MANOJ KUMAR SONIversusTHE STATE OF MADHYA PRADESH

                 [2023] 11 S.C.R. 246 : 2023 INSC 705



                            CASE DETAILS

                        MANOJ KUMAR SONI
                                     v.
                THE STATE OF MADHYA PRADESH
                   (Criminal Appeal No.1030 of 2023)
                            AUGUST 11, 2023
      [S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

                             HEADNOTES

      Issue for consideration : Conviction of both the appellants-accused
respectively u/s.411 and s.120-B, IPC was based largely upon disclosure
statements made by them and the co-accused, unaccompanied by supporting
evidence, if justified
     Evidence – Disclosure statements relied upon, without any
supporting evidence, to convict u/s.411 and s.120-B, IPC – If adequate:
       Held : No – Although disclosure statements hold significance as a
contributing factor in unriddling a case, they are not so strong a piece of
evidence sufficient on its own and without anything more to bring home
the charges beyond reasonable doubt – Sole connecting evidence against
both the appellants-accused (‘M’ and ‘K’) was the recovery based on their
disclosure statements, along with those of the other co-accused but this
evidence is not sufficient to qualify as “fact … discovered” within the
meaning of s.27, Evidence Act, 1872 and thus, untrustworthy – Appellants’
conviction respectively for offence punishable u/s.411 and s.120-B, IPC set
aside, acquitted. [Paras 21, 30 and 44]
      Evidence Act, 1872 – s.27 – Disclosure statements u/s.27 made by
the accused – Evidentiary value:
       Held : The provided information must be directly relevant to the
discovered fact, including details about the physical object, its place of
origin, and the accused person’s awareness of these aspects – Further, as
regards the disclosure statements of co-accused, Courts have hesitated to
place reliance solely on them and used them merely to support the conviction.
[Paras 22 and 23]
                                    246
                      MANOJ KUMAR SONI v.                                 247
                 THE STATE OF MADHYA PRADESH

      Evidence – Property seizure memos – Reliability:
      Held : Could have been a reliable piece of evidence but the seizure
witnesses turned hostile – No scope to rely on a part of their depositions –
Thus, the seizure lost credibility.[Para 26]
      Code of Criminal Procedure, 1973 – Examination u/s.313 – Duty
of Trial Courts:
       Held : Trial courts have been cautioned against recording statements
in a casual and cursory manner – Mere quantity of questions posed to the
accused is not important but rather the content and manner in which they
are framed – In the present case, irrelevant and abstract questions about the
main incident of robbery were asked to the appellant-accused ‘M’, even
though his alleged involvement occurred much later when the robbed items
were allegedly sold to him by the co-accused – Prosecution’s entire case is
premised on the disclosure statements made by the co-accused, but ‘M’ was
never given the opportunity to explain the circumstances. [Paras 31 and 32]
      Evidence Act, 1872 – s.114(a) – Presumption – Appellants were
not present at the complainant’s house during the incident and were
apprehended later when it was discovered that ‘M’ had purchased the
stolen articles and ‘K’ was involved in hatching the conspiracy:
        Held : A presumption of fact u/s.114(a) must be drawn considering
other evidence on record and without corroboration from other cogent
evidence, it must not be drawn in isolation – Trial Court convicted one of
the appellant-accused (‘M’) based on a presumption u/s.114(a) asserting
that his possession of stolen articles shortly after the theft, with knowledge
of its stolen nature, was adequate enough to hold him guilty u/s.411, IPC
– It erred in drawing such a presumption of fact without considering other
factors. [Paras 34-36]
       Penal Code, 1860 – s.120-B – Among all five accused persons, only
one of the accused-appellant (‘K’) was convicted for criminal conspiracy
u/s.120-B – Legality:
      Held : One person alone can never be held guilty of criminal
conspiracy because one cannot conspire with oneself – Conviction of ‘K’
u/s.120-B vitiated. [Paras 38 and 41]
248          SUPREME COURT REPORTS                    [2023] 11 S.C.R.


