How much of Information received from Accused may be Proved [JUDGMENT]

Evidence Act, 1872 - S. 27 - Only the recovery of weapon of commission of offence would be taken to be admissible as a discovered fact pursuant to the disclosure made by the accused but not his confessional statement that he had murdered the deceased by the said weapon.

The learned trial court has held the accused-appellant guilty solely on the ground that prior to the P.W.1 turning hostile, he gave support to the prosecution version and coupled with that, the recovery of the weapon of offence was made at the pointing out of the accused-appellant and the bullet which was recovered from the body of deceased was found to have been used inmaking fire by the pistol which is alleged to have been recovered from the body of the deceased. There was no other inculpatory evidence on record but we find that the said approach of the trial court in analyzing this evidence was not appropriate in-fact the learned trial court ought to have taken into consideration the above noted facts that there was no clinching evidence that bullet which was recovered from the body of the deceased was not found to have been fired by the weapon which was recovered at the pointing out of the deceased because of the dearth of evidence that the bore of the said pistol was not proved to be of .315 bore beyond reasonable doubt. Moreover, the recovery of the alleged pistol has been held proved by the lower court only on the solitary statement of one police personnel which is also not appropriate as public witness ought to have been taken. Lastly the learned trial court has discarded the statement of P.W.2 in subsequent cross-examination holding that the same were given only to save the accused deliberately as he supported the prosecution version in the earlier part of his statement but it failed to appreciate that even earlier part of his evidence was not absolutely trustworthy as the circumstances in which he stated about the assault on the deceased appear to be doubtful as has been narrated by us in the body of the judgement, therefore, we hold that the accused-appellant also deserves to be acquitted being given the benefit of doubt.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Ramesh Sinha and Dinesh Kumar Singh-I, JJ.

22.11.2018

CRIMINAL APPEAL No. - 737 of 2014

Raj Kumar v. State Of U.P.

Counsel for Appellant :- Ram Babu Sharma,Anuj Srivastava,Gagan Mehta,Patanjali Mishra,Siddharth Singh

Counsel for Respondent :- Govt. Advocate

J U D G M E N T

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri P.K. Singh, learned counsel appearing on behalf of appellant, Sri Jai Narayan, learned A.G.A. for the State and perused the lower court record.

2. This criminal appeal has been preferred against the judgment and order dated 11.2.2014 passed by Additional Session Judge, Court No. 8, Bulandshahar in S.T. No. 249 of 2011 (State vs. Raj Kumar and 3 others) pertaining to Case Crime No. 92/520 of 2010, P.S. Kotwali Dehat, District Bulandshahar under section 302 IPC connected S.T. No.250 of 2011 (State vs. Raj Kumar) pertaining to Case Crime No.697 of 2010, under section 25 Arms Act P.S. Kotwali Dehat, District Bulandshahar whereby the appellant Raj Kumar has been held guilty under section 302 IPC and has been awarded punishment of life rigorous imprisonment, fine of Rs.50,000/- and in default of payment of fine, he has been directed to further undergo three years additional imprisonment. Simultaneously, he has also been held guilty under section 25 of Arms Act and has been awarded punishment of three years rigorous imprisonment, fine of Rs.5,000/- and in default of payment of fine, six months additional imprisonment. Rest accused persons have been acquitted.

3. The facts of the case are that in the intervening night of 17/18.8.2010 at about 2.00 A.M., the first informant Salah Uddin (PW1)was sleeping in the house of his brother Iqram, right then the informant heard some sound because of which he had woken up and saw that four persons were standing by the side of the cot on which Iqram was sleeping and he switched on the torch and asked who were they, then Raj Kumar son of Kanhaiya (Appellant), Satendra @ Pappu son of Amar Singh, Kaluwa son of Rishipal, Gopal son of Sukhvir (other co-accused) all the residents of village Bhataula, P.S. Sikandra, District Bulandshahar were standing there. Right then Satendra @ Pappu exhorted to kill him and on exhortation forthwith Raj Kumar (Appellant) made a fire upon the Iqram (deceased). After hearing the sound of fire, wife of Iqram Shamsina identified all the accused and other persons of the village had also seen the accused fleeing from there and while they were fleeing they stated that if any of them gives evidence, he would have to face the same consequences. The brother of the first informant Iqram died on the spot. A written report (Exhibit Ka-1) in this regard was submitted by the first informant on 18.8.2010 at P.S. Kotwali Dehat and on the basis of the written report, constable 711 Ramesh Chandra, PW-4 registered Case Crime No.92/520 of 2010 on 18.8.2010 at 8.30 p.m. against Raj Kumar (Appellant) Satendra @ Pappu, Kaluwa and Gopal under section 302 IPC and prepared chick FIR (Exhibit Ka-7) and made entry of this case in G.D. (Exhibit Ka-8) at report no. 8 time 8.00 A.M.

