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Judgment
(M. Zothankhuma, J)
Heard Mr. J.I. Borbhuiya, learned counsel for the appellants. Also heard Ms. S.H. Borah, learned Additional Public Prosecutor, Assam appearing for the State respondent No.1 and Mr. S. Borthakur, learned Sr. Counsel assisted by Mr. D. Gogoi, learned counsel for the respondent Nos.2, 3 & 4.
This is an appeal against the acquittal of the respondents Nos.2, 3 and 4 from the charges framed against them under Sections 302/34 and Sections 392/34 IPC by the learned Sessions Judge, Goalpara in Sessions Case No.191/2014 vide Judgment & Order dated 01.07.2022. The respondent no.1 is the State.
The brief facts of the case is that an FIR dated 06.01.2014 had been submitted by the informant (respondent no.2 herein), who was subsequently arrested as accused No.2 (A-2). The said FIR stated that some unknown persons had killed the informant's (A-2) uncle Subudh Saha on 05.01.2014 in his bedroom, after tying his hands and legs. When the maid of the house, Prosecution Witness-3 (PW-3) went for work, she found the door open and Subudh Saha lying dead on his bed. Pursuant to the FIR, Dudhnoi P.S. Case No.4/2014 under Section 302 IPC was registered.
During investigation, 3 accused persons were arrested, who are the present respondent Nos.2 to 4. While the respondent Nos.2 (Accused No.1) & 4 (Accused No.3) were employees of the deceased, the respondent No.3(A-2) is the informant and the nephew of the deceased. After investigation had been completed by the Investigating Officer (PW-15), charge-sheet was submitted by S.I. Banikanta Sharma, who has however expired. PW-15 did not submit the charge-sheet, as he had been transferred.
The learned Trial Court thereafter framed charges under Sections 302/34 IPC and Sections 392/34 IPC against the accused persons, to which they pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined 16(sixteen) Prosecution witnesses and after examining the 3 accused persons under Sections 313 Cr.P.C, came to a finding that the Prosecution had not been able to prove the charges framed against the respondent Nos.2 to 4 beyond all reasonable doubt and accordingly, acquitted them by giving them the benefit of doubt.
The evidence recorded by the learned Trial Court show that there was no eyewitness to the crime in question. The evidence of the Doctor (PW-13) is to the effect that the cause of death of the deceased was due to asphyxia which was homicidal and ante-mortem in nature.
The learned counsel for the appellants has basically relied upon the evidence of PWs 2 and 3, who are the daughters of the deceased, besides the evidence of PWs-7 & 8 who are independent witnesses, in support of his submission that the respondent No.3, who was the accused No.2, had killed the deceased, as the mobile phone of the deceased had been recovered from a pond on the basis of the disclosure statement made by the respondent No.3.
The learned counsel for the appellants also submits that Rs.30,610/-had apparently been recovered from the possession of the respondent No.2 (accused No.1), i.e, Krishna Bahadur Bhujel, while Rs.3,500/- had been recovered from the cash box of the shop on being led to the same by the respondent No.3 (A-2), i.e, Pijush Saha.
The learned counsel for the appellants submits that the evidence of the Prosecution witnesses shows that the respondent No.3 had asked for early cremation of the deceased, besides the fact that he was not in the house of the deceased on the night of the death of the deceased. Further, the two co-accused, i.e, respondent Nos.2 & 4 were also missing at the time of death of the deceased. As such, the above facts show that there was every likelihood that all the 3 respondent Nos.2 to 4 had killed the deceased. In support of his submission that the discovery made on the basis of the statement made by PW-3 was admissible in evidence, the learned counsel for the appellants has relied upon the decisions of the Hon’ble Supreme Court in the case of Mehboob Ali and Anr. Vs. State of Rajasthan, reported in (2016) 14 SCC 640 and in the case of Ghanashyam Das Vs. State of Assam, reported in (2005) 13 SCC 387.
