.P.C. is meaningless.
Lastly, Chapter III of IPC prescribes different punishments which can be meted out to an accused. section 75 IPC, falling under the said chapter, clearly prescribes that for a subsequent conviction for an offence under Chapter XVII of IPC--dealing with offences against property--the accused can be sentenced to life imprisonment or to ten years of sentence and fine, or both. Thus, even if the argument of the learned counsel for the appellant were accepted, for the sake of argument, even then the case would fall u/s 75 IPC, and neither u/s 211(7) Cr.P.C. nor u/s 236 Cr.P.C.
54. In rejoinder, Mr. Bajwa has contended that a distinction has to be made between preventive detention and a punitive one. The case of Mehamud (supra) deals with preventive detention. Therefore, the Hon''ble Supreme Court was justified in concluding that mere existence of the FIRs would justify the inference that the person is in the habit of receiving stolen property. But section 413 IPC is a punitive provision, and not a preventive one. Before an offender can be convicted and sentenced to life imprisonment, before he can be denuded of his life or liberty, a different yardstick would have to be applied. Therefore, the cases dealing with preventive detention do not aid the prosecution.
Secondly, even if for the sake of argument it were accepted that section 75 IPC would apply, but even then a charge for section 75 IPC should have been framed. But the learned Judge has failed to do so. Hence, a grave injustice has been caused to the appellant.
55. These contentions and counter-contentions raise the following issues for the determination of this court: firstly, what is the meaning of the words habit and habitually? Secondly, is there a difference between preventive and punitive detention? Thirdly, are the yardsticks for the two classes different or same? Fourthly, what is the scope and ambit of section 413 IPC? Fifthly, does section 413 IPC require a previous conviction? Sixthly, if so, what is the procedure to be followed before a charge for offence under the said provision can be framed? Seventhly, has the correct procedure been followed in the present case? Lastly, if not, then has any prejudice been caused to the appellant?
56. According to Encyclopedic Law Lexicon, by Justice C. K. Thakker [2nd Edition (2013), Page 2104] the word habit means that "person should be committing such acts recurrently so as to allow reasonable person of a reasonable prudence to come to a reasonable conclusion that he is in the habit of committing such acts". "The word ''habit'' means "persistence in doing an act, a fact which is capable of proof by adducing evidence of the commission of a number of similar acts". ''Habitually'' must be taken to mean "repeatedly or persistently". "The expression ''habitually'' is very significant". "A person is said to be habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences." [Ref. to
57. Moreover, in the Law Lexicon by P. Ramanatha Aiyar, [Reprint Edn. (1987), P. 499], ''habitually'' means "constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice". The word ''habitually'' means ''usually'' and ''generally''. Almost similar meaning is assigned to the words ''habit'' in Aiyar''s Judicial Dictionary, [10th Edn., p. 485]. It does not refer to the frequency of the occasions, but to the invariability of practice and the habit has to be proved by totality of facts.
58. The Hon''ble Supreme Court has repeatedly dealt with the words, ''habit'' and ''habitually''--from
6. u/s 23 of the Police Act, 1861, the police is under a duty to prevent commission of offences and to collect intelligence affecting the public peace. For the efficient discharge of their duties, the police officers are empowered by the Punjab Police Rules, 1934 to open the history sheets of suspects and to enter their names in police register No. 10. These powers must be exercised with caution and in strict conformity with the rules. The condition precedent to the opening of history sheet under Rule 23.9(2) is that the suspect is a person "reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person". Similarly, the condition precedent to the entry of the names of the suspects in Part II of police register No. 10 under Rule 23.4(3)(b) is that they are "persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not". If the action of the police officers is challenged, they must justify their action and must show that the condition precedent has been satisfied.
7. A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rules 23.4(3)(b) and 23.9(2). Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender.
59. The above stated principle is certainly applicable to preventive detention. But in catena of cases the Hon''ble Supreme Court has distinguished between a preventive detention and a punitive one. The Constitution Bench in the case of
19. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the Executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove his guilt and the standard of proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which is necessary for reasons mentioned in Section 3 of the Act to prevent.
60. Similar views have also been expressed in the case of
61. Moreover, in the case of
35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a "jurisdiction of suspicion" (vide State of Maharashtra v. Bhaurao Punjabrao Gawande, SCC para 63). The detaining authority passes the order of detention on subjective satisfaction.
62. Relying on the case of Rex v. Halliday [1917 AC 268], in the case of
A preventive detention as was held in Rex v. Halliday, 1917 AC 268 ''is not punitive but precautionary measure''. The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence. In this sense it is an anticipatory action. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. In case of punitive detention the person concerned is detained by way of punishment after being found guilty of wrong doing where he has the fullest opportunity to defend himself, where preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in any conduct injurious to the society.
63. In the case of Sunil Fulchand Shah v. Union of India [(2003) 3 SCC 409], although Hon''ble Mr. Justice G.T. Nanavati differed with the view of majority on the question of law, but His Lordship pointed out the difference between the preventive detention and the punitive one. His Lordship opined that "the distinction between preventive detention and punitive detention has now been well recognised. Preventive detention is qualitatively different from punitive detention/sentence. A person is preventively detained without a trial but punitive detention is after a regular trail and when he is found guilty of having committed an offence. The basis of preventive detention is suspicion and its justification is necessity. The basis of a sentence is the verdict of the court after a regular trail. When a person is preventively detained his detention can be justified only so long as it is found necessary."
64. There are, indeed, few similarities and great differences between preventive detention and punitive detention: both are sanctified by the Constitution of India. Both are reflection of the sovereign power of the State. Both deprive a person of personal liberty. Both have to be carried out and implemented under the due process of law. In both, there are inbuilt safeguards in order to protect the liberty of the person. Both are methods to protect the society from the dangerous elements found within the society.
65. But while the preventive detention is the prerogative of the Executive, although supervised by the Judiciary, punitive detention comes within the realm of the judiciary. While preventive detention is based on the future possibility of the person''s dangerous activities, punitive detention is based on his past illegal action. In preventive detention a presumption of the person being dangerous to the society is drawn, in punitive detention the presumption of the offender being innocent exists. Thus, while the preventive detention is based on "jurisdiction of suspicion", the punitive detention is based on "jurisdiction of proof beyond a reasonable doubt". While the object of preventive detention is to pre-empt a person from doing an act which could pose a threat to the society at large, the object of punitive detention is to punish a person for the illegal act already committed by him. Hence, while the former is not a punishment, the latter is. Moreover preventive detention is based on the subjective satisfaction of the Executive; punitive detention, on the objective assessment of the Judiciary. Hence, the very basis of preventive and punitive detention is worlds apart. Therefore, the yardstick applicable to preventive detention is inapplicable to punitive detention. Thus, penal provision cannot be interpreted on the basis of the standards applicable to preventive detention. Hence, the contention raised by Mr. Bajpai that the same yardstick would be applicable to punitive detention as to the preventive detention is unacceptable.
Interpretation of section 413 IPC:
66. section 413 IPC cannot be interpreted in isolation. Falling under Chapter XVII of IPC, dealing with ''Offences Against Property'', Sections 410 to 414 form a sub-group entitled ''Of the Receiving of Stolen Property''. Thus, some of these provisions would have to be read together.
67. section 410 IPC defines the term ''stolen property'' as under:
Stolen property:- Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as ''stolen property'', [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without [India]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
68. Thus, according to this provision a property is deemed to be ''stolen'' if it is transferred through one of the five modes, namely through theft, or through extortion, or thorough robbery, or is subject of criminal misappropriation, or with respect of which criminal breach of trust has been committed. Conversely, if the property has not been transferred through one of these modes, then the property is not a ''stolen property''. Or if the property comes back to the original owner, then it ceases to be ''stolen property''.
69. section 411 IPC is as follows:
Dishonestly receiving stolen property--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
70. In the case of
71. Of course, in the case of
72. section 413 IPC is as under:
Habitually dealing in stolen property-Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
73. Sections 411 and 413 IPC prescribe two distinct, but interrelated offences. There are certain similarities and differences between the two: both are concerned with ''stolen property''. Under both the provisions, the offender must have the ''knowledge'' or a ''reason to believe'' that the property is stolen as defined in section 410 IPC. But while section 411 IPC deals with ''dishonestly receiving'' or ''retaining'' stolen property, section 413 IPC deals with habitually ''receiving or dealing'' with stolen property. There is a difference between ''retaining'' and ''dealing''. ''To retain'' means to keep it in one''s possession or custody; ''to deal'' implies that the offender has certain concern with the property either by keeping it in his possession, or parting with the ownership, or possession of the property through any of the modes of transfer of property. Hence, the verb ''to deal'' is broader in its scope than the verb ''to retain''. Most importantly, while section 411 IPC lays down punishment for one time act, section 413 IPC prescribes punishment for a series of similar acts which would prove the ''habit'' of the offender. Furthermore, while section 411 IPC punishes a single act with a term of three years, or with fine, or with both, section 413 IPC punishes a series of act with life imprisonment. Thus, section 413 IPC is a more aggravated form of section 411 IPC. It prescribes harsher and ''a punishment different kind'' as the person has been indulging in similar act of receiving and retaining stolen property over a period of time.
74. But the moot question is whether in order to establish ''habit'' or ''habitually receives or deals with'', one needs mere existence of FIRs, or the offender has to be convicted of offense u/s 411 IPC, two or more times, in order to infer ''habit''? As mentioned above, there is a clear cut distinction between preventive detention and punitive one. In preventive detention, considering the previous conduct of a person as reflected in a series of FIRs, the Executive can safely infer that the person is ''dangerous'' or ''habitually deals with stolen property'', or is ''anti-social'' in his conduct or behaviour. Drawing this inference on a subjective basis, the Executive can detain the person preventively.
75. However, the same inference on subjective manner cannot be applied in punitive detention for the following reasons:
firstly, the function of preventive detention and punitive detention are different. Secondly, preventive detention is based on suspicion, punitive detention, on proof or evidence produced during a full-fledged trial. Thirdly, in punitive detention the offender is presumed to be ''innocent'' till proven guilty. It is the bounden duty of the State to prove the guilt of the offender. Moreover, the proof has to be ''beyond a reasonable doubt''. Mere existence of series of FIRs does not amount to ''proof, as a FIR is nothing but allegations made by the complainant. Allegations are not ''proof of the fact. The allegations have to be established and proved through cogent and convincing evidence. Further, a series of charge-sheets for offence u/s 411 IPC would not tantamount to ''proof. For, charge-sheet is nothing but conclusions drawn by the investigating agency. Thus, a series of FIRs or a series of charge-sheets would not ipso facto establish ''habit'' or ''habitually dealing with or receiving'' stolen property.
76. Something more is required to establish that the offender is in ''the habit of dealing with'' or ''receiving stolen property''. Since the offence u/s 413 IPC is inter-related with and is an aggravated form of section 411 IPC, the State would have to prove and establish that the offender was convicted repeatedly, twice or more than twice, for offence u/s 411 IPC so as to establish beyond a reasonable doubt that he is in the ''habit of dealing with or receiving stolen property''. Therefore, the conviction u/s 413 IPC is based on repeated convictions for offence u/s 411 IPC. Due to previous conviction, ''a punishment of different kind'' is prescribed in section 413 IPC which the accused is required to undergo.
77. Hence, while prosecuting a person for offence u/s 413 IPC, the prosecution has to prove the following factors: firstly, the property in question has been ''stolen'' from a place. Thus, the prosecution must bring the property within the ambit of section 410 IPC--within the definition of ''stolen property''. Secondly, the offender has been dealing with or receiving stolen property. Thirdly, the offender knew or had a reason to believe the property to be stolen. Fourthly, he has been repeatedly convicted, i.e. twice or more than twice, of offence u/s 411. It is only after the prosecution establishes these factors that the court would be legally justified in concluding that the offender is in the ''habit'' or has been ''habitually dealing with or receiving stolen property'' and in imposing the punishment as prescribed by section 413 IPC.
78. While dealing with charge for offence u/s 413 IPC, the following issues arise for the consideration of this court: was the charge framed properly? Was the correct procedure followed while framing the charge? If not, then has any prejudice been caused to the appellant?
79. Charge No. 2 is as under:
That along with the other co-accused persons, on the said date, time and place, you have made Jaipur the main center for buying and selling stolen old and rare sculptures/art objects of archeological Significance/antiques and parts of old ruins, and their colored photographs, and you have transported them through trucks belonging to Transport Standard Co./Golden Transport Co. to Swaroop Goyal''s warehouse and to Sainik Farm in Delhi. After getting them packed there, in connivance with Pradeep Malhotra you have sent these stolen articles to Indian Craft Warehouse, D-21/5, Okhla Phase I, Delhi--on invoice from India Crafts. You have transported them abroad to private auction houses for being sold at higher prices. You have entered into a conspiracy to sell or to try to sell these stolen properties. Thus you have habitually been involved in trading or in conspiracy to trade these stolen properties. This act of yours falls u/s 413 read with Section 120B IPC, for which I have already taken cognizance.
(English translation of the charge framed in Hindi)
80. A bare perusal of the charge clearly reveals that it neither mentions a series of FIRs which were recorded against the appellant, nor mentions any previous conviction u/s 411 IPC. It merely alleges that the appellant is ''dealing with stolen property'' in conspiracy with the other co-accused persons for the last thirty years as mentioned in Charge No. 1. Moreover, it does not charge him with ''knowledge'' or with ''reason to believe'' that the property being sent, being transported by him were ''stolen property''. Hence, the Charge No. 2 does not even mention the basic ingredients of offence u/s 413 IPC. Further, it does not mention any previous convictions u/s 411 IPC. Therefore, it fails to inform the appellant about the offence for which he was being tried for; it also fails to explain the evidence which may be used against him for trying him for offence u/s 413 IPC. It leaves the appellant groping in the dark.
81. Further, Sections 211(7) and 236 Cr.P.C. prescribe the procedure for charging an offender where he is liable for "enhanced imprisonment", or "to a punishment of a different kind" due to previous conviction.
82. section 211(7) Cr.P.C. is as under:
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to, enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it any time before sentence is passed.
83. section 236 Cr.P.C. lays down the following procedure:
Previous conviction--In a case where a previous conviction is charged under the provisions of Sub-section (7) of section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused u/s 229 or section 235, take evidence in respect of the alleged previous conviction, and shall record a finding thereon:
Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted u/s 299 or section 235.
84. section 211(7) Cr.P.C. requires that in case an offender is liable to either "an enhanced punishment", or "a punishment of a different kind" due to his previous conviction, then the court must mention the fact, date and place of such conviction in the charge. If the Court omits to do so, it may do so prior to passing of sentence. Moreover, section 236 Cr.P.C. lays down that the offender''s plea with regard to the previous conviction should be recorded by the Court. In case he denies the previous conviction, then the Court should take evidence in respect of the alleged previous conviction.
85. What is warranted by the law was also opined by the Hon''ble Calcutta High Court in the case of Uttom Koondoo (supra). Their Lordships observed as under:
We may observe that the prisoners could not be tried at the same trial for receiving or retaining (s. 411) and habitually receiving or dealing in (s. 413) stolen property, these two offences not being offences of the same kind (s. 453, Code of Criminal Procedure). The proper course would have been to try the accused first for the offences under s. 411, and then, if he were convicted, to try him for the offence under s. 413, putting in as evidence the previous convictions under s. 411, and proving the finding of the rest of the property in respect of which no separate charge, under s. 411 could be made or tried by reason of the provisions of s. 453, Code of Criminal Procedure.
86. A bare perusal of the Charge Order dated 4-9-2004 clearly reveals that the learned Judge has not followed the procedure prescribed by Sections 211(7) and 236 Cr.P.C. Firstly, he has charged the appellant both u/s 411 and u/s 413 IPC. Secondly, in the Charge No. 2 he has neither mentioned the fact with regard to the date, or the place of previous conviction. Thirdly, the learned Judge has not even brought the previous conviction to the appellant''s notice. Fourthly, he has not recorded the appellant''s plea with regard to his previous conviction. Thus, the learned Judge has ignored the mandate of Sections 211(7) and 236 Cr.P.C.
87. Admittedly, the Judicial Magistrate, Bhanpura convicted the appellant on 24-2-2006 for offence u/s 411 IPC. Admittedly, the learned Judge has used the said conviction as a plank for convicting the appellant for offence u/s 413 IPC. Thus, according to procedure prescribed by Sections 211(7) and 236 Cr.P.C. at the initial stage of framing the charge, the learned Judge could not and should not have framed the Charge No. 2 for offence u/s 413 read with Section 120B IPC. Instead, the learned Judge should have waited till the appellant was convicted for offence u/s 411 IPC by a court of law, and then framed the Charge No. 2 while mentioning the date and place of the conviction in the charge. In accordance with section 236 Cr.P.C. the learned Judge should have recorded the appellant''s plea vis-�-vis the said conviction. In case he were to deny the said conviction, then the learned Judge should have proceeded to take evidence about the conviction. However, in the present case the learned Judge has failed to follow the procedure established by law.
88. Interestingly, the prosecution had submitted a series of FIRs in order to establish that the appellant was habitually dealing with, or receiving stolen property. Curiously, in the impugned judgment, the learned Judge initially claims that he would be considering the different FIRs in order to see if the appellant were "habitually" dealing with, or receiving stolen property. But subsequently, the learned Judge convicts the appellant for offence u/s 411 IPC for the Jain idol allegedly stolen from Bhadesar. In order to convict the appellant for offence u/s 413 IPC, the learned Judge argues that the appellant was already convicted for offence u/s 411 IPC by the Judicial Magistrate, Bhanpura and now he has been convicted for offence u/s 411 IPC, for the Jain idol by him. Therefore, the appellant has "two convictions" for offence u/s 411 IPC against him. Hence, he is ''habitually dealing with or receiving stolen property''. Thus, the appellant is guilty of offence u/s 413 IPC.
89. This sudden change in the stand of the learned Judge--from using the FIRs as indicating the ''habit'', to using the convictions as proving the ''habit''--has lead to an anomalous situation. For, through Charge No. 2, the appellant was never informed that the conviction by the Judicial Magistrate, Bhanpura would be used against him. The use of the said conviction must have come as a surprise to him. After all, his plea with regard to the said conviction was never recorded. Hence, a major piece of evidence which would be used against him was never even brought to his notice.
90. Furthermore, while the FIR registered at Bhadesar and the charge-sheet submitted at Badi Sadari have been produced before the learned Judge, the appellant was never informed that he is being tried for the said charge-sheet at Jaipur. In fact, during the trial at Jaipur, the appellant was also being tried at the court at Badi Sadari. Thus, the appellant could not even imagine that he would be eventually convicted for the Jain idol by the learned trial court at Jaipur. Since the prosecution had not examined all the witnesses mentioned in the Badi Sadari charge-sheet, the appellant was kept in the dark with regard to his trial for the Jain idol at Jaipur. Hence, as far as the appellant''s conviction for Jain idol is concerned, he was subjected to a truncated trial. Since the appellant was not given an opportunity to fully test the veracity of the prosecution case with regard to the Jain idol, since the prosecution had merely produced four witnesses qua the Bhadesar case, the appellant''s right of a fair trial was violated. Yet, after subjecting the appellant to an incomplete trial, after violating his right of fair trial, the appellant has been convicted for offence u/s 413 by using the conviction for the Jain idol as a plank. Thus, obviously an injustice has been caused to the appellant.
91. In short, by violating the procedure for framing of the charge, by framing a vague charge, by keeping him in the dark, by springing a surprise about the Bhanpura conviction--a conviction not mentioned in the Charge No. 2, by subjecting the appellant to an incomplete trial vis-�-vis the Jain idol, yet using the said conviction against him, an injustice has been caused to the appellant. Hence, the Charge No. 2 is clearly unsustainable.
92. Of course, Mr. Bajpai has tried to shelter Charge No. 2 from Mr. Bajwa''s onslaught. Mr. Bajpai has feebly tried to argue that section 413 IPC is both preventive and punitive in nature. For, by incarcerating an accused, he is pre-empted from committing further offences. Thus, the provision is preventive in nature. However, such an argument is clearly unacceptable. For such logic clearly blurs the distinction between preventive detention and punitive detention; it goes against the distinction drawn by law, and by interpreters of law between the two classes. Secondly, under this reasoning all penal provisions would per se part-take of being preventive in nature. Since the two classes use different methodology to reach their conclusion, since the yardsticks are different between the two, it could not be the intention of the Legislature to make a penal provision a punitive one. Hence, such a plea has merely to be uttered to be rejected.
93. Mr. Bajpai has also relied on section 75 IPC to plead that the learned Judge has ample power under the said provision to impose an enhanced punishment on the basis of a previous conviction. However, even this contention is misplaced.
94. section 75 IPC is as under:
Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction:--
Whoever, having been convicted--
a) By a Court in [India] of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to [imprisonment for life], or to imprisonment of either description for a term which may extend to ten years.]
95. section 75 IPC is in Chapter III of the Indian Penal Code which deals with the different types of punishments which may be imposed on an accused person. It prescribes varieties of punishment which may be imposed: it deals with fine, it defines the consequences of non-payment of fine, and the consequence of part-payment or full payment of fine; it also deals with solitary confinement and with the power of the court to impose enhanced punishment in certain well defined situations. Thus, this chapter contains enabling provisions which define the power of the court to impose punishment. section 75 IPC does not constitute a separate offence. It merely makes an offender liable for enhanced punishment for the subsequent offence committed by him in case his previous conviction was also for an offence(s) falling under Chapter XII or Chapter XVII of IPC. section 75 IPC merely permits the court to impose a harsher punishment than provided under Chapter XII and Chapter XVII. In order to bring an offence within the terms of this section, the prosecution must establish three things, namely the offence must be under Chapter XII or Chapter XVII, the previous conviction must have been for an offence therein punishable with imprisonment for not less than three years, and the subsequent offence must also be punishable with imprisonment for not less than three years.
96. But before an enhanced punishment can be imposed upon an accused u/s 75 IPC, a separate charge under the said provision would have to be framed by the trial court so as to inform the offender that he is liable to be imposed with an enhanced punishment due to his previous conviction. Moreover, while section 75 IPC empowers the court to impose an enhanced punishment on an accused, if the conditions mentioned therein are satisfied, Sections 211(7) and 236 Cr.P.C. prescribe the procedure for imposing an enhanced or different punishment in case of previous conviction. Thus, section 75 IPC would necessarily have to be read with section 211(7) and section 236 Cr.P.C. This is also clear from Form No. 32 attached with Cr.P.C. However, in the present case, the learned trial court has neither taken the aid of section 75 IPC--as it has not framed a separate charge under the said provision, nor adhered to the procedure laid down by Sections 211(7) and 236 Cr.P.C. Hence, the learned Special Public Prosecutor is unjustified in relying on section 75 IPC in order to support Charge No. 2 framed by the learned Judge.
97. Mr. Bajpai has also argued that offences under Sections 411 and 413 IPC are distinct. Thus, the latter offence is independent of the former one. Moreover, the latter offence is not based on the previous conviction recorded for the former one. And the punishment prescribed u/s 413 IPC is not of a ''different kind'' based on the conviction u/s 411 IPC. Therefore, the procedure laid down by Sections 211(7) and 236 Cr.P.C. need not be followed. However, these contentions are unacceptable in the light of the interpretation given by this court mentioned above.
98. In short, the learned Judge should have waited till the appellant was convicted at least twice for offence u/s 411 IPC, should have framed a separate charge u/s 75 IPC, should have brought the previous convictions for offence u/s 411 IPC to the appellant''s notice, and should have recorded his plea about the previous conviction. If the appellant were to deny the said previous convictions, then the learned Judge should have recorded evidence about the previous convictions. Only when the ingredients of Sections 413 IPC were satisfied, then the learned Judge would have been justified in charging an accused for offence under the said section. However, in the present case the procedure mentioned above has been ignored by the learned Judge. As stated above, an injustice has been caused to the appellant. Thus, Charge No. 2 is legally unsustainable.
Challenging the Trial for Offences Framed under Charge Nos. 5 and 7:
99. Mr. Vivek Bajwa has also questioned the validity of the trial for the offences framed under Charge Nos. 5 and 7 by the learned Judge. The contentions raised by the learned counsel require this court to discuss the inter-relationship between the Criminal Procedure Code and the AAT Act, to enumerate and analyze the provisions of the AAT Act, to examine if the requirement of the provisions of AAT Act have been fulfilled or not, and lastly to see if the non-fulfillment of the provisions have prejudiced the appellant or not.
100. Charge No. 5 is as under:
That you along with the other co-accused persons, from the specified date, time and place (took) the rare sculptures/art objects, antiques, and their colored photographs which were stolen, and which fall under the category of being antiquities, (and) without a permit issued by the competent officer, you exported, or attempted to export, or cooperated in commission of illegal acts, which fall u/s 3 of Antiquities and Art Treasure Act 1972 and is punishable u/s 25(1) of the AAT Act, of which I have already taken cognizance.
101. Charge No. 7 is as follows:
That you along with the other co-accused persons, from the specified date, time and place those objects which fall under the category of antiquities and were stolen, without the registration of those objects before a competent officer, kept in your possession or control, your action falls u/s 14/25(1) of the AAT Act, 1972, of which I have already taken cognizance.
(English translation of the Charges framed in Hindi)
102. Mr. Vivek Bajwa has raised the following contentions: firstly, the AAT Act is a special law dealing with art and antiquities. Taking help of section 4 of Cr.P.C. and of
Secondly, section 26 of the AAT Act prescribes a special procedure. According to section 26(1) of the AAT Act a prosecution for an offence under sub-section 25(1) cannot be instituted except by or with the sanction of such officer of government as may be prescribed in this behalf. section 25(1) of the AAT Act prescribes punishment for offence u/s 3 of the AAT Act. Moreover, according to Section 26(2) no court can take cognizance of offence punishable under sub-section (2) or sub-section (3) of section 25 except upon complaint in writing made by an officer generally or specially authorized in this behalf by the Central Government. section 25(2) and (3) prescribe punishment for offences committed under Sections 5, 12, 13(2) and 13(3), 14, and 17 of the AAT Act. According to the learned counsel, both the sub-sections use two different words, ''sanction'' and ''authorization''. Thus, the legislature has maintained a difference between the two. Further, according to Rule 15 of the Antiquities and Art Treasures Rules, 1973 (''the Rules'', for short), only the Director-General of Archaeology Survey of India (''ASI'', for short) is the competent authority to issue a sanction order u/s 26(1) of the AAT Act. Hence, section 26(1) of the AAT Act makes the issuance of a sanction order a pre-requisite condition for institution of a prosecution.
103. Moreover, ''to institute prosecution'' does not mean mere submission of a complaint, or a charge-sheet. Relying on the case of
104. According to the learned counsel, the contention with regard to lack of sanction order was raised by the appellant before the learned Judge. However, the learned Judge has dismissed the plea on the ground that although their nomenclature may differ, but ''an authorization letter'' and a ''sanction order'' are one and the same. Since an authorization letter was given for instituting the prosecution, therefore, a sanction order does exist. The learned counsel has challenged this finding as well. Moreover, relying on the case of
Secondly, there are only two authorization letters available on record: an Authorization Letter dated 2-9- 2003 (Ex. P. 227) issued by Gauri Chatterjee (P.W. 70) the Director-General, ASI; an Authorization Letter dated 23-4-2004 (Ex. P. 219) issued by Hari Manjhi (P.W. 69), the Director (Antiquities) ASI. [There are two documents in this case which have been inadvertently marked as Ex. P. 227. One is the Authorization Letter dated 2-9-2003, the other is a list/report submitted by the ASI].
105. The first Authorization Letter (Ex. P. 227), in terms of time, suffers from various lacunae: firstly, though section 26(1) requires an issuance of a ''Sanction Order'' before instituting a prosecution for offence u/s 25(1) of the AAT Act, but instead an ''Authorization Letter'' has been issued for offence u/s 3 and punishable u/s 25(1) of the AAT Act. The said Authorization Letter is not a ''Sanction Order''. Thus, the requirement of section 26(1) of the AAT Act has not been fulfilled. Further, the Authorization Letter (Ex. P. 227) suffers from the virus of non-application of mind. For, paragraph 1 and 2 are contradictory to each other. Moreover, according to Gauri Chatterjee (P.W. 70) when she issued the Authorization Letter (Ex. P.227), neither the police papers were placed before her, nor she had the availability of the artifacts. Hence, the Authorization Letter (Ex. P.227) suffers from non-application of mind. Furthermore, the Authorization Letter (Ex. P.227) had granted the permission to Mr. Anand Srivastava, S.P. Jaipur for filing the charge-sheet/complaint. However, Mr. Rajendra Kumar Tyagi (P.W. 75) has submitted the charge-sheet. Hence, the charge-sheet has been filed by a person who was not even authorized to do so. Lastly, Mr. Anand Srivastava being a delegatee could not have further delegated the power to file the charge-sheet to Mr. Rajendra Kumar Tyagi (P.W. 75). In order to buttress this contention, the learned counsel has relied upon the case of
106. Mr. Bajwa has further submitted that even the second Authorization Letter, dated 23-4-2004 (Ex. P. 219), suffers from many defects: firstly, the said Authorization Letter has not been issued by the Director-General as required by Rule 15 of the Rules, but by Mr. Hari Manjhi (P.W. 69) who was the Director (Antiquities) ASI. There is no evidence to show that the Director-General had delegated the power to issue sanction order to the Director (Antiquities) ASI.
Secondly, the Authorization Letter was issued after the cognizance was already taken on 3-9-2003. Thirdly, the Authorization Letter authorizes Mr. Ramveer Singh, Inspector of Police, SHO, P.S. Vidhyadhar Nagar to file the complaint/charge-sheet against nineteen persons, including the present appellant. But the charge-sheet was filed not by Mr. Ramveer Singh, but by Mr. Rajendra Kumar Tyagi (P.W. 75) as mentioned above. Again, Mr. Ramveer Singh could not have further delegated the power to file the complaint/charge-sheet to Mr. Rajendra Kumar Tyagi (P.W. 75). Therefore, the charge-sheet has been filed by a person not authorized to do so. Hence the conviction for offences u/s 3 and 14/ of the AAT Act would have to be set aside.
Thirdly, Section 26(2) requires that a ''complaint'' in writing be filed by an officer authorized by the Central Government. However, the police have not filed a complaint. Instead, the police have filed a charge-sheet. The Code of Criminal Procedure not only differentiates between a complaint and a charge-sheet, but it also prescribes different procedure for trial in complaint case, and in case based on police report. If a complaint were filed, the Magistrate would have followed the procedure laid down in Chapter XV of Cr.P.C. u/s 202 Cr.P.C. he would have been required to hold an inquiry. He would have examined whether a legally valid sanction order, or authorization letter existed or not. In case it did not, he would and could have dismissed the complaint u/s 203 Cr.P.C. However, as a complaint was not filed, the legally correct procedure has not been followed. Thus, the appellant''s right to a fair trial has been violated.
107. On the other hand, Mr. Ajay Bajpai has countered by submitting that the present case was registered on a FIR by the police. Therefore, from the initial stage, it was a case based on a police report. Secondly, the issue with regard to non-filing of a complaint by the officers of ASI was raised earlier by the appellant in the Criminal Revision filed by him before this court, namely in
108. In rejoinder, Mr. Bajwa has submitted that the learned Special Public Prosecutor is unjustified in relying on the decision of this court in the Criminal Revision filed by the appellant, namely Vaman Narayan Ghiya (supra). For, the said judgment was challenged by the appellant before the Hon''ble Supreme Court. By order dated 11-4-2008 the Apex Court had granted the liberty to raise the issue with regard to non-issuance of the sanction order before the appellate court. Hence, these contentions are being raised now before the court.
Inter-relationship between the Cr.P.C. and the AAT Act:
109. section 4 Cr.P.C. deals with trial of offences under the Indian Penal Code and other laws. It is as under:
4. Trial of offences under the Indian Penal Code and other laws:--(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring, into, trying or otherwise dealing with such offences.
110. Thus, according to sub-section (2) of section 4 Cr.P.C. in case a special law dealing with a particular subject is enacted, then the investigation, the inquiry into, the trial or other dealings would necessary have to be in accordance with the provisions of the special Act. This provision embodies a settled principle of law expressed in the Latin maxim, generalia specialibus non derogant--the special law overrides the general law.
111. In the case of Jeewan Kumar Raut & Anr. (supra) the Hon''ble Supreme Court considered the inter-relationship between the Criminal Procedure Code and the Transplantation of Human Organs Act (''TOHO'' Act, for short)--a special Act. The Apex Court observed as under:
15. TOHO being a special statute, section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. TOHO being a special Act and the matter relating to dealing with offences there under having been regulated by reason of the provisions thereof, cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code.
20. It is a well-settled principle of law that if a special statue lays down procedures, the ones laid down under the general statutes shall not be followed....
20.1 To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondent to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO.
112. Similar views were also expressed by the Apex Court in
113. Although the present case deals with offences under the IPC, but it also covers a few offences under the AAT Act. Since the offences under AAT Act are present, the special law would necessarily override the general law. Hence, the investigation and the trial should have been done in accordance with the provisions of AAT Act wherever applicable.
Provisions of AAT Act: Enumeration and Analysis.
114. India--a land of ancient civilization--has a history of 5000 years. In the last five millennia various peoples have poured into this land. Each civilization, whether Greek or Chinese, Muslims or English, have left their imprint in art and architecture on this land. Dilapidated temples and mosques, ruined fortresses and palaces dot the landscape of this ancient country. In order to preserve the art treasures, in order to control export of objects of antiquarian or historical interest or significance, the Antiquities (Export Control) Act, 1947 was enacted immediately after independence of the country. However, by 1972 it was felt that the Act of 1947 was inadequate for preserving antique objects and art treasures of the country. Thus, in 1972 the AAT Act was legislated. The purpose of this Act is to comprehensively "regulate the export trade in antiquities and art treasures, and to provide for the prevention of smuggling of and fraudulent dealings in antiques. It was also considered necessary to make provisions in such law for the compulsory acquisition of antiquities and art treasures for preserving in public places".
115. The relevant provisions of AAT Act are as under:
Section 3 of the AAT Act:
3. Regulation of export trade in antiquities and art treasures--(1) On and from the commencement of this Act, it shall not be lawful for any person, other than the Central Government or any authority or agency authorised by the Central Government in this behalf, to export any antiquity or art treasure.
(2) Whenever the Central Government or any authority or agency referred to in sub-section (1) intends to export any antiquity or art treasure such export shall be made only under and in accordance with the terms and conditions of a permit issued for the purpose by such authority as may be prescribed.
section 5 of the AAT Act:
5. Antiquities to be sold only under a licence--[As from the date of expiry of a period of six months from the commencement of this Act], no person shall, himself or by any other person on his behalf, carry on the business of selling or offering to sell any antiquity except under and in accordance with the terms and conditions of a licence granted u/s 8.
Explanation.--In this section and in sections 7, 8, 12, 13, 14, 17, and 18 "antiquity" does not include ancient and historical records other than those declared by or under law made by Parliament to be of national importance.
section 14 of the AAT Act:
14. Registration of antiquities.--(1) The Central Government may, from time to time, by notification in the Official Gazette, specify those antiquities which shall be registered under this Act.
(2) In specifying the antiquities under sub-section (1), the Central Government shall have regard to the following factors, namely:--
(i) The necessity for conserving the objects of art;
(ii) The need to preserve such objects within India for the better appreciation of the cultural heritage of India;
(iii) Such other factors as will, or are likely to, contribute to the safeguarding of the cultural heritage of India.
(3) Every person who owns, controls or is in possession of any antiquity specified in the notification issued under Sub-section (1) shall register such antiquity before the registering officer--
(a) in the case of a person who owns, controls or possesses such antiquity on the date of issue of such notification, within three months of such date; and
(b) in the case of any other person, within fifteen days of the date on which he comes into ownership, control or possession of such antiquity, and obtain a certificate in token of such registration.
section 23 of the AAT Act:
23. Powers of entry, search, seizure, etc.--(1) Any person, being an officer of Government, authorised in this behalf by the Central Government, may, with a view to securing compliance with the provisions of this Act or to satisfying himself that the provisions of this Act have been complied with--
(i) enter and search any place;
(ii) seize any antiquity or art treasure in respect of which he suspects that any provision of this Act has been, is being, or is about to be, contravened and thereafter take all measures necessary for securing the production of the antiquity or art treasure so seized in a court and for its safe custody, pending such production.
