Patna High Court
State Of Bihar vs Sanaullah Khan on 16 December, 2009
Author: Navin Sinha
Bench: Navin Sinha, Dharnidhar Jha
DEATH REFERENCE No.1 OF 2007
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Reference made vide letter no. 90 dated 24.2.2007 by Shri Ram Pravesh
Sharma, lst Additional Sessions Judge, Patna in Sessions Trial No. 87 of
2004.
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THE STATE OF BIHAR ................................................... Appellant
Versus
SANAULLAH KHAN ............................................... Respondent
WIth
CRIMINAL APPEAL (DB) No.379 OF 2007
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Against the judgement of conviction dated 8.2.2007 and order of sentence
dated 23.2.2007 passed by Shri Ram Pravesh Sharma, lst Additional
Sessions Judge, Patna in Sessions Trial No. 87 of 2004.
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SANAULLAH KHAN ....................................... Appellant
Versus
THE STATE OF BIHAR ................................. Respondent
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For the Appellant: Mr. Kanhaiya Prasad Singh, Sr. Advocate, with
M/s Nematullah, Ashutosh Kumar, Atal Bihari and
Jyotasana, Advocates
For the State: : Mr. Lala Kailash Bihari, Sr. Advocate.
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PRESENT
THE HON'BLE MR. JUSTICE NAVIN SINHA
THE HON'BLE MR. JUSTICE DHARNIDHAR JHA
JUDGEMENT
Navin Sinha,J. The present appeal arises from a judgment of conviction dated
8.2.2007under Section 302, 201 and 120-B of the Penal Code and death sentence dated 23.2.2007 passed by the lst Additional Sessions Judge, Patna in Sessions Trial No. 87 of 2004 giving rise to Death 2 consumption of about 20-25 Kg of milk. The appellant had opened a 'Khatal' (hereinafter referred to as 'cattleshed') at the 'Bakri Market' (hereinafter referred to as the 'goat Market') adjacent east of the Pearl Cinema Hall. There were approximately 13 - 14 buffaloes and one cow in his cattleshed. The appellant requested the father of the informant (Ravindra Prasad-deceased) and who agreed to purchase milk from him. When the quality of the milk deteriorated the father of the informant complained. On 12.12.2002 at about 4 PM the appellant came to the Tea Stall with co-accused Md. Hamid and Arvind to demand payment. On accounting, Rs. 1000/- was found payable. The deceased paid Rs. 500/- and offered to pay the balance later. He told the appellant that he was no more interested in purchasing milk from him in view of the poor quality of the milk leading to loss of customers at the Tea Stall. The appellant got agitated and stated that he would not allow the Tea Stall to run, and threatened him with dire consequences, to kidnap him within days and teach him a lesson. On 16.12.2002, about 8 PM Arvind, (another deceased) servant of the appellant came and told the father of the informant that the appellant was calling him. Ravindra Prasad went with Arvind. He did not return even after half an hour. Arvind came back and asked the younger brother of the informant, Sunny Kumar (also deceased), to accompany him, as called for by the appellant. Both, the father and brother of the informant, did not return till the morning of 17.12.2002. Being suspicious, the informant started to search for them. He went to the cattleshed of the appellant which was closed, and neither the appellant nor his servant was found present. 3 refusal to purchase milk from him. The fardbeyan was signed as attesting witness by the informant's cousin, Sanjay Kumar - PW 7.
3. The dead bodies of Ravindra Prasad, Sunny Kumar and one unknown were recovered on 17.12.2002 at about 9 PM from what is described in the Inquest Report as, the room meant for keeping fodder at the goat market situated to the east of Pearl Cinema Hall, PS Kotwali. The room was stated to belong to the appellant. PW 6 and PW 7 were witnesses to the three Inquest Reports which were marked as exhibits 5, 5/1 and 5/2. The first seizure list, marked as Exhibit 6, was witnessed by PWs 1 & 2, Vijay Kumar and Baleshwar Rai at about 11 PM for recovery of blood stained earth, small pieces of husk and small cuttings of blood stained paddy husk from the cattleshed of the appellant in the goat market.
