Gauhati High Court
Md. Akibul Ali vs ) The State Of Assam on 19 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 562
Author: H.K. Sarma
Bench: Suman Shyam, Hitesh Kumar Sarma
Page No.# 1/13
GAHC010238952018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No. 395/2018
Md. Akibul Ali
S/o Md. Nazimuddin
R/o Vill- No. 1 Tupamari
P.O. Tupamari, P.S. Nagarbera,
Dist. Kamrup (R), Assam, 781127
..................Appellant
VERSUS
1) The State of Assam
2) Md. Ataur Rahman
S/0 Lt. Noimuddin Minchi
R/o Vill- No. 1 Tupamari,
PO. Tupamari, P.S. Nagarbera,
Dist. Kamrup(R), Assam, 781127
....................Respondents
For the appellant : Mr. A. Paramanik, Advocate
For the state respondent No. 1 : Mr. R.J. Baruah, Additional Public Prosecutor
For the respondent No. 2 : Mr. M.A. Sheikh, Advocate
Date of hearing : 28.01.2020
Date of judgment : 19th February, 2020.
Page No.# 2/13
BEFORE
HON'BLE MR JUSTICE suman shyam
HON'BLE MR JUSTICE HITESH KUMAR SARMA
JUDGMENT AND ORDER (CAV)
(H.K. Sarma, J.)
This appeal is directed against the judgment and order, dated 16.08.2018, passed by the learned Sessions Judge, Kamrup, Amingaon, in Sessions Case No. 12/2014 (old No. 190/2010), convicting the accused-appellant and sentencing him to imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment of fine, further rigorous imprisonment for 1 (one) month for the offence punishable under Section 302 IPC
2) The prosecution case, as unfolded during the trial, is that on 06.09.2009 (Sunday), the deceased Fazlul Haque, elder brother of the informant (PW1) had his dinner in the house of PW1. In the next morning, the informant/PW1 came to know from Basiran Nessa (PW10) that her husband/deceased did not return home the previous night. While they were searching for deceased Fazlul Haque, one Jaynal Uddin informed the PW1, on 10.09.2009 (Thursday), that he had seen a dead body in a ditch under the jute stacks which was kept soaked for the purpose of retting. Then, accompanied by his brothers and other villagers he went to the place and identified the dead body to be that of his elder brother Fazlul Haque. The deceased was called out from his house at about 8-9 pm on 07.09.2009 by the accused-appellant Akibul Hussain, Fulchan Ali, Rajesh Harijan and Sahjahan Ali and from that day he was missing. After detecting the dead body, PW1 informed the police about the occurrence. PW1 (informant) suspected the aforesaid four persons to have killed his elder brother/deceased.
3) On receipt of the FIR on the above facts, the in-charge of Tupamari police outpost forwarded the same to the Nagarbera Police Station. The Nagarbera Police Station registered a case, being Case No. 35/2009 under Sections 302/201 IPC, and its officer-in-charge had taken up the investigation of the case. On the other hand, the in-charge of Tupamari police outpost received information about the detection of a dead body in the E&D Drain at No. 1 Tupamari from one Majibur Rahman prior to the above FIR. This information was entered by the in-charge of the said police outpost in the General Diary vide G.D. Entry 122 dated 10.09.2009 and informed the matter to the officer-in-charge of Nagarbera Police Station. The in-charge of the said police outpost, examined as PW17, did the Page No.# 3/13 preliminary investigation of the case on the basis of the aforesaid General Diary Entry. He caused the inquest as well as got postmortem of the dead body done, prepared the sketch map and also examined 9 (nine) witnesses, and thereafter, handed over the case diary to the officer-in-charge of the police station. During the preliminary investigation, PW17 also seized some materials vide Ext.2. PW16, another investigating officer, also seized certain materials, vide Ext.4. After completion of the investigation, the investigating officer laid charge-sheet against the accused persons, namely, Akibul Ali and Fulchan under Sections 302/201 IPC.
4) After exhausting all required legal formalities, charge against the accused persons, namely, Akibul Ali and Fulchan was framed under Sections 302/34 of the IPC. The accused pleaded innocence to the charge and therefore the trial commenced. In their statements, under Section 313 Cr.PC, the accused-appellant and his co-accused Fulchan (who has been acquitted) claimed to be innocent.
