Himachal Pradesh High Court
Reserved On: 13.11.2024 vs Vijay Kumar Singh on 29 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 697 of 2022
Reserved on: 13.11.2024
Date of Decision: 29.11.2024
State of H.P. …Applicant.
versus
Vijay Kumar Singh ...Respondent.
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Applicant : Mr. Varun Chandel, Additional
Advocate General.
For the Respondent : None
Rakesh Kainthla, Judge
The State has filed the present application seeking leave
to appeal against the judgment dated 31.08.2021 passed by learned
Additional Sessions Judge-II, Solan, District Solan (learned Trial
Court) vide which the respondent (accused before learned Trial
Court) was acquitted of the commission of offences punishable
under Sections 302 & 201 of Indian Penal Code (in short ‘IPC’).
(Parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan against the accused for the
commission of offences punishable under Sections 302 and 201 of
IPC. It was asserted that Ram Rattan (PW9) Pradhan Gram
Panchayat Barotiwala informed the police on 03.06.2014 at 4 PM
that the naked dead body of Meena, wife of the accused, was found
in a water tank. An entry (Ex.PW13/C) was recorded in the Police
Station. SI/SHO Kashma Dutt (PW15), SI Anil Thakur, ASI
Manmohan Singh, ASI Naseem Khan, LC Rushpal, LC Raj Kumari,
and LC Kulwinder Devi went to the spot to verify the correctness of
the information. Up Pradhan Gurbaksh Singh (PW2), Harinder
Singh, Vijay Singh and other persons had gathered on the spot. The
dead body of a lady covered with the branches of a Sheesham tree
was found in an empty water tank. The signs of injuries and
strangulation marks were present on the body. Accused Vijay
Kumar identified the dead body as that of his wife Meena.
Gurbaksh Singh (PW2) made a statement (Ex.PW2/A) that he was
Up Pradhan of Gram Panchayat Barotiwala. Ram Rattan (PW9),
Pradhan told him telephonically on 03.06.2014 at 4 PM that Vijay
Singh informed Ram Rattan (PW9) about the discovery of the dead
body of his wife who had been missing since 01.06.2014. Ram
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Rattan also informed Gurbaksh Singh (PW2) that he had told the
police about the recovery of the dead body. It appeared that some
unknown persons had murdered Meena and put her dead body in
the water tank. Kashma Dutt (PW15) sent the statement
(Ex.PW2/A) to the Police Station through LC Rushpal. FIR
(Ex.PW12/A) was recorded in the Police Station. Inspector Kashma
Dutt (PW15) prepared the inquest report (Ex.PW15/A). He moved an
application (Ex.PW3/A) to the Medical Officer Civil Hospital
Nalagarh for conducting the postmortem examination of the
deceased. Dr. Amarjit Singh (PW3) conducted the postmortem
examination of the deceased. He found a fracture of thyroid
cartilage on the right side. It was not possible for him to opine
whether the injuries were antemortem or postmortem in nature
because of the highly decomposed state of the body. He preserved
the viscera and handed it over to the accompanying police official.
He issued the report (Ex.PW3/B). Inspector Kashma Dutt (PW15)
conducted the investigation. He took the photographs (Ex.PW15/B-
1 to Ex.PW15/B-9) with the help of an official camera. He found a
pair of slippers (Ex.P12) at a distance of 20-25 meters from the
spot. He put them in a parcel and sealed the parcel with five
impressions of seal ‘A’. The parcel was seized vide memo
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(Ex.PW2/B). Sample seal (Ex.PW2/C) was taken in possession. The
slippers were identified by the accused as belonging to his wife.
Inspector Kashma Dutt (PW15) seized blood-stained mud and dry
leaves in two different jars. These were put in a parcel and the
parcel was sealed with five impressions of seal ‘A’. These were
seized vide memo (Ex.PW2/D). He prepared the spot map
(Ex.PW15/C) and recorded the statements of witnesses as per their
version. The accused had reported to the police that his wife was
missing. Copy of missing report (Ex.PW13/A) was taken in
possession. Kashma Dutt (PW15) interrogated the accused. He
made a disclosure statement (Ex.PW2/E) that he could get the
hollow iron pipe recovered that was concealed by him in his jhuggi.
The accused led the police and the witnesses to his jhuggi from
where a hollow iron pipe (Ex.P10) was recovered concealed in a
wooden box. Its sketch (Ex.PW2/H) was prepared and it was seized
vide memo (Ex.PW2/G). The parcel was sealed with seal ‘E’. Sample
seal (Ex.PW2/J) was taken on a separate piece of cloth. The police
searched the jhuggi of the accused and recovered two shirts
(Ex.P14 and Ext. P17) and two trousers (Ex.P15 and Ex.P18). These
were sealed in two different parcels and seized vide memo
(Ex.PW2/K). Photographs of the recovery (Ex.PW15/D1 to
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Ext.PW15/D9) were taken. Spot map of the recoveries (Ex.PW15/E)
was prepared. The accused made another disclosure statement
(Ex.PW-2/R) that he could show the place where he had killed his
wife. He led the police to the place. Memo (Ex.PW2/M) was
prepared. Threads (Ex.P5) and a button (Ex.P2) were found on the
spot. These were put in a parcel and the parcel was sealed with five
seals impression of seal ‘E’. These were seized vide memo
(Ex.PW2/T). Spot map (Ex.PW15/F) of the place of recovery was
prepared. Photographs (Ex.PW15/G1 to Ex.PW15/G3) were taken.