     Words and phrases – “Conspiracy” – Meaning – Discussed – Penal
Code, 1860 – s.120-A. [Para 38]

      LIST OF CITATIONS AND OTHER REFERENCES

     Haricharan Kurmi vs. State of Bihar AIR 1964 SC 1184 : [1964]
SCR 623 – followed.
       Topandas vs. State of Bombay (1955) 2 SCR 881; Shiv Kumar vs.
State of Madhya Pradesh (2022) 9 SCC 676; Sanjeet Kumar Singh vs. State
of Chhattisgarh 2022 SCC OnLine SC 1117; A Devendran vs. State of Tamil
Nadu (1997) 11 SCC 720 : [1997] 4 Suppl. SCR 591 – relied on.
      Suresh Chandra Bahri vs. State of Bihar (1995) Supp (1) SCC 80
: [1994] 1 Suppl. SCR 483; Ram Sharan Chaturvedi vs. State of Madhya
Pradesh (2022) SCC OnLine SC 1080 – referred to.
     Pulukuri Kotayya and others vs. King-Emperor 1946 SCC OnLine
PC 47; AIR 1947 PC 67; Emperor vs. Lalit Mohan Chuckerburty (1911)
ILR 38 Cal 559; The King vs. Plummer (1902) 2 KB 339; I.G. Singleton v.
King-Emperor (1924-25) 29 CWN 260 : AIR 1925 Cal 501 – referred to.

      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1030 of 2023.
     From the Judgment and Order dated 12.10.2022 of the High Court
of Madhya Pradesh, Principal Seat at Jabalpur in CRLA No.10549 of 2019.
      With
      Criminal Appeal No.1458 of 2023.
      Appearances:
      Harmeet Singh Ruprah, Amankant Mishra, Advs. for the Appellant.
      Sunny Choudhary, Adv. for the Respondent.
                      MANOJ KUMAR SONI v.                                 249
                 THE STATE OF MADHYA PRADESH


       JUDGMENT/ORDER OF THE SUPREME COURT

                               JUDGMENT
      DIPANKAR DATTA, J.
       1. These criminal appeals, by special leave, assail the common
judgment and order dated 12th October, 2022 of the High Court of Madhya
Pradesh, Bench at Jabalpur (“High Court”, hereafter) whereby Criminal
Appeal No. 10474 of 2019 and Criminal Appeal No. 10549 of 2019 [appeals
under Section 374(2) of the Criminal Procedure Code (“Cr. PC”, hereafter)]
carried by Manoj Kumar Soni (“Manoj”, hereafter) and Kallu @ Habib
(“Kallu”, hereafter), respectively, were dismissed. While Manoj assailed his
conviction for the offence punishable under Section 411 of the Indian Penal
Code, 1860 (“IPC”, hereafter) and sentence of rigorous imprisonment of
three years with a fine of Rs. 5,000.00 and a default sentence of three months,
Kallu assailed his conviction for the offence punishable under Section 120-
B, IPC and sentence of rigorous imprisonment of ten years with a fine of
Rs. 5,000.00 and a default sentence of three months.
       2. In all, five accused persons were convicted and sentenced for
different offences punishable under the IPC vide the common judgment of the
Additional Sessions Judge (“Trial Court”, hereafter) dated 28th November,
2019. The aforesaid judgment having been confirmed by the High Court, all
the accused persons preferred Special Leave Petitions (“SLPs”, hereafter)
before this Court challenging the common judgment dated 12th October,
2022. The SLPs of the three accused, namely, Suleman, Arif and Jaihind,
were dismissed and the judgment and order of the High Court affirming
their conviction and sentence left undisturbed. However, notice was issued
on the SLPs preferred by the remaining two accused, Manoj and Kallu, on
06th April, 2023 and 11th April, 2023, respectively.
       3. These two appeals were heard on different dates. However, a
common judgment being under assail, this Court proposes to dispose of
both these appeals vide this common judgment.
       4. The case of the prosecution, in a nutshell, is that a complaint was
registered by PW-18 (“complainant”, hereafter) to the effect that on 14th
April, 2010, at around 1:30 pm, while the complainant was in her house, four
persons rang the doorbell. When her servant, PW-8, answered the door, all
four persons armed with a pistol forcefully entered the house. They tied up
250          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


the hands and legs of the complainant and her servant, threatened to kill them,
and proceeded to rob the complainant of silver and gold jewellery, cash,
and other valuables by taking the keys to the locker. The accused persons
remained at the complainant’s residence till 2:30 pm before fleeing. Based
on the complaint, an F.I.R. was registered at around 4:30 pm against four
unknown persons under Section 394, IPC and all of them were subsequently
arrested.
        5. Investigation of the F.I.R. was carried out by the Investigating
Officer (“I.O.”, hereafter). The specific allegations against Manoj are that
the stolen jewellery (“articles”, hereafter) had allegedly been sold to him
and, despite being aware that the co-accused had sold him stolen goods, he
still chose to receive and possess the same dishonestly. Consequently, he
was arrested on 9th May, 2010. Thereafter, these articles were recovered
by the I.O. on two different days — 9th May, 2010 and 21st May, 2010.
While the Seizure Memo dated 9th May, 2010 bears the signature of seizure
witnesses PW-16 and PW-5, the Seizure Memo dated 21st May, 2010
bears the signature of seizure witnesses PW-11 and PW-6. The process of
identification was conducted by PW-19, the Tehsildar, on 15th July, 2010.
The specific allegations against Kallu, former driver of the complainant,
pertain to his involvement in a conspiracy with other co-accused persons.The
allegation against him is that he shared information with them, disclosing
that the complainant had a substantial amount of money and valuable
jewellery in her residence, coupled with the knowledge that she lived alone;
this, allegedly led to the subsequent planning and execution of the robbery
at the complainant’s house.
       6. Upon completion of investigation, a chargesheet was filed before
the concerned court against the accused persons including Manoj and Kallu.
The offences with which all the accused were charged are shown as under:

 Jaihind     Sections 450, 394, 397, IPC and Section 25(1-B), Arms Act,
             1959 (“Arms Act”, hereafter)
 Arif        Sections 450, 394, 397, IPC and Section 25(1-B), Arms Act
 Suleman     Sections 450, 394, 397, IPC
 Kallu       Section 120-B, IPC
 Manoj       Section 411, IPC
                  MANOJ KUMAR SONI v.               251
    THE STATE OF MADHYA PRADESH [DIPANKAR DATTA, J.]

      Upon committal, charges were framed and the accused including Manoj
and Kallu pleaded not guilty and claimed to be tried.
        7. Based on the complainant’s testimony, it is established that among
the four accused present at the scene during the incident, Suleman, Arif, and
Jaihind were duly identified by the complainant, but the fourth accused remained
unidentified. During the investigation, it was revealed that the fourth accused was
a minor and the case was subsequently referred to the juvenile court for further
proceedings. Insofar as Kallu and Manoj are concerned, they were not present
at the complainant’s house during the incident and were apprehended at a later
stage of the investigation when it was discovered that Manoj had purchased the
stolen articles, and Kallu was involved in hatching the conspiracy.
       8. After appreciating the oral and documentary evidence on record, the
Trial Court convicted and sentenced all the five accused persons as follows:
 Jaihind and    Sections 450, 397, IPC and   R.I. for 5 years with a fine of Rs 1,000
 Arif           Section 25(1-B), Arms Act    R.I. for 10 years with a fine of Rs 5,000
                                             R.I. for 1 year with a fine of Rs 1,000
                                             Default: 1 month, 3 months, and 1 month
                                             respectively
 Suleman        Sections 450, 397, IPC.      R.I. for 5 years with a fine of Rs 1,000
                                             R.I. for 10 years with a fine of Rs 5,000
                                             Default: 1 month and 3 months, respec-
                                             tively
 Kallu          Section 120-B, IPC           R.I. for 10 years with a fine of Rs 5,000
                                             Default: 3 months
 Manoj          Section 411, IPC             R.I. for 3 years with a fine of Rs 5,000
                                             Default: 3 months

        9. In convicting Manoj, the Trial Court primarily relied on two pieces of
evidence: the Seizure Memos, which were prepared upon recovery of the stolen
articles from Manoj’s possession, and the Identification Memo, in which the
complainant identified the articles stolen. The Trial Court drew presumption
under Section 114 of the Indian Evidence Act, 1872 (“Evidence Act”, hereafter),
to the extent it provides that “a man who is in possession of stolen goods soon
after the theft is either the thief or has received the goods knowing them to be
stolen unless he can account for his possession”. According to the Trial Court, the
crucial corroborative evidence in Manoj’s case was the fact that the articles found
in his possession belonged to the complainant and were accurately identified
by her. Additionally, Manoj failed to provide any explanation regarding how
252           SUPREME COURT REPORTS                           [2023] 11 S.C.R.