5) In this case, the prosecution examined as many as 17 (seventeen) witnesses during the trial whereas the defence examined none.
6) After conclusion of the trial, the learned trial court acquitted the accused Fulchan and convicted the accused-appellant as indicated above.
7) We have perused the record of the learned trial court, evidence of the witnesses and the impugned judgment. We have also heard Mr. A. Paramanik, learned counsel for the appellant, Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam, for the state respondent No. 1 and Mr. M.A. Sheikh, learned counsel representing the informant.
8) It appears from the impugned judgment that the learned trial court had convicted the accused- appellant on the basis of circumstantial evidence applying the "last seen together" theory, extra judicial confession allegedly made by the accused-appellant and also the statement of the accused- appellant allegedly made before police leading to discovery of the weapon of offence. Evidently, there is no eyewitness to the occurrence.
9) The evidence of PW6, who is the Professor & Head of Forensic Medicine, GMCH, is that the post-mortem examination of the dead body was performed by Dr. K.C. Das, Associate Professor, Department of Forensic Medicine of GMCH. The findings recorded in the post-mortem examination are as follows.
"A decomposed, male dead body, dressed with one lungi. Eyes-protruded. Tongue- protruded. Penis/scrotum- swollen. Epidermis - is pulled off at places. Wounds:
Contusion presented the scalp over the occipital bone, sixe- 10cm. x 5cm.
Page No.# 4/13 Haemorrhage present inside the layers of the scalp. No ligature mark detected around neck. Skull/vertebrae-heathly.
Membrane- congested.
Brain and spinal cord- partially liquefied. Clotted- blood is found mixed with the brain matter. Spinal cord- not examined.
Liver- congested.
Spleen- healthy.
Kidneys- both congested.
Bladder- congested/empty.
Organs of generation, extema and internal- all heathly. Peritoneum- congested.
Mouth, pharynx, esophagus- congested. Stomach and its contents- congested. Contains water mixed with sand and mud particles.
Small intestine and its contents- congested. Contains digested food materials and gas. Large intestine and its contents- contains focus and gas. Walls, ribs and cartilages- walls decomposed. Ribs and cartilages- healthy. Pleurae- congested.
Larynx and treachere- Mucosa decomposed. Sand and mud particles present on the puossuges.
Right lung and Left lung- both lungs are oedemalus and voluminous. Pericardium- healthy.
Heart- healthy/empty.
Vessels- healthy.
Disease or deformity- not detected. Fracture- not detected.
Dislocation- not detected."
10) In the opinion of autopsy doctor, death was due to Asphyxia as a result of ante-mortem drowning. Injury was ante-mortem and caused by blunt force impact. Time since death 48 to 72 hours. So it is clear that the cause of death is due to Asphyxia. From the medical opinion, it is found that the death of the deceased was due to asphyxia resulting from ante-mortem drowning. There are injuries on the body of the deceased but the same were not found to be the cause of death. Apart from the above medical evidence, there is no other evidence as to the cause of death. Therefore, on such materials, it cannot be held with certainty that the death of the deceased was homicidal in nature.
11) We propose to discuss the evidence relevant to each of the circumstances upon which the Page No.# 5/13 judgment of the learned trial court is based.
Last seen together theory.
12 The learned trial court has recorded in paragraph-49 of the impugned judgment as regards the last seen together theory. Paragraph-49 is reproduced below for convenience of discussion.
"............
49. In the present case, both the accused were seen together with the deceased on the fateful night when the deceased became untraced from the house and his dead body was recovered thereafter by the family members and the villagers. The whole sequence does not justify the possibility of any person other than the Akibul Ali as the author of the crime. As such the last seen theory is also found corroborative towards the extra-judicial confession made by the accused Akibul Ali.
......................"
