Prem Nath And Others vs Union Territory Of J&K on 2 June, 2023

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Jammu & Kashmir High Court

Prem Nath And Others vs Union Territory Of J&K on 2 June, 2023

1. The appellants/accused have assailed judgment dated 28.01.2020 passed by the learned Additional Sessions Judge, Udampur (hereinafter to be referred as the trial court) in a case arising out of FIR No. 38/2011 of Police Station, Pancheri, whereby they have been convicted for offences under sections 302, 449, 147, 148, 149 and 120-B RPC and 4/25 Arms Act. Challenge has also been thrown to order dated 03.02.2020 passed by the learned trial court, whereby in proof of offence under section 302 RPC, the appellants have been sentenced to life imprisonment with a fine of Rs. 10,000/ each, in proof of offence under section 449 RPC, appellants have been sentenced to undergo rigorous imprisonment for a period of 10 years with a fine of Rs. 5,000/-, in proof of offence under Section 147 RPC, the appellants have been sentenced to rigorous imprisonment of 03 years, in proof of offence under section 148 RPC, the 2 Crl A(D) No. 4/2020 appellants have been sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 5,000/-, for offence under section 120-B RPC, the appellants have been sentenced to rigorous imprisonment of 5 years with a fine of Rs. 5,000/-, and in proof of offence under section 4/25 Arms Act, appellant No. 5-Guddi has been sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 5000/-. In default of payment of fine, it has been directed that the appellants shall undergo further imprisonment for one year and it has also been directed that all the sentences shall run concurrently. The learned trial court has also made a reference to this Court for confirmation of sentence in terms of section 374 of the Jammu and Kashmir Code of Criminal Procedure.

2. By this common judgment, we propose to decide both the appeal filed by the appellants as well as the reference made by the learned trial court.

3. Briefly stated, the prosecution case is that on 07.09.2011, a telephonic information was received by the Police that some unknown persons had committed the murder of Smt. Krishni Devi W/o Situ and Parkash Singh S/o Chunil Lal both residents of village Sadhota, Tehsil Udhampur. It was further intimated that murder of the deceased was committed during the night intervening 6th/7th of September, 2011 at Village Sadhota with sharp edged weapons. On basis of this information, FIR bearing No. 38/2011 for offence under Section 302 RPC was registered and investigation was set into motion. During the course of investigation, site plan of the place of occurrence was prepared, the dead bodies of the deceased were seized and they were subjected to post-mortem, plain clay and blood stained clay was seized from the place of occurrence, the blood samples, the hair strands and clothes of the deceased were 3 Crl A(D) No. 4/2020 seized and sealed separately. In the post-mortem report of the deceased, it was indicated that both of them have received incised wounds and as per the opinion of the doctors, death of the deceased had been caused due to hemorrhagic shock within 24 hours duration and it was homicidal in nature.

4. The statements of witnesses acquainted with the facts of the case were recorded under Section 161 Cr.P.C. and 164-A CrPC. The accused were arrested on 10.09.2011 and they were subjected to interrogation. On the basis of disclosure statement made by appellant-Prem Nath, a blood stained shirt belonging to appellant-Guddi was recovered. On disclosure statement of appellant-Guddi, a blood stained „Toka‟ was recovered. On disclosure statement of appellant-Krishan Chand, an „Axe‟ was recovered and on disclosure made by appellant-Sita Ram, a „Drahat‟ was recovered. All these weapons were found to be stained with blood.

5. During investigation of the case, chance fingers prints of the appellants on the weapons of offence were obtained by the expert. The recovered articles were separately sealed and the seal was kept upon the supurdnama of PW-15 Jaipaul Sharma, Village Sarpanch. After resealing of the sealed packets by the Executive Magistrate, the recovered articles/finger impression of the accused were sent to Forensic Science Laboratory for chemical examination and reports of the experts viz., PW-20 Shiban Lal Bhat and PW-21 Mool Raj were obtained.

