Punjab-Haryana High Court
Mohan Singh vs State Ofpb on 5 November, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:143345-DB
CRA-D-122-DB-2004 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CRA-D-122-DB-2004 (O&M)
Reserved on: 23.10.2024
Date of Decision: 05.11.2024
Mohan Singh ......Appellant
Versus
State of Punjab ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Bhawan Deep Jindal, Advocate and
Mr. Rajpal Singh, Advocate
for the appellant.
Mr. Maninderjit Singh Bedi, Addl. A.G., Punjab.
****
SURESHWAR THAKUR, J.
1. The instant appeal is directed against the impugned verdict, as
made on 9.12.2003, upon Sessions Case No. 28/3.10.2001, by the learned
Additional Sessions Judge (Adhoc), Fast Track Court, Patiala, wherethrough
in respect of charges drawn against the accused qua offence punishable
under Sections 302/34 IPC, the learned trial Judge concerned, proceeded to
record a finding of conviction against accused-appellant Mohan Singh.
However, the co-accused namely, Joginder Singh and Bimaljit Kaur alias
Bimla Rani were acquitted of the charges framed against them.
2. Moreover, through a separate sentencing order dated
10.12.2003, the learned trial Judge concerned, sentenced the convict-
appellant to undergo imprisonment for life for an offence punishable under
302/34 IPC, besides also imposed, upon the said convict-appellant sentence
of fine, as comprised in a sum of Rs. 5000/-, and, in default of payment of
fine amount, he sentenced the convict-appellant to undergo rigorous
imprisonment for a period of two years.
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3. Since the State of Punjab has not challenged the verdict of
acquittal pronounced qua co-accused namely, Joginder Singh and Bimaljit
Kaur alias Bimla Rani, therefore the said verdict of acquittal, as pronounced
qua the supra, thus acquires a binding and conclusive effect.
4. Earlier vide order dated 22.7.2019 passed by a Division Bench
of this Court, the instant appeal was partly allowed, and, the conviction of
the appellant was converted from an offence punishable under Section 302
IPC to an offence punishable under Section 304 Part II IPC. While hearing
the appellant-convict on quantum of sentence, on 9.8.2019, the convict-
appellant was sentenced to the period of imprisonment already undergone by
him, and, he was ordered to be released forthwith if not required in any other
case.
5. The verdict (supra) became challenged by the State of Punjab
by filing Criminal Appeal No. 2221 of 2024 before the Hon’ble Supreme
Court of India, which became allowed through a verdict made thereons, on
23.4.2024, and, the judgment (supra) passed by this Court was set aside and
the matter became remanded to this Court to decide the instant appeal on
merits and also on the question of alteration of conviction and sentence. The
relevant paras of the verdict (supra) made by the Apex Court become
extracted hereinafter.
“After having heard learned counsel appearing for the parties
and on perusal of the judgment of the High Court, it is necessary
to find out that what were the reasons recorded by the High Court
to alter the conviction of respondent from Section 302 to Section
304 Part II of the IPC. From the reasoning afore-quoted, it is not
clear that how the present case falls within the purview of
culpable homicide not amounting to murder. The exceptions
carved out under Section 300 of IPC has not been duly dealt with2 of 26
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in the context of the prosecution evidence brought in the
impugned judgment, specifying the reason of altering the
conviction to Section 304 Part II of IPC. Therefore, we find
substance in the arguments of the learned counsel for the State
that without assigning reasons the conviction of respondent under
Section 302 of IPC was set aside, convicting him under Section
304 Part II of IPC.
In consequence, this appeal is hereby allowed. The
impugned judgment of the High Court stands set aside and the
matter is remitted back to High Court. The Criminal Appeal No.
CRA-D-122-DB-2004 be restored to its file and be decided on its
own merits not only on the question of alteration of conviction
and sentence including all other points raised by the parties.
x x x x"
Factual Background
6. The genesis of the prosecution case, becomes embodied in the
appeal FIR, to which Ex. PW11/A is assigned. As per the prosecution case,
on 25.4.2001, SI Amarjit Singh Incharge Police Post Division No. 4, Patiala
was discharging the duties of SHO, Police Station Kotwali Patiala. Niranjan
Singh son of Bhajan Singh along with Sagar Singh son of Kishan Singh
made statement inter alia that he was working as lineman in North Sub
Division Punjab State Electricity Board. They were eight brothers and
sisters. Jang Singh was the youngest. Jang Singh was employed with Mohan
Singh alias Pulli as a Driver. On 24.04.2001, Mohan Singh alias Pulli took
his brother Jang Singh from his house. In the morning, Mohan Singh alias
Pulli came to their house at about 8.30 A.M. He told him that Jang Singh
was lying in Peer Baba Samadh, Turri Bazar, Nabha Gate, Patiala. They had
taken liquor together. They should go to see Jang Singh. He sent his brother
Bhola Singh and son Rajesh Singh with Mohan Singh to see Jang Singh. At
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about 9.00 A.M. his brother and son told him that Jang Singh was lying dead
in the Samadh of Peer Baba. He along with his brother Bhola, son Rajesh
Singh and Sagar Singh went to Samadh of Peer Baba Turri Bazar, Patiala.
