http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14  

CASE NO.: Appeal (crl.) 664  of  2000 Appeal (crl.)   682      of  2000 Appeal (crl.)   683      of  2000

PETITIONER: SANJAY @ KAKA SHRI NAWABUDDIN @ NAWAB VINOD KUMAR

       Vs.

RESPONDENT: THE STATE (N.C.T. OF DELHI)

DATE OF JUDGMENT:       07/02/2001

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J.

   In  the  broad day light and in the capital city of  the country,  the appellants and one Mohabat Ali, the four young desperados  entered  the  premises   No.F-8/5,  Model  Town, Part-II,  Delhi  to commit robbery, in consequence of  which Smt.Sheela  was stabbed to death.  The occurrence which took place  on 20th June, 1990 is not the isolated act so far  as the  law and order and life and liberty of the people of the capital  city and other parts of the country are  concerned. By  killing  the deceased and subjecting Amarjeet Sharma  to the  threat  of being killed by pointing a revolver at  him, the  resistance of the commission of the intended crime  was immobilised.   After  registration of the First  Information Report and completion of the investigation, charge-sheet was filed  against the accused persons under Sections 302,  394, 397,  398, 342, 120B and 411 IPC besides Sections 25, 27, 54 and  59  of the Arms Act and Section 5 of the Terrorist  and Disruption  Activities  (Prevention)   Amendment  Act,  1993 (hereinafter  referred  to  as "TADA (P) Act").   The  trial court found appellant Vinod guilty of offences under Section 392/34,  397  and 302 IPC, besides Section 5 of the  TADA(P) Act.   He was sentenced to imprisonment for life and a  fine of  Rs.2,000/-  for the offence under Section 302  IPC,  for seven  years  rigorous  imprisonment for the  offence  under Sections  397,  392/34  and was also sentenced  to  rigorous imprisonment for five years and a fine of Rs.2,000/- for the commission of offences under Section 5 of TADA (P).  Accused Mohabat  Ali  was convicted for the offences under  Sections 392/34  IPC  and  Section  5  of the  TADA(P)  Act  and  was sentenced to rigorous imprisonment for five years and a fine of  Rs.2,000/-  on  each count.  Appellants  Nawabuddin  and Sanjay   Moley  were  sentenced  to  five   years   rigorous imprisonment  and  a  fine  of   Rs.2,000/--  each  for  the commission  of  offence under Sections 392/34 IPC.   Various sentences were also imposed in case of default of payment of fine.   All the sentences were directed to run concurrently. Aggrieved by the judgment of the Designated Trial Court, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14  

appellants have filed the present appeals contending that no case  is made out against anyone of them and the trial court committed  a  mistake  of law for basing  its  findings  and conviction  on  the  evidence which was not only  shaky  and unreliable  but  also  inadmissible in  evidence  under  the relevant  provisions of law.  The facts, as disclosed in the First  Information  Report  and  the  evidence  led  by  the prosecution,  are that on 20th June, 1990 an annonymous call was  received at the Police Control Room with respect to the commission of murder in Model Town, Part-II area of the city of  Delhi.   This information was recorded vide  DD  No.13-A whereafter Harbans Singh, Police Inspector of Police Station Model  Town along with his staff rushed to the spot where he found  the  dead body of a woman lying in the pool of  blood with  multiple  injuries, apparently caused by  sharp  edged weapon.   He also noticed household goods including  clothes scattered  all  around.   Three   jewellery  boxes,  without jewellery,  were  found  lying in the  room.   One  Amarjeet Sharma  met the Police Inspector and gave a statement to the effect  that  he was employed as a domestic servant in  that house  for the last five to six days.  According to him,  at about  2.00 p.m.  when he was preparing food in the kitchen, he  heard  the  sound of door bell.   When  Smt.Sheela,  his employer,  opened  the door, two young boys aged  18-19  and 19-20  years came inside pushing her.  One of them inflicted multiple  knife  injuries on the person of Smt.Sheela  as  a consequence  of which she fell down on the floor.  The other intruder  put  revolver  on the neck of  the  said  Amarjeet Sharma  and  made  him stand in silence in a corner  of  the room.   The  culprits cut telephone wires and  searched  for goods  lying  in  the  room.  They removed  the  Kangan  and Necklace worn by Smt.Sheela and kept all jewellery, cash and other goods in two briefcases.  In the process of inflicting the injuries on the person of Smt.Sheela, the clothes of the culprits  got  blood  stains.   One   of  the  culprits  was described  as  short-statured  and the  other  long-statured person.   The  culprits shut Amarjeet Sharma in an  Almirah. After  committing the offences, the aforesaid two boys  left the  place.  He managed to get out of the Almirah with great difficulty  and  came down.  He raised an alarm, upon  which the  people  collected.  Formal case was registered  on  the basis  of  the statement of the aforesaid domestic  servant. During  investigation appellant Sanjay Moley, the nephew  of the  deceased  was arrested and on his  interrogation  other accused  apprehended.   All  the   accused  made  disclosure statements  in  consequence of which the .32  bore  revolver with six cartridges, a knife, blood stained clothes, scooter and the looted property were recovered from their houses and the  places  where  they had stated to have  hidden.   After their  conviction  and  sentences  only three  of  the  four accused  have  filed  the  present  appeals.   Mohabat  Ali, convict  has  chosen  not to challenge the  verdict  of  the Designated Trial Court.  We have heard at length S/Shri R.K. Jain  and  Sushil  Kumar,  Senior  Advocates  appearing  for@@                                    JJJJJJJJJJJJJJJJJJJJJJJJJ appellants Sanjay and Nawabuddin and Shri V.Ramasubramaniam,@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Amicus  Curaie  for  appellant Vinod.  The  learned  counsel appearing  for the appellants have vehemently argued that in the absence of direct evidence in the form of eye-witnesses, the  trial  court  was  not   justified  in  recording   the conviction  against  the appellants and sentencing  them  to various imprisonments.  According to them the circumstantial evidence  relied  upon  by  the prosecution  was  shaky  and inadmissible.   Otherwise also the circumstances relied upon