13) PW1, Md. Atowar Rahman (informant), has specifically stated in the FIR that at about 11:00 pm on 06.09.2009, his elder brother (deceased) had dinner with them. Next morning, he came to know from the wife of the deceased that the deceased did not return home in the previous night. After search, dead body of his deceased elder brother was found at about 6:00 am on 10.09.2009 under the water of a pond. The dead body was seen there by Jaynal Uddin who also informed the PW1/informant. This FIR was lodged on 10.09.2009 after recovery of the dead body. However, as against this specific statement as regards the date on which the deceased went missing, the evidence of the PW1, on oath, is that the deceased was called out of his house at about 8-9 pm on 07.09.2009 by accused-appellant Akibul Hussain, co-accused Fulchan Ali (already acquitted), Rajesh Harijan and Sahjahan and since then, he was missing. He then verbally informed the Tupamari police outpost. On being asked, he stated to the police that he suspected the aforesaid four persons and one Abdul Rashid. Thereafter, police arrested the accused-appellant Akibul, co-accused Fulchan and Rajesh Harijan with the help of public. It has come out from his cross-examination that till 11:00 pm on 06.09.2009 the deceased was with him and he went missing only on 07.09.2009. The FIR was written as per his version by his nephew Sahjahan Islam and he had signed there although he deposed that the statement to the effect that the deceased had dinner with him on 06.09.2009 at about 11:00 pm is not a correct statement. But, as deposed, the statement that following morning the wife of the deceased (PW10) informed them that the deceased did not return home at night was wrongly written Page No.# 6/13 in the FIR. He has admitted in his cross-examination that he did not mention the name of accused Fulchan to be one of the persons who had called his deceased brother out of his house. In his cross- examination, he has also stated that he did not make any statement before the police as to whom he suspected and he had no personal knowledge as to who had killed his elder brother. In his cross- examination, he has further categorically stated that he did not see the five persons mentioned in his examination-in-chief calling his deceased elder brother away from his house.
14) So, the evidence of PW1 does not reveal that he was aware that the accused-appellant and four others had called out his deceased elder brother from his house on 06.09.2009 or on 07.09.2009.
15) PW2, Akbar Ali, in his examination-in-chief, deposed to the effect that the co-accused Fulchan told the people that he was with the deceased at the embankment with Rajesh and Akibul and he left that place leaving the deceased, and Rajesh and returned to his home. But, in his cross-examination, he is heard saying that he did not state before the police that at around 11:00 pm in that night, the deceased was with co-accused Fulchan and accused-appellant Akibul. He has further stated in his cross-examination that the police did not ask him about the occurrence and he also did not say anything to the police. Such evidence of PW2 does not appear to have indicated that the accused- appellant along with others were seen with the deceased at the relevant point of time on the alleged date of occurrence.
16) PW4, Rajab Ali, deposed that the co-accused Fulchan told before the villagers that he had seen the deceased with the accused-appellant Akibul on the day he went missing. From his evidence, it has not come out that the accused-appellant was seen last with the deceased. We have noticed in this case that PW2 & PW4 had referred to the statement made by the co-accused Fulchan that he (Fulchan) was with the accused-appellant along with 2 others. The basis of the statement of PW2 & PW4 is such statement of the co-accused Fulchan. But, Fulchan being not a witness in this case and was an accused only, the prosecution failed to corroborate such evidence, and therefore, such evidence remains hearsay.
17) PW5, Aynal Haque Dayal, also deposed similarly like that of PW2 & PW4 that Fulchan told to the villagers that accused-appellant had killed the deceased. But, he has not deposed that the accused-appellant was last seen together with the deceased.
18) As per statement made in the FIR, PW10, Basiran Nessa, had informed the PW1 that her husband was missing. In her evidence-in-chief she stated that at about 10:00/11:00 pm on a day in the month of Ramjan, Sahjahan, Fulchan, Akibul, Rajesh, and Rashid called her husband away. Every day they go together and come back and therefore she did not suspect anything. But, on that day, Page No.# 7/13 the deceased did not come back and the dead body of her husband was found under the jute belonging to one Jaynal. She informed this to her brother-in-law i.e. PW1. In her cross-examination, she stated that her husband was missing since Monday night and refused to admit that her husband was missing since Sunday night. She has also admitted that she did not go out of her house to see as to who had called her husband but she could recognized the voice. In her cross-examination, she has further stated that she did not know who had called her husband. Therefore, PW10, wife of the deceased, also has not established in her evidence the fact that it was the accused-appellant who had called her husband out just before the occurrence and that she had last seen both of them together.