When they saw the dead body of Jang Singh, they did not notice any injury
on his person but his forehead was somewhat smeared with blood and froth
was coming out from the left side of his mouth. On the basis of the said
statement, the appeal FIR was registered.
Investigation proceedings
7. During the course of investigations, the dead body of the
deceased was sent for post-mortem examination. One maruti car was taken
into possession. On 06.05.2001 Mohan Singh was produced in the Court.
His police remand was obtained. He made disclosure statement that he had
kept concealed one stick behind the wall of Peer Baba Shah, and, the same
was buried underneath the earth. The case property was deposited with
MHC Police Station Kotwali, Patiala. After conclusion of investigations, the
investigating officer concerned, proceeded to institute a report under Section
173 of the Cr.P.C., before the learned committal Court concerned, against
accused Mohan Singh, Joginder Singh and Bimaljit Kaur. However, vide
order dated 18.10.2002, accused Karnail Singh and Mahinder Singh were
declared proclaimed offenders.
Committal Proceedings
8. Since the offence under Section 302 IPC was exclusively
triable by the Court of Session, thus, the learned committal Court concerned,
through a committal order made on 20.12.2017, hence proceeded to commit
the accused to face trial before the Court of Session.
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Trial Proceedings
9. The learned trial Judge concerned, after receiving the case for
trial, after its becoming committed to her, made an objective analysis of the
incriminatory material, adduced before her. Resultantly, she proceeded to
draw charges against all the accused for the offences punishable under
Section 302 read with Section 34 IPC. The afore drawn charge was put to
the accused, to which they pleaded not guilty, and, claimed trial.
10. In proof of its case, the prosecution examined 14 witnesses,
and, thereafter the learned Public Prosecutor concerned, closed the
prosecution evidence.
11. After the closure of prosecution evidence, the learned trial
Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but
thereins, the accused pleaded innocence, and, claimed false implication. The
accused tendered into evidence Ex. DE to Ex. DG.
12. As above stated, the learned trial Judge concerned, proceeded to
convict the accused-appellant for the charge(s) (supra), as became drawn
against him, and, also as above stated, proceeded to, in the hereinabove
manner, impose the sentence(s) of imprisonment, as well as of fine, upon the
accused-appellant.
Submissions of the learned counsel for the appellant
13. The learned counsel for the aggrieved convict-appellant has
argued before this Court, that both the impugned verdict of conviction, and,
the consequent thereto order of sentence, thus require an interference. He
supports the above submission on the ground, that they are based on a gross
misappreciation, and, non-appreciation of evidence germane to the charge.
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Submissions of the learned State counsel
14. On the other hand, the learned State counsel has argued before
this Court, that that when the theory of last seeing together of the deceased,
and, the accused concerned, as propagated by Niranjan Singh (PW-3) and by
Kuljeet Kaur (PW-7), has been cogently established by the prosecution.
Resultantly, when link (supra) in the chain of circumstantial evidence, thus
became completely, and, unerringly established, as such the verdict of
conviction, and, consequent thereto sentence(s) (supra), as become imposed
upon the convict, are well merited, and, do not require any interference,
being made by this Court in the exercise of its appellate jurisdiction.
Therefore, he has argued that the instant appeal, as preferred by the convict-
appellant be dismissed.
Reasons for dismissing the instant appeal
15. For the reasons to be assigned hereinafter the contentions
(supra), as become raised before this Court, by the learned counsel for the
appellant rather are unworthy of acceptance, and, thereby they are rejected.
Consequently, finding no merit in the instant appeal, the same is hereby
dismissed, and, the verdict of conviction recorded by the learned trial Judge
concerned, against the convict-appellant is maintained, and, affirmed.
Circumstantial evidence based case rested on the deposition of PW-3, PW-
4 and PW-7, who in their respective testifications propagated a version
qua theirs last seeing together the accused and the deceased.
16. PW-3 Niranjan Singh, in his examination in chief, has made
echoings, that they are eight brothers and sisters, and, that Jang Singh
deceased was the youngest. He also identified the accused, who was then
present in Court. He further deposed, that Jang Singh was working with
accused-appellant Mohan Singh. On 24.4.2001 at about 9.00 A.M., accused-
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appellant Mohan Singh had come to their house to call Jang Singh. On
25.4.2001, Mohan Singh had come to their house and informed that Jang
Singh was lying in a drunken condition at the Peer Dargah in the area of
Turri Baza, Nabha Gate, Patiala. PW-3 further deposed that he had sent his
brother Bhola Singh and his son Rajesh Singh to enquire about Jang Singh,
who informed him that Jang Singh was lying dead in the Peer Dargah. Sagar
Singh was also present when they informed him about the death of Jang
Singh. Thereupon, he along with his uncle Sagar Singh, brother Bhola Singh
and son Rajesh Singh went to the spot. He further deposed that when he
went to the police station after leaving Bhola Singh and Rajesh Singh at the
spot, to guard the dead body, that then he got recorded his statement Ex. PW-
3/A. There were injuries in the nature of abrasions on the dead body
including head and forehead. Blood was also noticed on the forehead of the
deceased. One Maruti car was lying parked outside the Peer Baba Samadh.
