1

AFR

Reserved on :24.04.2019

Delivered on :24.10.2019

Court No. - 34

Case :- JAIL APPEAL No. - 7304 of 2017

Appellant :- Raju Lahri @ Satnami

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Santosh Kumar Yadav

Counsel for Respondent :- G.A.

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. Accused-appellant stood for trial in Sessions Trial No. 13 of 2011

(State v. Raju Lahri & Satnami, Case Crime No. 438 of 2010), under

Section 302, Police Station Sector-39, NOIDA, Gautam Budha Nagar,

pending in the Court of Additional Sessions Judge / Special Judge, SC/ST

Court, NOIDA, Gautam Budh Nagar and came to be convicted by the said

Court vide judgment and order dated 01.06.2017 and 03.06.2017,

sentencing him under Section 302 IPC to undergo imprisonment for life

and fine of Rs. 5,000/-. Appellant sought interference of this Court by

filing this Jail Appeal from Jail through Jail Superintendent concerned.

2.Prosecution story, in brief, as emerged from First Information

Report (hereinafter referred to as 'FIR') and factual matrix of the case is

that PW-1, Jai Chand, submitted a written report, Ex. Ka-1, in the Police

Station Sector 39, NOIDA, Gautam Budh Nagar stating that near

Gurukripa Block, Sector 127, some labours of Chattisgarh were residing

in hut. Out of whom, one family of Sita Ram was also residing there. His

son, Raju accused-appellant, and his concubine wife Smt. Saraswati

victim were also residing in a separate hut. There was some quarrel /

dispute between them everyday. On the fateful day i.e. 11.07.2010 at

about 11:00, in the night, both had taken meal and were present in the

hut. When both involved in some domestic issue, accused-appellant, Raju,

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attacked victim Smt. Saraswati with Hammer and Sickle (darati) with

intention to kill her causing serious injuries on the head of victim. On

hearing noise, neighbours gathered and tried to capture accused-appellant

but he ran away from the spot. People around the seen had witnessed the

incident well. Victim died on spot and her body is lying in hut.

3.On the basis of written report Ex.Ka-1, chick FIR, Ex.Ka-8 was

registered by Constable Balram Singh, as Case Crime No. 438 of 2010

under Section 302 IPC against the accused-appellant. Entry of case was

made by PW-5 as HC Satpal Singh in General Diary; copy whereof is Ex.

Ka-9.

4.On the direction of PW-10, PW-3 SI Kasmir Singh, held inquest

over the dead body of Smt. Saraswati and prepared inquest report Ex. Ka-

2 and other relevant papers relating thereto.

5.PW-4, Dr. Naresh Raj, conducted autopsy over dead body of Smt.

Saraswati, aged about 35 years, wife of Raju and prepared postmortem

report Ex. Ka-7, expressing his opinion that death was possible half to one

day prior to postmortem due to coma on account of ante-mortem head

injury. Doctor found following ante-mortem injuries on the body of

deceased, which read as under :-

i.Incised wound 2.5cm x 0.3cm x bone deep just

above the inner end of left eyebrow.

ii.Incised wound 3cm x 0.3cm x bone deep 1.5cm

above the inner end of right eyebrow.

iii.Lacerated wound 2cm x 3cm x bone deep on the

upper part of the back of the head.

iv.Lacerated wound 3cm x 1.5cm x bone deep on the

lower part of the back of the head.

v.Lacerated wound 3.5cm x 2cm x bone deep just

behind the left ear.

vi.Contusion 3cm x 4cm just below left knee.

6.PW-10, Inspector Ram Ji Lal Bharti, undertook investigation,

visited spot, prepared side plan Ex.Ka-19, recorded statement of

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Informant, collected blood stained and simple earth, prepared memo

thereof Ex.Ka-10.

7.PW-8 Inspector Rakesh Singh, after transfer of earlier Investigating

Officer, undertook investigation in his hand, arrested accused, recorded

disclosure statement and on the pointing out of accused-appellant,

recovered Hammer and one Darati allegedly used in the commission of

offence from beneath of bushes, and, completing entire remaining

formalities of investigation, submitted charge sheet Ex.Ka-14 against the

accused under Section 302 I.P.C. before Chief Judicial Magistrate

concerned.

8. Case, being exclusively trial by Court of Sessions, was committed to

Sessions Judge, wherefrom, it was transferred to Additional Sessions

Judge / Special Judge, SC/ST Court, NOIDA, Gautam Budh Nagar for

disposal in accordance with law.