4. Investigation was assigned to SHO Alok Singh (PW-9) who immediately thereafter after having obtained all the police papers, recorded statement of eye witness Salah Uddin (First Informant), prepared the recovery memo (Exhibit Ka-10) of the bed sheet which was having blood stains, bedding (Dari) and pillow cover and one mosquito net which were collected from the place of occurrence. He also made inspection of the place of occurrence and prepared site plan (Exhibit Ka-1/A). He also recorded statement of other eye witness namely Shamsina wife of the deceased on 22.9.2010. Thereafter on 2.11.2010 the accused-appellant was arrested by him on the basis of information received from informant and his statement was recorded wherein he confessed to have committed the offence with his companion after having made a plan and furtherstated that on 27.5.2010 his distant uncle Sukhbir was murdered in village Kaurali by Sultan @ Chooha, Ejaz resident of village Karauli, P.S. Kotwali Dehat, District Bulandshahar and Zakir resident of village Sitari, a case regarding which was filed against them by son of Sukhbir Bahadur at P.S. Sikandrabad. He further stated that Iqram used to plough the field of Satendra @ Pappu on ‘Batai’ and he used to disclose the talks of his side to his opponent by going to village Kaurali and because of this reason he along Satendra @ Pappu son of Amar Singh, Gopal, son of Sukhbir and Kalua son of Rishipal hatched conspiracy to murder Iqram otherwise he would get anybody killed any day, therefore, in the intervening night of 17-18/8/2010 at about 2.00 a.m. while he was going to village Kaurali he had killed Iqram by making fire on him by his pistol. This fire was made by him and the said pistol was concealed by him in a jungle of village Kaurali from where he could get it recovered. He should be excused for this offence. Thereafter, the Investigating Officer at his instance went to recover the said weapon which was allegedly used in commission of this offence on 23.11.2010 with his companion. The police personnel vide report no. 10 at 7.30 A.M. reached at the road which was going from Kaurali to village Bhatola where accused-appellant got down from the jeep and after having travelled few steps towards east from the Chakroad and after digging soil of the field, he took out a pistol of .315 bore and life cartridge of .315 bore which were wrapped in a polythene and handed over them to the police. The said weapon alongwith cartridges were sealed on the spot and sample seal was prepared and an effort was made to get a public witness to prove the recovery but no one was ready to be a witness. A memo of recovery (Exhibit Ka-12) was prepared at 8.00 A.M. and signatures thereon were obtained of the witnesses after having read its contents to them and its copy was also provided to the accused. Thereafter, the accused along with said articles were brought to police station and another Case Crime No.697 of 2010 under section 25 Arms Act was registered against the appellant. The investigation of this case was done by Ranvir Singh , PW-10 who after having collected evidence against the appellant Raj Kumar along with co-accused Satendra @Pappu, Kaluwa and Gopal and Investigating Officer Alok Singh submitted charge sheet (Exhibit Ka-14) against the appellant under section 302 IPC and the other Investigating Officer Ranveer Singh of the case under section 25 Arms Act submitted separate charge sheet (Exhibit Ka-17) against the appellant on 5.12.2010.

5. After committal of the case to the court of session, charge was framed against the accused-appellant along with co-accused under section 302 read with 34 IPC and a separate charge was framed against appellant under section 25 Arms Act, to which the accused pleaded not guilty and claimed to be tried.

6. There-after, the prosecution in order to prove its case, examined informant Salah Uddin as PW-1 who is a witness of fact, Smt. Shamsina wife of the deceased as PW-2, who is an eye witness, S.I. Brahampal Singh as PW-3, Constable Ramesh Chandra as PW-4, Dr. Raj Kumar as PW-5, Zulfaqar as PW-6, Constable Pratap Singh as PW-6, Constable Clerk Manoj Singh as PW-8, Incharge Inspector Alok Singh as PW-9, S.I. Ranveer Singh as PW-10.

7. From the side of the prosecution as documentary evidence, following documents were presented.

8. Written report as Exhibit Ka-1, Panchayatnama, Exhibit Ka-2, Form No.13, Exhibit Ka-3, sample seal Exhibit Ka-4, Report of P.S., Kotwali, Exhibit Ka-5, photonash Exhibit Ka-6, Chick FIR Exhibit Ka-7, G.D. Exhibit Ka-8, Post Mortem Report Exhibit Ka-9, blood stained bed sheets as Exhibit Ka-10, FIR under section 25 Arms Act, Exhibit Ka-11, G.D. Exhibit-12, site plan Exhibit Ka 11-A, recovery memo of the weapon used in commission of offence Exhibit Ka 12-A, site plan pertaining to section 302 IPC Exhibit Ka-13, charge sheet under section 302 IPC Exhibit Ka-14, site plan with respect to weapon used in commission of the offence Exhibit Ka-15, order of District Magistrate Exhibit Ka-16, charge sheet pertaining to case crime under section 25 Arms Act Exhibit Ka-17, FSL's report Exhibit Ka-18 to Exhibit Ka-20.

9. Thereafter, the statement of the accused was recorded under section 313 Cr.P.C on 21.12.2013 wherein he stated that he was falsely implicatedby the complainant side because he was a witness in the case of murder of his father.

10. It would be pertinent to refer here to the statement made by the first informant who is also an eye witness as well as other eye witness Smt. Shamsina wife of the deceased who have been examined as PW-1 and PW-2 respectively as they are star witnesses of the prosecution and also to analyze as to whether the trial court has been able to appreciate their evidence in proper perspective to arrive on a right conclusion or not because after having considered the entire evidence on record, learned trial court has held guilty only accused-appellant Raj Kumar under section 302 IPC and 25 Arms Act while rest of the accused have been given benefit of doubt and have been acquitted of the above mentioned charges.

