Rajib Dutta vs The State Of Assam on 26 August, 2016

[Cites 38, Cited by 0]

Gauhati High Court

Rajib Dutta vs The State Of Assam on 26 August, 2016

HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE N. CHAUDHURY Advocate for the appellant : Mr. AK Bhattacharyya, Sr. Advocate Mr. P Katakey, Advocate Advocate for the Respondent: Ms. S Jahan, Additional Public Prosecutor, Assam Date of hearing : 18.08.2016 Date of Judgment : 26.08.2016 JUDGMENT & ORDER (CAV ) (N. Chaudhury, J) Appellant herein has challenged his conviction and sentence under Section 302 of the IPC read with Section 25(1)(B) and 27 of the Arms Act, 1959 vide judgment and order dated 15.11.2013 passed by learned Sessions Page 1 of 35 Criminal Appeal No. 359/2013 Judge, Jorhat in Sessions Case No. 25(JJ) of 2006. Three persons including the present appellant were charged under the aforesaid sections of law in the same Sessions case but the other two were discharged by the High Court in a revision petition preferred by them and thus only the appellant herein was tried as sole accused person and ultimately he has been found guilty of all the charges.

2. The prosecution story is that one Smti. Sunita Bora, as informant, lodged an FIR with Officer In-charge, Jorhat Police Station on 29.11.2003 at 5 P.M. informing that at around 4.30 P.M. of the previous day, her husband Pinku Bora went out to Rajabari Club, Jorhat on being invited by accused Rajib Dutta for holding a discussion in connection with their ongoing business. She claimed to have been informed by her husband that, Rajib Dutta had invited him over telephone to meet at him in Club between 8 P.M. to 8.30 P.M. to have a discussion with him and he made an entry in his diary to that effect. Pinku Bora first went to Jorhat Bus Terminus at 4.30 P.M. for supervising his contract work. He informed his wife while going out that he would visit Rajabari Club at around 9 P.M. to honour the invitation of Rajib Dutta. But at around 1 O'clock at night, police came from Jorhat Police Station to inform that someone had killed her husband in front of Rajabari Club. She missed no time to go to the place of occurrence and found her husband lying dead and came to know that Rajib Dutta had fled from the place of occurrence after killing her husband. She subsequently heard that other members of the Club including one Thanking Lama were present at the Page 2 of 35 Criminal Appeal No. 359/2013 time of occurrence. She saw a red jeep (ASJ-8012) belonging to Thanking Lama in front of Rajabari Club. She believed that Rajib Dutta in collusion with others killed her husband for business rivalry. However, she also informed that one Mukti Deka, a SULFA man had enmity with her husband and his involvement was likely because of business issues. On the basis of this ejahar Jorhat P.S. Case No. 443/2003 under sections 302/34 of the IPC was registered. However, it is to be mentioned that before receipt of this ejahar, Jorhat Police had already registered General Diary Entry No. 1117 dated 28.11.2003 at 11.15 P.M. on the basis of a telephonic information given by I. Ali, Sub Inspector of Police who was on duty along with B.S.F men near Lahoti petrol pump that there was a firing incident at Rajabari Club. Upon registration of the general diary entry, night mobile vehicles No. 1 and 2 were directed to visit the place of occurrence. Mr. M. Ahmed, the Officer In-charge of the police station himself visited the place of occurrence along with the staff.

3. Police broke open the lock of the Club and found marks of violence, pool of blood, three fired bullets etc. inside the Club room. The dead body was found near the railway crossing in front of the Club. Police took the dead body to Jorhat Civil Hospital, seized one revolver case with belt, one ammunition case with 13 rounds of ammunitions, one registration certificate of Gypsy vehicle bearing registration No. AS-03A/6955, one gold like chain, one pencil torch black in colour and one rainbow notebook. The aforesaid Gypsy was also seized. Police recorded statements of witnesses. Accused Page 3 of 35 Criminal Appeal No. 359/2013 Rajib Dutta was arrested on 30.11.2013 who led police to the place to the west of the Rajabari Club wherefrom one Webley revolver having serial No. 35235 was recovered from under bush in presence of one Sandeep Roy and one Shankar Roy. In course of post mortem examination of the dead body one pellet was found in the dead body of the deceased and the same along with blood-stained wearing apparels were seized by police on being handed over by Dr. Amrit Kumar Saikia. Having received the post mortem report, the ballistic report and having recorded the statements of witnesses, police submitted charge sheet against accused Rajib Dutta, Dipak Dutta and Dadu Sarmah under section 302 of the IPC vide charge sheet No. 193/2005 on 13.09.2005. The learned Sub-Divisional Judicial Magistrate (Sadar) at Jorhat by his order dated 31.03.2006 in G.R. Case No. 992/2003 committed the case to Sessions and thereupon Sessions Case No. 25(JJ)/2006 was registered.

4. The learned Sessions Judge framed charges under section 302 of IPC along with sections 25(1)(B)/27(1) of the Arms Act, 1959 against accused Rajib Dutta and under sections 302/109 IPC against Dipak Dutta and Dadu Sarmah. Accused Dipak Dutta and Dadu Sarmah approached High Court challenging the order dated 16.05.2006 framing charge against them and ultimately their prayer was allowed and they were discharged. The trial was accordingly held against Rajib Dutta as sole accused.

5. In course of trial, prosecution examined as many as 18 witnesses and exhibited 21 documents. The learned Sessions Judge examined the accused person under section 313 of the Code of Criminal Procedure and by his Page 4 of 35 Criminal Appeal No. 359/2013 judgment and order dated 15.11.2013 convicted the appellant/accused person under section 302 IPC along with section 25(1)(B)/27(1) of the Arms Act, 1959. Having heard him on sentence, the learned Sessions Judge sentenced him to undergo Rigorous Imprisonment for life and also to pay a fine of Rs. 50,000/- further directing that amount so deposited would be paid to the informant Sunita Bora. The accused was sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 5,000/- on default to suffer further rigorous imprisonment for 3 months more under section 25(1B) of the Arms Act and also to suffer 3 years' rigorous imprisonment and to pay a fine of Rs. 5,000/- on default to suffer further rigorous imprisonment for 3 months more under section 27(1) of the Arms Act, 1959. All these sentences are directed to run concurrently. This judgment of conviction and sentence has been called in question in the present appeal.