17. Since neither any suggestions, became put to PW-3 during the
latter’s cross-examination, suggestive that his speakings (supra) in his
examination-in-chief qua his last seeing together the accused concerned,
and, the deceased, rather at the apposite site, hence proximate to the crime
site, thus are uncreditworthy, nor when any answers favourable to the
accused, thus emanated theretos from PW-3. Thus, the effect of no
suggestions (supra) becoming meted to PW-3, during the latter’s cross-
examination, thus to bely the efficacy of the above candidly spoken facts, is
that, it leads to an inference that the defence concedes to PW-3 last seeing
together the deceased and the accused, thus in the vicinity of the crime site.
The effect thereof is but naturally, qua the apposite last seeing together
theory, as espoused by PW-3, thus acquiring the firmest evidentiary vigour.
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18. PW-4 Sagar Singh deposed that Jang Singh was working as a
Driver. On 24.4.2001, at about 12.45 noon, accused-appellant Mohan Singh
came to the house of Jang Singh on a motorcycle. He further deposed that
accused-appellant took Jang Singh along with him, and, at that he was
present at his shop. The said witness further deposed that on 25.4.2001,
accused-appellant Mohan Singh came to their house and told that Jang Singh
was lying drunk at Peer Dagah at Turri Bazar.
19. PW-7, Kuljeet Kaur, who is the wife of deceased Jang Singh,
deposed that on 24.4.2001, accused Mohan Singh came to their house, on a
motor-cycle and took her husband on his motorcycle. On the subsequent
day i.e. 25.4.2001, the said Mohan Singh came to their house and told her
that Jang Singh was lying unconscious in Turri Bazar, Nabha Gate, Patiala.
She further deposed, that Mohan Singh accused requested her to accompany
her on the motor cycle. She called her jeth, namely Niranjan Singh and
Bhola Singh and also Rajesh son of Niranjan Singh. All the three left for the
said place. On return, they disclosed to her that Jang Singh was lying dead in
the Peer Smadh Turri Bazar.
20. The statements of both the prosecution witnesses (supra) do
lend the fullest corroboration to the testification made by PW-3 Niranjan
Singh, who alike PW-4 and PW-7 efficaciously propagated the theory of last
seeing together of the accused and the deceased. Fortifying vigour to the
above is firmly secured, thus from both the witnesses (supra), during theirs
respectively becoming subjected to cross-examination, rather theirs
remaining unscathed in the said ordeal.
21. Be that as it may, the learned counsel for the appellant has
argued, that since during the course of cross-examination(s) being made
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upon the witnesses (supra), suggestions became made to them to the effect,
that the accused-appellant had subsequent to the crime event taking place,
had visited their house, and, which became affirmatively answered by the
supra. Though therebys the defence espouses that with the accused-
appellant, but post his allegedly committing the crime, thus visited the
homestead of the supra prosecution witnesses, therebys when he, thus
evinces conduct consistent with his innocence, therebys even the deposition
of PW-3 one Niranjan Singh, thus loses its evidentiary worthwhileness.
However, the said submission is rejected on the ground, that since PW-7 in
her cross-examination, has stated that accused Mohan Singh, but post his
allegedly committing the crime, visited her house, and, requested her to
accompany him to the alleged crime site, but when PW-7 in her cross-
examination states that as a matter of fact, the accused after allegedly
committing the crime, thus visited her homestead, resultantly therebys with
the witnesses (supra) making inter se contradictions with respect to the
accused, post committing the crime, thus his allegedly visiting either the
house of PW-3 or the house of PW-7. Consequently, the said inter se
contradictions, thus completely underwhelm the exculpatory effect, if any, of
the projections (supra) made by the defence relating to accused-appellant
Mohan Singh, but post his allegedly committing the crime event, thus
visiting PW-3 of PW-7, wherebys his purportedly evincing conduct
consistent with his innocence.
Signatured disclosure statement of convict-appellant
Mohan Singh Ex. PW-9/E
22. During the course of investigations, being made into the appeal
FIR, convict-appellant Mohan Singh, thus made his signatured disclosure
statement, to which Ex. PW-11/K becomes assigned. The signatured
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disclosure statement, as made by the accused is ad verbatim extracted
hereinafter.
“x x x x
I have one bamboo stick digging in the pit, buried and concealed
the same, have been buried hear the wall of Majar of Pir Baba. I
have the only knowledge regarding it. On pointing out it can be
recovered.”