11. Learned trial court has recorded in the judgment that PW-1 Salah Uddin, who is the first informant, has stated in examination-in-chief that in the intervening night of 17-18/10.2010 at about 2.00 p.m. when he was sleeping in the house of his brother deceased Iqram, he had woken up in the night after hearing some sound and he saw that by the side of the cot of the deceased Iqram four persons were standing. When he switched on his torch to see who were they, he found that the accused persons who were present in court namely, Kaluwa, Gopal, Satendra @ Pappu and Raj Kumar who belonged to village Bhataula which was adjacent village, who were known to him from before were there. Right then Satendra @ Pappu exhorted to kill and thereafter accused-appellant Raj Kumar fired upon his brother Iqram and after hearing the sound of fire, wife of Iqram Smt. Shamsina, PW-2 identified the accused persons and other villagers also identified them who had seen the accused running away from there. While they were fleeing there from, they were threatening if any of them had summon up the courage to give evidence against them, he would be killed. His brother died on the spot. His brother deceased Iqram was witness in a case against the accused persons eight years ago. He further stated that he had dictated the written report to Irfan Khan and thereafter he had put his signature thereon which is Exhibit Ka-1. In cross examination, this witness has stated that the deceased Iqram was having a‘Parchoon’ shop adjacent to which there was a ‘Gher’ of about 300 sq. yards in length and width. To the north of this ‘Gher’ there was a thatch (Chhappar) which belonged to Iqram. There was no room in this ‘Gher’. It was wrong to say that his three brothers had separate houses and were living separately. The Investigating Officer had reached the spot in the morning at about 7-7.30 A.M. and had seen the dead body at the place of occurrence and remained in the village for 1 to 2 hours and thereafter he had taken the dead body along with him to the police station. They had reached the police station at about 10.30 a.m. where dead body remained kept for 2 to 2 ½ hours. During this period the paper work with respect to the deceased were performed by the Investigating Officer and a report was got written from him and his signatures were obtained thereon. He had put his signature on written report, Exhibit Ka-1 at police station which was written by Irfan Khan at Police Station. He had shown the torch to the Investigating Officer in the light of which he had seen accused but no signatures were obtained with respect to this fact nor any written report was prepared in that regard. Occurrence took place in the night and 10-12 years prior to that he had got married. He and his children and all his brothers were residing in one and the same house. There was one another house which was located about 100 to 200 yards away in the village, in which children of both the brothers were residing at the time of occurrence. He was having tailor shop in the house. On the date of incident, his children were sleeping in other house and wife of his brother and her son Danish aged about 3 years were sleeping in ‘Gher’. There was no boundary wall around the ‘Gher’. They were sleeping when fire was made. His cot was 3 to 4 ft. away from the door towards east. The cot of his brother was 3 ft. away from the cot on which he was sleeping and cot on which his ‘Bhabi’ was sleeping was also 3 ft. away from the cot on which his brother was sleeping. When the Investigating Officer visited the spot, he had seen these cots. The cot on which his brother was sleeping, mosquito net was also fixed and there was pillow and bed sheet which had got wet by blood and all those clothes were taken in possession by the Investigating Officer and memorandum was prepared in that regard andthese articles were taken away by him to Police Station. Further, this witness stated in cross examination that the accused belonged to village Bhatola. When he opened his torch all the accused were surrounding the cot of his brother and as soon the torch was switched on, fire was made. As soon as the fire was made the accused fled from there. The bullet had hit his brother in head. He had tried to save his brother. The residents of nearby houses had come there who all found that his brother had died. Further he has stated that about eight years earlier to this occurrence, murder had taken place of Amir Khan in the village in which his brother was a witness. This fact was also mentioned by him in the FIR but it is recorded, he could know its reason. In the said case Raj Kumar, appellant accused was a witness but he immediately again stated that he was not a witness but further stated that the statement of his brother was recorded in that case. Apart from that case, there was no other enmity with the accused side. Further it was stated that it was wrong to say that accused Raj Kumar had given agricultural land on ‘Lagan’ to Iqram deceased and when no payment was made by the deceased, because of this enmity the appellant has been falsely implicated. Further, he has stated that assailants who had assaulted his brother , were not wearing any mask and that it was not dark when the occurrence happened rather there was enough moon light and he further denied that he had not seen the occurrence.