6. We have heard Mr. AK Bhattacharyya, learned senior Advocate assisted by Mr. P Katakey, learned Advocate for the appellant and Ms. S Jahan, learned Additional Public Prosecutor. Ms Jahan has submitted a written submission in addition to her argument which we have perused along with the lower court records and the case diary produced by her.

7. Mr. AK Bhattacharyya, learned senior counsel, vehemently argued that there is no eye witness in the case and the conviction has been made basically on so called leading to discovery under section 27 of the Evidence Act which according to him is illegal as the statement of the accused person recorded for the purpose was after the actual discovery was made and thus it Page 5 of 35 Criminal Appeal No. 359/2013 cannot be said that there was any leading to discovery whatsoever. He further argued that the Exbt. 1 FIR was received at 5 P.M. on 29.11.2003 whereas investigation had already started on the previous night after recording general diary entry No. 1117 on the basis of telephonic information given by I. Ali, Sub Inspector of Police. The subsequent written ejahar, therefore, is hit by section 162 Cr.P.C. According to him, the informant did not focus on the accused alone. She categorically named one Mukti Dutta, a SULFA activist along with other members of Rajabari Club but police failed to hold any investigation on such clue but confined all attention on the appellant alone. The appellant was not owner of the weapon used in the offence. Police made no endeavour to ascertain the ownership of the weapon. Police failed to prove that Exbt. D bullet was either recovered from the dead body of the deceased or that the same was fired from the seized revolver. Even there is contradiction as to whether the weapon used was a pistol or a revolver. The ballistic expert could not say with certitude that the striations and riffling marks on Exbt. D and the test fired bullets were same. The ballistic report is that the striations are similar and not same. The conviction made by the learned Sessions Judge, therefore, is not tenable as there are reasonable doubts as to involvement of the accused person in the case. Drawing attention of the court to Exbt. 7 seizure list, the learned senior counsel highlighted that one revolver bearing No. 35235 loaded with two rounds of ammunition was seized at around 11.30 P.M. on 30.11.2003 from a place to the west of Rajabari Club. On the other hand, Exbt. 14, the statement of Page 6 of 35 Criminal Appeal No. 359/2013 Rajib Dutta under section 161 Cr.P.C. was recorded on 01.12.2003. This shows that discovery of the revolver was made one day before the statement of the accused was recorded and so there was no leading to discovery at all. Both the two circumstances, therefore, being not established the impugned conviction and sentence are liable to be set aside and quashed. Mr. Bhattacharyya placed reliance on the following judgments in support of his argument:-

1. H.N. Rishbud and another v. the State of Delhi AIR 1955 SC 196

2. State of M.P. v. Mubarak Ali AIR 1959 SC 707

3. Sarwan Singh Ratan Singh v. State of Punjab AIR 1957 SC 637

4. Nachhattar Singh and others v. State of Punjab (1976) 1 SCC 750

5. State of Gujrat v. Adam Fateh Mohmed Umatiya and others (1971) 3 SCC 208

6. Kartarey and others v. the State of U.P. (1976) 1 SCC 172

7. Iswar Singh v. the State of U.P. (1976) 4 SCC 355

8. Raghunandan v. The State of U.P. (1974) 4 SCC 186

9. Mohmed Inayatulaah v. The State of Maharastra (1976) 1 SCC 828

10. Mustkeem alias Sirajuddin v. State of Rajasthan (2011) 11 SCC 724

11. Sk. Yusuf v. State of West Bengal (2011) 11 SCC 754

12. Anter Singh v. State of Rajasthan (2004) 10 SCC 657

13. Wakkar and another v. State of Uttar Pradesh (2011) 3 SCC 306

14. Vijay Kumar v. State of Rajasthan (2014) 3 SCC 412

15. Nilesh Dinkar Paradkar v. State of Maharastra (2011) 4 SCC 143

16. Kora Ghasi v. State of Orissa (1983) 2 SCC 251

17. State of M.P. v. Ghudan (2003) 12 SCC 485

18. State of A.P. v. S. Appa Rao (2001) 10 SCC 648

8. Ms. S Jahan, learned Additional Public Prosecutor, argued that the ingredients of section 27 of the Evidence Act have been duly established in the present case. By producing case diary in original at the time of argument, she pointed out that the appellant was arrested on 30.11.2003 at 6 P.M. He was interrogated and his statements were recorded at 9 P.M. which is available at page 154 of the Paper Book prepared by the High Court. He stated before police as follows:-

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"Before boarding my car, I threw the revolver to the bush below the sign board of the Excise Office behind the Club."

"............I shall be able to show the police the place where I had thrown the pistol."

According to her, this is the disclosure statement basing on which the Investigating Officer and others proceeded towards the place at 11.05 P.M. At 11.10 P.M., the Investigating Officer and others examined Sandeep Roy (PW

5) and along with him reached the place wherefrom discovery was made at 11.30 P.M. from the bush. Exbt. 7 is the discovery note wherein the witnesses including PW 5 put their signature. The seized revolver was taken over by the Investigating Officer and kept the same in his safe custody. The recording of date of statement at the foot of Exbt. 14 was an inadvertent mistake which the PW 17 (Investigating Officer) clarified during his re-examination. The uncontroverted deposition of PW 17 on re-examination if compared with the relevant entries made in the case diary, it would be clear that the accused made disclosure to police at 9 P.M. His statement was recorded again at 11.10 P.M. along with that of Sandeep Roy and thus discovery of revolver was ultimately made at 11.30 P.M. in presence of the witnesses. Depositions as to erroneous recording of date at the foot of Exbt. 14 is supported by the entries in the case diary which has been produced in original and so no room is left for doubt as to the validity of discovery on being led by the accused. To buttress her argument as to validity of re-examination, she has placed reliance on the following judgments of the Hon'ble Supreme Court:-

1. Inspector of Police, Tamil Nadu v. Bala Prasanna (2008) 11 SCC 645

2. Rammi @ Rameshwar v. State of M.P. (1999) 8 SCC 649 Page 8 of 35 Criminal Appeal No. 359/2013 She further argues that Webley revolver No. 35235 was seized vide Exbt. 7 from the west side of Rajabari Club. PW 5 before being declared hostile deposed that police called him near the Club and obtained his signature on Exbt. 7. This exhibit reveals discovery of revolver bearing No. 35235. The Investigating Officer specifically deposed that the revolver was recovered from a bush situated at the west of Rajabari Club which is not an open space. It could not be viewed by public since there were bushes around.