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14  

by  the  prosecution  were  not sufficient  to  connect  the appellants  with the commission of the crime for which  they were  charged,  convicted and sentenced.  The  circumstances relied  upon by the prosecution and held proved by the trial@@                                                 JJJJJJJJJJJJ court are:@@ JJJJJJJJJJ

   "i) Motive

   ii) Medical Evidence

   iii) Disclosure statement of accused persons.

   iv) Recovery  of  stolen   property  from  the  accused         persons.

   v) Recovery of blood stained shirt from accused vinod.

   vi) Recovery of weapon of offence from accused Vinod.

   vii) Extra judicial confession of accused Sanjay Moley.

   viii)Last  seen  circumstances  in  respect  of  accused          Sanjay and Nawabuddin."

The  most  important circumstances to connect  the  accused with  the commission of crime are the disclosure  statements made  by  them and the recovery of weapon of offence,  blood stained  clothes  and  stolen property made  in  consequence thereof besides extra judicial confession of accused Sanjay, the  circumstance  of  his  being seen  in  the  company  of Nawabuddin  under suspicious circumstances and observance of his unusual behaviour.  The circumstances proving the motive and  the  medical evidence connecting the accused  with  the commission  of  crime  are dependent upon the proof  of  the other  circumstances i.e.  disclosure statements, recoveries and  the  extra  judicial   confession.   The  accused  were arrested  in  consequence to the clue provided by  Trilochan Singh  (PW13)  and Sheetal Grover (PW5) in response  to  the public  assistance  sought by the police on  Public  Address System.   Sheetal  Grover  (PW5) stated that  the  appellant Sanjay who was his friend came to his shop in the evening of 20th  June, 1990 at about 5-6 p.m.  He was in worried  mood. Upon enquiry he told the witness that being in need of money he  along  with his three friends went to the house  of  his aunt  with  a  view to commit theft.  He further  told  that while  he and one of his friends stood outside the house  of his  aunt, the other went inside the house to commit  theft. Those  who  went inside after coming back out of  the  house told Sanjay, appellant that they had committed the murder of his  aunt.   After knowing about the death of his aunt,  the aforesaid  accused  got scared and worried.  He came to  the witness  for seeking his help.  The witness told him that he should  go  to  the police and make  his  genuine  statement there.   On  the  same night the witness was called  in  the police station where his statement was recorded.

   Assailing the testimony of PW5, Shri R.K.  Jain, learned Senior  Counsel  appearing for Sanjay, appellant,  submitted that   the   statement  of   the  witness   is   fabricated, after-thought  and unreliable.  According to him, there  was no  cause  or occasion for Sanjay to go to the  witness  for making the aforesaid extra judicial confession as, according to  him, they did not have such relations between them which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14  

could  prompt  the  aforesaid accused to  confide  with  the witness.   He  has  further submitted that  as  the  accused Sanjay  was in the police station at the time when statement of  PW5  was recorded and despite statement permitted to  go home,  the  story of the accused making  the  extra-judicial confession stood falsified.

   We  have  critically  analysed   the  statement  of  the aforesaid  witness  and  do not find any  substance  in  the submissions  made  on behalf of the aforesaid accused.   The witness,   PW5  has  categorically   stated   "I   developed friendship  with accused Sanjay in the last 1 and half years of this incident".  The common friend of the witness and the accused  was  one  Dharmender Dhingra.   In  his  statement, recorded under Section 313 Cr.P.C., the appellant Sanjay has not  specifically  denied  his   friendship  with  PW5.   No suggestion  was made to the aforesaid witness for  allegedly making  wrong  statement  and  thereby roping  in  the  said accused  with the commission of the crime.  Admittedly,  PW5 is  a shopkeeper and has no axe to grind with the  appellant Sanjay.   Why  did  he go to the witness to make  clean  his breast, is a fact only known to the accused for which he has not given any explanation.  We have no hesitation to believe the  statement  of  Sheetal Grover (PW5)  that  the  accused Sanjay  had in fact come to him on 20th June, 1990 about 5-6 p.m.   and  confided with respect to the offence of  robbery and  murder committed by him and others on that day.   There is  nothing in the deposition of any of the witness that the police  had  known about the commission of the  offence  and involvement of Sanjay before the statement of Sheetal Grover (PW5) recorded by the police at about 9.00 p.m.