4. The appellant was taken into custody on 23.12.2002. The appellant made his confessional statement on 25.12.2002 in presence of PW 8, the Investigating Officer, recorded by Sub Inspector Rajendra Tiwari. The disclosures made by him led to another search and seizure, marked as Exhibit 6/1, on 25.12.2002 at about 8.30 PM witnessed by PWs 1 & 2, Vijay Kumar and Baleshwar Rai for recovery from a garbage pile 25 yards north-east from the cattleshed of the appellant at the goat market of (1) blood stained old half shoes of plastic, two pairs, (2) blood stained white cotton 'Gamchha' in which 'Sultali' (joot string) and nylon rope were tied, (3) blood stained chequered 'Gamachha' of green colour in which a sachet of 'Tiranga' (tobacco-mix) was tied in one corner, (4) plastic rope of green colour about 8-9 cubits, (5) piece of blood stained 4
5. The police after investigation submitted chargesheet under Section 302/34 of the Penal Code and the accused were put on trial. Co-accused Md. Hamid was acquitted while the appellant was convicted and sentenced.
6. This Court on 30.7.2008 directed the recording of additional evidence on two points (1) to get the confessional statement of the appellant on record as exhibit either by further examination of the Investigating Officer, Rajendra Mishra, PW 8 or by examining SI Rajendra Tiwari, who recorded the fardbeyan of the informant and the confession of the appellant, as a Court Witness, (2) the material exhibits, as per seizure allegedly made on disclosure by the appellant to be brought before the Court and PW 6 should be further examined by the court in respect of those articles for identifying them. The confessional statement of the appellant has then been marked as Ext. 1 after recall of PW 8 and the knife at item 10 of the seizure list, Exhibit 6/1, marked as Ext. 8.
7. The defence of the appellant in the statement of accusation under Section 313 was a complete denial of the material facts and allegations. Ownership of the Khatal, recovery of articles and the dead bodies inclusive of the story of selling milk to the deceased and the alleged threat a few days earlier when the deceased stopped purchasing milk from him due to poor quality were all denied. However, the appellant did not adduce any evidence in his defence.
8. Learned Senior Counsel Sri Kanhaiya Prasad Singh, on behalf of the appellant, submitted that the present was a case of 5 well known to PW 6 as evident from the fardbeyan and his deposition in court. There was thus no occasion for him not to identity the deceased at the time of the Inquest Report. For like reason, PW 7, a cousin of the informant shall also be presumed to recognize Arvind but did not do so as an Inquest Report witness. There is no material on record how and in what manner the dead body of Arvind was identified by his father through a photograph. The father of Arvind has not been examined. Arvind may be alive and was purposely being withheld by the prosecution in an effort to prove that the cattleshed belonged to the appellant because PW 3, an independent witness had stated that it was Arvind who was running a cattleshed at the old goat market. PW 4 had stated that the appellant was never engaged in a milk business. PW 6 for the first time stated in court that on 12.12.2002 the appellant had threatened to kill his father in an effort to embellish his case. In view of the strained relations and the altercation on 12.12.2002, it was an unnatural conduct on part of PW 6 not to have become cautious when his father did not return and his younger brother was also summoned. Nonetheless, PW 6 waited patiently till morning to start searching for them. PW 7 states that PW 6 and his father never ran a Tea Stall and lived in the village. PW 6 stayed at his house at Kumhrar in the night of 16.12.2002 and left his house at about 10-11 AM on 17.12.2002. PW 7 stated that the three dead bodies were lying in front of Pearl Cinema. He claims to have stated under Section 161 Cr.P.C. that the dead bodies were recovered from the room of the Pearl Cinema where the cattleshed of the appellant was situated but then again stated that he had not 6
9. The alleged recoveries from the garbage pile, a public place accessible to all, on 25.12.2002, mentioned in the seizure list do not pertain to the appellant in any manner and it is for the prosecution to prove the link of the appellant with the same which has not been done. Likewise, the blood stained earth and paddy husk do not lead to any conclusion of the guilt of the appellant. PWs 1 & 2 had gone hostile and denied having signed any seizure list. The seizure from the garbage pile was not made in the presence of PW 8, the Investigating Officer, and neither was it signed by him. There was no recovery on any confession by the appellant. It is for this reason that materials allegedly recovered on disclosure were not marked as exhibits during trial and were not produced or marked exhibits even after the order for additional evidence by this Court dated 30.7.2008.
10. PW 7 an attesting witness to the fardbeyan lodged on 17.12.2002 at 4 PM states that he learnt that his uncle and cousin were missing at 7 PM. The FIR itself is therefore collusive and non- examination of S. I. Rajendra Tiwary who recorded the fardbeyan has caused prejudice to the appellant. The prosecution, aware of this contradiction, purposefully withheld the witness and for which adverse inference be drawn under Section 114(g) of the Evidence Act. In fact, the fardbeyan has been recorded and FIR registered after recovery of the bodies falsely implicating the appellant. This shall fully explain the contradiction in the statements of PW 7 with that of PW 6. Column 3(b) of the FIR with regard to the time of receipt of the information was blank for that reason.