The accused also made a disclosure statement (Ex.PW2/M) that he
could show the spot where he had burnt the clothes of his wife. The
accused led the police to the spot where he had burnt the clothes of
his wife. A memo of identification (Ex.PW2/Q) was prepared. Pieces
of half-burnt Sari along with the ashes were put in a jar. Controlled
samples from a distance were taken in a separate jar. The jars were
put in two separate parcels and each parcel was sealed with five
impressions of seal I. These were seized vide memo (Ex.PW2/P).
Seal impression (Ex.PW2/N) was taken on a separate piece of cloth.
The spot map of the recovery (Ex.PW2/H) was prepared. The
photographs of the spot (Ex.PW15/J1 to Ex.PW15/J3) were taken.
The blood sample of the daughter of the deceased was taken by Dr.
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Anil Kumar. It was seized vide memo (Ex.PW15/P). An
identification certificate (Ex.PW15/M) was prepared. The case
property was deposited with HC Randheer Singh (PW12) who
deposited it in Malkhana and made an entry (Ex.PW12/C) in the
register of Malkhana. He sent the case property to the SFSL Junga,
vide R.Cs. (Ex.PW12/D and Ex.PW12/E). The results of analysis
(Ex.PW17/A, Ex.PW18/A, Ex.PW18/B and Ex. PX) were issued
stating that no poison was detected in the viscera; human blood
was detected on the vaginal swab of the deceased, blood-stained
swab lifted from the spot and shirt of the accused; the controlled
sample of soil was similar to the sample lifted from the spot; the
threads recovered from the spot were similar to the threads found
in the shirt; the button recovered from the spot was similar to the
button of the shirt; the DNA profile obtained from the vaginal swab
of the deceased, and the blood sample on the FTA card were
consistent with the biological mother and the daughter; the DNA
profile obtained from the shirt of the accused pertained to a male
which did not match the DNA profile obtained from the vaginal
swab of the deceased; and the blood-stained soil lifted from the
spot yielded highly degraded, DNA, which did not show
amplification. Dr. Amarjit Singh (PW3) issued a final report after
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the receipt of the report of analysis stating that the head injury was
sufficient in the ordinary course to cause death and that
strangulation was possible in case a person is strangulated with a
cloth by Saree. The statements of the remaining witnesses were
recorded as per their version and after the completion of the
investigation, the challan was prepared and presented before the
learned Additional Chief Judicial Magistrate Kasauli who
committed it to learned Sessions Judge, Solan for trial. Learned
Sessions Judge, Solan assigned the case to learned Additional
Sessions Judge-II, Solan (learned Trial Court).
3. The learned Trial Court charged the accused with the
commission of offences punishable under Sections 302 and 201 of
IPC to which the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 17 witnesses to prove its
case. Santosh Kumar (PW1) and Tara Chand (PW6) accompanied
the accused in search of his wife. Gurbaksh Singh (PW2) is the
informant and witness to various recoveries. Dr. Amarjit Singh
(PW3) conducted the postmortem examination of the deceased.
Ami Chand (PW4) is the owner of the land where the jhuggies were
constructed. Shashi Pal (PW5) proved that the accused and his wife
were employed at Haripur Paper Company, Barotiwala. Devinder
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Kumar (PW7) is the Nodal Officer who proved the call details
record. Shashi Kant Verma (PW8) is the Nodal Officer of Idea
Cellular who proved the call details record. Ram Rattan (PW9) is
the Pradhan to whom the accused told about the recovery of the
dead body. HHC Baljit Singh (PW10), and HHC Rakesh Kumar
(PW11) carried the case property to SFSL, Junga. HC Randheer
Singh PW(12) was posted as MHC with whom the case property was
deposited. Constable Dev Raj (PW13) registered the FIR. LC Rushpal
(PW14) carried the rukka from the spot to the Police Station.
Inspector Kashma Dutt (PW15) conducted the investigation. Dr
Anil Kumar (PW16) preserved the blood sample of Sarswati, the
daughter of the deceased. Nasib Singh Patiyal (PW17) proved the
report of analysis. SI Daya Ram (PW18) prepared the
supplementary challan.
5. The accused in his statement recorded under Section
313 of Cr.P.C. admitted the relationship between him and the
deceased. He denied the rest of the prosecution case. He stated that
he had lodged the missing report with the police. A false case was
instituted against him and he was innocent. No defence was sought
to be adduced by the accused.