the stolen articles came into his possession. These collective factors resulted in
his conviction under Section 411, IPC.
        10. Insofar as Kallu is concerned, the Trial Court primarily based his
conviction for criminal conspiracy on two key factors: first, the information
provided by co-accused Jaihind during interrogation in his memorandum
statement dated 12th May, 2010, stating that he had given Rs.3,000.00 to
Kallu from the stolen money and had kept one country-made pistol along with
three cartridges at his (Kallu) house/tapra; and secondly, during interrogation,
Kallu himself in his memorandum statement admitted to keeping Rs.3,000.00
in his room’s cupboard, which was subsequently seized upon his disclosure.
Having held that Kallu had conspired with the other co-accused, the Trial Court
convicted him of criminal conspiracy punishable under Section 120-B, IPC.
        11. The aforesaid judgment having been challenged by Manoj and
Kallu, a learned Single Judge of the High Court was of the view that the
findings of the Trial Court did not warrant any interference and that the appeals
were devoid of any merit; hence, the same were dismissed. In confirming
Manoj’s conviction and sentence, the High Court relied on the finding that
most of the stolen articles were recovered from his possession and some of
them were melted by him. Considering that the articles were duly identified
by the complainant, the High Court was of the view that Manoj, knowing that
the articles were stolen property, dishonestly retained them. While affirming
the conviction and sentence of Kallu, the learned Judge referred to the fact
that the complainant was known to Kallu and he was working as her driver
and that Rs.3,000.00 was recovered from his house based on the disclosure
statement.
       SUBMISSIONS OF THE PARTIES
       12. Learned counsel appearing on behalf of Manoj submitted that the
courts below erred in recording the conviction under Section 411, IPC. The
main submissions advanced by him to have the conviction reversed are as
follows:
       a)   All four independent witnesses (PW-5, PW-6, PW-11, and
            PW-16) who were shown to be present during the seizure/
            recovery of the articles from Manoj’s house turned hostile
            and failed to support the prosecution’s case of seizure.
                 MANOJ KUMAR SONI v.               253
   THE STATE OF MADHYA PRADESH [DIPANKAR DATTA, J.]

           Surprisingly, the courts below completely ignored this aspect
           of the matter.
      b)   There were serious procedural lapses in conducting the
           identification process in respect of the articles. The prescribed
           procedure in respect of seizure of a property was not followed,
           and a procedural flaw is established from the testimonies of the
           complainant and PW 19. The recovery of the ornaments from
           the possession of Manoj does not establish them to be that of
           the complainant. Therefore, the presumption under Section 114,
           Evidence Act was erroneously drawn as the very identification
           process suffers from serious lapses.
      c)   The Trial Court recorded the statement of Manoj under Section
           313, Cr. PC in a very casual manner, as if it were completing
           a formality in law. It miserably failed to put any adverse
           circumstance appearing in the evidence against Manoj for eliciting
           his explanation. This is one other procedural lapse, and a grave
           one, which has rendered the trial vitiated qua Manoj.
      d)   Manoj has been framed in the case due to the animosity between
           him and the police as the police used to “often harass [Manoj]
           for going here and there and getting the jewellery weighed,
           identification etc.”. This statement of Manoj, given at the end of
           his examination under Section 313, Cr. PC was brushed aside by
           the courts below without assigning any reason, far less cogent
           reason.
      e)   Significant contradictions exist between the testimonies of police
           witnesses and seizure witnesses. The Trial Court predominantly
           relied on the statements of the police witnesses, overlooking
           the presence of additional testimonies of independent seizure
           witnesses available in the records, who subsequently turned
           hostile.
      13. Finally, it was submitted that there was absolutely no material to
convict Manoj under Section 411, IPC. Hence, the conviction and sentence
of Manoj ought to be set aside and consequently, the appeal be allowed.
254           SUPREME COURT REPORTS                            [2023] 11 S.C.R.


        14. Learned counsel appearing for the respondent/State submitted that
both the courts below delved deep into the materials on record and, upon
meticulous consideration of evidence, did not find any material contradiction
in the testimonies of the prosecution witnesses. The procedural flaws pointed
out by his adversary did not result in any failure of justice and, therefore, there
is no reason to interfere with the judgment and order passed by the Trial Court,
which has since been affirmed by the High Court. Supporting the conviction and
sentence of Manoj, the learned counsel urged this Court to dismiss the appeal.
       15. Learned counsel appearing on behalf of Kallu challenged the
correctness of the impugned judgment and advanced the following submissions:
       a)    No evidence was presented to substantiate the alleged conspiracy
             on the part of Kallu to commit any crime as alleged by the
             complainant. In other words, the necessary elements of the offence
             under Section 120-A, IPC, punishable under Section 120-B, IPC
             were not established.
       b)    The Trial Court convicted the other accused persons primarily relying
             on the statements and information provided by the complainant.
             However, the complainant did not make any statement or allegation
             against Kallu. His conviction was based solely on two factual
             aspects: first, that Rs.3,000.00 was recovered from him during the
             investigation based on information provided by the accused Jaihind
             and, secondly, that Kallu used to be the complainant’s driver one
             year ago. Apart from these circumstances, the prosecution failed
             to present any additional evidence to substantiate the charge under
             Section 120-B, IPC; the conviction and sentence, therefore, cannot
             sustain merely on these grounds.
       c)    Suresh Chandra Bahri vs. State of Bihar1 was placed to support
             the contention that the essential elements of an agreement between
             Kallu and the other co-accused persons to commit the offence are
             lacking, which is a necessary component to bring home the charge
             of criminal conspiracy. Additionally, Ram Sharan Chaturvedi
             vs. State of Madhya Pradesh2 was relied upon to emphasize the
             requirement for some kind of physical manifestation of agreement
1   (1995) Supp (1) SCC 80
2   (2022) SCC OnLine SC 1080
                  MANOJ KUMAR SONI v.               255
    THE STATE OF MADHYA PRADESH [DIPANKAR DATTA, J.]