Section 24 of the AAT Act:
24. Power to determine whether or not an article, etc., If any question arises whether any article, object or thing or manuscript, record or other document is or is not an antiquity or is not an art treasure for the purposes of this Act, it shall be 13 antiquity or art treasure is not an art treasure for the purposes of this Act, it shall be referred to the Director-General, Archaeological Survey of India, or to an officer not below the rank of a Director in the Archaeological Survey of India authorised by the Director General, Archaeological Survey of India and the decision of the Director-General, Archaeological Survey of India or such officer, as the case may be, on such question shall be final.
(2) The Provisions of sections of 102 and 103 of the Code of Criminal Procedure, 1898 (5 of 1898) relating to search and seizure shall, so far as may be, apply to searches and seizures under this section.
section 25 of the AAT Act:
25. Penalty.--(1) If any person, himself or by any other person on his behalf, exports or attempts to export any antiquity or art treasure in contravention of section 3, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962 as applied by section 4, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine.
(2) If any person contravenes the provisions of section 5 or section 12 or sub-section (2) or Sub-section (3) of section 13 or section 14 or section 17, he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both and the antiquity in respect of which the offence has been committed shall be liable to confiscation.
(3) If any person prevents any licensing officer from inspecting any record, photograph or register maintained u/s 10 or prevents any officer authorised by the Central Government under Sub-section (1) of section 23 from entering into or searching any place under that sub-section, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
section 26 of the AAT Act:
26. Cognizance of offences.--(1) No prosecution for an offence under sub-section (1) of section 25 shall be instituted except by or with the sanction of such officer of Government as may be prescribed in this behalf.
(2) No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) of section 25 except upon complaint in writing made by an officer generally or specially authorised in this behalf by the Central Government.
(3) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence.
116. A bare perusal of these provisions clearly reveals that while Section 3 regulates the export of antiquities and art treasures, it restricts the right to do so only to the Central Government, or any authority, or agency duly authorized by the Central Government. Section 5, on the other hand, permits person to carry on the business of selling or offering to sell any antiquity provided it is done in accordance with the terms and conditions of a licence granted by the Central Government. section 14 makes the registration of antiquities compulsory.
117. Sections 23 to 30 deal with procedure for investigation and trial and punishment under the AAT Act. section 23 deals with investigation of a case: it bestows the power to enter, search and seize any antiquity or art treasure in respect of which the person authorized by the Central Government suspects that any provision of this Act has been, is being, or is about to be contravened. It empowers such an authorized person to take all measures necessary for securing the production of the antiquity, or art treasure so seized in a court and for safe custody, pending such production. It also enjoins the authorized person to adhere to Section 102 and 103 Cr.P.C.
118. Section 24 empowers the Director-General or a person authorized by him, but not below the rank of Director, to determine if an object or document is or is not an antique. The opinion shall be final. We shall deal with the scope of ''finality'' of the report later in the judgment.
119. section 25 is a penal provision. section 25(1) punishes the violation of Section 3--that is if an antique or art treasure is exported by an unauthorized person; section 25(2) prescribes punishment for those who violate Sections 5-- sale of antiques or art treasure without a proper licence, Section 12--selling of antiques by a person whose licence has been revoked to a person who is not a licence holder, Section 13(2)--selling antiques when a bar has been placed by the Central Government, Section 13(3)--where a person fails to make a declaration of all the antiquities in his ownership, control or possession prior to the bar being placed by the Central Government, Section 17--where a person fails to intimate the transfer of antiquities as required u/s 14(1)/ of the AAT Act. Section 25(3) further provide for punishment of those who either prevent any licensing officer from inspecting any record, photograph or register maintained by him, or prevents an authorized person from entering into, searching any place u/s 23 of the AAT Act.
Interpretation of section 26 of the AAT Act:
120. section 26 deals with the procedure for initiating the prosecution and with the power of the court to take cognizance. section 26(1) bars the institution of a prosecution for offence u/s 25(1) except by, or with the sanction of such officer of Government as may be prescribed in this behalf. On the other hand, Section 26(2) prohibits the court from taking cognizance of offence u/s 25(2) and (3) unless a complaint has been filed by an authorized person on behalf of the Central Government. Thus, while section 26(1) requires a Sanction Order, Section 26(2) requires an Authorization Letter. The use of the words "No" and "shall" in section 26(1) and (2) clearly establish that the provisions are mandatory in nature.
121. At the first blush Mr. Bajwa''s thrust on the scope and ambit and the need for adhering to section 26 of the AAT Act is very impressive. However, a close examination of the provision and of the case law strips his arguments of its veneer. A critical analysis of section 26 of the AAT Act brings out certain salient features of the provisions: firstly, the said Section is divided into two parts, namely Sub-section (1) and (2). Secondly, sub-section (1) deals only with offence punished u/s 25(1), i.e. with offence committed u/s 3--with exporting antiquities and art treasures by a person. Thirdly, section 25(1) prescribes a sentence which shall not be less than six months but which may extend to three years and with fine. Fourthly, this sub-section places an embargo on institution of prosecution except by, or with the sanction of such officer of Government as may be prescribed in this behalf. Rule 15 of the Rules lays down that "The Director-general shall be the officer competent in terms of sub-section (1) of section 26 of the Act, to institute, or to sanction institution of prosecution for offences under sub-section (1) of section 25 of the Act". Fifthly, it requires a Sanction Order for institution of prosecution.
122. Meanwhile, the second part, sub-section (2), deals with offences punishable only u/s 25(2) and (3) of the AAT Act. section 25(2) and (3) prescribe a punishment with "imprisonment for a term which may extend to six months or with fine or with both". Secondly, Sub-section (2) debars a court from taking ''cognizance'' except upon a ''complaint'' in writing made by an officer authorized in this behalf by the Central Government. Thirdly, this provision requires the issuance of an ''Authorization Letter'', and not of ''a Sanction Order''. Therefore, as far as the offences u/s 26(1) and (2) are concerned, only an Authorization Letter is required.
123. Relying on the case of General Officer Commanding (supra), the learned counsel has pleaded that ''prosecution is said to be instituted'' when the court takes ''cognizance'' of the offence. However, this contention is misplaced in context of the AAT Act. In the case of General Officer Commanding (supra) the Hon''ble Supreme Court had opined as under:
Thus, in view of the above, it is evident that the expression Institution'' has to be understood in the context of the scheme of the Act applicable in a particular case. So far as the criminal proceedings are concerned, ''Institution'' does not mean filing, presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in the Code of Criminal Procedure.
(Emphasis added)
124. Thus, one has to look at the scheme of the Act before one can conclude that ''institution of prosecution'' means ''cognizance''.
125. A bare perusal of section 26 of the AAT Act itself holds the answer: while sub-section (1) uses the words " No prosecution...shall be instituted....", sub-section (2) employs the words "No court shall take cognizance....". If the expression "No prosecution shall be instituted" were to equal the word ''cognizance'', then there was no need for the legislature to use two different sets of phraseology. After all, one of the principles of interpretation is that no word is used in a legislation which would be redundant. If the legislature meant both the expression and the world to mean the same thing, namely ''cognizance'', then it could have used the phraseology used by it in Section 197 Cr.P.C. namely "no Court shall take cognizance of such offence except with the previous sanction...." Therefore, it stands to reason that the expression and the word, indeed, have different meanings.
126. The words "No prosecution for an offence...shall be instituted" does not mean ''cognizance'' being taken by the court. Instead it refers to the fact that a person shall not be ''prosecuted'' except by or with the sanction of such officer of Government as may be prescribed in this behalf. The word ''prosecution'' means "a criminal action before the court of law for the purpose of determining ''guilt'' or ''innocence'' of a person charged with a crime". In effect, it is putting up a person on trial. Therefore, the words would mean ''no person shall be put on trial'' ''except by or with the sanction of such officer of Government as may be prescribed in this behalf.
127. The words "except by, or with" used in sub-section (1) of section 26 further strengthen the interpretation. In order to understand the use of the words "by, or with", one has to take into account Rule 15 of the Rules. Rule 15 empowers the Director-General ''to institute, or to sanction institution of prosecution'' for offences under sub-section (1) of section 25 in terms of sub-section (1) of Section 26. Thus, the prosecution can be instituted either by the Director-General himself/herself, or it can be instituted by another person, but with a sanction issued by the Director-General. Therefore, section 26(1) of the AAT Act deals with a stage prior to the court taking the ''cognizance''. In light of Rule 15 of the Rules, section 26(1) of the AAT Act merely means that either the prosecution should be instituted ''by'' the Director-General himself/herself, or it should be instituted by a person so authorized ''with'' the sanction granted by the Director-General. Therefore, the interpretation offered by Mr. Bajwa, that ''institution of prosecution'' is equal to ''cognizance'' being taken by a court, is unacceptable.
128. Similarly, Mr. Bajwa has pleaded that every offence, including the offence u/s 25(1) of the AAT Act, can be tried only upon ''a complaint'' filed by the police or the Director General ASI. In order to buttress this plea, the learned counsel has harped on Section 26(2) of the AAT Act. However, his argument stretches the language of Section 26(2) of AAT Act a bit too much. For, Section 26(2) of the AAT Act is restricted only to offences punishable u/s 25(2) and (3) of the AAT Act. It does not include offence punishable u/s 25(1) of the AAT Act. Thus, according to Section 26(2) of the AAT Act, a complaint has to be filed only as far as the offenses u/s 25(2) and (3) of the AAT Act are concerned; the complaint shall be filed by an officer generally or specially authorised in this behalf by the Central Government.
129. However, the question is what about the offence punishable u/s 25(1) of the AAT Act? Section 26(1) of the AAT Act is silent on the point whether a complaint or a charge-sheet needs to be filed for trying an offence punishable u/s 25(1) of the AAT Act. But considering the use of the words "by, or with", considering the scope of Rule 15 of the Rules, it seems that if the Director-General of ASI were to institute the prosecution for offence u/s 25(1) of the AAT Act, he/she shall file a complaint. For, according to Code of Criminal Procedure a ''charge-sheet'' is a ''police report'' as defined u/s 2(r) Cr.P.C. Thus, obviously, a Director-General of ASI cannot file a ''charge-sheet''. Thus, he/she can file only a ''complaint''. On the other hand, if the prosecution were to be instituted by the police for offence covered by section 25(1) of the AAT Act, it shall file a ''charge-sheet'', but with a sanction order issued by the Director-General of ASI. Considering the fact that section 25(1) deals with a cognizable case, the police can certainly investigate the case keeping in mind the requirements of the AAT Act. Thus, the police can file a charge-sheet provided it is accompanied with a sanction order issued by the Director-General of ASI.
130. To sum up, u/s 26(1) of the AAT Act, either a complaint or a charge sheet can be filed; u/s 26(2) of the AAT Act only a complaint can be filed. Of course, the complaint should be filed by an officer generally or specially authorised in this behalf by the Central Government. However, if the offences are punishable u/s 25(1) and (2) or (3) of the AAT Act, then either a complaint, or a charge-sheet can be filed. If the case is being launched by the Director General of ASI, then a complaint shall be filed. If the case is launched by the police, it shall file a charge-sheet along with a sanction order in accordance with AAT Act.
131. Although the division contained in section 26 of the AAT Act may seem anomalous at the first sight, but there seems to be some logic for this division between offences punishable u/s 25(1), and those punishable under sub-section (2) and (3) of the AAT Act. While the former sub-section prescribes a punishment between six months to three years, the latter two sub-sections prescribe a punishment of just up to six months. According to the Criminal Procedure Code, while the former sub-section would, thus, be subjected to a warrant trial, the latter two sub-sections would either be subjected to summons trial, or at the discretion of the court can be subjected to a summary trial. Hence, for the lesser punishment, Section 26(2) requires that a ''complaint'' be submitted by an authorized person. But for the harsher punishment a complaint or a charge-sheet can be filed. The charge-sheet being filed by the police does require a sanction order.
Sanction and Authorization:
132. Interestingly, while section 26(1) uses the word ''sanction'', sub-section (2) uses the word ''authorized''. While both the words, in general parlance mean ''to grant permission'', but the word ''sanction'' has certain legal connotations. All sanctions are authorizations, but it is not necessary that an authorization would be a sanction. Sanction is a genus, authorization is a specie. Sanction is a legal word which means to grant permission to prosecute a person. Sanction order is a requirement of law, where the aim of law is to protect a person from frivolous litigation.
133. Though it may appear curious that the AAT Act would like to protect an alleged offender from vexatious litigation, but one has to remember that the law tries to control the acts of those who are engaged in business of export, or in the business of selling antiquities and art treasure. This class of people would also include those who sell handicrafts and other artistic artifacts. Since economy is the bloodline of a nation, the law tries to protect them from needless legal harassments. Moreover, art objects can be declared as antiquities only by experts. Therefore, it is essential that the opinion of the experts in the field is taken. Further, since the ASI is reposed with the responsibility of protecting the art treasures, and antiquities, it was but natural to have their opinion and sanction before a person could be prosecuted under the AAT Act. Hence, for the graver punishment, it was essential that the criminal proceeding be initiated only with the sanction of the Director-General. Therefore, for prosecuting an offender for offence u/s 3 read with section 25(1) of the AAT Act, the sanction order is a sine quo non condition. As far as offences u/s 25(2) and (3) of the AAT Act are concerned, no sanction order is required; an authorization letter is legally sufficient.
134. In the case of
The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case.
135. Similar views have also been expressed in the case of
136. Although the Hon''ble the Supreme Court was dealing with a sanction order under the Prevention of Corruption Act, recently in the case of State of Maharashtra through C.B.I. v. Mahesh G. Jain [2013 Cri. L.J. 3092 (SC)], the Apex Court has summarized the principles governing sanction order. It would certainly be fruitful to quote from the said judgment, which is as under:
From the aforesaid authorities the following principles
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Gant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of mater placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.
137. Is a Sanction order available on record? Do the two Authorization Letters (Ex. P. 219 and Ex. P. 227) qualify as Sanction Orders? Do these Sanctions Orders/Authorization Letters suffer from some lacunae? Is the appellant prejudiced because of the lacunae which exist in the Sanction Order/Authorization Letter? What would be the consequence of such lacunae? These issues need to be adjudicated upon on the basis of the evidence available on
138. Authorization Letter, dated 2-9-03 (Ex. P.227), is as under:--
No. 10-10/2003-Ant.
Government of India
Archaeological Survey of India
Janpath, New Delhi-11.
Dates 02 September, 2003
AUTHORISATION
Subject: Authorisation for filing complaint by the office of the Suptd. Police, Jaipur City (North) against Shri Vamen Narain Ghiya, House No. 41, Everest Colony, Lal Kothi Scheme, Police Station, Vridha Sabha, Jaipur, Rajasthan and Shri Pradeep Malhotra S/o. Shri Vishan Das Malhotra, House No. 204-B, Gandhi Nagar, Ghaziabad, U.P. u/s. 379, 411, 413, 414, 401, 120B IPC and 3/25(1) of Antiquity and Art Treasures Act, 1972 in Rajasthan Police, FIR 146/2003 Police Station Vidya Dhar Nagar, Jaipur City (North).
In exercise of the power conferred by sub-section (1) of section 25 of Antiquity and Art Treasures Act, 1972 (52 of 1972), the Central Government hereby authorizes Shri ''Anand Shrivastava, Suptd. Police, Jaipur City (North), Jaipur to file complaint/charge-sheet in the competent court against the accused person namely Shri Vamen Narain Ghiya R/o. House No. 41, Everest Colony, Lal Kothi Scheme, Police Station, Vidhan Sabha, Jaipur and Shri Pradeep Malhotra S/o. Vishan Das Malhotra, House No. 204-B, Gandhi Nagar, Ghaziabad (U.P.) who have been found "unauthorized and unlawful possession of 495 Antiquities as per list "C" enclosed.
Being antiquities as per the aforesaid Act read with Government of India in the Ministry of Education and Social Welfare (Archaeological Survey of India) Notification No. S.O. 448 (E) dated 02.07.1976 issued, there under, exports or attempts to export and antiquity or art treasures in contravention of Section 3 read with section 25(1) of the Antiquity and Art Treasures Act, 1972 which have been seized by the SHO, Vidhyadhar Nagar, Jaipur (Rajasthan) and the accused Shri Vamen Narain Ghiya and Shri Pradeep Malhotra have thus committed offence under sub-section 3 of the section 25(1) of the Antiquities & Art Treasures Act, 1972 (52 of 1972) in case No. FIR 146/2003 of IPC at Police Station Vidhyadhar Nagar, Jaipur, Rajasthan.
(Gauri Chatterjee)
Director General
Archaeological Survey of India
Ministry of Tourism & Culture
Janpath, New Delhi 110 011
139. A bare perusal of the Authorization Letter (Ex. P. 227) clearly reveals that it is a bundle of confusion. For, firstly it claims to be issued "In exercise of power conferred by Sub-section (1) of section 25 of the Antiquities and Art Treasures Act...." However, section 25(1) of the AAT Act does not confer the power to issue an authorization letter. The said power is contained in Section 26(2) of the AAT Act. Secondly, it authorizes "to file complaint/charge-sheet". Thus, the Sanctioning Authority is unclear whether a ''complaint'' or a ''charge-sheet '' is to be filed. In fact, Gauri Chatterjee (P.W. 70) was cross-examined and asked if she understood the difference between a ''complaint'' and a ''charge-sheet''? According to her, she was well aware of the difference. But her awareness is not reflected in the Authorization Letter (Ex. P.227). Thirdly, Para 1 and 2 are contrary to each other. While Para 1 speaks of "in unauthorized and unlawful possession of 495 Antiquities as per list ''C'' enclosed", Para 2 speaks about " exports or attempts to export an antiquity or art treasure in contravention of Section 3 read with section 25(1) of the Antiquities and Art Treasures Act, 1972". But "unauthorized and unlawful possession" is not covered by Section 3 of the AAT Act. In fact ''unauthorized and unlawful possession'' is covered u/s 14 of the AAT Act. Thus, it is unclear whether the authorization is for offence u/s 3 or section 14 of the AAT Act. Fourthly, the Authorization Letter (Ex. P. 227) does not reveal even the gist of the case against the appellant. Fifthly, the Authorization Letter authorizes Mr. Anand Shrivastava to file the complaint/charge-sheet. But the charge-sheet was filed by Mr. Rajendra Kumar Tyagi (P.W. 75). Hence, the Authorization Letter has not been implemented properly. The charge-sheet has been filed by a person not authorized to do so. Lastly and most importantly, Gauri Chatterjee (P.W. 70), in her cross-examination, has clearly admitted that "when the Authorization Letter dated 2-9-03 was issued by her, the police papers were not placed before her". Thus, obviously, she was unaware of the full facts of the case. Hence, the Authorization Letter (Ex. P. 227) suffers from non-application of mind. Since the Authorization Letter does not fulfill the requirements of law, it cannot be held to be "Sanction Order". Thus, there is no sanction order available in the present case as required by section 26(1) of the AAT Act. Even if, for the sake of argument, the Authorization Letter were to be accepted as a Sanction Order, it suffers from grave lacunae. It is, therefore, an invalid sanction order. In either case, the requirement of section 26(1) --a mandatory condition--has not been fulfilled.
140. The Authorization Letter, dated 23-4-04 (Ex. P.219), is as under:
No. 10-10/2003-Ant.
Government of India
Archaeological Survey of India
Janpath, New Delhi-110 011.
Dates 23.4.2004
Subject: Authorisation for filing complaint by the office of the Superintendent of Police (North), Jaipur, Rajasthan u/s 25(2) read with section 5 and 14(3)/ of the Antiquity and Art Treasures Act, 1972 in F.I.R. No. 146/2003 u/s. 379, 411, 413, 414, 401, 120B IPC & 3/25(1) of Antiquity and Art Treasures Act, 1972, Police Station Vidyadhar Nagar, Jaipur City (North), Rajasthan - regarding.
In super-session of the earlier Authorisation Order No. 10-10/2003-Ant. Dated 09.11.2003, in exercise of the power conferred by sub-section (2) of section 26 of Antiquity and Art Treasures Act, 1972 (52 of 1972), the Central Government hereby authorizes Shri Ramveer Singh, Inspector of Police & S.H.O., Vidhyadhar Nagar Police Station, Jaipur City (North), Jaipur to file complaint/charge-sheet in the competent court against the accused person namely; (1) Shri Vaman Narain Ghiya S/o. Shri Badri Narayan Ghiya, 55 years, r/o. House No. 41, Everest Colony, Lal Kothi Scheme, PS Vidhan Sabha, Jaipur; (2) Vikas Yadav @ Vikram @ Nitto S/o. Shri Mahinder Singh, 19 years, r/o. 1/55, Surender Nagar, PS Kebarsi, Distt. Aligarh, U.P.; (3) Jitender Pal Singh @ Paplu S/o. Shri Resham Pal Singh, 22 years r/o. Village Husenpur, Distt. Firozabad, U.P. present address H. No. 334, Sanjay Nagar, Thana City Kotwali, Distt. Eta, U.P.; (4) Rameshwar S/o. Shri Kamal, 30 years, r/o. Rugha Pura, PS Karoli, Distt. Karoli, Rajasthan; (5) Banay Singh @ Pahalwan S/o. Shri Kamal, 56 years, r/o. Village Rugha Pura, PS Karoli, Distt. Karoli, Rajasthan; (6) Shiv Swaroop Goyal S/o. Shri Bhagwati Prashad, 50 years, House No. B-12, Jangpura, PS Hazarat Nizamuddin, N. Delhi; (7) Vidhi Chand S/o. Shri Phool Singh, 50 years, r/o. Village Bhai, PS Refinery, Distt. Mathura, U.P.; (8) Jagdish Chand S/o. Shri Pattru Mal, 64 years, r/o. House No. 221, Kushak Gali, Chowk Bazar, PS Govind Nagar, Distt. Mathura, U.P.; (9) Manoj S/o. Shri Jagdish Chand, 33 years, r/o. House No. 221, Kushak Gali, Chowk Bazar, PS Govind Nagar, Distt. Mathura, U.P.; (10) Madan Mohan @ Madan Lal Agrawal S/o. Shri Dau Dayal, 49 years, r/o. House No. 91, Manash Nagar, PS Krishna Nagar, District Mathura, U.P.; (11) Badal S/o. Late Shri Kishan Chand Sharma, 30 years, r/o. J-1 72, Saket, New Delhi; (12) Shriver S/o. Shri Bhoru Meena, 38 years, r/o. Village Aggardi, PS Karoli, Distt. Karoli, Rajasthan; (13) Lachhi S/o. Shri Ramhet, 40 years, r/o. Village Aggardi, PS Karoli, Distt. Karoli, Rajasthan; (14) Janak Ram S/o. Shri Ramhet, 42 years, r/o. Village Aggardi, PS Karoli, Distt. Karoli, Rajasthan; (15) Rakesh Singh S/o. Shri Nand Kishore, 40 years, r/o. Dodapur, PS Bewar, District Mainpuri, U.P.; (16) Roshan S/o. Shri Kaluram, 50 years, r/o. Village Baldiya, PS Asnawar, District Jhalawar, Rajasthan; (17) Dayal Chand S/o. Shri kastoor Chand, 51 years, r/o. Village Moondla, PS Simliya, District Kota, Rajasthan; (18) Munna Ali @ Munna S/o. Sh. Abdul Latif, 35 years, Village Mehrana, PS Keshauraipattan, Dist. Bundi, Rajasthan; (19) Pradeep Malhotra S/o. Shri Bishan Dass Malhotra, 42 years, r/o. House No. 204-B, Gandhi Nagar, Ghaziabad, U.P. present address Indian Crafts, Warehouse, No. D-21/5, Okhla Phase II, New Delhi who have been found in unauthorized and unlawful possession of 632 (six hundred thirty two) antiquities as per enclosed seizure memo of the sculptures and list A, B & C of antiquities.
Being antiquities as per the aforesaid Act read with Government of India in the Ministry of Education and Social Welfare (Archaeological Survey of India) Notification No. S.O. 448 (E) dated 02.07.1976 issued, there under, were in possession of the above said antiquities without registering them by the accused as required u/s 14(3)/ of the Antiquity and Art Treasures Act, 1972 effecting the sale without obtaining license to carry on business of selling and offering to sale by the accused as required u/s 5 of the Antiquity and Art Treasures Act, 1972 which have been seized by the officer of the Superintendent of Police, Jaipur (North), Jaipur and the accused names 1 to 19 as mentioned above, have thus committed offence under sub-section 2 of the section 25 read with section 5 and sub section (3) of section 14 of the Antiquities & Art Treasures Act, 1972 (52 of 1972) in case No. FIR 146/2003/Vidhyadhar Nagar Police Station, Jaipur (North), Jaipur, Rajasthan.
(Hari Manjhi)
Director (Antiquities)
Archaeological Survey of India
Government of India
Ministry of Tourism & Culture
(Dept. of Culture), New Delhi
141. The said Authorization Letter (Ex. P. 219) deals with offences u/s 25(2) and (3) of the AAT Act. Therefore, we need not consider if the said Authorization Letter (Ex. P.219) qualifies as a Sanction Order or not. For, Section 26(2) of the AAT Act does not require issuance of a Sanction Order.
142. But the moot issue still is does the said Authorization Letter suffer from any defect(s)? Even this Authorization Letter (Ex. P.219) has its share of lacunae: firstly, the Authorization Letter (Ex. P.219) was issued after the charge-sheet was already filed on 3-9-03 and after the cognizance was taken by the court on the same day. Thus, the Authorization Letter (Ex. P.219) loses its significance. Secondly, it authorizes the filing of '' complaint/charge-sheet ''. Hence, the authority issuing the Letter again seems to be confused between a ''complaint'' and a ''charge-sheet''. Thirdly, it nowhere reflects the gist of the case against the appellant and against the other co-accused persons named herein. Fourthly, it does not mention that the Authorization Letter (Ex. P.219) is being issued after considering the police report. Moreover, during the trial, the prosecution has failed to prove that the police report was placed before Hari Manji (P.W. 69). Even Hari Manjhi (P.W. 69) does not claim, in his examination-in-chief, that he had considered the police report before issuing the Authorization Letter (Ex. P.219). Hence, the Authorization Letter suffers from non-application of mind. Fifthly, and most importantly, it is issued not by the Director-General of ASI, but by the Director (Antiquities). There is no evidence available on record to show that the Director- General had delegated the power to issue the Authorization Letter to the Director (Antiquities). Hence, the Letter has been issued contrary to the requirement of Rule 15 of the Rules; it has been issued by an unauthorized person. Therefore, it loses its legal validity. The mandate of Section 26(2) has not been followed either in letter or in spirit.
143. In short, there is neither a proper sanction order available as required by section 26(1) of the AAT Act, nor a proper Authorization Letter as required by Section 26(2) of the AAT Act.
144. In the case of Rafiq Ahmed @ Rafi v. State of U.P. [JT 2011 (9) SC 278] Hon''ble Supreme Court discussed the concept of ''prejudice'' in criminal jurisprudence. The Apex Court held as under:
20. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian Criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial:
a) The accused has the freedom to maintain silence during investigation as well as before the Court. The accused may choose to maintain silence or make complete denial even when his statement u/s 313 of the Code of Criminal Procedure is being recorded, of course, the Court would be entitled to draw inference, including adverse inference, as may be permissible to it in accordance with law.
b) Right to fair trial
c) Presumption of innocence (not guilty)
d) Prosecution must prove its case beyond a reasonable doubt.
21. ...The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the court.
145. The issue about the non-availability of the sanction order was raised by the appellant both before the learned trial court and before this court. However, even in the impugned judgment, the contention has been brushed aside in a casual manner. The Learned Judge has merely observing that both sanction order and authorization letter are same, although they may differ in their nomenclature. To say the least, such a view is too casual especially when the liberty of a citizen is concerned. It is but expected from the learned trial court to examine, at the time of framing of the charge, if all the necessary ingredients of an offence and the basic requirements of law are fulfilled before the charge is framed. Had the learned trial court exercised due diligence, it would have found the sanction order missing. In the absence of a sanction order, the criminal proceedings vis-�-vis the offences under the AAT Act would have to be dropped. It, too, would have realized that while the Authorization Letter was issued in the name of Mr. Anand Shrivastava, the charge-sheet has been filed by Mr. Rajendra Kumar Tyagi (P.W. 75). Therefore, the mandate of the Authorization Letter has not been followed. The casual approach of the learned trial court has denied the appellant his protection under the mandatory provisions of the AAT Act. It has compelled him to face an arduous criminal trial and to undergo the agony of incarceration. It has forced him to undergo an unfair trial. His fundamental and statutory rights have been violated. Thus, injustice has been caused to the appellant.
Double Jeopardy and Issue Estoppel.
146. Mr. Bajwa has also raised other legal issues which envelope the entire case before this court. As mentioned above, according to the prosecution, on 15-6-2003, three alleged antique sculptures were recovered from the Appellant''s farm house, namely the Goddess (Art 954), the Jain idol (Art. 55) and the Lion (Art. 955). According to the learned counsel, if a number of objects are recovered from the same place, at the same time, then the recovery is to be read as a single recovery, unless of course, the prosecution proves that the objects were received by the appellant from different persons, on different dates. If the recovery is taken to be a single recovery, in such a case, the offender can be tried only once by a single court for offence u/s 411 IPC; he cannot be tried repeatedly for the same offence by different courts. In order to support this contention, the learned counsel has relied on the case of Jalal v. Emperor [AIR 1932 Lah. 615], Queen Empress v. Baburam Kansari [Indian Decisions, New Series 19 Cal 190] and In re
147. In the present case, the prosecution does not claim that the Goddess, the Jain idol and the Lion were received by the appellant on different dates, from different persons. Thus, the recovery of 15-6-2003 is a single recovery. Therefore, the appellant had to be tried by a single court. He could not be tried by different courts for the same recovery, for the same offence. But while the appellant was tried at Bhanpura for offence u/s 411 IPC in relation to the Goddess, he was tried and convicted in the present case at Jaipur for offence u/s 411 IPC in relation to the Jain idol. Thus, for the same recovery for the same offence, he has been tried at two different places, namely Bhanpura and Jaipur. Hence, he has been subjected to double jeopardy. Therefore, the appellant''s fundamental right under Art. 20(2) of the Constitution of India has been violated. Moreover, the learned Judge has ignored the mandate of section 300 Cr.P.C. Thus, an injustice has been caused to the appellant.
Secondly, initially the appellant was convicted by the Judicial Magistrate (First Class), Bhanpura for offence u/s 411 IPC for having received the stolen sculpture of the Goddess. However, subsequently in the appeal filed by him, by Judgment dated 28-10-09, he was acquitted by the learned ASJ, Bhanpura, for the said offence. One of the issues involved in the trial and the appeal was whether the statement allegedly given by the appellant u/s 27 of the Evidence Act, which led to the recovery of the Goddess sculpture and of other objects, was voluntary or non-voluntary? According to the learned ASJ, Bhanpura, it was a statement given under duress. Therefore, the learned ASJ, Bhanpura rejected the evidence with regard to the said recovery. According to the learned counsel, the same issue about the voluntariness of the statement given u/s 27 of the Evidence Act is also before this court with regard to the recovery of the Jain Idol from the appellant''s farmhouse. But this court is now hit by issue estoppel. Since the learned ASJ, Bhanpura has given a judicial finding on the said issue, this court cannot accept evidence which would go against the said finding. The finding given by the learned ASJ, Bhanpura would also govern the issue before this court. In order to buttress this contention, the learned counsel has relied on the cases of
148. Per contra, Mr. Bajpai has contended that the question of double jeopardy does not even arise. For, the learned Judge has not tried the appellant for receiving the stolen statue of the Goddess. The learned Judge has tried him for having received the stolen statue of the Jain idol. Thus, the facts of the present case are different from the facts of the case before the Judicial Magistrate at Bhanpura. Hence the doctrine of double jeopardy is inapplicable.
Secondly, the question about the applicability of issue estoppel is also misplaced. Issue estoppel is applicable only when the judgment of the first court has reached finality. It is only after that the subsequent court is prevented from receiving any evidence which would be contradictory to the finding of the first court. In order to buttress this contention the learned Special Public Prosecutor has relied on the case of
Double Jeopardy:
149. The doctrine of double jeopardy has meandered through different legal systems: from 355 EBC, when the Athenian statesman Demosthenes said, "[T]he law forbids the same man to be tried twice on the same issue." to the Roman law in the form of the Latin maxim nemo debet his punier pro uno delicto, meaning "no one ought to be twice punished for one offence", to the Common Law concept that "the life and limb of a person should not be jeopardized for the same offence", through the Fifth Amendment of the American Constitution, to the French concept of autrefois convict and autrefois acquit. Autrefois in French means "in the past"--therefore, meaning "to be convicted or acquitted in the past". In India, the same concept is enshrined in the Constitution of India, and embodied in different statutes: in Art. 20 of the Constitution of India, in section 300 Cr.P.C. in section 26 of the General Clauses Act, and in section 71 IPC. These provisions are as under: Art. 20 of the Constitution of India:
20.(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
section 300 Cr.P.C.:
300. Person once convicted or acquitted not to be tried for same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged u/s 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation--The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
section 26 of the General Clauses Act:
26. Provisions as to offences punishable under two or more enactments--Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
section 71 IPC:
71. Limit of punishment of offence made up of several offences: Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
1 [Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences].
150. A bare perusal of these provisions makes it crystal clear that a person cannot be tried twice for the same offence. In the case of
The following important rules emerge from the terms of section 403 of the Code of Criminal Procedure.
(1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the court trying the first offence was incompetent to try that other offence.
(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was/not, made.
(3) If a person is convicted of any offence constituted by any act, and the act together with the consequences which resulted therefrom constituted a different offence, he may again be tried for that different offence arising out of the consequences, if the consequences had not happened or were not known to the court to have happened at the time when he was convicted.
(4) A person who has once been tried by a Court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure.
(Emphasis Added)
151. In the case of
To operate as a bar the second prosecution and the consequential punishment thereunder, must be for the "same offence". The crucial requirement therefore for attracting the Articles is that the offence are the same i.e. they should be identical. If however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.
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The next point to be considered is as regards the scope of section 26 of the General Clauses Act. Though section 26 in its opening words refers to the "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.
152. In order to test the veracity of the plea of double jeopardy, as raised by the learned counsel for the appellant, we would have to consider whether he has been tried for the same offence or not?
153. section 411 IPC deals with ''receiving or retaining stolen property by the offender''. If the offender were found in possession of different stolen items, and if the prosecution fails to prove that the different items were received by him from different persons, at different times, should the offender be tried separately for each stolen item by different courts, or should he be tried in a single trial? This issue has taxed the judicial imagination of various courts. In the case of Jalal (supra), the Hon''ble Lahore High Court held, "Where there is no proof whatsoever that the accused has received the proceeds of five different theft on five different occasion and on the other hand it was more likely that the thief or thieves may have passed on the stolen property to the accused at on and the same time, the accused cannot be convicted under five separate challans for the offence of being in possession of stolen property under S. 411."
154. In re, Meenapati Daveed and Anr. (supra) the Hon''ble Andhra Pradesh High Court dealt with a case where number of stolen articles were discovered from the possession of both the accused appellants. The Court observed that "Where an accused is found in possession of stolen articles forming the subject-matter of distinct thefts, he cannot be tried and convicted under S. 411, Penal Code, more than once, unless there is evidence to show that he had received them on different occasions." Moreover, in this case, both the accused persons were acquitted in one case by the Additional Sessions Judge, Kavali, yet they were tried by another court for the same charge of section 411 IPC. In these circumstances, the Hon''ble Andhra Pradesh High Court held that the second trial was in violation of Section 403 Cr.P.C. (the new section 300 Cr.P.C.).
155. In the present case, admittedly the statues of the Goddess and of the Jain idol were recovered from the appellant''s farm house on 15-6-2003. Undoubtedly, it is not the case of the prosecution that the appellant had received the two statues from different persons and on different dates. Thus, the recovery has to be read as a single one. For both the statues, the Goddess and the Jain idol, the offence is the same, namely one u/s 411 IPC. Hence, a single trial should have been held for receiving both the stolen statues. Yet, the appellant was subjected to two different trials, by two different courts, namely at Bhanpura for the Goddess, and for the Jain idol at Jaipur, for the same offence, namely offence u/s 411 IPC. Thus, the appellant has been subjected to double jeopardy. His fundamental right under Art. 20(2) of the Constitution of India and his statutory right u/s 300 Cr.P.C. have been violated. Indeed, an injustice has been done to the appellant.
156. Of course, Mr. Bajpai has stressed on the fact that the trail at Bhanpura was in relation to the Goddess, but at Jaipur it was in relation to the Jain idol. But this contention is misplaced. For, while considering the issue of double jeopardy, the court has to be alive to the fact that the accused is being tried for the ''same offence'', although the facts may be different in both the cases. Therefore, the doctrine of double jeopardy is applicable to the present case. Hence, the appellant could not be tried and convicted for offence u/s 411 IPC vis-�-vis the Jain idol, once he was tried and convicted for the same offence by the Judicial Magistrate, Bhanpura vis-�-vis the Goddess.
