Jharkhand High Court
State Of Jharkhand Through Deputy ... vs Shiv Narayan Yadav @ Chhotka on 9 August, 2023
Bench: Shree Chandrashekhar, Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No. 09 of 2006
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State of Jharkhand through Deputy Commissioner, Singhbhum East, Jharkhand
... ... Appellant
Versus
1. Shiv Narayan Yadav @ Chhotka, son of Late Dwarika Prasad, resident of
New Layout, House No. 21, Sitaramdera, P.S. Sitaramdera, District: Singhbhum
East
2. P. Chhanda Rao @ Dolly, Wife of Late P. Ratna Rao, daughter of Late N.
G. Mukherjee, resident of New Layout, House No. 22, Sitaramdera, P.S.
Sitaramdera, District: Singhbhum East.
3. Md. Akhtar, S/o Md. Sanaullah, resident of Golmuri Muslim Basti, House
No. 119/120, P.S. Golmuri, Jamshedpur, District: Singhbhum East
4. Satpal Singh @ Mithu Paji, S/o Tarsen Singh, resident of Water No. 2
Namda Basti (Jita Bagan), Golmuri, P.S. Golmuri, Jamshedpur, District:
Singhbhum East.
5. Raju Podwal @ Raju Das, S/o Gopal Das Podwal, resident of Tikaria, P.S.
Samnapur, District: Dindory (M.P.)
6. Sushil Kumar Jha @ Pappu Jha, S/o Late Radhamohan Ojha, resident of
Adarsh Colony, Dimna Road, Mango Ulidih, P.S. Mango, District: Singhbhum
East
7. Mohan Gupta, S/o Late Ramanand Gupta, resident of Paniara Bazar, P.S.
Paniara Bazar, District: Maharajganj (U.P.), presently residing at Chhaya Nagar,
P.S. Sitaramdera, Jamshedpur, District : Singhbhum East
8. Ravi Chourasia, S/o Ramanand Chourasia, resident of Holding No. : 249,
Line No. 8, Kasidih, P.S. Sakchi, Jamshedpur, District : Singhbhum East
... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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Heard on 7th August & 9th August 2023
For the State of Jharkhand : Mrs. Vandana Bharti, APP
For the Resp. No. 1 : Mr. Hemant Kr. Shikarwar, Adv.
For the Resp. No. 2 : Mr. Naveen Kumar Jaiswal, Adv.
For the Resp. No. 3 : Mr. M. A. Niyazi, Advocate
For the Resp. Nos.4 to 7 : Mr. Prince Kumar, JC to
Mr. Sanjoy Piprawall
For the Resp. No. 8 : Mr. Sajid Yunus, Advocate
: Mr. Ayub Ansari, Advocate
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2 Acquittal Appeal No. 09 of 2006
Judgment dated 9th August 2023
Per, Shree Chandrashekhar, J.
The State of Jharkhand has challenged the judgment dated 22nd December 2005 in Sessions Trial Nos. 17 of 2005 and 96 of 2005, by which Shiv Narayan Yadav @ Chhotka, P. Chhanda Rao @ Dolly, Md. Akhtar, Satpal Singh @ Mithu Paji, Raju Podwal @ Raju Das, Sushil Kumar Jha @ Pappu Jha, Mohan Gupta, and Ravi Chourasia have been acquitted from the charge framed against them under sections 302/34 and 120-B of the Indian Penal Code for committing murder of P. Ratna Rao @ Joni in furtherance of common intention and conspiracy. Raju Podwal @ Raju Das has been acquitted also of the charge under section 27 of the Arms Act.
2. On 19th June 2004, at about 09:00 AM, P. Ramchandra Rao who is the father of Joni gave his fardbeyan before the officer-in-charge of Sitaramdera PS at his house situated at 22 New Layout within Sitaramdera PS. According to him, two boys one of whom was of average build came near his house and made some inquiry from Dolly and, in the meantime, the other boy fired shot at his son
- the shooter was a tall boy. The assailants thereafter fled away towards the northern side on a motorcycle which was held by a third boy in starting position, just away from the place of occurrence. On the basis of his statement, Sitaramdera PS Case No. 41 of 2004 was lodged against unknown on the same day. The investigating officer prepared inquest report and collected blood-stained soil from the place of occurrence, blood stains from sheet cover of Maruti Esteem car, and the blood-stained shirt of the deceased. Shiv Narayan Yadav @ Chhotka and Dolly were arrested the same day and Chhotka made disclosures which unfolded the conspiracy hatched by him.
3. Soon thereafter, Md. Akhtar who according to the prosecution was standing with a motorcycle about 20 yards from the place of occurrence, was arrested on 25th June 2004. Later on, Mohan Gupta who is the person who came near Joni on the pretext of enquiring about an address was arrested on 1 st July 2004, and on the same day he made disclosures before the police and on his pointing a blood-stained shirt and jeans pant were recovered from his house. Raju Podwal @ Raju Das who is the shooter was arrested on 11th October 2004 and on the basis of his confessional statement recorded around 02:40 PM on 11 th October 2004, a county-made firearm was recovered from a house at Chayanagar 3 Acquittal Appeal No. 09 of 2006 concealed within the earth and a seizure memo was prepared in the presence of Dulal Chandra Karmar and Jugal Bhuiyan. He made another disclosure on 18 th October 2004 on the basis of which a fired .315 bore cartridge was recovered in the presence of Vijay Sao and Deo Chand Pandit.
4. Dr. Lalan Chaudhary who conducted autopsy over the dead body found the following antemortem injuries on the person of Joni:
(i) Semi-circular stitched wound of size 23.5 c.m. with 23 stitches over right side of temporal occipital scalp.
(ii) Stitched wound of size 5 c.m. with five stitches over back of right ear between above injury.
(iii) Blackening with charring of size 8 c.m. X 4 c.m. over right temporal scalp.
(iv) Blackening and charring of size 4.5 cm. x 4 c.m. over right ear upper part.
5. In the opinion of doctor, the cause of death of Joni was firearm injuries in his head which were injury nos. (iii) and (iv). According to the doctor, the injuries nos. (i) and (ii) might have been caused by the Surgeon in course of the treatment. After the investigation, a charge sheet was laid against the aforementioned accused persons and they faced the trial on the charge under sections 302/34 and 120-B of the Indian Penal Code. Raju Podwal was separately charged under section 27 of the Arms Act. A separate case vide Sitaramdera PS Case No. 79 of 2004 was also lodged against Raju Podwal under sections 25(1-B)(a), 26 and 35 of the Arms Act.
6. Fifteen witnesses were produced by the prosecution to prove the aforesaid charges framed against the accused persons in Sessions Trial Nos. 17 of 2005 and 96 of 2005. The minor son of the deceased has been examined as PW8. The seizure list of six letters written by Dolly to Chhotka and a mobile phone both recovered from the house of Chhotka were marked as Exhibit-6 to Exhibit-6/5 and Exhibit-6/6 and proved during the trial. The confessional statements of Raju Podwal vide Exhibit-12 and Exhibit-12/1 and the confessional statement of Mohan Gupta vide Exhibit-13 were duly proved and marked at the instance of the investigating officer. The call detail records were produced vide Exhibit-14 and proved by PW15, and the order sheets of the Arms Act case, order framing charge and seizure list of recovery of country-made pistol from the house of Mohan Gupta and Raju Podwal were also laid in evidence through Exhibit-15 to Exhibit-19. The prosecution has also proved seizures of cloth and motorcycle at the instance of Mohan Gupta and the seizure lists of the aforesaid articles were proved and 4 Acquittal Appeal No. 09 of 2006 marked as Exhibit-9 to Exhibit-11.
7. In Sessions Trial Nos.17 of 2005 and 96 of 2005, the trial Judge held that the prosecution could prove the love relations of Chhotka and Dolly but nothing beyond that. Similarly, nothing except the recovery of the incriminating articles has been proved against Raju Podwal and Mohan Gupta. As regards the other accused, the trial Judge recorded a specific finding that there is absolutely no material against them.