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12. PW 8 does not state the source of information for identification that the room in question was under occupation of the appellant. The recovery of the bodies was not from any cow shed but from a room. This is contrary to the statement of PW 6. He has further stated that none of the witnesses had identified any articles seized. He has further stated that he did not find any item during search near Sona Medical Hall.
13. The appellant was taken on police remand on 23.12.2002 and his confession obtained on 25.12.2002. The confession recorded on the third day of police custody is itself evidence of it having been obtained under duress. Sub Inspector Rajendra Tiwari, who recorded the confession, was not the Investigating Officer. The confession has been retracted under Section 313 Cr.P.C. PW 8 also says that in the confession the appellant stated he was innocent.
It was submitted that if that part of the confession leading to recovery is an integral part of the confession and cannot be segregated, the entire confession including the recovery part is inadmissible in evidence. The statement of the appellant that the knife used by him in committing murder, the rope used for tying hands and legs of the deceased persons, blood stained clothes, shoes and sandals of the deceased concealed by him and recovered after disclosure made by him was one integral whole of a confession before the police and the entire statement was inadmissible. Reliance for the proposition was placed on AIR 1966 SC 119 (Aghnoo Nagesia Vrs State of Bihar). The trial court has classified the case as one of circumstantial evidence. If the 8 evidence is complete. There was a relationship between two of the deceased and the accused as purchaser and supplier of milk for the Teastall over a period of three months. Differences arose between them with regard to the quality of milk and accounts. The deceased also told the appellant that they shall not purchase milk any further from him. The appellant then threatened to teach them a lesson. The motive for the crime was therefore clearly existent. Deceased Ravindra left with Arvind in front of the informant on the call of the appellant and did not return. Arvind came back again and took deceased's son along with him to the appellant. Nothing further transpired thereafter. PW 6 went home expecting that the two would come back given the fact that the appellant was well known and there had been a business relationship between them. PW 6 therefore did not suspect any foul play at this time. The opportunity to kill the deceased who were present at the premises of the appellant is an important link in the chain of circumstances. The conduct of PW 6 in starting to search for his father and brother when they did not return home till the morning was perfectly natural. The recovery of the dead bodies, followed by the confession and on basis of which items belonging to the deceased were recovered thereafter was clearly admissible under Section 27 of the Indian Evidence Act. That part of the confession inadmissible under Section 25 of the Indian Evidence Act can easily be segregated from that admissible under Section 27 of the Indian Evidence Act. Reliance was placed on 2008) 1 SCC (Cri.) 72 (Anil alias Raju Namdev Patil Vrs Administration of Daman and Diu) and (2008) 1 SCC (Cri.) 109 (Gagan Kanojia and anr 9 conviction. The absence of any forensic report of the blood found is of no consequence. On disclosure made by PW 6 of the ownership of the room being with the appellant, large amount of blood has been found there. The room where the bodies and blood was found was not a Slaughter House suggestive of animal blood. Section 8 of the Evidence Act, 1972 makes motive, preparation and the previous or subsequent conduct relevant which are all to be found in the present case. The motive accrued on refusal to purchase milk. The preparation consisted of the earlier threats held out by the appellant and calling the father and brother of the informant one by one to the room. It was lastly submitted that the conduct of the appellant was highly relevant. Deceased Arvind was his own servant. Presumably he was an aid in the killing of the other two deceased as manifest I from the Post Mortem Report indicating tying of their hands and feet which the appellant could not have done alone. If Arvind was found dead in the room belonging to the appellant on account of an act of other than himself, surely as the employer the appellant would have taken legal steps with regard to the death either accidental or deliberate by another. The absence of any such effort on his part lends credence to his complicity in the crime.
16. Three persons have been killed. The first two deceased were called one after the other. Their hands and feet were tied and neck of the first deceased was also tied. One of them, (either the father or the son) must have been a witness to the trauma of watching the other being killed. Realising that the accomplice Arvind was also a witness to 10
17. In the opinion of this Court, the occurrence can be can be compartmentalized in four categories; the business relationship between the parties and the souring of the same, the conduct of the appellant in summoning the father and brother of the informant, the recovery of their dead bodies along with that of Arvind, servant of the appellant, from the room stated to belong to the appellant and lastly the recovery of the belongings of the first two deceased along with the weapon of offence on the information furnished by the appellant. These are the links in the chain of circumstances for an occurrence to which otherwise there is no eye witness, what Criminal Jurisprudence defines as circumstantial evidence.