Issue Estoppel:
157. The question with regard to applicability of the doctrine of issue estoppel in criminal cases is no longer res integra. Through a series of cases the Hon''ble Supreme Court has settled the question. Relying on the previous cases of
...The issue estoppel rule is a facet of doctrine of autrefois acquit.
15. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue.
158. Thus, while the bar of double jeopardy prevents the second trial for the same offence, the rule of issue estoppel prevents the re-opening of the same issue in a second trial or before a second court. There is logic for such a procedural prohibition: like double jeopardy, issue estoppel prevents multiplicity of litigation; it prevents contradictory or conflicting judgments from emerging. Thus, the judicial finding of a criminal court in favour of the accused becomes binding on the subsequent criminal court. The subsequent criminal court is precluded from accepting evidence which might be produced by the prosecution against the accused on the particular issue already decided by a previous criminal court in favour of the accused.
159. However, before the said doctrine can be applied there are three pre-requisites. According to Halsbury''s Laws of England [Vol. 16, Para 977, 14 Ed., Butterworths, London, 1992], "The conditions for the applications of the doctrine have been stated as being that:
1) The same question was decided in both proceedings;
2) The judicial decision said to create the estoppel was final; and
3) The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
(Emphasis added).
160. Similar principles have also been applied by the Supreme Court of Canada in the cases of Angle v. M.N.R. (1975) 2 S.C.R. 248, Mary Danyluk v. Ainsworth Technologies Inc. (2001) 2 S.C.R. 460, and Wayne Penner v. Regional Municipality of Niagara Regional Police Services Board [2013 SCC 19]. Of course, these judgments were civil cases, but the three requirements for application of the doctrine would remain the same whether the doctrine were applied in the civil law, or in criminal jurisdiction. Thus, ''finality of judgment'' is one of the important circumstances before the said doctrine can be applied. Of course a distinction has to be made between a ''final judgment'' and ''finality of judgment''. A final judgment ends the proceedings in which it is entered and leaves nothing further to be done regarding the rights of the parties. On the other hand, finality of judgment, for the purpose of issue estoppel, means that the judgment resolving the issue must be ''sufficiently firm'' in the sense that it was not tentative, the parties had an opportunity to be heard, and there was an opportunity for appeal, but no appeal was filed. Thus, a judgment could be final for purposes of appeal, but finality of judgment could be lacking if the appeal is not decided. Thus, treating a judgment as ''final'' while it is still pending in appeal would negate the requirement of ''finality of judgment''.
161. Admittedly, the State of M.P. has appealed against the judgment of acquittal passed by the learned ASJ, Bhanpura; the appeal is still pending before the Hon''ble M.P. High Court. Therefore, the judgment passed by the learned ASJ, Bhanpura has not achieved ''finality''. Hence, Mr. Bajwa is not justified in pressing the doctrine of issue estoppel in the present case. Thus, this court is free to accept evidence contrary to the finding of the learned ASJ, Bhanpura.
162. In short, once the appellant was convicted by the Judicial Magistrate, Bhanpura for offence u/s 411 IPC in relation to the Goddess, the learned Judge should have dropped the proceedings qua the Jain idol for the same offence. By ignoring this aspect, the learned Judge as violated the appellant''s fundamental right under Art. 20(2) of the Constitution of India, and statutory right u/s 300 Cr.P.C. Thus, the learned Judge has subjected him to double jeopardy. The learned Judge has caused him an irreparable injustice.
163. However, as far as issue estoppel is concerned, the prosecution is not hit by a firewall.
section 27 of the Evidence Act:
164. The interpretation and application of section 27 of the Evidence Act is another legal issue which permeates this case. Mr. Bajwa submits that three of the recoveries were made on the basis of alleged statements given by the appellant u/s 27 of the Evidence Act. However, Ram Singh (P.W. 76), the investigating officer, flouted the mandate of the said provision. For, while the appellant was in police custody, Ram Singh (P.W. 76) subjected him to torture by assaulting him. From the very initial stage of the trial, the appellant has pleaded that he is being tortured in police custody and his signatures are being taken on blank pieces of paper. Subsequently, Ram Singh (P.W. 76) used these blank pieces of papers for recording the alleged statement given u/s 27 of the Evidence Act by the appellant, or for recording a Recovery Memo for a particular recovery. The appellant has consistently denied both the statements and the recoveries. In order to further this plea, the learned counsel has drawn the attention of this court to the appellant''s Injury Reports (Ex. P. 1175 to Ex. P. 1180). The Injury Reports clearly prove that the appellant was subjected to custodial violence during his police custody. Moreover, in order to create the impression that the recoveries were at the instance of the appellant, his signatures have been forged by the police. In fact, his signatures are different on different documents. The learned counsel has drawn the attention of this Court to the Recovery Memo dated 15-6-03 (Ex. P. 220) wherein the appellant''s signature is made as though made by a person unfamiliar with the Hindi language. According to the learned counsel the signature on the Recovery Memo (Ex. P. 220) is a forged one. In order to prove this point, the defense had examined Dr. Dinesh Sethi (D.W. 1). However, the learned Judge has ignored his testimony. But as the statements u/s 27 of the Evidence Act were made under duress, u/s 24 of the Evidence Act, the statements become irrelevant and, thus, inadmissible. The learned Judge should not have accepted the said evidence.
Secondly, since the appellant has been subjected to custodial torture, it clearly casts a doubt on the impartiality of the investigating agency.
165. On the other hand, Mr. Bajpai has contended that the appellant was never tortured by the police. The Injury Reports (Ex. P. 1175 to Ex. P. 1180) reveal minor injuries and certain symptoms suffered by the appellant. But such minor injuries and symptoms cannot lead to the conclusion of custodial violence.
Secondly, in order to ensure the appellant''s health, repeatedly the police had taken the appellant to the hospital for his medical checkups. In fact, the Injury Reports (Ex. P. 1175 to Ex. P. 1180) prove the bona fide of the police.
Thirdly, the appellant had voluntarily made the statements u/s 27 of the Evidence Act to Ram Singh (P.W. 76). Hence, the learned Judge was justified in relying on the recoveries which were made pursuant to the statements.
Lastly, the police have not forged the appellant''s signature. In fact, the appellant signed his name in different styles as he is a cleaver person with a criminal mind.
166. Before we deal with these particular contentions and counter-contentions, it would be useful to first understand the scope and ambit of Sections 24 to 27 of the Evidence Act. Sections 17 to 30 of the Evidence Act deal with admission and confession. While Sections 17 to 23 deal with admission, Sections 24 to 30, with confession. But for our limited purpose Sections 24 to 27 of the Evidence Act are relevant.
Section 24 of the Evidence Act is as under:
Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding:--
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
section 25 of the Evidence Act is lays down as under:
Confession to a police officer not to be proved:-No confession made to a police officer, shall be proved as against a person accused of any offence.
section 26 of the Evidence Act prescribes as under:
Confession by accused while in custody of police not to be proved against him:--No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
[Explanation--In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or else where, unless such headman is a Magistrate exercising the power of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).
section 27 of the Evidence Act is as follows:
How much of information received from accused may be proved:--Provided that, when any fact is deposed to as discovered in consequence 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 be a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
167. The word ''confession'' has not been defined in the Evidence Act. But in criminal jurisprudence, it means "an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed the crime. [Ref. to Stephen''s Digest, 12 Edn.]. The bar contained in Sections 24 to 26 of the Evidence Act, and the partial lifting of the ban in section 27 of the Evidence Act is shrouded in the British history. The English, who framed the Evidence Act, were well acquainted with the colossal power of the Crown which could be used and was, at times, abused against the subject. They were familiar with both the rack where alleged offenders were stretched across, and with other methods used for extracting confessions from prisoners. They wanted to spare England and its colonies from the coercive methods used by the Spanish Inquisition. Although the police was seen as a manifestation of the sovereign power, but like any sovereign power it had to be cribbed, cabined and confined by the Law. For, the English were too well aware that absolute power corrupts absolutely. Yet, the Legislature was equally aware that a criminal act is not only an act against the society, but is also a threat to the stability of the State. In order to promote the stability of the State and the safety of the society, law had to aid the investigating agency in booking the culprit. Thus, wanting to balance the conflicting interest of the accused with the interest of the State and society, Sections 24 to 27 of the Evidence Act were enacted by the English.
168. While dealing with the scope of Section 24 of the Evidence Act, in the case of
It is abhorrent to out notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntary and unless he realizes that anything he says may be used against him and any attempt by a person in authority to bully a person into making a confession, or any threat or coercion would at once invalidate it, if the fear was still operating on his mind at the time he makes the confession, and if it would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
169. section 25 of the Evidence Act places a blanket ban on a confession made by an offender to a police officer. However, according to section 26 of the Evidence Act if such a confession is made by an offender while he/she is in the police custody, and in the presence of a Magistrate, then the confession can be proved against the accused. Here the presence of the Magistrate is a check on the unbridled power of the police. But still keeping the cleverness of the police in mind, Section 24 of the Evidence Act grants a court with the discretionary power to treat the confession as irrelevant if it appears to the court that the confession were made under threat, inducement or promise. A fact which is irrelevant is inadmissible in evidence. Thus, Section 24 of the Evidence Act seals the fate of a confession where it appears to the court that illegal means were used by the police to extract the confession.
170. While discussing the ambit of Section 24 of the Evidence Act, in the case of
4. ...Section 24 of the Evidence Act lays down that a confession caused by inducement, threat or promise is irrelevant in criminal proceedings under certain circumstances. Under that section a confession would be irrelevant if the following conditions were satisfied: (1) it should appear to the court to have been caused by any inducement, threat or promise; (2) the said threat, inducement or promise must have reference to the charge against the accused person; (3) it shall proceed from a person of authority; (4) the court shall be of the opinion that the said inducement, threat or promise is sufficient to give the accused person grounds which would appear to him reasonable in supposing that he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The crucial word in the first ingredient is the expression "appears". The appropriate meaning of the word "appears " is "seems ". It imports a lesser degree of probability than proof. Section 3 of the Evidence Act says:
A fact is said to be ''proved'' when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Therefore, the test of proof is that there is such a high degree of probability that a prudent man would act on the assumption that the thing is true. But under s. 24 of the Evidence Act such a stringent rule is waived but a lesser degree of assurance is laid down as the criterion. The standard of prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court''s opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved. This deviation from the strict standards of proof has been designedly accepted by the Legislature with a view to exclude forced or induced confessions which sometimes are extorted and put in when there is a lack of direct evidence. It is not possible or advisable to lay down an inflexible standard for guidance of courts, for in the ultimate analysis it is the court which is called upon to exclude a confession by holding in the circumstances of a particular case that the confession was not made voluntarily.
5. The threat, inducement or promise must proceed from a person in authority and it is a question of fact in each case whether the person concerned is a man of authority or not. What is more important is that the mere existence of the threat, inducement or promise is not enough, but in the opinion of the court the said threat, inducement or promise shall be sufficient to cause a reasonable belief in the mind of accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceedings against him: while the opinion is that of the court, the criterion is the reasonable belief of the accused. The section, therefore, makes it clear that it is the duty of the court to place itself in the position of the accused and to form an opinion as to the state of his mind in the circumstances of a case.
171. But while placing checks on the police power, section 27 of the Evidence Act provides a little space for the police to pursue its investigation. Thus, section 27 of the Evidence Act is an exception to Sections 24 to 26 of the Evidence Act. section 27 of the Evidence Act permits so much of the information given by the accused to the police to be read against him which "relates distinctly to the fact thereby discovered."
172. In the case of
(a) Whether a person is in custody or outside, a confession made by him to a Police Officer, or the making of which is procured by inducement, threat or promise, having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.
(b) A confession made by a person whilst he is in the custody of a Police Officer to a person other than a Police Officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.
(c) The part of the information given by a person whilst in police custody, whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence.
(d) A statement, whether it amounts to a confession or not, made by a person when he is not in custody, to another person, such latter person not being a Police Officer, may be proved if it is otherwise relevant.
(e) A statement made by a person to a Police Officer in the course of an investigation of an offence under Chapter 14 of the Criminal Procedure Code cannot except to the extent permitted by section 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.
173. The interpretation of section 27 of the Evidence Act has taxed the judicial imagination. Three issues have particularly baffled the judicial imagination: firstly, whether the discovery of fact referred to in section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto, or the discovery could be in respect of his mental state or knowledge in relation to certain things--concrete or non-concrete? Secondly, whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance? Thirdly, the subsequent event of discovery by police with the aid of information furnished by the accused--whether can be put against him u/s 27 of the Evidence Act, or not?
174. Prior to the case of Pulukuri Kottaya v. Emperor [AIR 1949 PC 67], different High Courts differed in their interpretation of section 27 of the Evidence Act. However, in the locus classicus case of Pulukuri Kottaya (supra) the Privy Council laid to rest the controversy with regard to the first issue. Lucidly expounding on the expression ''fact discovered'', Their Lordships observed as under:
In their Lordships'' view it is fallacious to treat the ''fact discovered'' within the section as equivalent to the object produced'' the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house " does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
175. Thus, section 27 of the Evidence Act is not restricted to the physical object discovered in pursuance of the information. It includes not only the physical object produced, but also the place from which it is produced, and the knowledge of the accused as to the concealment.
176. Another phrase that requires to be interpreted is "as relates distinctly to the fact thereby discovered''. This phrase has been expounded by the Hon''ble Supreme Court in the case of
The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word ''distinctly'' means ''directly'', ''indubitably'', ''strictly'', ''unmistakably''. The word has been advisedly used to limit and define the scope of the provable information. The phrase ''distinctly relates to the fact thereby discovered'' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may indirectly or remotely related to the fact discovered.
177. The second issue, mentioned above, was answered in the case of
There is one more point which we would like to discuss i.e. whether pointing out material object by the accused furnishing the information is a necessary concomitant of section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police officer to the place where an object is concealed and point out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible u/s 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility u/s 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.
178. The significance of section 27 of the Evidence Act is based on two essential elements: firstly, it reveals the authorship of concealment of the physical object hidden by the alleged offender. In the case of
179. But the evidentiary value of the statement u/s 27 of the Evidence Act would generally depend on three aspects: firstly, the statement should be voluntary. For any statement which is due to coercion, duress, threat, promise or inducement would be violative of Art. 20(3) of the Constitution of India. [Ref. to
180. One of the moot questions before this court is whether the appellant was subjected to torture by the police while he was in the police custody or not? For coercion would adversely affect the admissibility of the statement made u/s 27 of the Evidence Act.
181. According to appellant''s Injury Report No. 1 (Ex. P. 1175), dated 8-6-2003, he had suffered "swelling with reddish discoloration--blue, diffused--dorsum (back) of both the hands, and had suffered minor abrasion, 1/2 cm x 2 mm, skin deep, superficial, near the base of thumbs on dorsal aspect". The nature of injury was "simple, blunt".
182. While in police custody, on 10-6-03 again the appellant was taken to the hospital. His Injury Report No. 2 (Ex. P. 1176) was drawn. According to this Injury Report, the appellant was "complaining of pain on right ankle joint, although no injury was visible". He had "bruise on left elbow joint, in flexion side (front side), measuring 2.5 cm x 0.5 cm; another bruise, measuring 1 cm x 0.2 cm on left joint". According to the doctors, the injuries were caused by blunt weapons; they were simple in nature; their duration was approximately within three days.
183. Similarly, on 12-6-03, again the appellant was examined by the doctors and his Injury Report No. 3 (Ex. P. 1177) was prepared. According to this Injury Report (Ex. P. 1177), the appellant was "complaining of uneasiness, of epigastric burning (acidity), and of cough".
184. The Injury Report No. 4 (Ex. P. 1178) was chalked out on 14-6-03; the appellant merely "complained of "ghabarahat" (uneasiness), chest pain, cough, gripiness (stomachache)".
185. On 16-6-03 again the appellant was medically examined and his Injury Report No. 5 (Ex. P. 1179) was drawn. According to this Injury Report, "no visible injury seen, at the time of examination, nor patient complains"; the appellant was "complaining of chest pain with cough, breathlessness, and complaint of pain on the right side of shoulder".
186. The Injury Report No. 6 (Ex. P. 1180), dated 20-6-03, shows a few injuries on the appellant. There is a "bruise with abrasion, red, 1 cm long, on the upper lip; bruise, bluish-red discoloration on left knee joint merging with thigh; swelling right, lateral (outside) malliolus (the ankle area) "; these three injuries were caused by blunt weapon; "complain of pooling of secretion in lungs, no rales/bronchi; itching in scrotum, on examination no external injury found; pain in hernial sac, no inflammatory findings; complain of external injury/pain at knee, medial, and lateral malleolus examined, and found to be present". The duration of these injuries is said to be "between twenty-four to forty-eight hours". Although the appellant was advised for x-ray of left knee joint, lower 1/4 leg, AP (antro-posterior) and lateral and of leg/foot AP (antro-posterior) and lateral, but no x-ray report is available on record.
187. Of course, Mr. Bajwa has strenuously harped on these Injury Reports (Ex. P. 1175 to Ex. P. 1180) in order to plead that the appellant was ''tortured'' during the police custody. But minor bruise, or abrasion, or a discoloration, or complain of uneasiness, or of chest pain, does not necessarily imply ''custodial torture''. A bare perusal of the Injury Reports, mentioned above, reveal either minor or superficial injuries, or reveal symptoms suffered by the appellant. Although the courts should be alert to the possibility of custodial violence, but every minor bruise, or abrasion cannot ipso facto lead to the conclusion of custodial violence. Therefore, these Injury Reports do not prove that the appellant was subjected to any torture during his police custody. Hence, his statements (Ex. P. 1121, Ex. P. 1122, and Ex. P. 1123) made u/s 27 of the Evidence Act are not outcome of custodial coercion or duress. They are not hit by Section 24 of the Evidence Act. They are admissible.
188. Although Mr. Bajwa has raised the contention with regard to the forged signature on the documents, we shall deal with this contention while discussing the individual recoveries.
Antiqueness of the Recovered Art Objects:
189. The ''antiqueness'' of the art objects is a pivotal issue in this case. For, this case is not only restricted to the offence under Sections 411 and 413 IPC, but also extends ''to dealing with, and/or attempting to export antique art objects/paintings/sculptures'' (Sections 3, 14, 25 of the AAT Act). Hence, it was imperative for the prosecution to prove that the artifacts/paintings/sculptures recovered from the appellant or at his instance were, indeed, ''antiques''.
190. Of course, the prosecution has tried to establish the ''antiqueness'' of the recovered items through three witnesses, namely Hari Manjhi (P.W. 69), Gauri Chatterjee (P.W. 70), and Dr. G.T. Shinde (P.W. 78). The prosecution has also produced certain documentary evidence, namely the corrigendum letter dated 14-3-02 (Ex. P. 1124), and four lists/reports, marked as Annexure A (Ex. P. 222), B (Ex. P. 223) and C (Ex. P. 225), and another list/reports marked as Ex. P. 227 (although the said list has not been referred to as an Annexure) in order to establish the true nature of the recovered items. [As mentioned above, inadvertently two documents have been marked as Ex. P. 227, namely the Authorization Letter dated 2-9-03 issued by Gauri Chatterjee (P.W. 70) mentioned above, and the list mentioned here.] [The reason why these documents are being referred to as ''list/report'' is that in the enclosing letters these documents are called ''list/report'']. The oral and the documentary evidence, on this point, is the axis on which the entire case revolves. Mr. Bajwa has questioned the veracity of the oral evidence and the validity of the documentary evidence. Since the finding about the nature of the recovered items would cover all the four recoveries, it would be fruitful to discuss the evidence at this juncture.
191. Mr. Bajwa has raised the following contentions with regard to the oral evidence: firstly, according to the prosecution the ASI had constituted two Expert Committees for examining the recovered items in order to decipher their age and antiqueness. Both the Expert Committees were headed by G.C. Chawley. However, G.C. Chawley expired even before he could depose before the learned trial court at Jaipur. But even then, the prosecution has not produced any other member of either of the two Expert Committees to prove its findings, its report, and to depose about the nature, or the age of the recovered artifacts/paintings/sculptures. The prosecution has withheld material witnesses. Therefore, an adverse inference should be drawn against the prosecution.
192. Moreover, according to Hari Manjhi (P.W. 69), Gauri Chatterjee (P.W. 70), and Dr. G.T. Shinde (P.W. 78) none of them were members of either of the two Expert Committees. Therefore, the prosecution has miserably failed to examine an expert about the antiquity of the art objects/artifacts. It has, therefore, failed to establish that the recovered artifacts/paintings/sculptures were antiques.
Secondly, Hari Manjhi (P.W. 69) has merely identified G.C. Chawley''s signatures on the lists/reports mentioned above. However, merely by identifying the signature on a list/report, the contents of the list/report are not proved. Therefore, the contents of the lists/reports, (Ex. P. 222, 223, 225, and 227) are not proved. In order to support this contention, the learned counsel has relied upon the cases of
Thirdly, both Gauri Chatterjee (P.W. 70) and Dr. G.T. Shinde (P.W. 78) claim that a detailed report was prepared by the Expert Committees which is available in their office. In fact, Gauri Chatterjee (P.W. 70) claims that while issuing the Authorization Letter (Ex. P. 227) she did not attach the detailed Report, but merely attached the summary of the report as list ''C (Ex. P. 225) with it. But the said detailed report was never produced by the prosecution. Since the prosecution has hidden a vital document from the trial court, again an adverse inference should be drawn against it. Furthermore, in the absence of the detailed report, the prosecution has again failed to establish that the recovered items were ''antique''.
Fourthly, since no member of the Expert Committee was examined, there is lack of ''expert evidence'' in the present case. Since the trial court was dealing with the specialized field of art and antiques, it was essential for the prosecution to produce expert opinion about the fact that the sculptures and artifacts were antiques. But Ram Singh (P.W. 76), the I.O., is the only ''expert opinion'' the prosecution has produced. Thus, the prosecution has failed to prove that the recovered art objects were antique in nature.
Fifthly, there is some confusion with regard to the basis on which the art objects have been declared as ''antique'' or ''non-antique''. While Gauri Chatterjee (P.W. 70) claims that the art objects were examined ''on scientific basis'', Dr. G.T. Shinde (P.W. 78) claims that the artifacts were classified as ''antiques'' solely on the basis of their ''appearance''. According to the learned counsel, artifacts/paintings/sculptures can be classified as ''antiques'' only on the basis of certain scientific examinations and analysis. They cannot be identified as ''antiques'' only on the basis of their ''appearance''. For, appearance can be dubious. If objects were to be classified as ''antiques'' only on the basis of their ''appearance'', then it would be very difficult to distinguish between an original art work, and its fake copy. In fact, the very endeavor of a fake artist is to ensure that the fake piece appears as real as the original one. In fact, Hari Manjhi (P.W. 69) has admitted in his cross-examination, that fake copies of the art objects are available in the market. Once this admission is made, it was essential for the prosecution to eliminate the possibility that the recovered artifacts were not fakes. But as there is no ''expert opinion'', the prosecution has failed to prove that the objects recovered on the appellant''s information were antiques, and not just good fakes; it has failed to establish its case beyond a reasonable doubt.
Sixthly, there is some confusion about the dates on which the two Expert Committees had examined the recovered items. According to the prosecution, the seven statues were recovered on 15-6-03, the Goddess, the Jain idol and the Lion were discovered on 17-6-03, and the forty-one boxes of handicrafts and antiques were recovered on 25-6-03. Yet, according to the covering letter dated 23-8-03 (Ex. D. 367), the team of experts from the ASI had examined the recovered items from 13 to 15 of June, 2003 itself. Thus, the expert team had examined the recovered items even before they were allegedly recovered.
193. Further there is some doubt about the authorship of the letter dated 23-8-03 (Ex. D. 367). Although G.C. Chawley could not depose before the learned trial court at Jaipur, due to his demise, but he did depose, as Prosecution Witness No. 22, in Sessions Case No. 48/04, before the Additional Sessions Judge No. 2 at Chittorgarh. His testimony was submitted and marked as Ex. D. 371 in the present case. In his testimony (Ex. D. 371) he had claimed that he is the author of the letter dated 23-8-03 (Ex. D. 5 in the case before the Chittorgarh Court, which is same as Ex. D. 367 in the present case). He further claimed that the contents of the said letter were correct. Thus, according to Mr. Chawley the recovered items were, indeed, examined between 13 to 15, June 2003.
194. But during the trial of another co-accused persons, namely Shriwar @ Shriman and others, before the Additional Sessions Judge (Fast Track) No. 1, Kota, in Sessions Case No. 79/04, the prosecution had relied upon letter dated 23-8-03 (Ex. D. 367). By judgment dated 19-12-05, (Ex. D. 649) the learned trial court at Kota had acquitted the co-accused persons inter-alia on the ground that the letter dated 23-8-03 (Ex. D. 367) had falsified the prosecution case as according to the said letter the Expert Committee had examined the recovered objects in June 2003 itself. Immediately, the investigating agency came into action; on 14-3-06, the investigating agency got a corrigendum letter (Ex. P. 1124) issued by the ASI. According to the corrigendum letter dated 14-3-06 (Ex. P. 1124), the Expert Committee had examined the recovered items on 13-15 of August, 2003 instead of on 13-15 June, 2003. Interestingly, the corrigendum letter (Ex. P. 1124) was issued three years after the original letter dated 23-8-03 (Ex. D. 367) was issued by the ASI. Moreover, contrary to the testimony (Ex. D. 371) of Mr. Chawley, before the present trial court, Dr. G.T. Shinde (P.W. 78) claimed that he was the author of the letter dated 23-8-03 (Ex. D. 367). He further claimed in his testimony that since incorrect dates were shown in the letter dated 23-8-03 (Ex. D. 367), therefore, he issued the corrigendum letter (Ex. P. 1124) under his hand. But the signatures on the two letters, namely dated 23-8-03 (Ex. D. 367) and dated 14-3-06 (Ex. P. 1124) are distinctively different. Therefore, Dr. G.T. Shinde (P.W. 78) is not telling the truth to the court. Moreover, even if the date given in the corrigendum letter dated 14-2-06 (Ex. P. 1124) were to be taken to be true, for the sake of argument, even then the prosecution has not revealed the dates on which both the Expert Committees examined the recovered pieces. Thus, considering the oral and documentary evidence, the date on which the two Expert Committees examined the recovered objects remains a mystery.
195. Furthermore, the prosecution has produced lists/reports (Exs. P. 222, 223, 225, and 227) before the learned trial court. However, the said lists/reports are incomplete. For, they merely classify the items as ''antiques'' and ''non-antiques'' without giving any details about the art objects/paintings/sculptures, and without revealing the reasons for classifying them as ''antiques'' or ''non-antiques''. Further, the contents of the said lists/reports have not been proved by any witness. Merely the signature on the report has been identified. But by identifying the signature, the contents of the report are not proved. Hence, the said lists/reports cannot be relied upon in order to convict the appellant.
196. On the other hand, Mr. Bajpai has raised the following pleas: firstly, since the last recovery from the appellant was made on 25-6-03, obviously the Expert Committee could not have carried out the examination of the recovered art objects between 13 and 15 of June, 2003. Thus, naturally the dates mentioned in the letter dated 23-8-03 (Ex. D. 367) are wrong.
Secondly, the signature on both the letter dated 23-8-03 (Ex. P. 367) and the corrigendum letter dated 14-3-06 (Ex. P. 1124) are same; they are the signatures of Dr. G.T. Shinde (P.W. 78). Since Dr. G.T. Shinde (P.W. 78) was the author of the letter dated 23-8-03 (Ex. D. 367), once the mistake was pointed to the ASI, he corrected the date of examination by the Expert Committee and issued a corrigendum letter dated 14-3-06 (Ex. P. 1124). Hence, there is nothing wrong with his issuing the corrigendum letter (Ex. P. 1124).
Thirdly, those who work in the ASI they are experts about antique statues and artifacts. They have sufficient expertise. Thus, art objects need not be subjected to any scientific tests. According to Dr. G.T. Shinde (P.W. 78), the Expert Team had classified the art objects/paintings and the sculptures as ''antiques'' and ''non-antiques'' on the basis of their appearance.
Fourthly, since the prosecution had submitted the summary of the report, in the form of lists/reports (Exs. P. 222, 223, 225, 227), there was no need for it to submit the detailed reports. The lists/reports were sufficient to prove that the art objects/paintings and sculptures recovered were certainly antiques.
Fifthly, the list being part of the reports prepared by a scientific government expert, it was admissible u/s 293 Cr.P.C. Therefore, there was no need to prove the said lists/reports (Exs. P. 222, 223, 225, and 227). Hence, the prosecution had succeeded in proving the fact that the art objects/paintings/sculptures were antiques. Thus, the learned Judge was legally justified in convicting the appellant for offences under the AAT Act.
197. The prosecution case against the appellant and other co-accused persons was that they are in possession of, selling, or exporting or attempting to export antique sculptures out of India. Except for the Goddess and the Jain idol, for the rest of the artifacts and antiques, the appellant has been convicted for offences under Sections 3/25(1) and 14/25(2) of the AAT Act. Hence, the crux of the prosecution case is that the appellant was dealing with "antique" sculptures and artifacts. Therefore, the prosecution was required to firmly establish, through cogent and convincing evidence, that the artifacts/sculptures allegedly recovered from the appellant or on the basis of his statement u/s 27 of the Evidence Act were actually ''antiques''.
198. The trial court is neither an expert in art history, nor in antiquities. The fields of art history and antiquities are as specialized as ballistics and medical jurisprudence. Faced with various styles of sculptures in India, from Chola to Pala, from Khajuraho style to Vijaynagar style, overwhelmed by the endless number of Gods and Goddesses of the Hindu, Buddhist and Jain pantheon, a court is likely to be lost in the labyrinth of art and antiquities. Moreover, both knowledge about the art style, and about the technology and methodology used to classify a piece of art as an antique are essential. Thus, expert opinion is sine quo non. Section 45 of the Evidence Act not only defines who is an expert, but also makes his/her testimony relevant and admissible. According to the said provision "When the Court has to form an opinion upon a point of foreign law or of science or art, ...the opinions upon that point of persons specially skilled in such foreign law, science or art...are relevant facts. Such persons are called experts." Therefore, before a court can convict a person of an offence under the AAT Act, the requirement of expert opinion is fundamental to prove that the art objects are genuine ''antiques''. For, instances are not lacking when even the experts have been fooled into treating a good fake copy as a genuine piece of art. It is common knowledge that in Europe, a few fake paintings have been sold as genuine works of the famous Dutch painter Vermeer. Moreover, in 1956, an idol of Natraj (Lord Shiva as a cosmic dancer) was stolen from a temple in South India. Its fake copy was installed in the temple and worshiped. Subsequently, in 1973, the original idol surfaced at the Norton Simon Foundation in U.S.A. Thus, from 1956 to 1973 even the priests and the worshipers did not realize that they were worshiping a fake copy of the original idol. Thus, even those who were intimately connected with the idol did not realize that the original was replaced with a fake copy. Most importantly, according to Hari Manjhi (P.W. 69) who was the Director of ASI, fake copies of antiques are available in the market. Hence, it was imperative that the ''antiqueness'' of the artifacts/paintings/sculptures be proved beyond a reasonable doubt.
199. According to Gauri Chatterjee (P.W. 70) two Expert Committees were constituted. Both the Committees were headed by G.C. Chawley. While the first Committee consisted of four experts besides G.C. Chawley, the second Committee consisted of five experts besides G.C. Chawley. Admittedly, G.C. Chawley died prior to deposing before the learned trial court at Jaipur. According to Hari Manjhi (P.W. 69), Gauri Chatterjee (P.W. 70) and Dr. G.T. Shinde (P.W. 78) none of them were members of either of the two Expert Committees. But still, the prosecution did not examine any other member from either of these two Expert Committees as a witness. Hence, there is no witness to inform the court about the basis on which the Expert Committees reached their conclusion with regard to the antiqueness of the objects examined by them.
200. Gauri Chatterjee (P.W. 70) clearly admits that she is an IAS officer and not an expert in antiques, or in fine arts, or in archeology. On the other hand, Hari Manjhi (P.W. 69) and Dr. G.T. Shinde (P.W. 78) also admit in their testimony that they were not members of either of the Expert Committees formed by the ASI. But for producing Ram Singh (P.W. 76), the IO, the prosecution has not produced any other ''expert''. Thus, the prosecution case is marked by glaring absence of an expert witness. The court is left with the opinion of Ram Singh (P.W. 76), the investigating officer, with regard to the nature of the recovered art objects: the court is left floundering.
201. In the case of State of Himanchal Pradesh v. Jai Lal & Ors. (supra) the Apex Court elaborated on the function and need for having an expert opinion. Referring to Section 45 of the Evidence Act, it observed as under:
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria (sic) to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.
202. Further, according to both Gauri Chatterjee (P.W. 70) and Dr. G.T. Shinde (P.W. 78) detailed reports were prepared by the Expert Committees which were available in their office. But the said detailed reports were never produced by the prosecution before the trial court. According to Gauri Chatterjee (P.W. 70), she did not attach the detailed report with the Authorization Letter (Ex. P. 227) issued by her. She merely attached a summary of the report as list ''C'' (Ex. P. 225). Thus, the prosecution has withheld vital documents from the trial court. Therefore, the trial court ought to have drawn adverse inference against the prosecution. But the learned Judge has failed to do so. If the detailed reports were produced it would have falsified the case of the prosecution. Thus, the non-production of the detailed reports should be read against the prosecution.
203. Undoubtedly, the prosecution has submitted lists/reports (Exs. P. 222, 223, 225, and 227) along with their covering letters as mentioned above. However, documents do not prove themselves. [Ref. to Chaman Lal (supra)] The contents of the said lists/reports have to be proven. The prosecution has examined Hari Manjhi (P.W. 69) to prove that Exs. P. 222, 223, 225 and 227 contain G.C. Chawley''s signatures. But merely by proving his signature, the contents of the report do not stand proven. [Ref. to Birad Mal Singhvi (supra)]. Moreover, Hari Manjhi (P.W. 69) has clearly admitted in his cross-examination that "For those documents where I have identified G.C. Chawley''s signature, like Exs. P. 222, 225, 227 and 223, I have merely identified his signature. What is written in these documents, who wrote them, when they were written, whether they contain truth or falsehood, I do not know." Thus, obviously, the prosecution has failed to prove the contents of the lists/reports, mentioned above. Yet, the learned Judge has relied upon them for concluding that the recovered items were ''antique'' in nature.
204. Furthermore, bare perusal of these list/reports (Ex. P. 222, 223, 225 and 227) reveals that they are incomplete. For, the lists/reports have merely divided the objects into ''antique'' or ''non-antique''. They do not give a single reason for classifying an object as ''antique'' or ''non- antique''. Therefore, the court is at a loss as to the scientific basis on which the objects were declared as ''antique'' or ''non-antique''. While dealing with the paintings, the lists/reports do give some details. But while dealing with the sculptures, the details are conspicuously missing. The lists/reports have merely mentioned that the sculpture is in stone. But they do not reveal the type of stone, i.e. whether sandstone, marble, or granite; they have not revealed the style in which the sculpture is done, i.e. whether belongs to the Gupta style, Mathura style, or Konark style. They have neither revealed the dynasty under which the sculpture was likely to be done, i.e. Kushan dynasty, Gupta dynasty, Pala dynasty, or Prathihara dynasty. Further the lists/reports have not given the historical period to which the sculpture belongs, i.e. whether it is a sculpture from the 2 Century EBC, or 1 Century CE or from 9-12 Century CE. The list includes the two Buddha Heads (Ex. P. 222, List/Report ''A'', Item Nos. 112, 113) allegedly discovered at Satyadev Sharma''s workshop. However, it does not reveal whether it is a Buddha Head of Gandhara School, or of Mathura School, whether it is of Kushan Period, or of Gupta Period, or of much later period. Even if it is sculpted out of stone, was the sculpture an ancient one, or a modern copy. Similarly, the Goddess (Ex. P. 222, List/Report ''A'', Item No. 114) recovered at the appellant''s farmhouse has been mentioned as "Devi". [But as would be discussed later in the judgment, there is confusion about the identity of the sculpture]. Even for this sculpture, the list/report (Ex. P. 222, Item No. 114) merely states, "Devi sculpture made out of stone, in which there are images of lions, and on both the sides images of men and women have been carved, and which has been painted in pink color, and which seems old." Hence, because the sculpture "seems old", therefore it has been classified as ''antique''. However, there is no indication about the subject-matter, the age, the period, the dynasty, the style of the sculpture. Most importantly, the lists/reports do not reveal the scientific criteria for testing the accuracy of the conclusion. Therefore, the lists do no enable a court to formulate its independent opinion. Naturally, the credibility of these lists would depend upon the reasons stated in support of their conclusions and upon the data and material furnished which formed the basis of their conclusion. However, the lists are silent about the most vital and essential clues for the sculpture being ''antique''. Thus, the lists/reports (Exs. P. 222, 223, 225 and 227) are at best inconclusive, vague, and unclear about the ''antiqueness'' of the recovered items. Therefore, they do not establish the antiqueness of the art objects recovered from the appellant.
