Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Ramesh Rai, learned Amicus Curiae for appellant and Sri Syed Ali Murtaza, leared A.G.A. for State.
2. By judgment and order dated 28.05.2011 passed in Sessions Trial No. 1056 of 2008, Additional Sessions Judge, Court No. 1, Muzaffar Nagar has convicted appellants-Ramphal and Baba Fakkad Nath alias Mulla alias Dharampal under Sections 302 read with 34 IPC and under Section 201 IPC. They have been sentenced to undergo life imprisonment with fine of Rs. 20,000/- each, under Section 302/34 IPC. In case of default in payment of fine, both the appellants are to undergo additional simple imprisonment of two years. They have further been sentenced to undergo two years' rigorous imprisonment with a fine of Rs. 5,000/- each, under Section 201 IPC. In case of default in payment of fine, they have to undergo further simple imprisonment of five months. All the sentences are to run concurrently.
3. Against aforesaid judgment and order, Jail Appeal No. 5803 of 2011 has been filed by accused-Baba Fakkad Nath alias Mulla alias Dharampal whereas Jail Appeal No. 5805 of 2011 has been filed by accused-Ramphal through Jail Superintendent, Muzaffar Nagar.
4. A First Information Report (hereinafter referred to as "FIR") dated 15.03.2008 (Exhibit Ka-1) was lodged at Police Station Jhinjhana by PW-1, Vinod Kumar (Informant), which was registered as Case Crime No. 162 of 2008, under Sections 302/201 IPC. As per FIR version Informant-Vinod Kumar is resident of Village Laprana, Police Station Jhinjhana, District Muzaffar Nagar. There exist a field and cottage in Jungle, belong to Ramphal of the same village where a person namely, Baba Fakkadnath used to live for about one year, who was known as Priest of Goddess Kali. He used to wear black clothes. Informant's brother, Sanjeev used to visit alleged Priest (Baba) and appellant Ramphal. On 14.03.2008, Informant's brother, Sanjeev, aged about 25 years, had gone to Shamli during day time by his Motorcycle No. DL 75 AC 3425. At about 9.00 pm Prem Singh and Narendra resident of Informant's village had seen Baba and Ramphal with Informant's brother in the cottage. Informant's brother, Sanjeev occasionally used to take liquor. In the morning of 15.03.2008 PW-1, Informant, came to know through Rajendra that motorcycle of Sanjeev was lying adjacent to Kharanja in sugarcane field of Krishna Pal of Village Laprana and at some distance therefrom, a dead body in a plastic bag was lying. When Informant went at spot, found the dead body to be of his brother who had been done to death by a sharp edged weapon. Thereafter Informant alongwith several villagers reached the hut of Baba and saw a lot of blood therein as well as in adjoining field. Baba and Ramphal had absconded from there. FIR further says that Baba and Ramphal alongwith other accomplices had committed murder of Informant's brother (Sanjeev) and with intention to cause disappearance of evidence of commission of offence, thrown dead body in the field. There was a transaction of money to the extent of about Rs. 5000/- between Ramphal and Informant's brother (Sanjeev).
5. On the basis of written report Exhibit Ka-1, a case under Sections 302, 201 IPC was registered as Case Crime No. 163 of 2008 on 05.03.2008 at 8.30 am. at Police Station, Jhinjhana, District Muzaffar Nagar. Chik report (Exhibit Ka-2) was prepared on the basis of written FIR and an entry of the incident was made in General Diary (hereinafter referred to as "GD"), copy whereof is Exhibit Ka-3. Pursuant to registration of criminal case, investigation was undertaken by PW-5, Sub-Inspector, R.D. Nigam, visited and inspected the spot. He directed PW-6, Sub-Inspector, Rishi Pal Singh to prepare inquest (Panchayatnama-Paper no. 6/2 to 6/4) and other necessary documents. PW-5, R.D. Nigam prepared site plan (Exhibit Ka-6) with entry of Khasra (Exhibit Ka-4). Plastic bag and shoes of deceased were sealed at the spot before witnesses and recovery memo (Exhibit Ka-5) was prepared. Thereafter, Investigating Officer (hereinafter referred to as "I.O.") visited the spot where Sanjeev was alleged to be murdered and prepared site plan (Exhibit Ka-6). Blood stained soil and simple soil was taken and sealed in separate boxes and specimen of seal was also prepared; Phard (recovery memo) (Exhibit Ka-7) in respect thereof was prepared. Motorcycle of deceased was given in the custody of Informant-Vinod Kumar and recovery memo (Exhibit Ka-8) was prepared. Recovery memo (Exhibit Ka-9) in respect of arrest of accused-appellants, Ramphal and Baba Fakkadnath was prepared when they were arrested on 16.03.2008. Formal witness PW-6, A.S.I., Rishipal Singh prepared various recovery memos at the spot (Exhibit Ka-10 to Ka-14) on the instruction of PW-5. Dead body of deceased sent to mortuary in District Hospital Muzaffar Nagar on 15.03.2008 through Constables, Tahrir Khan and Rakesh.