6. After conducting investigation of the case, it was found that deceased Krishani Devi had a daughter Fanjro Devi, who had entered into wedlock with PW Chuni Lal and said Chuni Lal lived as „khana damad‟ in the house of deceased Krishni Devi. After the death of Fanjro Devi, PW Chuni Lal left the 4 Crl A(D) No. 4/2020 house and 5-6 years thereafter, husband of Krishni Devi, Situ also died. Appellant-Prem Nath who happens to be nephew of Situ, performed the last rites of Situ. It was also found that deceased-Krishni Devi took care of her grandson, deceased Parkash Singh, who happened to be the son of her predeceased daughter and she intended to pass on all of her property to her said grandson. It was found that appellant-Prem Nath would repeatedly claim property left behind by Situ from deceased Krishni Devi which led to the dispute between them. It was agreed in the community meeting that deceased-Krishni Devi would give a share of her property to appellant Prem Nath but the same was not acceptable to him as he claimed whole of the property from deceased-Krishni Devi. According to the prosecution case, deceased-Krishni Devi wanted to give whole of her property to her grandson, but the same was not acceptable to appellant-Prem Nath and he laid claim to whole of the property. With this motive and mind, appellant Prem Nath along with appellants Sita Ram, Krishan Chand and Guddi who happen to be his sons and appellant-Babu Ram who happens to be his nephew hatched a criminal conspiracy in furtherance whereof, they, after taking out the deceased persons from their house during the night intervening 6th/7th of September, 2011, committed their murder. The offences under Sections 302, 449, 147, 148, 149 and 120-B RPC and 4/27 Arms Act were found established against the appellants and the challan was laid before the court.

7. Upon presentation of the challan before the trial court, charges for offences under Sections 302, 449, 147, 148, 149 and 120-B RPC were framed against the appellants. Besides this, appellant-Guddi was charged with offence under section 4/25 Arms Act as well. The appellants denied the charges and claimed to be tried. Accordingly, the prosecution was directed to produce 5 Crl A(D) No. 4/2020 evidence in support of its case. During the course of trial of the case, the prosecution has examined as many as 22 witnesses. After completion of the prosecution evidence, the incriminating circumstances appearing in the statements of the prosecution witnesses were put to the appellants and their statements under Section 342 J&K Cr.P.C. were recorded. In their statements, the appellants claimed that they have been implicated in a false case and they also claimed that they had no enmity with the deceased. The appellants denied the disclosure statements attributed to them and also denied the recovery of weapons of offence and other objects pursuant thereto. The appellants have produced two defence witnesses, namely, DWs Khushal Singh and Sita Ram in support of their case.

8. Learned trial court has, after appreciating the evidence on record, come to the conclusion that all the circumstances linking the appellants with the crime have been proved by the prosecution by cogent and convincing evidence. According to the learned trial court these circumstances point towards the guilt of the appellants and rule out their innocence. Accordingly, the learned trial court has, vide the impugned judgment, convicted the appellants for various offences including offence under section 302 RPC.

9. The appellants have challenged the impugned judgment of conviction and order of sentence on the ground that there is no evidence on record to show that there was any previous enmity between deceased-Krishni Devi and appellant Prem Nath as has been claimed by the prosecution. It has been submitted that all the evidence led by the prosecution to prove this circumstance is hearsay in nature, hence inadmissible in evidence. It has also been contended that the circumstance relating to abscondence of the appellants is also not proved 6 Crl A(D) No. 4/2020 from the evidence on record. According to the appellants, they were present at the place of occurrence on the very first day when the Police visited the said place and this, according to the appellants, is established from the evidence on record. It has been further contended that disclosure statements and recoveries of weapons of offence/objects pursuant thereto have not been proved in accordance with law. It has been submitted that the evidence on record in this regard is contradictory in nature and it has not been shown that the weapons of offence/objects were recovered from such places which were accessible to none. It has been further contended that morphological similarity between the hair strands found on the weapons of offence with the sample of hair collected from the appellants does not conclusively prove that the hair stands present on the weapons of offences were those of the appellants. It has been submitted that the learned trial court has grossly erred in coming to the conclusion that this circumstance has been proved. Lastly, it has been contended that learned trial court has not appreciated the evidence on record in proper perspective.

10. We have heard learned counsel for the parties and perused the grounds of appeal, the impugned judgment and record of the trial court including the evidence recorded by the trial court.

11. In the instant case, there is no eye witness to the occurrence which is stated to have taken place during the night intervening 6th/7th of September, 2011. The case of the prosecution is wholly based upon circumstantial evidence. The circumstances on the basis of which, the prosecution has rested its case, as has been noted by the learned trial court in its impugned judgment, are as under: 7 Crl A(D) No. 4/2020

1. "Motive

2. Accused persons absconded and were found hiding in the forest in a cave;

3. Disclosure statement of A-1 pursuant whereto a blood stained jacket belonging to A-5 was recovered;

4. Disclosure statement of A-2 pursuant whereto a blood stained „Darat‟ adhering with hair stands was recovered;

5. Disclosure statement of A-3 pursuant whereto blood stained axe adhering with hair stands was recovered

6. Disclosure statement of A-4 pursuant whereto a blood stained shirt was recovered;

7. Disclosure statement of A-5 pursuant whereto „Toka‟ adhering with hair strands was recovered;

8. Finger prints opinion"

12 Before determining as to whether or not the finding of the learned trial court that aforesaid eight circumstances stand established against the appellants are in accordance with law, it would be apt to notice the guidelines laid down by the Supreme Court in its various precedents which explain the manner in which conclusion of guilt or innocence is to be drawn in a case which is based upon circumstantial evidence.