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6. The learned Trial Court held that the prosecution case
was based upon circumstantial evidence. The prosecution did not
examine the daughter of the deceased who was the best person to
depose about the relationship between the accused and the
deceased. The statement made by the accused under Section 27 of
the Indian Evidence Act can not lead to any inference that he had
committed the murder. The accused was searching for his wife and
the recovery of the button and the shirt of the accused in the
bushes near the tank from where the dead body was recovered
cannot lead to an inference that he had committed the murder. The
DNA report did not connect the blood found on the shirt of the
accused to the deceased. The pipe was not connected to the
commission of crime. The Medical Officer categorically stated that
he could not say whether the injuries sustained by the deceased
were antemortem or postmortem. The prosecution case was not
proved beyond a reasonable doubt; therefore, the accused was
acquitted.
7. Being aggrieved from the judgment passed by the
learned Trial Court, the State has filed the present application
seeking leave to appeal. It has been asserted that the learned Trial
Court failed to properly appreciate the evidence. The accused was
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acquitted on flimsy ground. The testimonies of prosecution
witnesses were discarded without any reason. The blowing pipe
was recovered at the instance of the accused. Gurbaksh Singh
(PW2) proved the disclosure statement and the recovery. The
accused had identified the place where he had set the clothes of his
wife on fire. He identified the place where he had strangulated his
wife. The police recovered the button and the threads from the
bushes. The call details record also proved the presence of the
accused near the place of the incident. Human blood was found on
the shirt of the accused for which no explanation was provided.
Therefore, it was prayed that the present application be allowed
and the leave to appeal be granted to the State.
8. We have heard Mr Varun Chandel, learned Additional
Advocate General for the applicant/State and have gone through
the records carefully.
9. Mr Varun Chandel, learned Additional Advocate General
for the applicant/State submitted that the learned Trial Court erred
in acquitting the accused. It was duly proved on record by the
circumstantial evidence that the accused had committed murder.
First, he had pointed out the tank from where the dead body was
recovered which can only lead to an inference that he was aware of
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the existence of the dead body in the water tank. He got the iron
pipe recovered. The Medical Officer stated that injuries caused to
the deceased could have been caused by the iron pipe. The button
and the threads of the shirt of the accused were found near the
place of the incident. The call details record also proved the
presence of the accused on the spot. All these circumstances taken
together can lead to only one inference that the accused had
committed the murder of the deceased and learned Trial Court
erred in acquitting the accused. Hence, he prayed that the
application be allowed and the leave to appeal be granted to the
State.
10. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
11. The present appeal has been filed against a judgment of
acquittal. It was laid down by the Hon’ble Supreme Court in
Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine
SC 130 that while deciding an appeal against acquittal, the High
Court should see whether the evidence was properly appreciated on
record or not; second whether the finding of the Court is illegal or
affected by the error of law or fact and thirdly; whether the view
taken by the Trial Court was a possible view, which could have been
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taken based on the material on record. The Court will not lightly
interfere with the judgment of acquittal. It was observed:
“25. We may first discuss the position of law regarding the
scope of intervention in a criminal appeal. For, that is the
foundation of this challenge. It is the cardinal principle of
criminal jurisprudence that there is a presumption of
innocence in favour of the accused unless proven guilty. The
presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The
presumption of innocence gets concretised when the case
ends in acquittal. It is so because once the trial court, on
appreciation of the evidence on record, finds that the
accused was not guilty, the presumption gets strengthened
and a higher threshold is expected to rebut the same in
appeal.
26. No doubt, an order of acquittal is open to appeal and
there is no quarrel about that. It is also beyond doubt that in
the exercise of appellate powers, there is no inhibition on the
High Court to reappreciate or re-visit the evidence on record.
However, the power of the High Court to reappreciate the
evidence is a qualified power, especially when the order
under challenge is of acquittal. The first and foremost
question to be asked is whether the trial court thoroughly
appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second
point for consideration is whether the finding of the trial
court is illegal or affected by an error of law or fact. If not,
the third consideration is whether the view taken by the trial
court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What
is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
“two-views theory” has been judicially recognised by the
courts and it comes into play when the appreciation of
evidence results in two equally plausible views. However, the
controversy is to be resolved in favour of the accused. For,
13
2024:HHC:12712the very existence of an equally plausible view in favour of
the innocence of the accused is in itself a reasonable doubt in
the case of the prosecution. Moreover, it reinforces the
presumption of innocence. Therefore, when two views are
possible, following the one in favour of the innocence of the
accused is the safest course of action. Furthermore, it is also
settled that if the view of the trial court, in a case of
acquittal, is a plausible view, it is not open for the High Court
to convict the accused by reappreciating the evidence. If such
a course is permissible, it would make it practically
impossible to settle the rights and liabilities in the eye of the
law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp.
236-37, para 13)
“13. Considering the reasons given by the trial court and
on an appraisal of the evidence, in our considered view,
the view taken by the trial court was a possible one. Thus,
the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M.
Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N.,
(2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that
as the appreciation of evidence made by the trial court
while recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High
Court while reversing the acquittal has been dealt with by
this Court, thus : (SCC p. 643, para 9)
‘9. … We are constrained to observe that the High
Court was dealing with an appeal against acquittal. It
was required to deal with various grounds on which
acquittal had been based and to dispel those grounds.
It has not done so. Salutary principles while dealing
with appeal against acquittal have been overlooked by
the High Court. If the appreciation of evidence by the
trial court did not suffer from any flaw, as indeed none
has been pointed out in the impugned judgment, the
order of acquittal could not have been set aside. The
view taken by the learned trial court was a reasonable
view and even if by any stretch of imagination, it could
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be said that another view was possible, that was not a
ground sound enough to set aside an order of
acquittal.'”
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6
SCC 294: (2022) 2 SCC (Cri) 522], the Hon’ble Supreme Court
analysed the relevant decisions and summarised the
approach of the appellate court while deciding an appeal
from the order of acquittal. It observed thus: (SCC p. 297,
para 7)
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in
acquitting the accused must be dealt with, in case the
appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :
(2021) 1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal matter
gets reinforced (see Atley v. State of U.P. [Atley v. State
of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow
in interfering with the appeal against acquittal
(see Sambasivan v. State of Kerala [Sambasivan v.
State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri)
1320]).”
12. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
13. Santosh Kumar (PW1) stated that he went to the Police
Station on 05.06.2014 and the accused told in his presence that his
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wife was talking to someone in Bengal on her Mobile Phone and he
had killed her with a stick and strangulated her with a Saree. He
lodged the missing report so that nobody could suspect his
involvement. He specifically stated in his cross-examination that
the accused was in police custody on 05.06.2014. The Police Officer
told him in the Police Station that he would make him (Santosh
Kumar) hear what the accused had told the previous night.
14. This statement clearly shows that the accused was in
police custody and the statement made by the accused to the police
heard by this witness cannot be proved in view of Section 26 of the
Indian Evidence Act which prohibits the reception of any
confession made by the accused while in custody. In King-Emperor
v. Pancham, 1933 SCC OnLine Oudh CC 198: 1933 OWN 348 the
accused was in the custody of a village chowkidar who went away
and the accused confessed to the villagers. It was held that the
confession was hit by Section 26 of the Indian Evidence Act as the
accused was in custody when he had confessed. It was observed at
page 354:
“The learned Government Advocate has in the first place laid
great stress upon the evidence adduced on behalf of the
prosecution which goes to prove that the accused Pancham
admitted his guilt before independent and respectable
villagers the day after the murder had been committed. The
16
2024:HHC:12712evidence in proof of this extra-judicial confession said to
have been made by the accused Pancham consists of the
testimony of Bhabhuti Singh (P.W. 12), Gajraj Singh (P.W. 13)
and Lila (P.W. 15). We are of opinion that it is not open to the
prosecution to prove this extra-judicial confession of
Pancham in the present case in view of the provisions of
section 26 of the Indian Evidence Act. Section 26 of the
Indian Evidence Act is as follows:–
“No confession made by any person whilst he is in the
custody of a Police Officer unless it be made in the
immediate presence of a Magistrate, shall be proved as
against such person.”
It follows from this section that only if the confessing
accused is not in the custody of the police can any confession
made by him to any third person be admissible in evidence.
In the present case the evidence of the prosecution
witnesses which goes to prove the extra-judicial confession
itself shows that the accused Pancham was in the custody of
the village chaukidar Himma when he admitted his guilt
before certain villagers. In Empress v. Lester [20 Bom. 165.], it
was held by the Acting Chief Justice of the Bombay High
Court that when a person had been arrested on a charge of
murder and while in the temporary absence of the policeman
had made a confession to a friend, such a confession was not
admissible in evidence in view of the provisions of section
26 of Act 1 of 1872. It was further held that notwithstanding
the temporary absence of the policemen the accused was
still in police custody and that in view of section 26 of the
Indian Evidence Act, the question relating to the confession
of the prisoner must be disallowed.
Again in Emperor v. Mallangowda [42 Bom. 1.], the facts were
that an accused, (an under trial prisoner) was sent up by the
Magistrate in whose lockup he was in the custody of two
policemen to a hospital for treatment and the policemen
made him over to the doctor and waited in the verandah to
take him back and while with the doctor in his room, the
accused made a confession of his guilt. At the trial, the
confession was allowed to be proved. A question having
arisen whether the confession was properly let in, it was
held that the confession was excluded by the provisions of
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section 26 of the Indian Evidence Act because the accused
who was in police custody up to his arrival at the hospital
remained in that custody while the policemen were standing
outside on the verandah.
Similarly in Gurdial Singh v. King Emperor [139 Ind. Cas. 429.],
it was held by the Lahore High Court that the expression
“police custody” to be found in section 27 of the Indian
Evidence Act did not necessarily mean formal arrest but that
it also included some form of police surveillance and
restriction on the movements of the person concerned by
the police.