8. The trial Judge has held as under:
"46. The prosecution has much argued regarding the motive. It is the case of the prosecution that there was love affairs between Chhotka and Dolly, which was being interfered by the deceased P. Ratna Rao @ Joni. Therefore, by hatching a plan, this two accused persons wanted to eliminate the deceased (Joni). Therefore, there is strong motive behind the offence, but in this regard counsel for the defence has argued that only motive can not be the basis of conviction. From the material on the record and on its scrutiny, I may say that as submitted by the parties that the aforesaid allegation of love affairs between two co- accused and if it is considered at its face value, at the worst it can be said that some might have possible furnished the motive for the murder of P. Ratna Rao @ Joni, but the motive is not synonymous with conspiracy and the motive and conspiracy could not be equated. There is yet another approach to the allegation of motive. It is evident that even the deceased was fully aware of his wife Dolly's alleged attachment with Chhotka and that accused Chhotka had free and in frightened by the police, placed the aforesaid facts will point to the unerring conclusion that the deceased had acquiesced in condoned the mis-
adventurous of his faithless wife and never took any step for seeking relief or redress either through common friends or well wishers and from the matrimonial cases. Letters Ext.6 to 6/5 and mobile phone of Chhotka and evidence of PW-15 goes to show that there was some thing between Chhotka and Dolly. A very lengthy argument has been made on behalf of the defence that reliance can not be placed upon the letters and the evidence of PW-15. But, from the evidence, it is crystal clear that there was love affairs between Chhotka and Dolly. This fact has been established by the evidence of PW-5,7,9 as well as letters and phone calls and by Ext. 14. I also compared the writing of the letters with the admitted writing of Dolly in the record and I am of the view that the letters were written by Dolly to Chhotka, which was recovered from the possession of Chhotka. Therefore, love affairs between Chhotka and Dolly is well proved fact.
47. So far as the confessional statement of accused Raju Das @ Raju Podwal and Mohan Gupta is concerned end discovery of alleged weapons, arms and motor cycle is concerned, in this point, it has been argued on behalf of both the parties at length, but law is very much clear in this regard. The alleged confessional statement of aforesaid two accused persons before the police are totally inadmissible in evidence and do not fit to bind the makers thereof. The aforesaid confessional statement of co-accused Raju Das and Mohan Gupta can not be pressed into service for any purpose whatsover against any co-accused being the violative provision of section 25,26 and 30 of the Evidence Act. Another infirmity which (attaches to the aforesaid confessional statement before the police is that the same has been retracted and can not be acted upon, even against the maker without corroboration, which is totally absent in this 5 Acquittal Appeal No. 09 of 2006 case. The confessional statement touching upon the alleged discovery of pistol and cartridge and empty cartridge may be admissible in evidence against Raju Das and Mohan Gupta u/s 27 of the Evidence Act for sustaining the charges under the Arms Act. The rests of their confessional statement will have to be excluded from consideration and by no stretch of reasoning seek to incriminating any other accused persons.
48. I may placed reliance on a decision of Supreme Court reported in 2005. Cr. Law Journal. 3950, in which it has been settled regarding of confession. Confession leading to recovery of fact which is dealt with u/s 27 is an exception to the tule of exclusion of confession made by the accused in the custody of a police officer. Consideration of proved, confession affecting the person making it as well as the co-accused is provided for by Section 30. Briefly and broadly, this is a scheme of law of evidence confession, alive provision, which needs to be noticed at this juncture in section 162 of the Cr.P.C. which prohibits the use of statement made by any person to a police officer in course of investigation for any purposes at any enquiry or trial in respect of any offence under investigation. As to what should be the legal approach of the court called upon to convict, a person primarily in the light of the confesion or retracted confession sincerely sumarized by the Hon'ble Supreme Court and says that confession can be acted upon, if the court is satisfied that they are voluntarily and they are true. It has further been observed by a decision of Supreme Court reported in 2003. Cr. Law Journal. 894. that recovery of blood stained earth and weapon from the place of occurrence and the same not send to chemical examination, recovery become doubtful. Hon'ble Supreme Court in reported case 2003. Cr. Law Journal. 2302 has held that pistol recovered not sealed on spot, neither its number nor mark given in recovery raises doubt regarding the factum of recovery. In Cr. Law Journal. 2004.1380. the Hon'ble Supreme Court has held that only that portion of information which relates distinctly or directly to the fact of discovery can be proved rests is inadmissible.
49. Here in this case, there is no evidence to connect that the recovered country made pistol and cartridges are the assault weapon. Not even a single independant witness of seizure has come forward to support the recovery. No any distinctive mark was done on the recovered country made pistol or live cartridges. No any forensic report has come before the court to show that this country made pistol was used. There is no report before the court to show that this recovered country made pistol was used in near days. No arms has been produced before the court.
50. So far as the charge u/s 27 of the Arms Act is concerned, there is only witness i.e. I.O. who has come forward to say that a country made pistol and live cartridge and empty cartridge were recovered from the joint possession of accused Mohan Gupta and Raju Podwal, but essential requirement of recovery and it production, its sealing, balastic expert report and forensic laboratory report has not been brought in this regard. Arms has also not been brought before the court. Therefore, in absence of evidence, these two accused persons can not be held guilty for the offence u/s 27 of the Arms Act.
51. In summing up the entire case, I am of the view that admittedly, there is no evidence at all against accused Md. Akhtar, Satpal Singh @ Mithu Paji, Ravi Chaurasia and Sushil Kumar Jha. Not even a single witness has deposed against them. As per the admission of the prosecution, conspiracy could not be proved successfully. Therefore, these four accused persons are hereby acquitted for having no evidence at all.
52. So far as the accused Raju Podwal and Mohan Gupta is concerned, there is slight evidence against them that on their confessional statement a country 6 Acquittal Appeal No. 09 of 2006 made revolver and live cartridge and empty cartridge were recovered. Recovery of arms are admissible u/s 27 of the Evidence Act, but prosecution has failed to establish other ingredient which has already been dealt in the forgoing paragraph, therefore, they are also acquitted by giving him berefit of doubt.
53. So far as the accused Shiv Naryan Yadav @ Chhotka and P.Chhanda Rao @ Joni is concerned, the prosecution has been able to prove that there was love affairs between them and there was a very strong suspicion against them that they might have hatched a plan to eliminate the deceased, the suspicion, however strong suspicion can not be a substantive piece of evidence. Motive and conspiracy can not be equated. There are possibility, but the possibility always remain possibility, it can not take the shape of evidence, it goes to two ways, one in affirmative and other in negative. Where there are two possibility, one of the commission of the crime and the other is innocency are reasonable possible, the accused is entitled to benefit of doubt.
54. After consideration of entire facts and circumstances of the case and material available on the record, I am of the following views:
Conspiracy in this case could not be proved by the prosecution against any of the accused persons, this fact has been admitted by the Ld.P.P. in course of his argument. Common intention of the accused Chhotka and Dolly could not be established by the prosecution. All the accused persons were made accused in this case on the basis of confessional statement of accused Chhotka, Mohan Gupta and Raju Podwal. Except recovery other part of confessional statement of the accused persons before the police while in custody of police is not admissable in Evidence Act.25,26 and 30. Therefore, common intention also could not be proved. The only thing has been proved by the prosecution is that there was love affairs between Chhotka and Dolly. Simply, on the basis of motive, accused persons can not be convicted in absence of conspiracy or common intention, because admittedly these two accused persons Chhotka and Dolly had not fired upon the deceased. The evidence of PW-8(Mohit) has not been found reliable. There is no direct or circumstantial evidence available on the record to connect the accused persons or to hold the complicity of the accused persons in this crime. I may say that there is no positive evidence against the accused persons.
55. After consideration of entire facts and circumstances of the case available on the record, I am of the view that there is no evidence at all against the accused persons namely, Md. Akhtar, Satpal Singh @ Mithu Paji, Sushil Kumar Jha and Ravi Chaurasia, therefore, they are hereby acquitted having no evidence at all.
56. So far as the accused P. Chhanda Rao @ Dolly, Shiv Naryan Yadav @ Chhotka, Mohan Gupta and Raju Das @ Raju Podwal are concerned, there are no positive evidence against all these four accused persons also. Therefore, I do not find and hold guilty them also for the offence u/s 302/34 or u/s 302/120- B of IPC. Therefore, for these offences also, they are hereby acquitted by giving them benefit of doubt. The accused Raju Das @ Raju Podwal is hereby acquitted for the offence punishable u/s 27 of the Arms Act. All the accused persons are directed to be released at once from the jail custody if they are not wanted in any other case."
9. The learned counsels for the accused have referred to the judgment in "Mrinal Das v. State of Tripura" (2011) 9 SCC 479 to contend that the prosecution must demonstrate perversity in the judgment of acquittal so as to 7 Acquittal Appeal No. 09 of 2006 invite exercise of powers by the High Court.
10. In "Mrinal Das" the Hon'ble Supreme Court has observed as under:
"13. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, it being the final court of fact, is fully competent to reappreciate, reconsider and review the evidence and take its own decision. In other words, the law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."
