Allahabad High Court
Nanku Alias Brahm Sahai & Another vs State Of U.P. on 6 March, 2017
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 40 Case :- CAPITAL CASES No. - 1435 of 2016 Appellant :- Nanku Alias Brahm Sahai & Another Respondent :- State Of U.P. Counsel for Appellant :- Samit Gopal,G.S. Chaturvedi,Km.Somya Chaturvedi Counsel for Respondent :- G.A. Hon'ble Bala Krishna Narayana,J.
Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Bala Krishna Narayana,J.)
1. Heard Sri G.S. Chaturvedi learned Senior Advocate assisted by Shri Samit Gopal and Km. Somya Chaturvedi on behalf of the appellants and Sri Akhilesh Singh learned Govt. Advocate, Shri N.K.S. Yadav, Shri Saghir Ahmad Shri J.K. Upadhyay, Km. Meena learned AGAs for the State and Smt. Manju Thakur, Brief holder for the State.
2. This capital appeal has been preferred by the appellants, Nanku@Brahm Sahai A1 and Chhatrapal Pasi A2 against the judgement and order dated 4.3.2016 passed by Additional Sessions Judge, Court No. 1, Fatehpur in S.T. No. 289 of 2010, State of U.P. Vs. Nanku@Brahm Sahai and others arising out of case crime no. 35 of 2010, under Sections 364/34, 302/34 and 201 IPC at P.S. Lalauli, District Fatehpur connected with S.T. No. 290 of 2010, State of U.P. Vs. Nanku@Brahm Sahai arising out of case crime no. 37 of 2010, under Section 25 of Arms Act at P.S. Lalauli, District Fatehpur and S.T. No. 291 of 2010, State of U.P. Vs. Chhatrapal Pasi arising out of case crime no. 38 of 2010, under Section 25 of Arms Act at P.S. Lalauli, District Fatehpur by which the appellants have been convicted and sentenced to death and a fine of Rs. 10,000/- and in case of default of payment of fine one year additional simple imprisonment under Section 302/34 IPC, imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine one year additional simple imprisonment under Section 364/34 IPC, seven years imprisonment under Section 201 IPC and three years imprisonment and a fine of Rs. 5000/- and in default of payment of fine six months additional imprisonment each under Section 25 of the Arms Act.
3. All the sentences were directed to run concurrently.
4. Reference made by the learned Additional Sessions Judge Court No. 1, Fatehpur to this Court for confirmation of death sentence passed by him against the appellants which was registered as reference no. 3/2016 and connected with this appeal by order dated 30.3.2016 passed by this Court is also being heard along with this appeal.
5. The facts of this case are that PW1 Kallu Singh lodged a missing report on 25.2.2010 Ext. Ka1 at P.S. Lalauli, District Fatehpur stating therein that his elder brother Man Singh aged about 35 years who was 5 feet tall, bald with a cut on the upper part of his right ear and who was wearing a black trouser, blue shirt and a blue coloured fibre slipper had gone with A1 Soni Nanku but had not returned back. Despite hectic efforts made by him and his other relatives, his whereabouts could not be traced out. Hence necessary action be taken in the matter.
6. Thereafter on 3.3.2010 PW1 Kallu Singh lodged a written report at P.S. Lalauli, District Fatehpur addressed to SHO Lalauli alleging therein that on 25.2.2010 he had given a written information about his brother Man Singh having gone missing. A1 Nanku@Brahm Sahai son of Shiv Baran resident of the same village as Man Singh@Nankawa had taken away Man Singh@Nankawa with him from his house in the presence of his wife PW2 Santoshi Devi, his son PW3 Raj Kumar and PW4 Sikandar Singh son of Gyan Singh. He was accompanied by one more person who could not be identified due to darkness. His brother Man Singh@Nankawa had gone missing at about 8pm-9pm on 23.2.2010. Despite hectic efforts made by him and the police, no information about him could be gathered and he was convinced that A1 Nanku and his companion had kidnapped his brother with the intention of committing his murder and it was possible that they had caused his dead body to disappear after killing him and hence appropriate action be taken after registering his FIR.
7. On the basis of the aforesaid written information Ext. Ka2, Chek FIR Ext. Ka7 and necessary GD entry Ext. Ka8 were prepared by PW8 Constable Jagdish Prasad, Case crime no. 35 of 2010, under Section 364 IPC was registered against A1 Nanku@Brahm Sahai and one unknown person at P.S. Lalauli, District Fatehpur at about 9-10 PM on 3.3.2010.
8. Investigation of the case was initially entrusted to PW11 Chhavi Narayan Singh, who, after recording the statements of PW1 Kallu Singh, PW2 Santoshi Devi and PW3 Raj Kumar, inspected the place of incident and prepared the site plan Ext. Ka18. On the basis of the information received by him from the police informer on 7.3.2010, PW11 arrested A1 Nanku@Brahm Sahai from Mevki crossing at about 11AM and took him to the police station for interrogation. On being quizzed by the police he confessed having committed the murder of Man Singh@Nankawa and further stated that about six years before, deceased Nankawa@Man Singh had assaulted his father inflicting multiple injuries on him and for committing the aforesaid offence, A1 Nanku@Brahm Sahai was charge-sheeted, prosecuted, convicted and sent to jail but later he was released on bail by the High Court and on seeing him roaming freely in the village, A1 Nanku@Brahm Sahai took a vow to commit his murder and to achieve the aforesaid object he developed friendship with the deceased and on 23.2.2010 at about 8pm-9pm he along with his friend and neighbour A2 Chhatrapal Pasi took the deceased from his home to a place away from the village at Kamlapurwa Road and served him liquor and after he was fully intoxicated, they took him near the well and he shot him dead with his 12 bore country made pistol. Thereafter he with a banka and A2 Chhatrapal Pasi with an axe severed both his hands and cut his torso into two parts and then packed the pieces of his dead body together with pieces of stones in two bags with a view to prevent the dead body from surfacing above the water of the well and dropped the same into the well. During his interrogation on 7.3.2010 A1 Nanku@Brahm Sahai made a disclosure statement to the effect that he would be able to help with the recovery of the dead body of the deceased, the crime weapon and some other relevant material from a place where he had hidden the same. A1 Nanku@Brahm Sahai then led the police party to a well in the grove in village Kamlapurwa Panda Jungle near the concrete road and from the well he got recovered two gunny bags containing pieces of deceased's dead body, bricks and stones and a banka at about 13:30 hours. Stench was emanating from the gunny bags which when opened, led to the recovery of the parts of deceased's dead body, his torso and head and pieces of bricks and stones. The dead body was identified by A1 Nanku@Brahm Sahai, relatives of the deceased and the other villagers present on the spot of as that of Nankawa@Man Singh. He then expressed his desire to help in the recovery of the country made pistol with which he had shot the deceased from the place where he had hidden it and led the police party to a place about 20 paces from the well of Panda wagaha. From there, after removing a heap of hay and straw got one country made pistol of 12 bore along with two live cartridges recovered at about 14:10 hours which according to the A1 Nanku@Brahm Sahai was the same pistol with which he had shot the deceased and thereafter he had hidden it there. Thereafter he led the police to a place about 20 paces from the spot from where he had got the country made pistol and a live cartridge recovered where a heap of ash was lying. He stopped there and after collecting the ash, he handed over the same to the police and disclosed that this was the place where he had shot the deceased and the ash was of the bloodstained clothes of the deceased which he had burnt along with the hay.
9. The aforesaid recovered articles, ash and plain earth collected by the Investigating Officer of the case from the place of recovery of the dead body and the other material were packed and sealed separately and recovery memo Ext. Ka3 was prepared on the spot by PW11. PW11 also prepared the site-plan of the place of recovery of the dead body and other incriminating articles Ext. Ka19.
10. Vide rapat no. 26 recorded at 18 hours on 7.3.2010 in the G.D. Sections 302 and 201 IPC were also added to the already existing Sections in the FIR, after the recovery of the dead body of the deceased, carbon copy whereof was brought on record as Ext. Ka20.
11. Thereafter the investigation of the case was transferred to PW12 SHO Pankaj Mishra who along with the other members of his police force arrested A2 Chhatrapal Pasi on 9.3.2010 at about 20:15 hours from a place in front of his house. His search led to the recovery of a country made pistol of 315 bore with a live cartridge in its chamber from the right pocket of his trouser. The appellant could not produce any license for possessing the arm recovered from him.
12. On being interrogated, A2 Chhatrapal Pasi confessed that Nanku @ Brahm Sahai A1 was his friend and with the intention to seek his revenge from the deceased, they had gone to the house of Nankawa @ Man Singh on 23.2.2010 at about 9 pm with the object of committing his murder. They had persuaded him to accompany them to a place outside the village i.e. Kamlapurwa road where they offered liquor to him and after he had become totally intoxicated, they took him to the Samadhi near the well in the grove where Nanku @ Brahm Sahai A1 shot him in his chest with his 12 bore country made pistol as a result of which, he fell on the ground and died on the spot. Thereafter Nanku @ Brahm Sahai A1 with a banka and Chhatrapal Pasi A2 with an axe severed both hands and legs of the deceased and cut his torso in two parts and after packing the pieces of his dead body into two bags along with the pieces of bricks and stones with the intention of making his dead body disappear, threw the same into the well. Thereafter, they burnt the bloodstained clothes of the deceased. Nanku @ Brahm Sahai A1 threw his banka into the well and hid the country made pistol and two cartridges under the heap of straw. He then returned to his home with the axe and after washing it he hid it in the thatched roof of his house. Thereafter he led the police party to the thatched roof of his house and pulled out an axe at about 20:40 hours and confessed that it was the same axe with which he had cut the dead body of the deceased into several pieces. The recovered weapons were packed separately, sealed and recovery memo Ext. Ka3 was prepared on the spot.