13. The Supreme Court in the case of Bodh Raj @ Bodha and others vs State of Jammu and Kashmir, (2002) 8 SCC 45 has analysed and discussed the law as regards the appreciation of evidence in a case which is based upon circumstantial evidence. Paragraphs 10 to 17 of the said judgment are relevant to the context and the same are reproduced as under:

"10 It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence. the inference of guilt can be justified only when all the incriminating facts and circumstances are 8 Crl A(D) No. 4/2020 found to be incompatible with the innocence of the accused or the guilt of any other persons. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063), Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi and Ors., AIR (1985) SC 1224, Balwinder Singh v. State of Punjab, AIR (1987) SC 350, Ashok Kumar Chatterjee v. State of MP AIR (1989) SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

11. We may also make a reference to a decision of this Court in C Chenga Reddy and Ors. v. State of A,P,, [1996] 10 SCC 193, wherein it has been observed thus:

"In a case based on circumstantial evidence. the settled law is that the circumstances from which the conclusion of guilt is drawn would be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.....'"

12. In Padala Veera Reddy v. State of A.P. and Ors.. AIR (1990) SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests; (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly es'ablished, (2) those circumstances. should be of a definite tendency unerringly pointing towards guilt of the accused.

(3) the circumstances. taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any. other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

13. In State of U.P. v. Ashok Kumar Srivastava, (1992) Crl.L.J.l 104, it was pointed out that great case must be taken in evaluating circumstantially evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. h was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

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14. Sir Alfred Wills in his admirable book "Wills" Circumstantial Evidence" (Chapter VI ) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum, (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability, (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits, (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted"

15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.

16. In Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR (1952) SC 343, wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature. the circumstances from which the conclusion of guilt is to be drawn the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words. there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

17. A reference may be made to alter decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused. that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency, (4) they should excludee very possible hypothesis except the one to be proved, and 10 Crl A(D) No. 4/2020 (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

14. Again, in the case of State of Karnataka v Smt Suvarnamma and anr, 2014 4 Crimes(SC) 418, the Supreme Court, while referring to well known principles of appreciation of evidence in a case based upon circumstantial evidence, observed as under:

"12. The Court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilty and protect the innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors. In the absence of direct evidence, the circumstantial evidence can be the basis of conviction if the circumstances are of conclusive nature and rule out all reasonable possibilities of accused being innocent. Once the prosecution probabilises the involvement of the accused but the accused takes a false plea, such false plea can be taken as an additional circumstance against the accused. Though Article 20 (3) of the Constitution incorporates the rule against self incrimination, the scope and the content of the said rule does not require the Court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him, such circumstance is a vital additional circumstance against the accused.

13. It is also well settled that though the investigating agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence."

15. From the foregoing analysis of law on the subject, it is clear that before a case against an accused resting on circumstantial evidence can be said to be fully established, the following conditions must be satisfied:

1. The circumstances from which the conclusion of guilt is to be drawn must be fully established.

2. The circumstances so established should be consistent with the hypothesis of guilt of the accused and they should not be explained on any other hypothesis except that the accused is guilty.

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3. The circumstances should be of a conclusive nature and they should exclude every possible hypothesis except the one to be proved.

4. There should be a complete chain of evidence as not to leave any reasonable scope for the conclusion consistent with the innocence of the accused and it must be shown that in all human probability, the act must have been done by the accused only.

16. With the aforesaid legal position in mind, let us now proceed to determine as to whether or not the circumstances enumerated herein have been established by the prosecution on the basis of evidence led before the trial court.

17. The first circumstance relates to the motive of the crime. According to the prosecution case, the appellant Prem Nath had performed the last rites of Situ, the husband of deceased-Krishni Devi and on this basis, he was claiming whole of the property left behind by Situ, but deceased-Krishni Devi was agreeable to share only a part of it with appellant-Prem Nath. It is further alleged that a number of community meetings had taken place to resolve the dispute but the same could not be resolved. This, according to the prosecution, became the reason for the appellant to commit the murder of deceased Krishni Devi and her grandson, deceased-Parkash Singh, who as per the law of inheritance, was entitled to inherit the whole property.

18. It has been vehemently contended by learned counsel for the appellants that theory of motive projected by the prosecution has not been established from the evidence on record. The learned counsel has submitted that the witnesses who have been examined by the prosecution to prove this aspect of the matter had no personal knowledge about it and their knowledge is based upon hearsay, which is not admissible in evidence. He has further contended that if at all anybody would have benefitted from the murder of the deceased, it was PWs- 12 Crl A(D) No. 4/2020 Musa and Abdul Rashid who were cultivating the land belonging to deceased Krishni Devi and for this reason, they had an eye on the said land.