11. The powers of the High Court under section 378 of the Code of Criminal Procedure are very wide and acting as an appellate Court the High Court may re-appreciate the evidence, record its independent findings and may come to a different conclusion. The provisions under the Code of Criminal Procedure do not put any limitation over the powers of the appellate Court in dealing with the appeal against acquittal. However, as a rule of prudence certain restraints have been prescribed.
12. In "Chandrappa v. State of Karnataka" (2007) 4 SCC 415 the Hon'ble Supreme Court has observed as under:
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
8 Acquittal Appeal No. 09 of 2006 (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
13. With the aforementioned principles in mind, we shall now examine the prosecution case against the accused. The case of the prosecution is that Dolly and Chhotka had developed love relations and Joni was objecting to their relationship. This is the further case of the prosecution that unhappy with the love relations of his wife with Chhotka, Joni would sometimes beat his wife but Dolly did not sever her relationship with Chhotka and they hatched a plan to eliminate Joni. The prosecution has build a case of conspiracy to get rid of Joni in furtherance of which Chhotka provided money, a pistol, and live cartridges to Raju Podwal and, in course of time, Md. Akhtar, Mithu Paji, Pappu Jha, Mohan Gupta and Ravi Chourasiya were also roped in to play different parts to accomplish the task. This is the case of the prosecution that Md. Akhtar is the person who was standing near the place of occurrence with a motorcycle to facilitate the escape of Raju Podwal and Mohan Gupta; Mithu Paji and Pappu Jha are said to be in the backup team to provide necessary help and assistance in case of need; Raju Podwal is the shooter and Mohan Gupta is the person who engaged Joni on the pretext of enquiring about some address and; Ravi Chourasiya is said to be the mastermind who according to the prosecution arranged the whole mission.
14. In order to establish the love relations between Dolly and Chhotka, the prosecution has relied heavily on the evidence of PW5 who at some point in time worked as a maidservant in the house of Dolly-Joni. This witness has deposed in the Court that Joni had knowledge about the illicit relationship of his wife with Chhotka. However, Dolly would not listen to her husband and did not stop meeting Chhotka even though Joni used to beat her for this reason. PW5 has stated that Dolly had physical relationship with Chhotka who would visit her whenever Joni was not at home; sometimes he would come in the night and leave in the morning. According to this witness, PW11 who is the father of Joni also knew about the illicit relationship of Dolly. On behalf of the accused persons, her statement that PW11 had knowledge about everything has been challenged. However, PW5 has remained unshaken in the cross-examination and explained that PW11 could know about the relationship of Dolly and Chhotka from the neighbors.
15. PW7 P. Ratna Bai is another maidservant who was working in the house of Dolly-Joni. She also stated about the love relations between Dolly and 9 Acquittal Appeal No. 09 of 2006 Chhotka. She admitted in the cross-examination that she has no personal knowledge about their love. However, her statement that Dolly attempted suicide and when she tried to console her she kept on weeping is not challenged even by Dolly. PW9 C.H. Adi Laxmi who is the elder sister of Joni also deposed about the love of Dolly and Chhotka. She has stated in the Court that on her counsel Dolly agreed to break her relationship with Chhotka. PW10 Pusplata was produced by the prosecution as an eyewitness but she did not support the prosecution inasmuch as she has stated in the cross-examination that she does not know anything about the occurrence. But PW10 was not declared hostile and her statement in the Court that two boys came and fired at her brother is usable by the prosecution to establish that Raju Podwal and Mohan Gupta came near the house of the deceased and Raju Podwal shot him dead.
16. Chhotka is a neighbor of Joni and this has been established as a fact by the prosecution and not disputed by him. On behalf of Chhotka an attempt has been made that his relationship with the family of Joni was normal and cordial and, in relation thereto, a statement has been elicited from PW5 that Chhotka would visit the house of Joni also in the presence of other family members. He seems to have set up a defence that he is a married man and a married man like him would not indulge in illicit relations with another married woman. The motive that is to say what may prompt a person to form an opinion or intention to do certain illegal act cannot be predicted and is difficult to unearth. In "Subedar Tewari v. State of U.P" 1989 Supp (1) SCC 91 the Hon'ble Supreme Court has observed that the motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of the assassin.
17. In "Suresh Chandra Bahri v. State of Bihar" 1995 Supp (1) SCC 80 the Hon'ble Supreme Court has observed as under:
"25. ...... It is difficult to lay down a hard and fast rule as to how and in what manner a person would react and to achieve his motive could go to what extent in the commission of crime under a particular circumstance. It is not possible to measure up the extent of his feelings, sentiments and desire and say as to what compelled him to commit a particular crime. There may be persons who under frustration and on mere trifling domestic matters take decision to commit a serious crime, while others may approach it with cool and calm mind and think more dispassionately before taking any hazardous and serious steps. It all depends as to how a person reacts in a given circumstance and it is he alone who best knows his intention and motive to commit a crime and the extent thereof......"
18. In our opinion, it was a futile exercise on the part of the defence to 10 Acquittal Appeal No. 09 of 2006 suggest that there is no direct evidence on the love relations of Dolly and Chhotka. The illicit relations of Dolly and Chhotka can be proved by leading circumstantial evidence only and it is rarely that such persons are caught red-handed in compromising position. The visit of Chhotka in the night, Dolly agreeing to the counsel of PW9, and the beating of Dolly by Joni are some of the very relevant circumstances proved by the prosecution and these incidents together with other circumstances in the case sufficiently prove the motive for the crime. PW5 has tendered clear, cogent, and consistent evidence and that is sufficient to prove the illicit love of Chhotka and Dolly. There seems to be no cross-examination of PW5 with respect to her statement made before the police under section 161 of the Code of Criminal Procedure, except that she did not make a statement before the police that she had left work with Dolly about four months ago. This witness has remained consistent in the Court in her stand as to what she had stated before the police.
19. The deposition of PW5 is extracted as under:
1- eSa ih0 jRuk jko ds ;gka ?kVuk ds nks lky igys ls dke djrh Fkh] [kkuk cukrh FkhA tkWuh HkS;k e`rd ds cPpksa dk ns[kHkky djrh FkhA 19 twu dks tkWuh mQZ jRuk th dh e`R;w gks x;hA mudh iRuh dk uke MkWyh gS ftUgsa eSa MkWyh nhnh cksyrh gwWaA MkWyh rFkk NksVdk ds chp izse lEcU/k Fkk] ;g ckr eSa tkurh Fkh] tkurh gwWaA tkWuh HkS;k Hkh tkurs Fks bl voS/k izse dks ftUgsa eSa crk;h FkhA MkWyh nhnh dks HkS;k ekjrs ihVrs Fks] fQj Hkh og NksVdk ls feyus ls ugha ekurh FkhA tc tkWuh HkS;k ugha gksrs Fks rks NksVdk ?kj esa vkrs tkrs Fks] ,d vk/k ?kaVk jgrs FksA jkr esa Hkh vkrs FksA lqcg pys tkrs FksA NksVdk rFkk MkWyh ds chp 'kkjhfjd lEcU/k Hkh FkkA 2- MkWyh nhnh ls ;g tkudkjh gks x;h fd eSa tkWuh HkS;k dks lc crk nh gwWa rks gedks MkWV QVdkj djus yxh rFkk dke ls fudykus dh /kedh nsus yxh rc eSa ?kVuk ds rhu pkj eghuk igys dke NksM+ nhA tkWuh HkS;k ds firk th Hkh ;g lc tkurs FksA muds dgus ij eSa eafnj lkQ djus ?kVuk ds fnu vk;h FkhA lkQdj eSa lkr cts lqcg pyh x;hA esjk vkuk&tkuk MkWyh nhnh dks vPNk ugha yxrk FkkA pwWafd eSa NksVdk rFkk mudk izse ds ckjs esa tkurh Fkh mudks 'kd Fkk fd dgha eSa dqN fQj u dg nwWAwa vfHk;qDr MkWyh rFkk NksVdk mifLFkr gSa] igpkurh gwWaA izfrijh{k.k MkWyh ds vksj ls 3- iqfyl dks eSa ;g ugha dgk Fkk fd ?kVuk ds pkj eghuk igys eSa dke NksM+ nh FkhA MkWyh ds ?kj esa nknk] tkWuh] mudh ,d cgu rFkk ,d cPpk rFkk