9.Trial Court framed charge on 01.02.2011 against accused-appellant

under Section 302 IPC, which reads as under :-

“vkjksi

eSa ohj uk;d flag r`rh; vij ftyk ,oa l= U;k;k/kh'k

xkSrecq)uxj vki vfHk;qDr jktw dks fuEu vkjksi ls vkjksfir djrk

gwW&

;g fd fnukad & 10-07-2010 dks le; & 23%00 cts] LFkku&

>qXxh >ksiMh lSDVj 127 pkSdh {ks= vks[kyk vUrxZr Fkkuk& lS0 39

uks,Mk xkSrecq)uxj esa izkFkhZ @oknh t;pUnz ds cuk;suqlkj vki

vfHk;qDr us viuh j[kSy iRuh ljLorh ij gFkkSMk o njkSrh geyk dj

fn;k] ftlls ljLorh dks xEHkhj pksVsa vk;h vkSj mldh e`R;q gks xbZA

bl izdkj vkius mldh gR;k dkfjr dhA vkidk ;g d`R; /kkjk&

302 Hkkjrh; n.M lafgrk ds vUrxZr n.Muh; gS vkSj bl U;k;ky; ds

izlaKku esa gSA

,n~n}kjk vki vfHk;qDr dks funsZf'kr fd;k tkrk gS fd mijksDr

vkjksi dk ijh{k.k bl U;k;ky; }kjk dj fn;k tk;sxkA

“I, Vir Nayak Singh, III Additional District and

Sessions Judge, Gautam Buddh Nagar, charge you i.e.

accused Raju with following charge :-

That, on 10.07.2010 at time 23.00 Hrs, at Jhuggi

Jhopadi Sector 127 Chowki Area Okhala under Se. 39

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Noida, Gautam Buddh Nagar, as per the statement of

applicant / complainant Jaychandra, you – the accused

assaulted your keep wife Saraswati with hammer and

sickle, due to which Saraswati sustained grievous

injuries and died. In this manner, you committed her

murder. This act of yours is punishable under Section

302 of Indian Penal Code and within the cognizance of

this Court.

You- the accused are hereby directed that the

aforementioned charge shall be tried by this Court.”

(English Translation by Court)

10. Accused-appellant pleaded not guilty and claimed trial.

11. In order to substantiate its case, prosecution examined as many as

ten witnesses in the following manner :-

Sr. No.Name of PWs Nature of witnessPaper proved

1Jai Chand Fact Ex. Ka-1 and 2

2Parvati Facts ------

3Kashmir Singh, SI Formal Ex.Ka-2, 3, 4, 5

and 6

4Dr. Naresh Raj Formal Ex.Ka-7

5Satpal Singh Formal Ex.Ka-8 and 9

6Balram Fact Ex.Ka-2, 10 and 11

7Gopal Singh Fact Ex.Ka-10 and 11

8Rakesh Kumar Singh Formal Ex.Ka-13 and 14

9R.S. Gautam Formal Ex.Ka-17, 18 and

19

10Ram Ji Lal Bharti-IO Formal Ex.Ka-19

12.In the statement under Section 313 recorded by Trial Court, accused

-appellant denied prosecution story in toto; entire story is said to be

wrong; claimed false implication but did not choose to lead any defence

evidence.

13.Ultimately, case came to be heard and decided by Additional

Sessions Judge / Special Judge, SC/ST Court, NOIDA, Gautam Budh

Nagar, who after hearing learned counsel for parties and analysing entire

evidence (oral and documentary) led by prosecution, found accused

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guilty, convicted and sentenced, as stated above.

14.Sri Santosh Kumar Yadav, learned Amicus Curiae for appellant

assailed order of conviction and sentence advancing following

submissions :-

i.PW-1 admittedly is not an eyewitness. he is only Informant of

the incident.

ii.PW-2 did not support the prosecution story and turned hostile,

therefore, no conviction can be based.

iii.Alleged eye-witness have not been produced from the side of

prosecution.

iv.There is no motive of incident to accused-appellant to commit

murder of his wife. Link of circumstantial evidence is not

complete.

v.There are several contradictions in the statements of witnesses,

which may render prosecution doubtful.

vi.Prosecution has failed to establish its case beyond reasonable

doubt against accused-appellant and he is entitled to benefit of

doubt.

vii.Discloser statement before police is not admissible in evidence.