13. The articles and the weapons seized from the place of recovery of occurrence and the weapons recovered from A1 and A2 were sent for chemical examination. The FSL and serologist's reports revealed that blood was found on major parts of the banka, axe, plastic bags and the pieces of bricks and stones while no blood was found on the ash and the plain earth recovered from the place of recovery of the dead body. The blood found on the banka, axe, plastic bags and the pieces of stones was totally disintegrated and hence its origin could not be ascertained. The report of the FSL is on record as Ext. Ka31.
14. On the basis of the recovery memos Ext. Ka3 and Ext. Ka4, case crime nos. 37 of 2010 (State of U.P. Vs. Nanku@Brahm Sahai) and 38 of 2010 (State of U.P. Vs. Chhatrapal Pasi) were registered against the appellants at P.S. Lalauli, District Fatehpur under Section 25 of the Arms Act on 7.3.2010 at 14:10 hours and on 9.3.2010 at 20:15 hours respectively.
15. The post mortem on the cadaver of the deceased Nanakwa@Man Singh was conducted by PW6 Abdul Sattar Khan at 4:15 PM on 7.3.2010 who had also prepared the post mortem report of the deceased which is on record as Ext. Ka5. According to the post mortem report of the deceased, he had died as a result of ante-mortem injuries, two weeks before.
16. After completion of investigation, charge sheet Ext. Ka24 was submitted against both the appellants in case crime no. 35 of 2010, under Section 364, 302 and 201 IPC before the CJM Fatehpur. The Investigating Officer also filed charge sheets Ext. Ka 25 and Ext. Ka 26 in case crime nos. 37 and 38 of 2010, under Section 25 of the Arms Act separately against both the appellants. Since the offences mentioned in the charge sheet Ext. Ka24 were triable exclusively by the Court of Session, Learned CJM, Fatehpur committed the case under Sections 364, 302 and 201 IPC along with the cases under Section 25 of the Arms Act for trial of the accused to the Court of Sessions Judge Fatehpur from where, all the three cases were made over for trial to the Court of Additional Session Judge Court No. 1, Fatehpur. Charge was framed against the appellants on 20.3.2010 under Section 364/34 and 201 IPC. On the same day a separate charge under Section 25 of the Arms Act was framed against both the appellants. Additional charge was framed under Section 302/34 IPC against the appellants on 15.1.2014. The accused pleaded not guilty and claimed trial.
17. The prosecution, in order to prove its case, examined PW1 Kallu Singh (complainant), PW2 Santoshi Devi wife of the deceased and PW3 Raj Kumar son of the deceased and PW4 Sikandar Singh as witnesses of fact who deposed that they had last seen the deceased leaving his house with Nanku @ Brahm Sahai A1 while PW4 further deposed that after the deceased had left his house with A1 Nanku @ Brahm Sahai, they were joined by A2 Chhatrapal Pasi and all three of them had gone together. PW4 Sikandar Singh also proved recovery memo of the dead body of the deceased, plain earth and ash, crime weapons by A1 Nanku@Brahm Sahai from the place of occurrence Ext. Ka4. PW5 Indrajeet proved recovery memo of crime weapons from A2 Chhatrapal Pasi. PW6 Dr. Abdul Sattar Khan who had conducted the post mortem on the dead body of the deceased proved the post mortem report of the deceased Ext. Ka5. PW7 Constable Kamlapat Tripathi proved the Chek FIR of case crime no. 38 of 2010 (State of U.P. Vs. Chhatrapal Pasi) under Section 25 of the Arms Act, PW8 Head Moharrir, Jagdish Prasasd proved the Chek FIR and Kayami G.D. of case crime no. 35 of 2010, under Section 364 IPC and the Gumshudgi and Chek FIR of case crime no. 37 of 2010, under Section 25 of the Arms Act, PW10 Chhavinath Singh was produced as witness of recovery of crime weapons from A1 Nanku@Brahm Sahai. Chhavi Narayan Singh, S.I. Pankaj Mishra and M.P. Tripathi the three Investigating Officer of the case were examined as PW11, PW12 and PW13 respectively. S.I. Manish Kumar Pandey, Investigating Officer of case crime no. 37 of 2010, under Section 25 of the Arms Act and S.I. Prem Chandra Shukla, Investigating Officer of case crime no. 38 of 2010 were examined as PW14 and PW15. Ram Naresh who had conducted the inquest on the dead body of the deceased was examined as PW16.
18. Apart from the oral evidence, the prosecution also adduced documentary evidence comprising of missing report dated 25.2.2010 Ext. Ka1, written report dated 2.3.2010 (Tahreer Vadi) of the incident Ext. Ka2, recovery memo of the dead body, banka, empty cartridges, country made pistol of 12 bore, ashes and plain soil, Ext. Ka3 recovery memo of axe, Ext. Ka4 Chek FIR of case crime no. 38 of 2010, under Section 25 of the Arms Act, Ext. Ka6 Chek FIR of case under Section 364 and 201 IPC, Ext. Ka7 G.D., Kayami, Ext. Ka8 G.D. Gumshudgi, Ext. Ka9, Chek FIR of case crime no. 37 of 2010 under Section 25 of the Arms Act, Ext. Ka10 G.D. entry of case under Section 25 of Arms Act registered against accused Nanku, Ext. Ka11 G.D. Entry of case registered under Section 25 of Arms Act against accused Chhatrapal, Ext. Ka12 Panchayatnama, Ext. Ka14 Challannash, Ext. Ka15 photonash, Ext. Ka16 letter addressed to C.M.O., Ext. Ka17 sample seal, Ext. Ka18 site plan of the place of abduction, Ext. Ka19, site plan of place of recovery of dead body and crime weapons, Ext. Ka20, Tarmimi G.D. from Section 364 IPC to 302 IPC, Ext. Ka21, lists of articles sent to forensic science laboratory relating to case crime no. 35 of 2010, under Sections 364/302/201 IPC, Ext. Ka11, charge-sheet submitted against the accused-appellants in case crime no. 37 of 2010, Ext. Ka25, site plan of the recovery of crime weapon by A1 Nanku@Brahm Sahai, Ext. Ka26, charge-sheet submitted in case crime no. 38 of 2010 under Section 25 of the Arms Act against accused-appellant no. 2, Chhatrapal Pasi. Ext. Ka27, sanction granted by the District Magistrate for prosecution of A1 under Section 25 of the Arms Act. Ext. Ka28, site plan of place of recovery of axe by A2 Chhatrapal Pasi. Ext. Ka29, charge-sheet submitted in case crime no. 38 of 2010, under Section 25 of the Arms Act against A2 Chhatrapal Pasi. Ext. Ka30 and report of forensic science laboratory Ext. Ka31.
19. The prosecution also produced the following material exhibits before the Trial Court :
Country made pistol of 12 bore, two cartridges and banka allegedly recovered by A1 Nanku@Brahma Sahai from the place of occurrence, Material Ext. ka1, Ext. Ka2, Ka3 and Ka4, ash of burnt clothes of the deceased. Ext. Ka5, plain soil collected from the place of occurrence, Material Ext. Ka6, axe recovered from the house of A2 Chhatrapal Pasi, Ext. Ka7, country made pistol of 12 bore and one live cartridge recovered from A2 Chhatrapal Pasi. Material Ext. Ka8 and Ka9.
20. Both the appellants in their examination under Section 313 Cr.P.C., denied the prosecution case and claimed that they were innocent. They further denied that any incriminating article was either recovered from or by them or on their pointing out. The police had falsely implicated them in the present case at the behest of the complainant who was inimical towards them, on the basis of fake arrest and fabricated recovery. Although the accused did not examine any witnesses in defence but they filed the following documents as documentary evidence :
(i) Certified copy of the charge-sheet in case no. 2230 of 2006 in case crime no. 71 of 1995, under Sections 147, 148, 149, 323, 504, 506 IPC, P.S. Lalauli.
(ii) Certified copy of the FIR in case crime no. 36 of 1998, under Sections 323,324,504,506 IPC P.S. Lalauli, State Vs. Chhotelal and others.
(iii) Certified copy of the application alongwith affidavit of case no. 1977 of 1985, the Court of Consolidation Officer, Fatehpur.
(iv) A copy of the FIR in case crime no. 17 of 1999 State Vs. Chhotelal and another.
(v) Copy of the Statement in case crime no. 547 of 1985 State Vs. Tarun and others.
(vi) Copy of the Judgment and Order dated 21.12.1987 in case no. 547 of 1985 passed by Judicial Magistrate, Fatehpur.
(vii) Copy of the judgement and order dated 23.1.2004 passed by Special Judge, SC/ST Act/Addl. District Judge, Fatehpur.
(viii) The birth certificate dated 6.11.2013 of Km. Archana d/o man Singh which the date of birth of Km. Archana had been shown as 14.12.2010.