ukSdj latw FkkA tkW uh ds firk rFkk cgu vDlj gh xkao esa jgrs FksA ,d ukSdj latw dke djrk Fkk rFkk jgrk Hkh FkkA latw Hkh lc tkurk FkkA latw Mj ls dHkh fdlh dks ugha fd;kA nknk th dks vxy&cxy okys ls Hkh irk pyrk FkkA nknk rFkk muds csVh ds ?kj esa jgus ij Hkh NksVdk vkrk tkrk FkkA nknk rFkk mudh csVh tkWuh HkS;k dks f'kdk;r esjs lkeus dHkh ugha djrs FksA 4- dke NksM+us ds ckotwn nknk th ds dgus ij fcuk osru dk eafnj lkQ djus eSa vkrh Fkh tks HkS;k ds ?kj esa fLFkr gSa tkWuh HkS;k ds vuqifLFkfr esa vU; lnL;ksa ds mifLFkfr esa NksVdk dk MkWyh ls fdrus feyuk tqyuk gksrk FkkA ,slh ckr ugha gS fd NksVdk rFkk MkWyh ds chp izse lEcU/k ugha Fkk rFkk osru c<+kus ge cksyrs Fks ugha c<+kus ij xyr C;ku fn;kA ,slh ckr ugha gS fd eSa dke Bhd ls ugha djrh Fkh u cPpk Bhd ls j[krh Fkh blh ds fy, gedks MkWVa MiV djrh FkhA izfrijh{k.k NksVdk rFkk vU; ds rjQ ls 5- 19-06-04 dks eSa uUnw ckcq ds ;gka dke djrh Fkh tks esjs ?kj ds lkeusA vHkh eSa yktir ifCyd Ldwy esa dke dj jgh gwWa foxr vkB eghuksa lsA esjk iSr`d xzke dh tkudkjh ugha gSa 22 ua0 U;w ysvkmV tkWuh HkS;k dk edku gSA eSa x`g ua0 28 esa jgrh FkhA NksVdk dh 'kknh gks x;h gSa muds ?kj esa ekWa&pkph] cgu] Hkxhuk] Hkxuh vknh gSa NksVdk ds ?kj okyksa ls eSa dHkh dqN ugha dgkA iqfyl dks c;ku fn;k Fkk 20 twu dks Fkkuk esaA nknk th gedks Fkkuk ys x;s FksA iqfyl gedks cqykus dHkh ugha vk;hA nknk th dks eSa ugh iqNh D;ksa Fkkuk gedks ys tkuk pkgrs gSaA ml le; ,d vkneh vkSj Fkk mldk uke ugha ekyweA uUnw ckcq dks eSa bl ckr dks ugha dgh Fkh esjh vknr fdlh dh f'kdk;r djus dh ugha gSA ,slh ckr ugha gS fd nknk th ds dgus ij >qBh xokgh fn;kA ,slh ckr ugha gS fd eSa lPPkkbZ fNik jgh gwWaA 11 Acquittal Appeal No. 09 of 2006 English translation:
1. I was employed at the house of P. Ratna Rao two years prior to the occurrence. I used to cook food. I used to look after the children of Joni Bhaiya, the deceased. Joni Ratna died on 19th June. The name of his wife is Dolly and I used to call her Dolly Didi.
There was love affair between Dolly and Chhotka. I am aware with this matter. Joni Bhaiya was also aware about this illicit relationship which I narrated to him. Bhaiya used to beat Dolly Didi, despite this she did not stop meeting Chhotka. When Joni Bhaiya was not at home then Chhotka used to visit his house and he stayed for one/half an hour. He also came in night and left in the morning. There was physical relationship between Chhotka and Dolly.
2. When Dolly Didi came to know that I revealed all the facts to Joni Bhaiya then she began to scold me and threatened to remove me from work. Thereafter, I left the work three-four months prior to the occurrence. The father of Joni Bhaiya was aware of this matter. On his direction, I came to clean the temple on the day of occurrence and went away at 7:00 A.M. Dolly Didi did not like my visit as I was aware with love affair between her and Chhotka. She had suspicion that I may reveal more. I identify accused Dolly and Chhotka who are present.
Cross-examination on behalf of Dolly
3. I did not tell the police that I left the work four months prior to occurrence. Dada, Joni, his one sister, one child and a servant Sanju lived in the house of Dolly. The father and the sister of Joni often lived in the village. Sanju worked and stayed there. Sanju also knew all these facts. Sanju never met anyone out of fear. The grandfather also came to know about it from neighbours. Chhotka used to visit even in the presence of the grandfather and his daughter in the home. The grandfather and his daughter never complained with Joni Bhaiya in my presence.
4. Despite leaving work I used to come to clean the temple situated in the house of Bhaiya on direction of Dada Jee. Chhotka used to meet Dolly in absence of Joni Bhaiya and even in the presence of other members of the family. It is not a matter of fact that there was no love affair between Chhotka and Dolly. I asked them to increase my salary and I gave false statement as my salary was not increased. It is not a matter of fact that I neither worked nor looked after the children properly that's why she used to scold me.
Cross-examination on behalf of Chhotka and Ors.
5. On 19.06.2004, I was employed at house of Nandu Babu which is in front of my house. At present, I have been working near Lajpat Public School since last eight months. I have no knowledge about my ancestral house. 22, New Lay- out is the house number of Joni Bhaiya. I resided at house No. 28. Chhotka is married. His mother, aunt, sister, niece, nephew etc. live at home. I never stated anything to the family members of Chhotka. My statement was recorded by police on 20th June at the police station. Dada Jee had taken me to the police station. The police never called me. I did not ask Dada Jee why he wanted to take me to the police station. I do not know the name of his accompany.
6. I did not say these facts to Nandu Babu. It is not my habit to make complaint with anyone. It is not a matter of fact that I gave false evidence as per direction of Dada Jee. It is not a matter of fact that I am concealing true facts.
20. PW11 is another witness who stood by his statement before the police and proved the seizure memo vide Exhibit-4 and Exhibit-5. The six letters which were recovered at the instance of Chhotka were written by Dolly to Chhotka and in this connection PW11 was cross-examined to dispute the authorship of these letters. PW11 admitted in the cross-examination that those letters do not bear the 12 Acquittal Appeal No. 09 of 2006 name and signature of Dolly and were not written in his presence. These letters were produced in the Court and their contents could not have been proved by the prosecution because the author herself is an accused. Chhotka had knowledge about the contents of these letters but this is not a defence set up by him that there is nothing objectionable written in those letters which can be used by the prosecution to establish his illicit relations with Dolly. Just to recapitulate, the trial Judge has also held that the prosecution has proved the love relations of Chhotka and Dolly.
21. The prime witness for the prosecution is PW8 who is the son of Joni. On 14th June 2005, he was aged about six years when he was tendering evidence in the Court. Section 118 of the Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of a same kind. The Evidence Act, therefore, does not put an age bar on a witness who shall be competent to depose in the Court. From section 118, it is clear that by reason of tender age a witness is not rendered incompetent to give evidence. Therefore, it is for the Court to form an opinion whether or not the child witness is capable of understanding the questions put to him. In this context, what Goddard, J. said in Mohamed Sugal Esa Mamasan Rer Alalah v. King AIR 1946 PC 3 may be well remembered that: "it is not to be supposed that any Judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness". The trial Judge in order to assess his maturity put questions to him and recorded his own opinion that PW8 is a competent witness.
22. PW8 is intimately related to the deceased and some of the prosecution witnesses are also close relatives of Joni and, on this ground, a plea has been raised that their testimony is not worth any reliance.
23. This is a well accepted proposition in law that the evidence of a related witness is not rejected merely because of his relationship with the victim. In "State of Himachal Pradesh v. Mast Ram" (2004) 8 SCC 660 Hon'ble Supreme Court observed that the testimony of a related witness cannot be disbelieved on the ground of relationship and the only requirement in law is that his testimony should be examined with due care and caution. Therefore, there is no bar in law in examining the family members, friends or any other person as witness. This is 13 Acquittal Appeal No. 09 of 2006 also well accepted in common parlance that a related person shall be the last person to implicate an innocent person in the crime.
24. In "Mano Dutt v. State of U.P" (2012) 4 SCC 79 the Hon'ble Supreme Court's observations regarding evidence of the family and friends of the victim provide valuable insights. In "Mano Dutt" the Hon'ble Supreme Court has observed as under:
"24. .....Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party."
25. PW8 has deposed in the Court that his father was sitting in the car and at that time two boys came there and while one of whom was showing a chit of paper (chithi) to his mother Dolly, the other boy fired at his father.