205. In the case of Mahmad Hanif Shaikh Ibrahim (supra) a learned Division Bench of the Hon''ble Gujarat High Court was seized with a case under the Narcotic Drugs and Psychotropic Substance Act. It was dealing with the report of the public analyst with regard to the contraband drug. However, the report did not contain any reason for the conclusion drawn by the public analyst that the substance was ''Charas''. Their Lordships of the Hon''ble Gujarat High Court observed that "Now on perusal of the above report, by no stretch of imagination, the same can be said to be full and complete, disclosing the scientific tests or experiments performed by the public analyst. Except for the bare opinion and assertion that the muddamal article was "Charas" there is indeed nothing on the basis of which this Court can independently test and assess the truthfulness and genuineness of the said Public Analyst''s Report, Exh. 12" Rejecting the said report of the Public Analyst, Their Lordships acquitted the appellant for offence under the NDPS Act.
206. Gauri Chatterjee (P.W. 70) claimed in her testimony that the recovered objects were scientifically tested in order to decide their antiquity. However, according to Hari Manjhi (P.W. 69) and Dr. G.T. Shinde (P.W. 78) the recovered items were declared to be antique on the basis of their ''appearance''. Admittedly, none of these three witnesses were members of the two Expert Committees. Thus, the very basis for declaring the individual items as ''antique'' or ''non-antique'' is unknown. The prosecution should have examined the members of the Expert Committees in order to establish the antiqueness of the recovered objects, in order to clarify the basis on which the objects were held to be antiques. After all, the members were the star witnesses for the prosecution to establish the antiqueness of the objects. Since the prosecution has not produced the primary and the star witness, their non-production should be read against it. Instead of presenting a clear picture, the prosecution has presented a doodle. It has singularly failed to prove its case about the ''antiqueness'' of the art objects/artifacts/sculptures/paintings beyond a reasonable doubt.
207. While cross-examining Hari Manji (P.W. 69), the defence not only asked him about the different techniques employed by the experts to find out the age of an object, but also suggested that fake copies of sculptures are readily done and are readily available in the market. The witness did speak about Dendrochronology, a technique used by the archeologists to date wooden objects, and about Thermoluminescence Dating (TL Dating), test used for dating ceramic objects, and about x-ray being used by the archeologists to date objects made out of other materials. But according to him the Expert Committee did not apply these techniques to the recovered art objects/paintings or sculptures, although items made out of wood and other materials were recovered.
208. According to him the experts had merely looked at the recovered items and had declared the items to be ''antiques'' on the basis of their ''appearance''. However, further in his cross-examination, he does admit that "today''s artists do make fake copies of ancient sculptures which look just like the original." He further admits that copies of antique sculptures are sold by art galleries and museums. Once this admission is made by the Director, Archeological Survey of India, it was for the prosecution to eliminate the possibility that the recovered items were not mere fake copies of the original pieces. However, no such attempt was made. Therefore, a grave doubt does exist that the recovered items may not be antiques at all.
209. There is also some confusion about the date on which the Expert Committee came to Jaipur to examine the recovered items. According to Ram Singh (P.W. 76), the Expert Committee visited and examined the recovered items between 13-8-03 to 15-8-03, between 28-8-03 to 30-8-03, and between 20-4-2004 to 22-4-2004. However, even his testimony does not tell the court out of the two Expert Committees, which Committee came to Jaipur on which date. Hence, his testimony is inconclusive.
210. Moreover, according to the original letter dated 23-8-03 (Ex. D. 367) the Expert Committee had inspected the recovered items between June 13 to 15, 2003. But subsequently, according to the corrigendum letter dated 14-3-06 (Ex. P. 1124) the said inspection was carried out between August 13 to 15, 2003. Of course, Mr. Bajwa has tried to argue that there is some confusion about the authorship of the two letters. However, the contention is misplaced. The original letter dated 23-8-03 (Ex. D. 367), was written by Dr. G.T. Shinde, but it contained a list/report marked as Annexure ''A''. The said list/report was signed by G.C. Chawley. A bare comparison of the original letter (Ex. D. 367) and the corrigendum letter dated 14-3-06 (Ex. P. 1124) clearly reveals that the signature on both the letters is the same, namely of Dr. G.T. Shinde. Since the signature of G.C. Chawley is available on Exs. P. 222, 223, 225, and 227, his signatures have been compared, by this court, with the signature available on the original letter (Ex. D. 367) and on the corrigendum letter dated 14-3-06 (Ex. P. 1124). Neither of these two letters contains the signature of G.C. Chawley. Therefore, the pleas raised by the learned counsel for the appellant is unacceptable. In fact, the plea raised by Mr. Bajpai that both the letters were authored by Dr. G.T. Shinde is clearly borne out by the record.
211. But even then the corrigendum letter dated 14-3-06 (Ex. P. 1124) and the other two letters sent by the ASI, namely letter dated 30-8-03 (Ex. P. 224) and letter dated 22-4-04 (Ex. P. 226) do not strengthen the prosecution case. In fact, they make it even worst. For, none of these letters specify as to which of the two Expert Committees examined the recovered items. Thus, the court is still left in the dark with regard to the date and with regard to the Expert Committee which had examined the recovered art objects.
212. Mr. Bajpai has pleaded that as the lists/reports are of government scientific experts, u/s 293 Cr.P.C. the same can be taken into evidence without any proof, and relied upon for convicting the appellant. However, the said plea is untenable. For, section 293 Cr.P.C. is as under:
293. Reports of certain Government scientific experts.
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:--
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkine Institute, Bombay;
(e) the Director Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State forensic Science Laboratory;
(f) the Serologist to the Government.
213. A bare perusal of the provision shows that the said provision does not cover the Expert Committee formed by the ASI. Therefore, the report of the Expert Committee would necessarily has to be proved. Hence, Mr. Bajpai cannot take the benefit of section 293 Cr.P.C. and claim that the prosecution was not required to prove the contents of the lists/reports (Exs. P. 222, 223, 225, 227).
214. In the case of Mahmad Hanif Shaikh Ibrahim (supra) Their Lordships of the Hon''ble Gujarat High Court observed as under:
Merely because by virtue of section 293 of the Code, his report could be admitted in evidence and exhibited without giving evidence before the Court that by itself does not mean that the same is to be accepted straightway as a conclusive proof of evidence against the accused, more particularly when it does not contain even a grain of material indicating on what scientific tests his opinion was arrived at. Before the evidence of Public Analyst can be safely accepted and relied upon to base the order of conviction and sentence, the Court must have an opportunity of its own to independently assess and appreciate the same on the basis of scientific tests, etc. Instead, if the Court is to surrender to any bare opinion of the Public Analyst, that can amount to abdication of its judicial function, relegating itself to mechanically record the order of conviction and sentence without doing anything else.
215. We are in agreement with the judicial opinion expressed by Their Lordships of the Gujarat High Court.
216. Further, in the case of Jai Lal & Ors. (supra) the Apex Court has opined that "The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination. This Court in the case of
217. Thus, the contentions raised by Mr. Bajpai with regard to the admissibility and the probative value of the lists/reports mentioned above are clearly untenable.
218. In short, despite the submission of oral and documentary evidence the prosecution has singularly failed to establish that the recovered items were, indeed, ''antiques''. This is a gaping hole in the prosecution case.
219. This completes the discussion on those legal issues which permeate the four recoveries which would be discussed herein under. But before we begin our discussion about the individual recoveries, we need to recapitulate the principle governing the appreciation of evidence in a case based on circumstantial evidence as the present case is entirely based on circumstantial evidence.
220. By now the principles are too well settled. In the case of
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in
19. ...Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be " and "must be " is long and divides vague conjectures from sure conclusions''
(Emphasis in original)
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) The circumstances should be of a conclusive nature and tendency,
(4) They should exclude every possible hypothesis except the one to be proved, and
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
221. These principles were also cited with approval in the case of
Recovery of 7-6-2003:
222. Mr. Bajwa has raised the following contentions with regard to recovery of 7-6-2003 from the appellant''s house: firstly, the recovery never took place. Since Ram Singh (P.W. 76) had demanded an illegal gratification from the appellant, since the appellant had refused to grease his palm, Ram Singh (P.W. 76) concocted a recovery from the appellant''s house.
Secondly, the falsity of the recovery is apparent from the fact that the recovery is replete with lacunae. Considering Ram Singh (P.W.) is a responsible officer, it is surprising that the recovery has been carried out in violation of the provisions of Criminal Procedure Code, in ignorance of the Rajasthan Police Rules, in violation of the AAT Act, besides committing other faults. The manner of carrying out the recovery casts a grave shadow of doubt about the factum of the recovery. It also places a question mark on the integrity, impartiality and efficiency of the police. It is a recovery carried out in a mala fide manner. Thus, the recovery can neither be believed, nor relied upon. Moreover, such a cooked up investigation subjects the appellant to an unfair trial. It violates his fundamental rights under Arts. 20 and 21 of the Constitution of India.
Thirdly, Sections 165 and 166 Cr.P.C. deal with ''Search by a Police Officer" and with "When Officer in charge of Police Station May Require Another to Issue Search-Warrant" respectively. While the former permits the police officer to search within the territorial jurisdiction of his own police station, the latter permits him to search in the jurisdiction of another police station provided certain conditions are satisfied by the police officer. Since the appellant''s house does not fall within the jurisdiction of the Police Station Vidhyadhar Nagar, but falls under the jurisdiction of Police Station Vidhan Sabha, the search carried out by Ram Singh (P.W. 76) was naturally u/s 166(3) Cr.P.C. Since Section 166(4) Cr.P.C. mentions Section165 (1) and (4), the former provision would have to be read in the light of the latter provision. However, Ram Singh (P.W. 76) has ignored the mandate of both Sections 165 and 166 Cr.P.C.
Fourthly, although ''independent witnesses'' from the neighborhood are to be associated with search and seizure, Ram Singh has associated one Duli Chand (P.W. 47) and Kishan Lal (not produced as a prosecution witness) both from areas falling under Police Station Ramganj--an area on the other side of the city.
Fifthly, Duli Chand (P.W. 47) happens to be a stock witness of the Police Station Ramganj. He has been recovery witness in seventy-seven cases prior to recording of his testimony by the learned trial court. Even in the present case, he has been a recovery witness in other related FIRs, namely in FIR No. 109/2003 registered at Police Station Harnavda Shavji, Dist. Baran. Moreover, Duli Chand (P.W. 47) has been convicted twice under the NDPS Act. Thus, he is a puppet in the hands of the police; he is a pliable witness. Moreover, surprisingly although Duli Chand claims that he is a resident of Ramganj area, he just happened to be in the vicinity of the appellant''s house, around 6:30 AM, just when the police was about to raid the appellant''s house. Such fortuitous circumstances should have alerted the learned trial court. Yet, the learned Judge has heavily relied upon his testimony for convicting the appellant. Relying on the case of
Sixthly, the other recovery witness Kishan Lal was never produced as a prosecution witness. But like Duli Chand (P.W. 47), he too was a criminal. Hence, both the recovery witnesses were under the influence of the police. Surprisingly, Ram Singh (P.W. 76) had chosen two recovery witnesses who were in the police grip. Such choice of recovery witness clearly reveals Ram Singh''s modus operandi in framing the appellant in a false case.
Seventhly, according to Ram Singh (P.W. 76) after interrogating the four accused persons who were arrested on 6-6-03 from the Ganesh Park, the police had sufficient information that the appellant was involved in dealing with, in receiving stolen antique sculptures, and in exporting them. According to the learned counsel, hence the police was well aware of the fact that it was searching for ''antique sculptures'' or ''evidence of antique sculptures''. According to section 23 of the AAT Act, in case a search needs to be made for antiquities or for art treasure, it is imperative to associate an officer of the ASI with the search. Despite the fact that the search was for antiques, the police did not associate any officer from the ASI while carrying out the search. The reason why Ram Singh (P.W. 76) did not associate any officer from the ASI department was that the recovery is a fake one. Therefore, the procedure established under the special law has been ignored purposefully.
Eighthly, the police had called Ram Babu Vijay (P.W. 61)--a photographer to photograph the items allegedly recovered from the appellant''s house. But his testimony punctures holes in the prosecution case. While the prosecution claims that the raid started at 6:30 AM, according to this witness, the raid commenced at 11:30 AM. Further, his testimony is self-contradictory: in his police statement recorded u/s 161 Cr.P.C. he claimed that the photographs were taken with a SLR camera which uses a film. But before the court, he changed his stand and claimed that the photographs were taken by a digital camera. He further claimed that he had prepared a CD of the photographs; but the same was never submitted by the prosecution. Therefore, an adverse inference should be drawn against the prosecution.
Moreover, while appreciating his testimony the learned Judge has overlooked the requirement of Section 65B of the Evidence Act--a provision which deals with the admissibility of electronic records. Since a digital camera produces an electronic record, the requirement of Section 65B(2) of the Evidence Act would have to be fulfilled before the photographs can be admitted as evidence. However, in the present case both the prosecution and the learned Judge have ignored the requirements of Section 65B of the Evidence Act. Hence, the learned Judge has relied on evidence which could neither be admitted, nor relied upon. Thus, the learned Judge has misapplied the law while convicting the appellant.
Ninthly, the Rajasthan Police Rules (''the Police Rules'', for short) lay down that in case of recovery of any object during search, the same should be sealed and marked. Moreover, law requires that a site plan of the place of recovery should be drawn up so as to reveal the exact place from which a given object was recovered. Despite the requirement of the law, Ram Singh (P.W. 76) has conveniently ignored the said requirements. The seventy-two paintings allegedly recovered from the appellant''s house were neither sealed, nor marked. Even the Seizure Memo (Ex. P. 163) does not contain the description of the paintings. Moreover, even the catalogs of Sotheby and Christie, allegedly seized from the appellant''s house, were not sealed and marked. In fact, according to Vishambar Dayal (P.W. 33), the in-charge of Malkhana (the storeroom of the police station), "the recovered items were deposited without being packed and sealed". Furthermore, even the Malkhana register (Ex. P.76-A) does not contain any description of the seventy-two paintings received by the Malkhana in-charge. Further, the Malkhana register does not reveal as to when the seized items were taken out of the Malkhana, when were the paintings photographed, and when were they returned. Thus, the seized art objects and catalogs freely went in and out of the Malkhana. Therefore, a grave possibility does exist that items may have been replaced, or planted. According to Ram Singh (P.W. 76) all the paintings were signed by him and the recovery witness Duli Chand (P.W. 47). However, Duli Chand (P.W. 47) does admit in his cross-examination that some of the paintings do not contain his signature. Thus, this proves the fact the paintings produced before the trial court were not the ones which were allegedly recovered from the appellant''s house. Therefore, the recovery of the paintings loses much of its significance. Further, even the ASI report (Ex. P. 222) does not contain any reasons for labeling the paintings as ''antiques''. Hence, the said report does not strengthen the prosecution case.
Tenthly, according to the prosecution, the appellant was arrested immediately after the search in his house. Thereafter, the police party had taken him to his showroom. But nothing incriminating was recovered from the showroom. However, the Seizure Memo (Ex. D. 368) clearly reveals that instead of referring to the appellant as ''the accused'', he has been referred to by his name. This clearly shows that till the search in the showroom, the appellant was not arrested. Otherwise, there is no reason as to why the appellant has been referred to by his name, instead of being called ''the accused''.
Lastly, although the police had kept the investigation open with regard to the allegation that the appellant was selling antique sculptures from India through two Auction Houses, namely Sotheby and Christie, but the police never completed the said investigation. Therefore, the catalogs of these two auction houses do not further the prosecution case.
223. On the other hand, Mr. Bajpai has raised the following pleas: firstly, Ram Singh (P.W. 76) had carried out the search in compliance of Sections 100, 165 and 166 Cr.P.C. In his testimony he had clearly stated that he had tried to locate independent witnesses from the appellant''s neighborhood; however, he could not locate anyone. Since at the relevant time Duli Chand (P.W. 47) and Kishan Lal were walking on the road, they were asked to be recovery witnesses. Further, it is not that the recovery memo and the list of recovered items were not sent to the concerned Magistrate in accordance with section 166 Cr.P.C. They were. Ram Singh (P.W. 76) has clearly explained the delay in sending the same to the concerned Magistrate on 9-6-03, as 8-6-03 happened to be a Sunday. Moreover, Ram Singh (P.W. 76) has stated that as the paintings and the catalogs were required for further investigation, they were not sealed immediately. Thus, he has given cogent reasons for not sealing them. Furthermore, even if the police have not followed the correct procedure for search and seizure, even then it would not dilute the recovery. Thus, it is immaterial if section 165 and 166 Cr.P.C. have been followed or not. In order to buttress this contention, the learned counsel has relied upon the case of
Secondly, Duli Chand (P.W. 47) is not a stock witness. According to the learned Judge, the defence counsel had conceded that prior to the registration of the present case, Duli Chand (P.W. 47) was a recovery witness in a single case, and was a recovery witness only in those cases which were initiated after the present case had commenced. Moreover, even if Duli Chand (P.W. 47) is seen as a ''stock witness'', even then, his testimony cannot be discarded on this ground alone.
Thirdly, Ram Babu Vijay (P.W. 61) has supported the prosecution case. According to him, he had photographed the half-burned and unburned photographs, and the broken down door of the appellant''s house. He had identified the photographs produced in the court. Further, even if the requirement of Section 65B of the Evidence Act were not satisfied, even then the photographs would be admissible as they are relevant to the controversy in issue. Moreover, he had narrated about the recovery proceedings. Thus, he does not dilute the prosecution case.
Fourthly, Panchu Ram (P.W. 68)--the author of the Seizure Memo (Ex. P. 163), has also corroborated the recovery. Since he had written the Seizure Memo (Ex. P. 163), his presence at the time of the raid cannot be doubted. In his testimony he has clearly informed the court that not only the catalogs, but the unburned and half-burned photographs, and the paintings were recovered from different parts of the appellant''s house. Hence, there is no reason for disbelieving the recovery made by the police.
Fifthly, the defence has not produced any evidence to show that the paintings which were produced in trial were not the ones recovered from the appellant''s house. Therefore, even if the said paintings were not sealed at the time of recovery, it is not fatal to the prosecution case. Further, the ASI Report (Ex. P. 222) cleared proved that the paintings were, indeed, antiques. Moreover, since there is direct evidence about the recovery, it is immaterial if the site plan has been made or not. After all, the sealing of the objects, the recovery memos, the site plan are only corroborative pieces of evidence and are not substantial pieces of evidence.
Lastly, the learned Judge was justified in relying on the testimony of Duli Chand (P.W. 47), Panchu Ram (P.W. 68), and Ram Singh (P.W. 76) and in relying on the recovery memo, the photographs, and the seizure of catalogs in order to convict the appellant.
224. In rejoinder, Mr. Bajwa submits that the non-observation of the procedure established by the Code may not be fatal to the prosecution case. But it would certainly adversely affect the probative value of the evidence produced by the prosecution. Secondly, the explanation given by Ram Singh (P.W. 76) for delay in sending the recovery memo and the list of recovered articles should be rejected. For, Ram Singh (P.W. 76) had presented the appellant before the concerned Magistrate on 8-6-03, a Sunday, itself. If the appellant could be produced before the Magistrate on Sunday, there is no reason for the non-submission of the Seizure Memo (Ex. P. 163) and the list of articles recovered on 7-6-03. In fact, they were material documents as the police was seeking the appellant''s police custody. The non-submission of the relevant documents clearly shows that no recovery was made on 7-6-03. Further, the remand order dated 8-6-03 does not mention the fact that the police has raided the appellant''s house, has discovered incriminating evidence; therefore, his police custody is necessary for further investigation. This also proves the fact that no recovery was made on 7-6-03 from the appellant''s house. Thirdly, although Panchu Ram (P.W. 68) claims to be the author of the Seizure Memo (Ex. P. 163), but the said document does not bear his signature. Moreover, according to the prosecution, both Ram Singh (P.W. 48)--he is not the I.O., but another police personnel, and Chandra Purohit (P.W. 58) were members of the raiding party. However, neither of them mentions the recovery proceedings of 7-6-2003. Therefore, the court has only the testimonies of Duli Chand (P.W. 47), Panchu Ram (P.W. 68) and Ram Singh (P.W. 76) to go with for convicting the appellant. Fourthly, Ram Singh (P.W. 76) is not only an interested witness, but is also an unreliable one. He has framed the appellant in order to wreck personal vengeance. The loopholes in the investigation clearly establish the reckless manner in which the investigation was carried out. Since he had investigated the case, he is personally interested in the success of the prosecution. Moreover, he has been given out of turn promotion only because of the "success" of this case. Thus, he is an inimical witness. Moreover, as would be argued later, his testimony is full of omission, contradiction and falsehood. Hence, he is an untrustworthy witness.
225. Under Arts. 20 and 21 of the Constitution of India a just, fair and impartial investigation is an essential part of the right of the accused. Pitted against the colossal power of the State, an accused has to be protected from the abuse of power by state machinery. Arts. 20 and 21 of the Constitution throw a protective shield around the offender. In the case of
60. ...The word personal liberty [under Article 21 of the Constitution] is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily....
61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.
226. Thus, while investigating a case, the Investigating officer has to keep in mind the constitutional mandate enshrined in Arts. 20 and 21 of the Constitution of India. For, The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth." [Ref. to
32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness.
227. Thus, ethical conduct of the Investigating officer is absolutely essential for investigative professionalism. He should carry out an objective search for truth. He can neither be biased against the accused for his own personal reasons, nor be under the influence of the complainant for extraneous reasons. He must follow the mandate of the Constitution and the requirements of the Law. If he does not carry out his duty in the most objective, fair and impartial manner, he jeopardizes the prosecution case. Although an improper investigation may not be fatal to the prosecution case, but it may dilute the prosecution case and reduce it to zero. It may also raise sufficient doubts in the mind of the court, so as to lead to acquittal of the accused on the ground of benefit of doubt.
228. Moreover, like any other litigant, even the State must come to the court with clean hands. If the prosecution comes to the court while withholding relevant documents, while hiding material witness, such tactics would only undermine the trustworthiness of the prosecution case. For, if a party plays hide and seek with the court, it does so at its own peril. Further by permitting the prosecution to adopt such tactics and to get away with it, the court violates the right of the accused to a fair trial. The court is not supposed to be a mute witness to a trial; it is expected to play a proactive role in ensuring that the rights of the accused are not violated. After all, the hallmark of the Indian Judiciary is the protection of the rights of the accused.
229. Therefore, while assessing the evidence with regard to the recovery of 7-6-03, this court would have to consider whether the police have followed the procedure laid down in Sections 100, 165 and 166 Cr.P.C. or not? If not, what would be the consequence? Have the police associated impeccable and independent witnesses with the recovery? Have the police come with clean hands? Whether the prosecution has succeeded in proving the fact that the painting were antiques or not? Whether the linking evidence is missing or not? If so, what would be the consequences? Lastly, whether the procedure adopted by the police leaves a lurking doubt in the mind of the court about the veracity of the recovery or not?
230. section 165 Cr.P.C. is as under:
165. Search by Police Officer:--(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such stations.
(2) A police officer proceeding under Sub-section (1), shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible the thing for which search is to be made'' and such subordinate officer may thereupon search for such thing in such place.
(4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to search made under this section.
(5) Copies of any record made under Sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application be furnished, free of cost, with a copy of the same by the Magistrate.
231. section 166 Cr.P.C. is as follows:
166. When officer in charge of police station may require another to issue search warrant:
(1) An officer in charge of a police station or a police officer not being below the rank of sub-inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.
(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared u/s 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-sections (1) and (3) of section 165
(5) The owner or occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub-section (4).
232. Both Sections 165 and 166 Cr.P.C. refer to section 100 Cr.P.C.
section 100 Cr.P.C. is as under:
100. Persons in charge of closed place to allow search:
(1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it.
(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence u/s 187 of the Indian Penal Code (45 of 1860).
233. But the search in the present case is not only limited to the general provision of Cr.P.C.; it is also covered by section 23 of the AAT Act.
section 23 of the AAT Act is as under:
23 Powers of entry. Search, seizure, etc.
(1) Any person, being an officer of Government, authorised in this behalf by the Central Government, may, with a view to securing compliance with the provisions of this Act or to satisfying himself that the provisions of this Act have been complied with--
(i) enter and search any place;
(ii) seize any antiquity or art treasure in respect of which he suspects that any provision of this Act has been, is being, or is about to be, contravened and thereafter take all measures necessary for securing the production of the antiquity or art treasure so seized in a court and for its safe custody, pending such production.
234. According to the said provision, in order to carry out any search under the AAT Act, it is imperative that the said search be carried out with the assistance of an officer from the ASI. Since the special law overrides the general law, this provision would have to be adhered to.
235. section 100 Cr.P.C. makes it mandatory that a search by police be carried out in the presence of two independent witnesses. The police should endeavor to first have the independent witnesses from the locality where the search is to be made. If no inhabitant is available or is unwilling to be a witness, then the police are permitted to seek independent witnesses from any other locality. However, if a person refuses or neglects to be a witness, without any reasonable cause, when called upon to do so in writing delivered or tendered to him, then he is deemed to have committed the offence u/s 187 IPC. Hence, the police should first try to have two independent witnesses from the locality itself.
236. section 165 Cr.P.C. empowers a police officer making an investigation to search a place under his own jurisdiction. However, he is required to follow the procedure prescribed in section 100 Cr.P.C. mentioned above. Moreover, he is required to send a copy of any record made during the search to the Magistrate empowered to take cognizance of the offence.
237. section 166 Cr.P.C. further empowers the police officer in-charge of police station, or a police officer investigating a case to require an officer in charge of another police station to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station. Sub-clause (3) permits the police officer in-charge of a police station, or a police officer investigating the case to himself search the place provided he has reason to believe that the delay in searching the place might result in evidence of the commission of an offence being concealed or destroyed. However, sub-section (4) imposes three conditions on such an investigating officer, or police officer in charge of a police station: firstly, he must send a notice of the search to the officer in charge of the police station within the limits of which such place is situated; secondly, he shall also send a copy of the list (if any) prepared u/s 100 along with the notice to the concerned police station under whose jurisdiction the place falls; thirdly, he shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-sections (1) and (3) of section 165 Cr.P.C. Thus, after a search is made by a police officer in-charge of a police station, or by the investigating officer in an area beyond his territorial jurisdiction, he is required to fulfill these legal requirements.
238. Under Art. 21 of the Constitution, the right to life includes the right to privacy. Since search of a place involves not only intrusion into the lives of the people, but also may involve the trampling of right of privacy, Sections 100, 165 and 166 Cr.P.C. prescribe certain checks on the power of the police. These sections are meant to bridle the tendency of the police force to abuse its power of search and seizure. The unruly horse needs to be reined in. Although the non-compliance of these provisions would not be fatal to the prosecution case, but it may arouse sufficient and reasonable doubts in the mind of the court so as to adversely affect the probative value of the evidence marshaled out by the prosecution. [Ref. to
239. Over two years the police was investigating an alleged inter-state gang of persons who were allegedly involved in stealing, transporting and in exporting antique sculptures and artifacts. The police also had the information that the antiques were being exported abroad and were being sold to private collectors through private Auction Houses. Thus, the case would also have international ramifications. Keeping in mind the vast scope of investigation, the complexity of the evidence likely to be gathered, the serious issues involved in the case, the case was assigned to Ram Singh (P.W. 76). Needless to say, Ram Singh (P.W.) was a responsible officer, who can safely be taken to be familiar with the provisions of law. Naturally, such an officer is not only expected to meticulously follow the law, but he is also required to keep the Constitutional mandate in mind. After all, his investigation would form the foundation of the prosecution case. The investigation should arm the prosecution with an open and shut case.
240. But surprisingly, Ram Singh (P.W. 76) has ignored both the letter and the spirit of the law. According to him, after interrogating the four persons arrested on 6-6-03 from the Ganesh Park, he was of the opinion that the appellant has a pivotal role in the case. Thus, he was of the opinion that the appellant''s house should be raided early in the morning for recovering ''antique statues and other antiquities''. But despite forming this opinion, Ram Singh (P.W. 76) did not associate any officer from the ASI in accordance with the requirement of section 23 of the AAT Act. He carried out the search and seizure as though it was merely a case under the Indian Penal Code. Therefore, the provisions of the AAT Act have been ignored. Interestingly, in his examination-in-chief he does not offer any explanation for such a lapse. His silence about this lapse strengthens the defense argument that Ram Singh (P.W. 76) purposefully left out an officer of the ASI, as the recovery was never made on 7-6-03.
241. Curiously, Ram Singh also ignores the relevant provisions of the Criminal Procedure Code while carrying out the alleged recovery. According to Section 166(4) Cr.P.C. he was supposed to inform the SHO of the police station under which the appellant''s house falls, namely Police Station Vidhan Sabha. But there is no evidence on record to show that such information was given by Ram Singh to the SHO of the concerned Police Station. Although Ram Singh (P.W. 76) claims that he had sent the required information to the Police Station Vidhan Sabha, but such documents have not been exhibited during the course of trial.
242. Further according to Section 166(4) Cr.P.C. he was supposed to have sent the record of the search along with the list of articles seized by him to the Magistrate competent to take cognizance of the case. In his cross-examination, Ram Singh (P.W. 76) claims that he could not send the documents and the list to the concerned Magistrate on the next date, i. e. on 8-6-03 as it was a Sunday. However, such an explanation is unacceptable. For, firstly such an explanation was not given by him in the examination-in-chief. Secondly, since the appellant was produced before the concerned Magistrate on 8-6-03, a Sunday, there is no valid reason why the Seizure Memo (Ex. P. 163) and the list could not be submitted before the learned Magistrate along with the accused appellant. Hence, his explanation is unconvincing.
243. Furthermore, in the application for remand, dated 8-6-03, the police do not mention the raid on the appellant''s house on 7-6-03. They merely mention that after the arrest of the four persons in the Ganesh Park, the police have arrested the appellant on 7-6-03 at 4:15 PM. Further recoveries and investigation need to be carried out. Therefore, his police remand for fourteen days should be given. Even the remand order dated 8-6-03 does not make any mention about the raid carried out by the police on 7-6-03. It merely states that "Looked into the case diary. Further investigation needs to be done from the accused persons (besides the appellant, one Shiv Swaroop Gopal, another co-accused person was also presented before the learned Magistrate) with regard to the sculptures exported by them abroad, and with regard to the sculptures kept by them in different warehouses. And these antique sculptures need to be recovered from them. Therefore, the police custody of ten days is being given." (English translation of the order passed in Hindi). Since the Seizure Memo (Ex. P. 163) and other relevant documents were not submitted till 9-6-03, as admitted by Ram Singh (P.W. 76), obviously the learned Magistrate could not have found them in the case diary. Therefore, even the perusal of the case diary would not have informed him about the alleged raid of 7-6-03. Therefore, the police did not inform the learned Magistrate about the alleged recovery of 7-6-03. This is another pointer to the grave possibility that no recovery took place on 7-6-03 as pleaded by the appellant.
244. Most importantly, according to section 100 Cr.P.C. Ram Singh (P.W. 76) was supposed to locate two independent witnesses from the locality. In his cross-examination he does admit that near the appellant''s house is the house of Nihal Chand Sogani, Advocate. He further admits that he did not give any order or notice to Nihalchand Sogani for becoming a witness of the raid to be carried out by the police. But according to him, he did ask the lawyer orally to become a recovery witness. Surprisingly, Ram Singh then goes on to deny the existence of nearby MLA Quarters, the existence of the Jaipur Hospital, the existence of the Fire Brigade office, and of the BSNL office, although these areas do exist near the appellant''s house. Though the colony of IAS officers is also nearby, he denies the fact about its existence, and pretends to be ignorant of the fact that the colony would have police personnel available in the early morning. Instead, it just so happened that Duli Chand (P.W. 47) and Kishan Lal were walking Von the road and were conveniently available to the police.
245. According to Ram Singh (P.W. 76) police officers from the Ramganj Police Station were also part of the raiding team. Interestingly, in his cross-examination, Ram Singh admits that both the recovery witnesses, namely Duli Chand (P.W. 47) and Kishan Lal happen to be residents of area falling under Ramganj Police Station--a locality at least fifteen kilometers from the appellant''s house and almost at the other end of the Jaipur city.
246. In his examination-in-chief, Duli Chand (P.W. 47) claims that "he had left his house around 4:00 AM for his daughter''s house ". According to him, "he had reached the appellant''s neighborhood after alighting from a bus". But in his cross-examination he admits that "buses do not ply early in the morning". Hence, his sudden appearance, at the spur of the moment, is rather curious.
247. In his cross-examination, Duli Chand (P.W. 47) further admits that his house is in front of the Police Station Ramganj. He further admits that repeatedly he has been a witness for the Ramganj Police Station. Asked about FIR No. 57/2001, he admits that he was a witness in the checking memo, in the arrest memo and in the site plan of the said FIR. He further admits that in FIR No. 128/03 registered at Police Station Ramganj, on 18-3-03, he happened to be the witness in the checking memo (Ex. D. 588), in arrest memo (Ex. D. 589) of accused Mohanlal, in the arrest memo (Ex. D. 590) of accused Ramlal, and of other accused persons. He further admitted that he was also the witness of Seizure Memo (Ex. D. 595) and of Recovery memo (Ex. D. 596). Duli Chand was further confronted with seventy-two FIR''s which were post-7-6-03, but covered the period from 2003 to 2008. He admitted that he was the witness in all these FIR''s as well. Even in the FIR No. 109/2003 (Ex. P. 184) which was lodged at Harnavda Shavji, a case co-related to the present one, Duli Chand (P.W. 47) was also associated as a recovery witness. Thus, he is an omnipresent witness who rushes to the rescue of the police whenever they require a witness.
248. Interestingly, Duli Chand also admitted that on 30-9-97 he was arrested in FIR No. 337/97 by the Ramganj Police Station for offence under Sections 8/18 of the NDPS Act. He was convicted in the said case. He further admitted that on 14-10-01 he was arrested by the Police Station Ramganj for offence under Sections 8/18 of the NDPS Act. According to him, he was convicted in the said case by the Special Judge (NDPS) Cases. He also admitted that he was arrested on 19-5-06, by the Police Station Ramganj, for offence under the Rajasthan Prohibition of Gambling Act. He was convicted and fined, by judgment dated 27-5-06, passed by the Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur. Thus, twice he has been convicted for offences under the NDPS Act, and once for gambling. All the three cases were initiated by the Police Station Ramganj. While two cases were prior to 2003, the last case was of post 2003 period. To say the least, Duli Chand (P.W. 47) had brushed with the law, was arrested and convicted due to the action of Police Station Ramganj; he has been their favorite witness in large number of cases. Obviously, he is a puppet in the hands of the Police Station Ramganj. He is a stock witness.
249. Considering the gravity of the present case, it is rather curious that Ram Singh (P.W. 76) could locate two recovery witnesses both of whom are criminals. While the prosecution has not produced Kishan Lal, it has heavily relied on the testimony of Duli Chand (P.W. 47). But Duli Chand (P.W. 47) happens to be a stock witness. Thus, he does not fall under the category of being an ''independent witness'', which is the requirement of section 100 Cr.P.C. To use a person who is malleable, who is under the influence and control of the police itself, is to undermine the requirement of section 100 Cr.P.C. Such a selection ignores the tenor of the said provision. Therefore, the selection of such witnesses, with such character and integrity, raises doubts about the fairness of the investigation, about the intention of the investigating officer, and about the genuineness of the recovery.
250. In the case of Prem Chand v State of Punjab [1984 Cri. L.J. 1131], a learned Single Judge of the Hon''ble Punjab and Haryana High Court has observed that "The person to be joined in searches should not be of criminal background or of immoral habits: they should be impartial and without any blemish. They should generally be unconnected in any way with the police and a convicted person is also unsuitable to be associated in searches." We agree with the said observation. For in order to give credence to the recovery, the police should associate people who are law abiding, who are unconnected with the police, who are impartial, who are upright. Those who are meek and weak, who dance to the tune of the investigating agency should be avoided.