In Emperor v. Sheo Ram [108 Ind. Cas. 398.], the facts were
that the accused was a postmaster who had been in the
police lock-up for three days and was brought out
temporarily and taken to the house of the Superintendent of
Post Offices and before that officer, the accused made a
confession and was again brought back to the lock-up. In
these circumstances, it was held that no breach of the police
custody was occasioned by the temporary separation of the
accused from the sub-inspector of police and the confession
made by the accused was inadmissible in evidence.
In Maung Lay v. King Emperor [1 Rang 609.], it was held by
the High Court at Rangoon that as soon as an accused person
or a suspected person came into the hands of a police officer,
he was in the absence of clear and unmistakable evidence to
the contrary, no longer at liberty and was therefore in the
custody of the police within the meaning of sections 26 and
27 of the Indian Evidence Act.
It follows from the rulings cited above that the extrajudicial
confession alleged to have been made by Pancham before
certain villagers is not admissible in evidence in view of the
provisions of section 26 of the Indian Evidence Act because
Pancham was in police custody at the time. It has been held
by Mr Justice Lindsay in Dal v. King Emperor [1 O L J 687.],
that a village chaukidar is a police officer within the
meaning of section 25 of the Indian Evidence Act, and this
ruling has been followed by this Court in all subsequent
cases.
The result, therefore, is that we must exclude from our
consideration the evidence of the villagers P.W. 12 Bhabhuti
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Singh, P.W. 13 Gajraj Singh and P.W. 15 Lila, so far as it
concerns the extra-judicial confession said to have been
made by Pancham in their presence. Ground No. 4 of the
memorandum of appeal must therefore fail.”
15. It was laid down by the Hon’ble Supreme Court in
Kartar Singh v. State of Punjab, (1994) 3 SCC 569: 1994 SCC (Cri) 899
that the confession made by the accused in the custody of the
police officer is inadmissible. It was observed at page 722:
“383….Sections 24 to 30 of the Evidence Act deal with the
provability or relevancy of a confession. A confession made
by an accused person is irrelevant if it appears to the court to
have been caused by inducement, promise or threat having a
reference to the charge proceeding from a person in
authority. By Section 25 there is an absolute ban at the trial
against proof of a confession to a police officer, as against a
person accused of any offence. The partial ban under Section
24 and total ban under Section 25 applied equally with
Section 26 that no confession made to any person while the
accused is in the custody of a police officer unless it is made
in the immediate presence of a Magistrate, shall be proved
as against such person. Section 27 makes an exception to
Sections 24, 25 and 26 and provides 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
provisions in Sections 28 to 30 are not relevant for
discussion. The fascicule of Sections 24 to 30 aims to
zealously protect the accused against becoming the victim of
his own delusion or the mechanisation of others to self-
incriminate in crime. The confession, therefore, is not
received with assurance, if its source be not omni suspicious
mojes, above and free from the remotest taint of suspicion.
The mind of the accused before he makes a confession must
be in a state of perfect equanimity and must not have been
19
2024:HHC:12712operated upon by fear, hope or inducement. Hence threat
promise or inducement held out to an accused makes the
confession irrelevant and excludes it from consideration. A
confession made to a police officer while the accused is in
custody or made before he became an accused, is not
provable against him on any proceeding in which he is
charged to the commission of the said offence. Equally, a
confession made by him, while in the custody of the police
officer, to any person is also not provable in a proceeding in
which he is charged with the commission of the offence
unless it is made in the immediate presence of the
Magistrate. The police officer is inherently suspected of
employing coercion to obtain a confession. Therefore, the
confession made to a police officer under Section 25 should
totally be excluded from evidence. The reasons seem to be
that the custody of police officers provides easy
opportunities of coercion for extorting confession. Section
25 rests upon the principle that it is dangerous to depend
upon a confession made to a police officer which cannot
extricate itself from the suspicion that it might have been
produced by the exercise of coercion or by enticement. The
legislative policy and practical reality emphasise that a
statement obtained, while the accused is in police custody,
truly be not the product of his free choice. So a confessional
statement obtained by the law enforcement officer is
inadmissible in evidence.”
16. It was held in M.V. Mahesh v. State of Karnataka, 1995 SCC
OnLine Kar 244 : (1995) 5 Kant LJ 712: 1996 Cri LJ 771 that a confession
made in the presence of the police official to a reporter cannot be proved.
