Singh Vs. State of Rajasthan  Insc 75 (5 February 2004)
Raju & Arijit Pasayat Arijit Pasayat,J.
appeal has been preferred by accused Anter Singh (hereinafter referred to as
'the accused') who faced trial along with 3 others for allegedly having
committed homicidal death of one Hansraj (hereinafter referred to as 'the
deceased'). While accused-appellant was charged for alleged commission of
offence punishable under Sections 302, 302 read with Section 34 of the Indian
Penal Code, 1860 (in short 'the IPC') and Section 25(1)(a) and 27 of the Arms
Act, 1959 (for short 'the Arms Act'), the other three accused were charged for
commission of offence punishable under Sections 302 and 302 read with Section
Court found that the accused-appellant was guilty of the alleged offences
punishable under Section 302 IPC and Sections 25 and 27 of the Arms Act. Life
imprisonment, one year and three years sentences respectively were imposed for
the three offences. The other accused persons were found to be not guilty. The
High Court affirmed the conviction and sentence.
version as unfolded during trial is as follows:
11.4.1979, Ram Kumar (PW-21) found a crowd on the ground of Government college,
Ganganagar at about 6.30
reaching close to the spot, he found that a person was lying dead. While
returning to his shop he found a police Constable whom he told about the dead
body. The Constable Bhagwan Singh gave information to Hari Singh ASI and being
satisfied that this was a murder, a case was registered under Section 302 IPC.
Near the dead body some empty cartridges were found. Moulds of the footprints
found nearby and the empty cartridges were collected. During Investigation four
accused persons were arrested. The accused appellant while in custody gave
information about a gun, which was treated to be information in terms of
Section 27 of the Indian Evidence Act, 1872 (for short 'the Evidence Act').
Search was made in the presence of accused and a pistol was recovered. The
empty cartridges and the pistol were sent for forensic examination. During
post-mortem of the dead body of the deceased bullets were recovered which were
also sent for such examination. On completion of investigation, charge sheet
was placed. The accused persons pleaded innocence.
witnesses were examined to substantiate the prosecution version. The Trial
Court found that the evidence was not sufficient to fasten guilt on the
co-accused, while holding appellant guilty as above noted. Appeal to the High
Court did not bring any relief.
support of the appeal, learned senior counsel for the appellant submitted that
the fate of the case depends upon the acceptability of evidence relating to
recovery purportedly on the basis of information given by the accused while in
custody. He pointed out that there are several circumstances which show that
the prosecution has tried to create evidence.
essence it is submitted that the prosecution has failed to establish its case
and has presented a fabricated and improper case to falsely implicate the
the witnesses who are supposed to have witnessed recovery have turned hostile,
the evidence relating to alleged recovery is of really no consequence. The
alleged recovery was made from an open space accessible and visible to anyone
passing by. It was a place which was very close to the place where dead body
was found. It is improbable that the police official could have missed the
weapon and would wait for about 3 weeks when the purported information was
given by the accused clearly not believable.
response, Mr. V.N. Raghupathy, learned counsel for the State submitted that the
Trial Court and the High Court have considered the material on record and have
found the evidence to be cogent and credible. Merely because the witnesses did
not support the prosecution version so far as the recovery is concerned, that
will not affect the credibility of the evidence tendered by PW-36.
because the gun was found in the open space that does not affect the evidence
relating to recovery.
shall first deal with the plea as to whether evidence relating to recovery is
acceptable when non- official witnesses did not support the recovery and made
departure from the statements made during investigation. In Modan Singh v.
State of Rajsathan (1978 (4) SCC 435) it was observed that where the evidence
of the investigating officer who recovered the material objects is convincing,
the evidence as to recovery need not be rejected on the ground that seizure
witnesses did not support the prosecution version. Similar view was taken in Mohd.