The sketch map Exbt. 16 was prepared on 28.11.2003 to show place of occurrence and not the place of recovery. It was pointed out in the sketch map that Office of Central Excise stands to the west of the place of occurrence. The Exbt. 7, therefore, is neither in contradiction with Exbt. 14 disclosure note nor is it at variance with Exbt. 16 sketch map. According to her, Exbt. 7, Exbt. 14, Exbt. 16, the endorsement in the case diary and depositions of PW 17 on re-examination finally established beyond reasonable doubt that discovery of the revolver bearing No. 35235 was made on being shown by the accused himself in presence of witnesses and so section 27 of the Evidence Act has been duly complied with.

9. Coming to the question of ballistic report she argues that there is a malkhana in Jorhat Police Station in terms of Rule 63 of Part IV of the Assam Police Manual. The offending revolver was kept in safe custody in this malkhana till 24.12.2003 after its discovery. It would appear from the deposition of PW 17 that the arms and the ammunitions were sent to Page 9 of 35 Criminal Appeal No. 359/2013 Forensic Science Laboratory on 24.12.2003 vide memo No. Crime/2003/7832. They were first sent to Finger Print Expert Bureau on 24.12.2003 for finger print examination. The finger print expert returned them on 13.03.2004 stating that no finger print could be detected. Thereafter these arms and ammunitions were sent for forensic examination by another memo being memo No. Crime/2004/3460 and received by the Forensic Science Laboratory on 02.04.2004. The Scientific Officer submitted forensic examination report (Exbt. 12) on 30.06.2004. The report (Exbt. 12) shows that the arms and the ammunitions were received by the Forensic Science Laboratory vide memo No. JHT/Exhibit/Crime/04/3460 dated 30.03.2004 and thus there is no confusion whatsoever.

10. According to her, Exbt. A Webley revolver No. 35235 is the same which was seized by Exbt. 7 on 30.11.2003. The number of the revolver and the brand confirms it. The Exbt. 12 shows that it is a serviceable 0.38 bore revolver which is a firearm. Exbts. B1, B2, B3 and B4 are the four fired cartridge cases seized by Exbt. 3 and Exbt. 12 reveals that these cartridge cases are from the same revolver. Exbts. C1, C2 and C3 are the fired bullets seized from the place of occurrence vide Exbt. 3. Exbt. D is the fired bullet recovered from the body of the deceased and it was seized vide Exbt. 8. Exbt. 12 shows that Exbt. D was fired from the same revolver. Thus, it is proved beyond reasonable doubt that Exbt. D bullet was pumped into the body of the deceased from Exbt. A Webley revolver No. 35235 which, on the other hand, was discovered on being shown by the deceased under section Page 10 of 35 Criminal Appeal No. 359/2013 27 of the Evidence Act. Apart from that, there are other circumstances connecting the accused with the crime. First, PW 1 deposed to have received call from the accused 8/8.30 a.m. and she gave the receiver to her husband whereupon deceased was invited by the accused to Rajabari Club. The deceased went out at 4.30 P.M. saying that he would go to Rajabari Club at night. Secondly, the dead body was found near Rajabari Club on the night of occurrence. Thirdly, death was homicidal in nature caused by bullet injury and fourthly, the explanation given by the accused under section 313 Cr.P.C. of leaving the Club at 8.30 P.M. was found to be false as he and others were there in the Club till 10 P.M. According to Ms. Jahan, all these circumstances unerringly point towards the guilt of the accused without leaving any scope of doubt and so the conviction and sentences are not liable to be interfered with. She submits that the appeal merits dismissal.

11. Having heard the learned counsel for the parties and on perusal of the materials available before us, we find that there are three basic questions which need be answered in this case:-

i) Whether prosecution story of leading to discovery of Webley revolver No. 35235 vide Exbt. 7 has been proved within the meaning of Section 27 of the Evidence Act?

ii) Whether the Exbt. A Webley revolver No. 35235 has been used to commit murder of the deceased?

iii) What are the circumstances proved against the accused to connect him with the commission of offence?

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12. Let us take up the first question for consideration. Prosecution relied on the seizure list Exbt. 7 along with statement of the accused recorded under section 161 Cr.P.C. vide Exbt. 14. Exbt. 14 runs over four pages. However, the relevant part of this statement required for the purpose of section 27 of the Evidence Act are the following:-

"Before boarding my car, I threw the revolver to the bush below the sign board of the Excise Office behind the Club."

".........I shall be able to show the police the place where I had thrown the pistol."

This is because other statements made in Exbt. 14 are nothing but confessions to Police officers. Section 25 of the Evidence Act provides that no confession made to police officer shall be proved as against a person accused of any offence. It is inadmissible in evidence and cannot be brought on record by the prosecution. Similarly, section 26 of the Evidence Act places another embargo by providing that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The exclusion of statements before police officer under section 161 Cr.P.C. is the general rule of evidence. The only exception is available in Section 27 which goes as below:-

"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."