             in order to establish the offence of criminal conspiracy. Topandas
             vs. State of Bombay3 was placed for supporting the contention that
             one person alone can never be held guilty of criminal conspiracy
             for the simple reason that one cannot conspire with oneself. It
             was pointed out that in the present case, Kallu is the only person
             convicted under Section 120-B, IPC, while no other accused has
             been convicted under the same provision, inviting thereby serious
             doubts about the validity of Kallu’s conviction.
       d)    The courts below have overlooked significant material
             contradictions, improvements, and omissions in the statements
             of prosecution witnesses.
       16. It was, accordingly, prayed by the learned counsel that the appeal
be allowed, and the conviction recorded and sentence imposed on Kallu be
set aside.
       17. Learned counsel appearing on behalf of the respondent/State
supported the impugned judgment and order of the High Court. It was
submitted by him that the Trial Court has carefully considered all the
materials placed on record and arrived at a just conclusion. No case for
interference having been set up by appellant Kallu, learned counsel prayed
for dismissal of the appeal.
       ANALYSIS AND FINDINGS
       18. We have considered the submissions advanced by learned counsel
for the parties and have also perused the materials on record.
      19. There can be no two opinions that the quality of evidence led
by the prosecution in the present case to nail Manoj and Kallu was wholly
untrustworthy for convicting them and the Trial Court as well as the High
Court erred in not acquitting them.
       Disclosure Statements
       20. The facts of the case reveal that all the accused persons made
disclosure statements to the I.O. whereupon recovery of money, jewellery,
etc. was effected. Although it is quite unusual that all five accused, after
being arrested, would lead the I.O. to the places for effecting recovery of

3   (1955) 2 SCR 881
256           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


the stolen articles, we do not propose to disbelieve the prosecution plea
only on this score. Manoj’s involvement was primarily based on the
disclosure statements made by co-accused Suleman and Jaihind where
they admitted to selling the stolen articles to him and a similar statement
made by Manoj himself which led to recovery under Section 27, Evidence
Act. Similarly, both the courts below, in convicting Kallu, largely relied
upon the disclosure statement made by Kallu himself as well as co-accused
Jaihind, who confessed to giving Rs.3,000.00 to Kallu from the stolen
money and storing a country-made pistol along with three cartridges at
his house/tapra.
       21. A doubt looms: can disclosure statements per se, unaccompanied
by any supporting evidence, be deemed adequate to secure a conviction?
We find it implausible. Although disclosure statements hold significance
as a contributing factor in unriddling a case, in our opinion, they are not so
strong a piece of evidence sufficient on its own and without anything more
to bring home the charges beyond reasonable doubt.
        22. The law on the evidentiary value of disclosure statements under
Section 27, Evidence Act made by the accused himself seems to be well-
established. The decision of the Privy Council in Pulukuri Kotayya and
others vs. King-Emperor4 holds the field even today wherein it was held
that the provided information must be directly relevant to the discovered
fact, including details about the physical object, its place of origin, and the
accused person’s awareness of these aspects. The Privy Council observed:
      The difficulty, however great, of proving that a fact discovered on
      information supplied by the accused is a relevant fact can afford no
      justification for reading into s. 27 something which is not there, and
      admitting in evidence a confession barred by s. 26. Except in cases in
      which the possession, or concealment, of an object constitutes the gist
      of the offence charged, it can seldom happen that information relating
      to the discovery of a fact forms the foundation of the prosecution case.
      It is only one link in the chain of proof, and the other links must be
      forged in manner allowed by law.
      23. The law on the evidentiary value of disclosure statements of co-
accused too is settled; the courts have hesitated to place reliance solely on
4   1946 SCC OnLine PC 47; AIR 1947 PC 67
                  MANOJ KUMAR SONI v.               257
    THE STATE OF MADHYA PRADESH [DIPANKAR DATTA, J.]