6. Autopsy on the dead body of deceased, Sanjeev was done on 15.03.2008 at 4.25 pm by PW-7, Dr. Rajesh Singh. On external examination Doctor found the deceased of average built body, about 28 years of age. Rigor mortis was present in whole body. There was no sign of decomposition in the body. About one day had passed since his death. He found following ante-mortem injuries on the person of deceased:
(i) Incised wound size 22 x 03 cm x muscle cranial cavity deep on left side front of face and extended on both side back of skull and left pinna cut through and through and forehead left side joint near the left eyebrow, underlying bone cut and brain matter coming out. Frontal bone, temporal bone cut through.
(ii) Incised wound size 19 x 2.5 cm x bone deep on both side lower part of face on jaw bone, at chin, underlying jaw bone cut and trachea, tongue cut through.
(iii) Incised wound size 05 x 01 cm x trachea deep in front part of neck, 05 cm above at middle end of left clavical, both great vessels are cut.
(iv) Incised wound size 3.5 x 01 cm x muscle deep on left side of neck, 5.5 cm below left ear.
(v) Multiple linear abrasion present in upper part of back of chest in area 31 cm x 11 cm, size smaller 03 cm length and bigger 07 cm length.
7. On internal examination, Doctor found both chambers of heart empty and heart weighed 250 gm. Stomach contained 50 ml. liquid. Semi-digested food was found in small intestine and large intestine contained faecal matters with gases. In the opinion of Doctor, PW-7, cause of death was shock and haemorrhage on account of ante mortem injuries.
8. After conclusion of investigation, PW-10, Sanjay Bajpai, second I.O. submitted charge-sheet Ex. Ka-16 in the Court of Chief Judicial Magistrate, Muzaffarnagar. The case was committed to Court of Sessions on 4th July 2008, and numbered as Sessions Trial No.1056 of 2008. It was transferred to the Court of Ist Additional Sessions Judge, Court No. 1, Muzaffar Nagar, who framed charges on 17.09.2008 against accused appellants Ramphal and Baba Fakkadnath, under Sections 302/34 and 201 IPC which read under:
^^eSa ohjflag jk.kk] vij l= U;k;k/kh'k] dksVZ la[;k&1] eq0uxj ,rn~}kjk vki vfHk;qDrx.k jkeQy o ckck QddM ukFk dks fuEufyf[kr vkjksi ls vkjksfir djrk gwWaA izFke%&;g fd fnukad [email protected]&3&2008 dks le; vne rgjhj LFkku taxy xzke yijkuk [ksr d`".kiky Fkkuk f>a>kuk ftyk eqtQ~Qjuxj es vkius vius lkekU; vk'k; dh iwfrZ esa ifjoknh ds HkkbZ latho dks /kkjnkj gfFk;kj ls ekjihV dj xEHkhj pksaVs igqWapkdj mldh gR;k dj e`R;q dkfjr dhA bl izdkj vkius /kkjk [email protected] Hkk0n0l0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k] tks bl U;k;ky; ds izlaKku esa gSA f}rh;%&;g fd mijksDr fnukad le; o LFkku ij vkius vius lkekU; vk'k; dh iwfrZ esa ifjoknh ds HkkbZ latho dh /kkjnkj gfFk;kj ls ekjihV dj gR;k djds mlds 'ko dks IykfLVd ds iqjkus cksjk lQsn jax esa can djds d`".kiky ds xUus ds [ksr esa lcwr u"V djus ds fy, Mky fn;k rkfd bl vijk/k ds n.M ls cp lds vkSj vkius lk{; u"V djus dk iz;Ru fd;kA bl izdkj vkius /kkjk 201 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZ'k nsrk gwWa fd vkidk fopkj.k mijksDr vkjksi esa bl U;k;ky; }kjk fd;k tk;sxkA** (emphasis added) "I Veer Singh Rana, Additional Sessions Judge, Court No. 1, Muzaffar Nagar hereby charge you, accused-Ramphal and Baba Fakkadnath with following charges:
Firstly, that on 14/15.03.2008 in the Jungle field of Krishna Pal, Village Laprana, Police Station Jhinjhana, District Muzaffar Nagar, as mentioned in written report, in furtherance of common intention, you caused death of informant's brother, Sanjeev by assaulting him with sharp aged weapon, causing grievous injuries and, thereby, you committed an offence punishable under Section 302 read with Section 34 IPC and within cognizance of this Court.