23. Pursuant to the above made signatured disclosure statement, the
convict-appellant Mohan Singh ensured the recovery of one stick, which
was taken into police possession, through recovery memo, to which
Ex. PW-11/M becomes assigned.
24. The disclosure statement (supra), carries thereons the signature,
of the convict-appellant. In his signatured disclosure statement (supra), the
convict, confessed his guilt in inflicting injuries on the person of the
deceased, hence with the recovered weapon. The further speaking therein is
qua his keeping, and, concealing the incriminatory weapon of offence.
Moreover, the said signatured disclosure statement does also make speakings
about his alone being aware about the location of his hiding and keeping the
same, and, also revealed his willingness to cause the recovery of the
incriminatory weapon, to the investigating officer concerned, from the place
of his hiding, and, keeping the same.
25. Significantly, since the appellant has not been able to either ably
deny his signatures as occurs on the exhibit (supra) nor when he has been
able to prove the apposite denial. Moreover, since they he has also not been
able to bring forth tangible evidence but suggestive that the recovery(ies)
is/are either contrived or invented. Therefore, the exhibit(supra) is prima
facie concluded to be holding the utmost evidentiary tenacity.
26. Significantly also, since post the making of the said signatured
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disclosure statement, thus by the convict to the investigating officer
concerned, he through the recovery memo (Ex. PW-11/M), thus caused the
recovery of the weapon of offence to the investigating officer concerned.
Consequently, when the said made recovery(ies) is/are also not suggested by
any cogent evidence to be planted recovery(ies). Resultantly, the effect
thereof, is that, valid recovery(ies) was/were made vis-a-vis the
incriminatory weapon of offence by the convict, to the investigating officer
concerned. In sequel, the making of the valid signatured disclosure
statement, by the convict besides the pursuant thereto effectuation of valid
recovery(ies) of the incriminatory weapon of offence, thus by the convict to
the investigating officer concerned, but naturally prima facie corroborates
and supports the case of the prosecution.
27. However, yet for assessing the vigor of the said made disclosure
statement and consequent thereto made recovery, it is apt to refer to the
principles governing the assigning of creditworthiness to the said made
disclosure statement and to the consequent thereto made recovery. The
principles governing the facet (supra), become embodied in paragraphs Nos.
23 to 27 of a judgment rendered by the Hon’ble Apex Court in Criminal
Appeal Nos.1030 of 2023, titled as “Manoj Kumar Soni V. State of
Madhya Pradesh”, decided on 11.8.2023, relevant paragraphs whereof
become extracted hereinafter.
23. The law on the evidentiary value of disclosure statements under
Section 27, Evidence Act made by the accused himself seems to be
well established. The decision of the Privy Council in Pulukuri
Kotayya and others vs. King-Emperor holds the field even today
wherein it was held that the provided information must be directly
relevant to the discovered fact, including details about the physical
object, its place of origin, and the accused person’s awareness of
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these aspects. The Privy Council observed:
The difficulty, however great, of proving that a fact discovered
on information supplied by the accused is a relevant fact can
afford no justification for reading into s. 27 something which
is not there, and admitting in evidence a confession barred by
s. 26. Except in cases in which the possession, or
concealment, of an object constitutes the gist of the offence
charged, it can seldom happen that information relating to the
discovery of a fact forms the foundation of the prosecution
case. It is only one link in the chain of proof, and the other
links must be forged in manner allowed by law.
24. The law on the evidentiary value of disclosure statements of
co-accused too is settled; the courts have hesitated to place
reliance solely on disclosure statements of co-accused and used
them merely to support the conviction or, as Sir Lawrence
Jenkins observed in Emperor vs. Lalit Mohan Chuckerburty,
to “lend assurance to other evidence against a co-accused”. In
Haricharan Kurmi vs. State of Bihar, this Court, speaking
through the Constitution Bench, elaborated upon the approach
to be adopted by courts when dealing with disclosure
statements:
13. …In dealing with a criminal case where the prosecution
relies upon the confession of one accused person against
another accused person, the proper approach to adopt is to
consider the other evidence against such an accused person,
and if the said evidence appears to be satisfactory and the
court is inclined to hold that the said evidence may sustain
the charge framed against the said accused person, the court
turns to the confession with a view to assure itself that the
conclusion which it is inclined to draw from the other
evidence is right.
25. In yet another case of discrediting a flawed conviction
under Section 411, IPC, this Court, in Shiv Kumar vs. State of
Madhya Pradesh overturned the conviction under Section 411,
declined to place undue reliance solely on the disclosure
statements of the co-accused, and held:
24. …, the disclosure statement of one accused cannot be
accepted as a proof of the appellant having knowledge of
utensils being stolen goods. The prosecution has also failed to
establish any basis for the appellant to believe that the
utensils seized from him were stolen articles. The factum of
selling utensils at a lower price cannot, by itself, lead to the
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conclusion that the appellant was aware of the theft of those
articles. The essential ingredient of mens rea is clearly not
established for the charge under Section 411 IPC. The
prosecution’s evidence on this aspect, as they would speak of
the character Gratiano in Merchant of Venice, can be
appropriately described as, “you speak an infinite deal of
nothing.” [William Shakespeare, Merchant of Venice, Act 1
Scene 1.]