11. The statement of this witness in cross examination was again recorded by the trial court after five months of the above recorded statement in which he has given totally different version from the earlier statement and has stated that they were three brothers who were living separately since five years back and had their separate work, their houses were also separate in the village and were living separate with their wives, children. He was doing tailoring work and he used to make caps and was living in Delhi where he used to sell caps after having stitched them. In the night of the incident, he was in Delhi and as soon as he received information of the incident, he arrived in the village next day. The body of the deceased was sealed by the police and there was lot of crowd standing outside his house. The villagers had given information about murder ofhis brother to the police personnel. Prior to this occurrence, the father of the accused Gopal had been murdered in jungle of village in which son Ajaz of nephew Insar of the deceased Iqram and Qasim along with one another were accused. After paper work, the police had taken him to Police Chowki where lot of people followed him along. Further, he stated that in the murder of Sukhbir, Kaluwa and Pappu were witnesses. Accused Raj Kumar-appellant had retired from Army and was living in Noida. The villagers who had accompanied him had taken the name of the accused persons and on the basis of the same Irfan had written report. This report was written on the advice of his neighbour and villagers as he was in Delhi on the date of occurrence and he had not seen the occurrence himself. After hearing the narration made by the villagers, police started dictating and the same was written by Irfan Khan in the report and the said report was never read out to him and he had put his signature on the said report at the direction of the police personnel. The police had taken away few clothes belonging to the deceased. He was residing in Delhi since long, therefore, he did not know the parentage of the accused persons. The house of Iqram (deceased) and his ‘Gher’ were built on a land of ‘Pokhar’ which belonged to Gram Samaj, in which Iqram used to live. One house of Iqram was also situated in village where his children used to live. He used to live in Delhi and the accused Raj Kumar was not living in the village, hence he did not recognize him. In the village, the land of Raj Kumar was being ploughed by the deceased Iqram and there was a dispute with regard to land of Raj Kumar in respect of partition as he wanted to give his land to some other person, because of this the deceased Iqram and his family members were annoyed. Further, he stated that because of the enmity on account of murder of Sukhvir, on the suggestion of the villagers and the named witnesses, he had lodged the FIR although he does not recognize the accused appellant even today as he used to live in Noida. Further, he stated that his house was situated 200 to 250 meters away from the place of incident; the Investigating Officer did not prepare the site plan at his instance. His entire village has muslim majority population while village of accused is Thakur dominated. Hisbrother was an accused in 33 to 39 criminal cases at P.S. Dhaulana. He further denied to have any knowledge that the deceased Iqram was an accused in criminal case under section 395, 397 IPC of police station Kotwali Dehat, District Bulandshahar in which the case was contested in court of FTC No. 15 and it was denied that some unknown person had murdered his brother and on suggestion of other villagers he had lodged the report in the present case against such witnesses who were doing pairvi in the case of murder of Sukhvir. This witness further stated that the statements being given by him today in the court were correct, because in the night of incident he was in Delhi and not in the village.

12. At this stage, A.D.G.(Criminal) cross examined this witness wherein this witness stated that the statement which was given by him on 2.8.2011, he had stated that he was doing work of labourer and in the statement made on 7.8.2012 he again stated that he was doing work of labourer and had not disclosed that he was doing tailoring work in Delhi and to this he replied that no one had asked about this. Further, he stated that at the direction of the police personnel he had given statement that on the date of occurrence he was sleeping in his house because he was threatened that if he did not give such statement, he would be implicated in a false case. On the said date, he gave statement that he was living in Delhi because no question was put to him in that regard. Further, he stated that the report was made by him and it bears his signature which was written at the suggestions of the villagers. He had no ration card or identity card showing that he was living in Delhi 'today'. He further stated that he knew well that the accused-appellant was living in Noida and was in the Army and whatever statement was made about him earlier as well as other accused persons, were made under pressure from police.

13. The other witness as per the F.I.R. is Shamhina, wife of the deceased who has been examined as P.W.-2. She has stated in examination-in-chief that she is illiterate lady and on the date of occurrence, she was sleeping on a separate cot. She stated that when her husband received gun-shot injury, she had woken up but did not see the accused. She further stated that the accused who appeared in the courtwere resident of her own village but they had not murdered her husband. She was declared hostile by the prosecution and, thereafter, she has been cross-examined by learned A.G.C. in which she stated that it was right to say that her brother-in-law (devar), Salauddin had lodged a report of the occurrence. Her 'gher' and house and 'gher' and house of Salauddin were separate, both her husband and Salauddin and their family members were living separately. Salauddin lives in Delhi where he used to stitch caps. He had come to the village only next date of the occurrence in the morning when he came to know about the incident. Salauddin had not told her as to who had killed her husband. On the date of incident, lots of villagers gathered on the spot and consultation was being done as to whose name be mentioned in the written report. Her statement was recorded by the Inspector who had not read out that statement to her, therefore, she could not know as to what was written in that statement. Further it was stated that when her husband received gun shot wound, she could not see the accused persons and reiterated her statement that accused who was present in the court had not killed her husband.