Alleged recovery of Hammer and Sickle (Darati) is not

supported by public witnesses.

15. Learned AGA vehemently opposed submissions made by learned

Amicus Curiae and submitted that accused is named in FIR; incident took

place in the hut and dead body was found in the house of accused-

appellant; accused-appellant has not submitted any proper explanation,

therefore, perception under Section 106 Indian Evidence Act goes against

him; blood stained Hammer and Sickle (Darati) allegedly used in the

incident have been recovered at the pointing out of accused by Police; as

per report of F.S.L., blood ws found on Hammer and Daranti and appeal is

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liable to be dismissed.

16.Although time, date and place of death of victim and manner of

injuries found on the body of deceased could not be disputed from the

side of accused-appellant but according to learned counsel for accused-

appellant, he is not responsible for committing murder of his wife

Saraswati. Even otherwise, time, date, place and death of Smt. Saraswati

stands established from the evidence of PW-1, PW-2 and PW-3 as well as

statement under Section 313 of accused-appellant.

17.Thus the only question remains for consideration of this Court is

“whether accused-appellant has committed murder of Smt. Saraswati and

Trial Court rightly convicted him or not?”

18.Now, we may proceed to consider briefly the evidence led by

prosecution and some important decision on this points.

19.General depositions of witnesses goes to show that PW-1 is not eye-

witness; no eye-witness has been produced by prosecution in support of

its case; PW-2 did not support prosecution case and turned hostile; PW-5,

Constable Satyapal Singh, is only scribe of G.D. Ex.Ka-9; PW-6, Balram,

is a witness of Fard Ex.Ka-10 which is of blood stained and simple earth

and witness of inquest Ex.Ka-2; and PW-7, Gopal Singh, is a witness of

Fard of blood stained and simple earth who proved memos thereof. Thus

here is a case founded on circumstantial evidence.

20.PW-1 deposed that on 10.07.2010 at about 11:00 pm, in the night,

Raju and his wife were present in his hut. He suspected character of Smt.

Saraswati and attacked her with Hammer and Daranti with intention to

kill her due to which she received serious injuries in the head; on hearing

noise persons arrived at spot and tried to apprehend him but he made good

escape; PW-1 was informed by labourers on telephone whereupon he

went to the spot and saw dead body of Saraswati lying in the hut; Police

came to spot and held inquest over dead body of Saraswati before him and

got signature on inquest report; and witnesses proved inquest report as

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Ex.Ka-2. In cross-examination he stated that information of incident was

intimated to him by his clerk (Muneem) on telephone whereupon he

arrived at spot and saw body lying in the earth in hut. From the statement

of this witness, it appears that he is not an eye witness but proved that

Saraswati was murdered in the house of accused appellant and her body

was lying there.

21.PW-2, Smt. Parvati, did not support prosecution case and turned

hostile. She deposed that victim Saraswati was a married lady and

remained 15-20 days with her son (accused-appellant); her son lived

separately; on the day of incident, she was sleeping in her hut which is far

away from the hut of her son; when police called her, she arrived at hut of

accused-appellant and saw one dead body was lying; and she did not

know that dead body was of Saraswati; witness was declared hostile and

cross-examined by prosecution in which she admitted accused-appellant

to be her son. Therefore, it appears that she was trying to save her son.

22.PW-3, SI Kashmir Singh, deposed that due to dark in the night,

inquest could not be conducted. In the next morning at about 7:00 pm, he

held inquest over dead body of Smt. Saraswati before witness and

prepared inquest report and sent dead body for postmortem.

23.PW-6, Balram, deposed that on receiving information about death of

Saraswati, he reached on the spot. Police collected simple blood stained

earth from spot before him; and he did his signature on memo Ex.Ka-10.

Witness also proved inquest report.

24.PW-7 Gopal Singh proved memo of blood stained and simple earth

and one lamp which was enlightened in the hut in the night of incident.

25.Both these witness are not witnesses of fact but they proved the

place of incident and inquest report of victim. From the statement of

above witnesses, it stands proved that in the fateful night, accused and

victim were in the hut and victim was assassinated and her dead body was

found in hut.

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26.In the statement under Section 313 Cr.P.C. accused-appellant

himself admitted that he was present with victim in the hut on the fateful

night and he assaulted her with hammer for the reasons that victim

developed illicit relation ship one Bihari, who used to sell vegetables and

did not cook food daily for him.