19. If we have a look at the statement of PW Chuni Lal, son-in-law of deceased-Krishni Devi, he has stated that there was a land dispute going on between deceased-Krishni Devi and appellant-Prem Nath. He has also stated that a number of meetings to resolve the dispute were held in the village. He has gone on to state that deceased-Krishni Devi wanted to adopt his son and give whole of her property to him, but the appellants were objecting to it. Although, the witness in his cross examination has stated that he has not attended any of these meetings but the witness happens to be the son-in-law of the deceased Krishni Devi and father of deceased-Parkash Singh. Being an insider of the family, his statement as regards to the land dispute between his mother-in-law and the appellants cannot be brushed aside merely because he has not participated in any of the meetings.

20. The contention of learned counsel for the appellants that the appellants would not have benefitted from the murder of the deceased and that it is probably PW Musa and his brother who being in cultivating possession of the land belonging to the deceased, would have benefitted from said murder, is also without any merit. No suggestion in this regard has been made by the defence during cross examination of PW Musa and PW Abdul Rashid nor any such defence has been taken by the appellants while making their statements under Section 342 J&K Cr.P.C. Had it been a case where PWs Musa and Abdul Rashid were involved in the murder of the deceased, PW Chuni Lal, who happens to be the father of deceased-Parkash Singh would have not spared them and he would have certainly deposed against them. In natural course of events, no father would 13 Crl A(D) No. 4/2020 allow murderers of his young son to go scot free. There was no reason for PW Chuni Lal falsely implicate the appellants. Thus, the theory propounded by learned counsel for the appellants in this regard cannot be accepted.

21. Apart from the above, not only PWs Abdul Rashid and Musa have deposed about the dispute between deceased-Krishni Devi and appellant Prem Nath about the inheritance of land left behind by Situ, the husband of deceased- Krishni Devi but PW Makhan has also categorically stated in his cross examination that he has participated in the meetings that took place in the village for resolving the dispute between appellant-Prem Nath and deceased-Krishni Devi. PW Chain Singh, the Panch and PW Jaipaul Sharma, the Sarpanch have also stated that appellant-Prem Nath wanted to grab the whole of the land left behind by husband of the deceased-Krishni Devi.

22. In the face of aforesaid overwhelming evidence on record, the learned trial court has rightly come to the conclusion that there was previous enmity between appellant-Prem Nath and deceased Krishni Devi because appellant- Prem Nath wanted to have whole of the land left behind by husband of deceased- Krishni Devi, which was not agreeable to her. Thus, the first circumstance is established against the appellants beyond any reasonable doubt.

23. The second circumstance relates to the abscondence of the appellants. It has been claimed by the prosecution that after the commission of the crime, appellants absconded from their houses and they could be arrested only on 10.09.2011 after launching a massive manhunt for them. On the other hand, learned counsel for the appellant has argued that material on record clearly suggests that appellants never absconded and they were all along available before the Police right from the first day. In this regard, learned counsel for the 14 Crl A(D) No. 4/2020 appellants has referred to the document, „Fard Surat-a-Hall‟(Ext.P-25/1) and Crime Detail Form. It has been submitted that these documents bear the date 07.09.2011 and it is recorded in these documents that appellants have been arrested, meaning thereby that the appellants were arrested on 07.09.2011 itself. Learned counsel for the appellants has also contended that PW Chain Singh, Panch of the Village has stated that appellants were present on spot when Police came over there on 07.09.2011. On this basis, it has been contended that the appellants did not abscond after the occurrence and the finding of the learned trial court in this regard is not substantiated from the evidence on record.

24. So far as the documents „Fard Surat-a-Hall‟ (Ext.P-25/1) and Crime Detail Form are concerned, it is correct that these documents bear date 07.09.2011 and these documents also bear reference to the arrest of the appellants but it has been explained by Investigating Officer PW Satpaul Modi that in Crime Detail Form inadvertently the date has been mentioned as 07.09.2011 and actually it should have been 10.09.2011. PW Chain Singh has stated that he reached the spot on 07.09.2011 and he informed the Police that appellant-Prem Nath was having some land dispute with the deceased-Krishni Devi. He further informed the Police that he suspects the role of the appellants in the murder. In his cross examination, he has stated that when he went on spot, the appellants were also present over there. According to him, the appellants were present over there on the date when his statement was recorded by the Police at about 6.00 PM. He further stated that after his statement was recorded, the appellants were arrested. PW Jaipaul Sharma, Sarpanch has stated that on 07.09.2011 after getting the information, he reached the spot of occurrence in the morning and appellant-Prem Nath along with 2-3 more persons were present 15 Crl A(D) No. 4/2020 over there. In his cross examination, he has stated that in the evening, the appellants had disappeared from the spot, though two of the appellants-Babu Ram and Sita Ram were present over there. He has gone on to state that on the next date i.e. on 08.09.2011 none of the appellants was available. PW Rattan Lal has stated that though appellants were present in the morning on 07.09.2011 but after 2.00 PM on the said date, they absconded.