Aslam v. State of Maharashtra (2001 (9) SCC 362). It was held
even if panch witnesses turn hostile, which happens very often in criminal
cases, the evidence of the person who effected the recovery would not stand
vitiated. But the crucial question which needs to be considered in this case is
whether the prosecution has been able to show that the pistol recovered was the
one which was used for commission of the offence. As rightly contended by
learned counsel for the appellant there are several circumstances which affects
credibility of the prosecution version. Firstly, the so- called information was
recorded by the IO (PW-16), and he does not even indicate that the gun to which
reference was allegedly made was the weapon of assault. Further the custody of
empty cartridges purported to have been recovered from the spot has not been
established. In fact, the claim is that on 11.4.1979 empty cartridges were
recovered. They were sent to the forensic science laboratory on 12.5.1979.
not been explained as to where the empty cartridges were till then lying and
with whom. Similar is the situation with the two bullets claimed to have been
extracted from the dead body by the doctor. It has been accepted by PW-36 that
the empty cartridges and the bullets were not deposited with the ballistic
expert prior to the recovery of the pistol claimed to have been made on
29.4.1979. Significantly, though the witnesses claimed that the moulds, chappals
found at the spot, the empty cartridges, the two bullets extracted and the
pistol were sealed before being sent to the expert for examination and that
they were sealed on the date they were recovered, but PW-23 who claimed to have
taken the parcel to the laboratory categorically admitted that the packets were
sealed in the Kotwali in his presence on the date he had taken for deposit with
the laboratory i.e. 11.5.1979 and, in fact, the articles were deposited on
12.5.1979. Though the witness stated that different seals were used, a bare
perusal of the materials on record clearly shows that only one seal was used.
Additionally, PW-31 who took major part in the investigation had categorically
admitted that the particular type of pistol which was allegedly seized could
not have ejected any empty cartridges till all the six shots were fired and
otherwise it could not be possible. In Exhibits 51 and 51A i.e. the spot map
and the circumstances memo reference is made to the moulds. This was not
possible because Exhibits 51 and 51A were prepared at about 9.30 a.m., while admittedly the moulds were taken much after
as stated by the witnesses. Significantly in neither Exhibits 51 and 51A,
reference is made to the recovery of any empty cartridges which was supposed to
have been found near the dead body though reference was made to the moulds
which were yet to come into existence. There was no evidence led as to when the
bullets were handed over to the police by the doctor or where they were kept
and in what condition. Though recovery from an open space may not always render
it vulnerable, it would depend upon factual situation in a given case and the
truthfulness or otherwise of such claim. In the case at hand the recovery was
made from an open space visible from the place where the dead body was lying
and at a close proximity. It is not clear from evidence that it was hidden in
such a way so as making it difficult to be noticed. The evidence tendered is
totally silent as to in whose custody were the bullets, empty cartridges and
the pistol. The effect of such non- explanation was considered by this Court in
Santa Singh v. State of Punjab (AIR 1956 SC 526). The Constitution
Bench, inter alia, observed as follows:
is another element in the case which creates even greater difficulty. An empty
cartridge case is alleged to have been recovered from the place of occurrence
by the police on the 10th of September when they went there for investigation
after receipt of the first information from Uttam Singh (P.W. 16); so also some
were carefully packed and sealed in two separate packets and dispatched to the
Police Station. The sealed parcel of the earth was sent to the Chemical
Examiner at Kasauli on the
11th October, 1954,
and the sealed parcel of the empty cartridge case was sent to Dr. Goyle as late
as the 27th October,
if we accept the explanation given by the Sub-Inspector of Police that the
empty cartridge case had to be kept at the police station till the rifle used
was recovered so that both might be sent to the expert for his opinion, nothing
has been stated why after the rifle was recovered on the 28th September, 1954,
along with 24 cartridges from the house of the accused, it was incumbent for
the Police to retain the parcels of rifle and empty cartridge case with them
till the 11th October, 1954.
this inordinate delay raises much suspicion and has given rise to the
suggestion on the part of the accused made in the course of the
cross-examination of the Sub-Inspector that the empty cartridge case ultimately
sent to the expert relates to a cartridge that was fired by them at the Police
Station and is not the one recovered at the spot." The scope and ambit of
Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya
v. Emperor (AIR 1947 PC 67) in the following words, which have become locus classicus:
fallacious to treat the 'fact discovered' within the section as equivalent to
the object produced; the fact discovered embraces the place from which the
object is produced and the knowledge of the accused as to this and the
information given must relate distinctly to this fact. Information as to past
user or the past history, of the object produced is not related to its
discovery in the setting in which it is discovered. Information supplied by a
person in custody that 'I will produce a knife concealed in the roof of my
house' does not lead to the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a knife is concealed in
the house of the information to his knowledge, and if the knife is proved to
have been used in the commission of the offence, the fact discovered is very
relevant. But if to the statement the words be added 'with which stabbed A.',
these words are inadmissible since they do not related to the discovery of the
knife in the house of the informant." (p. 77) The aforesaid position was
again highlighted in Prabhoo v. State of Uttar Pradesh (AIR 1963 SC 1113).