18. In a case of circumstantial evidence, the links in the chain of circumstances on which the hypothesis of the guilt of the accused is founded must be complete, inconsistent with any other conclusion. If the links be not established raising the scepter of any other hypothesis inconsistent with the guilt of the accused, thereby putting forth two possible views of the occurrence, the benefit thereof must go to the accused. The continuity in the chain of circumstances must be established beyond doubt.
19. In Padala Veera Reddy vs. State of A.P. (AIR 1990 SC 79) it was laid down that 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;11
evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
20. The appellant is stated to be having 14 to 15 cattle in his Cattleshed. He had a captive market in the tea stall run by the informant and his family for 25-30 Kgs of milk daily. The abrupt stoppage of the same at the behest of deceased Ravindra naturally infuriated the appellant. He called Ravindra to his premises either to cajole him or to translate his earlier threat into action to revive his captive market. His servant, deceased Arvind, was also present. Presumably, unable to persuade Ravindra, the appellant tied him up as evident from the Inquest Report and then had his younger son, Sunny, aged about 17 years also summoned. Clearly the appellant intended thereby to bring more pressure to resume purchase of milk from him. The failure to persuade led to the tying up of Sunny also as evident from the Inquest Report. Arvind, whose livelihood was dependent on the income of the appellant, was only too eager to help. But, when the appellant realized the status of Arvind as a witness also to the assault upon Ravindra and Sunny, obviously the appellant decided to leave no traces by doing away with Arvind also. The appellant has not disputed the identity of Arvind as his servant. Once the prosecution claimed that one of the dead bodies was of Arvind, identified by his father, the onus lay on the appellant to demonstrate that his employee was alive by either producing him in Court or leading evidence to that effect.
21. The appellant had business relations for the past months with the tea stall. The deceased Ravindra and Sunny were summoned 12 unsuspecting till then. Had it been otherwise, the witness aged about 21 years on the date of occurrence would not have allowed his younger brother aged about 16 years to go to the appellant while his father was yet to return. He would have made efforts in the night itself to trace them if he had any suspicion of the conduct of the appellant. Not unusually, on a cold winter night, PW 6 retired to the warmth of the quilt. When the two deceased did not return till the morning, only then, PW 6 suspected foul play and after having looked for them in vain lodged the missing persons report on 17.12.2002 at 4 PM. At the first opportunity he expressed his suspicion to the Police against the appellant and took the police to the room of the appellant in the Pearl Cinema Hall premises where fodder was also stored and the three dead bodies found. Huge amount of blood was found clotted and stained on the floor and the wall. The bodies were concealed in the heap of husk. Adjacent to the cemented floor towards the east of the room was a hut made of straw used for keeping the cattle where blood was also found. It is, therefore, apparent that PW 6 used the terminology cattleshed in the loose sense to include both where the cattle was kept and the fodder room adjacent to each other.
22. The informant stated that he was running the tea stall for several years. PW 7, an attesting witness to the fardbeyan and the Inquest Report both of which he did not deny, stated that the informant and others never ran a tea stall. In the facts and circumstances of the case, apparently, PW 7 is not a reliable witness and therefore was stating falsehood when he said that on the night of 16.12.2002 the 13 preparation of the Inquest Report classifying the body as unidentified does not impress the Court. His Post Mortem Report reveals injuries and perforation of the eyes, deep slitting of the throat from left to right about 6" X 1.1/2" X bone deep. The face was clearly disfigured in a manner making identification difficult. In this perturbed atmosphere of identifying the bodies both of his father and younger brother, the informant cannot be faulted with for non-identification of Arvind so as to cast doubt on the entire prosecution case .Arvind has been identified by his father and the non-examination of his father has not caused prejudiced to the appellant in any manner as the appellant does not deny at any stage that the body was that of his employee Arvind. Surely, if the employee of the appellant was missing or had otherwise been done away with, natural conduct of the appellant would have been to take appropriate steps in that regard by search or reporting to the Police. The appellant did no such thing.