(ix) Certified copy of the judgment and order dated 18.02.2008 in case crime no. 17 of 1999, under Sections 323,324,325,504,506 IPC, in which the deceased Nanakwa@Man Singh had been convicted and sentenced two years R.I. alongwith his co-accused Chhotelal.
21. Learned First Additional Sessions Judge after examining the submissions made by the learned counsel for the parties before him and scrutinizing the evidence adduced before him, both oral as well as documentary, convicted both the appellants under Sections 302/34, 364/34 and 201 IPC and Section 25 of the Arms Act and awarded aforesaid sentences to them.
22. Hence this appeal.
23. Shri G.S. Chaturvedi, learned Senior counsel appearing for the appellants has submitted that although prosecution case is that the deceased Man Singh had left his house with A1 Nanku@Brahm Sahai on 23.2.2010 between 8-9 pm and had not returned back thereafter, the FIR of his alleged kidnapping was lodged by PW1 Kallu Singh after an inordinate and unexplained delay of eight days at P.S. Lalauli, District Fatehpur against A1 Nanku@Brahm Sahai and one unknown person, which renders the FIR in this case wholly unreliable. He next submitted that although the lodging of the FIR was preceded by giving a written information (gumshudgi report) at P.S. Lalauli, District Fatehpur by PW1 Kallu Singh on 25.2.2010 stating therein that his brother Man Singh who had gone with A1 Nanku @ Brahm Sahai had not returned back to his house, the missing information (gumshudgi report) itself was given after two days without any satisfactory explanation for the delay in that regard too, without disclosing the date and time at which the deceased had left his home. The delay in lodging the missing report and the FIR clearly indicates that the identity of the persons with whom the deceased had left was known either to the informant PW1 Kallu Singh or to the wife and the son of the deceased, PW2 Santoshi Devi and PW3 Raj Kumar and PW4 Sikandar Singh and the inordinate delay in lodging the FIR was utilized by the informant to concoct a false case against the appellants and implicate them falsely due to admitted previous enmity between the family of the informant and A1 Nanku@Brahm Sahai. In view of the inordinate delay in lodging the FIR, the credibility of the prosecution version as spelt out in the FIR stands totally eroded and the prosecution case is liable to be thrown out on the ground of delay in lodging the FIR alone and the view taken by the Trial Court to the contrary, is wholly unsustainable in the eye of law.
24. He next submitted that as far as the A2 Chhatrapal Pasi is concerned, his conviction in the present case which is based upon the confession made by Nanku @ Brahm Sahai A1 before the police after his arrest nominating Chhatrapal Pasi A2 as his partner in crime which was wholly inadmissible against him, unreliable testimony of PW4 Sikandar Singh who had given last seen evidence against him and the fabricated recovery of crime weapons from and by him, is perse illegal. PW4 Sikandar Singh who had deposed that he had seen the deceased leaving his house with him and A1 Nanku@Brahm Sahai and A2 Chhatrapal Pasi on the date on which the deceased had gone missing but no explanation is forthcoming from him for his failure to disclose the identity of the unknown person with whom the deceased had left his house along with A1 Nanku @ Brahm Sahai either to the informant or to the police, although he was part of search party which was organized for searching the deceased after he had gone missing from his house from the very next day of lodging the missing report, as is evident from the evidence on record. His evidence of last seen vis-a-vis Chhatrapal Pasi A2 is wholly unreliable and untrustworthy.
25. He next submitted that from the evidence on record and the circumstances of this case, it is fully proved that the dead body of the deceased had already been discovered before the arrest of A1 Nanku @ Brahm Sahai and the prosecution's claim that the dead body of the deceased and the weapons used in the commission of the crime were got recovered by A1 Nanku@Brahm Sahai which was preceded by his allegedly making a disclosure statement to the effect that he would be able to help in the recovery of the some material evidence from the place where he had hidden it, is wholly false and fabricated and not supported by any legally admissible evidence on record. The correct fact is that after A1 Nanku@Brahm Sahai was arrested by the police, he was taken to the place of recovery where a huge crowd had already gathered suspecting something amiss and on noticing foul stench emanating from the well and the entire drama leading to the recovery of the deceased's dead body and the other incriminating articles from the well in the grove and the nearby spots was enacted by the police for the purpose of fabricating evidence against the appellant no. 1 for securing his conviction. He also submitted that the inherent and irreconcilable contradictions in the testimonies of the witnesses of fact examined on behalf of prosecution for proving that the deceased had left his house with the A1 Nanku@Brahm Sahai and Chhatrapal Pasi A2 had rendered their evidence wholly unreliable and the Trial Court patently erred in basing the conviction of the appellants on their testimonies. The prosecution story as spelt out in the FIR and later testified by the prosecution witnesses is inherently improbable and patently false for the reason that there was no occasion for the deceased to have gone with A1 Nanku@Brahm Sahai who was his sworn enemy, to consume liquor, cook fish for him and even if it is assumed for the sake of arguments that the deceased had left his home with A1 Nanku@Brahm Sahai, there was no justification for his family members who claim to be fully aware of the inimical relations between the deceased and A1 Nanku@Brahm Sahai, to have waited for eight days before lodging the FIR of the incident after the deceased had failed to return back to his home. Their conduct leads to only one inference i.e. "that the identity of the persons with whom deceased had left his house, was not known to them". The evidence of the four witnesses of fact is liable to be rejected on the ground of their being close relatives of the deceased and inimical towards the appellant.
26. He next submitted that in the present case there is no direct evidence on record for proving that the accused-appellants had committed the murder of the deceased after kidnapping him, it is therefore, a case of circumstantial evidence. The Court below failed to appreciate that the chain of circumstances in this case is not complete. The awarding of death sentence to the appellants under the facts and circumstances of the case is further wholly unwarranted and unjustified. Hence this appeal deserves to be allowed.
27. Per contra Sri Akhilesh Singh, learned Government Advocate appearing for the State submitted that the circumstances in the present case point towards the guilt of the appellants without any exception. The deceased was abducted by the appellants from his house and thereafter served liquor by the appellants and after he had become totally unconscious, he was murdered by them and his dead body after being cut into several pieces was packed in two gunny bags, which were further stuffed with pieces of stones and bricks and thrown into a well in the grove. Recoveries of the deceased's dead body and other incriminating articles were made in accordance with law in pursuance of the disclosure statements made by A1 Nanku@Brahm Sahai and A2 Chhatrapal Pasi and the same were witnessed by independent witnesses. He also stated that since it is proved from the evidence on record that the deceased had left his home with the appellants who alone could explain as to what had happened to the deceased thereafter and they having failed to come up with any satisfactory explanation as to what had happened to the deceased after he had left his house with them, no fault can be found with their recorded conviction. The appeal lacks merit and is, therefore, liable to be dismissed.
28. We have considered the rival submissions made by the learned counsel for the parties and scanned the entire lower Court record. The two questions which arise for our consideration in this appeal interalia are that (i) whether the prosecution has been successful in proving its case beyond all shadow of reasonable doubts against the appellants or not ? (ii) Whether under the facts and circumstances of the case the awarding of death penalty to the appellants by the Trial court is liable to be confirmed.
29. Record of this case shows that the FIR of the incident was lodged by PW1 Kallu Singh, the real brother of the deceased Man Singh on 3.3.2010 at about 21:10 hours stating therein that his brother had left his house with A1 Nanku@Brahm Sahai between 8-9 pm on 23.2.2010 along with one unidentified person and he had not returned back to his house thereafter. It was further stated in the FIR that the lodging of the FIR by him was preceded by his giving a written information at P.S. Lalauli on 25.2.2010 regarding his brother having gone missing after he had gone somewhere with A1 Nanku @ Brahm Sahai. Learned counsel for the appellants has assailed the reliability of the FIR on the ground of there being an inordinate and unexplained delay of almost eight days in lodging the FIR although the FIR itself reflects that the identity of one of the persons Nanku @ Brahm Sahai A1, with whom the deceased had left his house, was known to PW2, PW3 and PW4 and that of the other accused Chhatrapal Pasi A2 to PW4 and also the fact that Nanku @ Brahm Sahai A1 was a sworn enemy of the deceased, clearly indicates that the long delay of eight days was utilized by the informant and the other witnesses for fabricating a false story with the object of falsely implicating the appellants in this case, which has rendered the entire investigation tainted and the prosecution case based on such tainted investigation is liable to be thrown out in a wholesome manner.
30. The issue whether prosecution case is liable to be thrown out merely on the ground of inordinate delay in lodging the FIR is no longer res integra and stands settled by a catena of a decision of the Apex Court :
The Apex Court in the case of Apren Joseph alias Current Kunjukunju and others Vs. State of Kerala reported in AIR 1973 Supreme Court 1, has observed as hereunder:-
"Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained."
Similarly relevant extract of the judgment delivered by Hon'ble Apex Court in the case of Ravinder Kumar and another Vs. State of Punjab reported in AIR 2001 SC 3576, is reproduced herein below:-
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl.(1) SCC 372; Tara Singh vs. State of Punjab (1991 Suppl.(1) SCC 536); Jamna vs. State of UP (1994 (1) SCC 185). In Tara Singh (Supra) the Court made the following observations:
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."
