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CASE NO.:

Appeal (crl.) 1105 of 1997

PETITIONER:

Anter Singh

RESPONDENT:

State of Rajasthan

DATE OF JUDGMENT: 05/02/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

This appeal has been preferred by accused Anter Singh

(hereinafter referred to as 'the accused') who faced trial

along with 3 others for allegedly having committed homicidal

death of one Hansraj (hereinafter referred to as 'the

deceased'). While accused-appellant was charged for alleged

commission of offence punishable under Sections 302, 302

read with Section 34 of the Indian Penal Code, 1860 (in

short 'the IPC') and Section 25(1)(a) and 27 of the Arms

Act, 1959 (for short 'the Arms Act'), the other three

accused were charged for commission of offence punishable

under Sections 302 and 302 read with Section 34 IPC.

Trial Court found that the accused-appellant was guilty

of the alleged offences punishable under Section 302 IPC and

Sections 25 and 27 of the Arms Act. Life imprisonment, one

year and three years sentences respectively were imposed for

the three offences. The other accused persons were found to

be not guilty. The High Court affirmed the conviction and

sentence.

Prosecution version as unfolded during trial is as

follows:

On 11.4.1979, Ram Kumar (PW-21) found a crowd on the

ground of Government college, Ganganagar at about 6.30 a.m.

On reaching close to the spot, he found that a person was

lying dead. While returning to his shop he found a police

Constable whom he told about the dead body. The Constable

Bhagwan Singh gave information to Hari Singh ASI and being

satisfied that this was a murder, a case was registered

under Section 302 IPC. Near the dead body some empty

cartridges were found. Moulds of the footprints found nearby

and the empty cartridges were collected. During

Investigation four accused persons were arrested. The

accused appellant while in custody gave information about a

gun, which was treated to be information in terms of Section

27 of the Indian Evidence Act, 1872 (for short 'the Evidence

Act'). Search was made in the presence of accused and a

pistol was recovered. The empty cartridges and the pistol

were sent for forensic examination. During post-mortem of

the dead body of the deceased bullets were recovered which

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were also sent for such examination. On completion of

investigation, charge sheet was placed. The accused persons

pleaded innocence.

37 witnesses were examined to substantiate the

prosecution version. The Trial Court found that the evidence

was not sufficient to fasten guilt on the co-accused, while

holding appellant guilty as above noted. Appeal to the High

Court did not bring any relief.

In support of the appeal, learned senior counsel for

the appellant submitted that the fate of the case depends

upon the acceptability of evidence relating to recovery

purportedly on the basis of information given by the accused

while in custody. He pointed out that there are several

circumstances which show that the prosecution has tried to

create evidence.

In essence it is submitted that the prosecution has

failed to establish its case and has presented a fabricated

and improper case to falsely implicate the accused.

When the witnesses who are supposed to have witnessed

recovery have turned hostile, the evidence relating to

alleged recovery is of really no consequence. The alleged

recovery was made from an open space accessible and visible

to anyone passing by. It was a place which was very close

to the place where dead body was found. It is improbable

that the police official could have missed the weapon and

would wait for about 3 weeks when the purported information

was given by the accused clearly not believable.

In response, Mr. V.N. Raghupathy, learned counsel for

the State submitted that the Trial Court and the High Court

have considered the material on record and have found the

evidence to be cogent and credible. Merely because the

witnesses did not support the prosecution version so far as

the recovery is concerned, that will not affect the

credibility of the evidence tendered by PW-36.

Merely because the gun was found in the open space that

does not affect the evidence relating to recovery.