24. When a crime takes place, it is not unusual for a Police team to proceed for the place of occurrence. The case is then entrusted to an officer to investigate. Clause 161 of the Bihar Police Manual authorizes the Investing Officer to proceed to the spot himself or to depute any of his subordinate. The recording of the fardbeyan by SI Rajendra Tiwary in the presence of PW 8 cannot be faulted. The latter in his deposition has proved the fardbeyan as written in his presence and identified the writer and his signature. Likewise, SI Rajendra Tiwary is also stated to have prepared the Inquest Report on directions of PW 8 and who also signed the same and duly proved it. The first Seizure List of blood 14 Post Mortem Examination Report of Ravindra is (1) one incised wound 1" X ½" X ½" over left chest 1.1/2" left to the left nipple. (2) One penetrating injury 1.1/2" X 1/3" X cavity deep over left back of chest on mid-scapular region. Scapula and sixth rib were found fractured on back. (3) One ligature mark 18" X ½" X 1" around the neck situated below the thyroid cartilage and continuous up to back, lung was found ruptured due to injury. Injuries (1) & (2) were attributed to a sharp pointed weapon and injury no. (3) to a jute ligature. Death was caused by asphyxia due to strangulation. The Post Mortem Examination Report of Sunny indicated (1) one incised wound 6.1/2" X 1" X bone deep over front of neck from left to right, trachea, oesophagus and fourth cervical vertebra cut through and through. The injuries were attributed to a sharp cutting weapon. The Post Mortem Examination Report of Arvind pointed out (1) one perforating injury cutting right upper eye-lid 1" X ½" X cavity deep. Right eye ball was perforated, (2) one incised would 6" X 1.1/2" bone deep over front of neck from left to right trailing right side above thyroid, trachea, esophagus and fifth cervical vertebra fracture. The nature of weapon used was suspected to be sharp and pointed. The appellant could not have committed these attacks single handedly. Apparently he tied up Ravindra and Sunny with the help of Arvind and did away with them. Either the son or the father was therefore exposed to the trauma of the killing of the other in the other's presence. Only thereafter Arvind appears to have been done away with to remove any evidence so aptly demonstrated by the perforation of his eyes resulting in disfiguring of his face. 15 that PW 3, a resident of the Pearl Cinema Hall, had stated that the cattleshed of Arvind was located near the goat market and PW 4 had stated that the appellant did have his business in the goat market but not of milk. The two witnesses have denied any knowledge of the occurrence.
In spite of the denial by the appellant that the cattle shed (Khatal) which was located at the place of occurrence was not his, as may appear from the above noted suggestion to the witnesses or which might have been stated by the appellant in his statement under Section 313 Cr. P.C., there is satisfactory material available to the Court on record from admission of the appellant that the cattle shed in question was run by him. It hardly requires to be noted down that all statements of an accused are not confession if they do not in terms appear admissions of commission of a crime or as admissions of facts which may constitute an offence or commission thereof. The confession of the appellant before the police may not be admissible in its entirety on account of falling within the definition of the term "confession" as pointed out just now, but some part of it, specially, those which relate to his personal descriptions could never be said to be his admissions on facts of commission of offence or facts constituting a particular offence. Ext.8 is the confession of the appellant and some of its terms are relevant for the present purpose along with some of the statements of the appellant made to the Officer recording Ext.8. It may appear from columns 3 and 4 as also from the first few opening lines of the statement that the cattle shed (Khatal) which was located in the 16 cattle shed (Khatal) which is known as Bakari Market is in full consonance with the prosecution story and the Court does not have any hesitation in recording the finding as above.
27. The appellant was in custody since 23.12.2002 and made his confessional statement before the Police on 25.12.2002. On the information furnished by him, belongings of the two deceased and the weapon of assault were recovered on 25.12.2002 from the garbage pile 25 yards north-east from the cattleshed of the appellant. The recovery made by SI Rajendra Tiwary in presence of PWs. 1, 2 & 8 has been duly proved by PW 8. PW 1 in his deposition acknowledged his signature on the Seizure list but simply denied any recovery in his presence without explaining his signature. Similarly, PW 2 admitted his signature but in his cross-examination as an after thought stated that the signature of both, PWs. 1 & 2 had been obtained on a plain paper. The Court is satisfied that when PW 8 has proved the seizure list dated 25.12.2002 in accordance with law, it is hardly of relevance that PWs 1 & 2 have gone hostile. It is unfortunate that though the seizure list was proved and marked as Ext. 6/1, the ten items recovered were never produced in Court, exhibited and marked as exhibits. The Court shall deal with this aspect later.