The Apex Court in Tara Singh and others Vs. State of Punjab, reported in AIR 1991 SC 63, the Apex Court in paragraph 4 of its judgment has observed as hereunder:-
"4. It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the" report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye-witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned Counsel that the entire case should be thrown out on the mere ground there was some delay in the FIR reaching the local Magistrate. In the report given by P.W.2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 P.M. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 A.M. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross- examination. There are no material contradictions or omissions which in any manner throw a doubt on their varasity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. Though we are unable to fully agree with this finding but since there is no appeal against their acquittal we need not further proceed to consider the legality or propriety of the findings of the High Court in acquitting them. So far as the appellants are concerned, the evidence against them is cogent and convincing and specific over tacts arc attributed to them as mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is, therefore, dismissed."
In State of Himanchal Pradesh Vs. Gian Chand reported in AIR 2001 (1) SC 2075 the Apex Court reiterated as hereunder:-
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
Thus, the legal position which emerges after going through the gamut of authorities on the issue referred to herein above is that it is settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of the case, delay in lodging the FIR can be one of the factors which may erode the credibility of the prosecution version but delay in lodging the FIR cannot be a ground itself for throwing away the entire prosecution version as given in the FIR and later substantiated by the evidence, unless there are indications of fabrication. The Court has further to seek explanation for delay and check the truthfulness of the version to inquire and if the court is satisfied, then the case of prosecution cannot fall on this ground alone.
31. We now proceed to test the credibility of the FIR in this case on the touch stone of the aforesaid principle and evaluate and scrutinize the oral evidence on record with the object of assessing whether the delay in lodging of the FIR has been satisfactorily explained.
32. We have very carefully gone through the examination-in-chief of PW1 Kallu Singh, the complainant in this case but we are constrained to observe that he has failed to come up with any explanation, whatsoever, for the delay of five days in lodging the FIR after giving a gumshudgi report at P.S. Lalauli on 25.2.2010 which creates a very legitimate doubt about the veracity of the prosecution case as spelt out in the FIR and the truthfulness of the facts deposed by the witnesses of fact who have been examined on behalf of the prosecution during the trial. However, keeping in view the settled law on the issue that delay in lodging the FIR, can be one of the factors which may erode the credibility of the prosecution version but delay in lodging the FIR cannot be made a ground in itself for throwing away the entire prosecution version as given in the FIR, unless there are indications of fabrications. We now proceed to scrutinize and evaluate the evidence adduced by the prosecution for establishing the guilt of the accused-appellants with the object of scrutinizing whether the same is unimpeachable and inspires confidence despite the inordinate and unexplained delay in lodging the FIR and whether there are indications pointing out to the fact that the long delay in the lodging of the FIR was utilized by the prosecution for spinning a false prosecution story and fabricate evidence with the object of securing conviction of the accused-appellants.
33. The instant case is based entirely on circumstantial evidence as there is no eye-witness of the incident. In Sharad Birdhi Chand Sarda vs State Of Maharashtra AIR 1984 SC 1622, it was held by the Apex Court that the onus is on the prosecution to prove that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Apex Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must' or ''should' and not ''may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave, it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.
34. The prosecution in order to prove that the deceased had left his house on 23.2.2010 with Nanku @ Brahm Sahai A1 and one unknown person and thereafter he had not returned back to his home had examined PW1 Kallu Singh, PW2 Santoshi Devi wife of the deceased, PW3 Raj Kumar son of the deceased and PW4 Sikandar Singh, neighbour and cousin brother of the deceased.
35. PW1 Kallu Singh in his examination-in-chief recorded before the Trial Court reiterated the facts narrated by him in the written report of the occurrence Ext. Ka1 with the improvements, interlia that when A1 Nanku @ Brahm Sahai had come to the house of his deceased brother Man Singh on the date of the incident at about 8-9 pm, he was sitting in front of the main door of his house and Nanku @ Brahm Sahai A1 after calling Man Singh had entered into his house and had returned back after two or three minutes with his brother followed by his sister-in-law Santoshi Devi PW2 and his son Raj Kumar PW3. One Sikandar Singh son of Gyan Singh had also seen his brother leaving his house.
36. The aforesaid facts were neither stated by PW1 in the gumshudgi report nor in the FIR nor in his statement recorded under Section 161 Cr.P.C. By making aforesaid improvements in his testimony, it appears that PW1 Kallu Singh had tried to describe himself as an eye-witness of the factum of deceased leaving his house with Nanku @ Brahm Sahai A1 and one unidentified person but his claim of being eye-witness of the aforesaid fact does not appear to be truthful and trustworthy in view of the aforesaid omission and nothing turns on his evidence of last seen.
37. PW2 Santoshi Devi, who is the wife of the deceased, had deposed in her examination-in-chief that on the date of the occurrence she along with her husband and son Raj Kumar, was present in her house. Her husband was making preparations to cook fish at about 8 pm when Nanku @ Brahm Sahai A1 who was the resident of the same village as the deceased and who was previously known to her, entered into her house and requested her husband to come with him and cook fish in his house, although she tried to dissuade her husband from going with Nanku @ Brahm Sahai A1 but he did not listen to her and went out of the house with Nanku @ Brahm Sahai followed by her and her son Raj Kumar but her husband went away with Nanku @ Brahm Sahai A1 and one unknown person who was standing in the lane whom she could not recognize. She further deposed that when her husband had left her house, her brother-in-law PW1 Kallu Singh and her cousin brother-in-law Sikandare Singh PW4 whose house was at a distance of about 20-25 paces from her house were also sitting in front of the doors of their respective houses and had seen her husband going with the accused. She also deposed that at the time when her husband had left his house he was wearing a blue shirt, black pant and a fibre slipper and when he had not come back to his house she had inquired about him from her relatives and had searched him in ponds, wells, fields and groves but she could not trace him out. At the time when her husband had left her house, a lamp was burning in the house.
38. PW2, on being cross-examined by the defence counsel, admitted that there was enmity between Nanku @ Brahm Sahai A1 and her husband which had been persisting for the last seven years. PW4 Raj Kumar in his examination-in-chief substantially corroborated the facts deposed by PW2 in her examination-in-chief.
39. A perusal of the examination-in-chief of PW2 and PW2 unequivocally indicates that they have made material improvements in their evidence by stating that when deceased was leaving his house with Nanku @ Brahm Sahai A1, they had followed him upto the door of their houses and that PW1 Kallu Singh, brother of the deceased was also sitting in front of the door of his house and had seen the deceased leaving with Nanku @ Brahm Sahai A1 and one unknown person apparently with the intention of planting PW1 Kallu Singh also as an eye-witness of the fact of last seen.
40. The aforesaid facts were conspicuous by their absence in their statements recorded under Section 161 Cr.P.C., and when the defence had confronted them on the aforesaid improvements and contradictions in their statements recorded under Section 161 Cr.P.C, they expressed their willingness about the reason why those facts were not mentioned in their statements recorded by the Investigating Officer. The Investigating Officer of the case PW11, Chhavi Narayan Singh, however reflected positively on the improvements and contradictions. But in any view of the matter, the evidence of both PW2 and PW3 on the point of deceased having left with Nanku @ Brahm Sahai A1 and one unknown person, has remained firm and intact during their cross-examination and the defence could not elicit anything from them which may create any doubt on their testimonies on the point of deceased having left his house with Nanku @ Brahm Sahai A1 and one unknwon person. It is true that there are some improvements in their testimonies but the same do not adversely affect the veracity of their evidence on the point of last seen.
41. PW4 Sikandar Singh, who is the sole witness, who claims to have recognized the unknown person who had accompanied the deceased and Nanku @ Brahm Sahai A1 as Chhatrapal Pasi A2, deposed in his examination-in-chief that he was acquainted with both A1, A2 and the deceased Man Singh @ Nanakwa who were residents of his village. On 23.2.2010 at about 8:30 to 8:45 pm Nanku @ Brahm Sahai A1 had taken away Man Singh from his home. At that time Santoshi Devi PW2 and Raj Kumar PW3, wife and son of Man Singh were standing on the door of their house and Man Singh's younger brother was also sitting in front of his house. He further deposed that at that time he was also present in front of the main door of his house which is about 20 paces away from the house of Man Singh. At the time when Man Singh had left his house, he was wearing a blue color shirt and black pant and blue fibre slipper. All three of them had stopped in front of the shop of Chaurapasi. Man Singh was smoking a cigarette while Nanku @ Brahm Sahai A1 and Chhatrapal Pasi A2 were chewing gutkha. When he went to the shop for buying gutkha on seeing him all three of them went away. He also deposed that the police force comprising of three inspectors and 4 or 5 constables had met him and PW1 Kallu Singh on 7.3.2010 at the Bahua crossing. Nanku @ Brahm Sahai A1 was also accompanying them. On the instructions of the police, he, PW1 Kallu Singh, Nanku @ Brahm Sahai A1 and members of the police force reached Panda Wagaha by a vikram tempo and on reaching there Nanku @ Brahm Sahai A1 disclosed that he had packed the dead body of the deceased after cutting the same into several pieces, into two gunny bags and thereafter stuffed pieces of stones and bricks in the same and he had then thrown the gunny bags into the well. He then proceeded to describe the recovery of the dead body of the deceased and other incriminating articles by Nanku @ Brahm Sahai A1 from the place of occurrence.