26. The deposition of PW8 is extracted as under:
'kiFk ij ¼lk{kh ukckfyx gS½ iz'u %& ,d lIrkg esa fdrus fnu gksrs gSa\ mRrj %& lkr fnu gksrs gSaA iz'u %& ,d lky esa fdrus eghus gksrs gSaA mRrj %& ugha ekyweA lk{kh l{ke izfrr gksrk gSA eq[; ijh{k.k 1- esjs firk fd e`R;q gks x;h gSa firk th dkj esa cSBs Fks] eEeh dkj ds ikl [kM+h Fkh] eSa ?kj esa FkkA nks yM+dk vk;k] ,d yM+dk eEeh dks fpV~Bh fn[kk;k] nwljk yM+dk xksyh ekjkA eEeh ikik dks vLirky ugha tkus ns jgh FkhA eEeh NksVdk dks cksyh fd dke gks x;k gSa eEeh gWalh] rc cksyh Fkh] dke gks x;k gSA vfHk;qDr MkWyh rFkk NksVdk dks igpkurk gwWaA izfrijh{k.k MkWyh ds rjQ ls 2- vHkh eSa cqvk ds ikl ckWEcs esa jgrk gwWaA firkth ds ejus ds ckn ls eSa ckWEcs esa jg jgk gwWaA cqvk yksx gedks vkt dksVZ esa yk;h gSA gesa dqN ugha crk;h] tks eSa ns[kk] ogh cksyk gwWaA 3- iqfyl gedks ugha c;ku fy;k Fkk u dqN iqNk FkkA NksVdk ds rjQ ls 4- eSa ;gka jktsUnz fo|ky; esa Dykl nks esa i<+rk FkkA vHkh ckWEcs esa i<+ jgk gwWa ysfdu Admission ugha gqvk gSA xksyh ekjus okyk O;fDr U;k;ky; esa ugh gSA foxr Monday dks te'ksniqj vk;k gwWaA cqvk yksx rFkk cgu ds lkFk ckWEcs ls vk;k gwWaA ekWa dks ugha feyuk pkgrk gw WaA English translation:
The Witness is a minor Question:-How many days in a week?
Answer:-There are seven days.
Question:-How many months in a year?
Answer:-I do not know.
The witness appears to be competent.
14 Acquittal Appeal No. 09 of 2006 Examination-in-chief
1. My father died. My father was sitting in a car and mother was standing near the car. I was at home. Two persons came and one person shown a letter to my mother and another person fired shot. My mother was not allowing father to go to the hospital. Mother told Chhotka that work has been finished. My mother said-yes, work has been finished. I identify accused Dolly and Chhotka.
Cross-examination on behalf of Dolly
2. At present, I live with my aunt (Bua) in Bombay. After death of my father, I am living in Bombay. My aunt brought me in the Court. She did not lead me anything and I told what I had seen.
3. The police neither recorded my statement nor inquired me.
On behalf of Chhotka
4. I was a student of Class-2 in Rajendra Vidyalaya. At present, I am studying in Bombay but yet to take admission. The person who fired shot is not present in the Court. I came to Jamshedpur last Monday. I came with my aunt and sister from Bombay. I do not want to meet my mother.
27. The defence has challenged his evidence on the ground that he is a tutored witness. Mr. Hemant Kumar Shikarwar, the learned counsel for Chhotka submits that PW 8 was taken to Bombay where he was staying with his aunt who only brought him to the Court for evidence. When a plea is raised about tutoring of a witness a criminal Court is required to exercise more care and caution to scrutinize the evidence of such a witness and find out whether there is any trace of tutoring in his testimony [refer, "State of U.P. v. Ashok Dixit and another"
(2000) 3 SCC 70]. There is no finding recorded by the trial Judge that PW8 is a tutored witness. A boy of tender age can no doubt give a proper account of the murder of his father if he had an occasion to witness the same and simply because of his tender age it will not be proper to assume that he was likely to be tutored.
The age of a child is relevant but there are innumerable instances where the Courts have accepted evidence of a child witness irrespective of his age. In "Raja Ram Yadav v. State of Bihar" (1996) 9 SCC 287 the sole eyewitness was a nine-year- old child whose parents, uncle, and sisters were killed in the incident, and even though she was not able to name four out of eight accused persons all of them were convicted for committing murder.
28. PW8 whose dislike for his mother became apparent while responding to a question by the defence said that he does not want to meet his mother. PW8 who was in such a state of mind if is living at Bombay with his aunt there is nothing unusual, and no motive for tutoring can be imputed if he was brought in the Court by his aunt from Bombay. There is no cross-examination by Chhotka and Dolly to his evidence that Dolly told Chhotka that work has been accomplished. Section 155 of the Evidence Act provides that the credit of a 15 Acquittal Appeal No. 09 of 2006 witness may be impeached by proof of former statements inconsistent with any part of his evidence that is liable to be contradicted. It is also well remembered that contradiction in the evidence of a witness is not established by showing inconsistency in the evidence of two witnesses. This is not the case set up by the accused that PW8 made substantial improvements in the Court, or that his statement made before the police was entirely different. The accused have tried to challenge the presence of PW8 at the time of the occurrence on the ground that the other witnesses did not make a mention about PW8 being with Dolly when Joni was leaving for work. However, we find that PW8 is a competent witness and his presence at the time when his father was leaving for work is quite natural. PW11 has also deposed in the Court that when he came down from his room PW8 was standing with Dolly. Moreover, this is a requirement of natural justice that the witness must be told about omission, improvement or exaggeration and without doing that in his cross-examination, no inference about his conduct or presence or against his testimony can be raised. From the evidence of PW8, the prosecution has established that: (i) two boys came near his house at the time when Joni was about to leave home (ii) one of the accused showed a chit of paper to Dolly and the other accused fired shot at Joni (iii) Dolly was reluctant to take Joni to hospital
(iv) Dolly told Chhotka that work has been accomplished and (v) PW8 can identify the shooter also.
29. The learned counsels appearing for respondent nos. 3 to 8 have contended that the identity of these accused persons is not established, as none of the witnesses has identified them in the dock. It is submitted that without a test identification parade and a clear identification by the witnesses at the time when the accused persons were present in the dock the involvement of these accused persons in the crime cannot be established and, on that ground alone, the judgment in Sessions Trial Nos. 17 of 2005 and 96 of 2005 does not require any interference in exercise of the powers under section 378(2) of the Code of Criminal Procedure.
30. There is no endorsement by the trial Judge at the end of the examination-in-chief of PW8 and on that ground also the identification of the accused has been challenged. However, this appears to be an error on the part of the trial Judge who mistakenly did not record an endorsement about the accused persons who were present in the dock on 14th June 2005, when PW8 was examined in the Court. As per section 278 of the Code of Criminal Procedure, it was incumbent upon the accused who were if not present but duly represented through 16 Acquittal Appeal No. 09 of 2006 their learned counsels on 14th June 2005 to take an endorsement by the trial Judge as to their objection. They have not filed an application for correction in the deposition of PW8 as regards their identification by PW8 and did not raise any objection as to recording of the evidence of PW8 on this issue.
31. In "Mir Mohd. Omar v. State of W.B" (1989) 4 SCC 436 the Hon'ble Supreme Court has held as under:
"15. The object of Section 278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by sub-section (1) but if the correction is such that the Judge does not consider necessary, sub-section (2) requires that a memorandum of the objection be made and the Judge add his remarks, if any, thereto. In the present case, the learned trial Judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition. The section is not intended to permit a witness to resile from his statement in the name of correction. The learned trial Judge was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed. Now, since the correction slip as well as the remarks of the learned trial Judge have become a part of the record, nothing more need be done as the provisions of Section 278 are substantially complied with."
32. The identification evidence may be compelling but many times inherently fragile. The identification of the perpetrator of a crime is often the only issue that needs to be determined in a criminal trial. For good reasons, there are judicially evolved exceptions to the general rule that conviction should not be based on the basis of identification of an unknown accused by a witness for the first time in the Court. But where the witness had a chance to interact with the accused or an opportunity to observe distinctive features of the accused and the dock identification does not suffer from inherent improbability or any inconsistency then identification of an accused for the first time in the Court can be accepted even without corroboration [refer, "Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)" (2010) 6 SCC 1]. In "Tido v. The Queen" [2011] UKPC 16 the Privy Council has held that admission of dock identification evidence cannot be limited to the most exceptional circumstances; and that a trial Judge has always to consider whether the admission of such testimony might imperil a fair trial, particularly where it was the first occasion on which the accused had been purportedly identified. A similar test as is in vogue in common law jurisdictions is applied in India to test the worth of identification evidence of a witness who identifies the accused for the first time in the Court.
33. In "Malkhansingh v. State of M.P." (2003) 5 SCC 746 the Hon'ble 17 Acquittal Appeal No. 09 of 2006 Supreme Court has explained the law on this issue as under:
"16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. ....."
