HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 54 of 2017
Irfan ….....Appellant
Versus
State of Uttarakhand ….Respondent
Present:-
Mr. Arvind Vashistha, Senior Advocate with
Mr. Hemant Singh Mahra, and Ms. Disha Vashistha,
Advocates for the appellant.
Mr. J.S. Virk, Deputy Advocate General for the State.
Criminal Appeal No. 425 of 2016
Phool Singh alias Phullu ….....Appellant
Versus
State of Uttarakhand ….Respondent
Present:-
Mr. Tapan Singh, Advocate for the appellant.
Mr. J.S. Virk, Deputy Advocate General for the State.
JUDGMENT
Coram:
Hon’ble Ravindra Maithani, J.
Hon’ble Alok Kumar Verma, J.
Hon’ble Ravindra Maithani, J. (Oral)
Since both these appeals arise from one and
the same Sessions Trial, they are heard together and
being decided by this common judgment.
2
2. Present appeals are preferred against the
judgment and order dated 05.10.2016/06.10.2016
passed in Sessions Trial No. 79 of 2009, State v. Phool
Singh alias Phullu and others, by the court of Additional
Sessions Judge, Vikas Nagar, Dehradun (“the case”). By
the impugned judgment and order, the appellants have
been convicted under Section 302 read with 34 IPC and
sentenced to life imprisonment, with a fine of Rs.
30,000/- each, with a stipulation that in default of
payment of fine, they shall undergo simple imprisonment
for a further period of one year.
3. Heard learned counsel for the parties and
perused the record.
4. The prosecution case, briefly stated is as
follows. The deceased Mahboob Hasan was asleep in a
shop in the night of 30.12.2008. Next morning, on
31.12.2008, he was found dead. A report was lodged by
PW 1 Shoaib Ahmed, based on which Case Crime No. 209
of 2008 under Section 302, 120B read with Section 34
IPC was lodged at Police Station Vikasnagar, District
Dehradun. Investigation was undertaken. Inquest of the
deceased was conducted on 31.12.2008. On the same
day, post-mortem of the deceased was conducted. Three
3
injuries were detected on the person of the deceased.
They are as follows:-
(i) Incised wound on front
forehead vertically, lower end
trending downward; clean cut
margin of 4 c.m. x 1 c.m. x
bone deep; towards the left side
of eye.
(ii) Incised wound; transversely
placed; size 11 c.m. x 4 c.m. x
neck cutting deep up to cervical
vertibrae bone. All soft tissues
including trachea, oesophagus,
vessels and all tissues cut
through and through, clotted
blood 6 c.m. above chest and 6
c.m. below chin.
(iii) Abraided contusion of size 3
c.m. x 2 c.m. near back side of
wrist of right hand.
5. Blood stained soil as well as simple soil was
also taken into custody by the police from near the place
4
of incident. The Investigating Officer prepared the site
plan. According to the prosecution case, the appellants
were arrested on 05.01.2009. On 06.01.2009, at the
instance of the appellant Phool Singh, the weapon of
offence i.e. an iron rod (Saria) was recovered from the
forest area and at the instance of the appellant Irfan, a
knife was recovered. Both these articles were sent for
forensic examination.
6. On 27.07.2009, charge under Sections 302
read with 34 was framed against the appellants and the
co-accused. Rizwan was also charged under Section 120B
read with Section 302 IPC. The appellants and the co-
accused denied charges and claimed trial.
7. The co-accused Rizwan was acquitted by the
trial court for the charge under Section 120B read with
302 IPC. In para 13 of the impugned judgment and order,
it is recorded that Arjun Singh was a child in conflict with
law, therefore, his file was separated for inquiry by the
Juvenile Justice Board, Dehradun.