   We  cannot  accept the contention of Shri Jain  to  hold that  the accused was present in the police station when the statement  of  PW5 was recorded and that  the  investigating officer  had  permitted the said accused to go home  despite the  statement of the witness.  PW5 has categorically stated that  he  closed his shop at about 7.30/8.00 p.m.   on  20th June, 1990 and reached his house in half an hour’s time.  He further  stated  that "on 20th June, 1990 the police  people came  to  my  house at 8-9 p.m.  to call me  to  the  police station".   SI  Virender Singh PW24 has stated that  Sanjay, appellant  was  interrogated in the police station  on  20th June, 1990 at about 8 p.m.  and let off after interrogation. He  was directed to come again in the morning at 10.00  a.m. on the next day.  By reading both the statements together it transpires that after his interrogation Sanjay appellant was permitted  to  go  home  on 20th June,  1990  at  8.00  p.m. Statement  of  Sheetal Grover (PW5) was recorded after  9.00 p.m.  in the police station, obviously when the said accused had left for his home.  Picking up the words "accused Sanjay was  present  in the police station at that time"  from  the statement  of  PW5, the learned counsel has tried to make  a mountain out of the mole.  The aforesaid sentence appears in the  context  when the police came at the residence  of  the witness  and  "on enquiry, had told us that my presence  was required  in the police station about a statement in  regard to  Sanjay,  accused.   Accused Sanjay was  present  in  the police  station at that time".  There is no confusion in our mind  that  at  the time the police party  left  the  police station  for  contacting  PW5 at about 7.30 and  8.00  p.m., Sanjay, appellant was present in the police station.  He was directed  to  go  home  as by that time  there  was  nothing against  him  as  per  the statement of  SI  Virender  Singh (PW24).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14  

   The testimony of PW5 in this regard does not suffer from any  contradiction  to absolve the appellant Sanjay  of  his criminal  liability  with respect to the commission  of  the crime  for which he has been convicted and sentenced.  As to why the said accused was not arrested on the same night, the defence  has not sought any explanation from the IO.  One of the  reasons  for not arresting accused  Sanjay  immediately after  recording  the  statement  of PW5  may  be  that  the investigating  officer  knew  that the said accused  had  to appear  in  the police station on the next morning at  10.00 a.m.   for which specific directions had been given to  him. Be  that  as it may, this alleged omission of not  arresting the accused during the night time cannot be made a basis for discrediting the testimony of PW5.

   We  are  satisfied  that  Sheetal  Grover  (PW5)  is  an independent  witness  and his testimony inspires  confidence which  has  been relied upon by the trial court.  We see  no reason  to disbelieve the statement of Sheetal Grover  (PW5) in  so far as it relates to the making of the extra-judicial confession  by appellant Sanjay before him.  The defence has utterly  failed  to bring on record any  circumstance  which could  be made a basis for discrediting the testimony of the aforesaid  witness.  However, the effect of the statement of the  accused before the witness would be tested in the light of  other  circumstances  and the whole  conspectus  of  the prosecution case.

   There  is no dispute that after the statement of Sheetal Grover  (PW5)  and  interrogation of Sanjay  appellant,  the other  accused  involved in the crime were  apprehended  and arrested.   During  the course of interrogation the  accused persons  made  statements which led to the recovery  of  the weapon  of offence, stolen property and other  incriminating material.   It  is also admitted that Smt.Sheela met with  a homicidal death on account of about 24 injuries inflicted on her  person  with a sharp edged weapon like the  knife,  the weapon of offence seized in the present case.

   The  most important circumstance for the prosecution  in the case is the disclosure statements of the accused persons and  recoveries of the stolen property, blood stained  shirt and  weapon of offence consequent upon such statements.  The admissibility  of the statements made by the accused persons to  the  police  is challenged on twin  grounds,  i.e.,  (i) factually no such statement was made, and (ii) the statement made was inadmissible in evidence.

   Section  25 mandates that no confession made to a police officer  shall  be proved as against a person accused of  an offence.   Similarly Section 26 provides that confession  by the  accused  person  while in custody of police  cannot  be proved  against  him.   However, to the  aforesaid  rule  of Sections 25 to 26 of the Evidence Act, there is an exception carved  out  by Section 27 providing 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. Section  27  is  a  proviso to Sections  25  and  26.   Such statements  are  generally termed as  disclosure  statements leading  to  the discovery of facts which are presumably  in the exclusive knowledge of the maker.  Section 27 appears to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14  

be  based on the view that if a fact is actually  discovered in  consequence  of  information given,  some  guarantee  is afforded   thereby  that  the   information  was  true   and accordingly  it  can  be  safely  allowed  to  be  given  in evidence.