It was observed at page 734:
31. The next circumstance relied on by the prosecution to
drive home the guilt of the accused is the extra-judicial
confession supposedly made by the accused-appellants
before P.W. 27, a press reporter. The report of the confession
is published in the newspaper and the same is produced at
Ex. P-29. P.W. 27 – Alan Mendonsa is a reporter for the
20
2024:HHC:12712Indian Express daily. He has stated that after learning that the
appellants were in police custody he went to the Rajajinagar
police station and saw the accused he talked with them and
put them certain questions and the two accused answered
his questions and whatever they told him was published in
the Indian Express daily on 27-8-1988 and a copy of the said
publication is produced at Ex. P-39(a). This witness admits
that he talked with the accused when the accused were in
police custody. He also admits that Sub-Inspector was there
with him and plain clothes police were also speaking with
the accused when he went there. Section 26 of the Evidence
Act lays down that no statement made by any person while
he is in the custody of a Police Officer unless it is made in the
presence of a Magistrate shall be proved against the said
person. It is not the evidence of P.W. 27 that there was any
Magistrate present in the police station at the time when the
two appellants were alleged to have made the statements. As
per the admission of the witness himself, the appellants
were in police custody and the Police Officials were also
present there. In view of these admissions, Ex. P-39(a) is hit
by the provisions of Section 26 of the Evidence Act and the
alleged statement cannot be held to have been proved
against the accused/appellants. It is admitted by P.W. 27 in
his evidence that D.C.P. West, Bharani was present when he
went there and he gave the history of the case to all the
newspapers and the same was published. His admission that
the papers published the history given to them by Bharani
goes to show that he had known the history of the case from
the D.C.P. Thus, the extra-judicial confession cannot be
treated as held to have been proved against the accused.
17. It was laid down by the Hon’ble Supreme Court in
Allarakha Habib Memon v. State of Gujarat, (2024) 9 SCC 546: 2024
SCC OnLine SC 1910 that a confession recorded by a doctor of an
accused in custody is inadmissible being hit by section 26 of Indian
Evidence Act. It was observed at page 570:
21
2024:HHC:12712
“39. The trial court as well as the High Court, placed
extensive reliance on the confessions of the appellants-
accused Mohmedfaruk alias Palak Safibhai Memon and
Amin alias Lalo recorded by the Medical Officer, Dr
Arvindbhai (PW 2) while preparing the injury reports of the
accused.
40. We find that these so-called confessions are ex-
facie inadmissible in evidence for the simple reason that the
accused persons were presented at the hospital by the police
officers after having been arrested in the present case. As
such, the notings made by the Medical Officer, Dr
Arvindbhai (PW 2) in the injury reports of Mohmedfaruk
alias Palak and Amin alias Lalo would be clearly hit by
Section 26 of the Evidence Act, 1872 (hereinafter being
referred to as “the Evidence Act”). As a consequence, we are
not inclined to accept the said admissions of the accused as
incriminating pieces of evidence relevant under Section 21 of
the Evidence Act. The circumstance regarding the
identification of place of incident at the instance of the
accused is also inadmissible because the crime scene was
already known to the police and no new fact was discovered
in pursuance of the disclosure statements.”
18. Therefore, the learned Trial Court had rightly rejected
this piece of evidence.
19. Santosh Kumar (PW1) stated that he joined the accused
to search his wife in the adjoining area. They went for about half a
kilometre in a jungle, when the accused pointed out to an empty
water tank and said that some freshly cut branches of the tree had
been put therein. Accused and Mukesh went down in the tank. They
removed the branches and found the dead body of the wife of the
accused in a naked condition. She had sustained injuries.
22
2024:HHC:12712
20. Tara Chand (PW6) stated that on 03.06.2014 about 15-
20 inhabitants of the shanties searched in the adjoining area for
the wife of the accused. Santosh asked to check the empty water
tank. The accused was also told to check the empty water tank.
Mukesh, Santosh and the accused went into the water tank and
found the dead body covered with the branches of Sheesham. He
stated in his cross-examination that the dead body was not visible
from above. The branches lying in the water tank were noticed by
Santosh, Mukesh and other persons. The accused was on the other
side. He was called near the empty water tank.
21. The testimony of this witness shows that the water tank
was checked at the instance of Santosh and it was a routine
checking. Tara Singh specifically stated that Santosh and not the
accused had told them to check the empty water tank. Therefore
the statement of Santosh that the accused had asked the persons to
check the water tank cannot be believed. Hence, this circumstance
will not establish the complicity of the accused.
22. The prosecution asserted that the accused suspected
that his wife was talking to some person from Bengal. Learned
Trial Court had rightly pointed out that the statement of the
daughter of the deceased was essential to prove this fact. Being the
23
2024:HHC:12712
inmate of the house, she was the best person to depose about the
relationship between the accused and his wife. Learned Trial Court
had rightly drawn an adverse inference against the accused in the
absence of the examination of the daughter of the deceased.
23. The prosecution relied upon the recovery of the iron
pipe. Learned Trial Court had rightly pointed out that this iron pipe
is not connected to the commission of crime. The iron pipe was not
sent to SFSL, Junga to determine whether it contained the blood on
it or not. Dr Amarjit Singh (PW3) categorically stated in his
examination-in-chief that in view of the highly decomposed state
of the body, it was not possible to opine whether the injuries were
antemortem or postmortem. He stated that the injuries can be
caused by an article like an iron pipe. He again clarified in the
cross-examination that it was not possible to opine about the
strangulation and the injuries due to the decomposition of the
body. Therefore, the medical evidence does not unequivocally show
that the deceased had sustained injuries from the iron pipe
recovered by the accused; hence, the recovery of the iron pipe does
not connect the accused with the commission of crime.