251. In another case,
For sure, the consternation of the community at this flood of perjury will shake its faith in the veracity of Police investigation and the validity of the judicial verdict. We have no doubt that the petitioner, who has given particulars of a large number of cases where he had been cited as witness, is speaking the truth even assuming that 3,000 cases may be an exaggeration. In Justice, Justices and Justicing (sic) and likewise in the Police and Policing, the peril of the judicial process is best left to the imagination if professional perjurers like the self-confessed Paniwala are kept captive by the Police, to be pressed into service for proving "cases". Courts, trusting the Police may act on apparently veracious testimony and sentence people into prisons. The community, satisfied with such convictions, may well believe that all is well with law and order. We condemn, in the strongest terms, the systematic pollution of the judicial process and consequent threat to human rights of innocent persons. We hope the higher authorities in the Department who, apparently, are not aware of the nefarious goings-on at the lesser levels will immediately take measures to stamp out this unscrupulous menace.
252. In the case of
253. Thus, we must accept Duli Chand''s testimony with due caution and care. Duli Chand (P.W. 47) emerges as an unreliable and an untrustworthy witness. Firstly, he denies facts till he is confronted by documentary evidence. Seventy-seven FIR''s, registered between 2001-2008, were brought to his notice. Initially, he denied that he was a witness in these cases. But when he was confronted by documents bearing his signature, he admitted to having signed them. Thus, he changes his stand as and when he is confronted by documentary evidence. Despite being a witness in seventy-seven FIR''s, still in his cross-examination he denied the fact that he is a stock witness. Secondly, in his examination-in-chief he claimed that when the police party went to the appellant''s showroom on 7-6-03, no proceeding was recorded by the police as nothing incriminating was discovered there. However, when he is confronted with the Search Memo (Ex. D. 368) drawn up allegedly at the showroom, he admits his signature. Thirdly, when he is confronted with his police statements (Exs. P. 457, 461, 519, 602), given by him in other cases, where he had given different professions of his--ranging from being a Pundit to being a seller of cigarettes, to being a laborer--he denies the police statements. Fourthly, in his cross-examination he claims that he had not seen Kishan Lal--the other recovery witness--till they met at the appellant''s house. But later on when he is confronted with the fact that he had stood as a surety for Kishan Lal in a criminal case, he admits the said fact. Thus, initially he denies his previous relationship with Kishan Lal; later on he admits it. Fifthly, as far as the recovery of 7-6-03 is concerned, he denies understanding the contents of the Seizure Memo (Ex. P. 163) but merely says that Ram Singh (P.W. 76) had read it out and he had signed the paper. Therefore, he neither seems to understand the recovery proceedings, nor understand the importance of the Seizure Memo (Ex. P. 163). Hence, he does not support the recovery. Most importantly, since he is a vacillating witness, he is an unreliable one.
254. While appreciating Duli Chand''s testimony the learned Judge has observed that the defence counsel has conceded that prior to 7-6-03 Duli Chand was a witness for the police only in a single case. Therefore, he is not a ''stock witness''. However, merely because the defence counsel conceded a point, it does not prevent the learned Judge from checking the record. After all, a judge in a trial is not a mute witness. He is expected to play a pro-active role. Moreover, the learned Judge has ignored the fact that the character of a witness is not only restricted to the date he joined the alleged recovery proceeding, but also extends to the date when he deposes before the court. After all, his testimony is influenced by his character. If he is under the thumb of the police, then he is likely to be "peddler of perjury". Further, the learned Judge has overlooked the fact that Duli Chand''s testimony is self-contradictory on certain points; that he tends to deny facts till he is caught by being shown documents which belie his denials. Once faced with the documents, he admits his signatures, and his role,. Thus, a witness who repeatedly speaks untruth, he cannot be treated as a reliable witness. Hence, the police and the prosecution have produced a witness who does not inspire confidence in the mind of this court.
255. While carrying out the alleged recovery, Ram Singh (P.W. 76) has left two more grave lacunae which undermine the prosecution case: firstly, the seventy-two miniature paintings, the sixty-eight catalogs, and the eighteen photographs allegedly recovered from the appellant''s home were never sealed on the spot. Secondly, there is no site plan of the place from where the objects mentioned above were recovered. The Rajasthan Police Rules (''the Police Rules'', for short) are emphatic on the point that when a recovery is to be made, when objects are discovered, they should be sealed and marked at the place of recovery itself. Rule 7.32 lays down as under:
7.32 Identification of property.-
(i) It is of utmost importance that the articles of property seized by the investigating agency shall be properly scaled on the spot and it should be ensured that the seals are intact.
(ii) The number of articles to be mixed up with the articles of property required to be put to identification test should rest with the Magistrate before whom the proceedings are to be carried on.
(iii) The articles of property to be mixed up to with the articles of property put for the purpose of identification should also be contained in scaled bundles.
(iv) The seals must be all along intact and can only be opened before the Magistrate conducting the identification proceedings.
(v) As in the identification parade of suspects, witnesses are to be called one by one and no succeeding witness should communicate in any manner with the preceding one.
(vi) It is also important to note that the articles to be mixed up should be similar in appearance to those for identification.
(vii) The prosecuting inspector or the prosecuting sub-inspector may be present at the time of identification proceedings.
(viii) The articles to be mixed up should be arranged for production according to the instructions of the Government which they may issue in this behalf. However, there should be given no chance, whatsoever for an objection that the articles brought for being mixed up were exposed to the identifying witness before identification proceedings took place. The arranging of such articles to all intents and purposes should be by an agency other than the police.
(ix) Proceedings of the identification of property shall be recorded in Form 7.32(ix).
256. Similarly, it is imperative for the police to draw up the Site Plan of the scene of the crime, and of the place of recovery of any article or object.
257. Of course, Mr. Bajpai has argued that once there is direct evidence with regard to the recovery, there is no need for sealing the objects, or for drawing up a site plan of the place of recovery. But such contentions are unacceptable. The prosecution is required to establish each link of the chain of circumstances. One of the links is the safe custody of objects or artifacts recovered during the course of the investigation. Thus, sealing of a recovered object is essential as it ensures that the object was safely kept during the period of investigation. Moreover, it ensures that the object produced before the court is the same object which was recovered at the place of recovery. In case the prosecution fails to prove the safe custody of the object during the investigation, and prior to the production of the object before the court, a lurking doubt is created in the mind of the court whether the object actually recovered is produced before the court or not. Instances are not lacking when planted or replaced objects have been produced before the court in order to convict an accused. Hence, the prosecution must prove the safe custody of an allegedly recovered object by marshalling out cogent evidence on this point. If it fails to do so, the prosecution case stands diluted as the link evidence is conspicuously missing.
258. Similarly, it is imperative that a site plan of the place of recovery should be drawn up at the time of the recovery. For, one of the principles of criminal jurisprudence is that "Men may lie, documents do not." Therefore, while witness may not reveal the truth, the contemporaneous documents may. Moreover, the courts generally look for corroboration of oral evidence. The site plan tends to corroborate, or at times contradict, the witness''s testimony. Hence, the site plan is an essential document. For, it not only throws light on the alleged recovery, but also acts as a touchstone for testing the veracity of a testimony. In the absence of a site plan, the recovery becomes highly doubtful.
259. Both Ram Singh (P.W. 76) and Panchu Ram (P.W. 68) admit that they neither sealed the objects/documents, nor drew the site plan of the appellant''s house. Of course Ram Singh (P.W. 76) tries to justify the non-sealing of the objects by claiming that the paintings, the photographs and the catalogs were needed for further investigation. But such a stand is unacceptable. For the law requires that the recovered objects be sealed at the place of recovery. In case they were required for further investigation, the seals could be broken, the necessary details recorded in the concerned documents, and the objects could be used for further investigation. If the logic given by Ram Singh (P.W. 76) were to be accepted, it would make the legal provision redundant.
260. In short, while carrying out the alleged raid on the appellant''s house, the Investigating Officer, Ram Singh (P.W. 76) has ignored the requirements of the legal provisions as laid down by the Cr.P.C. by AAT Act, by the Police Rules. These lapses have left gaping holes in the armor of the prosecution case.
261. The prosecution case is further weakened by the fact that according to Vishambhar Dayal (P.W. 33), the Malkhana in-charge, the recovered items were brought to the Malkhana in unsealed and ''open'' condition. According to Ram Singh (P.W. 76) in fact, the eighteen photographs were not even deposited in the Malkhana till the investigation was over, i.e. till April 2004. Thus, the eighteen photographs were neither sealed, nor deposited in the Malkhana till much later. Further, according to the prosecution all the items were taken out from the Malkhana as and when needed. Yet the Malkhana register (Ex. P. 76 A) does not record the date and the time when the recovered items were taken out, and when they were brought back into the Malkhana. Interestingly, both according to Duli Chand (P.W. 47) and Ram Singh (P.W. 76) the seventy-two paintings were signed by them when the paintings were recovered. However, in his cross- examination, Duli Chand (P.W. 47) admits that three paintings, namely Art Nos. 839, 869, and 910, produced in the court, do not bear his signature. This part of his testimony clearly proves that the paintings were not kept safely by the investigating agency. Thus, Duli Chand''s testimony lends credence to Mr. Bajwa''s contention that the objects produced before the court may not even have been recovered from the appellant''s house. Hence, the recovery of the objects cannot be believed.
262. As far as the non-drawing up of the Site Plan is concerned, according to Ram Singh (P.W. 76) there was no need for it as sufficient details were given in the Recovery Memo (Ex. P. 163) However, such a stand defies logic. If this explanation were acceptable, firstly it would make the legal requirement of drawing up a Site Plan totally redundant. Secondly, if it were so, then there is no explanation offered by him for drawing up the Site Plans in the subsequent three recoveries also carried out by him. Hence the explanation given by Ram Singh (P.W. 76) is more of a lame excuse than a valid justification.
263. Therefore, the non-sealing of the objects and the non-drawing up of the site plan again raise the possibility that the recovery never took place on 7-6-03 as alleged by the prosecution. If the recovery had taken place, there is no logical reason for these two gaps to exist. After all, Ram Singh (P.W. 76), an experienced officer, could not be ignorant of the law.
264. Of course, the prosecution has examined Ram Babu Vijay (P.W. 61)--the photographer--in order to prove the recovery. However, even his testimony does not rush to the rescue of the prosecution. Firstly, in his statement u/s 161 Cr. P. C (Ex. D 364). he claims that the photos were taken from an ordinary camera which uses a film. But in his testimony he claims that he had used a digital camera for photographing the half-burned and unburned photographs and paintings and for photographing the broken door. When the contradiction is pointed out to him, he denies that he had informed the police in his statement that he had used an ordinary camera. Thus, the witness shifts his stand. Secondly, he claims that he had made a CD of the six photographs which were clicked by him. Yet, the prosecution has not produced any such CD during the trial. Hence, an adverse inference should be read against the prosecution. If the CD were produced, it would have gone against the prosecution case. Thirdly, according to him, when he reached the appellant''s house, the police was not there. He further claims that he and the police entered the house together around 11:30 AM. This stand is contrary to Ram Singh''s (P.W. 76) claim that the raid had commenced at 6:30 AM. Therefore, this witness demolishes the prosecution case.
265. Furthermore, the photographs taken by Ram Babu Vijay (P.W. 61) are inadmissible. For either the photographs were taken by an ordinary camera, as claimed by the witness in his statement under 161 Cr.P.C. or by a digital camera as claimed in the testimony. In the former case, since an ordinary camera uses a film, then the negatives of the pictures should have been produced by the prosecution. However, the prosecution has failed to do so ostensibly on the ground that an ordinary camera was not used. However, if a digital camera were used, as claimed both by Ram Babu Vijay (P.W. 61) and by Ram Singh (P.W. 76), then the requirement of Section 65B of the Evidence Act should have been fulfilled by the prosecution. But the prosecution has failed to do so.
266. Relevance, admissibility and authentication of photographs have always posed a problem for the courts. These issues were limited as long as the courts were dealing with conventional photography using a camera with a film. The film was treated as the ''primary'', or the best evidence for the photograph taken. Thus, the courts required that the ''negative'' be produced, and be proved by the photographer. An unquestioned belief entertained by the court was that the ''print'' of the negative was an authentic copy of the negative. However, over the last four decades photography has undergone a technological revolution. From the conventional photography, the world has moved into the era of digital photography.
267. Digital photographs exist as digital data. Unlike conventional photographs, no film or paper are employed in their capture or storage. The image is captured and stored in the "disk drive" or "the chip". Although digital photographs may ultimately be displayed in a printed form, it is not necessary to do so--they can just be easily displayed on a monitor screen or, there never need be an analog representation of the scene or image. Digital photography uses an array of electronic photo-detectors to capture the image focused by the lens, as opposed to an exposure on photographic film. The captured image is then digitized and stored as a computer file ready for digital processing, viewing, digital publishing, or printing. Until the advent of such technology, photographs were made by exposing light sensitive photographic film, and used chemical photographic processing to develop and stabilize the image. By contrast, digital photographs can be displayed, printed, stored, manipulated, transmitted, and archived using digital and computer techniques, without chemical processing.
268. While digital photography has many advantages over the conventional photography, one of the disadvantages it has is the risk of tampering with the image. Unlike conventional photograph which was hard to tamper with, the easy availability of software permit manipulation of images. This raises questions about the relevance, the admissibility and the authentication of digital photography. Section 65B of the Evidence Act deals with admissibility and authenticity of electronic records. This new provision was inserted in the Evidence Act in the year 2000. Since it is a new provision, not much case law has emerged with regard to the said provision.
269. Section 65B of the Evidence Act is as under:
Admissibility of electronic records:--(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that pare of the period, was not such as to affect the electronic record or the accuracy of its contents; and the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,--
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.--For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.
(Emphasis added)
270. The above provision is not limited to merely digital photographs; it extends to and includes all electronic records. Digital photography is a species of electronic records. Since a digital photograph would throw light on the controversy involved in a criminal or civil case, the photograph would certainly be relevant. The issue is about its admissibility, and authenticity. Section 65B of the Evidence Act deals with both these aspects. The provision begins with a non-obstante clause for a particular reason: according to Section 61 of the Evidence Act "the contents of documents may be proved either by primary or by secondary evidence." Section 62 of the Evidence Act defines the term ''primary evidence'' as meaning "the document itself produced for the inspection of the court". Thus, a co-joint reading of Sections 61 and 62 of the Evidence Act makes it almost mandatory that the original document would have to be produced before the court in order to prove its contents. But Section 65B of the Evidence Act is an exception to this rule; it does not make it necessary that the ''original'' document be produced. It, thus, gets rid of the ''best evidence'' rule. Therefore, Section 65B of the Evidence Act begins with a non-obstante clause.
271. This provision can easily be divided into two parts: while sub-section (1) deals with admissibility of the electronic records (digital photograph), sub-section (2) deal with safe custody and authentication of the electronic records (digital photograph). Sub-section (1) is a deeming provision. It prescribes that any information contained in an electronic record and printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) is deemed to be a ''document''. Moreover, such ''document'' is admissible in evidence provided it fulfills the conditions mentioned in sub-section (2) of the section. Furthermore, such ''document'' is admissible without further proof or production of the original, as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible. Hence, this sub-section deals with admissibility of the electronic record or digital photograph.
272. However, it is pertinent to note that according to sub-section (1) an electronic record is deemed neither to be ''a document'', nor ''admissible'' as evidence until and unless the conditions prescribed in sub-section (2) are fulfilled. These conditions are as follows:-
1. The person has/had lawful control over the computer,
2. The information was regularly fed into the computer for the purpose of storing the information in the computer for a given period of time,
3. Throughout the material time, the computer was operating properly,
4. In case it were not operating properly or was out of operation for a given time, it did not adversely affect the electronic record or the accuracy of the contents.
5. The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activity.
273. These conditions deal both with ''safe custody'' and with the ''authenticity'' of the electronic record. Hence before an electronic record can be admitted into evidence, it is imperative for the prosecution to prove that the conditions prescribed by sub-section (2) of Section 65B of the Evidence Act were adhered to.
274. As far as the digital photographs are concerned, the "disk drive" or the "chip" need not be produced before the court. For, a reproduction of the photograph on paper can be treated as a ''document''. However, the conditions prescribed by sub-section (2) of Section 65B of the Evidence Act would have to be satisfied by the prosecution.
275. In the case of Unnikrishnan @ Unni and Alice v The State by Inspector of Police, All Women Police Station (Criminal Appeal No. 277/05, decided on 5-8-2011) the Hon''ble Madras High Court dealt with the use of digital photograph as evidence. In the said case the trial court had treated the photographs as inadmissible evidence on the ground that the negatives were not produced before it during the trial. But the Hon''ble High Court observed, "In my considered opinion, non-production of negatives will make the photographs inadmissible if only the photographs have been taken in a camera which uses photo films. But due to advancement in science and technology, now a day, there are digital cameras which can photograph anything without there being photo films. From a digital camera, photos can be directly printed. In the digital camera the printout viz., photo itself is the primary evidence. In the cameras of olden days, the negative is the primary evidence and photo can be treated only as secondary evidence. The Courts have held that in the absence of primary evidence viz., negatives the photos are not admissible in evidence. Regarding this legal position, there can be no second opinion. But in these days when a photograph is taken by using a Digital camera, the photograph itself is the primary evidence and therefore the question of producing the negatives does not arise." With respect, the conclusion drawn by the Hon''ble Madras High Court is only partly true. For, while a print of a digital photograph can be used as ''primary evidence'', but then the digital photograph must satisfy the conditions laid down in Section 65B(2) of the Evidence Act. Merely because the digital photograph is ''primary evidence'' would not mean that its safe custody and authenticity need not be established by the party using the digital photograph for buttressing its case. At the cost of repetition, in a criminal case, it is essential for the prosecution to satisfy the court that the conditions laid down in sub-section (2) of Section 65B of the Evidence Act have been fulfilled.
276. However, in the present case the prosecution did not prove the fact that the conditions laid down by Section 65B(2) of the Evidence Act were complied with. The prosecution merely produced the alleged digital photographs, but did nothing more. Ram Babu Vijay (P.W. 61) nowhere tells the court either about the safe custody, or about authenticity of the digital photograph. His testimony is silent about the safe custody of the "disk drive" or the "chip". He nowhere informs the court about the fact that the camera and the computer were regularly used for taking the photos, and for storing the photos in the computer. He nowhere clarifies the issue whether the "disk drive" or the computer was ever ''corrupted'' or not. Moreover, Ram Singh (P.W. 76) clearly admits in his cross-examination that "neither the camera used by Ram Babu Vijay (P.W. 61), nor the computer used by him for reproducing the image was ever seized by the police". Hence, the prosecution has failed to prove that the conditions laid down by Section 65B(2) of the Evidence Act were, indeed, satisfied. Thus, the pictures were neither admissible, nor could be relied upon by the judge for convicting the appellant.
277. Moreover, according to Ram Babu Vijay (P.W. 61), he had made a CD of the digital photographs, which he had given to the police. However, the prosecution did not produce the said CD. Hence, an adverse inference should be drawn against the prosecution: had the CD been produced, it would have been adverse to the prosecution case. Thus, both the safe custody and authenticity of the pictures has not been established clearly by the prosecution.
278. This leaves the prosecution with the testimonies of Panchu Ram (P.W. 68), ASI, and Ram Singh (P.W. 76) for proving the recovery of 7-6-03. Panchu Ram (P.W. 68) claims in his examination-in-chief that he had written down the Seizure Memo (Ex. P. 163). However, in the cross-examination he admits that the Seizure Memo (Ex. P. 163) does not bear his signature. Thus, the court is in the dark whether he had actually witnessed the recovery or not. Moreover, in his entire testimony he was never asked to identify the photographs, unburned and half burned, or the paintings or the catalogs allegedly recovered at the appellant''s house. Thus, his testimony does not further the prosecution case. Most importantly, in his cross-examination he admits the fact that the police had thousands of antique sculptures in their custody even prior to 6-6-03, i.e. even before the FIR in the present case was registered. This statement further strengthens the appellant''s plea that the sculptures were planted in order to frame him in a false case.
279. This leaves us with Ram Singh''s testimony (P.W. 76), the I. O. of the case. In his examination-in-chief he tells the story narrated by the prosecution. However, there are glaring omissions and contradictions in his deposition, which undermine the trustworthiness of this witness. Firstly, in his examination-in-chief he admits that the search was carried out u/s 166(3) Cr.P.C. yet he does not follow the mandate of the said provision, as discussed above. Although he claims that the documents were sent to the concerned Police Station, there is no such endorsement in the Seizure Memo (Ex. P. 163)--a fact admitted by this witness in his cross-examination. In fact, the prosecution has failed to produce the copy of the documents sent to the concerned police station. Hence there is no documentary collaboration of his oral testimony. Further, as aforementioned his explanation for sending the documents and the list on 9-6-03 to the Magistrate is clearly unacceptable. Thus, though he is the investigating officer, he has failed to follow the mandate of the section 166 Cr.P.C. His omission strengthens the plea of the defence that there is something amiss about the alleged recovery.
Secondly, in his examination-in-chief, he neither goes into details, nor gives explanation for his lapses. According to him, prior to carrying out the raid on 7-6-03, the police had been investigating the theft and export of antique stolen sculpture from India for the last two years. He further claims that he had reason to believe that in case the appellant''s house were raided, stolen antique sculptures would be discovered. Yet, he offers no explanation for not taking an ASI officer with him, in terms of the requirement of section 23 of the AAT Act. Thus, he violates the law, without any rhyme or reason. This omission also casts doubt about the efficiency and impartiality of the recovery. If the recovery were genuine, then there is no reason for the investigating officer to leave such glaring gaps in the investigation.
Thirdly, he claims that since Duli Chand (P.W. 47) and Kailash Chand agreed to be recovery witnesses, they were associated with the recovery. But he does not explain as to how these two persons, who lived on the other side of the city, under the Police Station Ramganj, were available at an early hour of the morning. Such an explanation was essential. For the defence had questioned not only their availability at the early hours of the morning, but also raised doubts about their credibility as recovery witnesses. Duli Chand''s availability was rather enigmatic, when he had admitted in his cross -examination that "city buses do not run in the early morning hours". Thus, it was imperative for Ram Singh (P.W. 76) to explain their availability at the place of search. However, Ram Singh (P.W. 76) has maintained a studied silence over this crucial issue. His silence strengthens the case of the defence that Ram Singh (P.W. 76) had purposefully chosen two persons who were under the control of the police. Thus, only stock witnesses were associated with the alleged search. The use of ''stock witness'' also gives credence to the defence plea that in fact no such recovery had ever taken place; the recovery of 7-6-03 is a fake recovery.
Fourthly, though Ram Singh (P.W. 76) claims that a photographer was called, he does not even name the photographer. Further, in his cross-examination he contradicts himself. On the one hand, he claims that Ram Babu''s statement, given u/s 27 of the Evidence Act, was recorded as given by him. Yet, on the other hand, he denies the part of the statement as true where Ram Babu (P.W. 61) had claimed in his statement that the photographs were taken from a camera having a film. According to Ram Singh (P.W. 76) the photos were most likely taken by a digital camera. But he also admits that neither the camera, nor the photographs given by Ram Babu were sealed. This part of his testimony not only casts doubt about the genuineness of the photos, but also proves that the requirements of Section 65B(2) of the Evidence Act have not been fulfilled. Hence, the prosecution case is undermined.
Fifthly, in his examination-in-chief he claims that he had the half-burned and the unburned photographs seized and sealed. Yet, he does not give any cogent reason for not sealing the sixty-eight catalogs, and the seventy-two paintings. In his cross-examination he claims that as these were needed for further investigation, they were not sealed. But simultaneously he admits that if objects or articles are required for further investigation, they can be unsealed and used for further investigation. If so, then there is no logical reason for not sealing the paintings and the catalogs. Hence, his explanation is more of an excuse than a valid justification. Furthermore, such a stand violates the requirement of the law, as discussed above. His omission again cast shadow of doubt about the reality of the recovery. It further raises suspicion about the efficacy and impartiality of the investigation.
Similarly, in his cross-examination, Ram Singh (P.W. 76) tries to justify the lack of Site Plan. But as discussed above, such an explanation is clearly unacceptable.
Sixthly, Ram Singh (P.W. 76) claims in his examination-in-chief that he had recovered seventy-two paintings from the appellant''s house. However, he neither seals them, nor gives their descriptions in the Seizure Memo (Ex. P. 163). As mentioned above, according to Vishambhar Dayal (P.W. 33) all the items seized on 7-6-03 were received in the Malkhana in unsealed condition. Even the Malkhana register (Ex. P. 76-A) does not contain any description of these paintings. Further, the register does not reveal when the paintings were taken out and re-deposited in the Malkhana. As mentioned above, not all the paintings contain Duli Chand''s signature as testified by him. Further, in his examination-in-chief, Ram Singh (P.W. 76) merely describes the paintings by their subject matter, i.e. "Woman with a Wine Flask", "Hunting Dog", "A Horse". However, such a description does not tell the court either about the date/age of the painting, nor about ''the school'' to which the painting belonged. Furthermore, even the report/list (Ex. P. 222) does not shed much light on the antiquity of the twenty paintings which are claimed by the ASI to be antiques. In the absence of an expert opinion about the paintings being antiques, the mere recovery of some paintings does not connect the appellant to the alleged offence u/s 14 of the AAT Act. Thus, the court is left in the dark with regard to the actual paintings which were allegedly recovered from the appellant''s house. The court is equally left guessing about the ''antiqueness'' of the paintings. Thus, such an alleged recovery does not strengthen the prosecution case.
Seventhly, with regard to the photographs seized from the appellant''s house, Ram Singh (P.W. 76) admits in his cross-examination that they, too, were not sealed. According to him, these photographs were deposited in the Malkhana after the investigation was over, i.e. after April 2004. Thus, the alleged photographs were neither sealed, nor securely kept in the possession of the Malkhana during the investigation from June 2003 till April 2004. In such a scenario, the alleged photographs lose much of their significance. Moreover, the prosecution had used the photographs in order to prove that the appellant belonged to a gang of thieves and was punishable u/s 401 IPC. However, the learned Judge has acquitted the appellant of the said offence. Thus, the recovery is meaningless. Further, the alleged recovery of the photographs does not connect the appellant either to offence u/s 3 or section 14 of the AAT Act. For, possession of photographs of antique sculpture is not an offence either under the AAT Act, or under any other law.
Eighthly, according to Ram Singh (P.W. 76) he had recovered sixty-eight catalogs of Sotheby and Christies from the appellant''s house. However, in his cross-examination he admits that they too were not sealed on the spot. He further admits that such catalogs are openly available in the market. The prosecution had tried to use the recovery of the catalogs in order to show that in the past the appellant had exported antique statues from India to the private auction houses like Sotheby and Christies. According to Janak Gujur (P.W. 2) while he was the appellant''s servant, he had packed thousands of antique sculptures for being exported abroad; some of these sculptures were shown in the catalogs allegedly recovered from the appellant''s house. However, such a testimony does not buttress the prosecution case. For, there is no evidence to prove that a particular antique sculpture was ever exported by the appellant to these auction houses. Although the investigation with regard to sale of antiques from these two auction houses was kept pending, it was never completed. In fact, in his cross-examination Ram Singh (P.W. 76) admits that he neither investigated the case in London, nor in New York. According to him, the police was informed that both these auction houses also had their branches in Mumbai. But they had been closed down. Thus, no investigation could be carried out even from these offices in Mumbai. Moreover, Janak Gujur (P.W. 2) is not an expert who could testify to the fact that the actual sculpture had been exported abroad from India. In the absence of evidence that these alleged antique sculptures were either received by these auction houses, or they were sold by them, the recovery of catalogs does not buttress the prosecution case against the appellant for offences u/s 3 or section 14 of the AAT Act. Therefore, the alleged recovery of the catalogs is immaterial to the prosecution case. Further, Janak Gujur (P.W. 2) does admit in his cross-examination that he is not in a position to say that the alleged sculptures packed by him were ''stolen''. Thus, his testimony does not strengthen the prosecution case against the appellant for offence u/s 411 IPC.
Lastly, since Ram Singh (P.W. 76) is not only the investigating officer, but is also a member of the police, he is expected to be a witness of sterling worth. Coming from a disciplined force, he is expected to be honest to the court. However, he omits to mention glaring facts of the prosecution case. According to the prosecution, the appellant was arrested in his house and then taken to his showroom. The showroom was searched, but nothing incriminating was discovered. However, in his examination-in-chief, Ram Singh (P.W. 76) is absolutely silent about the appellant being taken to his showroom after his arrest at home. His silence is significant as according to the defence, the appellant was not arrested at his house. But he was arrested much later. Thus, the question is when and where was the appellant arrested? Ram Singh (P.W. 76) admits in his cross-examination that the Arrest Memo (Ex. P. 164) does not mention the place of the appellant''s arrest. Panchu Ram (P.W. 68) admits in his cross-examination that after a person is arrested, he is usually referred to as ''the accused'' in the documents drawn by the investigating agency. But in the Seizure Memo (Ex. D. 368), drawn at the appellant''s showroom, he is referred to by his name, and not as ''the accused''. According to the defence, the fact that the appellant is called by his name, and not as ''the accused'', proves that the appellant was not arrested at his house. Interestingly, both Duli Chand (P.W. 47) and Panchu Ram (P.W. 68) deposed that after his arrest, the appellant was taken to his showroom. Ram Singh (P.W. 76) does not corroborate this part of Duli Chand''s and Panchu Ram''s testimony. His silence, thus, again casts a doubt on his trustworthiness. It further leaves the court groping in the dark as to the place where the appellant was arrested. It turns the prosecution story into an enigma.
280. In short, the alleged recovery of 7-6-03 is shrouded in a mysterious mist. It leaves more unanswered questions, than answered ones. Thus, the recovery has not been proven through cogent evidence. The chain of circumstances remains incomplete. Even if for the sake of argument, it were believed, it does not strengthen the prosecution case as the evidence does not connect the appellant with the alleged offences u/s 14 of the AAT Act. Therefore, for the purpose of convicting the appellant for the said offence, the recovery of 7-6-03 is immaterial and irrelevant.
Recovery of 15-6-03:
281. To recapitulate, according to the prosecution, on 14-6-03, the appellant allegedly made a statement (Ex. P. 1121) u/s 27 of the Evidence Act wherein he informed Ram Singh (P.W. 76) that he had given seven antique statues, for repair, to one Satyadev Sharma of Delhi. He could take the police to Delhi and get the statues recovered. On 15-6-03, along with the appellant, the police went to Delhi. In front of Panchu Ram (P.W. 68), ASI, and Satyadev Sharma (not produced as a recovery witness), the appellant pointed out the seven statues, which were lying openly in a tin-shed. They were recovered, but not sealed. These sculptures, enumerated above, were also deposited in the Malkhana. This recovery has been used against the appellant for convicting him for offences u/s 14 read with section 25(2) of the AAT Act.
282. Mr. Bajwa has raised the following contentions with regard to this recovery: like the previous recovery of 7-6-03, even this recovery is replete with loopholes.
Firstly, during the police custody, the appellant was not only subjected to long interrogations, but was also subjected to torture. This is obvious from the Injury Reports (Ex. P 1175 to Ex. P. 1180) mentioned above. Thus the statement u/s 27 of the Evidence Act is hit by the blanket ban of Section 24 of the Evidence Act. It is irrelevant and inadmissible.
Secondly, the appellant''s signatures on both the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221) are forged. Although the appellant did not go to Delhi, but in order to create the impression that he was with the police party, his signatures have been forged on the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221). The signatures on these two documents are totally different from his known signatures on the Injury Reports (Ex. P. 1175 to Ex. P. 1180). In order to buttress this plea, the appellant had examined Dr. Dinesh Sethi (D. W. 1). According to his testimony, the appellant''s signatures on these two documents (Ex. P. 220 and Ex. P. 221) were certainly forged. However, the learned Judge has erred in rejecting the testimony of this witness. According to the learned counsel, u/s 73 of the Evidence Act, even this court can compare the appellant''s signature, and draw its own conclusion about the genuineness of the appellant''s signature on these two documents. Since the signatures are forged, this clearly proves that the investigation is an unfair one.
Thirdly, according to Panchu Ram (P.W. 68), the police party had gone to Delhi in a private taxi. Even then, the police did not associate the taxi driver as an independent recovery witness. Moreover, according to the Site Plan (Ex. P. 221), Satyadev Sharma''s workshop was surrounded by other homes/and buildings. But despite the heavy inhabitation in the neighborhood, the police did not associate any independent witness from the neighborhood. Instead, the police made Panchu Ram (P.W. 68), an ASI and Satyadev Sharma as a recovery witnesses. Interestingly, Ram Singh (P.W. 76) does not give any explanation for these lapses in his examination-in-chief. Curiously, the prosecution never produced Satyadev Sharma as a witness in this case. Hence, adverse inference should be drawn against the prosecution. Such lapses and omission clearly make the recovery suspicious.
Fourthly, one of the essential requirements of section 27 of the Evidence Act is the ''authorship of concealment''. According to the prosecution case, the seven statues were lying in a tin-shed. Thus they were lying openly under a tin-shed which was accessible to Satyadev Sharma and his employees. Hence, there was no ''authorship of concealment.
Fifthly, although the Report of the ASI (Ex. P. 222) declares these seven statues to be ''antiques'', but the report is unreliable for the pleas raised above. Hence, the prosecution has failed to establish that the seven sculptures are, indeed, antiques. Thus, the appellant could not be convicted for offences u/s 14 read with section 25(2) of the AAT Act.
283. On the other hand, Mr. Bajpai has strenuously argued that the appellant had voluntarily given the statement (Ex. P. 1121) u/s 27 of the Evidence Act as testified by Ram Singh (P.W. 76) in his examination-in-chief. Merely because there may be some minor injuries on the appellant, according to the Injury Reports (Ex. P. 1175 to Ex. P. 1180), they would not make the discloser of information given by the appellant suspect.
Secondly, as the appellant was a cleaver criminal, he used to make different signatures on different documents. Hence, his signature on the statement (Ex. P. 1121), on the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221) are different. But nonetheless, they are his signatures. Although the appellant had examined Dr. Dinesh Sethi (D. W. 1) in order to prove the fact that his signature on the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221) were forged, but the learned Judge has disbelieved him. Therefore, his testimony does not help the appellant''s case.
Thirdly, it is for the prosecution to decide whom to examine and whom to leave out. Even if the prosecution has examined Panchu Ram (P.W. 68) as a recovery witness, and has left out Satyadev Sharma as a prosecution witness, it would not dilute the prosecution case.
Fourthly, not only the statement u/s 27 of the Evidence Act was given voluntarily, but it also fulfills the other requirement of section 27 of the Evidence Act. There is both authorship of concealment, and confirmation by subsequent event. Even if the appellant had not accompanied the police force to Delhi, it would not dilute the relevance of the statement u/s 27 of the Evidence Act. For, there is no requirement of law that the accused must necessarily accompany the police party at the time of recovery. It is sufficient if upon his information, ''distinct fact'' is discovered. In order to buttress this case, the learned Counsel has relied upon the case of Navjot Sandhu (supra).
Fifthly, the ASI Report (Ex. P. 222) clearly declared the seven statues as antiques. Therefore, the prosecution has proven its case beyond doubt.
284. This court has already held that there is no evidence to prove that the appellant was subjected to coercion or duress. Thus, the statement (Ex. P. 1121) given u/s 27 of the Evidence Act is not hit by Section 24 of the Evidence Act. Hence it is admissible. Therefore, further discussion on the said point is unwarranted at this stage.
285. We have also dealt with the ambit and scope of section 27 of the Evidence Act Therefore, we need not deal with, in great detail, the arguments of the learned counsel based on section 27 of the Evidence Act. Suffice it to say that although section 27 of the Evidence Act does require the authorship of concealment, but the word ''conceal'' does not necessarily mean ''hiding it from the world at large''. Concealment would mean "the whereabouts of the object is unknown to the police." It is the statement of the accused which leads to the discovery of the distinct fact: the place of concealment, and the knowledge of the accused about the place of concealment. Moreover, the second requirement of section 27 of the Evidence Act is the confirmation by subsequent conduct. The subsequent discovery of an object on the basis of the statement given by the accused confirms his ''knowledge'' with regard to the whereabouts of the object so kept. Further, according to the Apex Court, as observed in the case of Navjot Sandhu (supra), it is not necessary for an accused to accompany the police for a ''distinct fact to be discovered''. The discovery could be made by the police in the absence of the accused. Thus, Mr. Bajwa is unjustified in claiming that merely because the alleged seven sculptures were lying under a tin-shed, they were not ''concealed''. Furthermore, even if the appellant was absent when the recovery was allegedly made, it would not dilute the prosecution case. For, what is essential is the discovery of a distinct fact as a direct consequence of the appellant''s disclosure.
