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CASE NO.: Appeal (crl.)  1105 of 1997

PETITIONER: Anter Singh                                                      

RESPONDENT: State of Rajasthan                                               

DATE OF JUDGMENT: 05/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J.

       This appeal has been preferred by accused Anter Singh  (hereinafter referred to as ’the accused’) who faced trial  along with 3 others for allegedly having committed homicidal  death of one Hansraj (hereinafter referred to as ’the  deceased’). While accused-appellant was charged for alleged  commission of offence punishable under Sections 302, 302  read with Section 34 of the Indian Penal Code, 1860 (in  short ’the IPC’) and Section 25(1)(a) and 27 of the Arms  Act, 1959 (for short ’the Arms Act’), the other three  accused were charged for commission of offence punishable  under Sections 302 and 302 read with Section 34 IPC.  

       Trial Court found that the accused-appellant was guilty  of the alleged offences punishable under Section 302 IPC and  Sections 25 and 27 of the Arms Act. Life imprisonment, one  year and three years sentences respectively were imposed for  the three offences. The other accused persons were found to  be not guilty. The High Court affirmed the conviction and  sentence.     Prosecution version as unfolded during trial is as  follows:

       On 11.4.1979, Ram Kumar (PW-21) found a crowd on the  ground of Government college, Ganganagar at about 6.30 a.m.   On reaching close to the spot, he found that a person was  lying dead.  While returning to his shop he found a police  Constable whom he told about the dead body. The Constable  Bhagwan Singh gave information to Hari Singh ASI and being  satisfied that this was a murder, a case was registered  under Section 302 IPC. Near the dead body some empty  cartridges were found. Moulds of the footprints found nearby  and the empty cartridges were collected. During  Investigation four accused persons were arrested. The  accused appellant while in custody gave information about a  gun, which was treated to be information in terms of Section  27 of the Indian Evidence Act, 1872 (for short ’the Evidence  Act’). Search was made in the presence of accused and a  pistol was recovered.  The empty cartridges and the pistol  were sent for forensic examination.  During post-mortem of  the dead body of the deceased bullets were recovered which

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were also sent for such examination.  On completion of  investigation, charge sheet was placed.  The accused persons  pleaded innocence.   

       37 witnesses were examined to substantiate the  prosecution version. The Trial Court found that the evidence  was not sufficient to fasten guilt on the co-accused, while  holding appellant guilty as above noted.  Appeal to the High  Court did not bring any relief.   

In support of the appeal, learned senior counsel for  the appellant submitted that the fate of the case depends  upon the acceptability of evidence relating to recovery  purportedly on the basis of information given by the accused  while in custody.  He pointed out that there are several  circumstances which show that the prosecution has tried to  create evidence.   

In essence it is submitted that the prosecution has  failed to establish its case and has presented a fabricated  and improper case to falsely implicate the accused.

When the witnesses who are supposed to have witnessed  recovery have turned hostile, the evidence relating to  alleged recovery is of really no consequence.  The alleged  recovery was made from an open space accessible and visible  to anyone passing by.  It was a place which was very close  to the place where dead body was found. It is improbable  that the police official could have missed the weapon and  would wait for about 3 weeks when the purported information  was given by the accused clearly not believable.   

In response, Mr. V.N. Raghupathy, learned counsel for  the State submitted that the Trial Court and the High Court  have considered the material on record and have found the  evidence to be cogent and credible.  Merely because the  witnesses did not support the prosecution version so far as  the recovery is concerned, that will not affect the  credibility of the evidence tendered by PW-36.     

Merely because the gun was found in the open space that  does not affect the evidence relating to recovery.

We shall first deal with the plea as to whether  evidence relating to recovery is acceptable when non- official witnesses did not support the recovery and made  departure from the statements made during investigation.  In  Modan Singh v. State of Rajsathan (1978 (4) SCC 435) it was  observed that where the evidence of the investigating  officer who recovered the material objects is convincing,  the evidence as to recovery need not be rejected on the  ground that seizure witnesses did not support the  prosecution version. Similar view was taken in Mohd. Aslam  v. State of Maharashtra (2001 (9) SCC 362).  It was held  even if panch witnesses turn hostile, which happens very  often in criminal cases, the evidence of the person who  effected the recovery would not stand vitiated.  But the  crucial question which needs to be considered in this case  is whether the prosecution has been able to show that the  pistol recovered was the one which was used for commission  of the offence.  As rightly contended by learned counsel for  the appellant there are several circumstances which affects  credibility of the prosecution version.  Firstly, the so- called information was recorded by the IO (PW-16), and he  does not even indicate that the gun to which reference was