Secondly, on aforesaid date, time and place in furtherance of common intention you attempted to destroy the evidence of murder by throwing the dead body of informant's brother, Sanjeev in the Sugarcane field of Krishna Pal putting it in an old plastic bag of white colour, after causing his death by assaulting him with sharp edged weapon and causing grievous injuries, so that you may save yourselves from legal consequences of the offence committed by you. Thereby you committed an offence punishable under Section 201 IPC and within cognizance of this Court.
I hereby direct you be tried by this Court for the aforesaid charges." (English translation by Court)
9. Accused appellants pleaded not guilty and claimed to be tried.
10. Prosecution in order to prove its case examined PW-1 Vinod Kumar, Informant; PW-2 Prem Singh; and, PW-3 Narendra Kumar as witnesses of fact. PW-4, Constable Rajveer Singh had registered the case on the basis of written report Exhibit-Ka-1, prepared chik report and made entry in General Diary. He has proved relevant documents prepared by him namely, Exhibit-Ka 2 and Ka 3. PW-5 S.I., R.D. Nigam had undertaken investigation after lodging of FIR and has proved documents got prepared by him at the spot. PW 6 SI Rishi Pal Singh had gone to place of occurrence and on the instruction and dictation of his Senior S.I. PW 5, prepared inquest report and recovery memos in respect of dead body, plastic bag, blood stained and simple soil, shoes etc. PW 7 Doctor Rajesh Singh, Child Specialist, District Hospital, Muzaffar Nagar, had conducted autopsy on the dead body of deceased and proved post mortem report Exhibit Ka-9. PW 8 Pradeep is witness of recovery of articles by Police and has proved recovery memo Exhibit Ka-5. PW 9 Ravindra Kumar is also witness of recovery of blood stained and simple soil and has proved recovery memo Exhibit Ka-7. PW 10 Sanjay Bajpai, Station Officer, is second I.O. who after arrest of accused appellants, had taken over investigation from PW 5, and on pointing out of accused had gone to the place where-from weapons used in the crime, i.e. Pathal Danti (Exhibit 11) and Spade (Exhibit 12), were recovered and has proved recovery memos Exhibit Ka-14 and 13 respectively. He has proved charge sheet (Exhibit Ka-16). PW 11 Sikandar Singh is another witness of recovery of weapons used in crime and has proved recovery memo, Exhibit Ka-15. Thus, witnesses PW 4 to PW 11 are formal witnesses who have proved relevant documents either authored by them or signed as witness thereon.
11. Thereafter Trial Court recorded statements of accused appellants under Section 313 Cr.P.C. Both have denied prosecution story, claiming the same to be false. They did not tender any evidence in support of defence.
12. After hearing learned counsel for parties and appreciation of evidence on record, learned Trial Court has recorded verdict of conviction and sentence against accused appellants as stated above.