We shall first deal with the plea as to whether

evidence relating to recovery is acceptable when non-

official witnesses did not support the recovery and made

departure from the statements made during investigation. In

Modan Singh v. State of Rajsathan (1978 (4) SCC 435) it was

observed that where the evidence of the investigating

officer who recovered the material objects is convincing,

the evidence as to recovery need not be rejected on the

ground that seizure witnesses did not support the

prosecution version. Similar view was taken in Mohd. Aslam

v. State of Maharashtra (2001 (9) SCC 362). It was held

even if panch witnesses turn hostile, which happens very

often in criminal cases, the evidence of the person who

effected the recovery would not stand vitiated. But the

crucial question which needs to be considered in this case

is whether the prosecution has been able to show that the

pistol recovered was the one which was used for commission

of the offence. As rightly contended by learned counsel for

the appellant there are several circumstances which affects

credibility of the prosecution version. Firstly, the so-

called information was recorded by the IO (PW-16), and he

does not even indicate that the gun to which reference was

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allegedly made was the weapon of assault. Further the

custody of empty cartridges purported to have been recovered

from the spot has not been established. In fact, the claim

is that on 11.4.1979 empty cartridges were recovered. They

were sent to the forensic science laboratory on 12.5.1979.

It has not been explained as to where the empty cartridges

were till then lying and with whom. Similar is the situation

with the two bullets claimed to have been extracted from the

dead body by the doctor. It has been accepted by PW-36 that

the empty cartridges and the bullets were not deposited with

the ballistic expert prior to the recovery of the pistol

claimed to have been made on 29.4.1979. Significantly,

though the witnesses claimed that the moulds, chappals found

at the spot, the empty cartridges, the two bullets extracted

and the pistol were sealed before being sent to the expert

for examination and that they were sealed on the date they

were recovered, but PW-23 who claimed to have taken the

parcel to the laboratory categorically admitted that the

packets were sealed in the Kotwali in his presence on the

date he had taken for deposit with the laboratory i.e.

11.5.1979 and, in fact, the articles were deposited on

12.5.1979. Though the witness stated that different seals

were used, a bare perusal of the materials on record clearly

shows that only one seal was used. Additionally, PW-31 who

took major part in the investigation had categorically

admitted that the particular type of pistol which was

allegedly seized could not have ejected any empty cartridges

till all the six shots were fired and otherwise it could not

be possible. In Exhibits 51 and 51A i.e. the spot map and

the circumstances memo reference is made to the moulds. This

was not possible because Exhibits 51 and 51A were prepared

at about 9.30 a.m., while admittedly the moulds were taken

much after as stated by the witnesses. Significantly in

neither Exhibits 51 and 51A, reference is made to the

recovery of any empty cartridges which was supposed to have

been found near the dead body though reference was made to

the moulds which were yet to come into existence. There was

no evidence led as to when the bullets were handed over to

the police by the doctor or where they were kept and in what

condition. Though recovery from an open space may not always

render it vulnerable, it would depend upon factual situation

in a given case and the truthfulness or otherwise of such

claim. In the case at hand the recovery was made from an

open space visible from the place where the dead body was

lying and at a close proximity. It is not clear from

evidence that it was hidden in such a way so as making it

difficult to be noticed. The evidence tendered is totally

silent as to in whose custody were the bullets, empty

cartridges and the pistol. The effect of such non-

explanation was considered by this Court in Santa Singh v.

State of Punjab (AIR 1956 SC 526). The Constitution Bench,

inter alia, observed as follows:

"There is another element in the case

which creates even greater difficulty. An

empty cartridge case is alleged to have been

recovered from the place of occurrence by

the police on the 10th of September when

they went there for investigation after

receipt of the first information from Uttam

Singh (P.W. 16); so also some blood-stained

earth.

They were carefully packed and sealed

in two separate packets and dispatched to

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the Police Station. The sealed parcel of the

earth was sent to the Chemical Examiner at

Kasauli on the 11th October, 1954, and the

sealed parcel of the empty cartridge case

was sent to Dr. Goyle as late as the 27th

October, 1954.