8. In order to prove its case, the prosecution
examined as many as 14 witnesses, namely, PW 1 Shoaib
Ahmed, PW 2 Aurangjeb, PW 3 Rajesh Kumar, PW 4
5
Javed Khan, PW 5 Dr. K.C. Pant, PW 6 Jahid, PW 7
Farookh, PW 8 Rajesh @ Rizwan, PW 9 Gulfam, PW 10
Dr. K.S. Chauhan, PW 11 CP 913 Pankaj Singh Rawat,
PW 12 Constable 263 Himanshu Amoli, PW 13 SI Yashpal
Singh and PW 14, Sri V.K. Jetha, the Investigating
Officer.
9. After the prosecution evidence, the appellants
were examined under Section 313 of the Code of Criminal
procedure, 1973. According to them, they were falsely
implicated.
10. After hearing the parties, by the impugned
judgment and order, the court below convicted and
sentenced the appellants, as stated hereinbefore.
11. Learned Senior Counsel for the appellants
would submit that the prosecution has not been able to
prove its case beyond reasonable doubt; the court below
has committed an error in law in convicting and
sentencing the appellants. He would also raise the
following points in his submission:-
(i) The only evidence that has been
placed before the court by the
prosecution is that on 30.12.2008,
6
the appellants were spotted near the
place of incident. It is argued that it
is a very weak kind of evidence; it
has no link to connect the appellants
with the alleged incident.
(ii) According to the prosecution, on
06.01.2009, at the instance of the
appellant Phool Singh, a Saria and
at the instance of appellant Irfan, a
knife, both the weapons of offence,
were recovered. It is submitted that
both these articles are not connected
with the crime. It is argued that the
recovery may not be read under
Section 27 of the Indian Evidence
Act, 1872 (“the Evidence Act”),
because the prosecution has utterly
failed to prove any disclosure
statements of the appellants, based
on which the alleged recovery was
made.
(iii) The prosecution has not been able to
prove any last seen evidence.
7
Therefore, it is argued, that this is a
case, which is based on
circumstantial evidence; it is not
such a case in which it may be said
that the prosecution has been able
to prove its case beyond reasonable
doubt.
(iv) Even the forensic science report does
not connect the alleged recovered
articles to the offence.
12. Learned counsel for the State would submit
that PW 1 Shoaib and PW 2 Aurangjeb have stated that
on 30.12.2008, the appellants did inquire as to who
sleeps in the shop in the night and the next morning, the
deceased was found dead in his shop. Learned State
Counsel would also refer to the statement of PW 11 CP
913 Pankaj Singh Rawat, who has stated that on
26.12.2008, he had visited the shop of Rizwan, where the
appellants were also present and spotting the presence of
PW 11 CP 913 Pankaj Singh Rawat, they were alarmed.
Learned State Counsel would also submit that on
06.01.2009, at the instance of the appellant Phool Singh,
8
a Saria and at the instance of the appellant Irfan, a knife
was recovered, which are weapons of offence.
13. Before discussion is made, it would be apt to
see as to what the witnesses have stated.
14. PW 1 Shoaib, PW 2 Aurangjeb and PW 11 CP
913 Pankaj Singh Rawat have somehow stated about the
presence or the conduct of the appellants Irfan and Phool
Singh.
15. PW 1 Shoaib has stated that on 30.12.2008,
the appellants along with one more person had visited the
shop and inquired as to who sleeps in the shop in the
night, to which this witness replied that Mahboob sleeps
in the shop in the night. This witness also stated about
some enmity with Rizwan, who was working with the
deceased Mahboob. It may be noted that the deceased
and the Arjun both were in scrap business.
16. PW 2 Aurangjeb is another witness. He has
stated that on 30.12.2008, the appellants along with
Arjun had visited the shop and had inquired as to who
sleeps in the shop in the night, to which he replied that
the deceased Mahboob would sleep. According to this
witness, on his query as to why they were asking such
9
question, the appellants replied that he would come to
know about it in the morning; and the next morning, the
deceased was found dead.
17. PW 1 Shoaib has proved the first information
report. PW 2 Aurangjeb has proved some recovery memos,
by which the police had taken blood stained soil as well
as a cell phone from the place of incident. He has also
proved those articles, which were taken by the police in
his presence. He has also signed the inquest Ex. A-4.