27.Admittedly, the case of prosecution rests upon circumstantial

evidence. There is no eye witness of the incident. None has come forward

to prove that accused-appellant killed his wife. PW-10 arrested accused,

recorded his disclosure statement and recovered Hammer and Darati with

blood, on the pointing out of accused-appellant, from beneath the bushes.

F.S.L. report dated 18.06.2011 reveals that recovered article Hammer and

Darati contained spots of blood.

28.In a case, which rests on circumstantial evidence, law postulates

twin requirements to be satisfied. First, every link in chain of

circumstances, necessary to establish the guilt of accused, must be

established by prosecution beyond reasonable doubt; and second, all

circumstances must be consistent only with guilt of accused.

29.In the case in hand there is no eye witness of occurrence. Case of

prosecution rests on circumstantial evidence. There cannot be any dispute

as to the well settled proposition that the circumstances from which the

conclusion of guilt is to be drawn must or “should be” and not merely

“may be” fully established. The facts so established should be consistent

only with the guilt of the accused, that is to say, they should not be

explicable through any other hypothesis except that the accused was

guilty. Moreover, the circumstances should be conclusive in nature. There

must be a chain of evidence so complete so as to not leave any reasonable

ground for a conclusion consistent with the innocence of the accused, and

must show that in all human probability, the offence was committed by

the accused.

30. In Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR

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1952 SC 343, a basic judgment of Supreme Court on appreciation of

evidence, when a case depends only on circumstantial evidence, where

Court said:

"... circumstances should be of a conclusive nature

and tendency and they should be such as to exclude

every hypothesis but the one proposed to be proved......

it must be such as to show that within all human

probability the act must have been done by the

accused."

31.In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court

said, where a case rests clearly on circumstantial evidence, inference of

guilt can be justified only when all the incriminating facts and

circumstances are found to be incompatible with innocence of accused or

guilt of any other person.

32.In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984

SC 1622, Court, while dealing with a case based on circumstantial

evidence, held that onus is on prosecution to prove that chain is complete.

Infirmity or lacuna, in prosecution, cannot be cured by false defence or

plea. Conditions precedent before conviction, based on circumstantial

evidence, must be fully established. Court described following condition

precedent :-

(1) the circumstances from which the conclusion of

guilt is to be drawn should be fully established. The

circumstances concerned 'must or should' and not

'may be' established.

(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

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show that in all human probability the act must have

been done by the accused. (emphasis added)

33.In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR

1989 SC 1890, Court said:

"...when a case rests upon circumstantial evidence such

evidence must satisfy the following tests :-

(1) the circumstances from which an inference of guilt is

sought to be drawn, must be cogently and firmly

established;

(2) those circumstances should be of a definite tendency

unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively; should form a

chain so complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the accused and none else; and,

(5) the circumstantial evidence in order to sustain

conviction must be complete and incapable of

explanation of any other hypothesis than that of the guilt

of the accused and such evidence should not only be

consistent with the guilt of the accused but should be

inconsistent with his innocence."

(emphasis added)

34.In C. Chenga Reddy and Others v. State of Andhra Pradesh,

1996(10) SCC 193, Court said:

"In a case based on circumstantial evidence, the settled

law is that the circumstances from which the

conclusion of guilt is drawn should be fully proved and

such circumstances must be conclusive in nature.

Moreover, all the circumstances should be complete and

there should be no gap left in the chain of evidence.

Further, the proved circumstances must be consistent

only with the hypothesis of the guilt of the accused and

totally inconsistent with his innocence."

(emphasis added)

35.In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir,

2002(8) SCC 45 Court said :

"(1) the facts alleged as the basis of any legal inference

must be clearly proved and beyond reasonable doubt

connected with the factum probandum;

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(2) the burden of proof is always on the party who

asserts the existence of any fact, which infers legal

accountability;

(3) in all cases, whether of direct or circumstantial

evidence the best evidence must be adduced which the

nature of the case admits;

(4) in order to justify the inference of guilt, the

inculpatory facts must be incompatible with the

innocence of the accused and incapable of explanation,

upon any other reasonable hypothesis than that of his

guilt

(5) if there be any reasonable doubt of the guilt of the

accused, he is entitled as of right to be acquitted."

(emphasis added)

36.The above principle in respect of circumstantial evidence has been

reiterated in subsequent authorities also in Shivu and Another v.