286. But the question before this court is has the prosecution succeeded in proving the recovery? Has the prosecution emphatically established that the seven statues were antiques? After all, the appellant cannot be convicted of offence u/s 14 read with section 25(2) of the AAT Act, unless the prosecution successfully establishes that the statues were ''antiques''.
287. Both Panchu Ram (P.W. 68) and Ram Singh (P.W. 76) have described the recovery in some detail. According to Panchu Ram (P.W. 68) on 14-6-03, the appellant had made a statement (Ex. P. 1121) u/s 27 of the Evidence Act; the police party, along with the appellant, had travelled to Delhi in a private taxi; had gone to Satyadev Sharma''s house; had picked him up from the house, and taken him to his workshop. There the appellant had pointed out the seven sculptures lying in the tin-shed. They were recovered. The Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221) were drawn up by him. Both these documents bear Satyadev Sharma''s, the appellant''s, and signatures. According to him, Satyadev Sharma was the other recovery witness. Ram Singh (P.W. 76) repeats the same set of facts in his examination-in-chief. Therefore, his examination-in-chief need not be reproduced here.
288. Ram Singh (P.W. 76) and Panchu Ram (P.W. 68) would have the court believe that the appellant was with them in Delhi. However, this stand of the prosecution is doubtful. For the Recovery Memo (Ex. P. 220) and Site Plan (Ex. P. 221) do contain a signature clearly writing the name "Vaman Narayan Ghiya" in Hindi. However, a comparison of these signatures with his known signatures on the six Injury Reports (Ex. P. 1175 to Ex. P. 1180) and on other documents clearly reveals that his signatures on the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221) are strikingly different. For, the known signatures are in running script, and in small font. On the other hand, the signatures on the Recovery Memo (Ex. P. 220) and Site Plan (Ex. P. 221) consist of large sized individually written letters, with some amount of hesitancy. The letters are written as though written by an illiterate person or by a person who is not comfortable with the Hindi alphabets. The signature is not done in a ''running writing'' style. Although the learned Judge has disbelieved Dr. Dinesh Sethi (D. W. 1), but a mere comparison of the known signatures and the alleged signatures of the appellant on the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221) are strikingly different. Thus, the signatures on these two documents do not appear to be that of the appellant. Hence, the defence is justified in claiming that the appellant''s signatures on these two documents are not his. The absence of the appellant''s genuine signature on these two documents does cast a shadow of doubt about his presence at the time of recovery. If he were, indeed, present, there was no need for his signature to be "made" on the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221). Most importantly, these forged signatures on documents cast a serious doubt about the fairness of the investigation. It also makes the testimonies of Panchu Ram (P.W. 68) and Ram Singh (P.W. 76) suspicious.
289. Although Mr. Bajpai has pleaded that the appellant, being a cleaver criminal, used to make different signatures on different documents, but such a plea is unacceptable. For, there is no evidence to prove such a plea. Although the documents were made in front of Ram Singh (P.W. 76), yet in his examination-in-chief, he does not give any such explanation for the existence of appellant''s different signatures on different documents. If the appellant were in the habit of signing differently on different occasions, Ram Singh (P.W. 76) should have revealed this fact to the court. However, he is silent on this crucial point. Thus, the plea about the signatures being genuine in the Recovery Memo (Ex. P. 220) and in the Site Plan (Ex. P. 221) is unacceptable.
290. Ram Singh''s lapses in conducting the investigation again leave a spell of doubt in the mind of the court. According to Panchu Ram (P.W. 68) the police party had gone in a private taxi, the taxi driver was readily available. But even he has not been associated with the recovery. Instead, Panchu Ram (P.W. 68), an ASI, and Satyadev Sharma have been taken as the recovery witnesses. Ram Singh''s choice of Satyadev Sharma is also curious. Since allegedly seven ''antique'' sculptures were recovered from Satyadev Sharma''s workshop, he should have been arrayed as an accused, instead of as a recovery witness. However, Ram Singh (P.W. 76) has chosen to make him a recovery witness. Ram Singh''s choice of ''recovery witness'' is rather peculiar. Most interestingly, the prosecution never produced Satyadev Sharma as a witness. Thus, he continues to be an enigmatic figure. Moreover, the only evidence we have is of Ram Singh (P.W. 76) and Panchu Ram (P.W. 68).
291. Ram Singh (P.W. 76) does not inspire the confidence of the court. He fails to explain the lacunae left by him even with regard to this particular recovery. Firstly, he gives no explanation for not informing the Delhi police about his conducting a raid on Satyadev Sharma''s workshop. He again fails to follow the mandate of section 166 Cr.P.C. Secondly, again he fails to explain non-association of an officer of the ASI as required by section 23 of the AAT Act. Thirdly, with heavy inhabitation around, with the availability of a taxi driver, there is no explanation given for non-association of independent witnesses. Fourthly, again Ram Singh (P.W. 76) does not seal the sculptures allegedly discovered at the place of recovery. Their safe custody is also doubtful. For, although Panchu Ram (P.W. 68) claims that the police had placed ''chits'' on the sculpture, but according to the learned Judge, when the sculptures were produced in the court, they did not have any ''chit'' one them. The lack of safe custody of the sculptures raises doubts about the genuineness of the sculptures. Fifthly, he does not reveal to the court as to when and by whom these sculptures were photographed, although their photos were produced before the trial court. Again the requirement of Section 65B of the Evidence Act has not been fulfilled. Thus, even these photographs are inadmissible. Therefore, Ram Singh (P.W. 76) seems to play hide and seek with the court while he is under oath to tell the truth. As a police officer, he is expected to tell the truth, and the whole truth. Yet, he hedges and hides the truth. Hence, he is an untrustworthy witness.
292. As discussed above, the safe custody of the sculptures was never maintained. The sculptures were not sealed on the spot; they were kept in the Malkhana. They were allegedly examined by the two Expert Committees. They were photographed. Thus, they went in and out of the Malkhana. But the Malkhana register (Ex. P. 81-A) does not reveal their movement in and out of the Malkhana. As mentioned above according to Panchu Ram (P.W. 68) the police had placed a ''chit'' on each sculpture, yet when the sculptures were produced before the trial court, the sculptures did not have the ''chit''. Thus, it is unclear whether the sculptures which were recovered from Satyadev Sharma''s workshop were kept safely or not. Although the seven sculptures were identified by Panch Ram (P.W. 68) and Ram Singh (P.W. 76) in the court, but even then the identity and their genuineness is doubtful.
293. Even if, for the sake of argument, the testimonies of Panchu Ram (P.W. 68) and of Ram Singh (P.W. 76) were to be believed, even then the prosecution is required to establish that the seven sculptures so recovered were ''antiques''. But as discussed above, the list/report of ASI (Ex. P. 222) is an unreliable document. Moreover, a bare perusal of Annexure ''A'' (Ex. P. 222) clearly reveals that the seven sculptures are mentioned on Page 5, at item No. 107 to No. 113. However, the report neither gives the possible periods of the individual sculptures, nor the dynasty, nor the particular stone the sculpture is carved out of, nor the style of the sculpture. Allegedly two heads of Buddha were recovered. Yet, the list/report (Ex. P. 222) does not reveal ''the school'' to which the Buddha head belong, i.e. are the heads from Gandhar School, or the Mathura School of Art. Further, the list/report (Ex. P. 222) merely describes the subject matter of the sculpture. But even then, it has faltered. For Item No. 108 is described as a ''Sitarvadak'', (a Sitar Player). Ex. P. 337 is the photograph of this sculpture. The photograph does not show a sitar player in the sculpture. In fact the figure does not hold a sitar, but holds a lute like instrument, much akin to an ancient form of ''Sarod''. Therefore, even the subject-matter of the sculpture has not been described correctly. Moreover, as discussed above, there is no evidence to show as to the basis of the classification of the sculptures as ''antique''. In absence of expert opinion, in the absence of the scientific tests the sculptures could be subjected to, in absence of the detailed report mentioned by Gauri Chatterjee (P.W. 70), in the absence of relevant data, it is difficult for the court to rely on the list/report of ASI (Ex. P. 222). Thus, as held earlier in the judgment, the prosecution has failed to prove the fact that the sculptures were antique. Thus, the appellant could not be convicted of offences u/s 14 read with section 25(2) of the AAT Act.
294. The prosecution was required to establish the fairness of the investigation, the genuineness of the recovery, the antiqueness of the sculpture, the unerring ''guilt'' of the accused. But it has failed to establish these factors while leading the evidence before the court. There are large chunks in the chain mail of the prosecution. Many links are broken and missing. Like the previous recovery, the recovery dated 15-6-03 is also covered with enigmas, with unanswered questions. It leaves the court groping in the dark for the truth. Hence, the prosecution has failed to prove its case. Thus, the appellant''s conviction for offence u/s 14 read with section 25(2) of the AAT Act vis-�-vis this recovery is unsustainable.
Recovery of 17-6-03:
295. This brings us to the third recovery, namely of 17-6-03. Just to recapitulate, the prosecution claims that on 17-6-03, the appellant again made a statement (Ex. P. 1122) u/s 27 of the Evidence Act before Ram Singh (P.W. 76). According to Ram Singh (P.W. 76) the appellant informed him that he had hidden three antique sculptures in his farmhouse located at Kukas, near Jaipur. Therefore, the police party took him, along with two recovery witnesses, namely Sedu Ram (P.W. 53) and Ladu Ram (not produced as a Prosecution Witness) to the appellant''s farmhouse. Rajendra Sharma (D. W.2) received the police party at the farm house. It is claimed that from underneath a bougainvillea creeper, the appellant dugout three statues: one of the Goddess (Art. 954), another of the Jain idol (Art. 55), and of a Lion (Art. 955). A Recovery Memo (Ex. P. 174) was prepared; the Site Plan (Ex. P. 175) was drawn up. Although the sculptures were not sealed on the spot, but ''chits'' were placed on them. They were, subsequently, deposited in the Malkhana of the Police Station.
296. This recovery has a substantive impact on the present case: on the one hand, it has generated a number of legal issues, which have been discussed above. On the other hand, it has led to the appellant''s initial conviction, subsequent acquittal in the courts of Bhanpura qua the Goddess. Its appeal is still pending before Hon''ble M.P. High Court. Qua the Jain idol, the appellant has been tried and convicted by the learned Judge. As mentioned above, we have held that the trial for the Jain idol by the learned Judge is hit by double jeopardy. But we are still required to scan the evidence produced by the prosecution in order to better understand the eventual finding of this case.
297. Therefore, the issues before this court are whether the prosecution has succeeded in establishing the recovery? Whether this recovery, too, is replete with lacunae or not? If so, what is the impact of the loopholes left by the investigating agency, and by the prosecution? Has the prosecution succeeded in establishing the identity of the sculptures? Has it succeeded in proving their ''antiqueness''? Has it proven the offences u/s 411 IPC, and u/s 14 read with section 25 of the AAT Act? If the offence u/s 411 IPC is not made out, then is the appellant''s conviction for offence u/s 413 IPC legally justified?
298. For the sake of convenience, we shall separately discuss the contentions with regard to each statue. Since the conviction with regard to the Jain idol is a critical factor in the appellant''s conviction for offence u/s 413 IPC, it has been hotly contested. Therefore, we will begin our discussion with the pleas regarding the Jain idol. Moreover, presently, the appellant stands acquitted of the charge of having received the ''stolen'' Goddess. Since the State Appeal filed by the State of M.P. is sub-judice before the Hon''ble M.P. High Court, we will refrain from going deeply into the merits of the case regarding the recovery of the Goddess. We will certainly deal with the recovery of the Lion (Art. 955) at the end of our discussion with regard to the present recovery.
299. Challenging the recovery of the Jain idol, Mr. Bajwa has raised the following contentions: firstly, the learned trial court has subjected the appellant to a truncated trial with regard to the Jain idol. According to Shyam Lal (P.W. 73), the investigating officer of P.S. Bhadesar, he had recorded the statement of Chhagan Das, Shanti Lal, Motilal, Chaman Lal, Basnti Lal and Panna Lal Jain. However, before the learned trial court, only four witnesses have been examined as witnesses. Thus, the material witnesses of the trial at Badi Sadari are conspicuously missing from the trial at Jaipur. Moreover, Ram Narain (P.W. 77) clearly admits that the charge-sheet submitted by him before the Judicial Magistrate, Badi Sadari, the copy of which is in the form of Exhibit-P.1120, is an incomplete one. Material documents are missing from the said charge-sheet. Further, as argued above, in Charge No. 2 framed by the learned Judge, there was no mention of the trial pending before the Judicial Magistrate, Badi Sadari. Thus, as far as the conviction for the Jain idol is concerned, the appellant has been subjected to an unfair trial.
Secondly, he has reiterated his arguments with regard to the police torturing the appellant during his police custody, about the police forcing the appellant to sign blank pieces of papers and about using it for recording the Recovery Memo (Ex. P. 174), and the Site Plan (Ex. P. 175).
Thirdly, the recovery is replete with contradictions. The recovery witness, Sedu Ram (P.W. 53) is an unreliable witness. In fact, the learned trial court has not only dismissed his testimony, but has also directed that a trail for perjury should be initiated against him. The prosecution has not produced the second recovery witness, Ladu Ram. Since it has withheld a material witness, an adverse inference should be drawn against the prosecution. In order to support this contention, the learned counsel has relied on the cases of
Fourthly, in order to prove the fact that the Jain idol was a stolen property, the prosecution has not only produced the charge-sheet (Ex. P. 1120) of the Badi Sadari Court, but has also examined four witnesses from the trial at Badi Sadari. However, their testimonies are full of contradictions. Hence, unacceptable.
According to Chaggan Das (P.W. 63), the FIR lodged by him was written either by Shanti Lal, or by one Motilal. However, Shanti Lal (P.W. 30) denies the fact that he authored the FIR. The prosecution did not produce Motilal. Thus, the author of the FIR is conspicuously missing: the prosecution has failed to prove the contents of FIR No. 286/97 (Ex. P. 196).
Fifthly, although the prosecution claims that the Jain idol was recovered from the appellant''s farm house, there is some confusion about its recovery and its identification. While Chaggan Das (P.W. 63) had testified before the learned trial court in Jaipur, he had also deposed before the Court of ADJ (Fast Track), Sirohi in Sessions Case No. 112/2003 (25/2003). In the said case before the ADJ (Fast Track), Sirohi, the appellant was also tried for offences under Sections 411 and 413 IPC besides other offences under the IPC. Even in that case, the case of Bhadesar was included as illustrating the fact that the appellant was ''in the habit of receiving stolen property''. According to the judgment dated 22.7.2009 passed by the ADJ (Fast Track), Sirohi, Chaggan Das was examined as P.W. 13. Before the said court, Chaggan Das had clearly testified that "the Jain idol was discovered in the village itself". Subsequently he had also claimed that "the police from Jaipur took the idol to Jaipur. It was subjected to an identification parade at Jaipur". If this testimony given by Chaggan Das before the ADJ (Fast Track), Sirohi is to be believed, then the Jain idol was recovered in Bhadesar itself. Moreover, it was taken from Bhadesar to Jaipur by the police from Jaipur for the purpose of holding a test identification parade. Therefore, its recovery from the appellant''s farmhouse becomes extremely doubtful.
Moreover, according to Ram Narain (P.W. 77), after the Jain idol was stolen, one Ratan Lal had carried out the investigation. Exhibit D. 110 is Shanti Lal''s supplementary statement. In the said statement, it is clearly written that it is in pursuance of investigation in FIR No. 286/97 registered at Police Station Bhadesar, District Chittorgarh; the said supplementary statement is dated 20.8.2003. Thus, the supplementary statement (Ex. D.110) was neither recorded by Ram Singh (P.W. 76), nor forms a part of the charge-sheet submitted by the Police before the learned trial court at Jaipur. According to the learned counsel, the said supplementary statement (Ex. D.110) was recorded at Police Station Bhadesar by Ratan Lal. In the said supplementary statement, Shanti Lal has claimed that he had "identified the Jain idol in the Police Station itself, meaning thereby the Police Station Bhadesar, and not the Police Station Vidyadhar Nagar. Reading the statement of Chaggan Das, as given before the ADJ (Fast Track), Sirohi, and the supplementary statement of Shanti Lal (Ex. D.110), obviously the Jain idol had been discovered in the village and was identified by Shanti Lal (P.W. 30) at Police Station Bhadesar itself. Therefore, the alleged recovery of the idol from the appellant''s farmhouse becomes highly suspicious.
Sixthly, since the Jain idol was a stolen property, the prosecution was required to hold a test identification parade. In order to buttress this contention, the learned counsel has relied on the case of
In fact, there is some confusion about whether a test identification parade was, indeed, held or not. According to Shanti Lal (P.W. 30) he was not only asked to identify the idol, but an identification parade memo, which was signed by him, was drawn up by Ram Singh (P.W. 76) himself. Ram Narain (P.W. 77) further claims that the test identification memo was not only drawn up at the Police Station, Vidhyadhar Nagar, but the same was also produced by him along with the charge-sheet submitted before the Judicial Magistrate, Badi Sadari. Yet, according to him, the said identification memo is missing from the copy of the charge-sheet (Ex. P. 1120) submitted before the trial court at Jaipur. In fact, the said test identification memo was never produced by the prosecution before the learned trial court at Jaipur. Thus, the prosecution has again withheld a vital document from the purview of the learned trial court.
Seventhly, the prosecution has purposefully withheld other important documents and articles from the learned trial court. According to Shanti Lal (P.W. 30), there were photographs of the Jain idol. However, these photographs, which would have been best evidence for identification of the Jain idol, were not even produced. Similarly, both according to Shyam Lal (P.W. 73) and the charge-sheet (Ex. P. 1120) when the police at Bhadesar had investigated the theft, they had discovered an eye of the Jain idol on the floor of the temple. Yet, even the said eye was not produced before the learned trial court.
Eighthly, Chaggan Das (P.W. 63) has not correctly identified the Jain idol in the court. According to Chaggan Das, the insignia on the chest is a ''round'' one. But according to the note of the learned trial Judge, the insignia is like an inverted jasmine flower, that is, it is ''square'' one. Further, according to Shanti Lal (P.W. 30), the insignia on the chest of the Jain idol was a ''square one''. Therefore, the learned trial Judge has erred in concluding that Chaggan Das and Shanti Lal have correctly identified the Jain idol in the court.
Moreover, on 1.11.2006 when the said idol was produced in the court for identification by Shantilal, the words "Article 55" were written on a chit attached to the statue. However, when the idol was produced on 6.11.2007, five days later, to be identified by Sedu Ram (P.W.53), the chit having the words "Article 55" was conspicuously missing. This is apparent from the note recorded by the learned trial court. The note also records that "an objection has been raised by the defence about the authenticity of the idol as the chit was missing from the idol ". Therefore, the learned trial court had written the words "Vishayadheen" meaning "subject to consideration of the objection raised by the defence". However, when the Jain idol was produced on 21.1.2008 before Chhagan Das (P.W. 63) for identification, the word "Vishayadheen" which was affixed on the idol was missing, and the words "Article 55" on a chit had reappeared. According to the learned counsel, this clearly points to a grave possibility that the idol was replaced.
Ninthly, only six persons could have identified the idol. The identification done by Shantilal (P.W. 30) and Chhagan Das (P.W. 63) are contradictory to each other, therefore, unreliable. Then there are the two recovery witnesses, namely Sedu Ram (P.W. 53) and Ladu Ram. While the former has not been believed by the learned trial court itself, the latter was never produced as a witness. This leaves only the two police personnel as witnesses, namely Panchu Ram (P.W. 68) and Ram Singh (P.W. 76). Panchu Ram (P.W. 68) in his testimony does admit that both Ram Singh and he were given out-of-turn promotion only because of their "successful investigation" in the sensational case of Vaman Narain Ghiya. Thus, Panchu Ram (P.W. 68) and Ram Singh (P.W. 76) appear to be interested witnesses - interested in the success of the prosecution. Panchu Ram was never asked to identify the idol in the court. This merely leaves the testimony of Ram Singh (P.W. 76).
But Ram Singh (P.W. 76) is himself an unreliable witness. This particular recovery was greatly covered by the print media. There are newspaper cuttings (Ex. D. 112 to Ex. D. 114) which clearly show the pictures of the three sculptures recovered from the appellant''s farmhouse. One of them, namely (Ex. D. 114) also shows the picture of Ram Singh (P.W. 76) with the sculptures. Yet, when the witness was asked about his picture being shown in the newspaper, he feigns ignorance. Thus, he refuses to recognize his own photograph published in the newspaper. Hence, he shies away from speaking the truth. Moreover, surprisingly, again he has not sealed the sculptures although the sculptures are of small size. According to him, the sculptures recovered in this case were too large to be sealed. But this explanation is belied by the fact that the statue of the Goddess was received in a sealed condition in the trial court at Jaipur. The court was informed that the statue was sealed by the M.P. Police when the said statue had to be produced at the Bhanpura Court, in District Mandsaur (M.P.). Although the M.P. Police could seal the sculpture, Ram Singh could not.
Furthermore, according to Shantilal (P.W. 30) when he was asked to identify the Jain idol in a dark room, other Jain idols, similar in appearance, were lying in the room along with other sculptures. Hence, Ram Singh has not maintained the safe custody of the Jain idol.
Further, he again maintains silence over cardinal issues, such as whether a test identification parade was held for identification of the Jain idol or not? Why the eye recovered by the Police Station, Bhadesar was not produced before the trial court in Jaipur? Why the photographs of the Jain idol, which were available according to Shanti Lal, were not produced before the learned trial court? How is it that the ''chit'' containing the words ''Article 55'' appears and disappears from the Jain idol, during the trial? His silence, again, denudes the recovery of its significance.
Lastly, according to the prosecution, the Jain idol was stolen in 1997 and was allegedly recovered in 2003, i.e. after a lapse of seven years. Because of the long interval, the presumption u/s 114(a) of the Evidence Act cannot be drawn against the appellant, for the statue has not been recovered ''soon after the theft'' in 1997. Yet the learned Judge has drawn the said presumption on untenable ground.
300. Mr. Bajpai has countered the arguments, mentioned above, by raising the following pleas: firstly, the prosecution need not have examined all the witnesses mentioned in the charge sheet (Ex. P.1120) submitted in the court of Judicial Magistrate, Badi Sadari. If the prosecution is of the opinion that a few witnesses can establish its case, it need not produce the other witnesses named in the list of witnesses. Therefore, the discretion is entirely with the prosecution to examine all its witnesses or not. Merely because Chaggan Das (P.W. 63) and Shanti Lal (P.W. 30), Shyam Lal (P.W. 73) and Ram Narain (P.W. 77) have been produced from the trial at Badi Sadari, and even if other witnesses have been left out, the appellant is not justified in claiming that he has been subjected to a truncated trial.
Secondly, the defence is misplaced when it claims that the appellant was subjected to lengthy interrogations and torture. It is equally mistaken when it claims that the appellant''s signatures were taken on blank pieces of papers and subsequently used for drawing up the Recovery Memo (Ex. P. 174) and the Site Plan (Ex. P. 175).
Thirdly, Sedu Ram (P.W. 53) has clearly given the reason for his contradictory stand before the learned trial court in Jaipur and before the trial court at Bhanpura. Thus, he is a reliable witness. Since he has described the recovery in his examination-in-chief, therefore the same should be accepted by this court.
Fourthly, Shanti Lal (P.W. 30) and Chaggan Das (P.W. 63) both have claimed in their testimonies that they had identified the Jain idol in the Police Station, Vidhyadhar Nagar. Even in the court, both these witnesses had identified the idol. A minor contradiction between these two witnesses would not dilute the trustworthiness of their testimonies. Further, even if there were some confusion about the holding of the test identification parade for the said idol, the confusion is immaterial. What is essential is the fact that both these witnesses have, indeed, identified the Jain idol as the one stolen from their temple. Moreover, because of their testimonies, it is immaterial if the previous photographs of the idol were produced or not. Similarly, it is unessential that the eye recovered by the police at Bhadesar was produced or not in the trial proceedings at Jaipur. Thus, the learned Judge was justified in first convicting the appellant for offence u/s 411 IPC, and then for convicting him - on the basis of this ''second conviction''--for offence u/s 413 IPC.
Fifthly, both Panchu Ram (P.W. 68) and Ram Singh (P.W. 76) have described this particular recovery. Their testimonies are further corroborated by the Recovery Memo (Ex. P. 174) and the Site Plan (Ex. P. 175). In fact, both these documents were recorded by Panchu Ram (P.W. 68). Hence, his and Ram Singh''s presence at the time of the recovery cannot be doubted. Merely because they were subsequently promoted, on the basis of the investigation carried out in this case, would not make them ''interested witnesses''. Since their testimonies are corroborated by other documentary evidence, the genuineness of the recovery cannot be doubted.
Lastly, since the sculptures were recovered in pursuance of the appellant''s statement and from his possession, it is for the appellant to explain their possession. However, he has failed to do so. Therefore, his silence should be read as incriminatory evidence against him.
301. In rejoinder, Mr. Bajwa has submitted that the initial burden lies on the prosecution to first establish its case. Only thereafter, can the accused be asked to explain things within his knowledge. But in the present case, the prosecution has failed to prove its case. Moreover, the appellant cannot be expected ''to explain'' the possession, as he has taken the plea of total denial. For him ''to explain'' would be a self-defeating exercise. For, the appellant cannot blow hot and cold: to simultaneously deny the recovery and yet to explain the alleged recovery. Thus, his silence cannot be read as incriminatory in nature.
302. It is, indeed, trite to state that the concept of fair trial demands and dictates that the trial court should make the prosecution case amply clear to the accused. As discussed above, while framing the charges, the trial court can neither hide certain allegations from the accused, nor create a misimpression in the mind of the accused with regard to specific evidence that he needs to meet out.
303. As discussed above, initially the learned trial Judge had taken the FIR lodged against the appellant in Police Station Bhadesar as merely an example indicating the appellant''s ''habit of receiving stolen property''. Therefore, the prosecution did not examine all the witnesses who were mentioned in the charge-sheet (Ex. P. 1120) submitted before the Judicial Magistrate, Badi Sadari. In fact, it had examined only four witnesses, namely Chaggan Das (P.W. 63), the pujari (priest) of the Jain temple from where the Jain idol was allegedly stolen in 1997; Shanti Lal (P.W. 30) the alleged writer of the First Information Report lodged at Police Station Bhadesar, namely, FIR No. 286/97 (Ex. P. 196); Shyam Lal (P.W. 73), the SHO who had recorded the FIR at the Police Station Bhadesar; Ram Narayan (P.W. 77) the SHO, Police Station Bhadesar who submitted the charge-sheet (Ex. P. 1120) against the appellant before Judicial Magistrate, Badi Sadari. According to the statement of Shyam Lal (P.W. 73), he had recorded the statements of Moti Lal, Chand Mal, Basanti Lal and Panna Lal Jain. However, none of these persons have been examined as a witness by the prosecution. Moreover, according to him, the Site Plan, the Recovery Memo of the lock, and the statement recorded u/s 161 Cr.P.C. of the persons, mentioned above, are not available in the copy of the charge-sheet (Ex. P. 1120) submitted before the trial court at Jaipur. Therefore, obviously, the prosecution has not only failed to examine material witnesses, but most importantly has hidden the vital documents by submitting an incomplete copy in the form of charge-sheet (Ex. P. 1120) before the learned trial court at Jaipur. By submitting an incomplete copy of the charge-sheet of the Badi Sadri Court, the prosecution has not followed the mandate of Section 207 Cr.P.C. The prosecution has failed to reveal the entire case of the alleged theft of Jain idol from Bhadesar. Further, by not examining all the material witnesses of the case, the prosecution has submitted ''selective'' evidence of the case. It has, thus, presented a ''short edition'' of the criminal case against the appellant. The appellant has been denied the opportunity to understand and to meet out the entire case of the prosecution which would have been presented before the Judicial Magistrate, Badi Sadri. Hence, the contention raised by Mr. Bajwa that the appellant is not only being subjected to a truncated trial, but is also being exposed to an unfair trial, such a contention is certainly forceful.
304. Admittedly, the entire case is based on circumstantial evidence with regard to the fact that the Jain idol is a ''stolen property''. Thus, it is imperative for the prosecution to prove both the factum of recovery, and the identity of the Jain idol through cogent and convincing evidence. All the links in the chain would have to be so complete so as to point unerringly to the appellant''s guilt. If the links are missing, the prosecution case would totter and fall apart.
305. Undoubtedly, there were only two independent recovery witnesses, namely Sedu Ram (P.W. 53) and Ladu Ram. Since Ladu Ram has not been examined as a prosecution witness, we are left with the testimony of Sedu Ram (P.W. 53). In his examination-in-chief, Sedu Ram (P.W. 53) does describe the recovery in detail: as to how he was going from his village Dhab to village Khuraad, how he was intercepted by Panchu Ram (P.W. 65), and how he was asked to become a recovery witness. He further describes as to how the appellant led the police inside his farmhouse, how the police dug up the earth when the appellant told them that he had hidden three sculptures there, and how the police had dug out the three sculptures. He even gives the sizes of each sculpture in his examination-in-chief. Most importantly, according to him the sculptures were marked with a ''chit''. But according to the ''Note'' written down by the learned trial court, there is no such ''chit'' on the Jain idol on the day this witness was examined. According to the learned Public Prosecutor, when Shanti Lal (P.W. 30) was examined a ''chit'' marking the idol as ''Article 55'' was found on the idol. However, the ''chit'' had fallen of, therefore, it was missing. According to the testimony, the defence counsel raised an objection about the genuineness of the idol. Whereupon, the learned trial Judge decided to place the words ''Vishayadheen'' on the statue, thereby signifying that the arguments with regard to the genuineness of the idol shall be decided later. During his examination-in-chief, this witness not only identified the Jain idol, but also identified the appellant who was in the court.
306. However, in his cross-examination, this witness was confronted with his testimony recorded by the trial court at Bhanpura with regard to the Goddess. Before, the trial court at Bhanpura, this witness had not only denied the entire recovery, but had also refused to recognize the appellant who was present in the court at Bhanpura. Since this witness was giving two contradictory versions of the same recovery proceeding, the learned trial Judge at Jaipur asked him to explain the contradiction. To this query, the witness claimed that he had given a false deposition before the trial court at Bhanpura as he was threatened by a person with a pistol. However, subsequently, in the cross-examination, this witness does admit that he has never revealed the fact of his being threatened by a man, with a gun, prior to his deposition before the trial court at Jaipur.
307. A witness, who changes his stand before two different courts, while under oath before both the courts, cannot be believed. The explanation given by this witness is an after- thought as he had never complained to anyone about the fact that he was threatened by a person with a gun. It is in these circumstances that the learned trial court has disbelieved this witness. And in the opinion of this court rightly so. Even this court does not find Sedu Ram (P.W. 53) as a reliable witness. Hence, the recovery cannot be believed on the basis of the testimony of this witness.
308. Ladu Ram, the other recovery witness, has not been produced. Although Mr. Bajpai is correct in contending that it is not the quantity of witnesses, but their quality which matters, but once Sedu Ram (P.W. 53) was shattered in his cross-examination, it was imperative for the prosecution to examine Ladu Ram as a prosecution witness. For, the prosecution must establish each link in the chain of events through cogent and convincing evidence. However, the prosecution has withheld an important witness. Thus, an adverse inference has to be drawn against the prosecution: in case Ladu Ram were produced as a prosecution witness, he would not have supported them. Hence, the prosecution has failed to prove the recovery through the independent witnesses. Therefore, a cloud of doubt is cast over the recovery.
309. The prosecution is also required to prove the factum of the Jain idol being stolen from Bhadesar. In order to do so, it has produced Shanti Lal (P.W. 30) and Chaggan Das (P.W. 63). Since both these witnesses testify to the same set of facts, it is essential to read their testimonies together, and then to analyze them.
310. Chaggan Das (P.W. 63) informs the court that "in the night of 23-11-1997, the statue of Rishabdev, (a Jain Tirthankar) was stolen from the village temple. In his capacity as the priest of the temple, on the next day, he had lodged the FIR at the Police Station, Bhadesar". He claims "the certified copy of the FIR is Ex. P. 196". He further claims that "after ten years, there was a report in the newspaper that the said statue had been recovered in Jaipur. After four year of the said report, the SHO, Bhadesar had brought him to Jaipur for the purpose of identifying the said statue. He does not remember to which police station he was taken to in Jaipur". He was shown Article 55 in the court, which he identified as the statue which was stolen from his temple. A note drawn by the court is also appended which has already been mentioned by us hereinbefore.
311. In the cross-examination, he admits that "he is illiterate". He further claims that "he was accompanied by Shanti Lal and Moti Lal to the police station". He claims that "either of these two persons had written down the report for the FIR, but he doesn''t remember which of the two persons". But he claims that "he had signed the FIR". He further admits that "he is not too sure whether the police had read over the FIR to him, or not".
312. As far as the identification of the idol is concerned, he claims that "there is an image of a ''bull'' on the seat of the idol. There is no other writing on the seat". Then he changes his stand and claims that "there are two lines written on the seat of the idol, but they cannot be read". He further claims that "the insignia on the chest of the idol is round and not square". But the learned trial court has noted that "after looking at Article 55, the insignia on the chest appears to be like an inverted flower of jasmine (chameli)". Thus, the insignia appeared to the learned trial court to be ''square'' shaped, rather than ''round''.
313. The witness further contradicts himself on the point whether the statue was stuck on the wall with cement or not? Or whether it was stuck to the brick or not? Initially, he claims that "the idol was not stuck to any surface". Later on, he admits that "It is true that when the police had inspected the site, the brick on which the statue was stuck was found broken". But he also admitted that "on the back of the statue, produced in the court, there are no signs of it being stuck on a brick or with cement". He further admits that, "it is true that the seat (singhasan) of Article 55 is broken from the left corner, where it was stuck with cement". Lastly, he tells the court that, "it is true when I went to the police station in Jaipur, the SHO told me ''this is your statue, do you recognize it (yeh tumhari murti rakhi hai isko pehchan lo)". Moreover, he claimed that "there were other statues lying there when he recognized his sculpture".
314. Shanti Lal (P.W. 30) tells the court that "there is an ancient Jain temple in his place, which is about one hundred and fifty years old. In the temple, there was a statue of Rishabhav dev, made out of marble. Which I had seen and which I used to worship. In the evening of 23-11-1997 I had worshiped the said statue, and on 24-11-1997, the statue was missing. Someone had taken it away. The statue was stolen. Chaggan Das was the priest of the temple. I told Chaggan Das to go and lodge a report at the police station. Then Chaggan Das lodged a report. After lodging of the report we returned to the temple, and we took photographs of the temple. After three or three and a half years, from the newspaper, we came to know that the statue was recovered by the Bhramapuri Police Station. Then I asked the Police Station, Bhadesar to find out if the statue was ours. I came to Bhramapuri Police Station with Sohanlal, police personnel. My statement was recorded there. Then I was taken to the Vidhyadhar Police Station. I was asked if I could identify the statue. I said I could. I recognized the statue there. Even today I can identify the statue. There is an image of a ''bull'' on the seat of the statue, there is a perforated insignia on the chest, there is a gap between the shoulder and the ears, where one can place a necklace. Article 55 is the same statue which was stolen from our temple ".
315. In his cross-examination he admits that he did not go for lodging of the report". He further tells the court that "before the theft, we had taken photographs of the statues. We had taken these photos about two years earlier. They were taken only once". He also admits that " I had seen Article 55 in the Vidhyadhar Police Station. Not in the Bhramapuri Police Station. I had seen other statues there as well. The room was full of statues. I did not identify any statue in the Bhrampuri Police Station". He goes on to narrate that "How many statues were there in the Vidhyadhar Police Station, I cannot tell you. I did not count them. There was darkness in the room. I identified the statue using a candle and a match. There were other Jain statues, how many, I did not have time to count them". He further claims that "when I identified the statue, a memo was drawn up". He further admits that "I had signed the identification memo. Ram Singh had drawn the memo". He also admits that "it is true that statues like Article 55 are made in the market by the thousands, but I can identify our statue". Confronted with his supplementary statement (Ex. D. 110), in which he had claimed that he had identified the statue in ''the Police Station'', he denies that he ever gave such a statement to the police. Lastly, in his cross-examination, he clearly states "it is true that in Article 55, the insignia on the chest of the statue, is like a lotus. The lotus is shaped as a square (chaar kon) and is not round in shape."