13. Trial Court has found that there is no delay in FIR inasmuch as incident is that of night of 14/15.03.2008 and report was registered at 8.30 am on 15.03.2008. Distance of Police Station from place of incident is about 5 kms. Body of deceased was found at about 7-7.30 am on 15.03.2008 by Rajendra and on his information Vinod Kumar, PW-1, went to field where body of deceased was found and thereafter proceeded to Police Station for lodging report. Field of Krishna Pal where body of deceased was found is about half kilometer from residence of Informant. There is no eye witness who has seen the crime being committed by accused-appellants. Entire prosecution is founded on the evidence of last seen and circumstantial evidence. Prem Singh, PW-2 and Narendra Kumar, PW-3, saw deceased, Sanjeev in the hut/cottage of Ramphal alongwith Baba Fakkadnath and one more person, Sushil. They had taken liquor and were loosely talking in abusive language with each other. In the morning dead body of Sanjeev, brother of informant, was found in the field of Krishna Pal and at some distance his Motorcycle was also recovered. Body was inside a plastic bag. When Informant and other reached the field of Krishna Pal and found deceased's body and also came to the hut/cottage of accused-appellants, both were found missing. Weapons used in crime, i.e., Pathal Danti (Exhibit 11) and Spade (Exhibit 12) were recovered on being pointed out by accused-appellants. Ramphal got recovered Pathal Danti and Baba Fakkadnath got recovered Spade. Ante-mortem report corroborates use of aforesaid weapons causing death. Time of death was also in the opinion of Doctor could have been night of 14/15.03.2008. In the statement recorded under Section 313 Cr.P.C. accused-appellants did not take any other defence except general denial of all the facts in respect whereto questions were asked from them. Deceased and both appellants were well known to each other and being friends, deceased used to visit Ramphal in his hut/cottage from time to time. Ramphal has borrowed Rs. 5000/- from deceased, Sanjeev but had not returned it. Deceased was found last at around 9.00 pm on 14.03.2008 in the company of accused-appellants and one Sushil and in the morning his dead body was recovered. Therefore, Trial Court held that there was motive; no possibility of any other person to have committed crime; deceased was last seen in the company of appellants; and, lastly, weapons of crime were discovered with the help of accused-appellants, hence prosecution version stand proved beyond reasonable doubt and charge, therefore, having found proved beyond reasonable doubt, they have been held guilty of offences under Sections 302/34 and 201 IPC.
14. Both these Jail Appeals have been preferred through Superintendent of Jail.
15. We have heard Sri Ramesh Rai, learned Amicus Curiae for appellant and Sri Syed Ali Murtaza, leared A.G.A. for State.
16. Learned counsel for appellants contended, that:-
(i) FIR is by the informant who is close relative of deceased, i.e., brother and not an independent witness.
(ii) There is no eye witness.
(iii) There was no evidence to prove that Ramphal has taken any money from deceased and it was not returned.
(iv) No evidence that in the evening/night on 14.03.2008 deceased and appellants were talking about money or there was any hot exchange of words between them in respect of money.
(v) There is a fourth person Sushil but neither he has been caught nor prosecuted and his role in the offence is not clear. In fact presence of fourth person is neither mentioned in FIR nor in the statement of Informant.
(vi) PW-1 falsely stated that Ramphal is unmarried though he was married.
(vii) There is no injury of Spade and medical report is not consistent with alleged use of weapons, namely, Pathal Danti and Spade.
(viii) Prosecution failed to prove its case beyond reasonable doubt and on mere suspicion accused-appellants have been convicted.
17. Learned AGA, on the contrary, argued that in a case where there is no eye witness of crime, if credible evidence completing chain of events is available, even on circumstantial evidence a conviction is justified. In the present case, there are eye witnesses who had last seen deceased in the company of accused-appellants and in the morning dead body was found near the place of appellants when both were absent and they have not explained their absence at all. Moreso, weapons were recovered on the information of accused-appellants and discovery of weapons is a relevant fact admissible under Section 27 of Evidence Act, 1872 (hereinafter referred to as "Act, 1872"). In absence of anything to show that anybody else would have or was involved in the matter, Court below has rightly found entire chain of prosecution version well connected and circumstantial evidence show beyond reasonable doubt culpability of accused-appellants in the incident in question, hence they have rightly been convicted and punished.
18. We now proceed to consider rival submissions on merits.
19. It is no doubt a case where there is no eye witness to the crime. Prosecution totally rests on circumstantial evidences which have found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted both appellants.
20. In a case which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all the circumstances must be consistent only with the guilt of accused.
21. In Hanumant Vs. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:
"... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused. " (emphasis added)
22. In Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or the guilt of any other person.
23. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that the chain is complete. Infirmity of lacuna in prosecution cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(emphasis added)
24. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:
"... when a case rests upon circumstantial evidence such evidence must satisfy the following tests :
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and, (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(emphasis added)
25. In C. Chenga Reddy and Others vs. State of Andhra Pradesh, 1996(10) SCC 193, Court said:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " (emphasis added)
26. In Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added)
27. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Anr. vs. Registrar General High Court of Karnataka and Anr., 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178.