the interpretation and scope of Section 27 has been the subject of several
authoritative pronouncements, its application to concrete cases in the
background events proved therein is not always free from difficulty. It will,
therefore, be worthwhile at the outset, to have a short and swift glance at
Section 27 and be reminded of its requirements. The Section says :
that, when any fact is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police officer,
so much of such information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered may be proved." The
expression "provided that" together with the phrase "whether it
amounts to a confession or not" show that the section is in the nature of
an exception to the preceding provisions particularly Section 25 and 26. It is
not necessary in this case to consider if this Section qualifies, to any
extent, Section 24, also. It will be seen that the first condition necessary
for bringing this Section into operation is the discovery of a fact, albeit a
relevant fact, in consequence of the information received from a person accused
of an offence. The second is that the discovery of such fact must be deposed
to. The third is that at the time of the receipt of the information the accused
must be in police custody. The last but the most important condition is that
only "so much of the information" as relates distinctly to the fact
thereby discovered is admissible. The rest of the information has to be
word "distinctly" means "directly",
"indubitably", "strictly", "unmistakably". The
word has been advisedly used to limit and define the scope of the provable
phrase "distinctly" relates "to the fact thereby
discovered" and is the linchpin of the provision. This phrase refers to
that part of the information supplied by the accused which is the direct and
immediate cause of the discovery. The reason behind this partial lifting of the
ban against confessions and statements made to the police, is that if a fact is
actually discovered in consequence of information given by the accused, it
affords some guarantee of truth of that part, and that part only, of the
information which was the clear, immediate and proximate cause of the
discovery. No such guarantee or assurance attaches to the rest of the statement
which may be indirectly or remotely related to the fact discovered. (See
Mohammed Inayuttillah v. The State of Maharashtra (AIR 1976 SC 483).
time it was held that the expression "fact discovered" in the section
is restricted to a physical or material fact which can be perceived by the
senses, and that it does not include a mental fact, now it is fairly settled
that the expression "fact discovered" includes not only the physical
object produced, but also the place from which it is produced and the knowledge
of the accused as to this, as noted in Palukuri Kotayya's case (supra) and in Udai
Bhan v. State of Uttar
Pradesh (AIR 1962 SC
various requirements of the Section can be summed up as follows:
The fact of which evidence is sought to be given must be relevant to the issue.
It must be borne in mind that the provision has nothing to do with question of
relevancy. The relevancy of the fact discovered must be established according
to the prescriptions relating to relevancy of other evidence connecting it with
the crime in order to make the fact discovered admissible.
The fact must have been discovered.
The discovery must have been in consequence of some information received from
the accused and not by accused's own act.
The persons giving the information must be accused of any offence.
must be in the custody of a police officer.
The discovery of a fact in consequence of information received from an accused
in custody must be deposed to.
Thereupon only that portion of the information which relates distinctly or
strictly to the fact discovered can be proved. The rest is inadmissible.
observed in Palukuri Kotayya's case (supra) it can seldom happen that
information leading to the discovery of a fact forms the foundation of the
prosecution case. It is one link in the chain of proof and the other links must
be forged in manner allowed by law. To similar effect was the view expressed in
K. Chinnaswamy Reddy v. State of Andhra Pradesh and Another (1962 SC 1788) The several discrepancies and
shortcomings in evidence as noticed supra considerably corrode credibility of
the prosecution version.
being so, the inevitable conclusion is that the prosecution has not established
the accusations against the accused-appellant beyond reasonable doubt and
consequently he is entitled to be acquitted.
he is on bail, the bail bonds be discharged. The appeal is allowed.