Registrar General High Court of Karnataka and Another, 2007(4)

SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178.

37.In State of Punjab versus Karnail Singh, (2003)11 SCC 27, Court

observed that law does not enjoin duty on prosecution to lead evidence of

such character which is almost impossible to be led or at any rate

extremely difficult to be led. The duty on prosecution is to lead such

evidence which it is capable of leading.

38.It is a case where an offence has taken place inside the privacy of

the house, in the circumstances where accused has all opportunity to plan

and commit offence at the time and in circumstances of his choice. Thus it

will be extremely difficult for prosecution to lead evidence to establish

guilt of accused if strict compliance of circumstantial evidence as noticed

above, is insisted upon by Court.

39.Here it is necessary to keep in mind Section 106 of Indian Evidence

Act, 1872 (hereinafter referred to as 'Act, 1872') which says when any fact

is especially within the knowledge of any person the burden of proving

that fact is upon him.

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40.Accused was present in the hut with victim in the fateful night as

proved by prosecution witnesses. Later on he disappeared after crime.

Dead body of Saraswati was found by PW-3 in the hut, who prepared

inquest report. Hence it was only accused who could explain

circumstances in which Saraswati died. Burden of Section 106 of Act,

1872 lay upon accused who has failed to discharge.

41.In Trimukh Maroti Kirkan v. State of Maharashtra, 2006

(10)SCC 681. Court has held that where an accused is alleged to have

committed murder of his wife and prosecution succeeds in leading

evidence to show that shortly before the commission of crime they were

seen together or the offence has taken place in the dwelling home where

husband also normally resided, if accused does not offer any explanation

how wife received injuries or offers an explanation which is found to be

false, it is a strong circumstances which indicates that he is responsible for

commission of the crime.

42.In Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077, it

was observed that the fact that the accused alone was with his wife in the

house when she was murdered there with 'khokhri' and the fact that the

relations of the accused with her were strained would, in the absence of

any cogent explanation by him, point to his guilt.

43.In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 the

appellant was prosecuted for the murder of his wife which took place

inside his house. It was observed that when death had occurred in his

custody, appellant is under an obligation to give a plausible explanation

for the cause of her death in his statement under Section 313 Cr.P.C. The

mere denial of prosecution case coupled with absence of any explanation

were held to be inconsistent with the innocence of accused, but consistent

with the hypothesis that the appellant is a prime accused in the

commission of murder of his wife.

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44.So far as the argument regrading motive is concerned, we are not

impressed with the argument made by learned counsel for the accused-

appellant for the reasons that in statement under Section 313 Cr.P.C.

accused himself admitted that victim had an illicit relationship with one

Bihari and did not provide food to him therefore, he assaulted her with

hammer.

45.In so far as discrepancies, variation and contradiction in the

prosecution case are concerned, we have analysed entire evidence in

consonance with the submissions raised by learned counsel's and find that

the same do not go to the root of the case.

46.In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4

SCC 124, Court has held that minor contradictions are bound to appear in

the statements of truthful witnesses as memory sometimes plays false and

sense of observation differs from person to person.

47.We lest not forget that no prosecution case is foolproof and the same

is bound to suffer from some lacuna or the other. It is only when such

lacunae are on material aspects going to the root of the matter, it may have

bearing on the outcome of the case, else such shortcomings are to be

ignored. Reference may be made to a recent decision of the Apex Court (3

Judges) in Smt. Shamim v. State (GNCT of Delhi), 2018 (10) SCC 509.

48.Learned counsel for the appellant contended that statement of

accused appellant claimed to have been made to I.O. is not admissible in

evidence, therefore, same cannot be treated to be an admission. We have

no objection in accepting the said contention. In fact while considering

evidence, we have not taken into account this statement and neither it has

been treated as evidence of admission nor admissible in evidence, but

under Section 27 such part of statement which results in recovery of

certain material on the pointing out by accused while in custody of Police,

is admissible in evidence and to that extent, statement of appellant which

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has been treated to be his information on the basis whereof Hammer and

Darati were recovered by Police is admissible under Section 27. We have

taken only this fact as an evidence and part of the chain of evidence to

reach the conclusion of guilt against the appellant.

49.Section 27 of Act, 1872 provides for how much of information

received from accused who is in custody of police may be proved. It reads

as under :

“27. 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 a confession or not, as relates distinctly to the

fact thereby discovered, may be proved.”

