1 [CASE NUMBER] IN THE HIGH COURT OF MEGHALAYA AT SHILLONG J U D G M E N T :
[CASE NUMBER] Shri [ENTITY] S/o (L) [ENTITY] R/o Village Tikrikila, West Garo Hills, Meghalaya Appellant
-Versus-
1. The State of Meghalaya, Through the Superintendent of Police, East Khasi Hills District, Meghalaya.
2. The Officer-in-Charge, Laitumkhrah Police Station, Shillong East Khasi Hills District, Meghalaya Respondents BEFORE HON'BLE MR JUSTICE [ENTITY],CHIEF JUSTICE HON'BLE MR JUSTICE [ENTITY] Mr. [ENTITY] Counsel for Appellant Mr. [ENTITY] Sr GA Counsel for Respondents Date of Judgment 25th November, 2016 BY HON'BLE MR. JUSTICE [ENTITY] This appeal is directed against the judgement dated 1st May, 2014 passed by learned Sessions Judge, Shillong in [CASE NUMBER] whereby the appellant has been convicted for the offence under [SECTION] [ACT] and order on sentence dated 6th May, 2014 whereby the appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- in default of payment of fine to undergo one year imprisonment.
The period of detention already undergone by the appellant was ordered to be set-off under [SECTION] of the [ACT] (for short '[ACT]').
FACTS IN BRIEF
2. Shorn of unnecessary details, case of prosecution as reflected in the charge sheet is as under:
3. On 20.03.2011, Shri [ENTITY] who is the owner of Flavours Restaurant received information from his staff member namely [ENTITY] that one of his worker namely [ENTITY] was seriously injured and shifted by some of his workers to Nazareth Hospital, Shillong but he expired on the way. On the basis of the said information G.D. Entry was made and a case was registered on 20.03.2011 at 2:45 P.M. as Laitumkhrah P.S. [CASE NUMBER] under [SECTION] [ACT]
4. The appellant/accused Shri [ENTITY] was arrested and two other persons namely [ENTITY] and [ENTITY] were also detained but later on they were released. The investigation was conducted and statement of witnesses under [SECTION] [ACT] was recorded. During investigation, inquest of the dead body was conducted by the police and post mortem was got conducted by Dr. [ENTITY] at Shillong Civil Hospital. On completion of the investigation, charge sheet under [SECTION] [ACT] was filed against the appellant.
5. After hearing both the parties and considering the record of the case, on 13th December, 2011, learned trial court found sufficient ground to proceed against the appellant Shri [ENTITY] for the offence punishable under [SECTION] [ACT] The appellant abjured his guilt and claimed trial.
6. In support of its case, the prosecution examined as many as thirteen witnesses. PW-1 Shri [ENTITY] is the complainant and proved copy of the F.I.R. as exhibit-1. PW-2Shri [ENTITY] is the co- worker in Flavours Restaurant. He has proved seizure list of knife as exhibit- 2 and other seizure list as exhibits-3, 4 and 5. He signed as one of the witness in the memo receiving dead body of the victim which is exhibit-6. PW-3 Dr. [ENTITY] had conducted post mortem on the dead body of [ENTITY] on 21.03.2011. He proved the post mortem report as exhibit-7. He also deposed that he has collected blood sample from the body of the deceased and handed over the same to the IO along with one blood stained shirt blue in colour, one underwear and filed seizure memo as exhibit-8. PW- 4 Smti [ENTITY], is the Deputy Director, FSL, Shillong and has deposed that she has examined all the exhibits and result of examination report is exhibit-9. PW-5 Shri [ENTITY] has proved memo regarding handing over of the dead body as exhibit-10. PW-6Shri [ENTITY] is a cook in Flavour's Restaurant and has deposed that he knows nothing about the incident of the case. PW-7 Shri [ENTITY] has deposed that he was working as a helper in Flavour's Restaurant. He Has Deposed that on the day of incident they went to police bazar being holiday and when they returned back to the restaurant, he saw the victim in an injured condition and he told him that accused [ENTITY] had assaulted him. He was shocked and scared and informed other co-workers who came to the room and removed the victim to Nazareth Hospital. In cross examination he stated that he was the only one present at that time in the room. He also stated that he was not examined by the police. PW-8 Shri [ENTITY] is also a co- worker in Flavour's Restaurant. He has also deposed that on the day of incident being holiday he went to police bazaar and returned back to the restaurant. On