42. PW4 Sikandar Singh in his cross-examination on page 77 of the paper book deposed that when Man Singh had not returned back to his home in the morning after the date of the incident, he had informed PW1 Kallu Singh that Man Singh had gone with Chhatrapal Pasi A2 but he had not disclosed the aforesaid fact either to his wife PW2 Santoshi Devi or to his son PW3 Raj Kumar as he did not consider it necessary.
43. The moot question which arises for our consideration is that, if PW4 Sikandar Singh is speaking truth that he had disclosed the aforesaid fact to PW1 Kallu Singh on the next day of the disappearance of the deceased itself, why PW1 Kallu Singh did not nominate Chhatrapal Pasi A2 also as the person with whom the deceased had left his house or as an accused either in the gumshudgi report or in the FIR ?
44. We do not find any plausible reason for PW1 Kallu Singh having not nominated Chhatrapal Pasi A2 also as an accused in the FIR if the aforesaid fact was in his knowledge.
45. In this connection it would be relevant to refer to page 49 of the paper book on which PW1 Kallu Singh in his cross-examination has deposed that before lodging the FIR, he had made inquiries from PW2, PW3 and PW4 and other members of the family about the unknown accused but all of them had told him that they had not recognized the unknown accused. The same fact were reiterated by him on page 54 of the paper book in his cross-examination. Thus from the evidence of PW1, it is established that PW4 Sikandar Singh was lieing when he deposed before the Trial Court that he had disclosed the identity of the second accused to PW1 Kallu Singh on the very next day and his evidence that the unknown accused with whom the deceased had left along with Nanku @ Brahm Sahai A1 was Chhatrapal Pasi A2 does not inspire any confidence and the same appears to an afterthought. He has further failed to furnish any explanation in his testimony for his failure to disclose the name of Chhatrapal Pasi A2 also as an accused either to the family members of the deceased or to the police, even though on page 78 of the paper book in his cross-examination he has stated that he had accompanied the police in the search of the deceased as he did not consider it necessary. The fact that PW4 Sikandar Singh was himself not aware about the identity of the unknown person with whom the deceased had left his house along with Nanku @ Brahm Sahai A1 till the arrest of Nanku @ Brahm Sahai A1 is borne out from the facts stated by him in his statement recorded under Section 161 Cr.P.C. which was recorded after the arrest of Nanku @ Brahm Sahai A1 and after his having confessed before the police that Chhatrapal Pasi A2 was his partner in the crime and in this regard it will be relevant to reproduce the following extract of his cross-examination which finds mention on page 82 of the paper book :
^^Fkkuk yykSyh dh iqfyl Hkh ekuflag dh ryk'k djrh jghA bl chp eSusa iqfyl dks ;g ugha crk;k fd eaSus ekuflag dks uudw mQZ czg~elgk; o N=iky ds lkFk tkrs gq, ns[kk gSA tc uudw mQZ czg~elgk; iqfyl }kjk idM+ fy;k x;k mlds ckn iqfyl dks viuk c;ku fn;k vkSj crk;k fd uudw mQZ czg~elgk; ds lkFk N=iky iklh Hkh ekuflag ds lkFk FkkA D;ksafd N=iky uke uudw mQZ czg~elgk; us crk;k FkkA**
46. It conclusively follows from reading the aforesaid extract of testimony of PW4 Sikandar Singh that he had come to know about the identity of the second accused for the first time from the confessional statement of Nanku @ Brahm Sahai A1 and the same was not known to him before. Thus upon a wholesome and critical evaluation of the evidence of PW1, PW2, PW3 and PW4, we hold that the prosecution has been able to prove that the deceased Man Singh had left his house on 22.2.2010 between 8:30 to 8:45 pm with Nanku @ Brahm Sahai A1. However the testimony of PW4 Sikandar Singh who is the sole witness to testify on the point that the second person who accompanied Man singh with Nanku @ Brahm Sahai A1 was Chhatrapal Pasi A2, neither appears to be reliable nor trustworthy.
47. Thus the prosecution has failed to prove by any reliable evidence that the deceased had left his home with accused Chhatrapal Pasi A2 on the date of incident.
Motive
48. Motive for committing the occurrence flows from the confession allegedly made by Nanku @ Brahm Sahai A1 before the police after his arrest to the effect that on seeing the deceased who had been convicted for having caused injuries to his father and sentenced to jail roaming freely in the village after being enlarged on bail by the High Court, despite causing near fatal injuries to his father, he had taken a vow to eliminate him and with that object he had inculcated friendship with the deceased and on the date of the occurrence he took him to the place of occurrence with his friend Chhatrapal Pasi A2 and offered him liquor in huge quantity and after he became totally intoxicated he shot him dead with his country made pistol and after cutting his dead body into several pieces with the help of Chhatrapal Pasi A2 by banka and axe, he packed the pieces of the dead body of the deceased into two gunny bags with pieces of bricks and stones and threw the same into the well. The existence of enmity between the deceased and A2 Chhatrapal Pasi is admitted to PW1, PW2 and PW3 also. Thus the prosecution has succeeded in proving the motive for the accused-appellant Nanku @ Brahm Sahai A1 to commit the murder of the deceased Man Singh. Nothing turns on the documentary evidence brought on record on behalf of Nanku @ Brahm Sahai A1 which has been noticed by us herein above.
Probability of the prosecution case, medical evidence vis-a-vis ocular version and circumstantial evidence.
49. Learned counsel for the appellants has vehemently argued that considering the admitted fact that there was fierce enmity between the deceased and Nanku @ Brahm Sahai A1 emanating from an incident which had occurred about seven years before the date of the occurrence in which the deceased had brutally assaulted the father of Nanku @ Brahm Sahai A1 and for committing the offence he was not only charge-sheeted and prosecuted but was also convicted and sentenced to imprisonment and later released on bail by the High Court, the prosecution story that the deceased went away with Nanku @ Brahm Sahai A1 on his request on the date of the incident appears to be highly improbable and totally absurd.
50. Moreover the Trial Court committed a patent illegality in accepting the prosecution case without realizing that enmity is a double edged sword which can be used not only for seeking revenge but also for the purpose of false implication.
51. The aforesaid argument advanced by the learned counsel for the appellants does appear to be attractive but considering the unimpeachable evidence of PW2, PW3 and PW4 on the point of deceased having left his house with Nanku @ Brahm Sahai A1, we are not inclined to accept the argument of the learned counsel for the appellants that the prosecution story is improbable and absurd as from the evidence on record and the circumstances of the case, it is proved that Nanku @ Brahm Sahai A1 had a very strong motive to commit the murder of the deceased Man Singh. In the face of clinching last seen evidence adduced by the prosecution, we can't disbelieve the prosecution version on the ground of same being absurd and highly improbable in the face of hostility between them. What transpired in the mind of the deceased and what persuaded him to leave his home with his sworn enemy on the date of the occurrence could have been disclosed by the deceased alone. We cannot discard the unimpeachable and trustworthy evidence of last seen adduced by the prosecution during the trial against Nanku @ Brahm Sahai A1 by invoking the doctrine of per-ponderence of probabilities.
52. The apex Court in the case of Shyamal Ghosh Vs. State of West Bengal (2012) 7 SCC 646 has explained that once the last seen theory comes into play, onus shifts upon the accused to explain as to what has happened to the deceased after the accused and deceased were last seen alive. The Apex Court has further explained that there must be reasonable proximity of time between the period of the accused and deceased were last seen together and the time when the fact of deceased having expired comes into light. The Apex Court has further explained that what would be reasonable is to be determined in the facts and circumstances of each case. In the present case the deceased had left his house with Nanku @ Brahm Sahai A1 and one uknown person on 22.2.2010 between 8:00 to 8:45 pm Thereafter, nothing was heard about him. His dead body along with other incriminating articles were discovered from a well in Panda Wagaha and near places pursuant to the disclosure statement of Nanku @ Brahm Sahai A1 made by him before the police after he was arrested on 7.3.2010.
53. In order to decide whether there was reasonable proximity between the time when the deceased had left his house with Nanku @ Brahm Sahai A1 and the time of death of the deceased, we will have to look into the medical evidence on record. After two gunny bags in which the pieces of dead body of the deceased were packed were recovered on 7.3.2010 and 13:25 hours to 13:30 hours, from a well the same were packed, sealed and dispatched for post mortem to District Hospital, Fatehpur. The post mortem on the dead body of the deceased was conducted on 7.3.2010 at about 4:15 pm by Dr. Abdul Sattar Khan who also prepared the post mortem report of the deceased which is on record as Ext. Ka5.
54. PW6 Dr. Abdul Sattar Khan had noted following ante-mortem and post mortem injuries on the dead body of the deceased :
Ante-mortem injuries :
(i) Firearm wound of entry 4 cm x 3 cm x cavity deep on right side of chest 10 cm. below the right nipple. Blackening was present around wound.
(ii) Firearm wound of entry 3 cm x 2.5 cm x cavity deep on front of neck just below thyroid cartilage. Blackening was present around wound.
(iii) Firearm wound of exit 4 cm x 3.5 cm x cavity deep on the back of nect just below the C, vertebrae.
Postmortem injures :
(i) Incised wound of 10 cm x 9 cm x through and through just below the C, vertebrae of neck.
(ii) Incised wound of 10 cm. x 10 cm.x through and through on right shoulder.
(iii) Incised wound of 9 cm. x 8 cm. x through and through on left shoulder.
(iv) Incised wound of 25 cm. x 18 cm. x through and through just above the umbilicus.