19) The Hon'ble Supreme Court in Shyamal Ghosh (supra) held that application of the "last seen theory" requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. The Hon'ble Supreme Court in Shyamal Ghosh (supra) had re-iterated the settled law that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and thus, the former, was responsible for commission of the offence. The purpose of applying these principle, while keeping the time factor in mind, is to enable the court to examine that where the time of last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus would be on him to explain how the death occurred.
20) Having regard to the evidence of PW1, PW2, PW4, PW5 & PW10, it does not appear to this court that anyone of them had seen the accused-appellant with the deceased immediately before the alleged occurrence. On the other hand, whether the deceased was missing w.e.f. 06.09.2009 or 07.09.2009 the fact remains that his dead body was recovered in the morning of 10.09.2009 which is more than 48 hours after he went missing. As indicated above, the evidence of PW1, PW2, PW4, PW5 & PW10 has not established the last seen together theory. Thus, in this case since the time gap between the point of time when the accused-appellant and the deceased was last seen alive and when the deceased is found dead is considerably large, i.e. more than 48 hours, the possibility of any person other than the accused being the author of the crime cannot be ruled out. Therefore, the Page No.# 8/13 reliance placed on Shyamal Ghosh (supra) by the learned trial court is not found to be justified in view of the on evidence available on record.
Extra-judicial confession.
21) The PW2, Akbar Ali, deposed in his examination-in-chief that while people asked Fulchan (co- accused), he replied that in the night of occurrence the deceased was with him on the embankment along with Rajesh. He left the place for home leaving the deceased, accused-appellant and Rajesh. While the public enquired from the accused-appellant Akibul, in his presence, the accused-appellant confessed before the public and the police that he had killed the deceased. But, in his cross- examination, he is found to have stated that he went to the police station when the dead body was being taken to the police station and he remained there for 10-15 minutes. He has also not deposed to suggest as to at what time he was at the police station as to when and how the alleged confession was made before the police by the accused-appellant. But, he deposed that he went to the police station when police removed the dead body from the place of occurrence. We have examined the case diary, as provided in Section 172(2) Cr.PC, and found that the dead body was removed from the place of occurrence at about 6:45 am. But, the evidence of PW4 shows that the dead body had reached the police station at about 1:00 pm. Therefore, if the evidence of PW2 is believed then he was in the police station for 10-15 minutes after 1:00 pm. If the alleged confession was made at about 12:00/12:30 pm, then it could not have been made in his presence and hearing. Therefore, his evidence that in his presence the accused-appellant had made the alleged confession before the police in the police station is not reliable.
22) On the other hand, the investigating officers, PW16 & PW17, are not found to have deposed that the accused-appellant had made the alleged confessional statement in the police station in presence of this witness or any other public. In the absence of any evidence of the investigating officers that the alleged extra-judicial confession was made before the police, in presence of public, the evidence of any of the witnesses cannot be taken to be trustworthy. The evidence of PW3 is a piece of hearsay evidence in the absence of corroboration.
23) PW2, PW4, PW5 & PW7 also deposed in their evidence that the co-accused Fulchan told them that the accused-appellant had killed the deceased and prior to the occurrence he was with the accused-appellant. Such statement of co-accused Fulchan, allegedly made before the said witnesses, being exculpatory and implicating the accused-appellant only, same cannot at all be acted upon in view of the provision of Section 30 of the Indian Evidence Act. Therefore, the evidence of PW2, PW4, PW5 and PW7, on this count, has no relevance with the accusation.
Page No.# 9/13
24) Again, in the case of Wakil Nayak v. State of Bihar, reported in (1971) 3 SCC 778, the Hon'ble Supreme Court held that before the court acts on extra judicial confession the circumstances under which the confession is made, the manner in which it is made, the persons to whom it is made will be considered along with two rules of caution. First, whether the evidence of confession is reliable, and secondly, whether it finds corroboration.
25) As discussed above, we have found that the alleged extra judicial confession made before the police or before the public has not been proved by the prosecution in the absence of corroboration and glaring inconsistencies in the evidence of the PW2, PW4, PW5 & PW7. The evidence of the witnesses, referred to above, clearly shows that the appellant admitted to have committed the crime while he was searched out and apprehended by the public. Therefore, the alleged confession, even if made, does not appear to be voluntary and reliable.