18. PW 11 CP 913 Pankaj Singh Rawat was posted
at the concerned police station at the relevant time.
According to him, on 26.12.2008, he visited the shop of
Rizwan, where the appellants were also present and
spotting his presence, all of them were alarmed. This is
one part of the evidence, which the prosecution has led to
connect the appellants with the alleged offence.
19. PW 3 Rajesh Kumar, PW 6 Jahid, PW 7
Farookh, PW 8 Rajesh @ Rizwan and PW 9 Gulfam, all
have not supported the prosecution case. They have been
declared hostile.
20. PW 4 Javed Khan is a witness of inquest. He
has stated about it. PW 5 Dr. K.C. Pant had conducted
10
post-mortem of the deceased on 31.12.2008 and he had
detected injuries on the person of the deceased, which
have already been quoted hereinbefore. This witness has
proved the post-mortem report, Ex. A-5.
21. PW 10 Dr. K.S. Chauhan had examined Arjun
on 06.01.2009. He has stated about the injury report Ex.
A-6. As stated, Arjun was declared a child in conflict with
law and his file was separated for inquiry by the Juvenile
Justice Board, Dehradun.
22. PW 12 is the police constable, who recorded the
chik FIR at the police station on 31.12.2008. He has
proved the chik FIR and the general diary entry. This
witness has also proved general diary report No. 37 time
20:40 hrs. of 05.01.2009, by which the appellants were
lodged at the police station after their arrest on that day.
These all are formal witnesses.
23. The prosecution has adduced another set of
evidence to prove the alleged recovery at the instance of
the appellants. PW 13 SI Yashpal Singh had joined the
company of PW 14 V.K. Jetha, the Investigating Officer of
the case on 06.01.2009 when according to the
prosecution, at the instance of the appellants certain
11
articles were recovered. According to this witness, at the
instance of appellant Phool Singh, a Saria was recovered,
of which recovery memo Ex. A-10 was prepared.
According to this witness, at the instance of the appellant
Irfan, a knife was recovered, of which a recovery memo
Ex. A-11 was prepared. This witness has also stated
about recovery made from other persons and has proved
those articles as well.
24. PW 14 V.K. Jetha is the Investigating Officer.
He has also stated about the recovery and other steps
that were taken during investigation.
25. The prosecution has also filed a forensic
science laboratory report. Some blood stains were
detected on the knife. But, according to the report, the
blood was disintegrated, therefore, its origin could not be
established.
26. It is a case based on circumstantial evidence.
In the cases of circumstantial evidence, the prosecution
has to establish the chain of circumstances in such
manner, which may indicate only one and one conclusion
i.e. the guilt of the accused.
12
27. In the case of Sharad Birdichand Sarda Vs.
State of Maharashtra, (1984) 4 SCC 116, the Hon’ble
Supreme Court has laid down those guidelines, which are
essential to be established by the prosecution in a case
based on circumstantial evidence, so as to bring home the
guilt of the accused. In para 153 of the judgment, the
Hon’ble Supreme Court observed as follows:-
“153. A close analysis of this decision
would show that the following conditions must
be fulfilled before a case against an accused can
be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court indicated
that the circumstances concerned “must or
should” and not “may be” established. There is
not only a grammatical but a legal distinction
between “may be proved” and “must be or should
be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973)
2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ
1783] where the observations were made: [SCC
para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure
conclusions.”
(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
13
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.”
28. One of the factors that is being relied on by the
prosecution is the alleged recovery at the instance of the
appellants. As a general rule, any confession made before
the Police Officer by an accused is not admissible.
Section 27 of the Evidence Act, makes certain exceptions
to this general rule. According to this, Section 27 of the
Evidence Act, so much of the confession may be proved as
it relates to distinct to the fact thereby discovered. This
section reads as follows:-
“27. How much of information received
from accused may be proved.––Provided that,
when any fact is deposed to as discovered
inconsequence 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.”