34. In "Simon & Ors. v. State of Karnataka" (2004) 2 SCC 694 the star witness for the prosecution who had shown the accused to other witnesses himself wrongly identified all the accused except Simon in the Court and on that basis a plea was raised that identification of Simon by such a witness who had failed to identify the other accused must be excluded from consideration being an inherently unreliable piece of evidence. The Hon'ble Supreme Court has held as under:
"9. We are unable to accept the contention that wrong identification by one witness by itself would be fatal to the case of the prosecution. A case is required to be decided on the examination of entire evidence. Mere wrong identification by one of the eyewitness by itself cannot be fatal to the case of the prosecution. There can be a variety of reasons for wrong identification. The witness may be won over. There may be lose of memory or any other reason.
............................................................................................................................ .............................................................................................................................
14. ....... The legal position on the aspect of identification is well settled. Under Section 9 of the Indian Evidence Act, 1872, the identity of the accused persons is a relevant fact. We have no difficulty in accepting the contention that evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. Mere 18 Acquittal Appeal No. 09 of 2006 failure to hold a test identification parade would not make inadmissible the evidence of identification in court. What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration (see Malkhansingh v. State of M.P.) ....."
35. PW5, PW8, and PW11 have identified Chhotka and Dolly in the dock. Dolly is the wife of Joni and Chhotka is a neighbor and their identification was never in doubt or challenged by them. PW8 has stated in the Court that he can identify the shooter and this statement has remained unchallenged. This is a matter of record that Raju Podwal was not present on 14 th June 2005 when PW8 was tendering evidence in the Court. This is the prosecution case that two boys came near Dolly and Joni in the morning of 19th June 2004. PW11 has given description of both the boys one of whom was of average build and the other one was a tall boy. According to the prosecution, Raju Podwal and Mohan Gupta are those two persons who had come near Dolly and Joni and fired at Joni. The description of these two accused as described by PW11 has remained unchallenged during the trial. As we read the prosecution evidence, the identity of Raju Podwal and Mohan Gupta has been sufficiently and clearly proved by the prosecution.
36. Raju Podwal and Mohan Gupta gave their confessional statements and on their pointing recoveries have been made by the investigating officer. Mr. M.A. Niyazi, the learned counsel for the respondent no.3 would submit that whole of the confessional statement of an accused cannot be laid in evidence and in so far as recoveries made on the basis of the confessional statements of Raju Podwal and Mohan Gupta are concerned, the same does not conform to the requirements under section 27 of the Evidence Act inasmuch as the seizure memo vide Exhibit-9, Exhibit-10 and Exhibit-19 do not record authorship of concealment. Mr. M.A. Niyazi, the learned counsel has elaborated upon this issue by reference to judgments in "Venkatesh @ Chandra & Anr. v. State of Karnataka"
2023 (1) Crimes 214 (SC), "Rahul v. State (NCT of Delhi)" (2023) 1 SCC 83.
37. The admission of guilt that is confession as evidence in a criminal trial has always occupied an important place. Wigmore in Wigmore on Evidence [(2nd ed.), Vol. 2, p. 131] has observed that at least till the middle of 17th century the use of torture in extracting confessions was common and confessions were used as evidence without scruples. In common law jurisdictions, "Ibrahim v. The King"(1914) A.C. 599 is often cited for the statement of Lord Sumner to use voluntary confessions of an accused in the trial. "Ibrahim" was a case from India 19 Acquittal Appeal No. 09 of 2006 before the Privy Council wherein the following noteworthy statement of law has been made:
"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale."
38. Section 27 of the Evidence Act reads as under:
"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
39. The divergence of judicial opinion in the initial years that the expression "fact discovered" would relate to the discovery of an object was finally settled in "Pulukuri Kottaya v. King Emperor"AIR 1947 PC 67.
40. In "Pulukuri Kottaya" the Judicial Committee of Privy Council has held that the "fact discovered" embraces the place from where the object was produced and the knowledge of the accused as to the place, and the information given must relate distinctly to this fact. The ambit and scope of section 27 of the Indian Evidence Act were explained by the Judicial Committee by an example in these terms: "X who is accused of an offence while in police custody makes a statement that I will produce a knife concealed in the roof of my house". It was held that this information relates to the discovery of a fact that a knife is concealed in the house of the informant and if the knife is recovered from the roof of his house at his pointing, the fact discovered would be very relevant and this part of his statement is saved under section 27 of the Indian Evidence Act.
41. However, the issue which has been canvassed before us is that by placing reliance on the whole of the confessional statements of Raju Podwal and Mohan Gupta the prosecution has lost its right to use any part of it as provided under section 27 of the Evidence Act. We do not see any substance in this submission and are of the view that having regard to the facts and circumstances of the case this mistake on the part of the prosecutor shall not prove fatal for the prosecution.
42. In "Ramanand v. State of U.P." 2022 SCC OnLine SC 1396 the Hon'ble Supreme Court did not accept the evidence of discovery for the reason that the investigating officer in his oral statement did not say about the exact words 20 Acquittal Appeal No. 09 of 2006 uttered by the accused at the police station. It was further observed that (i) the investigating officer could not prove the contents of the discovery panchnama
(ii) authorship of concealment was not spoken of by the investigating officer and
(iii) the panch witness did not affirm in the Court that for the purpose of discovery of the weapon of offence he acted as a panch witness. However, in the same paragraph (para 54) the Hon'ble Supreme Court has observed that the Court is conscious of the position in law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.
43. In "Ramanand" the Hon'ble Supreme Court has held as under:
53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden.
Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating 21 Acquittal Appeal No. 09 of 2006 officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW-2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth."
44. PW14 who is the first investigating officer deposed in the Court that after the arrest he took the statement of Raju Podwal and seized the crime weapon which was concealed inside the room in a house jointly taken on rent by Raju Podwal and Mohan Gupta at Chayanagar. PW14 has further stated that Raju took him to the place where the crime weapon and one live cartridge put into plastic bags were concealed by him. Exhibit-9 which is the seizure memo pertaining to the seizure of a fired .315 bore cartridge gives a description of the article. Exhibit-9 also gives complete details of the criminal case, date, time, and place of seizure. The investigating officer has also recorded in column (ii) of Exhibit-9 that on the basis of confessional statement of Raju Podwal and on his pointing the seizure of a fired cartridge is being made from the tiled roof of the house which was rented at Chayanagar. Raju Podwal has not disputed the recovery and preparation of Exhibit 9 and he himself has put his signature in column (vii). Similarly, the recovery memo vide Exhibit-19 records all necessary facts regarding recovery of country-made firearm and PW14 has deposed in the Court on the similar lines. The recovery made at the instance of Mohan Gupta vide Exhibit-10 has also been proved in a similar manner.