26. Coming to the case at hand, there is not a single iota of
evidence except the disclosure statements of Manoj and the co-
accused, which supposedly led the I.O. to the recovery of the
stolen articles from Manoj and Rs.3,000.00 from Kallu. At this
stage, we must hold that admissibility and credibility are two
distinct aspects and the latter is really a matter of evaluation of
other available evidence. The statements of police witnesses
would have been acceptable, had they supported the
prosecution case, and if any other credible evidence were
brought on record. While the recoveries made by the I.O. under
Section 27, Evidence Act upon the disclosure statements by
Manoj, Kallu and the other co-accused could be held to have
led to discovery of facts and may be admissible, the same
cannot be held to be credible in view of the other evidence
available on record.
27. While property seizure memos could have been a reliable
piece of evidence in support of Manoj’s conviction, what has
transpired is that the seizure witnesses turned hostile right from
the word ‘go’. The common version of all the seizure witnesses,
i.e., PWs 5, 6, 11 and 16, was that they were made to sign the
seizure memos on the insistence of the ‘daroga’ and that too,
two of them had signed at the police station. There is, thus, no
scope to rely on a part of the depositions of the said PWs 5, 6,
11 and 16. Viewed thus, the seizure loses credibility.
28. Furthermore, in a judgment rendered by the Hon’ble Apex Court in
Criminal Appeal No.2438 of 2010, titled as “Bijender @ Mandar V. State
of Haryana”, decided on 08.11.2021, the relevant principles governing the
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apposite assigning of creditworthiness become set forth in paragraph 16
thereof, paragraph whereof becomes extracted hereinafter.
16. We have implored ourselves with abounding
pronouncements of this Court on this point. It may be true that
at times the Court can convict an accused exclusively on the
basis of his disclosure statement and the resultant recovery of
inculpatory material. However, in order to sustain the guilt of
such accused, the recovery should be unimpeachable and not be
shrouded with elements of doubt. We may hasten to add that
circumstances such as (i) the period of interval between the
malfeasance and the disclosure; (ii) commonality of the
recovered object and its availability in the market; (iii) nature
of the object and its relevance to the crime; (iv) ease of
transferability of the object; (v) the testimony and
trustworthiness of the attesting witness before the Court and/or
other like factors, are weighty consideraions that aid in
gauging the intrinsic evidentiary value and credibility of the
recovery. (See: Tulsiram Kanu vs. The State; Pancho vs. State
of Haryana; State of Rajasthan vs. Talevar & Anr and
Bharama Parasram Kudhachkar vs. State of Karnataka).
29. Furthermore, in another judgment rendered by the Hon’ble
Apex Court in Special Leave Petition (Criminal) No.863 of 2019, titled as
“Perumal Raja @ Perumal V. State, Rep. By Inspector of Police”, decided
on 03.01.2024, the relevant principles governing the assigning of
creditworthiness become set forth in paragraphs 22 to 25 thereof, paragraphs
whereof become extracted hereinafter.
22. However, we must clarify that Section 27 of the Evidence
Act, as held in these judgments, does not lay down the principle
that discovery of a fact is to be equated to the object produced
or found. The discovery of the fact resulting in recovery of a
physical object exhibits knowledge or mental awareness of the
person accused of the offence as to the existence of the physical
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object at the particular place. Accordingly, discovery of a fact
includes the object found, the place from which it was produced
and the knowledge of the accused as to its existence. To this
extent, therefore, factum of discovery combines both the
physical object as well as the mental consciousness of the
informant accused in relation thereto. In Mohmed Inayatullah
v. State of Maharashtra12, elucidating on Section 27 of the
Evidence Act, it has been held that the first condition imposed
and necessary for bringing the section into operation is the
discovery of a fact which should be a relevant fact in
consequence of information received from a person accused of
an offence. The second is that the discovery of such a fact must
be deposed to. A fact already known to the police will fall foul
and not meet this condition. The third is that at the time of
receipt of the information, the accused must be in police
custody. Lastly, it is only so much of information which relates
distinctly to the fact thereby discovered resulting in recovery of
a physical object which is admissible. Rest of the information is
to be excluded. The word ‘distinctly’ is used to limit and define
the scope of the information and means ‘directly’, ‘indubitably’,
‘strictly’ or ‘unmistakably’. Only that part of the information
which is clear, immediate and a proximate cause of discovery is
admissible.
23. The facts proved by the prosecution, particularly the
admissible portion of the statement of the accused, would give
rise to two alternative hypotheses, namely, (i) that the accused
had himself deposited the physical items which were recovered;
or (ii) only the accused knew that the physical items were lying
at that place. The second hypothesis is wholly compatible with
the innocence of the accused, whereas the first would be a
factor to show involvement of the accused in the offence. The
court has to analyse which of the hypotheses should be
accepted in a particular case.
