2010 ALJ (Supp) 79 ::(2010) 2 AllCriR 2107 ::(2010) 2 ADJ 24 (ALL) ::(2010) 69 AllCriC 71.2

Allahabad High Court

Hon'ble Judge(s): Yatindra Singh, B. N. Shukla , JJ

( A ) Evidence Act (1 of 1872) S. 27 — Recovery — Provision of Ss.100 and 165, CrPC are not applicable to recovery made under S.27 — Since they do not relate to recovery on pointing out of accused. (Paras26)

( B ) Evidence Act (1 of 1872) S. 27 — Recovery memo — Is not required to be signed by accused though copy of same should be supplied to him — Failure to do so, depending on the circumstances may raise an inference against it. AIR 1995 SC 2345, Disting. AIR 1999 SC1776, Rel.on. (Paras3596)

( C ) Evidence Act (1 of 1872) S. 27 — Disclosure memo — S.27 does not require that disclosure memo should be separately prepared.When instant case was a sensational one; everything was happening at a fast speed recovery of looted articles, dead body in such a situation if the disclosure memo could not be separately prepared then no objection can be taken. It does not affect the reliability or the trustworthiness of the recovery memos or the recovery. (Paras37 3996)

( D ) Evidence Act (1 of 1872) S. 27 — Recovery memo — There is no requirement of obtaining signature of independent witnesses on disclosure or recovery memo. 2001 Cri LJ 504 : 2000 AIR SCW 4398, Rel.on. (Paras40)

( E ) Evidence Act (1 of 1872) S. 27 — Recovery memos — Copies not given to accused — Recovery not vitiated.Where in a case of robbery, kidnapping and killing three innocent persons, everything happened at a fast pace, recovery of dead body, recovery of looted property and in between these events, the looted jewellery was weighed also and all this was done within 12 hours of the lodging of the FIR, in such circumstances, if I.O. could not provide copies of recovery memos to the accused then neither the recovery would be vitiated nor would it make the prosecution case doubtful. (Paras48)

( F ) Evidence Act (1 of 1872) S. 27 — Evidence of recovery — Reliability — Offence of robbery, kidnapping and murder — Discrepancy between quantity of jewellery mentioned in FIR and quantity of jewellery recovered — Same is natural rather than unusual — Since in FIR informant has mentioned approximate quantity — He could not possibility say how much was taken away — Such discrepancy is not material. (Paras49)

( G ) Evidence Act (1 of 1872) S. 27 — Evidence of recovery — Non- identification of looted articles — Effect — Articles were recovered immediately after the incident — Quantity recovered was large — Informant had claimed those article and no other person had come forward to claim jewellery — In facts and circumstances of the case, if jewellery was pawned and not identified by pawnor then neither prosecution case would weakennor recovery vitiated. (Paras52)

( H ) Indian Penal Code (45 of 1860) S. 394 , 364 and S. 300 — Offence of robbery, kidnapping and murder — Proof — Offenders used crackers to make sound instead of using fire arms to threaten inhabitants of house — Child’s mother, grandmother and elder sister were killed and house looted — Her father and his close acquaintance, well known to family, were accused — She recognised other accused as uncle in court — Large quantity of jewellery was recovered at instance of accused — In view of illustration (a) of S.114 of Evidence Act, there would be presumption of theft and receiving stolen property against him — Conviction of accused held proper. (Paras808296)

( I ) Evidence Act (1 of 1872) S. 3 — Evidence of prosecution witness — Cannot be rejected in totality merely because he has turned hostile or prosecution has chosen to treat him as hostile and cross-examined him — His evidence is neither effected nor washed off from record — It can be accepted to extent his version is found dependable. (Paras96)

( J ) Evidence Act (1 of 1872) S. 313 — Examination of accused — Violation of S.313— Trial is not vitiated unless prejudice is caused to accused. (Paras8796)