28. In the present case circumstantial evidence commences with the statement of Informant that his brother used to visit appellants in the hut, had gone on fateful day on motorcycle to Shamli, last seen by two witnesses of facts in the company of appellants drinking and talking loosely and thereafter in the morning his dead body was found in the field of Krishna Pal and blood stains were found in the filed of appellant-Ramphal near hut/ cottage and both appellants were missing. Information of appellants resulted in discovery of a fact, i.e., objects of crime and they knew where they concealed the said objects.
29. Learned counsel for appellants contended that circumstances relating to last seen have wrongly been applied in the case in hand for the reason that in the entire night deceased may have gone elsewhere and somebody else may have killed and there is a long gap of time.
30. We may examine as to what is the concept of last seen and in what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime.
31. The circumstance of last seen of deceased with accused person, as a relevant circumstantial evidence, when can be taken into account, has been discussed time and again. In Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir (supra) Court said that last seen theory comes into play where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead is so small that possibility of any person other than accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that deceased was last seen with accused when there is a long gap and possibility of other persons coming in between exists.
32. Theory of last seen is a relevant circumstance when corroborated by other evidence to prove guilt against accused person. In State of U.P. vs. Satish, 2005(3) SCC 114, Court said:
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
33. In Jaswant Gir vs. State of Punjab, 2005(12) SCC 438 Court also said that in absence of any other links in chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of last seen evidence even if version of witness of fact in this regard is believed.
34. In State of Goa vs. Sanjay Thakran and others, 2007(3) SCC 755 Court said that circumstance of last seen together would normally be taken into consideration for finding the accused guilty of offence charged with when it is established by prosecution that the time gap between the point of time when accused and deceased were found together alive and when deceased was found dead is so small that possibility of any other person being with deceased could completely be ruled out. The time gap between accused persons seen in the company of deceased and detection of crime would be a material consideration for appreciation of evidence and placing reliance on it as a circumstance against accused. Evidence of last seen together is not to be rejected merely because time gap between accused persons and deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for duration of time gap in this regard and it would depend upon the evidence led by prosecution to remove the possibility of any other person meeting deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than accused, being the author, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if prosecution proves that in the light of facts and circumstances of the case, there was no possibility of any other person meeting or approaching deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. If it may be demonstrated by showing that the accused persons were in exclusive possession of the place where incident occurred or where they were last seen together with deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.
35. The above observation on the theory of "last seen" has been followed in Tipparam Prabhakar vs. The State of Andhra Pradesh, 2009(13) SCC 534; Rishi Pal vs. State of Uttarakhand, 2013(12) SCC 551; Krishnan vs. State of Tamil Nadu, 2014(12) SCC 279; State of Karnataka vs. Chand Basha, 2016(1) SCC 501; Rambraksh vs. State of Chhattisgarh, 2016(12) SCC 251; Anjan Kumar Sarma and Ors. vs. State of Assam, 2017(14) SCC 359; and, Ganpat Singh vs. State of Madhya Pradesh, 2017(16) SCC 353.
36. Above authorities show that the term "time gap" is not to be measured in terms of length of period but it has to be seen whether in a given facts and circumstances the time at which accused and deceased were seen alive together and till the detection of death whether there is any possibility of crime being committed by someone else or not, that is relevant. In the present case we find that last seen theory has been applied as one of the several circumstances that deceased was seen last alive in the company of appellants at around 9.00 pm in the night by two witnesses of fact and thereafter in the night itself he was killed and in the morning his dead body was found. Nobody in the village had seen deceased and normally in the night as per Informant, deceased used to come house but he did not return. Meaning thereby, having gone to hut/cottage of appellants where deceased was last seen alive, thereafter till detection of his dead body there was nothing to show that he had moved outside the hut/cottage and crime could have been committed by some body else. We may also notice at this stage that here last seen principle is not the only weighty reason but it is one of the several other circumstances completing entire chain.