24. Section 27 of the Evidence Act is frequently used by the
police, and the courts must be vigilant about its application to
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ensure credibility of evidence, as the provision is vulnerable to
abuse. However, this does not mean that in every case
invocation of Section 27 of the Evidence Act must be seen with
suspicion and is to be discarded as perfunctory and unworthy of
credence.
25. The pre-requisite of police custody, within the meaning of
Section 27 of the Evidence Act, ought to be read pragmatically
and not formalistically or euphemistically. In the present case,
the disclosure statement (Exhibit P-37) was made by the
appellant – Perumal Raja @ Perumal on 25.04.2008, when he
was detained in another case, namely, FIR No. 204/2008,
registered at PS Grand Bazar, Puducherry, relating to the
murder of Rajaram. He was subsequently arrested in this case,
that is FIR. No.80/2008, which was registered at PS
Odiansalai, Puducherry. The expression “custody” under
Section 27 of the Evidence Act does not mean formal custody. It
includes any kind of restriction, restraint or even surveillance
by the police. Even if the accused was not formally arrested at
the time of giving information, the accused ought to be deemed,
for all practical purposes, in the custody of the police.
30. Now the principles set forth thereins are that the defence, is
required to be proving;
i) That the disclosure statement and the consequent thereto
recovery being forged or fabricated through the defence proving
that the discovery of fact, as made in pursuance to a signatured
disclosure statement made by the accused to the investigating
officer, during the term of his custodial interrogation, rather not
leading to the discovery of the incriminatory fact;
ii) That the fact discovered was planted;
iii) It was easily available in the market;
iv) It not being made from a secluded place thus exclusively
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within the knowledge of the accused.
v) The recovery thereof made through the recovery memo in
pursuance to the making of a disclosure statement, rather not
being enclosed in a sealed cloth parcel nor the incriminatory
item enclosed therein becoming sent, if required, for analyses to
the FSL concerned, nor the same becoming shown to the doctor
concerned, who steps into the witness box for proving that with
the user of the relevant recovery, thus resulted in the causings of
the fatal ante mortem injuries or in the causing of the relevant
life endangering injuries, as the case may be, upon the
concerned.
vi) That the defence is also required to be impeaching the
credit of the marginal witnesses, both to the disclosure
statement and to the recovery memo by ensuring that the said
marginal witnesses, do make speakings, that the recoveries were
not made in their presence and by making further speakings that
they are compelled, tutored or coerced by the investigating
officer concerned, to sign the apposite memos. Conspicuously,
despite the fact that the said recovery memos were not made in
pursuance to the accused leading the investigating officer to the
site of recovery. Contrarily the recovery memo(s) becoming
prepared in the police station concerned.
vii) The defence adducing evidence to the extent that with
there being an immense gap inter se the making of the
signatured disclosure statement and the consequent thereto
recovery being made, that therebys the recovered items or the
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discovered fact, rather becoming planted onto the relevant site,
through a stratagem employed by the investigating officer.
31. Therefore, unless the said defence(s) are well raised and are
also ably proven, thereupon the making of a disclosure statement by the
accused and the consequent thereto recovery, but are to be assigned
credence. Conspicuously, when the said incriminatory link in the chain of
incriminatory evidence rather is also the pivotal corroborative link, thus even
in a case based upon eye witness account.
32. Be that as it may, if upon a prosecution case rested upon eye
witness account, the eye witness concerned, resiles therefrom his previously
made statement. Moreover, also upon his becoming cross-examined by the
learned Public Prosecutor concerned, thus the judicial conscience of the
Court become completely satisfied that the investigating officer concerned,
did record, thus a fabricated apposite previously made statement in writing,
therebys the Courts would be led to declare that the said made apposite
resilings are well made resilings by the eye witness concerned, thus from his
previously made statement in writing.
33. Moreover, in case the Court, in the above manner, becomes
satisfied about the well made resilings by the eye witness concerned, to the
crime event, thereupon the Court may consequently draw a conclusion, that
the recoveries made in pursuance to the disclosure statement made by the
accused, even if they do become ably proven, yet therebys may be the said
disclosure statement, and, the consequent thereto made recoveries also
loosing their evidentiary tenacity. The said rule is not a straitjacket principle,
but it has to be carefully applied depending upon the facts, circumstances
and evidence in each case. Tritely put in the said event, upon comparative
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weighings being made of the well made resilings, thus by the eye witness
concerned, from his previously made statement in writing, and, of the well
proven recoveries made in pursuance to the efficaciously proven disclosure
statement rendered by the accused, the Court is required to be drawing a
conclusion, as to whether evidentiary tenacity has to be yet assigned to the
disclosure statement and the pursuant thereto recovery memo, especially
when they become ably proven and also do not fall foul from the above
stated principles, and/or to the well made resiling by the eye witness
concerned, from his previously recorded statement in writing. Emphatically,
the said exercise requires an insightful apposite comparative analyses being
made.