The learned Sr. Counsel for the respondent Nos.2 to 4 submits that the recovery of the mobile phone has not been made on the basis of any disclosure statement by the respondent No.3. In fact, the evidence of PWs-2 and 6 is to the effect that the mobile phone of the deceased had been recovered from the bank of the pond, while the evidence of PWs-7 & 8 was that the same had been recovered from the pond. He submits that the contradiction in the statements of the Prosecution witnesses, as to the actual place from where the mobile phone was recovered, does not prove that the mobile phone had been recovered on the basis of any disclosure statement made by the respondent No.3.
The learned Sr. Counsel for the respondent Nos.2 to 4 also submits that when no disclosure statement has been recorded by the police prior to recovery of the mobile phone, it cannot be said that the discovery had been made on the basis of the information supplied by the accused. In this respect, he has relied upon the decision of the Hon’ble Supreme Court in the case of Boby Vs. State of Kerala, reported in (2023) 15 SCC 760.
The learned Sr. Counsel for the respondent Nos.2 to 4 further submits that suspicion cannot take the place of proof and when two views are possible, the Appellate Court cannot overturn the order of acquittal, on the ground that another view was possible.
The learned Additional Public Prosecutor submits that she has got nothing to comment in the matter, except the fact that the discovery of the mobile phone had apparently been made, on the basis of the disclosure statement made by the respondent No.3.
We have heard the learned counsels for the parties.
PWs-2 & 3, who are the daughters of the deceased, have stated in their evidence that the mobile phone of their deceased father had been recovered from the bank of the pond, on the basis of the oral disclosure statement made by PW-3. The evidence of PWs.7 & 8, on the other hand, is that the mobile phone had been discovered from the pond, on the basis of the disclosure statement made by the respondent No.3. Interestingly, there is no evidence recorded by the learned Trial Court, of any person who had apparently recovered the mobile phone of the deceased, either from the bank of the said pond or from the pond itself.
There is nothing in the evidence to show that the respondent No.3 had made any disclosure statement in writing before the police, on the basis of which the mobile of the deceased person had been recovered and seized by the police.
In the case of Mehboob Ali (supra), the Supreme Court held that if something new is discovered or recovered on the basis of the statement made by an accused which was not in the knowledge of the police before the disclosure statement of the accused was made, the statement leading to the recovery of the fact would be admissible in evidence.
In the case of Ghanashyam Das (supra), the Hon’ble Supreme Court held that the incriminating circumstances which corroborated the case of the Prosecution, to the effect that the accused had led the police and pointed out to the police where he had thrown the weapon, had been eschewed from consideration, on the ground that no information was recorded by the Investigating Officer so as to attract Section 27 of the Evidence Act. The accused leading the police to the spot and pointing out where the weapon was thrown, which fact confirmed it’s recovery, can be looked into, to throw light on the conduct of the accused under Section 8 of the Evidence Act.
In the present case, there is nothing to show that there was any motive or preparation of any kind made by the respondent No.3, which could have led to the death of the deceased at the hands of the respondent No.3.
In the case of Boby (supra), the Supreme Court held that the requirement for the application of Section 27 of the Evidence Act, shows that the person giving information must be an accused of an offence and he must be in police custody. Further, the fact discovered has to be in consequence of the information given and some guarantee is afforded that the information was true. In this respect, the Supreme Court in the above case has relied upon it’s earlier decisions in the case of State of Karnataka Vs. David Rozario and Anr., reported in (2002) 7 SCC 728 and in the case of Subramanya Vs. State of Karnataka, reported in (2023) 11 SCC 255, wherein it has been held that the information given by the accused should be recorded and proved, and if not recorded, the exact information given by the accused while in custody leading to the recovery of the article/s, should be adduced through evidence. Para 31 & 32 of the said judgment states as follows:-
“31.It will also be relevant to refer to the following observations of this Court in State of Karnataka v. David Rozario [State of Karnataka v. David Rozario, (2002) 7 SCC 728 : 2002 SCC (Cri) 1852] : (SCC p. 733, para 5)
“5.… 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 the 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-inculpatory 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 a fact envisaged in the section. Decision of the Privy Council in Pulukuri Kotayya v. King-Emperor [Pulukuri Kotayya v. King-Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65 : 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. Damu [State of Maharashtra v. Damu, (2000) 6 SCC 269 : 2000 SCC (Cri) 1088] .)”