24. The prosecution relied upon the recovery of the blood-
stained shirt; however, the DNA analysis did not connect the blood
24
2024:HHC:12712
to the deceased as the same does not show that the DNA profile
taken from the blood on the shirt of the deceased matched with the
DNA profile taken from the blood of the deceased. Hence, the
presence of blood stains on the shirt will not help the prosecution.
25. The prosecution also relied upon the recovery of the
button and the threads from the spot. The site plan (Ex.PW15/F)
shows that the place from where the thread and button were
recovered was at a distance of about 80 meters from the water
tank. It is an admitted case of the prosecution that the accused was
searching for his wife when the dead body was recovered.
Therefore, the recovery of the button and the thread from the
vicinity of the water tank from where the dead body was found
cannot lead to an inference that the accused had murdered the
deceased at that place. The fact that the threads were entangled in
the berries can also lead to an inference that these were trapped
while passing through the bushes. Therefore, this piece of evidence
will not help the prosecution.
26. The prosecution has also relied upon the recovery of the
burnt pieces of Saree. The disclosure memo (Ex.PW-2/E) shows
that the accused stated that he could show the place where the
clothes were burnt and this place was known to him. The site plan
25
2024:HHC:12712
(Ex.PW15/H) shows the place from where the burnt pieces of
clothes were found was an open place. There is no evidence that the
burnt pieces were hidden. It was laid down by the Hon’ble Supreme
Court in Manjunath v. State of Karnataka, 2023 SCC OnLine SC 1421,
that where the recoveries were effected from a place accessible to
the public, the same cannot be relied upon. It was observed:
“25. The next aspect is the recovery of the alleged weapons,
we have noted the particulars thereof while discussing the
findings of the Trial Court. Such recoveries were discarded
by the trial court stating that the clubs were recovered from
a place accessible to the public and, the chopper and the rods
were recovered from a house where other persons were also
residing which compromises the sanctity of such recovery
and takes away from the veracity thereof.
26. Further discovery made, to be one satisfying the require-
ments of Section 27, Indian Evidence Act it must be a fact
that is discovered as a consequence of information received
from a person in custody. The conditions have been dis-
cussed by the Privy Council in PulukuriKotayya v. King Em-
peror 1946 SCC OnLIne PC 47 and the position was reiterated
by this Court in Mohd. Inayatullah v. State of Maharashtra
(1976) 1 SCC 828, in the following terms:–
“12…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 informa-
tion 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 infor-
mation 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 dis-
covered is admissible. The rest of the information has to
be excluded. The word “distinctly” means “directly”,
“indubitably”, “strictly”, or “unmistakably”. The
word has been advisedly used to limit and define the
26
2024:HHC:12712scope of the provable information. The phrase “dis-
tinctly 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…”
(Emphasis supplied)
27. Prima facie, in the present facts, the 3 conditions above
appear to be met. However, the Trial Court held, given that
the discoveries made were either from a public place or from
an area where other persons also resided, reliance there-
upon, could not be made. We find this approach of the trial
court to be correct.
27.1 This court has, in various judgments, clarified this posi-
tion. Illustratively, in Jaikam Khan v. State of U.P. (2021) 13
SCC 716 it was observed:–
“One of the alleged recoveries is from the room where
deceased Asgari used to sleep. The other two recover-
ies are from the open field, just behind the house of
deceased Shaukeen Khan i.e. the place of the inci-
dent. It could thus be seen that the recoveries were
made from the places, which were accessible to one
and all and as such, no reliance could be placed on
such recoveries.”
27.2 Also, in Nikhil Chandra Mondal v. State of W.B. (2023) 6
SCC 605 the Court held:–
“20. The trial court disbelieved the recovery of clothes
and weapons on two grounds. Firstly, that there was
no memorandum statement of the accused as required
under Section 27 of the Evidence Act, 1872 and sec-
ondly, the recovery of the knife was from an open
place accessible to one and all. We find that the ap-
proach adopted by the trial court was in accordance
with the law. However, this circumstance which, in
our view, could not have been used, has been em-
ployed by the High Court to seek corroboration to the
extra-judicial confession.”
28. As reflected from the record, and in particular the testi-
mony of PW-15 it is clear that the discovery (stick as shown
by A10, for instance) was a eucalyptus stick, found from the
eucalyptus plantation, which indisputably, is a public place
27
2024:HHC:12712
and was found a week later. A second and third stick pur-
portedly found half a kilometre away on that day itself, was
found by a bush, once again, a place of public access. Two
further sticks recovered at the instance A6 and A7, were also
from public places. An iron chain produced from the house
of A1 and A2 is not free from the possibility that any of the
other occupants of their house were not responsible for it.
We, further cannot lose sight of the fact that sticks, whether
bamboo or otherwise, are commonplace objects in village
life, and therefore, such objects, being hardly out of the or-
dinary, and that too discovered in places of public access,
cannot be used to place the gauntlet of guilt on the accused
persons.
27. Therefore, no advantage can be derived from the
recovery of the burnt pieces.