25. From the foregoing evidence on record, it appears that though the appellants were present on spot initially when the occurrence took place, but later on when during questioning by the Police, the witnesses informed that role of the appellants is suspected in the murder, they absconded.

26. As per the statement of PW Jaipaul Sharma, Sarpanch, on 10.09.2011 he accompanied the Police team for launching a search of the appellants in Kasal forest. Upon launching the search, the appellants were found inside a cave in Kasal forest at about 12.30 PM. In his cross examination, he has stated that on 09.09.2011 Police went to the houses of the appellants and he accompanied them. According to the witness, the ladies present over there informed the Police that they have no knowledge about the whereabouts of the appellants. Investigating Officer, PW Satpaul Modi, Dy.SP has stated that on 07.09.2011 upto the date of arrest of the appellants they could not be found at their home and he had to constitute a Police team to launch the search of the appellants. Some local people were also involved in the process. He has further stated that the appellants were arrested from a forest in the afternoon.

27. From the aforesaid evidence on record, it is clear that the appellants were arrested from a cave in Kasal forest and not from their houses. The evidence on record does shows that they were present on spot of occurrence on the day of 16 Crl A(D) No. 4/2020 occurrence but later on they absconded after needle of suspicion pointed towards them. It has been contended by learned counsel for the appellants that PW Jaipaul Sharma is not having cordial relations with the appellants because they had not supported him during the elections. The suggestion to this effect has been denied by PW Jaipaul Sharma and he has further gone on to state that in fact appellants voted for him. Therefore, there is no reason to discard the statement of PW Jaipaul Sharma. From his statement and the statement of the Investigating Officer, it is established that appellants did abscond after the occurrence.

28. The next circumstance on which case of the prosecution rests is the disclosure statements of the appellants, pursuant to which weapons of offence/blood stained jacket of appellant No. 5 were recovered. As already noted according to the prosecution case on the basis of the disclosure statement of appellant No. 1, blood stained jacket belonging to appellant No. 5 was recovered, on the basis of disclosure statement of appellant No. 2, blood stained „Drahat‟ adhering with hair stands was recovered, on the basis of disclosure statement of appellant No. 3, blood stained „Axe‟ adhering with hair strands was recovered, on the basis of disclosure statement of appellant No. 4, blood stained shirt was recovered and on the basis of disclosure statement made by appellant No. 5, „Toka‟ adhering with hair strands was recovered. It has been contended by learned counsel for the appellants that the evidence on record on this aspect of the matter is not reliable inasmuch as there are contradictions in the statements of prosecution witnesses on this aspect of the matter. It has also been contended by learned counsel for the appellants that the weapons of offence/objects which are alleged to have been recovered pursuant to disclosure 17 Crl A(D) No. 4/2020 statements made by the appellants have been recovered from places which were accessible to everyone, therefore, the same cannot amount to disclosure of a fact as contemplated under section 27 of the Evidence Act.

29. As per the memo of disclosure (ExtP1-II), appellant-Sita Ram has made a disclosure that he has concealed a „Drahat‟ inside a chicken coop in the house of his brother appellant-Prem Nath. PWs Jaipaul Sharma and Reyaz Ahmed Constable are two witnesses examined by the prosecution to prove this disclosure statement. Both these witnesses have given vivid details about the manner in which appellant-Sita Ram did make the disclosure statement while being in custody of the Police and there is nothing in the cross examination of these two witnesses that would shake their credit.

30. Ext.P-10 is the memo of disclosure made by appellant-Krishan Chand. In the said statement, he has disclosed that he has concealed a blood stained „Axe‟ inside the grain bin of the house of his brother appellant-Prem Nath. PWs Jaipaul Sharma and Ramesh Singh Sgt. constable are witnesses to this document and they have consistently deposed about the execution of the aforesaid document. There is nothing in their cross examination to discredit their version.

31. Ext.P 1/3 is the disclosure statement made by appellant-Guddi whereby he has disclosed to the Police that he has concealed a blood stained „Toka‟ near the roof of the kitchen of the house belonging to his brother, appellant-Sita Ram. PWs Jaipaul Sharma and Abdul Shakoor, Sgt. constable are witnesses examined by the prosecution to prove this document and both of them have consistently supported the prosecution case on this aspect of the matter.