   As  the  Section is alleged to be frequently misused  by the police, the courts are required to be vigilant about its application.   The  court  must ensure  the  credibility  of evidence  by police because this provision is vulnerable  to abuse.   It does not, however, mean that any statement  made in  terms  of  the  aforesaid section should  be  seen  with suspicion and it cannot be discarded only on the ground that it  was made to a police officer during investigation.   The court  has  to  be cautious that no effort is  made  by  the prosecution to make out a statement of accused with a simple case  of recovery as a case of discovery of fact in order to attract the provisions of Section 27.

   The position of law in relation to Section 27 of the Act was  elaborately made clear by Sir John Beaumont in Pulukuri Kottaya  and others v.  Emperor [AIR 1947 PC 67] wherein  it was  held:   "Section 27, which is not artistically  worded, provides  an  exception  to the prohibition imposed  by  the preceding  section, and enables certain statements made by a person  in  police  custody  to be  proved.   The  condition necessary  to  bring  the  section into  operation  is  that discovery  of a fact in consequence of information  received from  a  person accused of any offence in the custody  of  a Police  Officer must be deposed to, and thereupon so much of the  information  as relates distinctly to the fact  thereby discovered  may be proved.  The section seems to be based on the   view  that  if  a   fact  is  actually  discovered  in consequence of information given, some guarantee is afforded thereby  that the information was true, and accordingly  can be  safely allowed to be given in evidence;  but clearly the extent  of  the  information admissible must depend  on  the exact   nature  of  the  fact   discovered  to  which   such information  is required to relate.  Normally the section is brought  into  operation  when a person  in  police  custody produces from some place of concealment some object, such as a  dead  body, a weapon, or ornaments, said to be  connected with the crime of which the informant is accused.  Mr.Megaw, for  the  Crown  has argued that in such a  case  the  ’fact discovered’  is  the physical object produced, and that  any information  which relates distinctly to that object can  be proved.   Upon this view information given by a person  that the  body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity  would all be admissible.  If this be the effect  of section 27, little substance would remain in the ban imposed by  the  two preceding sections on confessions made  to  the police,  or  by  persons in police custody.   That  ban  was presumably  inspired  by the fear of the Legislature that  a person under police influence might be induced to confess by the exercise of undue pressure.  But if all that is required to  lift  the  ban  be the inclusion in  the  confession  of 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.  On normal principles of  construction  their Lordships think that the proviso  to S.26,  added  by  S.27, should not be held  to  nullify  the substance  of  the section.  In their Lordships’ view it  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14  

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 admissible  since they do not relate to the discovery of the knife in the house of the informant."

   In State of Uttar Pradesh v.  Deoman Upadhyaya [AIR 1960 SC  1125]  this  Court  held that Sections 25  and  26  were manifestly  intended to hit an evil, viz., to guard  against the  danger of receiving in evidence testimony from  tainted sources   about  statements  made  by  persons  accused   of offences.   These  sections  form part of  a  statute  which codifies  the law relating to the relevancy of evidence  and proof  of  facts in judicial proceedings.  The State  is  as much  concerned  with punishing offenders who may be  proved guilty  of  committing of offences as it is  concerned  with protecting persons who may be compelled to give confessional statements.   Section  27 renders information admissible  on the  ground  that  the  discovery of a fact  pursuant  to  a statement  made  by  a person in custody is a  guarantee  of truth  of the statement made by him and the legislature  has chosen  to  make  on that ground an exception  to  the  rule prohibiting  proof  of  such statement.   The  principle  of admitting  evidence  of statements made by a  person  giving information  leading to the discovery of facts which may  be used  in evidence against him is manifestly reasonable.   In that  case  the High Court had acquitted the accused on  the ground  that  his  statement which led to  the  recovery  of gandasa,  the  weapon  of offence,  was  inadmissible.   The accused Deoman had made a statement to hand over the gandasa which  he  stated  to  have thrown into a tank  and  got  it recovered.   The  trial court convicted the accused for  the offence  of  murder.  The Full Bench of the High Court  held that  Section 27 of the Evidence Act which allegedly created an  unjustifiable discrimination between persons in  custody and  persons  out  of custody offending Article  14  of  the Constitution,  was unenforceable.  After the opinion of  the Full  Bench  a  Division Bench of the  Court  excluded  from consideration  the  statement  made by the  accused  in  the presence  of  the police officer and held that the story  of the  accused  having  borrowed  a  gandasa  on  the  day  of occurrence was unreliable.  The accused was acquitted but at the  instance of the State of U.P., the High Court granted a certificate  to  file the appeal in this Court.  This  Court did  not agree with the position of law settled by the  High Court  and decided to proceed to review the evidence in  the light  of that statement in so far as it distinctly  related to  the  fact thereby discovery being  admissible.   Dealing with the conclusions arrived at by the High Court and on the facts of the case, this Court observed:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14  