14. The other relevant statement is that of doctor who had conducted the post-mortem of the deceased, Dr. Raj Kumar who has been examined as P.W.-5. He has found fire arm wound of entry, 1.2 cm. X 1 cm. x brain cavity deep on top of head on right side, 2 cm. on mid line and 11 cm. from right ear vertically, margins inverted. Blackening, tatooing and singeing were present at the margins. The metallic bullet about 3 cm. long and 3 cm. in circumference was recovered from the mandible of the right side and he has proved the post-mortem report, Exhibit Ka-9. He has opined that the deceased had died due to said fire arm injury and further stated that he could not tell as to what was the bore of the bullet. Next important piece of evidence presented by the prosecution was report of F.S.L. with respect to the country made pistol and the use of cartridge which was sent for being examined and the report is Exhibit Ka-19 on record wherein it has been stated that the country made pistol which was marked as 1/2011, its barrel was found containing copper and led remnants of firing and the bullet marked as EB-1, .315 bore was found tohave been used. It appears that the learned trial court had exhibited this report in view of the provision under Section 294 Cr.P.C. it being an expert report. Rest of the witnesses which have been mentioned above are only formal witnesses, the statements of whom would be considered later on, if required as they have only proved the other challani papers of the prosecution side and are not eye-witnesses. We have to see as to whether the trial court has been able to rightly hold the accused appellant guilty on the basis of the oral evidence and the evidence of doctor who had conducted the post-mortem of the deceased as well as report of F.S.L. with respect to the weapon used in commission of the offence. The learned trial court has expressed its opinion that P.W.-1, Salauddin's testimony would show that on the date of incident, he has stated himself to be in Delhi but he has failed to disclose as to at whose intimation he came to the village. Apart from that, this witness has stated that he had lodged the report at P.S, Kotwali Dehat in the morning at 08:00 a.m. which makes it clear that immediately after the incident, this witness was in village Karauli when the incident took place and there was no sufficient evidence on record that on the date of occurrence, he was in Delhi. Moreover this witness has not stated in statement under Section 161 Cr.P.C. that he was in Delhi on the date of occurrence. This witness was cross-examined twice and subsequently in the statement made by him, he was declared hostile which shows that second statement given by this witness was given to protect the accused after having been won over and it was quite evident that he has failed to prove that at the time of incident, he was in Delhi. Further trial court has held with respect to P.W.-2 other eye-witness, Shamsina who is the wife of the deceased that when her husband received fire arm injury, she had woken up but she had not seen the accused persons and subsequently stated that the accused persons who were present in the court had not murdered him. It was mentioned in the judgement of the trial court that on the one hand, it was stated that she had not seen the accused persons at the time of the occurrence while on the other hand, she has stated that the accused present in the court had not murdered her husband, which appears to be a wrong statement becausehow can it be possible that the accused persons who were present in the court had definitely not murdered her husband when she had not actually seen the accused and this further makes it clear that she appears to be interested in saving the actual accused persons.

15. The learned trial court has relied upon the law laid down by Hon'ble Apex Court in Rameshbhai Mohanbhai Koli and Ors. Vs. State of Gujarat (2011) 11 SCC 111 wherein it was laid down that the statement of prosecution witness cannot be discarded as it is only on the ground that he has been declared hostile and the prosecution has elected to crossexamine such a witness. In fact statement of such a witness may be admissible which is found to be credit-worthy after its careful scrutiny. Further the trial court has taken up the argument of defence that prosecution has not shown any motive for commission of this offence nor the same has been proved but the learned court has held that in the present case, there has been direct eye-witness's account so that the motive loses its importance and this is also a settled law that when there has been direct evidence available, motive is not to be of any significance. It was also argued before learned trial court from the side of defence that Investigating Officer had not prepared the site-plan correctly because the occurrence which was shown to have taken place, could not have taken place in the aforesaid manner. In this regard, it is mentioned by him that in the matter of offence under Section 302 I.P.C., S.H.O., Alok Singh, who investigated the case, had prepared the site-plan (Exhibit Ka-11) in which he has shown the place of occurrence as well as the situation at nearby places. By 'A', he has shown the place where the deceased, Ikram was lying on cot and where he was murdered; by 'B', he has shown the place where the deceased's wife was lying on cot; by 'C', the place where informant Salauddin (P.W.1) was sleeping, was shown. Further it is mentioned that from perusal of the site-plan, it was evident that the distance between A and B was only two steps and distance between place A and C was only about seven steps. Further by arrow, the route has been shown by which accused had fled after firing upon the deceased and it all was disclosed by the first informant (P.W.1). Further it is mentioned thatfrom place shown by 'B' and 'A', it was stated that witnesses had seen the accused in the light of torch and had identified them.

16. Learned trial court has further taken up the argument of defence that the police has shown false recovery of country-made pistol at the instance of the accused appellant, Raj Kumar and as such there was no such recovery made at his instance nor from his person. In this regard, the learned trial court has held that it was evident from the evidence on record that from the side of prosecution, constable-901, Pratap Singh, P.W.(7) was examined who has stated that on 23.11.2010 when he was posted at P.S. Kanpur Dehat as constable, had gone with S.H.O., Alok Singh vide report No.1 time 7:30 a.m. in government jeep with driver Chaman Lal and accused appellant, Raj Kumar of Crime No.92/520/10 under Section 302 I.P.C. for the purpose of recovery of the weapon by which offence was committed and they had started from police station towards village Karaula, and from there, he proceeded towards P.S. Bhataula then the accused appellant got the jeep halted and after getting down from it, he took them to vacant field of Kabula Singh of village Karauli by the side of Chak road and thereafter, digging the land, he gave them one pistol of . 315 bore in running condition, live cartridge of .315 bore which was given wrapped in polythene and also stated that by this weapon, he had murdered Ikram and, thereafter, he had concealed this weapon here. The said weapon and the cartridges were sealed on the spot and recovery memo was prepared by S.H.O., Alok Singh on the spot and after having read out the same to him, his signature was taken thereon by him. Further it is stated that they had attempted to take public witness for recovery of weapon but none came forward and, thereafter, accused along with recovered pistol and cartridges were brought to the police station. On the basis of statement and the accompanied evidence, the learned trial court had held that the prosecution had recovered one pistol of .315 bore at the pointing out of the accused-appellant and a bullet, which was taken out from the body of the deceased, Ikram and both the bullet as well as the said pistol of .315 bore were sent to F.S.L. for being examined. In the said examination report (Exhibit Ka-19), it was found that the bullet whichwas recovered from the body of the deceased was found to have been fired from the pistol which was recovered at the instance of the accused appellant, therefore the said evidence was sufficient piece of evidence to hold that the same pistol was used by the appellant in committing the murder of deceased, Ikram which also finds corroboration with oral testimony of the prosecution witnesses.