(v) Incised wound of 20 cm. x 13 cm. x through and through just below the right hip joint.
(vi) Incised wound of 18 cm. x 13 cm. x through and through just below the left hip joint.
Internal Examination Brain was liquified. 10th and 11th ribs of right side were fractured. Pleura was liquified. Both lungs were liquified. Pericardium, heart, vessels, gall bladder, liver, spleen, both kidneys and urinal bladder were liquified. The small intestine and large intestine both were lacerated and liquified.
The death of the deceased was stated to be as a result of ante-mortem firearm injuries and possible time of death was opined to be about two weeks.
55. PW6, Dr. Abdul Sattar Khan was cross-examined by the defence. In his cross-examination, he stated that the deceased had died about two weeks before with a margin of error of two days on either side. Thus the probable date of death of the deceased calculated on the basis of the medical evidence comes to 21.2.2010 and if the margin of error of two days is taken into account, it can be fixed as having taken place either on 23.2.2010 or 19.2.2010 but since it is the specific case of the prosecution which has been duly proved by the prosecution witnesses that the deceased had left his home with Nanku @ Brahm Sahai A1 and one unknown person between 8-9 pm on 22.2.2010, it can be safely held that the deceased had died on 23.2.2010. There is no evidence on record that after the deceased Man Singh had left his house with Nanku @ Brahm Sahai A1 and one unknown person he was seen alive by someone either alone or in the company of some other person.
56. It is true that the fact that deceased had died, had come to light twelve days after his leaving his house with Nanku @ Brahm Sahai A1 and one unknown person, time of his death as emerging from the medical evidence on record fully corroborates the prosecution's claim that the deceased was murdered within few hours of his having been taken from his house on 23.2.2010 between 8-9 pm. The medical evidence on record is also inconsonance with the prosecution's case with regard to the manner in which the offence was committed. The prosecution case is that after the deceased had been shot dead, both his hands and legs were severed from his torso which itself was cut into two pieces and thereafter the different parts of his dead body were packed into two gunny bags which were stuffed with pieces of bricks and stones and both the gunny bags were thrown into the well.
57. The post mortem report of the deceased indicates two firearm wounds of entries and one firearm wound of exit which have been described as ante-mortem injuries while post mortem injuries found on his dead body have been described as incised wounds which could have been caused by an axe and banka. The presence of blackening around the firearm wounds further suggests that the deceased was shot from a very close distance. The medical evidence on record, thus substantially corroborates the time and manner of occurrence as spelt by the prosecution in the FIR and later testified by the prosecution witnesses of fact and proved from the other material on record.
Recoveries
58. The prosecution has come up with the case that since the dead body of the deceased and other incriminating articles comprising of banka, ash of burnt clothes of the deceased the firearm used by Nanku @ Brahm Sahai A1 by which he had shot the deceased were discovered from a well in Panda Wagaha pursuant to the disclosure statement made by him before the police after his arrest, the same was admissible in evidence against him under Section 27 of the Indian Evidence Act and which fully proved that Nanku @ Brahm Sahai A1 had committed the murder of Man Singh by shooting him and then cutting his dead body into several pieces with the help of his accomplice by using banka and axe.
59. As far as Chhatrapal Pasi A2 is concerned, the prosecution has attributed recovery of country made pistol from the right pocket of his trouser which he was wearing at the time of his arrest and search on 9.3.2010 and the axe which he had allegedly hidden under the thatched roof of his house. The first article allegedly recovered from the Chhatrapal Pasi A2 a country made pistol was not discovered pursuant to any disclosure statement made by him. However the police claims that after the country made pistol was recovered from his possession Chhatrapal Pasi A2 expressed his willingness to hand over to the police the axe with which he had cut the dead body of the deceased into several pieces and which he had hid under the thatched roof of his house and then he led the police to his house and pulled out the axe with bloodstain on its blade from under the thatched roof of his house and handed it over to the police which was packed and sealed on the spot.
60. Sri G.S. Chaturvedi, learned Senior counsel for the appellants has challenged the prosecution's claim of discovery of dead body of the deceased and other incriminating articles pursuant to the disclosure statements made by Nanku @ Brahm Sahai A1 before the police after his arrest on the ground that the dead body of the deceased had already been discovered and a fact which has already been discovered, cannot be rediscovered. He has further submitted that after the police had come to know that the deceased's dead body was lying in the well, they had arrested the Nanku @ Brahm Sahai A1 and after manufacturing his confessional statement after his arrest, the police enacted the drama of getting the dead body of the deceased and the other incriminating articles recovered by Nanku @ Brahm Sahai in the presence of the witnesses, with the sole object of securing his conviction.
61. In support of his aforesaid submission, Sri G.S. Chaturvedi has submitted that the prosecution's claim is that PW4 Sikandar Singh, witness of the discovery of the dead body of the deceased and other incriminating articles from the place of incident in Panda Wagaha and nearby places, was picked up by PW11 S.I. Chhavi Narayan Singh on Bahua crossing where PW11 was joined by PW10 Chhavi Nath Singh and his force, from where they had gone to the place of recovery. But from the facts stated by PW4 Sikandar Singh on page 78 of the paper book in his cross-examination that when he had reached the well, no one else was present there and PW1 Kallu Singh, A1 Nanku @ Brahm Sahai, 7-8 police constables and some villagers had reached there, after about 10-15 minutes of his arrival and by PW10 S.I. Chhavi Nath Singh on page 104 of the paper book in his cross-examination that when he had reached near the well, large number of people had already gathered there, but neither he asked their names nor noted their addresses, it is crystal clear that not only the so-called witness of recovery of the dead body of the deceased and other incriminating articles from the well in Panda Wagaha by Nanku @ Brahm Sahai A1, had arrived at the place of discovery much before the arrival of the police, although the police claims that he was picked from Bahua crossing and then driven to the place of recovery and a huge crowd had already gathered at the place of incident much before on coming to know about the presence of dead body of the deceased in the well. Sri G.S. Chaturvedi has next submitted that on the basis of the aforesaid pieces of evidence, it is fully established that neither the dead body of the deceased nor any other incriminating articles were discovered from the well in Panda Wagaha and from the nearby places by Nanku @ Brahm Sahai A1 and the entire process of recovery of the dead body of the deceased and another incriminating articles at the behest of Nanku @ Brahm Sahai A1 has been fabricated by the police for the purpose of nailing him.
62. Sri Akhilesh Singh, learned Government Advocate repelled the aforesaid challenge of the learned counsel for the appellants to the genuineness of the discovery of the dead body of the deceased and other incriminating articles by Nanku @ Brahm Sahai A1 pursuant to his disclosure statement, by inviting our attention to Page 71 of the paper book, on which PW4 Sikandar Singh, in his examination-in-chief, has categorically deposed that on 7.3.2010, he had met 3 or 4 police officers and 4-5 constables along with PW1 Kallu Singh and Nanku @ Brahm Sahai A1 at Bahua crossing from where they had gone to Panda Wagaha in a Vikram Tempo. He further submitted that PW4 Sikandar Singh in his evidence has consistently deposed that he had reached the place of incident and discovery of incriminating articles with the police. His statement has to be tested and evaluated in its entirety rather than singling out an isolated statement from his testimony. He has further invited our attention to the testimony of PW11 Chhavi Narayan Singh on page 114 of the paper book on which PW11 Chhavi Narayan Singh, the second Investigating Officer of the case, has categorically deposed that when he had reached the place of incident, no one was present there and people started gathering at the place of incident after the arrival of the police. Moreover there is nothing in the testimony of PW4 Sikandar Singh and PW11 which may lead to an inference that the deceased's dead body and other incriminating articles had been discovered much before the arrival of the witnesses and the police at the place of incident.
63. After scanning the statement of PW4, PW10 and PW11, we find there is force in the submission made by learned Government Advocate on the aforesaid aspect of the matter. PW12 was cross-examined at great length but the defence could not extract anything from which may even remotely suggest that the public witness of recovery of PW4 Sikandar Singh and a huge crowd had arrived at the place of recovery, before the arrival of the police and the witnesses.
64. As far as the recovery of country made pistol from the possession of Chhatrapal Pasi A2 and the recovery of the axe by him from the thatched roof of his house is concerned, Sri G.S. Chaturvedi, learned Senior Counsel appearing for the appellants, has submitted that the same is absolutely fake and fabricated. In this regard, he has invited our attention to page 117 of the paper book on which PW12 S.I. Pankaj Mishra has deposed that Chhatrapal Pasi A2, was arrested by him and the members of his force on 9.3.2010 at about 20:15 hours from a place in front of his house and his search had led to the recovery of 315 bore tamancha and a live cartridge of the same bore from him. On being questioned by him, he reiterated the same facts relating to the time, manner and place and motive for the incident as narrated by Nanku @ Brahm Sahai A1 in his alleged confessional statement recorded before the police and expressed his desire to get the axe which was used by him to cut the dead body of the deceased into several pieces, recovered from under the thatched roof of his house where he had hidden it and then he led to the police to the front of his house and pulled out an axe from the thatched roof of his house at about 12:40 hours and handed it over to the police. Both the recovered articles were packed and sealed on the spot. Sri G.S. Chaturvedi further invited our attention to the evidence of the PW5 Indrajeet Singh, the public witness of recovery of incriminating articles from Chhatrapal Pasi A2 on page 86 of the paper book in which, he, in his cross-examination, has deposed that on his pointing out the house of Chhatrapal Pasi A2 to the police, the members of the police force went inside into his house while he had kept standing outside and when the police came out of the house of Chhatrapal Pasi A2 a huge crowd had gathered there. Referring to the aforesaid pieces of testimonies of PW11 and PW5, learned counsel for the appellants has submitted that it is proved to the hilt from their evidence that there is material contradiction in the evidence of PW5 and PW11 with regard to the place where Chhatrapal Pasi A2 was arrested and searched i.e. whether outside his house or inside his house which renders the alleged recovery of incriminating articles from Chhatrapal Pasi A2 as claimed by prosecution, extremely doubtful and untrustworthy.