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13. The first authoritative interpretation of section 27 of the Evidence Act by the Privy Council in the case of Pulukuri Kottaya and others v. Emperor (AIR 1947 PC 67). Sir John Beaumont writing the judgment for the bench comprising of Hon'ble four Judges held that section 27 is an exception to the prohibition imposed by the preceding sections and it enables such a statement made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from an accused in police custody must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. Paragraph 10 of this judgment is instructive:-

"10. 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 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 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. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the Page 13 of 35 Criminal Appeal No. 359/2013 commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate-distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

14. Aforesaid judgment of the Privy Council has been followed by the Hon'ble Supreme Court in several subsequent judgments. In the case of Mohmed Inayatullah v. State of Maharastra reported in (1976) 1 SCC 828, the Hon'ble Supreme Court summarized the aforesaid law in paragraph 12, 13 and 15 and the same are quoted below for ready reference:-

"12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the Page 14 of 35 Criminal Appeal No. 359/2013 first condition necessary for bringing this section in to operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", indubitably" "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.

13. At one time it was held that the expression "fact discovered"

in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Crown: AIR 1929 Lah 344; Rex v. Ganee: AIR 1932 Bom 286. Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this see Pulukuri Kottaya v. Emperor : AIR 1947 PC 67; Udai Bhan v. State of Uttar Pradesh AIR 1962 SC 1116."

15. Having cleared the ground, we will now consider in the light of the principles clarified above, the application of Section 27 to this statement of the accused. The first step in the process was to pinpoint the fact discovered In consequence of this statement. Obviously, in the present case, the threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the Musafirkhana. Crawford Market, wherein they lay deposited and (c) the accused's knowledge of such deposit. The next step would be to split up the statement into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Thus processed, in the instant Page 15 of 35 Criminal Appeal No. 359/2013 case, only the first part of the statement, viz., "I will tell the place of deposit of the three Chemical drums" was the immediate and direct cause of the fact discovered: therefore, this portion only was admissible under Section 27. The rest of the statement, namely, "which I took out from the Haji Bunder on fast August", constituted only the past history of the drums or their theft by the accused; it was not the distinct and proximate cause of the discovery and had to be ruled out of evidence altogether."

15. In the case of Anter Singh v. State of Rajasthan reported in (2004) 10 SCC 657, the Hon'ble Supreme Court once again considered the law laid down by the Privy Council in the case of Pulukuri Kottaya (supra) and summarized at paragraph 14, 15 and 16 as follows:-

"14. The expression "provided that" together with the phrase "whether it amounts to a confession or not" show that the section is in the nature of an exception to the preceding provisions particularly Section 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably".

The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohd. Inayattullah v. State of Maharashtra : (1976) 1 SCC 828 ).

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15. At one time it was held that the expression "fact discovered"

in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottava's case (supra) and in Udai Bhan v. State of Uttar Pradesh :

AIR1962SC1116 .

16. The various requirements of the Section can be summed up as follows:

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.

(4) The persons giving the information must be accused of any offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."

In the case of Inspector of Police, Tamil Nadu v. Bala Prasanna reported in (2008) 11 SCC 645, the Hon'ble Supreme Court has reiterated the same law by quoting the earlier judgments including Anter Singh (supra).

16. In view of the aforesaid judgments of the Hon'ble Supreme Court, we are required to see as to whether these conditions precedents are satisfied on Page 17 of 35 Criminal Appeal No. 359/2013 the basis of the evidence available on record. There is no doubt that on the face of the prosecution story, discovery of Webley revolver bearing No. 35235 is relevant to the issue. It is the case of the prosecution that the accused killed deceased Pinku Bora and then threw the revolver in the bush near Rajabari Club. According to prosecution, discovery has been made on disclosure of information by the accused. The question arises as to when was the disclosure made and as to when has the discovery made. PW 17 being Investigating Officer in this case deposed on oath that accused Rajib Dutta informed him about committing murder and thereafter throwing out the arm at the nearby bush of the place of occurrence and further disclosed that he can show the place where he had thrown the arms. He actually led them to the place where the arms were thrown and as per his leading to discovery statement, one revolver bearing No. 35235 loaded with two rounds of ammunitions were seized vide Exbt. 7. Exbt. 14 is the relevant part of the statement made by the accused to him basing on which the discovery was made. Exbt. 14 is the statement of the accused, the relevant part of which has been quoted above. A perusal of Exbt. 14 shows that it was recorded on 01.12.2003 whereas Exbt. 7 the seizure memo of revolver bearing No. 35235 shows that seizure was made on 30.11.2003 at 11.30 P.M. from west side of Rajabari Club. Mr. AK Bhattacharyya, learned senior counsel, arguing for the appellant submits that discovery was made before the information disclosed by the accused and so such fact leading to discovery is not saved by Section 27 of the Evidence Act.

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17. Countering this argument, Ms. S Jahan submits that this anomaly came to the notice of the prosecution at trial stage and thereupon the PW 17 was re-examined to eliminate the confusion. Re-examination was permitted by the learned trial court by order dated 15.12.2012 under section 138 of the Evidence Act. In course of his re-examination, PW 17 stated on oath, that vide Entry No. 23 of his case diary the accused was arrested at around 6 P.M. on 30.11.2003. As per case diary entry No. 28 dated 30.11.2003 the accused was interrogated at 9 P.M. at the police station. As per case diary he confessed that he shoot the victim by snatching the arms of the victim and thereafter he unloaded it and threw it near the signboard. He further stated that he could lead the police where he had thrown the arms. Upon such disclosure he made efforts to proceed to the place of occurrence. Entry No. 29 of the case diary recorded at 11.05 P.M. on 30.11.2003 discloses that he along with staff and accused Rajib Dutta proceeded to Rajabari Club for recovering the arms on the lead of the accused. Entry No. 30 of the case diary was recorded at 11.10 P.M. on 30.11.2003 showing that the party along with Rajib Dutta arrived at Rajabari Club where two other persons, namely, Sandeep Roy and Shankar Roy arrived enquiring as to what had happened there. In presence of these two persons, Rajib Dutta repeated his confession and thereafter took the police party to the place where arms were thrown. PW 17 recovered the Webley revolver bearing No. 35235 loaded with two rounds of ammunitions on being shown by the accused and thereupon Exbt. 7 seizure list was prepared wherein aforesaid Sandeep Roy and Shankar Roy Page 19 of 35 Criminal Appeal No. 359/2013 signed as witnesses. A simultaneous entry was made in the case diary vide No. 31 at 11.30 P.M. of 30.11.2003. Vide entry No. 33 of the case diary recorded at 11.55 P.M. of the same night police returned to police station along with Rajib Dutta and kept the revolver in safe custody. Exbt. 14 was recorded actually at 9 P.M. on 30.11.2003 as his clear from entry No. 28 of the case diary. But mistakenly date as 01.12.2003 was put in the statement whereas the statement was recorded at 9 P.M. on 30.11.2003. In course of his cross examination after his re-examination he denied the suggestion given to him that the statement was not recorded on 30.11.2003.