disclosure statements of co-accused and used them merely to support the
conviction or, as Sir Lawrence Jenkins observed in Emperor vs. Lalit Mohan
Chuckerburty5, to “lend assurance to other evidence against a co-accused”.
In Haricharan Kurmi vs. State of Bihar6,this Court, speaking through the
Constitution Bench, elaborated upon the approach to be adopted by courts
when dealing with disclosure statements:
       13. …In dealing with a criminal case where the prosecution relies
upon the confession of one accused person against another accused person,
the proper approach to adopt is to consider the other evidence against such
an accused person, and if the said evidence appears to be satisfactory and
the court is inclined to hold that the said evidence may sustain the charge
framed against the said accused person, the court turns to the confession
with a view to assure itself that the conclusion which it is inclined to draw
from the other evidence is right.
      24. In yet another case of discrediting a flawed conviction under
Section 411, IPC, this Court, in Shiv Kumar vs. State of Madhya
Pradesh7 overturned the conviction under Section 411, declined to place
undue reliance solely on the disclosure statements of the co-accused,
and held:
      24. …, the disclosure statement of one accused cannot be accepted as a
      proof of the appellant having knowledge of utensils being stolen goods.
      The prosecution has also failed to establish any basis for the appellant
      to believe that the utensils seized from him were stolen articles. The
      factum of selling utensils at a lower price cannot, by itself, lead to the
      conclusion that the appellant was aware of the theft of those articles.
      The essential ingredient of mens rea is clearly not established for the
      charge under Section 411 IPC. The prosecution’s evidence on this
      aspect, as they would speak of the character Gratiano in Merchant of
      Venice, can be appropriately described as, “you speak an infinite deal of
      nothing.” [William Shakespeare, Merchant of Venice, Act 1 Scene 1.]
      25. Coming to the case at hand, there is not a single iota of evidence
except the disclosure statements of Manoj and the co-accused, which

5   (1911) ILR 38 Cal 559, page 588
6   AIR 1964 SC 1184
7   (2022) 9 SCC 676
258             SUPREME COURT REPORTS                           [2023] 11 S.C.R.


supposedly led the I.O. to the recovery of the stolen articles from Manoj
and Rs.3,000.00 from Kallu. At this stage, we must hold that admissibility
and credibility are two distinct aspects and the latter is really a matter of
evaluation of other available evidence. The statements of police witnesses
would have been acceptable, had they supported the prosecution case, and
if any other credible evidence were brought on record. While the recoveries
made by the I.O. under Section 27, Evidence Act upon the disclosure
statements by Manoj, Kallu and the other co-accused could be held to have
led to discovery of facts and may be admissible, the same cannot be held to
be credible in view of the other evidence available on record.
       26. While property seizure memos could have been a reliable piece
of evidence in support of Manoj’s conviction, what has transpired is that
the seizure witnesses turned hostile right from the word ‘go’. The common
version of all the seizure witnesses, i.e., PWs 5, 6, 11 and 16, was that they
were made to sign the seizure memos on the insistence of the ‘daroga’ and
that too, two of them had signed at the police station. There is, thus, no
scope to rely on a part of the depositions of the said PWs 5, 6, 11 and 16.
Viewed thus, the seizure loses credibility.
         27. This Court in Sanjeet Kumar Singh vs. State of Chhattisgarh8
held:
        18. But if the Court has — (i) to completely disregard the lack of
        corroboration of the testimony of police witnesses by independent
        witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses
        turning hostile, then the story of the prosecution should be very convincing
        and the testimony of the official witnesses notably trustworthy. If
        independent witnesses come up with a story which creates a gaping hole
        in the prosecution theory, about the very search and seizure, then the case
        of the prosecution should collapse like a pack of cards. It is no doubt true
        that corroboration by independent witnesses is not always necessary. But
        once the prosecution comes up with a story that the search and seizure
        was conducted in the presence of independent witnesses and they also
        choose to examine them before Court, then the Court has to see whether
        the version of the independent witnesses who turned hostile is unbelievable
        and whether there is a possibility that they have become turncoats.

8   2022 SCC OnLine SC 1117
                  MANOJ KUMAR SONI v.               259
    THE STATE OF MADHYA PRADESH [DIPANKAR DATTA, J.]