   "The  High Court was of the view that the mere  fetching of  the gandasa from its hiding place did not establish that Deoman  himself  had  put it in the tank, and  an  inference could  legitimately be raised that somebody else had  placed it in the tank, or that Deoman had seen someone placing that gandasa  in the tank or that someone had told him about  the gandasa  lying in the tank.  But for reasons already set out the  information given by Deoman is provable in so far as it distinctly  relates to the fact thereby discovered;  and his statement  that  he  had thrown the gandasa in the  tank  is information which distinctly relates to the discovery of the gandasa.   Discovery  from  its  place  of  hiding,  at  the instance  of Deoman of the gandasa stained with human  blood in  the light of the admission by him that he had thrown  it in  the  tank  in  which it  was  found  therefore  acquires significance,  and  destroys the theories suggested  by  the High Court."

   In  Mohmed Inayatullah v.  The State of Maharashtra [AIR 1976  SC 483] it was held that expression ’fact  discovered’@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ includes  not  only  the physical object produced  but  also@@ JJJJJJJJJJJJJJJJJJJ place  from  which it is produced and the knowledge  of  the accused  as to that.  Interpreting the words of Section  "so much  of the information" as relates distinctly to the  fact thereby   discovered,   the  Court   held  that   the   word "distinctly"  means  "directly", "indubitably",  "strictly", "unmistakably".   The word has been advisedly used to  limit and  define the scope of proveable information.  The  phrase "distinctly"  relates "to the fact thereby discovered".  The phrase  refers  to that part of information supplied by  the accused  which  is the direct cause of discovery of a  fact. The rest of the information has to be excluded.

   In Earabhadrappa alias Krishnappa v.  State of Karnataka [1983(2)  SCR 552] it was held that for the applicability of@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ section   27  of  the  Evidence   Act  two  conditions   are@@ JJJJJJJJJJJJJJJJJJJJJ pre-requisite,  viz.,  (i) information must be such  as  has caused  discovery of the fact, and (ii) the information must ’relate  distinctly’ to the fact discovered.  Under  Section 27  only so much of the information as distinctly relates to the  fact  really thereby discovered, is admissible.   While deciding  the  applicability of Section 27 of  the  Evidence Act,  the  Court  has  also to keep in mind  the  nature  of presumption  under Illustration (a) to (s) of Section 114 of the  Evidence  Act.  The Court can, therefore,  presume  the existence of a fact which it thinks likely to have happened, regard  being  had to the common course of  natural  events, human  conduct  and  public and private business,  in  their relations to the facts of the particular case.  In that case one  of  the  circumstance relied upon  by  the  prosecution against  the accused was that on being arrested after a year of  the  incident, the accused made a statement  before  the police leading to the recovery of some of the gold ornaments of  the  deceased  and her six silk sarees,  from  different places  which were identified by the witness as belonging to the deceased.  In that context the court observed:

   "There  is no controversy that the statement made by the appellant  Ex.P-35 is admissible under S.27 of the  Evidence Act.   Under  S.27  only  so  much  of  the  information  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14  

distinctly relates to the facts really thereby discovered is admissible.   The word ’fact means some concrete or material fact to which the information directly relates."

   In  a latest judgment this Court in State of Maharashtra v.  Damu, S/o Gopinath Shinde & Ors.  [2000 (6) SCC 269] has held  that  the  Section  27 was based on  the  doctrine  of confirmation  by  subsequent events and giving  the  section actual  and  expanding  meanings,  held:   "The  basic  idea embedded  in Section 27 of the Evidence Act is the  doctrine of  confirmation  by  subsequent events.   The  doctrine  is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a  prisoner,  such  a  discovery   is  guarantee  that   the information   supplied  by  the   prisoner  is  true.    The information  might  be confessional or non-  inculpatory  in nature,  but it results in discovery of a fact it becomes  a reliable  information.  Hence the legislature permitted such information  to  be  used  as evidence  by  restricting  the admissible  portion to the minimum.  It is now well  settled that  recovery  of an object is not discovery of a  fact  as envisaged  in section.  The decision of the Privy Council in Pulukuri  Kottaya  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."

   In  this case after the arrest of Sanjay appellant,  the extra-  judicial confession made by him to PW5 and recording the  statement of PW5 the investigating officer  apprehended the  other  accused  persons.  In  his  interrogation  Vinod appellant  made a confessional statement, a major portion of which  is inadmissible in evidence being hit by Sections  24 to  26  of the Evidence Act.  However, the relevant  portion which  was  used for recovery of the stolen property  is  as under:

   "I  got gold jewellery and watches which are lying at my house  at Shakarpur.  I can point out the same and get  them recovered.   Both shirts are lying at my house, one pant  at the  residence of my friend at Madipur, and I am wearing the pant  which  I washed (after commission of the offence).   I can  get  recovered  the Dagger and Katta from my  house  at Shakarpur and also above mentioned things."