28. In AIR 2004 SC 2865, Anter Singh Vs State of Rasjasthan, considering this issue in the relevant extract at Para 10 of the judgment, the Court held:-
"10.We shall first deal with the plea as to whether evidence relating to recovery is acceptable when non-official witnesses 17 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................. "
29. In the additional evidence taken under Section 391 Cr.P.C. by orders of this Court on remand for proving the confession of the appellant and T.I. Parade of the belongings of the deceased seized on the information furnished by the appellant, PW 8 proved the confession of the appellant before Police recorded by SI Rajendra Tiwary in his presence which was then marked as Ext. 1. He further acknowledged the recovery of the items from the garbage pile as mentioned in the seizure list. Only the weapon of assault, at Item 10 of the seizure list was produced while PW 8 stated that other items seized were destroyed as evident from Sanha Entry (Station Diary) No. 756 dated 14.10.2007 because the trial had been disposed. The judgment in the trial was delivered on 8.2.2007. This in itself confirms the factum of seizure and recovery from the garbage pile.
30. The Bihar Police Manual in Rule 307 mandates the maintenance of a Malkhana Register to be maintained in Police Manual (hereinafter referred to a PM Form No. 51). The Officer Incharge of a Police Station is then required to fill up PM Form No. 52 in duplicate and send it as a challan to enable the Court Officer to write up the Malkhana Register. The Court Officer is required to ensure safe custody of such seized property in the Malkhana. The Malkhana Incharge is answerable that the seized item is not taken away, tampered with etc. 18 property shall be taken from the Magistrate in Column 10 as soon as the property is brought in. Final orders for disposal of the property shall be taken in the same column when it is no longer necessary to keep the property in court as is provided for by Rule 307 (n).
31. These instructions contained in the Police Manual find statutory reflection in Section 451, 452 and 457 of the Criminal Procedure Code. The property is required to be produced before the Court and the Court can make such order as it thinks fit for the proper custody of such property pending conclusion of the trial. On conclusion of the trial the Court shall make such order as it thinks fit for disposal by destruction or otherwise of the property. Section 457 clearly mandates that upon seizure by the police it has to be reported immediately to the Magistrate. That there was a seizure of the belongings of deceased Ravindra and Sunny on basis of the information furnished by the appellant stands concluded by the evidence of PW 8. If the Public Prosecutor despite having the seizure list marked as an exhibit for reasons not difficult to understand, did not have the seized items upon disclosure marked as separate material exhibits and the Police in its wisdom acted contrary to the police Manual and the provisions of the Code of Criminal Procedure in destroying the same contrary to law, such illegal acts can neither damage the case of the prosecution or ennure to the benefit of the defence. This illegality cannot be a foundation to hold that there was in fact no seizure of the items upon disclosure. The Station Diary Entry No. 756 dated 14.10.2007 appears to this Court an evidence that material articles 19
32. Such omission can be termed as inconsequential. In AIR 2007 SC 848 (Bishnu Prasad Sinha and anr Vs State of Assam) it has been held at Paragraph 50 as follows:-
"50. Indisputably, the investigation was done in a slipshod manner. The undergarments should have been sent for chemical analysis. Even the urine and blood samples, which were taken, allegedly, have been sent for their analysis in the Forensic Laboratory. According to the Investigating Officer, the report was placed on records. It, however, was not marked as exhibit. Apart from the Investigating Officer, indeed the Public Prosecutor was remiss in performing his duties."
33. The Indian Evidence Act in Sections 24, 25 and 26 clearly provides that a confession by an accused is irrelevant in a criminal proceeding and more particularly, when made before a Police Officer, cannot be used against a person accused of an offence. Similarly no confession made in custody of the Police can be used against him unless it be made in the immediate presence of a Magistrate. The provision is salutary for reasons of the notoriety of the police in extracting such confession upon a position of dominance over a helpless victim. Section 27 of the Indian Evidence Act is however an exception to the same, making an inroad to the extent that when any fact is discovered in consequence of information received from a person accused of an offence while in custody of the police, whether such information amounts to a confession or not, shall be admissible in evidence against him to the extent of the fact discovered in pursuance of such information. This has been held as not confined only to the 20
34. The Law with regard to disclosure under Section 27 of the Evidence Act and the extent of admissibility under the same was first explained in AIR 1947 Privy Council 67 (Pulukuri Kotayya Vs King Emperor) in Paragraph 10 as follows:-
"10. Section 27 which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statement made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The Section seems to be based on the view that if a fact is actually discovered in consequence of the information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence, but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in Police custody produces from some place of concealment some object such a dead body, a weapon or ornament, said to be connected with the crime of which the informant is accused.......... On normal principles of construction their Lordship think that the proviso to Section 26 added by Section 27 should not be held to nullify the substance of the Section. In their Lordship's view it is fallacious to treat the "fact discovered" within the section 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 21 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 I stabbed A".