17. The learned trial court has also held that the accused i.e. Satendra @ Pappu, Kalwa and Gopal did not have sufficient evidence on record against them as prosecution witness has not provided evidence in respect to their involvement, moreover, it was also held that had there been any intention on the part of these accused of committing murder of Ikram, they would certainly have committed some act of killing him but from the post-mortem report, only one bullet is found to have caused the death of the deceased which proves that these accused were not present on the spot at the time of incident and, accordingly, they have been acquitted of charge under Section 302 I.P.C. read with Section 34 I.P.C. while only accused appellant, Raj Kumar was held guilty on the basis of above evidence.

18. Learned counsel for the appellant has vehemently argued that four accused have been named in the F.I.R. by the informant (P.W.1) out of whom, three have been acquitted and only the present appellant had been held guilty erroneously because according to the prosecution version, all of them were together on the place of occurrence when this incident happened. If the presence of three co-accused i.e. Satendra @ Pappu, Kalu and Gopal are disbelieved on the same piece of evidence by the prosecution, the same benefit of doubt ought to have been given to the present accused-appellant also. Further it is argued that the pistol which is alleged to have been used in commission of this offence, is shown to have recovered from the appellant three months after the occurrence from an open place which is an easily accessible place, hence, it could not be ruled out that some other persons might have planted it there to implicate him falsely. The next argument made is that one bullet is alleged to have been recovered in post-mortem from the body of the deceased which is of .315bore which is being held to have been fired from the pistol which is also alleged to have recovered at the pointing of the accused appellant but no evidence is there on record to show that the said pistol which was recovered at the pointing out of the deceased was also of .315 bore. In the F.S.L.'s report, Exhibit Ka-19, the said pistol is only found to contain the remnants of copper and lead firing in its barrel but it is not mentioned in the said report that the said pistol was also of .315 bore, therefore, the benefit of doubt ought to have been given to the present appellant. Next it was argued that the motive to murder the deceased, if at all, was to coaccused, Gopal whose uncle was murdered and in which case, he was an accused and not to the present appellant and lastly it was argued that P.W.- 2 who is wife of the deceased has turned hostile stating that she has not seen the accused appellant nor the other co-accused having committed murder of her husband. As regards statement of P.W.1 who is informant, it is argued that even he has not wholly supported the prosecution version as initially he supported it but later on he has also stated that he had not seen the occurrence but the learned trial court appears to have held the accused appellant guilty only on the basis of the earlier part of his (P.W.1's) statement in which he supported the prosecution version coupled with the F.S.L.'s report and recovery of the pistol allegedly made at the pointing out of the accused-appellant, erroneously.

19. On the other hand, learned A.G.A. has strongly supported the conviction of the present appellant stating that it was the accusedappellant only who had murdered the deceased because P.W.1 who is first informant and the brother of the deceased had clearly stated in examination-in-chief and also in first part of his cross-examination that he had seen the occurrence and the weapon of commission of offence was also recovered at the pointing out of the present appellant which would be admissible under Section 27 of the Indian Evidence Act and from the F.S.L.'s report it is proved that the weapon which was found to have been used in commission of offence was actually used and the bullet which was recovered from the body of deceased was found to be of .315 bore, therefore, it can easily be concluded that the same weapon was used incommission of the present offence by the accused appellant and the conviction and sentence of the accused-appellant must be upheld.