34. To a limited extent also if there is clear cogent medical account,
which alike, a frailly rendered eye witness account to the extent (supra), vis-a-
vis the prosecution case based upon eye witness account rather unfolds qua the
ante mortem injuries or other injuries as became entailed on the apposite
regions of the body(ies) concerned, thus not being a sequel of users thereovers
of the recovered weapon of offence. Resultantly therebys too, the apposite
signatured disclosure statement and the consequent thereto recovery, when may
be is of corroborative evidentiary vigor, but when other adduced prosecution
evidence, but also likewise fails to connect the recoveries with the medical
account. In sequel, thus therebys the said signatured disclosure statement and
the consequent thereto recovery, thus may also loose their evidentiary vigor.
Even the said rule has to be carefully applied depending upon the facts,
circumstances, and, the adduced evidence in every case.
35. However, in a case based upon circumstantial evidence when
the appositely made signatured disclosure statement by the accused and the
consequent thereto prepared recovery memos, do not fall foul, of the above
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stated principles, therebys they acquire grave evidentiary vigor, especially
when in pursuance thereto able recoveries are made.
36. The makings of signatured disclosure statement and the
consequent thereto recoveries, upon able proof becoming rendered qua both,
thus form firm incriminatory links in a case rested upon circumstantial
evidence. In the above genre of cases, the prosecution apart from proving the
above genre of charges, thus also become encumbered with the duty to
discharge the apposite onus, through also cogently proving other
incriminatory links, if they are so adduced in evidence, rather for sustaining
the charge drawn against the accused.
37. Consequently, since the statutory provisions enclosed in Section
25 of the Indian Evidence Act, provisions whereof becomes extracted
hereinafter, do not assign statutory admissibility to a simpliciter/bald
confession made by an accused, thus before the police officer, rather during
the term of his suffering custodial interrogation, but when the exception
thereto, becomes engrafted in Section 27 of the Indian Evidence Act,
provisions whereof becomes extracted hereinafter. Therefore, therebys when
there is a statutory recognition of admissibility to a confession, as, made by
an accused before a police officer, but only when the confession, as made by
the accused, before the police officer concerned, but becomes made during
the term of his spending police custody, whereafters the said incriminatory
confession, rather also evidently leads the accused, to lead the investigating
officer to the place of discovery, place whereof, is exclusively within the
domain of his exclusive knowledge.
“25. Confession to police-officer not to be proved.–No confession made
to a police-officer, shall be proved as against a person accused of any
offence.
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x x x x x
27. How much of information received from accused may be proved.–
Provided that, when any fact is deposed to as discovered in consequence
of information received from a person accused of any offence, in the
custody of a police-officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.”
38. Significantly, it would not be insagacious to straightaway oust
the said made signatured disclosure statement or the consequent thereto
recovery, unless both fall foul of the above principles, besides unless the said
principles become proven by the defence. Contrarily, in case the disclosure
statement and the consequent thereto recovery enclosed in the respective
memos, do not fall foul of the above principles rather when they become
cogently established to link the accused with the relevant charge.
Resultantly, if the said comprises but a pivotal incriminatory link for proving
the charge drawn against the accused, therebys the snatching of the above
incriminatory link from the prosecution, through straightaway rejecting the
same, but would result in perpetration of injustice to the victim or to the
family members of the deceased, as the case may be.
39. Now coming to the facts at hand, since the disclosure statement
and the consequent thereto recovery do become efficaciously proven by the
prosecution. Moreover, when none of the marginal witnesses, to the said
memos become adequately impeached rather for belying the validity of
drawings of the memos nor also when it has been proven that the said
memos are fabricated or engineered, besides when it is also not proven that
the recoveries (supra) did not lead to the discovery of the apposite fact from
the relevant place of hiding, thus only within the exclusive knowledge of the
accused.
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40. Conspicuously also, when the said disclosure statement is but
not a bald or simpliciter disclosure statement, but evidently did lead to the
making of efficacious recovery(ies), at the instance of the accused, to the
police officer concerned.
41. Consequently, when therebys the above evident facts rather do
not fall foul of the above stated/underlined principles in the verdicts (supra).
Consequently, both the disclosure statement, and, the consequent thereto
recovery, when do become efficaciously proven, therebys theretos immense
evidentiary tenacity is to be assigned. Preeminently also when thus they do
corroborate the rendition of a credible account vis-a-vis the theory of last
seeing together of the accused and the deceased, as becomes propagated
through the prosecution witnesses (supra). Moreover, when the memos
(supra) also lend corroboration to the medical account, therebys through all
the links (supra), the charge drawn against the accused becomes proven to
the hilt.
Post-mortem report
42. The post-mortem report, to which Ex. PW-9/A is assigned,
became proven by PW-9. PW-9 in his examination-in-chief, has deposed that
on an autopsy being conducted on the body of deceased Jang Singh by him
along with Dr. S.S.Oberoi, thus theirs noticing thereons the hereinafter ante
mortem injuries-
“1. Bleeding from both nostrils was present.