Leading to discovery
26) In the case of Pulukuri Kottayya vs King-Emperor reported in AIR 1947 PC 67, the Privy Council held that Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly, it can be safely allowed to be given in evidence; but clearly, the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.
27) PW1 deposed in his cross-examination that the accused-appellant had confessed before the police as well as public that he had killed the deceased assaulting him with a bamboo and he kept the dead body concealed under a stack of jute and the accused-appellant had showed to police the lathi lying nearby and it was the same lathi with which he had killed the deceased and police recovered the said lathi. On perusal of the Ext.4 it is found that following articles were seized on being showed by the accused-appellant which was lying near the place of occurrence, in presence of three witnesses namely, Hatem Ali Ahmed, Aynal Hoque Dayal and Akbar Ali.
Page No.# 10/13 "A bamboo pole (dry), measuring about 4 cubits and having 6 knots. The bamboo pole is found split from the third knot till the fifth one. Towards the lower end, half portion of it is found pointed."
But, this PW1 is not found to be a witness to the seizure of the said bamboo, vide Ext. 4. According to PW1, the accused-appellant had also disclosed that he had concealed the dead body of the deceased under a stack of jute. In his cross-examination, he had categorically stated that the accused-appellant Akibul had produced the bamboo lathi. He also stated in his cross-examination that the bamboo was found lying about 50 feet away from the dead body and that the bamboo was about 5 ½/6 feet long. He also deposed that the bamboo lathi might have been used earlier for the purpose of retting of jute. Such evidence of PW1 makes it appear that once he said that the bamboo pole seized vide Ext. 4 was seized on being shown by the accused-appellant but in his cross- examination, he deposed that it was produced by the accused-appellant. The evidence that the accused-appellant produced the alleged weapon of offence himself that it was not the discovery by the investigating officer following the disclosure made by the accused-appellant. His further evidence that the weapon of offence, seized vide Ext. 4, was lying about 50 feet away from the place of occurrence means that it was not near the dead body.
28) The PW5, Aynal Hoque Dayal, in his examination-in-chief, deposed that when asked by the villagers, the accused-appellant confessed that he had killed the deceased. His further evidence is that this fact was stated by the accused-appellant in the police station and before the villagers. This witness has also stated that when the officer-in-charge of the police station asked him about the weapon he used in the crime, he replied that he had killed the deceased assaulting him by a bamboo and showed the bamboo to police which was seized, vide Ext. 4. He also deposed that when the villagers searched for the accused-appellant he was not found in his house but was found in his grandfather's place. But, in his cross-examination, he deposed that he did not tell the villagers that the accused-appellant was found in his grandfather's place and he was not there when accused- appellant was apprehended by the public. He also deposed that when police seized the bamboo it was lying about 8/9 feet away from the dead body. He went to the place of occurrence along with the police and picked up the bamboo which was later on seized by the police. Such evidence of PW5 does not tally with the evidence of PW1 in respect of the distance of the place of recovery of the bamboo lathi from the place of occurrence although PW5 is one of the witness to the seizure, vide Ext. 4. That apart, his evidence that he had picked up the bamboo lathi means that it was not produced by the accused. The PW1 although is not made a witness to the seizure vide Ext. 4 yet his presence at the time of seizure is a fact not disputed.