Even if we accept the explanation given

by the Sub-Inspector of Police that the

empty cartridge case had to be kept at the

police station till the rifle used was

recovered so that both might be sent to the

expert for his opinion, nothing has been

stated why after the rifle was recovered on

the 28th September, 1954, along with 24

cartridges from the house of the accused, it

was incumbent for the Police to retain the

parcels of rifle and empty cartridge case

with them till the 11th October, 1954.

Naturally this inordinate delay raises

much suspicion and has given rise to the

suggestion on the part of the accused made

in the course of the cross-examination of

the Sub-Inspector that the empty cartridge

case ultimately sent to the expert relates

to a cartridge that was fired by them at the

Police Station and is not the one recovered

at the spot."

The scope and ambit of Section 27 of the Evidence Act

were illuminatingly stated in Pulukuri Kotayya v. Emperor

(AIR 1947 PC 67) in the following words, which have become

locus classicus:

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 information 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 stabbed A.', these

words are inadmissible since they do not

related to the discovery of the knife in the

house of the informant." (p. 77)

The aforesaid position was again highlighted in Prabhoo

v. State of Uttar Pradesh (AIR 1963 SC 1113).

Although the interpretation and scope of Section 27

has been the subject of several authoritative

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pronouncements, its application to concrete cases in the

background events proved therein is not always free from

difficulty. It will, therefore, be worthwhile at the outset,

to have a short and swift glance at Section 27 and be

reminded of its requirements. The Section says :

"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 a confession or not,

as relates distinctly to the fact thereby

discovered may be proved."

The expression "provided that" together with the phrase

"whether it amounts to a confession or not" show that the

section is in the nature of an exception to the preceding

provisions particularly Section 25 and 26. It is not

necessary in this case to consider if this Section

qualifies, to any extent, Section 24, also. It will be seen

that the first condition necessary for bringing this Section

into operation is the discovery of a fact, albeit a relevant

fact, in consequence of the information received from a

person accused of an offence. The second is that the

discovery of such fact must be deposed to. The third is that

at the time of the receipt of the information the accused

must be in police custody. 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" and 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 be

indirectly or remotely related to the fact discovered. (See

Mohammed Inayuttillah v. The State of Maharashtra (AIR 1976

SC 483).

At one time it was held that the expression "fact

discovered" in the section is restricted to a physical or

material fact which can be perceived by the senses, and that

it does not include a mental fact, now it is fairly settled

that the expression "fact discovered" includes not only the

physical object produced, but also the place from which it

is produced and the knowledge of the accused as to this, as

noted in Palukuri Kotayya's case (supra) and in Udai Bhan v.

State of Uttar Pradesh (AIR 1962 SC 1116).

The various requirements of the Section can be summed

up as follows:

(1) The fact of which evidence is sought to be given

must be relevant to the issue. It must be borne in mind

that the provision has nothing to do with question of

relevancy. The relevancy of the fact discovered must be

established according to the prescriptions relating to

relevancy of other evidence connecting it with the crime in

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order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of

some information received from the accused and not by

accused's own act.

(4) The persons giving the information must be accused

of any offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of

information received from an accused in custody must be

deposed to.

(7) Thereupon only that portion of the information

which relates distinctly or strictly to the fact discovered

can be proved. The rest is inadmissible.

As observed in Palukuri Kotayya's case (supra) it can

seldom happen that information leading to the discovery of a

fact forms the foundation of the prosecution case. It is

one link in the chain of proof and the other links must be

forged in manner allowed by law. To similar effect was the

view expressed in K. Chinnaswamy Reddy v. State of Andhra

Pradesh and Another (1962 SC 1788)

The several discrepancies and shortcomings in

evidence as noticed supra considerably corrode credibility

of the prosecution version. That being so, the inevitable

conclusion is that the prosecution has not established the

accusations against the accused-appellant beyond reasonable

doubt and consequently he is entitled to be acquitted.

Since he is on bail, the bail bonds be discharged. The

appeal is allowed.