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allegedly made was the weapon of assault. Further the  custody of empty cartridges purported to have been recovered  from the spot has not been established.  In fact, the claim  is that on 11.4.1979 empty cartridges were recovered. They  were sent to the forensic science laboratory on 12.5.1979.   It has not been explained as to where the empty cartridges  were till then lying and with whom. Similar is the situation  with the two bullets claimed to have been extracted from the  dead body by the doctor. It has been accepted by PW-36 that  the empty cartridges and the bullets were not deposited with  the ballistic expert prior to the recovery of the pistol  claimed to have been made on 29.4.1979. Significantly,  though the witnesses claimed that the moulds, chappals found  at the spot, the empty cartridges, the two bullets extracted  and the pistol were sealed before being sent to the expert  for examination and that they were sealed on the date they  were recovered, but PW-23 who claimed to have taken the  parcel to the laboratory categorically admitted that the  packets were sealed in the Kotwali in his presence on the  date he had taken for deposit with the laboratory i.e.  11.5.1979 and, in fact, the articles were deposited on  12.5.1979.  Though the witness stated that different seals  were used, a bare perusal of the materials on record clearly  shows that only one seal was used. Additionally, PW-31 who  took major part in the investigation had categorically  admitted that the particular type of pistol which was  allegedly seized could not have ejected any empty cartridges  till all the six shots were fired and otherwise it could not  be possible. In Exhibits 51 and 51A i.e. the spot map and  the circumstances memo reference is made to the moulds. This  was not possible because Exhibits 51 and 51A were prepared  at about 9.30 a.m., while admittedly the moulds were taken  much after as stated by the witnesses. Significantly in  neither Exhibits 51 and 51A, reference is made to the  recovery of any empty cartridges which was supposed to have  been found near the dead body though reference was made to  the moulds which were yet to come into existence.  There was  no evidence led as to when the bullets were handed over to  the police by the doctor or where they were kept and in what  condition. Though recovery from an open space may not always  render it vulnerable, it would depend upon factual situation  in a given case and the truthfulness or otherwise of such  claim. In the case at hand the recovery was made from an  open space visible from the place where the dead body was  lying and at a close proximity.  It is not clear from  evidence that it was hidden in such a way so as making it  difficult to be noticed.  The evidence tendered is totally  silent as to in whose custody were the bullets, empty  cartridges and the pistol.  The effect of such non- explanation was considered by this Court in Santa Singh v.  State of Punjab  (AIR 1956 SC 526). The Constitution Bench,  inter alia, observed as follows:   

"There is another element in the case  which creates even greater difficulty.  An  empty cartridge case is alleged to have been  recovered from the place of occurrence by  the police on the 10th of September when  they went there for investigation after  receipt of the first information from Uttam  Singh (P.W. 16); so also some blood-stained  earth.

They were carefully packed and sealed  in two separate packets and dispatched to

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the Police Station. The sealed parcel of the  earth was sent to the Chemical Examiner at  Kasauli on the 11th October, 1954, and the  sealed parcel of the empty cartridge case  was sent to Dr. Goyle as late as the 27th  October, 1954.

Even if we accept the explanation given  by the Sub-Inspector of Police that the  empty cartridge case had to be kept at the  police station till the rifle used was  recovered so that both might be sent to the  expert for his opinion, nothing has been  stated why after the rifle was recovered on  the 28th September, 1954, along with 24  cartridges from the house of the accused, it  was incumbent for the Police to retain the  parcels of rifle and empty cartridge case  with them till the 11th October, 1954.

Naturally this inordinate delay raises  much suspicion and has given rise to the  suggestion on the part of the accused made  in the course of the cross-examination of  the Sub-Inspector that the empty cartridge  case ultimately sent to the expert relates  to a cartridge that was fired by them at the  Police Station and is not the one recovered  at the spot."    