Page No.# 11/13
29) PW16, investigating officer, deposed that he had made the seizure vide, Ext. 4, on being shown by the accused-appellant. But, it appears from the materials on record that the other two seizure witnesses of the Ext. 4, apart from Aynal Hoque Dayal (PW5), although examined by the prosecution but no effort was made to prove the seizure of the weapon of offence through them which was necessary in view of the inconsistent evidence brought on record in respect of place of recovery of the weapon of offence. The other witnesses to the seizure, vide Ext. 4, are Akbar Ali (PW2) & Hatem Ali Ahmed (PW3). They are not found to have whispered about the seizure of weapon of offence, vide Ext. 4, in their presence. Therefore, PW2 & PW3, who are the witnesses to the seizure, are not supporting the prosecution case in respect of the seizure of weapon of offence. The evidence of the PW5 is to the effect that the weapon of offence was recovered following disclosure by the accused- appellant that he had killed the deceased by the same and shown it to the officer-in-charge of the police station. But, the PW16, who had seized the weapon of offence, deposed that the seizure was made on being shown by the accused-appellant. The PW16 has not stated at all that the accused- appellant had made any disclosure statement. The evidence of the PW5 has not even been corroborated by the PW16. If no disclosure statement is made before the police then there is no question of application of Section 27 of the Indian Evidence Act with respect to the recovery/seizure of the alleged weapon of offence, vide Ext. 4. There is no other evidence as regards seizure of the weapon of offence. In view of such evidence and in the absence of corroboration by PW2 & PW3 and contradiction in the evidence of PW1 & PW5, this court is not inclined to believe that the alleged weapon of offence was recovered on being shown/produced by the accused-appellant.
30) Mr. M.A. Sheikh, learned counsel for the informant, has submitted that the weapon of offence was recovered by the investigating officer following a disclosure made in the alleged confessional statement by the accused-appellant to the effect that he had committed murder of the deceased with the said weapon of offence. Therefore, according to Mr. Sheikh, since the weapon of offence was discovered following the disclosure made by the accused-appellant, Section 27 of the Indian Evidence Act is attracted to rope in the accused-appellant with the commission of the alleged offence. In support of his such argument, he has referred to the decisions of Hon'ble Supreme Court in the case of Mehboob Ali & Another Vs State of Rajasthan reported in (2016) 14 SCC 640 particularly paragraph 13, 14, 15, 16 & 17 thereof and Pankaj Vs State of Rajasthan reported in (2016) 16 SCC 192, particularly, paragraph 23 thereof.
31) Mehboob Ali (supra), referring to various precedents, held in paragraph 13, that for application of Section 27 of the Indian Evidence Act, admissible portion of confessional statement has to be found as to a fact which were the immediate cause of the discovery, Page No.# 12/13 only that would be part of legal evidence and not the rest. In a statement if something new is discovered or recovered from the accused which was not in the knowledge of the Police before disclosure statement of the accused is recorded, is admissible in the evidence.
32) In paragraphs 16 & 17 of Mehboob Ali (supra), the Hon'ble Supreme Court has referred to various decisions and has reiterated the principles applicable with regard to Section 27 of the Indian Evidence Act. Paragraph 15 deals with the fact of the case that on the basis of the statement of co- accused there were discovery of facts and also arrest of co-accused which are said to be admissible.
33) As per Mehboob Ali (supra), there should be a fact discovered on the basis of a confession made by the accused-appellant while in police custody. In the case at hand, we have already found that there is no such confession made before the police leading to discovery of any fact and even the investigating officers have not stated in their evidence that the accused-appellant had made confessional statement following which he had discovered any fact i.e. the discovery of the alleged weapon of offence.
34) On the other hand, paragraph 23 of the decision of the Hon'ble Supreme Court rendered in Pankaj (supra) reads as follows.
".......................
23. An objection was raised by learned senior counsel for the appellant- accused that recovery of fire arm at the instance of appellant-accused was planted by the police and it could not have been relied upon. This Court, in a number of cases, has held that the evidence of circumstance simplicitor that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.
................"
35) Paragraph 23 of Pankaj (supra) is not at all applicable in the facts of the present case as we have not found any evidence that the weapon of offence was recovered at the instance of the accused-appellant. At the cost of repetition, we would like to mention here that in the instant case, no confessional statement was made by the accused-appellant while in police custody. Therefore, he Page No.# 13/13 cannot be connected with the weapon of offence allegedly seized vide Ext. 4. Therefore, both the aforesaid decisions relied, upon by Mr. Sheikh, are not applicable in the facts of the instant case.
36) In view of the above, this is a case where the accused-appellant deserves to be extended the benefit of doubt, and accordingly, the accused-appellant is acquitted on benefit of doubt and is set at liberty forthwith.
37) The appeal is, accordingly, allowed.
38) The accused-appellant, if in judicial custody, be released forthwith.
39) The Registry to issue release order immediately.
40) Send down the LCR along with a copy of this judgment.
JUDGE JUDGE
Comparing Assistant