37. In the present case Informant is not a witness of either "last seen" or the first person to discover body of his brother. He being brother of deceased could have been aware of fact as to whom his brother used to meet, his friends and other persons and, therefore, as per FIR version Informant said that Ramphal has a field and hut/cottage in the field near forest area wherein for the last one year Baba Fakkadnath is residing who is also known as Priest of Goddess Kaali. He is normally found in black clothes. Informant's brother, Sanjeev, used to visit Baba and Ramphal. On 14.03.2008 Informant's brother, Sanjeev, aged about 25 years, had gone to Shamli in day time on a Motorcycle No. DL 75 AC 3425. His brother used to drink sometimes. In the night around 9.00 pm, Prem Singh and Narendra belong to village of Informant had seen Informant's brother in the company of Ramphal and Baba Fakkadnath. In the morning on 15.03.2008 Rajendra discovered dead body of Sanjeev in a Sugarcane Field of Krishna Pal near Khadanja and his Motorcycle was also lying at a near distance. The dead body was in a plastic bag and he was killed by sharp weapons. Villagers went to nearby hut/cottage of Baba Fakkadnath and found blood in hut and in the field and both appellants were missing. I.O. had taken, body found in plastic bag alongwith shoes of deceased and also collected blood stained soil and plain soil from the field near hut/cottage. Both accused were missing from their hut/cottage and arrested around 9.30 pm on 16.03.2008 near Andipur Pulia. On information given by accused-appellants on 17.03.2008 I.O. alongwith force reached Village Laprana and on the west side of hut of accused-appellant, Ramphal in a field of wheat found fresh dug soil and therefrom recovered Pathal Danti on the information of accused-Ramphal and Spade was recovered on the information given by accused-Baba Fakkadnath. Aforesaid recovery was made in the morning about 6.45 am on 17.03.2008. Details of two weapons given in recovery memo reads as under:
^^gqfy;k ikBy nkWrh cjkenk vfHk0 jkeQy&,d ikBy nkWrh ftldh dqy yEckbZ ,d ckfyLr 7 vaxqy Qy yksgk djhc 11 vaxqy ,d rjQ ls /kkj yxh gqbZ ftl ij gYdk lk [kwu yxk gS cSaVk ydM+h dk djhc 8 vaxqy gSA gqfy;k QkoMk cjkenk vfHk0 ckck QDdMukFk mQZ eqYyk mQZ /keZiky& ,d QkoM+k cSaVk ydM+h dk djhc 3 ckfyLr 6 vaxqy o Qy yksgs dk djhc ,d ckfyLr 2 vaxqy yEck o pkSM+kbZ djhc ,d ckfyLr 1 vaxqy gSA** "Description of Pathal Danti recovered from accused-Ramphal--One Pathal Danti of length of 1 span and 7 fingers with iron edge of which 11 fingers was sharp edged contained slight blood and length of wooden handle is about 8 fingers.
Description of Spade recovered from accused-Baba Fakkadnath alias Mulla alias Dharmpal--One spade with wooded handle measuring about 3 span and six fingers, iron edge one bit and two fingers in length and about 1 span and one finger in breadth."
(English translation by Court)
38. Aforesaid recovery was made in presence of witnesses, Ravindra Kumar (PW-9) and Sikander Singh (PW-11). Informant in his oral deposition has said that deceased, Sanjeev was his real brother, who is already married and has a child. Both brothers were residing in same house. PW-1 knew Ramphal for the last 20 years and Baba Fakkadnath for the last one year. Ramphal occasionally used to visit Informant and, therefore, was very well known to Informant as also the deceased, Sanjeev. Sanjeev used to visit hut/cottage of Ramphal where Baba Fakkadnath was residing. He had gone around 1.00 pm on 14.03.2008 on a Motorcycle to Shamli for bringing machine of Tractor but did not return in the night. Informant searched in village but got no information. In the morning at about 7-7.30 am on 15.03.2008, through Rajendra information of dead body of Sanjeev and his Motorcycle was received by Informant. He alongwith some other villagers, namely, Suresh Pal, Rishi Pal and Sompal went to the field where dead body of Sanjeev in plastic bag was lying and at some distance his Motorcycle was also lying. Body was in the field of Krishna Pal and Motorcycle at Khadanja near aforesaid field of Krishna Pal.