20. We have gone through entire evidence on record and arguments of both the sides at length.

21. From the perusal of written report, Exhibit Ka-1, it appears to be a case of prosecution that in the intervening night of 17-18/08/2010 at about 02:00 a.m. in the morning, P.W.1, Salauddin who is brother of the deceased, Ikram, was sleeping in the house of his brother (deceased), Ikram who had woken up after hearing some noise and he saw that four persons were standing near the cot of deceased and when he lighted his torch and said who were they, he found that the present appellant, coaccused Satendra @ Pappu, Kalua and Gopal all residents of Bhataula, P.S. Sikandrabad were standing there. Right then, co-accused Satendra @ Pappu exhorted to kill and soon after accused-appellant, Raj Kumar fired shot at Ikram and after hearing the sound of firing, the wife of Ikram had also woken up who saw the accused persons and recognized them and other villagers had also seen the accused persons fleeing from there who were saying that if any one of them gave any evidence, he would meet the same fate; his brother, Ikram died on the spot. This report was given at the P.S., Kotwali Dehat on 18.08.2010 at 08:00 a.m. while distance of the place of occurrence from village Karauli is 7 k.m., therefore, F.I.R. seems to be prompt as occurrence was of the intervening night of 17-18.08.2010 at 02:00 a.m. In site-plan, Exhibit Ka-11, by 'A', place is shown where deceased was lying on his cot and where he was murdered; by 'B' is shown where his wife Shamsina, (P.W.2) was lying on cot; by 'C' is shown where Salauddin, P.W.1 was lying on cot and the distance between 'A' and 'B' is recorded as two steps while distance between 'A' and 'C' is recorded as seven steps. It is evident from the site-plan which has been proved by the I.O. that at the time of occurrence, the informant was sleeping in close proximity of the deceased and even P.W. 2 was also sleeping almost adjacent to the deceased. In testimony of P.W.1 which was given prior to his turning hostile, it has come that the torch, in the light of which he had seen the accused-person, was not shown to the I.O. nor any memorandumin respect of that torch was prepared by the I.O., therefore, it cannot be held proved beyond doubt that actually the occurrence was seen by this witness in the light of torch because if the same was correct, the torch ought to have been given to the I.O. and also its recovery-memo ought to have been prepared. The occurrence is of dead of night of 02:00 a.m., therefore, it must have been very dark and without there being any source of light, it could not have been possible for the P.W.1 to have recognized the appellant as well as co-accused. No other source of light has been disclosed by the prosecution. It has also to be taken into consideration that this witness has stated that these accused persons including the present appellant belonged to the adjacent village, Bhataula whom he knew from before, then there could be possibility of recognizing them even by their voice as one of them had exhorted that the deceased should be killed but no such suggestion has come in evidence that they were recognized by their voice. It also seems to be very unrealistic that when P.W.1 was lying so close (seven steps away from the deceased), why did he not try to save the deceased and allowed the assailants to flee from there. Natural conduct would have been to give some resistance but nothing of the sort has happened which also makes presence of P.W.1 doubtful on the place of occurrence, particularly, in the light of the evidence that he had two houses, one in which his family was staying while P.W.1 on the fatal night was lying in the house of the deceased. Why P.W.1 had chosen on the said night to stay in the house of deceased, has also not come on record. It is quite possible that only to make himself an eye-witness of the occurrence, he may have so stated that he was sleeping very close to his deceased brother. It is also a circumstance which also appears not to be natural that in the dead of night, lot of people of village would have assembled there who had seen the accused fleeing from there because at 02:00 a.m., normally the villagers might have been fast asleep in their respective houses. Moreover, this witness has turned absolutely hostile in crossexamination which was made five months after his earlier statement in which he has clearly denied to have seen the occurrence and has stated that at the time of occurrence, he was living in Delhi as he used to sellcaps which were being stitched by him and returned only on the date of occurrence when he came to know about this incident. He has also clearly stated in his second cross-examination that he did not recognize any accused person because he used to live in Delhi and 'even today he does not recognize accused-appellant because he lives in N.O.I.D.A.' He had given this statement that he was sleeping on the fateful night in the house of deceased because he was told to say so by the police and in case he denied to say so, he would be implicated in false case, therefore, the statement of this witness does not appear to be trust-worthy.

22. Now we would like to discuss the statement of other eye-witness i.e. Shamsina, wife of the deceased, she has turned hostile at the very beginning as she has stated that when her husband got bullet injury, thereafter, she had woken up and could not see the accused persons and the present accused had not murdered her husband. She has also stated that her house and house of her brother-in-law (devar), Salauddin, P.W.1 were separate and both were living in their separate houses and P.W.1 used to live in Delhi and he had come next day of the occurrence. The F.I.R. was lodged after consultation, therefore, her testimony has not given support to the prosecution case at all.

23. The next most important point relates to recovery of bullet from the body of the deceased which according to the prosecution was found to have been fired upon the deceased by a country-made pistol of .315 bore which was recovered at the pointing out of the accused-appellant.

24. First of all we would consider the confessional statement of the accused that after getting the recovery made of the country made pistol of .315 bore from the field of Kaboola Singh of village Karauli, he also stated before police that by the said weapon, he had murdered Ikram and, thereafter, he concealed the said weapon at the said place. Whether such statement would be treated to be inculpatory statement against accused appellant. For this we have to take the position of law as regards Section 25 of the Indian Evidence Act which is as follows:- 

“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.”

26. Section 27 of the Indian Evidence Act has been interpreted by the Hon'ble Supreme Court in Asar Mohammad and Ors. Vs. The State of U.P. (2018) SCC OnLine SC 2179 which is quoted herein below:- 

“13. It is a settled legal position that the facts need not be self probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra 22, in particular, paragraphs 23 to 29 thereof. The same read thus : 

“23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor has held thus: (IA p. 77) … it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” 

24. In Mohd. Inayatullah v. State of Maharashtra, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that: (SCC pp. 831-32, paras 11-13) 

“11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says: 

‘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.’ 

12. 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 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 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’ 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.

13. 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 (see Sukhan v. Emperor; Ganu Chandra Kashid v. Emperor). 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 (see Pulukuri Kotayya v. King Emperor; Udai Bhan v. State of U.P.).

(emphasis in original) 

25. In Aftab Ahmad Anasari v. State of Uttaranchal after referring to the decision in Pulukuri Kotayya, the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that (Aftab Ahmad Anasari case, SCC p. 596, para 40) 

“40. … the part of the disclosure statement, namely, that the appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits.

26. In State of Maharashtra v. Damu it has been held as follows: (SCC p.283, para 35) 

“35. … It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor 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.” The similar principle has been laid down in State of Maharashtra v. Suresh, State of Punjab v. Gurnam Kaur, Aftab Ahmad Anasari v. State of Uttaranchal, Bhagwan Dass v. State (NCT of Delhi), Manu Sharma v. State (NCT of Delhi) and Rumi Bora Dutta v. State of Assam.

27. In the case at hand, as is perceptible, the recovery had taken place when the appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony.

28. Additionally, another aspect can also be taken note of. The fact that the appellanthad led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) wherein the Court after referring to the decision in H.P. Admn. v. Om Prakash held thus: (Prakash Chand case, SCC p.95, para 8) 

“8. … There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162 of the Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.” 29. In A.N. Venkatesh v. State of Karnataka it has been ruled that: (SCC p.721, para 9) 

“9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the appellants accused (Exts. P- 15 and P16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.” 