18. Re-examination of PW 17 was permitted by the learned Sessions Judge on the prayer of the prosecution. In the case of Rammi @ Rameshwar v. State of M.P. reported in (1999) 8 SCC 649, the Hon'ble Supreme Court held that very purpose of re-examination is to explain matters which have been brought down in cross examination. However, there is an erroneous impression that re-examination should be confined to clarification of ambiguities brought down in cross examination only which is incorrect in law. No doubt, ambiguities can be resolved through re-examination but that is not the only function of re-examination. If the party who called the witness feels that explanation is required for any matter referred to in cross examination, he has the liberty to put any question in re-examination to get explanation. If the Public Prosecutor feels that certain answers required more elucidation from the witness, he has the freedom and the right to put such question to the witness as it deems necessary for the purpose, subject, however, to the Page 20 of 35 Criminal Appeal No. 359/2013 control of the court in accordance with other provisions. But the court cannot confine his questions to ambiguities alone brought out by way of cross examination. Be that as it may, permission by the court to re-examine PW 17 was never challenged by the defence. Rather, defence thoroughly cross examined the PW 17 after re-examination and so no prejudice can be said to have been caused to the defence thereby. Considering the re-examination and the corresponding cross examination, the case diary which is a privileged document duly maintained by the police in discharge of its day to day functioning comes to the support of the prosecution. The entries regularly made in the document in course of day to day functioning of the police station cannot be brushed aside. If a view is taken on entire consideration of the re-examination, further cross examination on re-examination and the case diary, it is believable that the discovery of Webley revolver No. 35235 was made by police on being led by the accused. Consequently, it is held that prosecution succeeded to establish all the ingredients of section 27 of the Evidence Act. The learned trial court has not committed any error in finding that the revolver was recovered from the bush to the west of the Rajabari Club on being shown by the accused while in police custody. The confession made by the accused while in police custody is obviously not admissible in evidence but the fact disclosed by him leading to discovery is relevant and the same has been proved. The first question is accordingly answered.

19. The second question is in regard to the Webley revolver No. 35235. The Investigating Officer examining himself as PW 17 deposed that the arms Page 21 of 35 Criminal Appeal No. 359/2013 and the ammunitions were sent to the Forensic Science Laboratory on 24.12.2003 vide memo No. Crime/2003/7832. According to him, after discovery and seizure of the aforesaid revolver loaded with two rounds of ammunitions on 30.11.2003 at 11.30 P.M., he proceeded to Jorhat Police Station along with the accused and thereafter kept the same in safe custody till 24.12.2003. It was kept in the malkhana under the safe custody of the PW

17. The arms and the ammunitions were initially sent for finger print examination to the Finger Print Expert Bureau on 24.12.2003 and finger print expert returned the same on 13.03.2004 stating, inter alia, that no finger print could be detected. The returned arms and ammunitions were then kept in safe custody again till 30.03.2004 whereafter it was sent to Forensic Science Laboratory vide memo No. Crime/2004/3460 and the Forensic Science Laboratory. The Forensic Science Laboratory received the parcel on 02.04.2004 and submitted report on 30.06.2004 after conducting the analysis. According to Mr. Bhattacharyya, the PW 17 deposed on oath in course of examination-in-chief that the arms and the ammunitions were sent to Forensic Science Laboratory, Guwahati vide memo No. Crime/2003/7832 dated 24.12.2003 and memo No. Crime/2003/7831 dated 24.12.2003 whereas Exbt. 12 report given by Forensic Science Laboratory shows that it was in respect of wooden box/ parcel sent vide memo No. JHT/Exhibit/Crime/04/3460 dated 30.03.2004 and so Exbt. 12 report is not the report in respect of the arms and ammunitions sent by PW 17 to the Forensic Science Laboratory and it must be about some other case. Ms. S Page 22 of 35 Criminal Appeal No. 359/2013 Jahan by producing the case diary showed that by memo No. Crime/2003/7832 dated 24.12.2003 and memo No. Crime/2003/7831 dated 24.12.2003 were actually sent to Finger Print Expert Bureau wherefrom it was returned on 13.03.2004. These parcels remained in safe custody/ malkhana till 30.03.2004 vide Exbt. 12 and 13. By Exbt. 12 arms and ammunitions were sent to the Forensic Science Laboratory. The Investigating Officer did not make any mention of the memo number of sending parcels to Forensic Science Laboratory in course of examination-in-chief. On the face of prolonged cross examination, he pointed out that the arms and ammunitions were sent on 24.12.2003 to the Forensic Science Laboratory although on that date the same were sent to Finger Print Expert Bureau and not to Forensic Science Laboratory. This was a slip of tongue of the Investigating Officer as he replied to the cross examination on 26.11.2012 on the basis of Exbt. 12 and Exbt. 13 as these parcels were sent nearly 8/9 years prior to the date of cross examination. It was natural that the Investigating Officer had to place reliance on the documents placed on record while giving answer to a pointed question. Exbt. 12 and Exbt. 13 undoubtedly show that the parcels were sent to the Forensic Science Laboratory on 30.03.2004. Ms. S Jahan, learned Additional Public Prosecutor, relying on the case diary replied that on 24.12.2003, these parcels were sent to Finger Print Expert Bureau and not to Forensic Science Laboratory. To decide the correctness of such submission, we have carefully gone through the deposition of PW 15, Manoranjan Talukdar who is the Scientific Officer of Forensic Science Laboratory, Page 23 of 35 Criminal Appeal No. 359/2013 Guwahati. He deposed on 06.08.2012 saying that he received one parcel on 02.04.2004 in connection with Jorhat P.S. Case No. 443/2003 under section 302/34 IPC read with section 25(1)(a)/27 of the Arms Act and he forwarded the same for report. It contained the following items:-

1. One Webley revolver No. 35235 marked as Exhibit A.

2. Four numbers of fired cartridge cases marked as Exbt. B1, Exbt.

B2, Exbt. B3 and Exbt. B4.