45. The relevant portions of the deposition of PW14 are extracted as under:
izfrijh{k.k jfo pkSjfl;k] jktq nkl] v[rj rFkk eksgu xqIrk dh vksj ls 15- eksgu xqIrk iqfyl dLVMh esa pkj fnu rd jgk tc iqfyl fjekaM ij fy;k FkkA eksgu xqIrk dks 01-07-04 dks 12-45 cts fxjQrkj fd;kA 02-09-04 dks 12-15 cts tsy Hkst fn;kA jktq dks 11-10-04 dks fxjQrkj fd;k 12-10-04 dks tsy Hkst fn;kA le; vafdr ugha fd;k gwWaA iqu% dgrs gSa 14 cts Arrest fd;k rFkk 24 ?kaVs ds vUnj tsy Hkst fn;k gwWaA cjken eksVj lkbZfdyt dk vkWuj dkSu Fkk ;g ckr Mk;jh esa ugha fy[kk gS u eSa tkap fd;kA jes'k dq0 oekZ dks xokg ugha cuk;k gwqSaA ns'kh dV~Vk dk tIrh lwph dh ppkZ bl dsl esa gS] tIrh lwph Arms Act ds dsl esa Hkstk gwWaA tIr Material U;k;ky; esa ugha gSa vHkh rd ugha Hkstk gwWaA dV~Vk dks 'khy can fd;k fd ugha] ugha dg ldrk gwWaA 22 Acquittal Appeal No. 09 of 2006 16- Nk;k uxj ds dfFkr edku ekfyd dk irk ugha yxk;kA 164 Cr.P.C. ds vUrxZr Statement Record djkus dk vkosnu eSa dHkh ugha fn;k U;k;ky; esaA ,slh ckr ugha gS fd jktq iksMoky rFkk eksgu xqIrk us dksbZ LohdkjksDrh c;ku gekjs le{k ugha fn;k gSa eksgu xqIrk rFkk jktq iksMoky ftl edku esa jgrs Fks muds edku ekfyd dk irk yxk;k ysfdu ugha irk pykA ,slh ckr ugha gS fd bunksuska ds ikl ls dksbZ dfFkr dV~Vk cjken ugha gqvkA ,slh ckr ugha gS fd ;s yksx Nk;k uxj esa ugh jgrs FksA izfrijh{k.k MkWyh ds rjQ ls 17- ih0jkepUnz jko dk c;ku eSa fy;k FkkA ih0 jkepUnz jko us vius c;ku rFkk QnZ c;ku esa ;g ugha dgk Fkk fd ns[kk cgw MkWyh rFkk iksrk eksfgr ogka [kM+s FksA 18- xokg jkuh (PW-5) us vius c;ku esa ugh dgk Fkk fd nhnh ¼MkWyh½ dks HkS;k ekjrs ihVrs FksA ;g Hkh ugha dgh Fkh fd ?kVuk ds fnu eafnj lkQ djus vk;h FkhA 19- xokg eksfgr (PW-8) us gekjs le{k vius c;ku esa ugh dgk fd eEeh ikik dks vLirky ugha tkus ns jgh FkhA ;g Hkh ugha dgk Fkk fd ^^eEeh NksVdk dks cksyh Fkh fd dke gks x;k gS** ,slh ckr ugha gS fd eksfgr dk c;ku eSa ugh fy;k FkkA 20- lj;q izlkn] pkSgnh ds fuoklh] dks xokg ugha cuk;k gwWaA vthr dqekj flag dks xokg ugha cuk;k gwWa (CS) esaA fjyka;al dEiuh ds fdlh inkf/kdkjh dk c;ku eSa ugh fy;kA Insurance Agent dks xokg ugha cuk;k gwWaA Joint Account Passbook dks lR;Rrk tkap ds fy, fdlh cSad inkf/kdkjh dks xokg ugha cuk;kA Credit Society ds fdlh inkf/kdkjh dks xokg ugha cuk;k gwWaA ,slh ckr ugha gS fd =`fViq.kZ vuqla/kku fd;k gwWaA izfrijh{k.k NksVdk ds rjQ ls 21- bl dsl ds igys Hkh vuqla/kku eSa fd;k gwAa Mk;jh esa 19-06-2004 dks izkr% 9 cts QnZ c;ku fy;k x;kA rFkk Mk;jh fy[kuk dk le; vafdr ugha gSA Mk;jh dk ;g iUuk esjs fy[kkoV esa gSa bls izn'kZ& "A" vafdr fd;k x;k (On Admission) 22- izn'kZ&8 Formal FIR ds dafMdk 3 esa Fkkuk nSfudh izo`f"V dk dksbZ UkEcj ugha gS le;
izkFkfedh ua0 11-30 cts gS fy[kkA dkaM la[;k Hkh 11-30 cts fy[kkA Mk;jh ds izFke i`"B esa dkaM la[;k ntZ fd;k gwWaA dafMdk 7 Mk;jh esa fy[kk gwWa fd Fkkuk ls izLFkku fd;kA 8-50 ctsA bl ?kVuk dk izR;{kn'khZ (Eye Witness) iq"iyrk] eksfgr rFkk jkuh gSA TIP eSa ugh djok;k vfHk;qDr dk bu lkf{k;kss lsA ,slh ckr ugha gS fd =`fViq.kZ vuqla/kku dj funksZ"k O;fDr;ksa ds fo:) vkjksi i= lefiZr fd;k gwWaA English translation:
Cross-examination on behalf of Raju Paudwal, Akhtar and Mohan Gupta
15. Mohan Gupta remained in police custody till 4 days. He was not taken on police remand. Mohan Gupta was arrested on 01.07.2004 at 12.45 and sent to jail on 02.07.2004 at 12.15. Raju was arrested on 11.10.2004 and sent to jail on 12.10.2004. I have not mentioned the time. He further states that he was arrested at 14 hrs and sent to jail within 24 hours. It is not mentioned in the diary as to who was the owner of the motorcycle nor did I investigate the same.
I have not made Ramesh Kumar Verma a witness. The county-made pistol is mentioned in the seizure list of this case. I have sent the said seizure list in a case related to Arms Act. The seized materials are not available in the court. I have not sent it till now. I am unable to tell as to whether the pistol was sealed or not.
16. I did not investigate about the owner of the so called house situated at Chhayanagar. I have never submitted application for recording statement u/s 164 of Cr. P.C. in the court. It is not a matter of fact that Raju Paudwal and Mohan Gupta have not given any confessional statement before me. I tried to know about the house owner in which Mohan Gupta and Raju Paudwal resided but I could not find the same. It is not a matter of fact that no such pistol was recovered from their possession. It is not a matter of fact that they were not residing in Chhayanagar.
Cross-examination on behalf of Dolly
17. I had recorded the statement of P. Ram Chandra Rao. P. Ram Chandra Rao had not stated in his statement and fardbeyan that he saw his daughter-in- law Dolly and grandson Mohit standing there.
18. Witness Rani (P.W. No. 5) had not stated in her statement that Bhaiya used to beat Didi (Dolly). She had also not stated that she had come to clean the temple on the day of incident.
19. Witness Mohit (P.W. No. 8) had not stated in his statement before me that 23 Acquittal Appeal No. 09 of 2006 mummy was not allowing to take Papa to the hospital. He had also not stated that "Mummy told Chhotka that the work is finished". It is not a matter of fact that I had not recorded the statement of Mohit.
20. I have not made Saryu Prasad, a resident of next house as a witness. I have not made Ajit Kumar Singh a witness in C.S. I did not record statement of any Officer of Reliance Company. I have not made any Insurance agent as a witness. I have not made any Bank Officer a witness for verification of veracity of Joint Account Pass-book. I have not made any Officer of Credit Society a witness. It is not a matter of fact that I have done faulty investigation.
Cross-examination on behalf of Chhotka
21. I have done investigation before this case too. Fardbeyan was copied in the case diary on 19.06.2004 at 9:00 O'clock in the morning. I have not mentioned the time of writing case diary. This page of case diary is in my handwriting. It is marked as Exhibit-'A' (on admission).
22. Station Diary Entry number has not been mentioned at para-3 of Exhibit- 8, which is the formal FIR. I have mentioned the time of FIR as 11:30. I got case number at 11:30. I have mentioned case number on the first page of case diary. In Para-87 of the case diary, I have mentioned that I proceeded from the police station at 8:50 O'clock. Pushplata, Mohit and Rani are eye witnesses of this case. T.I.P. of the accused by those witnesses was not conducted. It is not a matter of fact that I have done faulty investigation and submitted Charge-sheet against the innocent persons.
46. This is a law settled by the Hon'ble Supreme Court in "Bodhraj alias Bodha v. State of J&K" (2002) 8 SCC 45 that confession of the accused need not be reduced in writing. Now in the face of aforementioned evidence tendered by PW14 this is quite evident that the prosecution has used only that part of the confession of Raju Podwal and Mohan Gupta wherein they have informed PW14 that they can show the place where the incriminating articles were concealed by them. The aforementioned piece of information about the place where the crime weapon, live and empty cartridges and other incriminating articles were concealed came for the first time to the knowledge of PW14 on the disclosures made by Raju Podwal and Mohan Gupta and they have indicated in their confessional statements that they themselves concealed those incriminating articles.
47. "Pulukuri Kottaya" puts to rest and lays down in uncertain words that the knowledge about the place would also come within the sweep of the expression fact discovered. Raju Podwal and Mohan Gupta when they were produced in the Court after their arrest did not make any complaint regarding ill- treatment by the police. They have also not made a complaint that their confessional statements were extracted by coercion or use of force. At no point in time, Raju Podwal and Mohan Gupta retracted their confessional statements and the investigating officer was also not put to searching questions regarding the confessional statements of these accused persons.