316. A bare perusal of these two testimonies brings out certain salient features: firstly, Chaggan Das (P.W. 63) is not only illiterate, but he also does not remember whether the Police had read the FIR to him prior to seeking his signatures thereon or not. Therefore, he is neither the author of the FIR, nor can he prove the contents of the FIR.
Secondly, while Chaggan Das (P.W. 63) claims that Shanti Lal (P.W. 30) may have authored the FIR, Shanti Lal (P.W. 30) denies this fact. Therefore, merely by the fact that Chaggan Das (P.W. 63) had signed the FIR, the contents of the FIR do not stand as ''proved''. Thus, the prosecution has failed to establish the very foundation of the case that the Jain idol was stolen from Bhadesar.
Thirdly, Chaggan Das (P.W. 63) makes a bald statement that he had identified the Jain idol in the Police Station; but he does not reveal the name of the Police Station. On the other hand, Shanti Lal (P.W. 30) claims that he had identified the statue in a dark room and that too with the help of candle light and matches. According to him, there were other statues lying in the room. But this is certainly not a proper test identification parade. Although Shanti Lal (P.W. 30) does claim that Ram Singh (P.W. 76) had drawn up a test identification parade memo, which he had signed, but the same was never produced by the prosecution. Furthermore, Ram Narain (P.W. 77) also claims in his cross-examination that the Jain idol was identified in Jaipur; the test identification parade memo was submitted by him along with the charge-sheet before the Judicial Magistrate, Badi Sadari. However, he admits that the said memo is missing from a copy of the charge-sheet (Ex. P. 1120).
In the case of Ram Kishan (supra), the Hon''ble Supreme Court has opined as under:-
Test identification parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject-matter of the offence or to identify the persons who are concerned in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence. Whether the police officers interrogate the identifying witnesses or the Panch witnesses who are procured by the police do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned in the offence...the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject-matter of the offence or the persons identified were concerned in the offence.
Thus, it was imperative for the police to hold a test identification parade of the Jain idol. Considering the testimonies of Shanti Lal (P.W. 30) and Ram Narain (P.W. 77), it is unclear whether a proper test identification parade was held or not. If it were held, the relevant memo is conspicuously missing from the copy of the charge-sheet (Ex. P. 1120) filed by the prosecution. Naturally this court has no other option, but to draw an adverse inference that if the test identification parade memo were produce, it would have belied the case of the prosecution.
Fourthly, as far as the identification of the Jain idol in the court is concerned, there is a contradiction in the testimony of Chaggan Das (P.W. 63) and Shanti Lal (P.W. 30). According to Chaggan Das (P.W. 63), the insignia on the chest is ''round'' in shape, whereas according to Shanti Lal (P.W. 30), it is ''square'' in shape. According to the note appended to the Chaggan Das''s testimony, the insignia is a ''square'' one. Hence, there is a glaring contradiction about the identification of the Jain idol. Therefore, the conclusion drawn by the learned trial Judge that both Shanti Lal (P.W. 30) and Chaggan Das (P.W. 63) had correctly identified the statue is against the available evidence. Furthermore, according to Chaggan Das (P.W. 63) the statue was stuck with cement on the back, with a brick in the wall. According to him, the statue was ripped off from the wall, and the brick was found to be broken when the inspection was made. But this witness also admits that in the statue produced in the court, there is no mark in the back which would indicate that the statue was stuck in the back with cement. Further, when this court called for the Jain idol, this court also did not find any marks on the back of the statue to show that it was stuck on a brick with cement from the back side. In fact, the statue is polished from the back as well as from the front. There is no indication on the statue to show that the statue was ''stuck'' on a brick with cement. Thus, the prosecution has failed to prove that the Jain idol recovered from the appellant''s farmhouse is the Jain idol which was actually stolen from the Jain temple at Bhadesar. Hence, it cannot be said that the Jain idol (Article 55) is a stolen property.
317. Moreover, Chaggan Das''s testimony before the ADJ (Fast Track), Sirohi, as P.W. 13 in that case, and Shanti Lal''s supplementary statement (Ex. D. 110) has turned an uncertainty, about the recovery of the Jain idol, into an enigma. The judgment, dated 22-7-2009, passed by the learned ADJ (Fast Track), Sirohi has been produced before this court along with an application u/s 391 Cr.P.C. By order dated 17-7-13, this court had allowed the said application and had taken the judgment dated 22-7-2009 on record. u/s 74 read with Section 80 of the Evidence Act, the said judgment can be relied upon by this court. Before the Sirohi Court, Chaggan Das (P.W. 13, in that case) had claimed that "Shanti Lal told him that some miscreant had taken away the statue of Aadi Nath Bhagwan which was one feet tall. We had reported about this in the Police Station. The report is Exhibit-P.11. Later on, the murti (statue) was recovered. Police personnel from Jaipur took the statue in their possession and took it to Jaipur." Thus, according to Chaggan Lal, after reporting the theft of the Jain idol, the statue was recovered in the village itself. Subsequently, the police from Jaipur had taken the said statue in their possession and had taken it to Jaipur. If this testimony is to be believed, then it knocks the bottom out of the prosecution case that the Jain idol was recovered from the appellant''s farmhouse.
318. During the course of cross-examining Shanti Lal, he was confronted with his supplementary statement (Ex. D.110). According to Shanti Lal (P.W. 30) the said statement was recorded on 20-8-03. But there is some dispute about the place where it was recorded. In the body of the statement (Ex. D. 110) it is recorded that it is a ''supplementary statement in furtherance of "investigation in FIR No. 286/97 u/s. 457, 380 IPC, registered at Police Station, Bhadesar, Dist. Chittor". It is signed by an ASI, but who that person is, the prosecution has not revealed. This supplementary statement (Ex. D.110) has not been submitted with the charge-sheet in the present case. Had the supplementary statement (Ex. D.110) been recorded vis-�-vis the present case, the said statement would have been submitted with the present charge-sheet. However, it is conspicuously missing. Therefore, this court is led to believe that the said statement (Ex. D. 110) was, indeed, recorded in the Police Station, Bhadesar and not at Police Station, Vidhyadhar Nagar. According to the supplementary statement (Ex. D. 110), Shanti Lal (P.W. 30) had identified the Jain idol ''at the police station itself, thereby meaning the Police Station, Bhadesar, and not Police Station, Vidhyadhar Nagar. If so, then his identification of the Jain idol at the Police Station, Vidhyadhar Nagar, becomes redundant, and irrelevant. It further casts a doubt about the stand of the prosecution that Shanti Lal (P.W. 30) had identified the Jain Idol only at the Police Station, Vidhyadhar Nagar. Of course, Shanti Lal has denied the fact that he told the police in his supplementary statement (Ex. D. 110) the fact that "he had identified the idol in the police station itself". But such a stand taken by the witness in his cross-examination is merely a clever ploy to protect his testimony given by him in his examination-in-chief that he had identified the Jain idol at Police Station Vidyadhar Nagar. Therefore, it cannot be believed that such a statement was not given by Shanti Lal to the police. Moreover, it is a settled principle of law that "man may lie, circumstances and documents do not".
319. Thus, a co-joint reading of Chaggan Das''s testimony before the learned ADJ (Fast Track) Sirohi, and Shanti Lal''s supplementary statement (Ex. D.110) strengthen the stand of the defence that the statue of Jain idol was discovered in Bhadesar and was identified by Shanti Lal at Police Station, Bhadesar. Therefore, it could not have been discovered from the appellant''s farmhouse. Thus, even with the help of testimonies of Chaggan Das (P.W. 63) and Shanti Lal (P.W. 30), the prosecution has failed to prove the fact that the Jain idol was stolen from Bhadesar, and recovered from Jaipur.
320. This leaves the court only with the testimonies of Panchu Ram (P.W. 68) and Ram Singh (P.W. 76). However, the testimony of Panchu Ram (P.W. 68) is not much of a help. For, Panchu Ram (P.W. 68) has not been asked to identify the statue before the trial court. Although he claims to be the author of the Recovery Memo (Ex. P. 174) and the Site Plan (Ex. P. 175), but again his signatures are conspicuously missing from the said documents. Though his signature on the documents is not required by law, but as a rule of prudence his signature should have been there so as to prove his presence at the time of recovery. In the absence of his signature on the documents, it is unclear whether he was present at the time of recovery or not. Further, since he has not been asked to identify the statues in the court, he does not establish the fact that the statue of Jain idol was, indeed, recovered from the appellant''s farmhouse. Lastly, his admission that Ram Singh and he have gotten an out of turn promotion only due to the excellent work done by them while investigating the present case, clearly makes him out to be "an interested witness". After all, having done a "successful" investigation, police personnel would be eager to ensure the success of the prosecution. He would certainly be a recipient of professional benefits, if his investigation were to succeed in convicting an alleged international smuggler, the appellant. It is certainly a settled position of law that the testimony of an interested witness cannot be thrown out only because he is an interested witness. But his testimony does require corroboration from other independent witness. However, in the present case, other independent evidence, both oral and documentary, do not corroborate the stand taken by Panchu Ram with regard to the recovery. Thus, Panchu Ram''s testimony cannot be accepted on the point of recovery.
321. Although Ram Singh (P.W. 76) is the investigating officer, his testimony does not inspire confidence. Firstly, as in the earlier recoveries, even in this recovery, Ram Singh has not sealed the three statues allegedly recovered. Although in his testimony he claims that none of the statues could be sealed because of their size, but the Jain idol is a one feet tall sculpture made in marble. Thus, there is no reason why a sculpture of such a small size could not be sealed at the place of recovery. Furthermore, although the statue of the Goddess is about 21/2 feet tall, it was sealed by the M.P. Police as mentioned earlier. If the M.P. police could seal the sculpture of Goddess, there is no valid reason for Ram Singh not to seal these sculptures when they were allegedly recovered from the appellant''s farmhouse.
Secondly, according to the testimony of Vishambhar Dayal (P.W. 33), all the sculptures were received in an unsealed condition. His testimony is further corroborated by the Malkhana register (Ex. P. 82A). According to Panchu Ram''s testimony, these sculptures were kept out in the courtyard of the police station; according to Shanti Lal''s testimony, these sculptures were lying in a dark room along with other sculptures. Thus, Ram Singh has not even ensured the "safe custody" of the sculptures which were allegedly recovered from the appellant''s farmhouse.
Thirdly, according to Shanti Lal''s testimony (P.W. 30), Ram Singh had drawn up a test identification parade memo. This statement is further corroborated by the testimony of Ram Narain (P.W. 77) as mentioned above. Interestingly, in his testimony, Ram Singh (P.W. 76) is absolutely silent on the vital point whether an identification parade was duly held, and whether an identification parade memo was chalked out or not.
Fourthly, according to Shanti Lal (P.W. 30), certain photographs of the Jain idol were available with them. However, the said photographs were never seized by Ram Singh while investigating the case. Moreover, according to Shyam Lal (P.W. 73), an eye from the Jain idol was discovered and seized by the police when the theft of the idol was being investigated in 1997. However, even this vital piece of evidence, which would have gone a long way to identify the statue as the stolen Jain idol, has not been taken by Ram Singh.
Fifthly, during the course of his cross-examination, Ram Singh was confronted with certain newspaper cuttings. In some of these newspapers cutting, especially Ex. D.114, Ram Singh is shown along with the statues recovered from the appellant''s farmhouse. When he was specifically asked whether the photograph is his, he claims that the photograph is "unclear". Thus, this witness tends to hedge while he is expected to answer the questions truthfully as he is bound by the oath taken by him as a witness. Considering the dubious role played by Ram Singh while investigating the case, and when deposing before the learned trial court, Ram Singh (P.W. 76) cannot be said to be a trustworthy witness.
322. Mr. Bajwa is equally justified in claiming that the presumption (a) u/s 114 of the Evidence Act is not applicable in the present case. Admittedly, the Jain idol was stolen in 1997 and was recovered in 2003. Thus, it was recovered after a lapse of six years. The words used in illustration (a) of section 114 are "soon after the theft". Since the word "soon" is a relative term, it cannot be defined precisely. But there has to be a live link, in terms of time, between the theft and the recovery of the stolen object. The word "soon" would have to be interpreted as meaning "within a reasonable time after the theft". But under no circumstances can the time-frame be extended to cover a period of six years. Further, the learned Judge is unjustified in claiming that since antique statues cannot be sold as easily as jewelry in the market, therefore, even after an inordinate delay of six years, he can still invoke the presumption u/s 114 of the Evidence Act. For, there is no presumption in law that it is difficult to sell antique statues in the market or that it takes a long time to do so. Thus, the premise invoked by the learned Judge is unsupported by any evidence. Therefore, the learned Judge could not have invoked the presumption u/s 114 of the Evidence Act.
323. It is, indeed, a settled position of law that like any other litigant, the prosecution, representing the State, has to approach the court with clean hands. For no litigant can be allowed to either hoodwink the court, or to take it for a ride. The streams of justice cannot be muddled by a clever prosecution. As far as the recovery and identity of the Jain idol is concerned, the prosecution has not approached the court with clean hands. Initially, it has led the learned trial court to believe that it is using the FIR lodged at Police Station Bhadesar merely as an example to show that the appellant is in ''the habit of receiving stolen property''. Interestingly, it has not produced the complete copy of the charge-sheet filed at the court of Judicial Magistrate, Badi Sadari, as mentioned earlier. Thus, obviously, the prosecution is playing hide and seek with the learned trial court. Since essential documents are missing from the charge-sheet (Ex. P. 1120), adverse inference should be drawn against the prosecution.
324. Furthermore, the prosecution has failed to examine material witnesses with regard to the recovery and identity of the Jain idol. Ladu Ram, the second recovery witness, was never examined as a prosecution witness. Moti Lal who may have been the author of the FIR (Ex. P. 196) lodged at Police Station Bhadesar has also not been examined as a witness. According to Ram Narain (P.W. 77), the initial investigation at Bhadesar was done by Ratan Lal, but even he has not been examined as a prosecution witness. The absence of material witnesses mars the pristine quality of the prosecution case. Because of all these lacunae, defects, and loopholes, Mr. Bajpai is not justified in claiming that the prosecution has established its case against the appellant vis-�-vis the Jain idol.
325. Further, even during the course of the trial, the Jain idol was not kept safely. For, when the Jain Idol was produced on 1-11-2006, it contained a slip marking the idol as "Article 55". However, when it was produced on 6-11-2007, the said slip was missing. Therefore, according to the learned Trial Judge, he had placed a chit with the word "Vishayadheen" written on it, on the Jain Idol. But, when again the Jain idol was produced before the Trial Court, on 21-1-2008, the chit containing the word "Vishyadheen" was missing, and the words "Article 55" had reappeared. According to Shanti Lal (P.W. 30) such Jain idols are readily available in the open market. Since the Jain idol was not kept safely by the police, the possibility that the Jain idol was replaced cannot be ruled out.
326. The initial burden of proof always lies on the prosecution to prove its case. It is only after the prosecution has established its case that the onus of proof would shift on to the accused to explain those circumstances which are within his peculiar knowledge. But until and unless the prosecution discharges its burden, the onus cannot be placed on the shoulder of the accused. Since the prosecution has failed to discharge its initial burden, the appellant cannot be asked to explain the possession of the alleged recovered items. Moreover, once the appellant has denied the recovery, he cannot be expected to blow hot and cold simultaneously. It would, indeed, be illogical for the appellant to first deny the recovery, and then to explain the alleged possession of the statues. In such a scenario, the appellant''s silence cannot be taken to be incriminatory in nature. His silence is but natural. Hence, Mr. Bajpai''s plea that the non-explanation by the appellant should be read against him cannot be accepted.
327. In order to bring home the change for offence u/s 411 IPC, the prosecution was required to prove the identity of the Jain idol, to establish that it was stolen from Bhadesar, and to demonstrate that it was recovered from the appellant''s farmhouse. But the prosecution has failed to prove these facts. There are too many missing links in the prosecution''s chain-mail. It has failed to establish the basic ingredients of offence u/s 411 IPC. Hence, the appellant''s conviction for offence u/s 411 IPC is unsustainable
328. As mentioned above, the learned Judge has used the conviction of the appellant for offence u/s 411 IPC vis-�-vis the Jain idol as a plank for convicting him for offence u/s 413 IPC. However, as the appellant''s conviction for offence u/s 411 IPC vis-�-vis the Jain idol is unsustainable, his conviction for offence u/s 413 IPC must necessarily go. After all, the conviction u/s 413 IPC cannot stand without the foundation of a conviction u/s 411 IPC. Thus, the appellant''s conviction u/s 413 IPC is legally untenable.
329. The case with regard to the recovery of the Goddess follows a similar pattern as that of the Jain idol, but is on a slightly different trajectory. According to the prosecution, during the course of investigation, it was realized that the sculpture of the Goddess (Article 954) was stolen from Village Kathla, P.S. Bhanpura, District Mandsore (M.P.). On 17.3.2002, the priest of the temple, Rajaram Malviya lodged a report at Police Station, Bhanpura. He claimed that an idol of Goddess Parvati, made out of black stone, was stolen from the temple. According to him, the sculpture was not only priceless, but was also very old. On the basis of this report, the police registered a formal FIR, namely FIR No. 51/02 (Ex. P. 1104). However, the sculpture was not discovered till it was allegedly recovered from the appellant''s farmhouse in June 2003.
330. Initially the learned trial court wanted to try the appellant for offence u/s 411 IPC and for offence u/s 14 read with section 25(2) of the AAT Act. Subsequently, as the Judicial Magistrate, Bhanpura tried and convicted the appellant for the offence u/s 411 IPC, the learned trial court has not expressed its opinion with regard to the said offence. It has confined its discussion to offence u/s 14 read with section 25(2) of the AAT Act. Moreover, as mentioned above, the State Appeal filed by the State of M.P. is presently pending before the Hon''ble M.P. High Court. Hence, we would not like to express much about the recovery of the Goddess. We will confine our discussion with regard to offence under the provisions of AAT Act. Thus, the prosecution is required to prove the identity of the sculpture and that it is an antique. However, the prosecution has failed to prove both these points.
331. There is ample confusion about the identity of the statue of the Goddess. According to the complainant, Rajaram Malviya, according to the FIR, the said statue was carved in black stone. But according to Shambhu Lal Malviya (P.W. 56) the sculpture of Goddess Parvati which was stolen from the temple was of the color of soil, ("woh moorti mitti ke kalar hi hai."). He further claims that "the statue which was stolen was not of black color". When he was shown the statue in the court, he claims that "the statue is not of red color, it is the color of the soil ". He claims "he understands the difference between black, yellow and red colors" and he insists that "the color of the sculpture is like that of the soil". When he is confronted with his police statement (Ex. D.363), he denies the fact that "he had told the police that the statue was in black stone". Again looking at the statue which was produced in the court, he claims that "Article 954, the statue, is not in black color. Black color cannot be seen in any part of the statue. The statue is made out of a single stone. The statue is made out of a stone having the color of soil. It is not of a yellowish hue". Moreover, he claims that "the color of the statue is referred in his village as the color of the soil".
332. On the other hand, Jaswant Singh Parmar (P.W. 71) admits in his cross-examination, that "according to the FIR, the statue was carved in a black stone". According to him, "Article 954 is made out of a black stone. But due to the fact that this is an old sculpture, its color has turned into a muddied color". Upon this statement, the court has posed a question to the witness, "the term ''muddied color'' (matmaila rang), is the color closer to black, red, brown or pink?" According to the witness, "the muddied color is closer to the black color". The court has again asked him, "whether it is true that the color of the sculpture is not black like the color of the coat (referring to the coat worn by a counsel)?" To this question, the witness has replied "it is true that the black color of the sculpture is not like the black color of the coat".
333. According to the ASI report (Ex. P. 222), Article- 954 has been described as statue of "Devi" which is "pink in color". In the said Report, the sculpture of the "Devi" has been declared as an "antique" on the ground that ''it appears old''.
334. Since there is plenty of contradiction with regard to the color of this statue, vide order dated 19.9.2013, this court had directed the learned Special Public Prosecutor to produce the said statue before this court. The said statue was produced before this court. This court has also looked at the sculpture. According to this court, the sculpture is not black in color. It is sculpture which is partly pinkish, and partly grayish in appearance. While the right side, and part of the left side of the sculpture, is pinkish, the torso of the Goddess, the reclining bodies of the lions at the bottom are grayish in color. Therefore, the sculpture cannot be said to be that of the soil color, i.e. either yellowish or brownish in tint. Thus, the sculpture neither fits the description given in the FIR, nor as claimed by Shambhu Lal Malviya (P.W. 56). Thus, the identity of the sculpture allegedly stolen from the temple, and the appearance of the sculpture produced in the court do not match. Hence, the prosecution has failed to prove the identity of the sculpture. It has also failed to prove that the statue of the Goddess is the one which was stolen from the temple at Bhanpura.
335. According to the ASI Report (Ex. P. 222), the sculpture, item No. 114 is said to be that of a "Devi". But, the term "Devi" is too generic a term to specify the subject matter of the sculpture. The word "Devi" is used for any Goddess. However, in Hindu pantheon, there are numerous Goddesses. It is common knowledge that Goddesses are divided into two categories: those who represent the latent/docile aspect of Nature, such as Goddesses Saraswati, Laxmi and Parvati, and those who represent the kinetic, the dynamic, and the uncontrolled aspect of Nature, such as Goddess Durga, Kali and Chamunda. According to Hindu iconography, each Goddess carries certain attributes which are symbolized by certain objects carried by the Goddess. For example, Goddess Saraswati is generally shown as holding a Vina (a stringed instrument), and carrying books (Vedas), and a mala (string of pearls), and a pot (kamandal). She is generally shown with a swan, her vehicle. Similarly, Goddesses who represent the Shanki cult are generally armed with weapons, such as swords, spears, or trident.
336. The sculpture of the Goddess produced before this court shows the Goddess as being four-armed. In one hand she carries a trident, in the other, she carries a mala (a string of pearls), in the third, she carries a burning flame, and in the fourth, she carries a pot of water. She sits with one leg folded and the other leg touching the ground. She sits on two lions which crouch at her feet. She is surrounded by two pillars on either side. At the bottom of the sculpture, two small female figures are also standing on either side of the Goddess. There are two lions standing on their hind legs projecting from the pillars. The top of the sculpture has two alcoves on either side of the Goddess; each alcove carries an image of a woman. Next to these alcoves are faces of lions looking upward. However, the sculpture neither has any roof like structure in the back, nor does it show any disc on it as claimed in the FIR. The fact that the Goddess carries a trident and a burning flame, the fact she rides on two lions clearly shows that it is not a sculpture of Goddess Parvati, but is a sculpture of Goddess Durga (indicated by the Lions, her mount or vehicle), or of a Devi depicting a Shakti. The fact that the Goddess caries a trident further supports the conclusion that she is a figure of a ''Shakti''. Thus, the description given in ASI report (Ex. P. 222) as to the subject matter of the sculpture is not only incomplete, but most importantly, is incorrect.
337. Furthermore, as mentioned and discussed above, the prosecution has neither examined an expert to prove the ''antiqueness'' of the sculpture, nor submitted the detailed report available with the ASI. Instead it has submitted the list/report (Ex. P. 222). The list/report (Ex. P. 222, Item No. 114) merely states, "Devi sculpture made out of stone, in which there are images of lions, and on both the sides images of men and women have been carved, and which has been painted in pink color, and which seems old." Hence, because the sculpture "seems old", therefore it has been classified as ''antique''. This is hardly a scientific basis for declaring an object as an ''antique''. As discussed above, even ''fake'' copy of a sculpture can be made to "look old". Therefore, the Expert Committee was required to reveal ''the stylistic'' factors on the basis of which the sculpture could be declared to be an ''antique''. But the list/report (Ex. P. 222) does not reveal the ''stylistic factors'', such as the period, the dynasty, or the school to which the sculpture could belong. Therefore, in the absence of cogent evidence, the prosecution has failed to prove that the sculpture of the Goddess is an antique sculpture. Hence, the appellant could not be convicted for offence u/s 14 read with section 25(2) of the AAT Act for the Goddess.
338. Similar is the fate of the lion (Art. 955). Hardly any evidence has been produced with regard to the sculpture of the lion (Art. 955) recovered at the appellant''s farmhouse. The prosecution has not pleaded that it was a stolen property. According to the prosecution, since the ASI Report (Ex. P. 222) has classified the lion as an ''antique'' sculpture, the appellant had violated section 14 of the AAT Act and was punishable u/s 25(2) of the AAT Act. However, as discussed above, the list/report (Ex. P.222) is an incomplete list. For, the experts have not revealed the date, the style, the dynasty, the school to which the sculpture belongs to. Moreover, as discussed above, the articles have been classified as antiques by their mere "appearance", despite the fact the witnesses do admit that a very good fake can be created by modern sculptors. As discussed above, this court has already held the list/report of the ASI (Ex. P. 222) as an unreliable report. Hence, the mere classification of the lion (Art. 955) as an ''antique'' is, too, fragile an evidence for convicting the appellant for offence u/s 14 read with section 25(2) of the AAT Act.
339. In short, the recovery, the identity of Jain idol and of the Goddess, and the identification of both these sculptures are riddled with contradictions. The prosecution has submitted half-baked facts which do not point unerringly to the appellant''s guilt. Therefore, the appellant''s conviction u/s 411 and 413 IPC, and u/s 14 read with section 25(2) of the AAT Act is unsustainable.
340. This brings us to the last recovery of the case, namely recovery dated 25-6-03 made from the warehouse belonging to Indian Crafts owned by Mr. Pradeep Malhotra, a co-accused in the present case. Just to recall, according to Ram Singh (P.W. 76), on 24-6-03, the appellant again made a statement (Ex. P. 1123) before him u/s 27 of the Evidence Act, wherein he claimed that "he had sent forty-one boxes of antique art objects to Indian Crafts at Delhi. He could take them and have the boxes recovered". Upon this information, on 25-6-03, the police party, along with the appellant and along with Bajrang Singh (P.W. 60) SHO, P. S. Harnavda Shavji, District Baran, reached the warehouse of the said firm. Before initiating the raid, the police requested Dr. Arun Sharma (P.W. 72) and one Beni Prasad Verma (not produced by the prosecution as a witness) to become recovery witnesses. They joined the raiding party. Mr. Pradeep Malhotra opened the gates of the warehouse and in the presence of the recovery witnesses, the police party discovered forty-one boxes. When the packed boxes were opened, they contained different art objects and artifacts, e.g. wooden lattice works, marble lattice works, old pillars, rust covered swords, toy-like animals made out of metal, stone slabs with calligraphy in Persian language etc. Bharat Singh (P.W. 24) videographed the recovery proceeding. After the completion of the recovery proceedings, the Recovery memo (Ex. P. 40), a Recovery Memo (Ex. P. 41) of the video cassette, and the Site Plan (Ex. P. 1105) were drawn. Although none of the recovered artifacts were sealed, they were packed into boxes and transported back to Jaipur. They were deposited in the Malkhana of the Police Station, Vidhyadhar Nagar.
341. During the course of further investigation, it was discovered that out of the forty-one boxes, thirty-seven boxes where sent through the Standard Transport Co., one box was received from Hyderabad, through the Jaipur Golden Transport Co., and three boxes were personally handed over by the appellant to the Indian Crafts. The police seized four billties (Ex. P. 31 to Ex. P. 34) from the Standard Transport Co., and seized its Register (Art. 52). During the trial, certain entries in the Registered were marked as Ex. P. 35 to Ex. P. 38. It drew up a seizure Memo of the Register and the Billities as Ex. P. 30. During trial, the prosecution produced the Billty Book (Art. 51) and the Register (Art. 52) of the Standard Transport Co.
342. In order to prove its case with regard to the recovery, the prosecution has examined Dr. Arun Sharma (P.W. 72), the recovery witness, Bajrang Singh (P.W. 60), Chandra Purhohit (P.W. 58), Bharat Singh (P.W. 24), Panchu Ram (P.W. 68) ASI, and Ram Singh (P.W. 76); in order to prove the transportation and the receiving of the consignment of the forty-one boxes, the prosecution has examined Janak Gujar (P.W. 2) the appellant''s servant, Vimal Sharma (P.W. 7) and Dilip Mishra (P.W. 8), both employees of Pradeep Malhotra; it has also examined Ashok Lakhotiya (P.W. 21), the owner of the Standard Transport Co., Arvind Khanna (P.W. 22), and Mukesh Sheshma (P.W. 32), both employees of Standard Transport Co. The prosecution has used this particular recovery for convicting the appellant for offences under Sections 3 read with 25(1), and for offences under Sections 14/ read with 25(2) of the AAT Act. While Section 3 of the AAT Act prohibits export of antiques from India, section 14 of the AAT Act bars possession of antiques without registration.
343. Mr. Bajwa has raised various contentions before this court, but they need not detain us. For his main contention is that the prosecution has examined a large number of witnesses not only to prove the recovery, but also to establish the fact that the appellant had attempted to transport ''antique'' artifacts through Pradeep Malhotra''s firm. But it has singularly failed to prove the most crucial fact, namely the artifacts were ''antiques''. The prosecution has not examined any expert to prove the fact that the art objects are ''antiques''. It has relied on Ex. P. 225--a list attached with letter dated 30-8-03, signed by G.C. Chawley--in order to prove the antiqueness of the art objects. However, as G.C. Chawley had expired, no one has proved the contents of this list. Even Hari Manjhi (P.W. 69) has clearly claimed that he is merely identifying the signature of G.C. Chawley, but does not know about the truthfulness or otherwise of the contents of the letter and the list. Moreover, a bare perusal of the list (Ex. P. 225) would clearly reveal that it is an inconclusive and incomplete list in terms of its contents. Thus, it fails to establish the antiqueness of the artifacts allegedly recovered at the appellant''s instance. Therefore, this list (Ex. P. 225) cannot be relied upon to convict the appellant for offences under Sections 3 and 14 read with section 25(1) and (2) of the AAT Act.
344. Furthermore, in the absence of G.C. Chawley, the prosecution should have examined any other member of the two Expert Committees. However, it has withheld them from the witness box. Therefore, an adverse inference should be drawn against the prosecution.
345. Further, according to Gauri Chatterjee (P.W. 70) and G.T. Shinde (P.W. 78) there was a report prepared by the two Expert Committees. But the prosecution has not produced this Report(s). Instead, the prosecution has merely produced lists (Exs. P. 222, 223, 225 and 227) which were either sent with the Authorization Letter (Ex. P. 227), or with other letter (Ex. P. 224). Since the detailed Reports have been withheld from the learned trial court, again, an adverse inference should be drawn against the prosecution.
346. In response, Mr. Bajpai has pleaded that u/s 24 of the AAT Act ''finality'' is attached to a report prepared by the ASI. Therefore, the list (Ex. P. 225) would have to be accepted without questioning its veracity or legal validity. According to the list (Ex. P. 225) out of 506 art objects about 485 were declared to be ''antiques''. Thus, the prosecution has proven the fact that the artifacts sent by the appellant through the transportation company, or taken by him personally where ''antiques''. Hence, the learned Judge was justified in convicting the appellant for offences under the AAT Act.
347. In rejoinder Mr. Bajwa has submitted that no ''finality'' can be attached to the report submitted by the ASI. Despite the language of Section 24 of the AAT Act, since the accused has the right to challenge the report, it clearly shows that the report cannot be taken to be ''final'' in its contents. In fact, during the trial proceedings the appellant had filed an application for getting the art objects retested for its antiqueness. But the learned trial court rejected the said application.
348. With regard to the present recovery, the crux of the prosecution case is that the appellant had ''antiques'' in his possession, and that he was trying to export them through M/s. Indian Craft firm. Hence it was imperative for the prosecution to prove that the items recovered on 25-6-03 were ''antiques'', in order to bring the case within the ambit of Sections 3 and 14 of the AAT Act.
349. As discussed above, section 293 Cr.P.C. does not include a report or list prepared by the ASI. Therefore, it was essential for the prosecution to ''prove'' the report/list. Moreover, since the accused has a right to challenge the finding of the report, it cannot be held that the report is to be accepted as the ''final'' word. The court would be justified in seeking the reasons for the findings given in the report. Further, the accused would also have the right to cross-examine the expert if one were produced by the prosecution. Therefore, Mr. Bajpai is not justified in claiming that the list/report (Ex. P. 225) would have to be accepted at its face value, and without being challenged. Such a list/report would be as much open to judicial scrutiny as any other documentary evidence.
350. According to letter dated 30-8-2003 (Ex. P. 224) a detailed report was attached to the said letter, namely Ex. P. 225. But as mentioned above, neither the letter dated 30-8-03, nor the list (Ex. P. 225) has been proven by any witness. Hari Manjhi (P.W. 69) has clearly admitted, in his cross- examination, that he is merely identifying G.C. Cawaley''s signatures on the letter dated 30-8-2003, and on the list (Ex. P. 225). But he does not know about the truthfulness or falsehood of the contents of these documents. As stated earlier, by merely proving the signature on a document, one does not prove the contents of the document. Hence, Hari Manjhi (P.W. 69) does not prove the contents of the report/list (Ex. P. 225). Therefore, its contents can neither be admitted, nor relied upon in order to convict the appellant.
351. Further, although the letter dated 30-8-03 claims that a ''detailed'' report is attached with the letter, but the list (Ex. P. 225) hardly qualifies as a ''detailed'' report. A bare perusal of Ex. P. 225 clearly reveals that it is cryptic and confusing. Firstly, it merely declares the artifacts as ''antique'' or ''non-antique''. But it does not reveal the basis for such a conclusion. It does not tell the court as to what tests were applied for declaring an item as ''antique or non-antique''. On page 1 of the list (Ex. P. 225), from Box No. 5, twelve stone pillars were examined. While ten are declared to be ''antique'', two are declared to be ''non-antique''. However, there is no reason given by the expert for declaring two stone pillars as ''non-antiques''. Similarly, in Box No. 15, four wooden figures of monkeys, in sitting posture, were discovered. While three of these wooden monkeys have been declared to be ''antique'', one of them has been declared as ''non-antique''. Again from Box No. 26 about twenty-eight stone pillars were examined; while eleven were declared to be ''non-antique'', the rest were declared to be ''antique''. But the list/report (Ex. P. 225) does not give a single reason for declaring few stone pillars as ''non-antiques'' and many as ''antiques''. According to the list (Ex. P. 225), 485 items were declared as ''antique'' and 21 items as ''non-antique'' on the basis of their ''appearance''. However, as discussed above, this is an unscientific method of classification. Considering the fact that objects made out of wood can be subjected to carbon dating, considering the fact that objects made out of metal can be subjected to metallographic examination, it is surprising that the two Expert Committees had not subjected any of the recovered items to any scientific test.
Secondly, Ex. P. 225 does not disclose the time period of the object. Even if the wooden pieces are ''antiques'', their age could be discovered. Similarly, the metallic pieces could be classified according to their age depending on their style. Thus, Ex. P. 225 should have said something about the period, or the age of the art object. Hence, the said list is inconclusive and vague.
Most importantly, according to Gauri Chatterjee (P.W. 70) two Expert Committees were formed. Despite the death of G.C. Chawley, the prosecution has not bothered to examine any other member of either of the two Expert Committees. In fact, the three witnesses examined by the prosecution, namely Hari Manjhi (P.W. 69), Gauri Chatterjee (P.W. 70), and Dr. G.T. Shinde (P.W. 78) have admitted that they were not members of the Expert Committee. Thus, the prosecution has withheld material witnesses. Hence, an adverse inference should be drawn that if any expert were produced from the Expert Committee he/she would not have supported the prosecution case.
Lastly, according to Dr. Arun Sharma (P.W. 72), the recovery witness, the artifacts were not sealed. They were merely repacked in the boxes and transported to Jaipur. According to Ram Singh (P.W. 76) since the wooden boxes were too large to be put in the Malkhana the articles were taken out of the boxes and stored in the Malkhana. The Malkhana register (Ex. P. 87-A) does not show as to when these articles were taken out and photographed. According to the note appended to Dr. Arun Sharma''s and Ram Singh''s testimonies, the articles were produced in the court in unsealed condition, and that too in paper cartons. Therefore, the police have not maintained the safe custody of the recovered items. Hence, the linking evidence with regard to the identity of the artifacts is singularly missing.