These words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
35. This decision has consistently been quoted with approval in a large number of decisions by the Courts. In (2008) 1 SCC (Cri.) 72 (Anil alias Raju Namdev Patil Vs Administration of Daman Diu, Daman & anr.), the appellant was taken to the place pointed out by him leading to the recovery of the remains of the body burnt from the drain. Grass was found to be burn at that place and pieces of cardboard were found. Burnt shoes and trousers were found. Relying upon the case of Kotayya (Supra) it was held at Paragraph 23 of the judgment that "the information disclosed by the evidences leading to the discovery of a fact which is based on mental state of affair of the accused is, thus admissible in evidence". Again in (2008) 1 SCC (Cri.) 109 (Gagan Kanojia & anr Vrs State of Punjab) dealing with a cased of circumstantial evidence of kidnapping and murder the Supreme Court at Paragraph 30 of the judgment held as follows:-
"30. Recoveries of the said articles were made pursuant to the information given by appellant no. 1. The information given by appellant no. 1 led to discovery of some facts. Discovery of some facts on the information furnished by appellant no. 1 is a relevant fact within the meaning of Section 27 of the Evidence Act. It is therefore admissible in evidence and the same could have been taken into consideration as a corroborative piece of evidence to establish general trend of 22 was within the specific knowledge of the appellant himself that items had been thrown therein. Obviously, the attempt was at camouflage and the recovery was based on the information furnished by the appellant, known to him alone that the items of the deceased and the weapon of assault had been thrown there. That the garbage pile was a public place accessible to all was hardly of any relevance as the recovery from a particular place was consequent to the information furnished by the accused related to the offence.
While discovery of a fact pursuant to disclosure under Section 27 of the Evidence Act by itself cannot lead to conviction but it is surely a link in the chain of circumstances, if it finds corroboration from the other facts and circumstances pointing to the guilt of the accused. In AIR 1994 SC 2420 (Suresh Chandra Bahari Vs State of Bihar), on the information given by an accused during interrogation a piece of blanket, sari and rope were recovered from the "Khad-Gaddha". It was urged that the alleged recovery by the Investigating Agency was without a formal disclosure statement, without preparation of a formal memo of the place of recovery in absence of any public witness and therefore was not admissible under Section 27 of the Evidence Act. The Supreme Court held as follows at Paragraph 71 of the judgment.
"71. The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW 59 and others to the 23 be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence."
37. In AIR 1999 Sc 1293 (State of Himachal Pradesh Vrs Jeet Singh) dealing with the issue of recovery on a disclosure statement from a public place it was held at Paragraph 26 as follows:
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is 24 his own Khatal at the New Market adjacent east of the Pearl Cinema Hall and that Arvind was his servant. This part of the confession is unrelated to the crime and partakes the nature of an information furnished by the accused. Likewise in his confession he states that he can divulge the belongings of the deceased and the knife, rope etc. after which the recovery was made. So much of the confession as is not related to the commission of the crime but only to information leading to discovery and recovery of fact is therefore clearly admissible in evidence.
39. The case of Aghnoo Nagesia (Supra) relied upon by the appellant is of no avail to him. It was a case where the appellant committed a crime and lodged the First Information Report himself in the manner of a confession also leading to recovery. It was contended that the entire statement was a confession made to a Police Officer not provable against the appellant. The Court held that Section 27 of the Indian Evidence Act and disclosure made thereunder was an exception engrafted under Section 162(2) Cr.P.C. which otherwise prohibits the use of statements made to the Police during investigation. It was further held that if proof of a confession was excluded by reason of Sections 24 to 26 of the Evidence Act, the entire confessional statement must also be excluded unless proof thereof was permitted under Section 27 of the Evidence Act which partially lifts the ban to the extent that it relates to the discovery of a fact pursuant to information. On the facts of the case it was held that the disclosure in the First Information Report akin to a confessional statement had led to the recovery of the dead bodies and 25 Prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of S. 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in (1961) 1 SCR 14: (AIR 1960 SC 1125). For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore, the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood- stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offences under S. 302 of the Indian Penal Code."
40. Delay in the institution of the FIR has been considered by the Courts with suspicion. The FIR was registered on 17.12.2002 at 5.15 PM. It records being dispatched to the Magistrate on 17.12.2002. Section 157 of the Code of Criminal Procedure mandates it to be sent forthwith by the Police to the Magistrate. There is a presumption that it reached the Magistrate on the same day. Any delay on part of the Magistrate in seeing the same cannot affect the prosecution case. The 26 Given the procedural formalities required to be fulfilled, the pressure of work on the police, there may be some delay. But, if this delay along with attending circumstances raises further question, the issue may be otherwise. Equally an unreasonable delay shall also raise suspicion. Ultimately the issue shall depend on the facts and circumstances of each case. On the facts of the present case, this Court is satisfied that there has been no unreasonable delay in the forwarding of the FIR and neither are there any attending circumstances raising doubts as a consequence of what has been alleged as delay in sending the FIR to the Magistrate not forthwith as required under Section 157 of the Code of Criminal Procedure.