48. The factum of the seizures vide Exhibit-9, Exhibit-10 and Exhibit-19 24 Acquittal Appeal No. 09 of 2006 has been challenged on the ground that seizure witnesses were not produced in the Court, who alone could have vouched for recoveries made on 19 th June 2004, 11th October 2004 and 18th October 2004. Section 27 of the Evidence Act incorporates the theory of confirmation that is to say truthfulness of the statement made by the accused is confirmed by the recovery of the incriminating materials. The seizure witnesses were not produced in the Court but the evidence of the investigating officer who prepared the contemporaneous documents in the form of seizure memo is sufficient to prove recoveries made at the instance of Raju Podwal and Mohan Gupta. "R. v. McCay" (1990) 1 WLR 645 : (1991) 1 All ER 232 (CA) is a case where the witness who had identified the accused before the police could not identify him in the Court. The Court found the statement of the investigating officer whose act was contemporaneous to identification of the accused by the witness sufficient to hold identification of the accused proved. The investigating officer was not challenged on the point of recovery and just to remember that the Hon'ble Supreme Court has observed that it is an archaic notion that actions of the police officers should be approached with initial distrust [refer, "State (Govt. of NCT of Delhi) v. Sunil" (2001) 1 SCC 652].
49. As many as six witnesses turned hostile and did not support the prosecution in so far as the complicity of the accused persons is concerned. PW1 Rajesh Razak, PW2 Sanjay Kumar Srivastava, PW3 Ram Pyare Thakur, and PW4 Amit Kumar Baria are neighbors of Joni who while deposing in the Court flatly denied any knowledge about the occurrence and consequently were declared hostile at the instance of the prosecution. Mrs. Vandana Bharti, the learned APP has referred to "Bhajju v. State of M.P" (2012) 4 SCC 327 to submit that the evidence tendered by a hostile witness is not altogether useless and a part thereof which supports the prosecution can be used against the accused.
50. This is really not uncommon in criminal trials in India that on account of pressure from relatives or neighbors, a witness when comes to the Court resiles from his previous statement made before the police. This situation has been recently taken note of by the Hon'ble Supreme Court in "Jayantilal Verma v. State of Madhya Pradesh (Now Chhattisgarh)" (2021) 12 SCC 71 wherein the Hon'ble Supreme Court has observed as under:
"20. It is no doubt true that a large number of witnesses turned hostile and the trial court was also not happy with the manner of prosecution conducted in this case. But that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to 25 Acquittal Appeal No. 09 of 2006 examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused."
51. Section 154 of the Indian Evidence Act provides that the Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. In "Dahyabhai Chhaganbhai Thakkar v. State of Gujarat" AIR 1964 SC 1563 the Hon'ble Supreme Court observed that section 154 of the Indian Evidence Act is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. It was further held that section 154 confers a discretionary power on the Court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. For long, the judicial opinion was divided as to what value should be attached to the evidence of a witness who did not support the case of the party calling him in the Court. The law on the subject was finally settled by a judgment of the Full Bench of Calcutta High Court in "Praphulla Kumar Sarkar v. Emperor" AIR 1931 Cal 401.
52. Rankin, C.J. has written in his opinion (at p. 1428-30 of the report):
"In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is 'cross-examined' to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say."
53. However, in the testimony of PW1, PW2, PW3 and PW4, there is very little which can be used by the prosecution against the accused persons except for their statements to the effect that between 08:30-09:00 AM on 19th June 2004 unknown assailant shot at Joni and he was taken to hospital.
54. On behalf of Ravi Chourasia, Sushil Kumar Jha, Satpal Singh and Md. Akhtar, it is vehemently argued that except for the confessional statement of Raju Podwal and Mohan Gupta there is nothing incriminating against them to establish their involvement in the crime. We accept this submission because there is really no evidence worth cognizance; there is not even a whisper by the prosecution witnesses against them and; no recovery has been affected at their instance and, accordingly, Acquittal Appeal No.09 of 2006 is dismissed qua Ravi Chourasia, Sushil Kumar Jha, Satpal Singh, and Md. Akhtar.
26 Acquittal Appeal No. 09 of 2006
55. This is a case of passion killing in which several persons joined to play their own part. Whether or not the prosecution has proved role played by each one is a different issue and acquittal of one or more accused shall have no bearing on the hatching of a criminal conspiracy to eliminate Joni, if the basic facts are established by the prosecution. The essential ingredients of a criminal conspiracy as envisaged under section 120-B of the Indian Penal Code are delineated in "Damodar v. State of Rajasthan" (2004) 12 SCC 336 to include (i) an agreement between two or more persons (ii) the agreement must relate to doing or causing to be done either (a) an illegal act, and (b) an act which is not illegal in itself but is done by illegal means.
56. In "Damodar" the Hon'ble Supreme Court has observed as under:
"15. ... The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not (sic) sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or a series of acts, he would be held guilty under Section 120-B of the Penal Code, 1860."
57. A criminal conspiracy which is generally hatched in secrecy involves doing of a criminal act by two or more persons. This is well-settled that all conspirators need not take active part in the commission of each and every act which was necessary to accomplish the unlawful act to be done. This is also no more in the realm of any doubt that it is not necessary that each conspirator must know all the details of the scheme and shall participate at every stage. All that is required is that the circumstances in a case when taken together on face value should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act that is not illegal by illegal means.
"State v. Nalini" (1999) 5 SCC 253 explains that when men enter into an agreement for an unlawful end, they become adhoc agents for one another and make a partnership in crime. We are of the view that the trial Judge has read the prosecution evidence in a fractured manner and came to a wrong conclusion. Whereas, the prosecution has proved criminal conspiracy between Chhotka, Dolly, 27 Acquittal Appeal No. 09 of 2006 Raju Podwal and Mohan Gupta.
58. This is the law long settled by the Hon'ble Supreme Court that the sweep of section 30 of the Evidence Act cannot be extended to provide an opportunity to the prosecution to lay its case only on the basis of the confession of co-accused.
59. In "Haricharan Kurmi v. State of Bihar" AIR 1964 SC 1184 the Hon'ble Supreme Court has observed as under:
"12........It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way. Because whatever is considered by the Court is evidence; circumstances which are consider by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind. App 147 (AIR 1949 PC 257) has been cited with approval."
60. However, there is sufficient evidence, independent evidence, on the complicity of Chhotka, Dolly, Raju Podwal and Mohan Gupta in the crime. The prosecution has established (i) love relations between Chhotka and Dolly (ii) motive for the crime (iii) Dolly's reluctance to take her husband to hospital (iv) Dolly whispering to Chhotka that work has been accomplished (Muskurate hue chhotka ko boli kaam ho gya) and (v) criminal conspiracy to kill Joni. Besides their confessional statements, Raju Podwal and Mohan Gupta have failed to offer any explanation to the recoveries made at their instance and their identity as the perpetrators of the crime is also established. Against Chhotka and Dolly, one of the circumstances proved is their love relations and that was the motive behind the occurrence. Now this has to be kept in mind that in a case based on circumstantial evidence motive provides an important link in the chain of circumstances [refer, "Surinder Pal Jain v. Delhi Administration" (1993) Supp.(3) SCC 681]. The recoveries of incriminating articles made pursuant to disclosure statements of Raju Podwal and Mohan Gupta are usable by the prosecution and, 28 Acquittal Appeal No. 09 of 2006 of course, a part of their confessional statements which is covered by section 27 of the Evidence Act shall be used against them by the prosecution.
61. However, no explanation is coming forth from these accused to the aforementioned incriminating circumstances. Section 313 of the Code of Criminal Procedure puts a corresponding duty on the accused to furnish some explanation to the incriminating materials produced against him. If an accused remains silent and does not offer an explanation in his examination under section 313 of the Code of Criminal Procedure, the same would become an additional incriminating material against him. In "Munish Mubar v. State of Haryana" (2012) 10 SCC 464 the Hon'ble Supreme Court has held that it is obligatory on the part of the accused when he is examined under section 313 to furnish some explanation with respect to the incriminating circumstances associated with him.
62. On a careful examination of the materials on record, we come to a conclusion that the trial judge applied wrong test to appreciate the prosecution evidence. Once the trial Judge held that the love relations of Chhotka and Dolly is proved and the recoveries made at the instance of Raju Podwal and Mohan Gupta are also established, the other prosecution evidence was required to be seen in that context. In our opinion, the prosecution has proved the charge of criminal conspiracy under section 120-B of the Indian Penal Code and also the charge under section 302/120-B of the Indian Penal Code against Chhotka, Dolly, Raju Podwal and Mohan Gupta. Accordingly, Shiv Narayan Yadav @ Chhotka, P. Chhanda Rao @ Dolly, Raju Podwal @ Raju Das and Mohan Gupta are convicted under sections 302/120-B and 120-B of the Indian Penal Code and sentenced to imprisonment for life on both counts separately but both the sentences shall run concurrently.
63. Acquittal Appeal No.09 of 2006 is partly allowed, in the above terms.
64. Let the lower Court records be transmitted to the Court concerned, forthwith.
65. Let a copy of the Judgment be transmitted to the Court concerned.
(Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Mukul AFR