   In  his  disclosure  statement accused Mohabat  Ali  had stated:   "I got gold jewellery watches, cameras and clothes which are lying at my home.  The revolver and kirpan used in the commission of the offence are also lying in my house.  I can  recovered  the  (looted)  property and  the  weapon  of offence  from  my  house  at Mangolpuri.   I  can  also  get arrested Ramkishan, the seller of the revolver."

   The  relevant portion of statement of accused Nawabuddin is as under:

   "I  took jewellery and watches of my and Sanjay’s  share to  my residence.  Sanjay dropped me on scooter.  I can  get recovered the (looted) property from my residence."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14  

   Raising objections to the words "after commission of the offence"  appearing in the disclosure statement of Vinod and "looted  property"  in  the  statement  of  Nawabuddin,  the learned  counsel for the appellants submitted that the whole of  the  statement  was  hit by Sections 24  to  26  of  the Evidence  Act  and  Section  162 of  the  Code  of  Criminal Procedure.   We  are not inclined to accept such  a  general statement.   Even  if  the  objectionable  words  (bracketed above)  are deleted, the appellants cannot be conferred with any  benefit  which would entitle them to acquittal.  It  is not  disputed that consequent upon the disclosure statements made, the articles mentioned therein were actually recovered at  their  instance from the place where such  articles  had been  hidden  by  them.  The mere use of the  words  "looted property"  in  relation  to the articles seized  which  were found  to  have been taken away after the commission of  the crime  of murder and robbery would not change the nature  of the  statement.  The words do not implicate the accused with the  commission of the crime but refer only to the nature of the  property hidden by them which were ultimately recovered consequent upon their disclosure statements.  Hypertechnical approach,  as projected by the defence counsel, would defeat the  ends  of  justice  and  have  disastrous  effect.   The property  recovered  consequent  upon   the  making  of  the disclosure  statements has been proved to be the property of the  deceased, stolen after the commission of the offence of robbery and murder.

   Besides  Section  27, the courts can  draw  presumptions under  Section 114, Illustrations (a) and Section 106 of the Evidence  Act.  In Gulab Chand v.  State of M.P.  [1995  (3) SCC 574] where ornaments of the deceased were recovered from the   possession  of  the   accused  immediately  after  the occurrence, this Court held:

   "It  is  true  that  simply on the  recovery  of  stolen articles,  no  inference  can  be drawn  that  a  person  in possession  of the stolen articles is guilty of the  offence of  murder  and robbery.  But culpability for the  aforesaid offences  will depend on the facts and circumstances of  the case  and  the  nature  of evidence adduced.   It  has  been indicated  by  this  Court  in  Sanwat  Khan  v.   State  of Rajasthan [AIR 1956 SC 54] that no hard and fast rule can be laid  down as to what inference should be drawn from certain circumstances.   It has also been indicated that where  only evidence   against  the  accused  is  recovery   of   stolen properties,  then  although the circumstances  may  indicate that  the theft and murder might have been committed at  the same  time,  it  is not safe to draw an inference  that  the person  in  possession of the stolen property had  committed the  murder.  A note of caution has been given by this Court by  indicating  that suspicion should not take the place  of proof.   It  appears  that  the High Court  in  passing  the impugned  judgment  has taken note of the said  decision  of this Court.  But as rightly indicated by the High Court, the said   decision  is  not  applicable   in  the   facts   and circumstances  of  the  present case.  The  High  Court  has placed reliance on the other decision of this Court rendered in  Tulsiram  Kanu v.  State [AIR 1954 SC 1].  In  the  said decision,  this  court  has indicated that  the  presumption permitted to be drawn under Section 114, Illustration (a) of the  Evidence Act has to be drawn under the ’important  time factor’.  If the ornaments in possession of the deceased are found  in  possession of a person soon after the  murder,  a presumption  of  guilt  may be permitted.   But  if  several