hearing noise from room of the victim, he and PW-7 went to see him and found that the victim was badly injured who told them that the accused [ENTITY] assaulted him with a sharp weapon. PW-9 Shri [ENTITY] has deposed that on 20.03.2011 he was in his restaurant (Villipi) at Laitumkhrah and he heard about the incident from others. He has also deposed that the victim and the accused are from the same community and they were working together in Flavour's Restaurant. PW-10 Shri [ENTITY] had deposed that his acquaintance with the victim [ENTITY] and the accused. He came to know regarding the incident from others that the victim was taken to Nazareth Hospital and accused was taken by the police. PW-11 Shri [ENTITY] is also co-worker in Flavour's Restaurant. He has also deposed that all the staff of flavour's were staying in the house provided by the owner. He has also deposed that he signed on the inquest report which is exhibit-6. PW-12 Dr. [ENTITY] was working as senior Specialist in the Lab. Of Civil Hospital. He has deposed that on 22.03.2011 the appellant Shri [ENTITY] was examined by doctors and his blood sample was taken which was seized vide seizure memo exhibit-11. PW-13 [ENTITY] is the Investigating Officer (IO). He has deposed regarding various steps taken by him. He also deposed that on completion of investigation, charge sheet No. 37 of 2011 dated [SECTION].08.2011 under [SECTION] [ACT] was submitted.
7. After completion of prosecution evidence, statement of the appellant was recorded under [SECTION] [ACT] The appellant denied complicity in the crime and pleaded false implications.
8. After appreciating evidence and considering the rival contentions of the parties, learned Sessions Judge found the appellant to be guilty having committed the offence under [SECTION] [ACT] and convicted the appellant for the same vide impugned judgement.
9. Being aggrieved by the impugned judgement dated 1st May, 2014 and order of sentence, the appellant preferred the present appeal. SUBMISSION ON BEHALF OF THE PARTIES
10. We have given our anxious thought to the submissions made by learned counsel for both the parties and carefully perused the material on record.
11. In the present case, the prosecution has relied upon chain of circumstances in order to bring to the fore that the appellant had committed the murder of deceased. In our view, when the prosecution case rests upon the circumstantial evidence, the circumstances should be conclusively proved and point to the guilt of the accused. The circumstances so proved should not be compatible with any hypothesises except with the guilt of the accused.
CIRCUMSTANTIAL EVIDENCE
12. Before venturing into rival submissions made on behalf of both the sides with regard to circumstantial evidence relied in this case, it would be appropriate to discuss the legal position with regard to circumstantial evidence. As observed by the Apex Court in [PRECEDENT], the following five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in [PRECEDENT] where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
13. In another case of "[PRECEDENT], the Hon'ble Apex Court has held:-
In a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached.
Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the Court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.
14. Undoubtedly, in a case of circumstantial evidence the prosecution has to show that all the links in the chain of circumstances must be complete and should be proved through cogent evidence. Now, let us examine whether all the links in the chain of circumstance are complete in the present case.
15. In order to bring home the guilt of appellant for the commission of murder of deceased, the prosecution relied upon the following circumstances:-
(i) Death of deceased namely [ENTITY] being homicidal in nature;
(ii) Last seen evidence in the form of testimonies of Shri [ENTITY] (PW-
2), Shri [ENTITY] (PW-7) and Shri [ENTITY] (PW-8);
(iii) Oral dying declarations purportedly made by deceased before Shri [ENTITY] (PW-7) and Shri [ENTITY] (PW-8);
(iv) Recovery of weapon of offence i.e. knife (Ex. P1) in pursuance of disclosure statement made by appellant;
(v) Confessional Statement U/[SECTION] [ACT] made by appellant before Magistrate during the course of investigation;
(vi) FSL result with regard to blood found on knife ( Ex. P1) as well as on wearing T-Shirt of appellant.