32. Ext.P1-IV is the disclosure statement of appellant-Prem Nath, who has disclosed that he has concealed a blood stained jacket inside his room in a bag 18 Crl A(D) No. 4/2020 which is clinging to a clothesline(rope). PWs Jaipaul Sharma and Mohd. Shafi Sgt. constable are witnesses to this document and they have deposed about the execution of the said document and there is nothing in their cross examination to discredit their statements.

33. Ext.P 16/1 is the disclosure statement made by appellant-Babu Ram whereby he has disclosed that he has concealed a blood stained shirt in the roof of the house of his uncle, appellant-Guddi. The same has also been proved by PWs Jaipaul Sharma and Romesh Singh. There is nothing in their cross examination to discredit their statements on this aspect.

34. Pursuant to the aforesaid disclosure statements, blood stained jacket has been recovered vide memo ExtP1/V, blood stained „Toka‟ has been recovered vide memo ExtP1/VI, blood stained shirt has been recovered vide memo ExtP1/VII, blood stained „Axe‟ has been seized vide memo ExtP1/VIII and blood stained „Drahat‟ has been recovered vide memo ExtP1/IX. The witnesses to these recovery memos PW Jaipual Sharma has consistently supported the prosecution case and there is nothing in his cross examination to discredit his statement on this aspect of the matter. The recoveries of the weapons of offence/objects have been made from the places designated by the appellants in their respective disclosure statements.

35. That takes us to the contention of learned counsel for the appellant that recoveries were made from places which were accessible to all, and as such, the same do not satisfy the requirements of section 27 of the Evidence Act. Before testing the merits of the contention raised by the learned counsel for the appellants, it is necessary to understand the legal position as regards the 19 Crl A(D) No. 4/2020 admissibility of disclosure statement made by a person under Police custody. Section 27 of the Evidence Act, which is relevant to the context reads as under:

"How much of information received from accused may be proved.-Provided that, when any fact is disposed 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."

36. From a perusal of the aforesaid provision, it is clear that so much of information which is received from a person accused of an offence in custody of a Police Officer which leads to discovery of any fact can be used against the accused but the said information must relate distinctively to the fact discovered. Section 27 is in the form of a proviso to Section 25 and 26 of the Evidence Act as it makes confessional statement made by an accused before the Police Officer admissible in evidence subject to the conditions laid down in the said provision. Though a confessional statement made before a Police Officer is not admissible in evidence as per provisions contained in Sections 25 and 26 of the Evidence Act, yet Section 27 of the Act carves out an exception to this rule. The word „discovery‟ appearing in Section 27 of the Evidence Act is of special significance. It means something new which is not known earlier. It does not mean a fact which is already known. What is already known cannot be discovered. Therefore, the requirement of Section 27 of the Evidence Act is that the fact discovered should be known only to the accused and none else. It is only then that a disclosure statement of an accused which leads to discovery of the said fact would became admissible in evidence.

37. Coming to the facts of the instant case. As per the evidence on record, the blood stained jacket has been recovered from the house of appellant-Prem 20 Crl A(D) No. 4/2020 Nath where it was kept inside a bag clinging to a clothesline. This has been clearly deposed to by PW Jaipaul Sharma as also by PW Abdul Shakoor. Thus the evidence on record shows that the jacket was kept inside a bag and it was not open to view of others. The manner in which the blood stained jacket had been concealed shows that it was not accessible to any other person.

38. It has been contended by learned counsel for the appellants that the Police had set up its camp in the house of Prem Nath, therefore, they had every occasion to plant this object and it cannot be stated that the place of recovery was not accessible to others. The argument appears to be without merit for the reason that it has come in the evidence on record that the Police had set up camp not inside in the house of the appellant-Prem Nath, but the camp was outside the house of the appellant adjacent to it.

39. It has been further contended that the Police had launched a search at the houses of the appellants and at that time also, they could have planted the weapons/objects. In the evidence on record, it has come that the Police only went into the houses of the appellants for the purpose of arresting them and not for conducting search.

40. Learned counsel for the appellants has also submitted that as per the evidence on record when the recovery of the jacket from the house of the appellant-Prem Nath was effected, it was found locked and the key was with the Police. In this regard, it is to be noted that in the cross examination, PW Jaipaul Singh has clarified that the key was with the Lamberdar Punjab Singh and not with the Police. Therefore, it is not a case where the key was with the Police and there was possibility of planting of incriminating material inside the house of the appellant-Prem Nath by the Police.