14
29. In the case of Bodhraj alias Bodha and others
Vs. State of Jammu and Kashmir, (2002) 8 SCC 45, the
Hon’ble Supreme Court laid down guidelines with regard
to the applicability of Section 27 of the Evidence Act and
admitting such evidence. The Hon’ble Supreme Court
observed that “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.”
30. In the case of Ashish Jain Vs. Makrand Singh
and others, (2013) 3 SCC 770, the Hon’ble Supreme
Court referred to the principles of law, as laid down in the
case of Selvi and others Vs. State of Karnataka, (2010)
7SCC, 263, wherein the Court observed that “however,
Section 27 of the Evidence Act incorporates the
15
“theory of confirmation by subsequent facts” i.e.
statements made in custody are admissible to the
extent that they can be proved by the subsequent
discovery of facts.”
31. The principles have further been discussed by
the Hon’ble Suprme Court in the case of Shahaja alias
Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra,
2022 SCC OnLine SC 883. In para 42 of the judgment ,
the Hon’ble Supreme Court summed up the principles as
follows:-
“42. The conditions necessary for the
applicability of Section 27 of the Act are broadly
as under:
(1) Discovery of fact in consequence of an
information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody
when he gave informations and
(4) So much of information as relates
distinctly to the fact thereby discovered is
admissible - Mohmed Inayatullah v. The State of
Maharashtra : (1976) 1 SCC 828 : AIR 1976 SC
483 : 1975 CLJ 668
Two conditions for application -
(1) information must be such as has
caused discovery of the fact; and
(2) information must relate distinctly to the
fact discovered - Kirshnappa v. State of
16
Karnataka : (1983) 2 SCC 330 : AIR 1983 SC
”
446 : 1983 Cri LJ 846.
32. Thereafter, the Hon’ble Supreme Court
observed:-
“
47. Thus, in the absence of exact
words, attributed to an accused person, as
statement made by him being deposed by
the Investigating Officer in his evidence,
and also without proving the contents of
the panchnamas, the trial Court was not
justified in placing reliance upon the
circumstance of discovery of weapon.
48. Even while discarding the
evidence in the form of discovery
panchnama the conduct of the appellant
herein would be relevant under Section 8
of the Act. The evidence of discovery would
be admissible as conduct under Section 8
of the Act quite apart from the
admissibility of the disclosure statement
under Section 27, as this Court observed
in A.N. Venkatesh v. State of
Karnataka, (2005) 7 SCC 714,:
“By virtue of Section 8 of the
Evidence Act, the conduct of the
accused person is relevant, if such
conduct influences or is influenced
by any fact in issue or relevant fact.
The evidence of the circumstance,
simpliciter, that the accused pointed
out to the police officer, the place
where the dead body of the
kidnapped boy was found and on
their pointing out the body was
17
exhumed, would be admissible as
conduct under Section 8 irrespective
of the fact whether the statement
made by the accused
contemporaneously with or
antecedent to such conduct falls
within the purview of Section 27 or
not as held by this Court in Prakash
Chand v. State (Delhi Admn.) [(1979)
3 SCC 90]. Even if we hold that the
disclosure statement made by the
accused appellants (Ex. P14 and
P15) is not admissible under Section
27 of the Evidence Act, still it is
relevant under Section 8.”
* * *
50. Further, in the aforesaid context,
we would like to sound a note of caution.
Although the conduct of an accused
may be a relevant fact under Section 8
of the Act, yet the same, by itself,
cannot be a ground to convict him or
hold him guilty and that too, for a
serious offence like murder. Like any
other piece of evidence, the conduct of an
accused is also one of the circumstances
which the court may take into
consideration along with the other evidence
on record, direct or indirect. What we are
trying to convey is that the conduct of the
accused alone, though may be relevant
under Section 8 of the Act, cannot form the
basis of conviction.”