352. When these articles were produced before the court, Dr. Arun Sharma (P.W. 72) failed to identify them. He merely identified a rust covered sword in his examination-in-chief. But in his cross-examination, he admitted the fact that "such rust covered swords are readily available in the junk collector''s shop". Panchu Ram (P.W. 68) was not asked to identify these art objects. Thus, but for Ram Singh (P.W. 76) no other witness has identified these artifacts in the court. But considering the lack of safe custody of these items, the court is left wondering whether those items have really been produced in the court which were allegedly recovered from the warehouse on 25-6-03 or not. Hence, the prosecution has neither proven the ''antiqueness'' of the art objects, nor convincingly established their identity. Needless to say, these are gaping holes in the prosecution case. Thus, the learned Judge was certainly unjustified in convicting the appellant for offences under Sections 3 and 14 read with Sections 25(1) and (2) of the AAT Act.
353. In the present case, the court is left with some suspicion, but it has not been offered cogent and convincing proof about the appellant''s guilt. Even if all the links of evidence were added, they do not unerringly point to the guilt of the accused. As mentioned above, too many pieces of the jigsaw puzzles are missing, and too many unanswered questions haunt the judicial mind. The prosecution has failed to present a completely finished painting; the canvas is unfinished, and in tatters. The appellant has to be given the benefit of doubt.
354. In the case of Sujit Biswas v. State of Assam [2013 Cr.L.J. 3140 (SC)], the Apex Court had opined as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ''may be'' proved, and something that ''will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between ''may be'' and ''must be'' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ''may be'' true and ''must be'' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ''may be'' true and ''must be'' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.
355. While appreciating the evidence the above mentioned principles of law needs to be adhered to. For to convict an accused on basis of strong suspicion is to ''morally convict'' him; courts of law are expected to legally convict an accused. Thus, no matter what the picture painted by the prosecution, the court must objectively assess the evidence. In the present case, the prosecution has managed to create a suspicion in the mind of the court; it has failed to logically convince the court about the appellant''s guilt.
356. Lastly, a bare perusal of the impugned judgment clearly reveals that while dealing with the evidence, the learned Judge has not critically analyzed the evidence. The learned Judge has merely accepted the version of the prosecution, as given through the examination-in-chief, as the gospel truth. He has neither meticulously analyzed the evidence which was available on record, nor paid any attention to the weighty contentions raised by the defence counsel. The veracity and the legality of a prosecution case are inevitably tested on the touchstone of the cross-examination of witnesses. Thus, it is the cross-examination of the witnesses which is fundamental for filtering the case of the prosecution through a very fine sieve. Moreover, the conduct of the prosecution has to be microscopically analyzed in order to adjudge its truthfulness. After all, prosecution cannot be permitted to transform itself into a persecution of the accused. However, the learned Judge has failed to carry out the necessary exercise.
Summary of the Facts and Reasoning:
357. Having arrested four persons for possessing antique statues on 6-6-2003, having lodged a formal FIR, namely FIR No. 146/2003, the police raided the appellant''s house on 7-6-2003. There the police allegedly recovered seventy-two paintings, sixty-eight catalogs of private Auction Houses, namely Christie and Sotheby, and eighteen photographs of antique sculptures, besides few half-burned photographs. The police neither sealed the recovered items, nor drew a Site Plan of the place of recovery. The recovered items were stored in the Malkhana (storeroom) of the Police Station, Vidhyadhar Nagar. The appellant was arrested at his house.
358. During the course of investigation, on 14-6-2003, the appellant allegedly made a statement u/s 27 Evidence Act wherein he claimed that he had given seven antique sculptures, for repair, to one Satyadev Sharma of Delhi. Upon this information, on 15-6-2003, the police allegedly recovered seven sculptures from Satyadev Sharma''s workshop in Delhi. Even these seven sculptures were not sealed by the police. They were merely stored in the Malkhana of the Police Station.
359. Further, on 17-6-2003, again the appellant allegedly made a statement u/s 27 of the Evidence Act; he informed the police that he has hidden three antique sculptures at his farmhouse. Consequently, on the same day, the police allegedly recovered three sculptures--of a Devi (the Goddess), a Jain Tirthankar (Jain idol), and a Lion. Even these three sculptures were not sealed. During investigation it was discovered that the sculpture of the Goddess was allegedly stolen from a temple in Bhanpura, District Mandsor (M.P.), and the Jain idol was allegedly stolen from Bhadesar, District Chittorgarh (Rajasthan).
360. Thereafter, on 24-6-2003, the appellant allegedly made another statement u/s 27 of the Evidence Act; he claimed that he had sent a large consignment of antique artifacts, in forty-one boxes, for export to M/s. Indian Craft at New Delhi. Subsequently, on 25-6-2003, the police allegedly recovered forty-one boxes of antique artifacts from the warehouse of M/s. Indian Craft. Even these artifacts were not sealed. They, too, were kept in the Malkhana of the Police Station.
361. Having completed the investigation, the police filed two separate charge-sheets, against twenty-five persons, including the appellant, for offences under Sections 379, 380, 401, 411, 413, 414, 120B IPC, and under Sections 3, 5, 14, read with Section 25(1)(2) of the AAT Act. By judgment dated 20-11-2008, the appellant was convicted for offences under Sections 411, 413 IPC and under Sections 3/25(1) and 14/25(2) of the AAT Act.
362. We shall first summarize those issues which permeate the entire case. Thereafter, we shall deal with the four recoveries individually.
363. During the pendency of the trial, the appellant had challenged the Charge Order dated 4-9-2004 before the Hon''ble Supreme Court. By order dated 11-4-08, the Apex Court had granted the liberty to the appellant to raise his objections with regard to the charges before the appellate court. Hence, this court has been called to initially adjudicate on the charges framed by the learned trial court.
364. The learned trial court had framed Charge No. 2 against the appellant for offences u/s 413 read with 120-B, I.P.C. However, the said charge has not been framed properly. Although section 411 I.P.C. and section 413 I.P.C. are distinct offences, but they are inter-related to each other. While section 411 I.P.C. deals with ''dishonestly receiving or retaining stolen property'', section 413 I.P.C. deals with ''habitually receiving or dealing with stolen property''. Although for the purpose of preventive detention, a ''habit'' can be inferred from a series of FIR''s, but for punitive detention much more is required. For preventive detention and punitive detention differ in their scope and nature. Yardstick applicable to preventive detention cannot be applied to punitive detention. Hence, for the purpose of punishing an accused, a ''habit'' cannot be inferred either from a series of FIR''s registered against him, or by his single conviction. Thus, before a charge for offence u/s 413 IPC can be framed, there should be at least two convictions recorded against the offender for offence u/s 411 IPC. However, in the present case, even before a single conviction was recorded against the appellant, the charge for offence u/s 413 IPC was framed against him.
365. Since the charge u/s 413 I.P.C. is based on previous convictions u/s 411 IPC, therefore, section 413 IPC prescribes ''a punishment of different kind''. Hence, prior to framing the charge for offence u/s 413 IPC, the learned Trial Judge was required to follow the procedure prescribed by section 211(7) Cr. P. C and section 236 Cr.P.C. According to section 211(7) Cr.P.C. where the accused is liable for ''a punishment of a different kind'' due to a previous conviction for a subsequent offence, the trial court is required to state the date and place of previous conviction in the charge. According to section 236 Cr.P.C. the trial court is required to record the offender''s plea with regard to his previous conviction for subsequent offence. In case he/she were to deny the previous conviction, then the learned trial court needs to record evidence about the previous conviction. However, in the present case, the learned Judge has failed to follow the said mandatory procedure. Hence, Charge No. 2 has not been framed in compliance of section 211(7) and section 236 Cr.P.C.
366. In order to convict the appellant for offence u/s 413 IPC, on one hand, the learned Judge has taken his conviction by the Judicial Magistrate, Bhanpura as one of the two convictions recorded against the appellant. But without informing the appellant that he is being tried for the allegedly stolen Jain idol by the court, the learned Judge has convicted him for offence u/s 411 IPC. Taking this conviction as a ''second conviction'', the learned Judge has proceeded to convict the appellant for offence u/s 413 IPC. However, the Charge No. 2 does not refer to the conviction by the Judicial Magistrate, Bhanpura. Thus, the learned Judge did not explain the main facts which were going to be established by the prosecution against the appellant. Thus, the appellant did not even know what he was being tried for. Hence, he was caught off guard as far as the offence u/s 413 IPC is concerned. Therefore, he has been subjected to an unfair trial: a prejudice has been caused to the appellant.
367. Furthermore, initially the prosecution used the FIR registered against the appellant at Bhadesar, for the allegedly stolen Jain idol, as merely an example to show his ''habit'' of receiving stolen property. The prosecution examined merely four witnesses with regard to the said FIR. However, subsequently, the learned trial court convicted the appellant for the Jain idol for offence u/s 411 IPC. However, the appellant was never informed that he is being tried for the Jain idol by the learned trial court. In fact, while facing the present trial at Jaipur, he was also facing the trial before the Judicial Magistrate, Badi Sadari for the same Jain idol and for the same offence. The said trial at Badi Sadari was dropped only after the appellant was convicted in the present case. Ironically, the prosecution never gave a complete copy of the charge-sheet filed at the court of Judicial Magistrate Badri Sadari to the appellant during his trial at Jaipur. He was not even given an opportunity to cross-examine all the witnesses listed in the said charge-sheet. Thus, he has been subjected to a truncated trial. The appellant has been denied the opportunity to properly defend himself. An injustice has been caused to him.
368. Moreover, on 17.6.2003, allegedly three idols were recovered from the appellant''s farmhouse. Since the prosecution did not plead that the three idols were received by the appellant from different persons, at different times, the recovery is a single recovery. Therefore, the appellant could not be tried for the same offence, by two different courts. Since the appellant was already convicted by the Judicial Magistrate, Bhanpura for offence u/s 411 IPC for the sculpture of Goddess, he could not be convicted for the same offence, for the Jain idol, by the learned Trial Judge, in the present case. For, the second trial for the same offence is hit by the doctrine of double jeopardy. Such a trial not only violates the appellant''s fundamental rights under Article 20(2) of the Constitution of India, but also violates his statutory right u/s 300 Cr.P.C. Hence, the Charge No. 2 is unsustainable.
369. Charge Nos. 5 and 7 deal with offences under Sections 3 and 14 read with Section 25(1)(2) of the AAT Act. However, according to section 26(1) of the AAT Act, a Sanction Order is a sine quo non for prosecuting an accused for offence u/s 25(1) of the AAT Act. Moreover, according to Section 26(2) of the AAT Act, an Authorization Letter is essential for prosecuting an accused under the AAT Act. But in the present case, no Sanction Order exists. According to Gauri Chatterjee (P.W. 70), she had not seen the police papers when she issued the Authorization Letter (Ex. P. 227). Even Hari Manjhi (P.W. 69) does not claim that he had seen the police papers when he issued the second Authorization Letter (Ex. P. 219). Therefore, the two Authorization Letters (Ex. P. 227 and Ex. P. 219) are not legally valid. The requirement of section 26(1) and (2) of the AAT Act has not been fulfilled in the present case. The appellant has been deprived of the protection given by law by requiring the Sanction Order and the Authorization Letter. Due to the lack of Sanction Order/Authorization Letter, the appellant has been subjected to a frivolous trial. If the Sanction Order/Authorization Letter had been insisted upon by the learned trial court, the lacune left by the Archeological Survey of India (''ASI'', for short) and by the prosecution would have come to the fore. The appellant would have been saved from a grinding trial and from grueling incarceration. He has, thus, suffered an injustice due to the non-availability of the Sanction Order and a valid Authorization Letter. Hence, the appellant''s conviction under Sections 3/25(1), 14 r/w 25(2) of the AAT Act is unsustainable.
370. The entire prosecution case rests on the foundation that the appellant was in possession of ''antique'' art objects, or was trying to export ''antique'' artifacts. However, the prosecution has not examined any expert in order to prove the fact that the artifacts recovered from the appellant were, indeed, ''antique''. Further, according to Gauri Chatterjee (P.W. 70) and Hari Manjhi (P.W. 69) detailed reports were available with the ASI. But the prosecution has not submitted the detailed reports before the trial court. Instead, it has merely submitted the ''list/reports'' (Ex. P. 222, 223, 225 and 227) which were sent either with the Authorization Letters or with other correspondence sent by the Department. These ''lists/reports'' are not covered by section 293 Cr.P.C. Therefore, their contents needed to be proven by the prosecution. But the prosecution has failed to prove the contents of these ''lists/reports''. Furthermore, these ''lists/reports'' are incomplete and inconclusive as they do not reveal the scientific basis for declaring the art objects as ''antiques''. In the absence of expert opinion, in the absence of any cogent reason being given for declaring the artifacts as ''antique'', in absence of the ''proof of the contents of these lists/reports, the appellant''s conviction for offences u/s 3/25(1) and 14/25(2) of the AAT Act is unsustainable.
RECOVERY OF 7.6.2003
371. With regard to this recovery, the appellant has been convicted for offence u/s 14 read with section 25(2) of the AAT Act. The defence has taken alternative pleas: the recovery is a fake one, it never took place. In the alternative, the prosecution has failed to prove the recovery; it has failed to prove the antiqueness of the paintings allegedly recovered. Thus, the conviction is illegal.
372. According to the defence, Ram Singh (P.W. 76) the Investigating Officer, had demanded an illegal gratification from the appellant. The appellant had refused to oblige him. Therefore, the investigation officer framed him in a false case. The falsity of the recovery of 7-6-2003 is apparent from the fact that the police did not follow the mandatory requirements of Sections 100, 165, 166 Cr.P.C. and section 23 of the AAT Act. In accordance with section 166 Cr.P.C. Ram Singh (P.W. 76) was required to inform the S.H.O. of Police Station, Vidhan Sabha, with regard to his intention of carrying out a search at residence of the appellant. But there is no evidence on record to show that such information was sent by Ram Singh (P.W. 76) to the concerned Police Station. Further, although Ram Singh (P.W. 76) presented the appellant before the learned Magistrate on 8.6.2003, a Sunday, he neither submitted a list of the alleged recovered items, nor submitted a copy of the Seizure Memo (Ex. P. 163) before the concerned Magistrate. Hence, Ram Singh has flouted mandatory requirements of Section 166(4) Cr.P.C. Moreover, Ram Singh has not associated any officer of ASI as required by section 23 of the AAT Act. Furthermore, he neither sealed the alleged recovered items, nor made a site plan of the place of recovery. Thus, he has flouted the mandatory requirements of the law. This buttresses the defence plea that Ram Singh (P.W. 76) intentionally flouted the mandatory requirements of law as no recovery, in fact, took place on 7-6-2003 at the appellant''s house.
373. The police did not associate two independent witnesses while carrying out the recovery. Instead, it involved Duli Chand (P.W. 47) who is a criminal, and who is a stock witness for the police. Furthermore, Duli Chand (P.W. 47) has been shattered in his cross-examination. Hence, he is an unreliable witness. The recovery has not been proven by the ''independent witness''.
374. Ram Babu Vijay (P.W. 61), the photographer, dents the prosecution case. According to him, the raid began at 11.30 A.M. and not at 6 A.M., as claimed by Ram Singh (P.W. 76). Although, he claims that he had given a CD containing the photographs taken by him, but such a CD was never produced by the prosecution. Further, though he had taken digital photographs, though the photographs were produced before the trial court, but the mandatory requirement of Section 65B of the Evidence Act has not been followed. Therefore, the digital photographs are inadmissible. Hence, his testimony does not further the prosecution case.
375. The prosecution has failed to prove the safe custody of the art objects recovered by the police. According to prosecution, the art objects were neither sealed, nor kept safely in the Malkhana (storeroom). They were taken in and out of the Malkhana without keeping track of these articles in the Malkhana register (Ex. P. 76-A) Although the prosecution claims that all the seventy-two paintings were signed by Duli Chand (P.W. 47) on the back of the paintings, but according to Duli Chand (P.W. 47), three of the paintings do not bear his signatures in the back of the paintings. Therefore, the possibility that the recovered articles were misplaced or replaced cannot be ruled out. Hence, the linking evidence is conspicuously missing.
376. The list/report (Ex. P. 222) deals with the paintings allegedly recovered from the appellant''s house. However, as stated above, the contents of this list has not been proven by any of the witnesses. Moreover, this list does not give any scientific basis for declaring twenty paintings as antiques. Further, the prosecution has not examined any expert to prove the fact that twenty paintings were antique. Hence, the prosecution has failed to establish that the paintings recovered from the appellant''s house were antiques. Hence, the recovery does not connect the appellant to an offence under Sections 14 read with 25(2) of the AAT Act.
377. The recovery of sixty-eight catalogs does not connect the appellant to the offence u/s 3/25(1) or u/s 14/25(2) of the AAT Act. For, Ram Singh (P.W. 76) admits that despite keeping the investigation open with regard to export of antique sculptures by the appellant, this part of the investigation was never carried out. Thus, there is no evidence that the appellant had exported antique sculptures to the private auction houses, namely Christie or Sotheby. Therefore, the mere discovery of their catalogs is immaterial and irrelevant for the purpose of convicting the appellant for offense under the AAT Act.
378. The recovery witness Duli Chand (P.W. 47), the Investigating Officer--Ram Singh (P.W. 76), Panchu Ram (P.W. 68) A.S.I. are unreliable witnesses. Therefore, the prosecution has failed to prove the recovery dated 7.6.2003, to the hilt. Hence, the appellant''s conviction for offence u/s 14 read with section 25(2) of the AAT Act is unsustainable.
RECOVERY OF 15.6.2003
379. Doubts have also been raised about this recovery. According to the defence, although the prosecution claims that the appellant was taken to Delhi and the recovery was made in his presence, but the appellant''s signatures on the Recovery Memo (Ex. P. 220) and the Site Plan (Ex. P. 221) have been forged. If the appellant were present at the time of the recovery, there was no reason for forging his signature.
380. This court has compared the signatures on these two documents, and has concluded that, indeed, the signatures do not match with the known signatures of the appellant which are available in the record. Thus, the signatures on these two documents (Ex. P. 220 and Ex. P. 221) are certainly forged. The forgery committed by the investigating agency casts a shadow of grave doubt about the impartiality and fairness of the investigation.
381. Moreover, according to the prosecution, the police party had travelled in a private taxi to Delhi. Despite the availability of the taxi driver, in spite of heavy inhabitation around Satyadev Sharma''s workshop, again the police did not associate any independent witness for the recovery. Although the police has made Satyadev Sharma a recovery witness, but he should have been made an accused. After all, allegedly seven antique statues were recovered from his possession as well. Therefore, the choice of making Satyadev Sharma a recovery witness raises doubts about the fairness of the investigation. Interestingly, the prosecution has not even examined Satyadev Sharma as a prosecution witness. Hence, the court is left merely with the testimony of Panchu Ram (P.W. 68) as the only recovery witness. But Panchu Ram (P.W. 68) is an unreliable witness. For according to him, the appellant had gone with the police party. But the appellant''s forged signatures belie this fact. Hence, Panchu Ram (P.W. 68), a police officer, does not reveal the truth to the learned trial court. Ram Singh (P.W. 76) is equally an unreliable witness as he is silent on many crucial issues.
382. Most importantly, even if the testimonies of Panchu Ram (P.W. 68) and Ram Singh (P.W. 76) were accepted as true, even then the prosecution has failed to prove the ''antiqueness'' of the seven sculptures as required by law. As mentioned above, the prosecution has neither examined single expert, nor proven the contents of the list/reports. Moreover, the list (Ex. P. 222) submitted by the ASI, neither gives the basis for declaring these seven sculptures as antiques, nor describes the sculptures properly. Therefore, in the absence of cogent and convincing evidence, the appellant cannot be convicted for offence under Sections 14 read with 25(2) of the AAT Act.
RECOVERY OF 17.6.2003
383. The prosecution has failed to prove that the Jain idol was a stolen property. According to Chaggan Das (P.W. 63), the pujari (the priest) of the temple, since he is illiterate, he had not authored the FIR. He had merely signed it. According to him, the said FIR was authored either by Shanti Lal or Moti Lal. But Shanti Lal (P.W. 30) has denied the authorship of the FIR. Even then, the prosecution has not examined Moti Lal as a witness. Hence, the prosecution has failed to examine the author of the FIR. It has failed to prove the contents of the FIR. The very foundation of the allegation that the Jain idol is a stolen property is, thus, conspicuously missing.
384. Furthermore, the prosecution has failed to prove the identity of the Jain idol; it has also failed to prove that it was in possession of the temple at Bhadesar. Shanti Lal (P.W. 30) and Chaggan Das (P.W. 63) have given contradictory description of the Jain idol. While Chaggan Das (P.W. 63) claims that the insignia on the chest of the Jain idol is ''round'' in shape, Shanti Lal (P.W. 30), that it is ''square'' in shape. Moreover, Chhagan Das (P.W. 63) claims that the Jain idol was stuck in the back with cement. Yet when the idol was examined by this court, no indication was found in the back of the idol, which would show that it was ripped off from a wall. Therefore, the prosecution has failed to prove that the Jain idol, produced before the learned trial court, is the same one which was allegedly stolen from the Jain Temple at Bhadesar.
385. There is some confusion about the place where the Jain idol was recovered. According to the prosecution, it was recovered from the appellant''s farmhouse. But according to judgment, dated 22-7-2009, passed by learned ADJ, (Fast Track), Sirohi, Chaggan Das was examined as Prosecution Witness No. 13. In the said trial, Chhagan Das had claimed before the said court that "after a few days the Jain idol was discovered in the Village itself. Subsequently, it was taken by the Jaipur police in their possession and taken to Jaipur". Shanti Lal (P.W. 30) had also claimed in his supplementary statement (Ex. D.110), given at Police Station Bhadesar, that "he had identified the Jain idol at the Police Station itself", thereby meaning Police Station Bhadesar. Although he has denied the fact that he gave such a statement to the P.S. Bhadesar, but such denial has been made to custom tailor his examination-in-chief to the prosecution story in the present case. If Chaggan Das''s testimony, given before the learned ADJ, Sirohi, and Shanti Lal''s supplementary statement (Ex. D. 110) are read together, they demolish the prosecution case that the Jain idol was recovered from the appellant''s farmhouse. Thus, a grave doubt is raised about the place of recovery and about the place of identification of the Jain idol.
386. Since the Jain idol was allegedly stolen, it should have been subjected to a test identification parade. But there is certain amount of confusion whether a proper identification parade was held by the police or not. According to Shanti Lal (P.W. 30) he had identified the Jain idol in a dark room with the help of matches and candle. According to this witness, Ram Singh (P.W. 76) had prepared a test identification parade memo. Ram Narayan (P.W. 77) the I.O. who had filed the charge-sheet before the Judicial Magistrate, Badi Sadri, also buttresses this point. According to him, he had submitted the test identification memo along with the charge-sheet submitted before the learned Judicial Magistrate, Badi Sadari. However, he further claims that the identification parade memo is missing from the copy of the charge-sheet (Ex. P. 1120) submitted before the learned trial court at Jaipur. Moreover, the police did not submit the said identification parade memo along with the charge-sheet of the present case. Furthermore, according to Ram Narayan (P.W. 77) other documents, such as the Recovery Memo of the lock recovered at the site, the Site Plan, and the statements of witnesses recorded u/s 161 Cr.P.C. are also missing from the copy of the charge-sheet (Ex. P. 1120). Hence, the prosecution has withheld important documents from the purview of the learned trial court. Therefore, an adverse inference should be drawn against the prosecution.
387. Further, when the Jain Idol was produced on 1-11-2006, it contained a slip marking the idol as "Article 55". However, when it was produced on 6-11-2007, the said slip was missing. Therefore, according to the learned Trial Judge, he had placed a chit with the word "Vishyadheen" written on it, on the Jain Idol. But, when again the Jain idol was produced before the Trial Court, on 21-1-2008, the chit containing the word "Vishyadheen" was missing, and the words "Article 55" had reappeared. According to Shanti Lal (P.W. 30) such Jain idols are readily available in the open market. Since the Jain idol was not kept safely by the police during the trial, the possibility that the Jain idol was replaced cannot be ruled out.
388. Therefore, the prosecution has failed to prove that the Jain idol produced in the court was a stolen property. Secondly, that it belonged to the Jain Temple at Bhadesar. Thirdly, that same Jain idol was recovered from the appellant''s farmhouse. Fourthly, the Jain idol which was stolen from the Jain temple at Bhadesar was actually produced before the learned trial court. Thus, the prosecution has failed to establish the ingredients of offence u/s 411 IPC. Hence, the appellant''s conviction for offence u/s 411 IPC is unsustainable.
THE GODESS
389. According to the prosecution, the statue of Goddess was stolen from Bhanpura, District Mandsor (M.P.). However, the prosecution has not examined the author of F.I.R. lodged at Police Station Bhanpura, namely Rajaram Malviya. Therefore, the prosecution has failed to prove the contents of the FIR lodged at Bhanpura.
390. According to the F.I.R., the statue of Goddess was carved from a black stone; it had a roof like structure in the back and had disks. This fact is also admitted by Jaswant Singh Parmar (P.W. 71) who was the SHO, Police Station Bhanpura. D. K. Saini (P.W. 82), the police officer who submitted the charge-sheet before the Judicial Magistrate, Bhanpura, also affirms this fact. However, according to Shambhu Malviya (P.W. 56), the brother of the complainant, Rajaram Malviya "the statue was of colour of sand i.e. it was yellowish in colour". According to him, "it was not a black coloured statue". But, according to the list (Ex. P. 222) prepared by ASI, the Statue is "pink colored". When this court called for the statue, it was discovered that the sculpture is partly pink and partly grayish in its color. Therefore, the very identify of the sculpture which was allegedly stolen from Bhanpura is shrouded in mystery.
391. According to A.S.I. Report (Ex. P. 222), the sculpture is of a Devi. According to Shambhu Malviya, the sculpture is of Goddess Parvati. The term "Devi" is too generic, as the epithet is applicable to sculpture of any Goddess in the Hindu Pantheon. Considering the fact that the figure of the Goddess carries a trident in one hand, Mala (string of pearls) in another hand, carries a flame in the third hand, and carries a Kamandal (a water pot) in the fourth hand, considering the fact that she is flanked by two crouching lions at her feet, the figure appears to be that of a Shakti Goddess, probably Goddess Durga. Hence, its description as being ''Goddess Parvati'' does not match with the iconography of Goddess Parvati. For Goddess Parvati carries neither a trident, nor a flame in her hands. Hence, the prosecution has failed to prove the exact identity of the sculpture stolen from Bhanpura. Moreover, it has failed to prove that the sculpture produced in the court is the same statue which was allegedly stolen from the temple at Bhanpura
392. The list (Ex. P. 222) does not give any reasons for declaring the sculpture as the antique one. It neither contains the tests which may have been performed, nor contains the possible date, nor the period, the dynasty, nor the style in which the sculpture is made. It merely declares the sculpture to be an ''antique'' on the ground that it "looks old". Antiqueness of a sculpture cannot be decided by its mere appearance. For, even fake copies of the sculptures can be made to "look old". Therefore, there is no evidence prove that the sculpture an ''antique'' one.
393. As far as the appellant''s conviction for offence u/s 413 IPC is concerned, it too is unsustainable for the following reasons: firstly, as mentioned above, the charge framed for the said offence was illegal. For, Charge No. 2 was dehors Sections 211(7) and 236 Cr.P.C. Moreover, the charge did not mention about any previous conviction of the appellant. Thus, it did not inform the appellant about the evidence which would be used against him.
Secondly, in case the learned Judge wanted to use his conviction for the Jain idol as a plank for convicting the appellant for offence u/s 413 IPC, he should have informed the appellant that he is being tried for the Jain idol for the offence u/s 411 IPC by him. However, no such information was given in the charges framed against the appellant. Therefore, the learned Judge was not justified in reading the conviction for offence u/s 411 IPC qua the Jain idol against the appellant.
Thirdly, as mentioned hereinabove, the appellant could not be tried for offence u/s 411 IPC qua the Jain idol by the learned Judge. For, such a trial is hit by double jeopardy. Therefore, at the time of passing of the impugned judgment, there was only ''a single conviction'' recorded against the appellant. A ''habit'' cannot be inferred from a single conviction. Therefore, the learned Judge was not justified in convicting the appellant for offence u/s 413 IPC.
Lastly, as discussed above, the prosecution has failed to establish the offence u/s 411 IPC against the appellant qua the Jain idol. Hence, seen from any angle, the appellant''s conviction for offence u/s 413 IPC is legally unsustainable.
THE LION
394. Although the discovery of the Lion has been used for convicting the appellant for offence u/s 14 r/w 25(2) of the AAT Act, as mentioned above, there is no expert opinion, oral or documentary, to prove that the Lion is an antique sculpture. In the absence of expert opinion, it is unsafe to hold that the appellant was in possession of an antique sculpture, without registration. Hence, his conviction u/s 14 r/w 25(2) of the AAT Act deserves to be quashed and set aside.
RECOVERY OF 25.6.2003
395. According to the prosecution, out of 506 artifacts, 485 artifacts were declared to be antiques by the A.S.I. However, as aforementioned, the list (Ex. P. 225), dealing with these artifacts, has not been proven by any witness. In his cross examination, Hari Manjhi (P.W. 69) clearly states that he has merely identified the signatures of G.C. Chawley on the said list. But he cannot say anything about the trustfulness or falsehood of the contents of the said list. Moreover, the basis for concluding that the artifacts are antiques, have nowhere been stated in the list. Thus, the list is unclear and incomplete. Hence, the prosecution has failed to prove the facts that the artifacts recovered on 25.6.2003 were, indeed, antiques. Therefore, the appellant''s conviction for offence u/s 3 r/w 25(1) and u/s 14 r/w 25(2) of the AAT Act deserves to be quashed and set aside.
396. The investigation in this case has been extremely tardy, and unfair to the appellant. The investigating officer has repeatedly violated the mandatory provisions of Code of Criminal Procedure, such as Sections 100 and 166 Cr.P.C. He has ignored the requirement of section 23 of the AAT Act, while carrying out the raid on the appellant''s house and recovery proceedings thereafter. While raiding the appellant''s house on 7.6.2003, he has associated, as recovery witnesses, two criminals who were under the grip of Police Station Ramganj, Jaipur. As discussed above, Duli Chand (P.W. 47) happens to be a stock witness. Thus, the investigating officer has ignored the requirement of law that ''independent witnesses'' should be associated while making a search. Moreover, he has failed to inform the concerned Police Station, both in Jaipur and in Delhi, about the search to be carried out in their respective jurisdiction. He has failed to submit the list of recovered articles before the concerned Magistrate, as required by section 166 Cr.P.C. He has failed to associate an officer from the ASI while searching for antiques, as required by section 23 of the AAT Act. He has consistently failed to seal the recovered artifacts; he has failed to ensure their safe custody in the Malkhana. Thereby leaving the identity of the art objects in doubt. He has shown scant regard for the requirements of law. Furthermore, while investigating the case, he has failed to secure the photographs of the Jain idol which were available with Shanti Lal (P.W. 30) and the ''eye'' of the Jain idol, which was available with the Police Station, Bhadesar. Such lackadaisical investigation raises doubts about its fairness, impartiality, and efficiency.
397. Even the prosecution has not come with clean hands to the trial court. It has not only withheld material witnesses, but has also hidden material documents from the purview of the court. Despite the fact that the recovery witness examined by the prosecution, with regard to each recovery, was shattered in cross-examination, the prosecution has still withheld the second recovery witness. It has failed to examine Kishan Lal- the second recovery witness in the recovery dated 7.6.2003, Satyadev Sharma- the second recovery witness in the recovery dated 15.6.2003, Ladu Ram- the second recovery witness in the recovery dated 17.6.2003 and Beni Prasad Verma- the second recovery witness in the recovery dated 25.6.2003. Thus, it has failed to prove the recoveries through independent witnesses. Moreover, it has failed to examine Raja Ram Malviya- the author of F.I.R. No. 51/2002 Police Station Bhanpura with regard to the Goddess; it has failed to present Moti Lal- the possible author of F.I.R. No. 286/97 Police Station Bhadesar. Thus, it has been unable to prove the contents of these two FIR''s. Most importantly, the prosecution also failed to examine any expert from the two Expert Committees constituted by Archeology Survey of India for establishing the antiqueness of the artifacts/sculptures/paintings and art objects, allegedly recovered either from appellant''s house or at his instance. Lastly, it did not even examine Mr. Anand Srivastava under whose supervision the entire investigation had taken place, and for whom the Authorization Letter was issued for submitted complaint/charge sheet. The withholding of these material witnesses should be read against the prosecution. If these witnesses were produced, they would have knocked the bottom out of the prosecution case.
398. The prosecution has also failed to produce material documents. Ram Babu Vijay (P.W. 61) claims that he had given a CD, containing the photographs taken by him, to the police. But the said CD has not been produced by the prosecution. The prosecution has withheld the test identification memo prepared by Ram Singh (P.W. 76) with regard to the Jain idol. Similarly, although the witnesses claim that there was a test identification memo prepared vis-�-vis the Goddess, but no such test identification memo was submitted before the learned trial court. The prosecution has submitted an incomplete copy of the charge-sheet (Ex. P. 1120) which was submitted before the Judicial Magistrate, Badi Sadari. Since the prosecution has purposefully withheld material documents from the learned trial court, again an adverse inference has to be drawn by the court. Therefore, a grave possibility does exist that neither the Jain idol, nor the Goddess was identified by the witness during the test identification parade. Moreover, if all the documents were produced they would have been fatal to the prosecution.
399. The prosecution has produced a large number of photographs. However, it has failed to prove their safe custody, veracity and validity of these photographs in accordance with Section 65B of the Evidence Act. Therefore, these photographs do not further the prosecution case.
400. Lastly, the prosecution has made much of the fact that the appellant is a ring leader of a gang of thieves and is a smuggler of Indian antiques to private auction houses like Christies and Sotheby. However, according to Ram Singh (P.W. 76), the international export by the appellant was never investigated by the police. Therefore, the prosecution has merely leveled allegations against the appellant, without any proof thereof.
401. Even if for the sake of arguments, the prosecution case were accepted, even then it has failed to prove all the links of the circumstantial chain which would unerringly point to the appellant''s guilt. In fact, there are large gaping holes in the prosecution case. Since the prosecution case is like a sieve, it does not hold any water. Despite the best efforts of the prosecution, lurking doubts have been left in the mind of the Court. The prosecution has failed to cover the long distance between ''may be true'' and ''must be true''. But, mere suspicion, no matter how strong, cannot take the place of proof. For the reasons stated above, this Court has no other option but to give the benefit of doubt to the appellant for offence u/s 411 IPC and for offences u/s 3 read with Section 25(1), and for offences u/s 14 read with section 25(2) of the AAT Act. As far as the offence u/s 413 IPC is concerned, considering the fact that the appellant''s conviction for offence u/s 411 IPC qua the Jain idol is hit by double jeopardy, the appellant deserves to be acquitted of the offence u/s 413 IPC.
402. In the result, the appeal filed by the appellant is accepted. The judgment dated 20-11-2008 is hereby quashed and set aside. Consequently, this Court quashes and set aside the appellant''s conviction under Sections 411, and 413 IPC, and u/s 3 read with Section 25(1), and u/s 14 read with section 25(2) of the AAT Act. The appellant shall be set at liberty forthwith, if not required in any other criminal case. Before we conclude this judgment finally, there are two aspects of the case we would like to address to. Firstly, this case dealt with the alleged receiving of stolen property, possession, transportation, attempt to export of antique sculptures and art objects. While investigating this case, the police was dealing with a specialized area of human knowledge--art and antiquities. Yet, from the very beginning of the investigation, the police did not associate those who were experts or knowledgeable about the area of art and antiquities. Despite the fact that the CBI has a special cell dealing with theft, possession, and smuggling of art and antiquities, despite the fact that according to the police the case had inter-state and international reach, still the police never sought the help of the CBI cell on antiquities in investigating the present case. Such help should have been sought by the police. In future, the police should seek such help from the other investigating agencies.
Secondly, we do need to pass an order with regard to the trial property. In the present case, the prosecution has failed to establish its case. But the probability does exist that perhaps the art objects recovered during the investigation are ''antiques''. Hence, the State is directed not to return the trial property either to the appellant, or to return the Jain idol to the Jain Temple at Bhadesar, or to return the sculpture of the Goddess to the temple at Bhanpura. Moreover, it is directed to seek the opinion of the ASI, and if necessary, of other experts/agency in the field of art history and archeology, with regard to the ''antiqueness'' of the recovered sculptures/art objects/artifacts. In case the experts certify that the sculptures/art objects/artifacts are ''antiques'', then the State should preserve them for the benefit of the public at large. After all, in such a case, the sculptures/art objects/artifacts are part of our history, heritage and culture. Thus, in the interest of the nation, such sculptures/art objects/artifacts should be publically displayed in a museum managed by the State. Hence, the State is directed to carry out the necessary exercise as directed above within a reasonable time.