3. Three numbers of fired bullets marked as Exbt. C1, Exbt. C2 and Exbt. C3.

4. One fired bullet marked as Exbt. D.

5. Thirteen Nos. of cartridges collectively marked as Exbt. E.

6. One cartridge marked as Exbt. F1.

7. One fired cartridge case marked as Exbt. F2.

20. In course of cross examination, no suggestion was made to this witness as to correctness of his statement that the parcel he received on 02.04.2004 was in respect of Jorhat P.S. Case No. 443/2003 under section 302/34 IPC read with section 25(1)(a)/27 of the Arms Act. Thus, it went unrebutted in evidence that two parcels containing, inter alia, the aforesaid 7 items were received by the Scientific Officer of the Forensic Science Laboratory on 02.04.2004 in connection with present case and the report thereof submitted vide Exbt. 12 and Exbt. 13. This unrebutted evidence of PW 15 as to receipt of the parcel containing the arms and the ammunitions in connection with aforesaid police case is in conformity with the explanation given by the learned Additional Public Prosecutor in course of hearing relying on the entries made in the case diary. The argument put forward by the learned senior counsel in regard to identity of the parcels received by Page 24 of 35 Criminal Appeal No. 359/2013 Forensic Science Laboratory in respect whereof Exbt. 12 and Exbt. 13 reports were submitted is based on a mere wrong description given by PW 17 in course of cross examination and such mistake of the Investigating Officer cannot vitiate the prosecution case as to ballistic reports. It is thus established that the Exbt. 12 and Exbt. 13 reports are in respect of Jorhat Police Case No. 443/2003 which is the case in hand.

21. Now it is to be seen as to whether Exbt. 12 report submitted by the Scientific Officer of Forensic Science Laboratory renders any assistance to the prosecution story. PW 15, Manoranjan Talukdar opined in course of his examination-in-chief that Exbt. A is a Webley 0.38 bore serviceable revolver and is a firearm. Exbt. B1, Exbt. B2, Exbt. B3, Exbt. B4 and Exbt. F2 are the fired cartridge case of 0.38 bore revolver. Similarly, Exbts. C1, C2, C3 and D are the fired bullets of 0.38 bore revolver. Exbts. E and F1 are live cartridges of 0.38 bore revolver. He opined that test firings were done by Exbt. A revolver and the firing pin impressions and breach face marks on Exbts. B1, B2, B3, B4 and F2 were fired by Exbt. A. Thereupon it was found on comparison under microscope that the striations/rifling marks on Exbts. C1, C2, C3 and D are similar. His opinion on such observations is as follows:-

"............ Therefore, it can be opined that Exbt. C1, Exbt. C2 and Exbt. D were fired by Exbt. A."

Pointing out to this opinion of PW 15, Mr. AK Bhattacharyya, learned senior counsel for the appellant, vehemently argued that such an opinion is not conclusive. According to him, unless ballistic expert finds the striations/ rifling marks of test fired bullet and offending bullet to be same, it cannot be Page 25 of 35 Criminal Appeal No. 359/2013 said that the offending bullet was fired from the seized firearm. Similarity is of much less accuracy than is expected from a ballistic report. Placing reliance on the case of State of Gujarat v. Adam Fateh Mohmed Umatiya and others reported in (1971) 3 SCC 208, Mr. Bhattacharyya urges that bulge marks on test cartridges and bulge marks on empty cartridges were found to be similar in that reported case but since the ballistic expert did not opine the bulge marks to be same but similar, the Hon'ble Supreme Court held that prosecution could not establish its case that the empty cartridges were fired from the rifle. In paragraph 19 of this judgment, Hon'ble Supreme Court found that the bulge marks on the empty cartridges were of the shape of an eye. The expert witness did not take conclusive photographs of the empty cartridges super imposed by the test cartridges. The photographs which were taken were not taken in the same condition in light. High Court having examined the enlarged photographs did not find the bulge marks to be same. High Court having made comparison arrived at the definite finding that prosecution failed to prove that the empty cartridges or miss fired cartridges or the jacket of the cap of the bullet sent by Police were fired from the rifle. Although, leading to discovery was established in that case yet the High Court was of the opinion that the bulge marks were not same. Consequently, the accused got the benefit of doubt. In the case in hand, there is no photograph and so we did not get any opportunity to compare the bulge marks by ourselves. The fact situation of this reported case, therefore, does not fit in with case in hand.

Page 26 of 35 Criminal Appeal No. 359/2013

22. To counter this argument, the learned Additional Public Prosecutor placed reliance on R.A. Gregory's Scientific Identification of Disputed Documents Fingerprints & Ballistics wherein the author has elaborately dealt with the Principles of Ballistics. When a cartridge is fired from a firearm, the firing pin on the fall of hammer first strikes at the cap of the cartridge. An explosion takes place inside the cartridge resulting in ejection of the bullet at great speed through the barrel. At the same time, the base of the cartridge is pressed back against the breech face and the striker. The face of the breech and nose of the striker when noticed under microscope show many irregularities, such as file marks, rust pits, cavities, indentations etc, which are individual, and characteristic of that particular weapon. The base of the cartridge being pressed into the breech and the nose of the striker, will show all characteristics in reverse which means that it will be a reverse mould of the breech and the striking pin. The author made the following observations at page 114 and 115:-

"............If an empty cartridge case is found at the scene of crime, it can be compared with cartridges fired from the suspected firearm, and if the markings on their bases correspond, it can be definitely stated that the cartridge found at the scene of the crime was fired out of the suspect weapon;............... Such markings are individual to all bullets fired from a particular weapon, so long as the condition of the weapon remains the same. If a bullet is found at the scene of a crime, or inside the victim's body and if it is not too much distorted, markings on it can be compared with markings on bullets fired as test bullets from the suspected firearm. If they tally it can be conclusively proved that the suspect weapon was used in the commission of that crime."