(emphasis supplied)
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33. The question is as to whether the prosecution,
in the instant case, has been able to connect the links so
as to draw only one conclusion indicating the guilt of the
appellants? The statements of PW 1 Shoaib and PW 2
Aurangjeb are not even the last seen evidence. Mere
asking as to who sleeps in the shop, in no manner
connect the guilt of the appellants. It is a very weak kind
of circumstance that has been placed before the Court by
the prosecution. It may be noted that PW 1 Sohaib has
stated that there has been enmity with one Rizwan with
regard to their business. Rizwan has already been
acquitted.
34. The statement that has been given by PW 11
CP 913 Pankaj Singh Rawat, this Court is afraid, is not
relevant. According to this witness, on 26.12.2008, when
he visited the shop of Rizwan, he found the appellants
sitting there and they were alarmed, when they spotted
this witness. It, in no manner connects the appellants
with the alleged offence.
35. The only evidence that is adduced by the
prosecution is the alleged recovery made at the instance
of appellants on 06.01.2009. What is argued on behalf of
19
the appellants is that this recovery may not be termed one
made under Section 27 of the Evidence Act, because there
is no disclosure statement proved by the prosecution.
36. According to the prosecution witnesses, the
appellants were arrested on 05.01.2009. They were lodged
in the police station by way of General Diary Report No.
37 at 8:40 PM, which is proved by PW 12 Constable,
Himanshu Amoli. It is Ex. A9. It also does not record that
any interrogation of the appellants were done, in any
manner, on that date, when they were lodged in the jail.
37. There are documents, which are recovery
memos. There are, in fact, two recovery memos Ex. A10
with regard to recovery of sariya at the instance of the
appellant Phool Singh and Ex. A11 recovery memo of
knife at the instance of the appellant Irfan. But, in both
these recovery memos, there is not even a single sentence
which may be termed as a disclosure statement. How the
recovery was made? There is no statement as such given
by the appellants, which led the police party to the place
of alleged recovery. Even prosecution has not been able to
show that any such confession was made. The statement
was nowhere recorded.
20
38. PW 14 V.K. Jetha is the Investigating Officer.
He was asked about it. In para 6 of his statement, he
would submit that he did not make any separate memo of
the interrogation of the appellants. Although, in para 7 of
his statement, he tells that based on the statements of
the appellants, they proceeded to recover the articles.
Where are those statements of the appellants? What exact
words were spoken by the appellants? How it can be said
that based on the statement, the police made the alleged
recovery? There is no evidence to that effect? In para 8 of
his statement of PW14 V.K. Jetha had stated that he had
interrogated the appellants separately. But, as stated,
there is no record of it. Neither separate record of the
interrogation of the appellants was made by PW14 V.K.
Jetha or by any Police Officer, nor is there any record of
their interrogation in the General Diary Report No. 37
dated 05.01.2009, by which the appellants were lodged in
the police station, after their arrest. Therefore, admittedly,
there is no disclosure statement as of.
39. In the absence of such disclosure statements,
this recovery may at the most be termed as one under
Section 8 of the Indian Evidence Act, but this alone may
21
not be sufficient to convict the appellants, as observed by
Hon’ble Supreme Court in the case of Shahaja (supra).
40. In view of the above, this Court is of the view
that the prosecution has utterly failed to prove the charge
against the appellants. The appellants deserve to be
acquitted of the charge under Sections 302 read with 34
IPC. Accordingly, both the appeals deserve to be allowed
and the impugned judgment and order passed in the case
deserves to be set aside.
41. The appeals are allowed.
42. The impugned judgment and order passed in
the case is set aside.
43. The appellants are acquitted of the charge
under Section 302 read with Section 34 IPC.
44. The appellants are in jail. Let they be set free
forthwith, if not wanted in any other case.
45. Let a copy of this judgment along with the
lower court record be forwarded to the court concerned.
(Alok Kumar Verma, J.) (Ravindra Maithani, J.)
24.05.2024
Avneet/