The scope and ambit of Section 27 of the Evidence Act  were illuminatingly stated in Pulukuri Kotayya v. Emperor   (AIR 1947 PC 67) in the following words, which have become  locus classicus:   

It is fallacious to treat the ’fact  discovered’ within the section as equivalent  to the object produced; the fact discovered  embraces the place from which the object is  produced and the knowledge of the accused as  to this and the information given must  relate distinctly to this fact. Information  as to past user or the past history, of the  object produced is not related to its  discovery in the setting in which it is  discovered. Information supplied by a person  in custody that ’I will produce a knife  concealed in the roof of my house’ does not  lead to the discovery of a knife; knives  were discovered many years ago. It leads to  the discovery of the fact that a knife is  concealed in the house of the information to  his knowledge, and if the knife is proved to  have been used in the commission of the  offence, the fact discovered is very  relevant. But if to the statement the words  be added ’with which stabbed A.’, these  words are inadmissible since they do not  related to the discovery of the knife in the  house of the informant." (p. 77)

The aforesaid position was again highlighted in Prabhoo  v. State of Uttar Pradesh  (AIR 1963 SC 1113).   Although the interpretation and scope of Section 27  has been the subject of several authoritative

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pronouncements, its application to concrete cases in the  background events proved therein is not always free from  difficulty. It will, therefore, be worthwhile at the outset,  to have a short and swift glance at Section 27 and be  reminded of its requirements. The Section says :  "Provided that, when any fact is  deposed to as discovered in consequence of  information received from a person accused  of any offence, in the custody of a police  officer, so much of such information,  whether it amounts to a confession or not,  as relates distinctly to the fact thereby  discovered may be proved."  

The expression "provided that" together with the phrase  "whether it amounts to a confession or not" show that the  section is in the nature of an exception to the preceding  provisions particularly Section 25 and 26. It is not  necessary in this case to consider if this Section  qualifies, to any extent, Section 24, also. It will be seen  that the first condition necessary for bringing this Section  into operation is the discovery of a fact, albeit a relevant  fact, in consequence of the information received from a  person accused of an offence. The second is that the  discovery of such fact must be deposed to. The third is that  at the time of the receipt of the information the accused  must be in police custody. The last but the most important  condition is that only "so much of the information" as  relates distinctly to the fact thereby discovered is  admissible. The rest of the information has to be excluded.  The word "distinctly" means "directly", "indubitably",  "strictly", "unmistakably". The word has been advisedly used  to limit and define the scope of the provable information.  The phrase "distinctly" relates "to the fact thereby  discovered" and is the linchpin of the provision. This  phrase refers to that part of the information supplied by  the accused which is the direct and immediate cause of the  discovery. The reason behind this partial lifting of the ban  against confessions and statements made to the police, is  that if a fact is actually discovered in consequence of  information given by the accused, it affords some guarantee  of truth of that part, and that part only, of the  information which was the clear, immediate and proximate  cause of the discovery. No such guarantee or assurance  attaches to the rest of the statement which may be  indirectly or remotely related to the fact discovered. (See  Mohammed Inayuttillah v. The State of Maharashtra (AIR 1976  SC 483).  At one time it was held that the expression "fact  discovered" in the section is restricted to a physical or  material fact which can be perceived by the senses, and that  it does not include a mental fact, now it is fairly settled  that the expression "fact discovered" includes not only the  physical object produced, but also the place from which it  is produced and the knowledge of the accused as to this, as  noted in Palukuri Kotayya’s case (supra) and in Udai Bhan v.  State of Uttar Pradesh (AIR 1962 SC 1116).  The various requirements of the Section can be summed  up as follows: (1)     The fact of which evidence is sought to be given  must be relevant to the issue.  It must be borne in mind  that the provision has nothing to do with question of  relevancy. The relevancy of the fact discovered must be  established according to the prescriptions relating to  relevancy of other evidence connecting it with the crime in

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order to make the fact discovered admissible.  (2)     The fact must have been discovered. (3)     The discovery must have been in consequence of  some information received from the accused and not by  accused’s own act. (4)     The persons giving the information must be accused  of any offence. (5)     He must be in the custody of a police officer. (6)     The discovery of a fact in consequence of  information received from an accused in custody must be  deposed to. (7)     Thereupon only that portion of the information  which relates distinctly or strictly to the fact discovered  can be proved.  The rest is inadmissible. As observed in Palukuri Kotayya’s case (supra) it can  seldom happen that information leading to the discovery of a  fact forms the foundation of the prosecution case.  It is  one link in the chain of proof and the other links must be  forged in manner allowed by law.  To similar effect was the  view expressed in K. Chinnaswamy Reddy v. State of Andhra  Pradesh and Another (1962 SC 1788)     The several discrepancies and shortcomings in  evidence as noticed supra considerably corrode credibility  of the prosecution version. That being so, the inevitable  conclusion is that the prosecution has not established the  accusations against the accused-appellant beyond reasonable  doubt and consequently he is entitled to be acquitted.   Since he is on bail, the bail bonds be discharged. The  appeal is allowed.