28. The site plan (Ex.PW15/H) also shows that the place was
at a distance of about 300 meters from the water tank from where
the recovery was effected. The police and other persons had already
visited the spot on the date of the discovery of the dead body and it
is highly unlikely that they would not have noticed the burnt pieces
on that day. It was held by Allahabad High Court in Amin v. State,
1957 SCC OnLine All 331: AIR 1958 All 293: 1958 Cri LJ 462 that where
the investigating officer could have effected the recovery earlier,
the subsequent recovery at the instance of the accused is suspect. It
was observed at page 303:
“109. Sri Naim appears to us to be quite capable of
recovering the ornaments on the 13th and staging a recovery
on the 16th. The story of the division of these ornaments is
also highly suspicious and seems to us to be an attempt to
28
2024:HHC:12712incriminate Shrimati Shakira by proving her exclusive
possession over some of the property. It does not stand to
reason that the mother and son would divide the ornaments,
and, even if they intended to do so, they will do it
immediately and will not bury them at the same place.”
29. Delhi High Court also took a similar view in Vijay Kumar
v. State, 1995 SCC OnLine Del 364 : (1995) 60 DLT 261: 1996 Cri LJ
2429 : (1995) 2 ALT (Cri) (NRC 2) 23 and observed at page 271:
42. As far as the recovery of a piece of hockey from the room
of the appellant, Vijay, is concerned, the said piece of hockey
was not lying hidden anywhere. A casual search of the room by
the police would have yielded the said piece of hockey. Section
27 of the Evidence Act could make such a disclosure statement of
the accused in custody admissible which leads to the discovery of
a material fact but if a material fact is self-evident to the police,
the disclosure statement of the accused of such material fact
becomes inadmissible. In case a particular material fact is in
exclusive knowledge of the accused and he makes a
disclosure statement pertaining to the same which leads to
recovery of such material fact, then and then only such
disclosure statement of the accused is admissible in
evidence. So, this recovery of a piece of hockey cannot be
linked to the accused Vijay in view of the above reasons.
Moreover, Premwati had stated in Court that Vijay had
thrown away the second piece of hockey outside his house. If
that is so, the disclosure statement of the appellant, Vijay,
becomes all the more doubtful. (Emphasis supplied)
30. It was held in Mani v. State of T.N., (2009) 17 SCC 273:
(2011) 1 SCC (Cri) 1001: 2008 SCC OnLine SC 75 that the discovery of
an article at some distance from a dead body at the instance of the
accused cannot be believed because it is difficult to believe that the
29
2024:HHC:12712investigating officer would not have searched the nearby places
after the discovery of the dead body. It was observed at page 278:
24. Now, it is nobody’s case that at the time the discovery
was made by Accused 1, Accused 2 also made certain
discoveries. Therefore, the witness (PW 15) was not certain
as to who made the discovery. This is apart from the fact that
discovery admittedly was made from 300 ft away from the
dead body of Sivakumar and after Sivakumar’s body was
inspected by PW 14 as early as 25-11-1996. It would be
impossible to believe that the Inspector did not search the
nearby spots and that all the articles would remain
(sic remained) in the open, unguarded till 6-12-1996 when the
discovery had allegedly been made. This was nothing but a
farce of a discovery and could never have been accepted
particularly because all the discovered articles were lying in
bare open barely 300 ft away from the body of the deceased
Sivakumar.” (Emphasis supplied)
31. The prosecution also relied upon pointing out the place
by the accused where the murder was committed, however, no
recovery was effected from that spot, in the absence of which the
statement will not be admissible under section 27 of the Indian
Evidence Act. It was laid down by the Hon’ble Supreme Court in
State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri)
1088: 2000 SCC OnLine SC 842 that where no recovery was effected
from the place, the statement is inadmissible. It was observed at
page 283:
“37. How did the particular information lead to the
discovery of the fact? No doubt, the recovery of the dead
body of Dipak from the same canal was antecedent to the
information which PW 44 obtained. If nothing more was
30
2024:HHC:12712recovered pursuant to and subsequent to obtaining the
information from the accused, there would not have been any
discovery of any fact at all. But when the broken glass piece
was recovered from that spot and that piece was found to be
part of the tail lamp of the motorcycle of A-2 Guruji, it can
safely be held that the investigating officer discovered the
fact that A-2 Guruji had carried the dead body on that
particular motorcycle up to the spot.” (Emphasis supplied)
32. The reference was made to the call detail records. The
learned Trial Court had rightly pointed out that since the accused
had visited the spot to search his wife, therefore, his presence near
the place from where the dead body was recovered cannot lead to
an inference that he had murdered his wife.
33. Therefore, the learned Trial Court had taken a
reasonable view while acquitting the accused and the leave to
appeal cannot be granted; hence, the present application fails and
the same is dismissed
34. A copy of this judgment along with the records of the
learned Trial Court be sent back forthwith. Pending miscellaneous
application(s), if any, also stand(s) disposed of.
(Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
29th November, 2024
(Nikita)