       28. The testimony of the seizure witnesses, we are inclined to the
view, is the only thread in the present case that could tie together the loose
garland, and without it, the very seizure of stolen property stands falsified. We
cannot overlook the significance of the circumstance that all four independent
seizure witnesses (PWs 5, 6, 11, and 16), who were allegedly present during
the seizure/recovery of the stolen articles from Manoj’s house, having turned
hostile and not support the prosecution case, the standalone evidence of the I.O.
on seizure cannot be deemed either conclusive or convincing; the recoveries
made by him under Section 27, Evidence Act must, therefore, be rejected.
       29. The material inconsistency in Kallu’s case is the contradiction in
the depositions of the I.O. and the complainant. The I.O. deposed that he,
upon the disclosure by co-accused Jaihind, successfully recovered a sum of
Rs. 3,000.00 (comprised of three one-thousand-rupee notes), seized the same
in the presence of witnesses, and prepared a seizure panchnama; however,
when one looks at the complainant’s version, it is wholly inconsistent. She
stated in her deposition that the accused persons did not take away any one-
thousand-rupee note from her house. It does not escape our attention that the
conviction of Kallu entirely hinges on the alleged recovery of Rs. 3,000.00
and both the courts below heavily relied on this aspect to convict him of
criminal conspiracy. However, it does not appear from a perusal of the Trial
Court’s judgment as to who exactly the seizure witnesses were in whose
presence Rs. 3,000.00 was recovered although it does seem that none of the
several prosecution witnesses, who were witnesses of arrest and seizure, had
supported the prosecution case. Although there could be evidence aliunde
to establish the guilt of the co-accused Jaihind, Arif and Suleman, there was
absolutely no evidence worthy of consideration which could have been relied
on to convict Manoj and Kallu.
       30. It is clear as crystal that the sole connecting evidence against Manoj
and Kallu was the recovery based on their disclosure statements, along with
those of the other co-accused but this evidence, in our opinion, is not sufficient
to qualify as “fact … discovered” within the meaning of Section 27. Having
regard to such nature of evidence, we view the same as wholly untrustworthy.
       Statements under Section 313, Cr.PC
     31. Another glaring flaw in Manoj’s case revolves around his
examination under Section 313, Cr.PC. The manner in which the Trial Court
260           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


framed questions for answer by Manoj left a lot to be desired. We need not
reiterate the exposition of law by this Court in multiple decisions on Section
313, Cr.PC, wherein trial courts have been cautioned against recording
statements in a casual and cursory manner. What holds importance is not
the mere quantity of questions posed to the accused but rather the content
and manner in which they are framed.
      32. Upon reading the questions put to Manoj under Section 313,
Cr.PC, it becomes evident that the Trial Court treated this process as an
empty formality. None of the material circumstances forming the basis of
his conviction were put to him. Astonishingly, not even a single question
regarding the stolen articles was posed to him. Instead, irrelevant and abstract
questions about the main incident of robbery that took place on 14th April,
2010 were asked, even though his alleged involvement occurred much later
when the robbed items were allegedly sold to him by the co-accused. The
prosecution’s entire case is premised on the disclosure statements made by
the co-accused, but Manoj was never given the opportunity to explain the
circumstances.
      Conviction of Manoj under Section 411, IPC
      33. Manoj has been convicted under Section 411, IPC which is
reproduced below:
      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.
        34. The Trial Court convicted Manoj based on a presumption under
Section 114(a), Evidence Act, asserting that his possession of stolen articles
shortly after the theft, with knowledge of its stolen nature, was adequate
enough to hold him guilty under Section 411, IPC. As a result, he was held
liable for the offence under the said provision. Illustration (a) of Section 114,
Evidence Act has been noted above but the entire provision reads as follows:
      “114. Court may presume existence of certain facts. —The Court
      may presume the existence of any fact which it thinks likely to have
      happened, regard being had to the common course of natural events,
      human conduct and public and private business, in their relation to
      the facts of the particular case. The Court may presume— (a) That a
                  MANOJ KUMAR SONI v.               261
    THE STATE OF MADHYA PRADESH [DIPANKAR DATTA, J.]