Page 27 of 35 Criminal Appeal No. 359/2013

Pointing out to the aforesaid extracts from the book, Ms. Jahan argued that after firing, a bullet may be distorted or defaced and that is why the celebrated author did not require the striations/ rifling marks of the test fired cartridge and the offending cartridge to be same. What is expected is that the striations on the test fired bullets should generally tally with that of the offending bullet.

23. Here in this case, PW 6, Ranbir Balmiki deposed that he is an employee of Jorhat Civil Hospital. He was on duty in the hospital on 29.11.2003. At around 2 P.M. that night, police went to hospital and Dr. Amrit Kumar Saikia (PW 14) handed over a shirt, a jacket and a bullet to police. Exbt. 8 is the seizure list wherein he put his signature as Exbt. 8(1). PW 11, Khireswar Bora is the Head Assistant Jorhat Medical College and Hospital. He deposed on oath on 29.11.2003 he was on duty on Jorhat Civil Hospital when Investigating Officer seized a fired bullet, a black blood-stained jacket and a shirt on being handed over by Dr. Amrit Kumar Saikia. Exbt. 4 is the seizure list wherein he signed as 4(1). Dr. Amrit Kumar Saikia was examined as PW

14. He found the following injuries on the person of the deceased:-

1. A circular wound with inverted edges is found in the right anterior axillary line approx. 7 cm from Acromion process and about 16 cm to the right from midline, with a diameter of about 0.8 cm surrounded by 0.2 cm radial dimensional abrasion ring. Blood came out from the defect upon manipulation of the body.

2. Bruise over right maxillary region, nasal bridge and upper lip (mostly on right half). A triangular portion of upper incisor tooth is broken.

Page 28 of 35 Criminal Appeal No. 359/2013

24. He opined that cause of death was due to shock and haemorrhage as a result of bullet injury. He further deposed that he performed post mortem over the dead body and extracted a pellet. Exbt. 11 is his report regarding extraction of pellet from the dead body wherein Exbt. 11(1) is his signature.

This report is as follows:-

"List of the P.M. held on the body of Sri Pinku Bora 32 years M/H vide Jorhat P.S. GDE No. 1117 dated 28/11/03 done on 29/11/03.

1. One pellet of the size -

0.2 cm in length 0.9 mm in diameter at the base.

Sd/- illegible (Dr. A.K. Saikia) Senior Medical Officer Jananayak Debeswar Sarmah Civil Hospital, Jorhat"

25. From this deposition of PW 14, it is clear that he extracted a pellet from the dead body of Pinku Bora. The G.D. Entry No. 1117 dated 28.11.2003 is mentioned in Exbt. 11 to show that Material Exbt. 3 pellet was extracted from the dead body of Pinku Bora. In course of his examination-in-chief, PW 14 Dr. Amrit Kumar Saikia identified this fired pellet as Material Exbt. 3 and recognized that it is the pellet which was seized by police from him. In course cross examination, defence suggested that Material Exbt. 3 was not extracted from the dead body of Pinku Bora during post mortem examination, but he stoutly denied the suggestion. The deposition of PW 14 that Material Exbt. 3 was extracted from the dead body of Pinku Bora thus remained unrebutted. Page 29 of 35 Criminal Appeal No. 359/2013

26. This Material Exbt. 3 was sent to Forensic Science Laboratory marking the same as Exbt. D. The Investigating Officer has shown in sketch map (Exbt. 16) that three fired bullets were recovered from the place of occurrence inside Rajabari Club. Exbt. 3 is the seizure list whereby this three fired bullets were seized from inside the Club hall on 29.11.2003 at 00.30 A.M. Apart from that, four empty cases of cartridge suspected to be 0.38 bore, one gold ring with pokhraj stone, one silver ring with mukta (pearl) stone and one small size cotton cap were also recovered. PW 2, Rupjyoti Borah being witness of Exbt. 3 proved seizure of these items from the place of occurrence. Exbt. 4 is the seizure list whereby Investigating Officer seized one revolver case with belt, one ammunition case with 13 rounds of ammunition from the dead body of deceased Pinku Bora. PW 2, Rupjyoti Borah was witness to seizure list Exbt. 4 and thus seizure of one ammunition case with 13 rounds of ammunition and one revolver case with belt from the dead body of Pinku Bora stood proved. The three fired bullets seized from the place of occurrence are described to be Exbts. C1, C2 and C3 sent to Forensic Science Laboratory as deposed by the PW 17. This testimony of PW 17 about sending of the three fired bullets seized vide Exbt. 3 to Forensic Science Laboratory in respect whereof Exbt. 12 report has been submitted by the Scientific Officer of the Forensic Science Laboratory, is not challenged in course of cross examination and thus it went unrebutted in the evidence. Exbt. D the fired bullet seized vide Exbt. 11 from Dr. Amrit Kumar Saikia (PW

14) was also sent to Forensic Science Laboratory and thereupon the Scientific Page 30 of 35 Criminal Appeal No. 359/2013 Officer (PW 15) found that striations/ rifling marks on Exbts. C1, C2, C3 and D were found to be similar with those appearing on Exbts. B1, B2, B3, B4 and F1 fired from Exbt. A Webley revolver No. 35235. Exbts. B1, B2, B3, B4 and F1 were test fired from Exbt. A. It appears that out of 13 live cartridges found in the bullet case from the dead body of Pinku Bora at the place of occurrence, three bullets were used for test firing as Exbts. B1, B2, B3 and B4. According to the learned Additional Public Prosecutor, out of the two live cartridges loaded in the Exbt. A revolver, Exbt. F1 may be test fired. However, there is no cross examination on the identity of Exbts. F1 and F2. What is required to test the veracity of prosecution story is as to whether Exbt. D found from the dead body of Pinku Bora was fired from Exbt. A Webley revolver bearing No. 35235. The PW 15 found the striations available on Exbt. D to be similar to those available on test fired bullets, namely, Exbts. B1, B2, B3, B4 and F1 as well as fired cartridges Exbts. C1, C2 and C3 recovered from the place of occurrence. The learned Sessions Judge upon consideration of these materials held the view that Exbt. D recovered from the dead body of Pinku Bora was fired from Exbt. A Webley revolver. We do not find any reason to differ with such inference of the learned Sessions Judge. The second question referred to above is accordingly answered.