39. Learned counsel for appellants sought to point out a contradiction that on the one hand Rajendra had seen body of Sanjeev which could have been possible only when he could have opened plastic bag but Informant in cross examination said that plastic bag was unopened and it was opened by Informant when he reached there and thereafter it was not closed. He said that this statement is apparently not creditworthy and discredited prosecution version that body was first seen by Rajendra and on his information, Informant reached the place where body was lying. Informant when saw body, it was in a closed plastic bag and it was opened by Informant himself. Therefore, story of prosecution that information was given by Rajendra is also not believable. He also said that Rajendra himself has not been examined. He also pointed out that PW-2, Prem Singh has said that plastic bag was opened by Ramapal Master and thereafter dead body was seen by others and thereafter dead body was again wrapped in the plastic bag. In our view, slight difference in description of above facts as to who opened plastic bag and saw dead body first, cannot be taken to be a material contradiction to discredit prosecution version for the reason that substance of statement is that dead body of Sanjeev was discovered by Rajendra and on his information, Informant, i.e., brother of deceased, and others went to the place where dead body in a plastic bag was lying. Trauma and mental condition of Informant at that point of time can be well appreciated since his own real brother was killed leaving family consisting of widow and minor child. Evidence is clear on the subject that Informant was accompanied by other villagers. Place where body was found is same as stated by Informant. The manner in which body was found, i.e., in a plastic bag, is consistent and the mere fact, who opened bag, if vary in some statement, in our view, will not render prosecution story doubtful, so far as the fact that Sanjeev was killed using some sharp weapon and his body was thrown in a field of Krishna Pal, packed in a plastic bag. His motorcycle was also thrown at a small distance from the body. On these aspects entire evidence is consistent and corroborated. It is also evident from evidence that Informant and other villagers when went to the field and hut/cottage of Ramphal, they found blood stained soil in the field and both appellants missing/ absent from hut/cottage. Whether blood stains were also found inside the hut/cottage, there is some contradiction but with regard to finding of blood stained soil in the field and near hut/cottage and both belong to Ramphal, evidence is consistent, corroborating and there is no substantial variation. In the statement under Section 313 Cr.P.C. accused-appellants have not made any efforts to explain, how and in what circumstances they were missing or they have gone to some other place for some reasons or there is some other defence. In fact on this aspect no defence has come from their side and this conduct of appellants is a relevant circumstance to be seen in this case.
40. Then comes that next factor that on the information received from both appellants weapons used in crime were recovered by Police. Recovery memo has been prepared in presence of witnesses. Both these witnesses have been examined as PW-9 and PW-11. They have proved recovery memo and we find virtually no cross-examination so far as PW-9 is concerned. PW-11 has been cross-examined but no contradiction could have been extracted by defence in Court below. Both have proved recovery memo. The fact that both appellants in morning got absented from their hut/cottage and could give no explanation or defence as to where they have gone, is a very relevant circumstance pointing to their conduct particularly when blood stained soil near their hut was present in their field.
41. Learned counsel for appellants contended that it is not clear as to which accused caused finding of which object of crime and the same would not be admissible on evidence while on the contrary learned A.G.A. contended that recovery of object of crime is admissible fact which can be considered to fastened guilt upon accused-appellants.
42. Section 27 of Act, 1872 provides for how much of information received from accused who is in custody of police may be proved. It reads as under:
"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."
43. Aforesaid provision is by way of proviso to Sections 25 and 26 of Act, 1872. An statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused.
44. In Delhi Administration vs. Bal Krishan and Ors., 1972(4) SCC 659 Court said that Section 27 permits proof of so much of information which is given by persons accused of an offence when in custody of a Police Officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Sections 25 and 26 of Act, 1872 provides that no confession made to a Police Officer whether in custody or not can be proved as against the accused. Section 27, therefore, is proviso to above Sections and statement even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against accused in the circumstances stated in Section 27.
45. In Mohmed Inayatullah vs. The State of Maharashtra, 1976(1) SCC 828 Court observed that though interpretation and scope of Section 27 has been subject of consideration in several authoritative pronouncement but its application to concrete cases is not always free from difficulty. In order to make its application swift and convenient Court considered the provision again and said:
"12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section in to operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."
46. Idea behind Section 27 has been explained by Court in para 20 of judgment in Bodh Raj @ Bodha and Ors. vs. State of Jammu and Kashmir (supra) as under:
"20. If all that is required to lift the ban be the inclusion in the confession information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-exculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (see State of Maharashtra v. Danu Gopinath Shirde and Ors. 2000 CriLJ 2301). No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. " (emphasis added)
47. Similar issue has been considered in a recent judgment of Supreme Court in Criminal Appeal No. 1333 of 2009, Raju Manjhi vs. State of Bihar, decided on 02.08.2018. Therein the Court held that Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning to the alleged offence, such statement can be proved against him. Court held that recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt and such confessional statement stands and satisfies the test of Section 27 of Act, 1872.