50. Aforesaid provision is by way of proviso to Sections 25 and 26 of

Act, 1872. An statement even by way of confession made in police

custody which distinctly relates to the fact discovered is admissible in

evidence against the accused.

51. In Delhi Administration v. Bal Krishan and Ors., 1972(4) SCC

659, Court said that Section 27 permits proof of so much of information

which is given by persons accused of an offence when in custody of a

Police Officer as relates distinctly to the fact thereby discovered,

irrespective of whether such information amounts to a confession or not.

Sections 25 and 26 of Act, 1872 provides that no confession made to a

Police Officer whether in custody or not can be proved as against the

accused. Section 27, therefore, is proviso to above Sections and statement

even by way of confession, which distinctly relates to the fact discovered

is admissible as evidence against accused in the circumstances stated in

Section 27.

52. In Mohmed Inayatullah v. The State of Maharashtra, 1976(1)

SCC 828, Court observed that though interpretation and scope of Section

27 has been subject of consideration in several authoritative

15

pronouncement but its application to concrete cases is not always free

from difficulty. In order to make its application swift and convenient

Court considered the provision again and said:

“12. The expression "Provided that" together with the

phrase "whether it amounts to a confession or not" shows

that the section is in the nature of an exception to the

preceding provisions particularly Sections 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

in to 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" 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.”

53.Idea behind Section 27 has been explained by Court in para 20 of

judgment in Bodh Raj @ Bodha and Ors. v. State of Jammu and

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Kashmir (supra) as under:

“20.If all that is required to lift the ban be the inclusion

in the confession information relating to an object

subsequently produced, it seems reasonable to suppose

that the persuasive powers of the police will prove equal

to the occasion, and that in practice the ban will lose its

effect. The object of the provision i.e. Section 27 was to

provide for the admission of evidence which but for the

existence of the section could not in consequence of the

preceding sections, be admitted in evidence. It would

appear that under Section 27 as it stands in order to

render the evidence leading to discovery of any fact

admissible, the information must come from any

accused in custody of the police. The requirement of

police custody is productive of extremely anomalous

results and may lead to the exclusion of much valuable

evidence in cases where a person, who is subsequently

taken into custody and becomes an accused, after

committing a crime meets a police officer or voluntarily

goes to him or to the police station and states the

circumstances of the crime which lead to the discovery of

the dead body, weapon or any other material fact, in

consequence of the information thus received from him.

This information which is otherwise admissible becomes

inadmissible under Section 27 if the information did not

come from a person in the custody of a police officer or

did come from a person not in the custody of a police

officer. The statement which is admissible under

Section 27 is the one which is the information leading

to discovery. Thus, what is admissible being the

information, the same has to be proved and not the

opinion formed on it by the police officer. In other words,

the exact information given by the accused while in

custody which led to recovery of the articles has to be

proved. It is, therefore, necessary for the benefit of both

the accused and prosecution that information given

should be recorded and proved and if not so recorded,

the exact information must be adduced through

evidence. The basic idea embedded in Section 27 of the

Evidence Act is the doctrine of confirmation by

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subsequent events. The doctrine is founded on the

principle that if any fact is discovered as a search made

on the strength of any information obtained from a

prisoner, such a discovery is a guarantee that the

information supplied by the prisoner is true. The

information might be confessional or non-exculpatory in

nature but if it results in discovery of a fact, it becomes a

reliable information. It is now well settled that recovery

of an object is not discovery of fact envisaged in the

section. Decision of Privy Council in Palukuri Kotayya

v. Emperor AIR 1947 PC 67 is the most quoted authority

for supporting the interpretation that the "fact

discovered" envisaged in the section embraces the

place from which the object was produced, the

knowledge of the accused as to it, but the information

given must relate distinctly to that effect. (see State of

Maharashtra v. Danu Gopinath Shirde and Ors. 2000

CriLJ 2301). No doubt, the information permitted to be

admitted in evidence is confined to that portion of the

information which "distinctly relates to the fact thereby

discovered". But the information to get admissibility

need not be so truncated as to make it insensible or

incomprehensible. The extent of information admitted

should be consistent with understandability. Mere

statement that the accused led the police and the

witnesses to the place where he had concealed the

articles is not indicative of the information given.”