27. Having decided the first two questions involved in this appeal, let us examine as to whether there are other circumstances connecting the accused with the offence committed. PW 1, Sunita Borah is the wife of the deceased. She knows the accused to be business partner of her husband. It appears Page 31 of 35 Criminal Appeal No. 359/2013 although accused was an Assistant Executive Engineer of the ONGC, yet he had business terms with the deceased who is a surrendered ULFA militant. According to PW 1, the accused had telephoned the deceased on the day of occurrence at 8/8.30 A.M. She picked up the telephone and then handed over to her husband. Her husband told her that accused had invited him to Rajabari Club and that he would go at around 9 P.M. On 28.11.2003, when he went out from residence for the last time at around 4.30 P.M. he informed his wife that he would meet the accused at Rajabari Club at around 9 P.M. This testimony of the PW 1 remained unshaken after thorough cross examination. However, accused admitted in course of statement under section 313 Cr.P.C. that deceased Pinku Bora met at him in Rajabari Club at 7 P.M. and the accused returned home at 8.30 P.M. Although the accused gave explanation that he did not stay in Rajabari Club after 8.30 P.M. but PW 4 Sailen Baruah @ Dhan who was declared hostile by the prosecution stated in course of examination-in-chief before being declared hostile that he stayed in the Club till 10 P.M. On being cross examined by the prosecution he stated that when he left. the accused was still there in the Club along with Thanking Lama and others. On the face of such testimony of PW 4, the explanation given by the accused fails. The dead body was found in front of Rajabari Club where the victim went to meet the accused and both of them were there till 10 P.M. as per the version of PW 4. Pinku Bora died because of the bullet injury at around that time and all these circumstances, if considered, along with evidence of leading to discovery under section 27 of the Evidence Act, Page 32 of 35 Criminal Appeal No. 359/2013 the chain of circumstances becomes complete. All these circumstances unerringly point towards the guilt of the accused without leaving any alternative inference.

28. As has been discussed above, it is proved beyond reasonable doubt that deceased Pinku Bora died because of the bullet shot at him by accused Rajib Dutta in Rajabari Club on the date and time of occurrence. Mr. Bhattacharyya, learned senior counsel for the appellant, argued that the prosecution has miserably failed to find out as to who was the owner of Exbt. A Webley revolver bearing No. 35235. It is not the case of the prosecution that Rajib Dutta came with the revolver and shot at deceased Pinku Bora. From the prosecution evidence as discussed above and from the seizure lists exhibited by the prosecution, rather it came to light that there was a belt containing revolver case and 13 rounds of live ammunitions attached to the body of the deceased. Four bullets from these 13 rounds were used for testing from the Exbt. A Webley revolver and it was found Exbt. D bullet which caused death of Pinku Bora was fired from this Exbt. A Webley revolver. This means that Exbt. A Webley revolver was carried by the deceased himself. Even PW 1 Sumita Bora in course of her deposition indicated that her husband used to carry firearm. Thus, on its own showing, the prosecution has put forward a case that the revolver was in possession of the deceased. Otherwise, there was no question of seizing live ammunitions and revolver case attached to the body of the deceased. Even in statement recorded under section 161 Cr.P.C. which is not an admissible piece of Page 33 of 35 Criminal Appeal No. 359/2013 evidence, the accused claimed to have snatched this revolver from the deceased who had brandished at him being in inebriated condition inside Rajabari Club. Though, such statement cannot be proved in view of the provisions of section 25 and 26 of the Evidence Act, but since such an eventuality will be the only inference in view of the proved documents and ocular evidence including seizure report, it is probable that the accused had no intention to kill the deceased when he had arranged meeting with the deceased at Rajabari Club. Section 26 prohibits use of a confession given by a person while in police custody against himself but for using such material to corroborate evidence in favour of the accused, such a prohibition may not operate. Fact remains that prosecution has failed to lead any evidence against the accused to show that the accused had come prepared with the revolver. On the other hand, it is probable that in course of discussions on business issues, the deceased might have sought to kill the accused by the revolver apparently in his possession. In such a situation, the accused must have snatched the revolver from the hand of the deceased and shot at him. Such a view being possible one and since such view is in favour of the accused, we feel inclined to adopt this view. There is no material on record to hold that the accused had any previous plan to commit the murder of the deceased. Rather, it is probable that he became a victim of circumstances pursuant to a sudden quarrel with the deceased. For these reasons, we set aside the conviction and sentence of appellant under section 302 of the IPC and instead convict him under section 304 Part-I of the IPC and sentence him Page 34 of 35 Criminal Appeal No. 359/2013 to Rigorous Imprisonment for 10 years. The sentence of fine is, however, affirmed. The Exbt. A Webley revolver did not belong to the accused and hence even temporary possession or user thereof by him attracts the provision of section 25(1B) and section 27(1) of the Arms Act, 1959. The conviction and sentence under these two sections, therefore, also cannot be interfered with. Consequently, the appeal stands partly allowed with modifications of conviction and sentence as indicated above. It is needless to say that all the sentences shall run concurrently as held by the learned Sessions Judge.

29. Send down the records.

                    JUDGE                              CHIEF JUSTICE
BiswaS




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Criminal Appeal No. 359/2013

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