48. The witnesses have proved the fact that accused disclosed the place where objects of crime were hide and same were recovered from that place on being pointed out by appellants. These facts have been proved and in our view are admissible in evidence and Court below has rightly taken the same as a relevant admissible evidence as part in the chain of other circumstantial evidences.
49. In view of above discussion we may summarize our observation and place various circumstantial evidence in chain and in our view prosecution without reasonable doubt has been able to prove guilt of accused-appellants and chain of circumstantial evidence in this regard can be summarized as under:
(i) Deceased-Sanjeev was well known to both appellants and used to visit their hut/cottage in the field belong to Appellant-Ramphal.
(ii) Deceased-Sanjeev was seen in the company of both appellants and one Sushil by PW-2, Prem Singh at 9.00 pm on 14.03.2008.
(iii) All of them had taken liquor. They were having loose talks abusive language. According to PW-1, it was their routine affair.
(iv) PW-3, Narendra Kumar also made a similar statement and is an ocular witness of having seen the deceased last at around 9.00 pm in the company of accused-appellants. Thereafter deceased-Sanjeev was not seen by anybody and had also not gone to his house though as per Informant, PW-1, he used to return in the night to house.
(v) In the morning on 15.03.2008 dead body of Sanjeev was discovered by Rajendra at around 7-7.30 am in the field of Krishna Pal and Motorcycle was also found near Khadanja of said field.
(vi) Informant alongwith other villagers after receiving information from Rajendra reached to the field of Krishna Pal to find out dead body of his brother and his motorcycle also and thereafter report was also lodged at Police Station, which was around 5 kms. from the place of incident, at 8.30 am. In between, Informant alongwith villagers also went to hut/cottage and field of appellants but both were not found thereat.
(vii) Both appellants remained absconded till they were arrested by police on 16.03.2008 at 9.30 pm.
(viii) On information received from Appellant-Ramphal, Pathal Danti was recovered by Police on 17.03.2008 and at the same place and time, on the information given by Appellant-Baba Fakkadnath, Spade was recovered.
(ix) Blood stains were found at Pathal Danti shown in recovery memo which has been proved by witnesses PWs-9 and 11.
(x) Cause of death by sharp weapons like Pathal Danti and Spade is proved by post-mortem report and Dr. Rajesh Singh, PW-7. He has also said that death could have taken place on 14/15.03.2008 after 9.00 pm.
(xi) Time on which deceased was last seen in the company of appellants, recovery of dead body and time of death as opined by medical expert all are in close proximity to exclude commission of offence by their person.
50. Aforesaid events, their link and chain, is complete and shows culpability of appellants in offence and we find no reason to take a different view than what has been taken by Court below.
51. An attempt was made by learned counsel for appellants that there was a fourth person namely, Sushil and his name has been omitted in FIR as also statement of Informant though he could have committed offence but we find that his presence was admitted by PWs-2 and 3 when deceased was last seen in the company of appellants and Police had also made investigation against said person but he was not arrested when trial was conducted. However, that fact in our view, is not sufficient to doubt prosecution version for the reason that even appellants in their statement under Section 313 Cr.P.C. have not taken such defence that anything may have been done by Sushil or by any other person. Moreover, factum that weapons of crime were recovered on the basis of information of accused-appellants, dispel involvement of Sushil in crime and we, therefore, find ourselves unable to agree with the submission that crime may have been done by fourth person and not appellants.
52. In view of above discussion, we are clearly of the view that Court below has rightly found appellants guilty of offence with which the appellants were charged and prosecution has successfully proved its case beyond doubt against appellants, hence they have been rightly convicted and sentenced.
53. In the result, both Jail Appeals are dismissed. Impugned judgment and order dated 28.05.2011 passed in Session Trial No. 1056 of 2008 by Additional Sessions Judge, Court No. 1, Muzaffar Nagar convicting Appellants-Ramphal and Baba Fakkad Nath alias Mulla alias Dharampal, under Sections 302 read with 34 IPC and under Section 201 IPC is hereby confirmed/affirmed.
54. Copy of this order along with lower Court record be sent to Court concerned forthwith.
55. A copy of this order be also sent to Appellants through concerned Jail Superintendent.
56. Sri Ramesh Rai, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Ramesh Rai, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date:-24.08.2018 AK