65. From the evidence of PW5, it is also established that the accused was neither searched in his presence nor any incriminating article was recovered either from his possession or on his pointing out as he had not gone inside the house of Chhatrapal Pasi A2, where he was arrested and searched.
66. Upon perusing the aforesaid extracts of testimonies of PW5 and PW12, we have no hesitation in holding that the prosecution has failed to prove by any reliable and cogent evidence that any incriminating article was recovered either from the possession of or pursuant to any disclosure statement made by Chhatrapal Pasi A2 to the police after his arrest.
67. Moreover, the reliance placed by the learned Trial Judge on the confession made by Nanku @ Brahm Sahai before the police after his arrest inculpating himself as well as Chhatrapal Pasi A2 for the purpose of convicting him under Sections 302/34, 364/34 and 201 IPC is wholly misconceived, unwarranted and vitiated by total misinterpretation of Sections 26, 27 and 30 of the Evidence Act. Section 26 of the Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. It is not the case of the prosecution that the confession made by Nanku @ Brahm Sahai A1 before the police after he was arrested was made by him in the immediate presence of a Magistrate hence the same was wholly inadmissible in evidence against Chhatrapal Pasi A2 and as such the same could not be read in evidence against him for the purpose of convicting him. Confession made by a person in police custody stands on a different footing from a confession made before police officer while in his custody, in the presence of a Magistrate.
68. We do not however think that it would be appropriate to hold the recovery of the deceased's dead body and the other incriminating articles from the place of the incident and other nearby places pursuant to the disclosure statement made by Nanku @ Brahm Sahai A1 before the police after his arrest, as doubtful or untrustworthy by picking up isolated sentences from the testimonies of PW5 and PW10 to which our attention was invited by the learned counsel for the appellants.
69. We have perused the testimony of PW11 S.I. Chhavi Narayan Singh who had arrested the appellant Nanku @ Brahm Sahai A1 which fully corroborates the manner of recovery of the dead body of the deceased, other incriminating articles i.e. ashes of burnt clothes of the deceased, 315 bore desi tamancha and empty cartridges of same bore as narrated in the recovery memo Ext. Ka3. He was subjected to a grueling cross-examination by the defence counsel but he failed to elicit anything from this witness which could lead us to doubt, the prosecution case that recovery of the incriminating articles was made pursuant to the disclosure statement made by Nanku @ Brahm Sahai A1 before the police after his arrest.
70. PW11 on page 113 of the paper book has in his examination-in-chief categorically deposed that he and his force had arrested A1 on 7.3.2010 at 11:00 am near Mewki crossing and after interrogating him they had left for the place of recovery which was at a distance of about 13-14 kms from the police station by a private vehicle. He has further categorically denied on page 114 of the paper book in his cross-examination that he had manufactured any fake statement of Nanku @ Brahm Sahai A1 with the object of strengthening the prosecution case or that he had not got any incriminating articles recovered.
71. After having very carefully examined the submission advanced by the learned counsel for the appellants on the aforesaid aspect of the matter and scrutinized the oral and documentary evidence on record on the aforesaid aspect, we hold as here under :
"The prosecution has succeeded in proving that the dead body of the deceased and another incriminating articles which were recovered from a well in panda wagaha and nearby places, were discovered pursuant to the disclosure statements made by Nanku @ Brahm Sahai A1 before the police."
72. We now proceed to examine the issue whether the discovery of incriminating articles pursuant to the disclosure statement made by Nanku @ Brahm Sahai A1 before the police after his arrest was admissible against him in evidence or not. In this regard it will be useful to first extract the law on the issue. Scope of section 27 of the Evidence Act as has been examined by the Apex Court in a catena of a decisions on the issues. One of the earliest cases on the issue is Aghnoo Nagesia Vs. State of Bihar AIR 1966 SC 199 in paragraph 22 of the aforesaid decision, the apex Court has held as hereunder :
Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub Inspector stated that he arrested the appellant after he gave the first information report leading to the discovery. 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 the in constructive custody. On the question whether a person directly giving to a 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 State of U.P. v. Deoman Upadhyaya(1). 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 offenses under s. 302 of the Indian Penal Code.
73. The Apex Court in paragraph 8 of its judgement rendered in Bakhshish Singh Vs. State of Punjab AIR 1971 SC 2016 has observed has here under :
Therefore the only incriminating evidence against the appellant is his pointing the place where the dead body of the deceased has been thrown. This, in our opinion, is not a conclusive circumstance though undoubtedly, it raises a strong suspicion against the appellant. Even if he was not a party to the murder the appellant could have come to know the place where the dead body of the deceased had been thrown. Further, as mentioned earlier, at the bank of the river where the dead body was thrown into the river, there were broken teeth and parts of the human body lying Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place.
74. The Apex Court in paragraph 142 of its judgment in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru 2005 SCC (Cri.) 1715 has held as hereunder :
Evidence Act, 1972 - S. 27 - Fact no discovered on specific pointing out at instance of accused, but on basis of information supplied by him - Admissibility and probative value of such information - Held, the said information is admissible so long as it is the immediate and proximate cause of discovery - The fact that informatn accused is not taken to spot of recovery will have no bearing on admissibility, but same may be one of the aspects that goes into evaluation of that particular piece of evidence.
75. The Apex Court in paragraph 35 and 36 of its judgement in State of Maharashtra Vs. Dammu (2000) 6 SCC 269 has observed as hereunder :
35. 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 in 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. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the Section. The decision of Privy Council in Pullukurri Kottayya vs. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW44 is that A3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motor cycle.
76. The Apex Court in paragraph 25 of its judgement in State of Maharashtra Vs. Suresh (2000) 1 SCC 471 : 2000 SCC (Cri) 263 has held as hereunder :
"Three possibilities are there when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have been somebody else concealing it. And the third is that he would have been told by another person that iw was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of Evidence Act."
77. The Apex Court in paragraph 167 and 174 of its judgement in Mohd Arif Vs. State (NCT of Delhi) (2011) 13 SCC 621 has held as hereunder :
167. It is indeed true that for normally proving any such information and attributing the same to the accused the said accused must be in the custody of the prosecution and then when he discloses or offers to disclose any information, his statement is recorded by the investigating agency for lending credibility to the factum of disclosure as also exactitude. In pursuance of such information, the investigating agency proceeds and obtains the material facts and thereafter executes a Panchnama to that effect. We have already referred to this question in the earlier part of our judgment that it was indeed a very tense situation requiring extreme diligence on the part of the investigating agency whereby the investigating agency could not afford to waste a single minute and was required to act immediately on the receipt of the information from the appellant. This was all the more necessary because the investigating agency were dealing with an extremely dangerous terrorist causing serious danger to the safety of the society. We do not see anything wrong in this approach on the part of the investigating agency. The only question is whether the investigating agency discovered something in pursuance of the information given by the accused. The events which followed do show that it is only in pursuance of, and as a result of the information given by the accused that the investigating agency zeroed on the given address only to find a dreaded terrorist like Abu Shamal holed up in that address with huge ammunition and the fire arms. If that was so, then the question is as to whether we can reject this discovery evidence merely because, as per the claim of defence, a formal statement was not recorded and further merely because a formal arrest was not made of the accused.
174. It may be mentioned here that even in the decision in State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru [2005 (11) SCC 600] relying on the celebrated decision of Pulukuri Kottaya v. King Emperor [AIR 1947 PC 67], the Court held "125. We are of the view that Pulukuri Kottaya (cited supra) case is an authority for the proposition that 'discovery of fact' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place".
This is precisely what has happened in this case. It is only because of the discovery made by the appellant that Abu Shamal with the arms and ammunition was found at the address disclosed by the appellant.
78. The basic idea embedded in Section 27 of the Evidence Act which emerges from a careful reading of the authorities on the issue is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in 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 exculpatory in nature, but if it results in discovery of a fact it becomes reliable information and such information can be used as evidence by restricting the admissible portion to the minimum. 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. The portion permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered.
79. Section 27 provides an exception to the prohibition imposed by Section 26 of the Evidence Act 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 discovery of fact in consequence of information received from a person accused of any offence in the custody by 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. This section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Section 27 cannot be held to nullify the substance of Section 26 of the Evidence Act which mandates, that the fact discovered within Section 27 cannot be treated as equivalent to the object produced (no confession made to a police officer shall be proved as against a person accused or any offence).
80. Keeping in view the aforesaid legal principle, the part of confessional statement made by Nanku @ Brahm Sahai A1, which led to the discovery of the dead body of the deceased and other incriminating articles from the well and from other nearby places alone can be read in evidence against him. The portion of his statement recorded before the police officer confessing his having committed the murder of the deceased Man Singh is clearly severeable.