2. V shaped abraded contusion each arm measuring 3 cm
x .5 cm on the centre of the forehead.
3. Multiple small abrasions of varying sizes and shape were
present on left side of forehead.
4. 5 cm x 1 cm abrasion on bridge of the nose.
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5. 3 cm x 2 cm contusion in left malar region.
6. 8 cm x 7 cm contusion involving the right cheek and the
adjoining area.
7. 6 cm x 4 cm hematoma was present in the middle of right
partial region of the head. On exploration underlying bone was
fractured lacerating the corresponding part of brain.
Extradural hematoma of the size 4 cm x 3 cm x 1 cm was
present on the corresponding part of the brain.
8. 7 cm x 3 cm abrasion was present on the posterior aspect
of left fore arm in its upper parts.
9. 2 abrasions each measuring 2 cm x 1 cm and 1 cm x .5
cm in front of left shoulder.
10. Whole of the back was contused with sporadic abraded
areas.
11. 1 cm x .5 cm abrasion on the lateral aspect or right knee
joint.”
43. Furthermore, PW-9 also made a speaking in his examination-in-
chief, that the cause of demise of the deceased was owing to shock and
haemorrhage as a result of injuries (supra), and, also the said injuries were
sufficient to cause death in the ordinary course of nature.
44. The above made echoings by PW-9, in his examination-in-chief,
became never challenged through any efficacious cross-examination, being
made upon him, by the learned defence counsel. Therefore, the opinion, as
made by PW-9 qua the demise of the deceased, thus acquires formidable
force. Consequently, the above echoings, as made by PW-9, in his
examination-in-chief, do relate, the fatal ante-mortem injuries to the time of
the crime event hence taking place at the crime site.
45. The supra unchallenged opinion with respect to the cause of
demise of the deceased, as pronounced by PW-9, thus does not give any
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leverage to this Court to alter the charge from Section 302 IPC to Section
304 Part II IPC. The reason for forming the above conclusion generates
from (a) the injuries suffered by the deceased occurring on the vital portion
of the body of the deceased, inasmuch as, on his forehead, (b) since the
defence did not during the course of making cross-examinations upon either
of the prosecution witnesses, thus made any suggestions to them, that the
assault, as made by the accused upon the person of the deceased, arose from
any of the apposite exceptions, as embodied in Section 300 IPC, exceptions
whereof become extracted hereinafter, rather as appertaining to the offence
of culpable homicide amounting to murder, becoming sparked vis-a-vis the
accused, nor when any answer favourable to the accused became rendered
theretos by the prosecution witnesses concerned.
“300. Murder.-
Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the
intention of causing death, or–
(Secondly) If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or–
(Thridly)- If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or–(Fourthly)- If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death or
such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Exception 1.- When culpable homicide is not murder.– Culpable
homicide is not murder if the offender, whilst deprived of the power
of self-control by grave and sudden provocation, causes the death of
the person who gave the provocation or causes the death of any
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other person by mistake or accident. The above exception is subject
to the following provisos:–
(First)- That the provocation is not sought or voluntarily provoked
by the offender as an excuse for killing or doing harm to any person.
(Secondly)- That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise of
the powers of such public servant.
(Thirdly)- That the provocation is not given by anything done in the
lawful exercise of the right of private defence.
Explanation.– Whether the provocation was grave and
sudden enough to prevent the offence from amounting to murder is a
question of fact.
Exception 2 – Culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Exception 3 – Culpable homicide is not murder if the offender, being
a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him by
law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his duty
as such public servant and without ill-will towards the person whose
death is caused.
Exception 4 – Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon
a sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner.
Explanation.– It is immaterial in such cases which party
offers the provocation or commits the first assault.
Exception 5 – Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years,
suffers death or takes the risk of death with his own consent .”
46. Therefore, the omission (supra), thus cannot empower the
counsel for the appellant to argue, that the offence of murder has to be
altered to an offence of culpable homicide not amounting to murder, nor
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therebys the accused-appellant is entitled to his becoming sentenced for an
offence punishable under Section 304-II IPC, than to an offence punishable
under Section 302 IPC.
Final order
47. The result of the above discussion, is that, this Court does not
find any merit in the instant appeal, and, is constrained to dismiss it.
Consequently, the appeal is dismissed. The impugned verdict of conviction,
as becomes recorded upon the convict-appellant, by the learned
convicting/Trial Court, is maintained, and, affirmed. Moreover, the
consequent thereto order of sentence is also affirmed. If the convict is on
bail, thereupon, the sentence as imposed upon him, be ensured to be
forthwith executed by the learned trial Judge concerned, through his drawing
committal warrants. The case property be dealt with, in accordance with law,
but after the expiry of the period of limitation for the filing of an appeal.
48. Records be sent down forthwith.
49. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
November 5th, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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