(emphasis supplied)
32.A three-Judge Bench of this Court recently in Subramanya v. State of Karnataka [Subramanya v. State of Karnataka, (2023) 11 SCC 255], has observed thus : (SCC pp. 299-300, paras 76-78)
“76.Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:
‘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.’
77.The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
78.If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.”
This Court in Subramanya case [Subramanya v. State of Karnataka, (2023) 11 SCC 255], has elaborately considered as to how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act.”
A reading of the judgments of the Hon’ble Supreme Court thus shows that the statement which is admissible under section 27 of the Evidence Act, regarding admission of the information leading to discovery, requires the information to be made by the accused. Secondly, the accused has to be in the custody of the Police. Thirdly, the information has to be recorded in writing and if the same has not been recorded in writing, the Prosecution would have to prove the exact information/words stated by the accused, during recording of evidence by the learned Trial Court, wherein the witnesses would have to state the exact information/words used by the accused.
In the present case, there being no recording of the statement of Respondent No.3 (accused no.2) by the Police in writing and as the “exact information/words” given by the accused leading to the recovery, not being adduced through evidence, to prove that the discovery of the mobile phone of the deceased had been made on the basis of the disclosure statement of the Respondent No.3, Section 27 of the Evidence Act cannot be said to be attracted. As such, we are of the view that the recovery of the mobile phone of the deceased, on the basis of the alleged disclosure statement of the Respondent No.3 cannot be said to be proved. No Prosecution Witnesses has deposed or attempted to state the exact information/words alleged to have been made by the respondent no. 3, which apparently led to the discovery of a fact relevant under Section 27 of the Evidence Act. Further, a perusal of the seizure list, i.e, Ext-P.1, which had been exhibited by PW-2, by which seizure of the mobile phone of the deceased had been affected, shows that there is no mention of the mobile phone of the deceased in the said seizure list. The above being said, the challenge to the impugned judgment, only on the basis of a single circumstantial evidence, without there being a complete chain is not sustainable.
With regard to the alleged recovery of money from Respondent No.2 (accused no.1), amounting to Rs.30,610/-, there is nothing to show that the said money belonged to the deceased or that the said money had been stolen from the deceased. Further, though PW-15 was the only witness who testified that the amount of Rs.30,610/- had been recovered from the Respondent No.2, the prosecution did not exhibit the seizure list by which the said amount had been seized. As such, the recovery of the said money amounting to seizure list cannot lead to any inference or finding that the same was relatable to the death of the deceased.
On considering all the above facts, we hold that the discovery of the mobile phone cannot be said to have been made on the basis of the disclosure statement of the Respondent No.3, as the disclosure statement of the Respondent No.3 had not been recorded by the Police and the “exact information” given by the respondent no. 3 not being proved through evidence, prior to recovery of the said mobile phone. The seizure of money by the Police does not in any way prove that the money had been stolen from the deceased or had been the property of the deceased. The absence of the respondents from the house of the deceased during the night of the occurrence cannot mean that the same proved that the respondents were the perpetrators of the crime. Suspicion, however grave, cannot take the place of proof.
In the case of Tulasareddi @ Mudakappa & Another vs. the State of Karnataka & Others (Criminal Appeal No.2120-2121/2024), the Supreme Court has held that the following principles had to be kept in mind by the Appellate Court, while dealing with appeals against an order of acquittal:
(a)whether the judgment of acquittal suffers from patent perversity;
(b)whether the judgment is based on misreading/omission to consider the material evidence on record;
(c)an order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.’
(d)the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
(e)if the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
(f)the appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond reasonable doubt and no other conclusion was possible.
On considering the principles laid down by the Supreme Court, as reproduced in the above paragraph, we are of the view that the evidence adduced in the learned Trial Court by the witnesses does not prove that the respondent nos. 2 to 4 were the perpetrators of the crime leading to the death of the deceased. The circumstantial evidence does not form a complete chain pointing to the guilt of the respondent nos.2 to 4 in having committed an offence punishable under Sections 302/34 and Sections 392/34 IPC.
In view of the reasons stated above, we do not find any ground to interfere with the impugned judgment passed by the learned Trial Court.
Accordingly, the appeal is dismissed.
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