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14  

months  had expired in the interval, the presumption  cannot be  permitted to be drawn having regard to the circumstances of  the case.  In the instant case, it has been  established that  immediately on the next day of the murder, the accused Gulab  Chand had sold some of the ornaments belonging to the deceased  and  within  3-4 days , the recovery of  the  said stolen  articles was made from his house at the instance  of the  accused.   Such close proximity of the recovery,  which has  been  indicated  by this Court as  an  ’important  time factor’, should not be lost sight of in deciding the present case.  It may be indicated here that in a latter decision of this Court in Earabhadrappa v.  State of Karnataka [1983 (2) SCC  330],  this  Court  has held that  the  nature  of  the presumption  and  Illustration (a) under Section 114 of  the Evidence  Act  must  depend  upon  the  nature  of  evidence adduced.   No fixed time-limit can be laid down to determine whether  possession in the recent or otherwise and each case must  be  judged on its own facts.  The question as to  what amounts  to  recent  possession sufficient  to  justify  the presumption  of guilt varies according as the stolen article is  or is not calculated to pass readily from hand to  hand. If  the stolen articles were such as were not likely to pass readily  from  hand  to hand, the period of  one  year  that elapsed  cannot be said to be too long particularly when the appellant  had  been absconding during that period.  In  our view,  it  has been rightly held by the High Court that  the accused  was  not  affluent  enough   to  possess  the  said ornaments  and  from the nature of the evidence  adduced  in this  case  and from the recovery of the said articles  from his  possession  and his dealing with the ornaments  of  the deceased   immediately  after  the   murder  and  robbery  a reasonable  inference of the commission of the said  offence can  be drawn against the appellant.  Excepting an assertion that  the  ornaments belonged to the family of  the  accused which  claim  has  been   rightly  discarded,  no  plausible explanation  for  lawful  possession of the  said  ornaments immediately  after the murder has been given by the accused. In  the facts of this case, it appears to us that murder and robbery  have been proved to have been integral parts of the same transaction and therefore the presumption arising under llustration (a) of Section 114 Evidence Act is that not only the  appellant committed the murder of the deceased but also committed robbery of her ornaments."

   In the instant case also, the disclosure statements were made  by  the  accused  persons  on  the  next  day  of  the@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ commission  of the offence and the property of the  deceased@@ JJJJJJJJJJJJJJJJJJJJJJJJJJ was  recovered at their instance from the places where  they had  kept  such  properties, on the same day.  To  the  same effect  are  the  judgments in Mukund Alias Kundu  Mishra  & Anr.v.   State of M.P.  [1997 (10) SCC 130] and Ronny  Alias Ronald  James Alwaris & Ors.  v.  State of Maharashtra [1998 (3) SCC 625].  In the latter case the Court held:

   "Apropos  the recovery of articles belonging to the Ohol family  from the possession of the appellants soon after the robbery  and  the  murder of the  deceased  (Mr.Mohan  Ohol, Mrs.Ruhi  Ohol  and  Mr.Rohan  Ohol)  which  possession  has remained  unexplained  by  the appellants,  the  presumption under  Illustration  (a) of Section 114 of the Evidence  Act will  be attracted.  It needs no discussion to conclude that the  murder and the robbery of the articles were found to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14  

part  of the same transaction.  The irresistible  conclusion would, therefore, be that the appellants and no one else had committed the three murders and the robbery."

   The  disclosure statements by the accused persons  stand established by the testimony of Satish Khanna (PW22) and the investigating  officer.   The  trial court  was,  therefore, justified   in  relying  upon   the  circumstances  of   the disclosure  statements of the accused persons and consequent recovery  of  stolen property, blood stained shirt of  Vinod appellant  besides weapon of offence.  We find no  substance in  the submission of the learned defence counsel that as no independent witnesses were associated with the recoveries, a doubt  is created in the prosecution version.  Satish Khanna (PW22)  is the natural witness being brother of the deceased to  be present during the investigation when the accused are stated  to  have made the statements within the  meaning  of Section  27 of the Evidence Act.  Otherwise also there is no reason  to disbelieve the testimony of the IO Harbans  Singh (PW25).

   A  faint  attempt  was  made  by  the  counsel  for  the appellants  to persuade us to hold that the recoveries  were doubtful because according to them prosecution had failed to ascertain  the  details  of the stolen property and  get  it identified  only  after the recovery.  Mrs.Renu Moley,  PW17 who is the daughter of the deceased has deposed in the Court that she was called in the police station on 21st June, 1990 and  enquired  about  the articles missing from  her  house. After  checking  she found missing 8 gold bangles,  6  other gold  bangles,  6  pairs of ear- rings of gold, 6  pairs  of tops,  three  pairs  of ear-jhumkas,  one  Mangalsutra,  one ginni,  two  golden  rings, two idols of  Lord  Ganesha  and Goddess  Lakshmi  made  of silver, the plates of  silver  on which  Air  India  was engraved, one lady set of  silver,  8 wrist  watches,  4 cameras, 1 electric shaver, 5 sarees,  20 suit-pieces,  6  gents suit-pieces, stitched shirt, two  big bags  of  leather and one small bag.  She has  again  stated that  after  the recovery of the property from  the  accused persons  she  identified the articles and found them  to  be belonging to her mother, which were stolen on the day of her murder.  We do not agree with the counsel for the appellants that the recovery of the articles had preceded the making of the  disclosure  statements.  Learned counsel appearing  for the  appellants  Sanjay and Nawabuddin then  submitted  that even  if  the disclosure statements and the  recoveries  are admitted, their clients can at the most be convicted for the commission  of  offence  under Section 411 IPC.  We  do  not agree  with this submission as well in view of the fact that the  murder and robbery in the instant case were part of the same  transaction  and the accused from whom the  recoveries were  made, consequent upon their disclosure statements, did not  offer any explanation regarding their possession of the stolen  properties.  Drawing a presumption under Section 114 of the Evidence Act it can safely be held that the aforesaid two  accused  persons were atleast guilty of the offence  of robbery  punishable under Section 392 IPC on the  assumption that  they  were  not armed with any deadly weapon  and  not aware of Vinod appellant being armed with dagger.  The trial Court  was,  therefore,  justified  in  holding  that   "the circumstances  enumerated above together complete the  chain of  circumstances to prove the guilt of the accused  persons in  so  far as the offence of robbery is concerned.   Infact the  disclosure  statements of the accused persons and  huge recoveries  from  them  at  their instance by  itself  is  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14  