21 Crl A(D) No. 4/2020

41. Weapon of offence i.e. „Toka‟ was recovered from the house of appellant-Sita Ram on the disclosure of appellant-Guddi. The place of recovery is roof of the kitchen of the house. Thus, the place of recovery cannot be stated to be accessible to everybody. The shirt was recovered from cattle shed of appellant-Guddi on the basis of disclosure made by appellant-Babu Ram. It was lying concealed on the roof of the cattle shed. Similarly, the blood stained „Axe‟ was recovered from the house of the appellant-Prem Nath on the basis of disclosure made by appellant-Krishan Chand and it had been concealed inside the grain bin. The „Drahat‟ was recovered on the basis of disclosure made by appellant-Sita Ram and it was found concealed in the house of appellant-Prem Nath inside the chicken coop.

42. From the foregoing evidence on record, it is clear that all the weapons of offence and the objects, blood stained jacket and shirt had been concealed by the appellants at places which were not at all accessible to other persons. It is not a case where the appellants had concealed these weapons/objects in or near a public place or that the same were lying in their houses visible to everybody but it is a case where these weapons/objects were found concealed either in a bag or in the roof or in a chicken coop or similar other places which are not visible to everybody. Therefore, the contention of learned counsel for the appellants that requirements of Section 27 of the Evidence Act are not satisfied in the instant case so far as the proof of recovery of weapons of offence/objects pursuant to the disclosure statements of the appellants is concerned, is without any substance.

43. Another circumstance which has been relied upon by the prosecution is the opinion of the Finger Prints Expert. Ext.PSLB is the opinion of Finger Prints Expert, PW Shiban Lal Bhat who has proved the said report. According to this 22 Crl A(D) No. 4/2020 report, finger prints of appellant-Guddi Ram matched with the finger prints impression on the weapons of offences „Toka‟ whereas finger prints impressions of appellant-Krishan Chand were found matching with the finger prints impressions appearing on weapon of offence „Axe‟. Similarly, finger print impressions of appellant-Sita Ram were found matching with the finger prints found on weapon of offence „Drahat‟.

44. PW Arif Choudhary has, in his statement, given details regarding the manner these finger prints were lifted from the weapons of offence recovered on the basis of the disclosure statements made by the appellants. It has come in the evidence on record that he was called on spot on 10.09.2011 itself when the recovery of these weapons took place and on the spot itself, he lifted the chance finger prints from the weapons of offence and he handed over the same to the Investigating Officer who sealed the same. The presence of PW Arif Choudhary on spot is deposed to by other witnesses and these witnesses including PW Jaipaul Singh have clearly stated that the said witness has lifted the finger prints from the recovered weapons of offence. The Finger Prints Expert PW Shuban Lal Bhat has, in his report, clearly indicated that the seals of the sealed packets were found intact and the seals tallied with the specimen seal impression forwarded by the Magistrate meaning thereby that there was no tampering in the finger prints lifted from the weapons of offence by the expert.

45. It has also come in evidence on record that blood samples of the deceased were collected and sealed by the Investigating Officer and the same were sent to Forensic Science Laboratory for examination. PW Mool Raj, Scientific Officer has deposed that seals relating to the packets received by him were found intact. He has, in his report (ExtP-23), indicated that blood group of 23 Crl A(D) No. 4/2020 deceased-Krishni Devi and deceased-Parkash Singh was „O‟. It is further indicated in the report that blood stains of the same group were found on the jacket, the shirt, the Toka and the Dharati which were recovered on the basis of disclosure statements made by the appellants This clearly connects the appellants with the crime.

46. Another circumstance that has been relied upon by the prosecution is the similarity of the hair strands found adhered to the weapons of offence „Toka‟ and „Drahat‟ with the hair strands of the two deceased. This has been deposed to by PW Mool Raj who is author of report ExtP-23. Learned counsel for the appellant has submitted that PW Mool Raj has only stated that there was similarity of hair strands found adhered to the aforesaid weapons of offence and sample hair strands of the deceased and unless it is shown that the hair strands of the deceased are exactly identical to the hair strands found adhered to the weapons of offence, it cannot be stated that these weapons of offence have any connection with the death of the deceased. In this regard, learned counsel for the appellants has relied upon the judgment of High Court of Delhi in the case of Shahbuddin vs the State(Nct of Delhi) 95 (2002) DLT 562 wherein it has been laid down that morphological and microscopical characteristic test is not a sure test for arriving at a conclusion that two hairs belong to one and the same person.