81. The discovery of the incriminating articles pursuant to the information tendered by accused-appellant Nanku @ Brahm Sahai A1 while in police custody is only one link in the chain to proof. We now have to examine whether the prosecution has successfully forged the other links which are consistent only with the hypothesis of the guilt and inconsistent with the innocence. The record shows that apart from evidence of discovery of incriminating articles pursuant to the disclosure statement of accused-appellant Nanku @ Brahm Sahai A1 made before the police, there are other evidences and circumstances on record pointing to the guilt of Nanku @ Brahm Sahai A1, interlia, last seen evidence of PW2, PW3 and PW4 ; proof of enmity between the deceased and Nanku @ Brahm Sahai A1; the medical evidence on record which fully corroborates the time and manner of assault as pleaded by the prosecution; the report of the forensic science laboratory Ext. Ka31, which indicates that blood was found on the banka which was discovered pursuant to the information given by Nanku @ Brahm Sahai A1 although its origin could not be traced out as it was totally disintegrated; failure of Nanku @ Brahm Sahai A1 to come up with any explanation with regard to the presence of blood on the banka was an incriminating circumstance against him; and blunt and outright denial by Nanku@Brahm Sahai A1 to one and all incriminating circumstances pointing to his guilt, when put to him, provided the missing link to connect him as an accused in the chain of circumstances as held by the Apex Court in the case of Hari Vadan Babu Bhai Patel Vs. State of Gujarat (2013) 7 SCC 45-(para28).
82. Thus upon a wholesome appraisal and a critical analysis of the entire evidence on record, we come to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts against Nanku @ Brahm Sahai A1. It is true that there was some delay in the lodging of the FIR by PW1 Kallu Singh but under the facts and circumstances of the case the prosecution case is not liable to be discarded merely on the ground of delay, as far as appellant no. 1 is concerned. His name finds mention in the gumshudgi report which was given by PW1 Kallu Singh at P.S. Lalauli, District Fatehpur two days after his disappearance from his house with Nanku @ Brahm Sahai A1, therefore, it cannot be said that the delay in lodging the FIR was utilized by the complainant for the purpose of concocting a false prosecution story for falsely implicating Nanku@ Brahm Sahai A1 and fabricating false evidence against him. The three witnesses of fact produced by the prosecution PW2, PW3 and PW4 have deposed in unison before the Trial Court that Nanku @ Brahm Sahai A1 had taken away the deceased Nanakwa @ Man Singh from his house on 22.2.2010 between 8:00 to 8:45 pm. Their evidence has been sought to be discredited by the learned counsel for the appellants on the ground that they are highly interested witnesses being close relatives of the deceased and also inimical towards the accused-appellants due to admitted enmity between the deceased and the Nanku @ Brahm Sahai A1. The question whether the evidence of a witness is liable to be discarded merely on the ground of his being a relative of the deceased or inimical is no longer res-integra and stands settled by a catena of decision of Supreme Court. It is settled law that the testimony of a witness cannot be discarded merely on the ground of his relationship with the deceased. The only duty which has been cast upon the Court where a relative or an interested witness is examined, is to analyze the evidence of such witness with utmost caution. If upon a careful and critical scrutiny of the testimony of such witness, the Court comes to the conclusion that there is a ring of truth in his evidence and there is no reason for holding such evidence as biased, the Court can rely upon such evidence. In the present case, we have very cautiously scrutinized the evidence of PW2, PW3 and PW4. The evidence of all the three aforesaid witnesses on the point of last seen appears to be truthful and trustworthy. The prosecution has further successfully proved the discovery of the dead body of the deceased and a banka from the well at the place of occurrence, ash of burnt clothes of the deceased and the country made pistol of 315 bore from nearby places by the Nanku @ Brahm Sahai pursuant to the disclosure statement made by him before the police after his arrest which provides an important link in the chain of proof. The prosecution having been successful in proving that the deceased was last seen alive with Nanku @ Brahm Sahai A1 and that the dead body of the deceased and other incriminating articles were discovered in furtherence of voluntarily information furnished by Nanku @ Brahm Sahai A1, the natural presumption in absence of explanation furnished by him was that it was Nanku @ Brahm Sahai who had murdered the deceased and thrown his dead body into a well after cutting into several pieces.
83. We stand fortified in our aforesaid view by the observations made by the Apex Court in State of Maharashtra Vs. Suresh reported in (2001) 1 SCC 473 d-f , which read as hereunder :
Three possibilities are there when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed there. But if the accused declined to tell the Criminal Court that his knowledge about the concealment was on account of one of the last two possibilities the Criminal Court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the Criminal Court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.
84. Thus the Trial Court did not commit any illegality or infirmity in convicting the appellant no. 1 Nanku @ Brahm Sahai for the offence under Section 364/34, 302/34 and 201 IPC.
85. As far as appellant no. 2 is concerned, we find that the prosecution has not been able to prove its case against him beyond all reasonable doubts. The recorded conviction of the appellant no. 2 under Section 364/32, 302/34 and 201 IPC and the punishment of death sentence awarded to him cannot be sustained and are accordingly set aside. Since the prosecution has further failed to prove the recovery of the country made pistol from the possession of the appellant no. 2 and the axe by him from his house, his conviction under Section 25 of the Arms Act is also set-aside.
86. In view of the failure of the prosecution to prove the complicity of Chhatrapal Pasi A2 in the commission of the murder of the deceased Nankwa @ Man Singh, the conviction of the Chhatrapal Pasi A2 under the aforesaid offences is modified to one under Section 302, 364 and 201 IPC. His conviction under Section 25 of the Arms Act is maintained.
87. Now we proceed to examine the propriety of sentence imposed by the trial court. The trial court has awarded death sentence to the appellants for their conviction under Section 302/34 I.P.C. and a fine of Rs. 10,000/- for their conviction under Section 364/34 I.P.C., they have been awarded life imprisonment alongwith a fine of Rs. 10,000/- in default of payment of fine further imprisonment of one year has been awarded to them and seven years imprisonment under Section 201 IPC. Further three year imprisonment under Section 25 of the Arms Act and a fine of Rs. 5,000/- and in default of payment of fine, six months imprisonment is awarded to them.
88. Except death penalty, all the aforesaid sentences and fine as awarded by the Trial Court neither appear excessive nor unreasonable to us in view of the gravity and heinous nature of the offence in this case. However, the death sentence awarded by learned trial court appears excessive in view of the legal position that death sentence should be awarded in rarest of rare cases and the courts should follow the guidelines as laid down by Hon'ble Supreme Court in a series of judgments. The Apex Court in the landmark case of Bachan Singh, (1980) 2 SCC 684 has laid down the guidelines and the sentencing norms. In a recent judgment rendered in the case of Sunil Dutt Sharma Vs. State (Government of NCT of Delhi); (2014) 4 SCC 375 the Apex Court has reiterated the law relating to death penalty and has summarized the circumstances under which life imprisonment should be awarded instead of death penalty.
89. According to the Apex Court the mitigating factors under which the sentence of life imprisonment instead of death sentence is to be awarded, are as follows :
(I) The young age of the accused.
(II) The possibility of reforming and rehabilitating the accused.
(III) The accused had no prior criminal record.
(IV) The accused was not likely to be a menace or threat or danger to society or the community.
(V) A few other reasons need to be mentioned such as the accused having been acquitted by one of the courts.
(VI) The crime was not premeditated.
(VII) The case was one of circumstantial evidence.
90. Testing the facts of the instant appeal on the touch stone of guidelines as cited above and on consideration of the totality of circumstances, we are of the firm view that the present case does not fall within the category of 'rarest of rare cases' attracting death penalty due to presence of two factors as cited above.
81. First, the present case, undisputedly is one of the circumstantial evidence and second, appellant no. 1 has no prior criminal antecedent. Therefore, it appears expedient in the interest of justice that the extreme punishment of death penalty awarded to the appellant no. 1 under Section 302 I.P.C. be substituted with sentence of imprisonment for life.
91. Accordingly the appeal is allowed in part. The impugned judgment and order dated 4.3.2016 is modified to the extent that the death penalty awarded to the appellant no. 1 under Section 302 I.P.C. is converted to imprisonment for the whole of the remaining natural life of the appellant no. 1, subject however to the condition that the prisoner would be eligible to any commutation and remissions that may be granted by the Hon'ble President and the Hon'ble Governor under Articles 72 and 161 of the Constitution of India or of the State Government under Section 433-A of the Code of Criminal Procedure for good and sufficient reasons.
92. The accused-appellant Chhatrapal Pasi A2 is acquitted of all the charges framed against him. He is reported to be in jail. He shall be released forthwith unless he is wanted in any other case, subject to his complying with the mandatory requirement of Section 437-A Cr.P.C. The impugned judgement and order dated 4.3.2016 passed by Additional Sessions Judge, Court No. 1, Fatehpur in S.T. No. 289 of 2010 (State of U.P. Vs. Nanku@Brahm Sahai and others) connected with S.T. No. 290 of 2010 (State of U.P. Vs. Nanku@Brahm Sahai) stands modified to the extent indicated hereinabove.
93. The reference No. 3 of 2016 for confirming the death sentence is rejected.
94. There shall however be no order as to costs.
Order Date:- 6.3.2017/SA