sufficient circumstance on the very next day of the incident which  clearly  goes  to show that the accused  persons  had joined  hands to commit the offence of robbery".  The  Court also  rightly held that, "Recent and unexplained  possession of  stolen  properties  will  be  taken  to  be  presumptive evidence  of the charge of murder as well.  (See Baijur  vs. State  of  Madhya Pradesh AIR 1978 SC Page 522).   Also  see Eara  Bhadrappa’s case (supra).  In the case of Gulab  Chand vs.   State  of Madhya Pradesh 1975 SCC page 574 quoted  its earlier  decision in Tulsi Ram’s case with approval that the presumption  permitted to be drawn under illustration 114(a) of the Evidence Act has to be read alongwith ’important time factor’.  If the ornaments in possession of the deceased are found  in possession of the person soon after the murder,  a presumption  of killing may be permitted.  In the said  case before the Supreme Court ornaments belonging to the deceased had been sold by accused Gulab Chand of that case and within 3-4  days the recovery of the stolen articles was made  from his  house  at the instance of the accused.  The court  held that  such  close proximity of the recovery which  has  been indicated by the court as ’important time factor’ should not be  lost sight of".  On the basis of the evidence led in the case  and  keeping in view the whole conspectus of the  case the  trial court rightly concluded that accused Vinod in the process  of  committing robbery used deadly weapon,  namely, dagger  and killing Smt.Sheela while the other three accused persons  have  participated  in the commission of  crime  of robbery  and  actually  removed   huge  articles   including jewellery from the house of the deceased.

   Shri  Ramsubramaniam,  Advocate,   appearing  as  Amicus Curaie  for accused Vinod submitted that as the  prosecution has  failed  to prove the origin of blood found on the  pant and shirt of vinod appellant, he could not be held guilty of the offence of murder.  Repelling such contention this Court in  State of Rajasthan v.  Teja Ram & Ors.  [JT 1992 (2)  SC 279] held:

   "Failure  of the Serologist to detect the origin of  the blood  due  to disintegration of the serum in the  meanwhile does not mean that the blood stuck on the axe would not have been  human  blood  at all.  Sometimes  it  happens,  either because   the   stain  is  too   insufficient  or   due   to haematological  changes  and  plasmatic coagulation  that  a serologist  might  fail to detect the origin of  the  blood. Will  it  then  mean that the blood would be of  some  other origin?   Such  guesswork that blood on the other axe  would have been animal blood in unrealistic and far-fetched in the broad  spectrum  of this case.  The effort of  the  criminal court should not be to prowl for imaginative doubts.  Unless the  doubt  is of a reasonable dimension which a  judicially conscientious  mind  entertains  with some  objectivity,  no benefit can be claimed by the accused."

   Following Teja Ram’s case this Court again in Gura Singh v.  State of Rajasthan [JT 2000 (Suppl.3) SC 528] held:@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   "We  do not find any substance in the submissions of the learned counsel for the appellant that in the absence of the report  regarding  the origin of the blood, the trial  court could  not  have convicted the accused.  The Serologist  and Chemical  Examiner  has  found it that  the  Chadar  (sheet) seized  in  consequence of the disclosure statement made  by the  appellant  was stained with human blood.  As  with  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14  

lapse  of time the classification of the blood could not  be determined,  no bonus is conferred upon the accused to claim any  benefit  on  the strength of such a belated  and  stale argument.   The trial court as well as the High Court  were, therefore,  justified in holding this circumstance as proved beyond doubt against the appellant."

   By   producing   positive   evidence,  the   prosecution established that appellant Vinod was in possession of a fire@@                  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ arm  and  cartridges  in  a  Notified  Area  of  Delhi  vide@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJ notification  No.F.25(3)  87-HP  dated 20.10.1987  and  thus guilty of the offence punishable under Section 5 of the TADA (P)  Act  besides  the offence of  murder  punishable  under Section  302 IPC.  We do not find any merit in these appeals which are accordingly dismissed.@@                       JJJJJJJJJJ