(Emphasis Added)

54.Similar issue has been considered recently in Raju Manjhi v. State

of Bihar, AIR 2018 SC 3592. Therein Court held that Act, 1872 provides

that even when an accused being in the custody of police makes a

statement that reveals some information leading to the recovery of

incriminating material or discovery of any fact concerning to the alleged

offence, such statement can be proved against him. Court held that

recoveries of used polythene pouches of wine, money, clothes, chains and

bangle were all made at the disclosure by the accused which corroborates

his confessional statement and proves his guilt and such confessional

18

statement stands and satisfies the test of Section 27 of Act, 1872.

55. In the present case, it is fully established that Saraswati was found

dead in the hut. Evidence show that accused and Saraswati were present

together in the hut in the fateful night and body of deceased was found

there and accused disappeared after incident. The medical evidence show

that death of Saraswati might have occurred due to ante-mortem injuries.

In the statement under Section 313 Cr.P.C. accused himself has admitted

that he attacked victim Smt. Saraswati with hammer which was recovered

with blood by PW-8 Inspector Rakesh Kumar Singh on the pointing out of

accused-appellant, therefore, there cannot be any hesitation to come to the

conclusion that it was only the accused who was perpetrator of crime.

56.In the entirety of the facts and circumstances and legal prepositions

discussed herein before, we are of considered view that prosecution has

successfully proved its case beyond reasonable doubt against accused-

appellant and Trial Court has rightly convicted him for having committed

an offence under Section 302 IPC. No interference is warranted. Appeal

lacks merit and liable to be dismissed.

57.So far as sentence of accused-appellant is concerned, it is always a

difficult task requiring balancing of various considerations. The question

of awarding sentence is a matter of discretion to be exercised on

consideration of circumstances aggravating and mitigating in the

individual cases.

58.It is settled legal position that appropriate sentence should be

awarded after giving due consideration to the facts and circumstances

of each case, nature of offence and the manner in which it was

executed or committed. It is obligation of court to constantly remind

itself that right of victim, and be it said, on certain occasions person

aggrieved as well as society at large can be victims, never be

marginalised. The measure of punishment should be proportionate to

gravity of offence. Object of sentencing should be to protect society

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and to deter the criminal in achieving avowed object of law. Further, it

is expected that courts would operate the sentencing system so as to

impose such sentence which reflects conscience of society and

sentencing process has to be stern where it should be. The Court will

be failing in its duty if appropriate punishment is not awarded for a

crime which has been committed not only against individual victim

but also against society to which criminal and victim belong.

Punishment to be awarded for a crime must not be irrelevant but it

should conform to and be consistent with the atrocity and brutality

which the crime has been perpetrated, enormity of crime warranting

public abhorrence and it should 'respond to the society's cry for justice

against the criminal'. [Vide: Sumer Singh v. Surajbhan Singh and

others, (2014) 7 SCC 323, Sham Sunder v. Puran, (1990) 4 SCC

731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan,

(1996) 2 SCC 175].

59.Hence, applying the principles laid down in the aforesaid

judgments and having regard to the totality of facts and circumstances

of case, nature of offence and the manner in which it was executed or

committed, we find that punishment imposed upon accused-appellant-

Raju Lahri @ Satnami by Trial Court in impugned judgment and order

is not excessive and it appears fit and proper and no question arises to

interfere in the matter on the point of punishment imposed upon him.

60.In view of above discussion, the appeal lacks merit and is

dismissed. Impugned judgement and order dated 01.06.2017 and

03.06.2017 passed by Additional Sessions Judge / Special Judge

(S.C./S.T. Act), Gautam Budh Nagar in Session Trial No.13 of 2011

(State v. Raju Lahri @ Satnami) under Section 302 IPC, Police Station

Sector 39 NOIDA, District Gautam Budh Nagar, is maintained and

confirmed.

61.Lower Court record along with the copy of this judgment be sent

immediately to Court and Jail Superintendent concerned for necessary

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compliance and to apprise the accused forthwith. Compliance report

be also submitted to this Court.

62.Before parting we provide that Sri Santosh Kumar Yadav, learned

Amicus Curiae for appellant who assisted the Court very diligently, shall

be paid counsel's fee as Rs. 11,500/-. State Government is directed to

ensure payment of aforesaid fee through Additional Legal Remembrancer

posted in the office of Advocate General at Allahabad, to him without any

delay and, in any case, within one month from the date of receipt of copy

of this judgment.

Order Date :- 24.10.2019

Akram