47. There can be no dispute to the legal preposition propounded by the Delhi High Court in the aforesaid case. It is true that identification of hair is not conclusive and it is not possible to conclude with certainty that hairs in question belongs to a particular individual but then the Supreme Court in the case of Maghar Singh v State of Punjab, AIR 1975 SC 1320 has held that the results of scientific examination of hair can be accepted as a circumstance to prove guilt 24 Crl A(D) No. 4/2020 of the accused. In the said case, the result of scientific examination of hair has been relied upon along with various other circumstances connecting the accused with the crime. In the case of Kambi Karsan Yadav v State of Gujarat, AIR 1996 SC 821, the results of the scientific examination of hair were considered along with circumstances such as discovery of dead body, the buttons with blood stains and the recovery of scarf at the instance of the accused. It was held that if there are other circumstances pointing to the conclusion of guilt of the accused, the results of the scientific examination of the hair also can be of some use.

48. Coming to the facts of the instant case, it has been established beyond doubt that there was enmity between the deceased and the appellant-Prem Nath on account of the fact that appellant-Prem Nath was claiming whole of the property left behind by the husband of deceased-Krishni Devi, who happened to be his Aunt, but deceased-Krishni Devi wanted to give whole of the property to her grandson, deceased-Parkash Singh to the exclusion of appellant-Prem Nath. On account of this dispute, the appellant-Prem Nath in conspiracy with other appellants, who happen to be his brothers and nephew thought of committing murder of both the deceased so as to achieve his objective of succeeding to the property of Situ, husband of deceased-Krishni Devi. After the occurrence, appellants absconded and they were arrested from a cave inside the forest when the Police launched a massive manhunt. Though circumstance of abscondance is also a week circumstance for connecting the accused to the crime, yet when read with other circumstances, it does point to the conclusion of the guilt of the accused. It has also been established that weapons of offence and objects stained with the blood of the deceased were recovered on the basis of disclosure statements made by the appellants from the places regarding which only the 25 Crl A(D) No. 4/2020 appellants had the knowledge. The scientific evidence on record has proved that finger prints of appellants viz., Guddi Ram, Krishan Chand and Sita Ram were found on the three weapons of offence i.e. „Toka‟, „Drahat‟ and „Axe‟. When these circumstances are read with the evidence regarding similarity of hair strands of the deceased with the hair strands found on the weapons of offence, „Drahat‟ and „Toka‟, it can safely be concluded that it is the appellants who are the authors of the crime.

49. Apart from aforesaid circumstances, as per the medical evidence on record, the deceased received several injuries, mostly incised wounds, which are possible by sharp edged weapons. The weapons of offence recovered at the instance of the appellants are „Drahat‟, „Axe‟ and „Toka‟ which are all sharp edged weapons. Doctors Suram Chand Chanotra, Sunil Kumar and Anju Sharma, who conducted post-mortem of the dead bodies of the two deceased have proved the post-mortem reports and they have deposed that death of the deceased had taken place due to haemorrhagic shock and that the same is homicidal in nature. Dr. Suram Chand Chanotra has further stated that injuries found on the persons of the deceased-Krishni Devi and Parkash Singh are possible with „Toka‟, „Axe‟ and „Drahat‟ which were shown to him by the Police. In this regard, he has rendered his opinion (Ext.P 16/2).

50. It has been contended by the learned counsel for the appellants that the official who brought the weapons of offence to the doctor did not show to him the post-mortem report and without going through the post-mortem report, opinion (Ext.P 16/2) has been rendered by the doctor. In this regard, the learned counsel has referred to the statement of PW Jeet Ram, ASI, who has stated that he did not take along with him any document except the authority letter and the 26 Crl A(D) No. 4/2020 docket. The argument of the learned counsel is preposterous because office copy of the post-mortem report always remains with the concerned hospital and as such, merely because the witness was not carrying with him a copy of the post- mortem at the time of showing weapons of offence to the doctor, it cannot be concluded that the Doctor did not have the benefit of seeing the nature of the injuries which were depicted in the post-mortem reports.

51. For the foregoing discussion, we are of the opinion that the impugned judgment does not call for any interference by this Court. The same is elaborate and lucid. In fact learned Trial Judge has meticulously analysed and appreciated the evidence on record and reached a correct conclusion. There is no illegality much less any perversity in the impugned judgment of conviction and order of sentence passed by the learned trial court. The appeal lacks merit and is dismissed accordingly. The reference made by the trial court is accepted and the order of sentence passed by the said court is confirmed.

52. A copy of this order be sent to the learned trial court for taking further action in terms of Section 381 of J&K Cr.P.C.

                                   (RAJESH SEKHRI)                   (SANJAY DHAR)
                                            JUDGE                          JUDGE

Jammu
02.06.2023
Rakesh
                            Whether the order is speaking:     Yes
                            Whether the order is reportable:   Yes

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Jammu & Kashmir High Court