41. The Court, therefore, in the facts and circumstances of the case is satisfied that the prosecution has been able to bring home the guilt of the accused with regard to murder of the three deceased persons.
42. The issue then arises of the sentence of death imposed on the appellant. The law stands settled that the sentence of death is to be imposed in what is described as the rarest of rare cases. No statutory definition of the term is available. The Courts have evolved a yardstick and guidelines based on certain guiding factors as eloquently discussed in the case of Machhi Singh Vs State of Punjab, (1983) 3 SCC 470. While it is true that grant of life imprisonment is the rule and death penalty an exception in the rarest of rare cases "by stating special reasons" for awarding it but, at the same time, it is also true that the punishment must be commensurate to the crime 27 lesser punishment for the accused would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases he understands and appreciates the language of deterrence more than the reformative jargon."
Undue sympathy to impose inadequate sentence will do more harm by undermining public confidence in law. It is therefore the duty of a court to award proper sentence having regard to the nature of the offence and the manner in which it is executed or committee.
43. The present case clearly falls under the yardstick laid down in the case of Machhi Singh (Supra) (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. If upon taking an overall global view of all the circumstances 28 was of no concern to him. Either Ravindra or Sunny had to undergo the trauma of watching the father or the son being killed first in front of the other. Their hands and feet were tied and a butchering knife was used to cause multiple murders. The nature of the assault upon the deceased Arvind to do away with all evidence whatsoever cannot but be described as dastardly, diabolical, bestiality beyond normal human conduct in multiple murders for petty monetary gain after due planning, meditation and design. The Court is therefore satisfied that the present clearly falls within the category of the rarest of rare cases warranting death sentence to the appellant.
45. Before parting with the case we are constrained to take note of the manner in which PW 8 the Investigating Officer, and upholder of the law in uniform, tried to subvert the law by turning turtle in cross- examination and again finding himself falling in line after the orders for additional evidence by this Court on 30.7.2008. It is for the Police to decide how to set their house in order and not for the Courts to advise them.
46. There is no merit in this appeal. It is accordingly dismissed. The sentence of death imposed upon the appellant is hereby confirmed under Section 366 of the Code of Criminal Procedure.
(Navin Sinha,J.) Dharnidhar Jha,J.- 47. I agree. But, I have some reservations on the 29 Investigating Officer of the case, namely, S.I. Rajendra Mishra( P.W.8). In his examination in chief he has stated that he obtained the accused Sanaullah on police remand and during questioning him he came to know about the place of occurrence and concealment of different articles which could have given inkling about the offence and its authorship. This is recorded in paragraph 11 of the evidence of the witness P.W.8 but when one considers the cross examination part of the same witness P.W.8 in paragraph 22 he gives a completely destructive and contrary account of reaching the place of occurrence so as to recovering the articles which could be the evidence of crime and its authorship. Likewise, he has stated in paragraph 22 that no one had told him the fact that the Khatal (cattle shed) was being run by the present appellant Sanaullah Khan. This is again a blatant lie as the very fact is mentioned in the fardgeyan and is stated to by the witness. This lie is further evident from his evidence from paragraph 34 that the informant had pointed out to the Investigating officer that he had seen the appellant at the very Khatal on 15.12.2002. Likewise, in paragraph 36, P.W.8 has stated that no one had told him that Sanaullah Khan had called the other deceased Arbind, the full brother of the informant to him. These are all blatant lies as these facts are the formative facts of the case which were stated to the police in the very basic statement of the prosecution, the F.I.R.
48. While going through the evidence of P.W.8 in cross examination we were making observations on these facts. I want to 30 evidence in examination-in-chief or to minimize the effect of the prosecution document prepared by the police so as to helping out the accused persons on a triple murder case. I would like to direct the Register General of the Court to send a copy of the deposition sheets of P. W. 8, S. I. Rajendra Mishra to the Director General of Police, Bihar for holding an enquiry into the conduct of the Officer.
49. Except the above, I agree with the findings recorded by Brother Sinha.
( Dharnidhar Jha,J.) Patna High Court The 16th December, 2009 Snkumar/Kanth( N.A.F.R.)