(emphasis supplied)”

27. In view of the above position of law, only the recovery of weapon of commission of offence would be taken to be admissible as a discovered fact pursuant to the disclosure made by the accused-appellant but not his confessional statement that he had murdered the deceased by the said weapon. Thus, the other significant piece of evidence on record from the side of prosecution would be that one pistol was recovered at the pointing out of the deceased on the basis of which he could be linked to commission of this offence which has to be seen in the circumstances of related evidence. The present case is no longer left to be a case of direct evidence in view of both eye-witnesses having turned hostile, therefore, the case now rests only on the circumstantial evidence and in this case the circumstances which may be taken into consideration to hold the accused appellant guilty may be only following:

(i) A weapon of assault is alleged to have been found at the pointing out of appellant.

(ii) The bullet which is recovered from the body of the deceased is being said to have been fired by the said weapon of assault.

(iii) As regards the recovery of alleged weapon, no public witness has been taken by the prosecution to prove that recovery. The only witness which has come on record to prove that recovery is the constable Pratap Singh, P.W.7 whose statement has been quoted above who states that despite efforts, no public witness was ready to be a witness of recovery.

28. The defence argument is that the said recovery was absolutely false, in-fact no such recovery was made from the appellant; there has been solitary testimony of police constable in respect of recovery of alleged weapon at the pointing out of the accused. Without any support of any independent witness, the same cannot be held to be trust-worthy recovery and that too from a place which is open place accessible to all. The learned trial court has held the accused guilty of charges under Section 25 of Arms Act as well but we find that holding the said accused guilty under the said section solely on the testimony of single police witness would not be a safe conclusion as they ought to have taken some public witness. Since there is no public witness of the said recovery, hence the said recovery seems to be doubtful and is, accordingly, held to be doubtful.

29. As regards the prosecution version that the bullet which was recovered from the body of the deceased was of .315 bore and the said pistol was also found to have been used as some remnants of lead and copper were found in the barrel of the weapon as per the F.S.L.'s report, itshould be held that the said bullet was used for causing injury to the deceased by making fire by the said weapon. We are not inclined to accept this argument of the prosecution side because the F.S.L.'s report, Exhibit Ka-19 does not contain any such report which shows that the bullet which was sent for being examined of .315 bore was actually fired by the said weapon which was, according to F.S.L. was found to have been used because it has come on record that the said weapon was also of .315 bore. It was bounden duty of the prosecution to also prove this fact that the said pistol was also of .315 bore then only there could be possibility of holding that the bullet which was recovered from body of deceased could have been fired from the said weapon, therefore, we find that there is lack on evidence in this regard.

30. From the side of defence, it has been stated by the learned counsel for the accused appellant that he was falsely implicated because prior to this occurrence his uncle, Sukhbeer's murder has taken place in which relative of the deceased, Ikram were accused and because he was doing pairokari in that case, he has been falsely implicated. This defence version gets support from the statement of P.W.1 in subsequent cross-examination in which he admitted that prior to this occurrence, the father of co-accused Gopal i.e. Sukhvir was murdered in jungle of village in which son Ajay and nephew Insar of the deceased, Ikram and other distant persons of his clan i.e. Kasim son of Fateh, Chooha @ Sultan son of Ameen and one another person were accused, therefore, the possibility could not be ruled out of the accused having been falsely implicated in the present case.

31. Learned counsel for the appellant has stated that the occurrence has taken place in some other manner not in the manner stated by the prosecution.

32. On the basis of above analysis of evidence, we find that the learned trial court has held the accused-appellant guilty solely on the ground that prior to the P.W.1 turning hostile, he gave support to the prosecution version and coupled with that, the recovery of the weapon of offence was made at the pointing out of the accused-appellant and the bullet which was recovered from the body of deceased was found to have been used inmaking fire by the pistol which is alleged to have been recovered from the body of the deceased. There was no other inculpatory evidence on record but we find that the said approach of the trial court in analyzing this evidence was not appropriate in-fact the learned trial court ought to have taken into consideration the above noted facts that there was no clinching evidence that bullet which was recovered from the body of the deceased was not found to have been fired by the weapon which was recovered at the pointing out of the deceased because of the dearth of evidence that the bore of the said pistol was not proved to be of .315 bore beyond reasonable doubt. Moreover, the recovery of the alleged pistol has been held proved by the lower court only on the solitary statement of one police personnel which is also not appropriate as public witness ought to have been taken. Lastly the learned trial court has discarded the statement of P.W.2 in subsequent cross-examination holding that the same were given only to save the accused deliberately as he supported the prosecution version in the earlier part of his statement but it failed to appreciate that even earlier part of his evidence was not absolutely trustworthy as the circumstances in which he stated about the assault on the deceased appear to be doubtful as has been narrated by us in the body of the judgement, therefore, we hold that the accused-appellant also deserves to be acquitted being given the benefit of doubt.

33. This appeal deserves to be allowed and is, accordingly, allowed and appellant is acquitted of charge under Section 302 I.P.C. as well as under section 25 Arms Act and in case he is not detained in any other case, he shall be released immediately.

34. Copy of this judgement be transmitted to the court concerned for its immediate compliance.