      man who is in possession of stolen goods soon after the theft is either
      the thief or has received the goods knowing them to be stolen, unless
      he can account for his possession.
       ***”
      35. The Trial Court erred in drawing such a presumption of fact
without considering other factors. What could be those factors has been
explained by this Court in A Devendran vs. State of Tamil Nadu9 in the
following words:
      20. … Whether a presumption under Section 114, Illustration (a) of
      the Evidence Act should be drawn in a given situation is a matter
      which depends on the evidence and the circumstances of the cases.
      The nature of the stolen articles, the nature of its identification by the
      owner, the place and the circumstances of its recovery, the intervening
      period between the date of occurrence and the date of recovery, the
      explanation of the persons concerned from whom the recovery is made
      are all factors which are to be taken into consideration in arriving at
      a decision.
       36. A presumption of fact under Section 114(a), Evidence Act must
be drawn considering other evidence on record and without corroboration
from other cogent evidence, it must not be drawn in isolation. The present
case serves as a perfect example of why such a presumption should have
been avoided by the Trial Court. Manoj’s conviction, solely relying on the
disclosure statements made by himself and the other co-accused, does not
suffice to warrant a presumption under Section 411, IPC. It would not be
unreasonable to presume that a goldsmith, who has to deal in ornaments
and jewelleries on a day-to-day basis, would obviously be in possession of
a significant quantity of ornaments at his shop. Given the circumstances,
such a presumption drawn under Section 114(a) stands vitiated.
       37. At this juncture, even if we assume the veracity of the claim that
the items sold to Manoj were indeed stolen articles, it would not be sufficient
to attract Section 411, IPC; what was further necessary to be proved is
continued retention of such articles with a dishonest intent and knowledge
or belief that the items were stolen. No evidence worthy of consideration
was adduced by the prosecution to prove that Manoj had retained the articles
9   (1997) 11 SCC 720
262           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


either with dishonest intent and with knowledge or belief of the same being
stolen property.
       Conviction of Kallu under Section 120-B, IPC
        38. It is intriguing that among all five accused persons, only Kallu
has been convicted for criminal conspiracy under Section 120-B, IPC. At
this stage, we cannot help but wonder: can a single individual conspire with
oneself? We cannot but disagree. It logically follows that one person alone
can never be held guilty of criminal conspiracy because one cannot conspire
with oneself. As per Black’s Law Dictionary (8th Edn), ‘conspiracy’ is an
“agreement by two or more persons to commit an unlawful act, coupled
with an intent to achieve the agreement’s objective, and action or conduct
that furthers the agreement”. The wordings of Section 120-A, IPC make
it abundantly clear—the offence of criminal conspiracy is committed only
when two or more persons agree to do or cause to be done an illegal act or
legal act by illegal means. The position in English law too is well-settled. In
The King vs. Plummer10, the King’s Bench, speaking through Lord Justice
Bruce, held:
      It logically follows from the nature of the offence of conspiracy that,
      where two or more persons are charged in the same indictment with
      conspiracy with one another, and the indictment contains no charge of
      their conspiring with other persons not named in the indictment, then,
      if all but one of the persons named in the indictment are acquitted, no
      valid judgment can be passed upon the one remaining person. (page
      343)
       39. In I.G. Singleton v. King-Emperor11, the Calcutta High Court
further clarified the law related to criminal conspiracy:
      The rule of English law that is now well settled is that where two
      persons are indicted for conspiring together and they are tried together,
      both must be acquitted, or both convicted. (page 265)
     40. The decision of this Court in Topandas (supra) affirmed the
aforesaid position and held:
      14. … on the charge as it was framed against the Accused 1, 2, 3 and
      4 in this case, the Accused 1 could not be convicted of the offence
10 (1902) 2 KB 339
11 (1924-25) 29 CWN 260: AIR 1925 Cal 501
                  MANOJ KUMAR SONI v.               263
    THE STATE OF MADHYA PRADESH [DIPANKAR DATTA, J.]

      under Section 120-B of the Indian Penal Code when his alleged co-
      conspirators Accused 2, 3 and 4 were acquitted of that offence.
       41. Having regard to the position of law as aforesaid, the conviction
of Kallu under Section 120-B, IPC stands completely vitiated because of
the simple reason that one cannot alone conspire. There is no evidence to
even remotely suggest that there existed any agreement between Kallu and
the co-accused while none of the others, except Kallu, has been convicted
for criminal conspiracy.
       CONCLUSION
       42. What could have more aptly summarise the entire prosecution
case, especially the flawed investigation in the matter at hand, than the
words of Daniel J. Boorstin, the American historian: “The greatest obstacle
to true discovery is not ignorance, but rather the illusion of knowledge”.
      43. Against this background, to say that the convictions of Manoj
and Kallu can still sustain, appears far-fetched; their convictions cannot
be justified solely on the basis of illusory knowledge regarding their
involvement in the crime.
       44. For all the foregoing reasons, Manoj and Kallu are acquitted and
set free. Consequently, conviction of Manoj and Kallu as recorded by the
Trial Court and the sentence imposed upon them, since affirmed by the High
Court, stand set aside. Manoj and Kallu are still behind bars. They shall be
immediately released from custody, if not wanted in any other case.
       45. The appeals are, accordingly, allowed. No costs.

Headnotes prepared by:                                        Appeals allowed.
Divya Pandey