DEATH OF DECEASED BEING HOMICIDAL IN NATURE
16. Dr.[ENTITY] (PW-3) who had conducted the post- mortem examination on body of the deceased on21st March, 2011 deposed in his testimony that he conducted post-mortem on the body of the deceased [ENTITY] at Shillong, Civil Hospital. According to Autopsy Report Ex.7, the deceased had sustained multiple incised wounds caused by some sharp double edged object repeatedly and with considerable variable force. He found as many as 24 injuries out of which injuries numbers1 to 20 are shown to be deep incised wounds and four injuries numbers are shown to be superficial incised wounds. He opined the cause of death as due to shock and haemorrhage following stabling and incised wounds of the face, neck, chest and limbs. Nothing material could be elicited during cross-examination of said witness so as to disbelieve his testimony. In view of the testimony of Autopsy Surgeon i.e. PW-3 DR. [ENTITY] coupled with Autopsy Report Ex.7, it is quite evident that deceased had died homicidal death. LAST SEEN THEORY
17. Learned counsel for the appellant argued that the prosecution had failed to establish the last seen theory. Learned counsel for the State rebutted the arguments raised by the counsel for the appellant with regard to last seen theory and laid emphasis on the testimonies of PW-2, PW-7 and PW-8.
18. Before coming to the rival submissions made on behalf of both the sides, we want to note here that PW-2 [ENTITY], PW-7 [ENTITY] and PW-8 [ENTITY] are claimed to be co-employees who alongwith the deceased had been working in the same restaurant. Deceased was residing alongwith PW-6 [ENTITY], Appellant and 12 other persons in one of the rooms situated in the said restaurant.
19. Shri [ENTITY] (PW-2) has categorically deposed that he did not see the appellant assaulting and killing the deceased [ENTITY] as at that time he was cooking. He has also stated that he had made the statement on the basis of what was informed to him by two boys who went to the staff room.
20. As per prosecution story, PW-7 and PW-8 had rushed to the scene of crime after hearing the noise from the room of the deceased. Both the said witnesses deposed during trial only to the extent that on hearing the alarm raised by deceased, they had gone to the room and found deceased lying in injured condition. None of these two witnesses, however, deposed that any of them had seen deceased in the company of appellant soon before the occurrence. What they have deposed is that they had seen deceased lying in injured condition at the place of occurrence when they had reached there.
21. The settled law with respect to 'last seen theory ' has been reiterated in various cases and has been succinctly elucidated in "[PRECEDENT], wherein the Hon'ble Apex Court has observed:
14 This Court has time and again laid down the ingredients to be made out by the prosecution to prove the 'last seen together theory'. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established
22. In "[PRECEDENT], the Hon'ble Supreme Court has observed:-
12. Undoubtedly, it is a settled legal proposition that last seen theory comes into play only in a case where the time gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead (sic is small). Since the gap is very small there may not be any possibility that any person other than the accused may be the author of the crime
23. Having considered the testimonies of aforesaid two witnesses on the anvil of the principles laid down by Hon'ble Supreme Court in above mentioned judgements, we do not find any merit in the arguments advanced on behalf of State that the prosecution has been able to establish the last seen theory in this case.
Dying Declaration:-
24. Ld. Counsel for the State heavily relied upon the oral dying declarations purportedly made by deceased before PW-7 [ENTITY] and PW-8 [ENTITY] just before his death. He argued that said dying declarations constitute substantial piece of evidence in this case and are sufficient to base conviction of the appellant.
25. On the other hand, Ld counsel of appellant countered those arguments and contended that said allegation about dying declarations is not free from doubt and alleged dying declarations cannot be relied upon. Apart from making other submissions, he pointed out that there is no written dying declaration available on record. He submitted that the prosecution has tried to introduce the story of oral dying declarations having been made by deceased before said two witnesses but the same is not believable in the eyes of law.
[SECTION]. Law of dying declaration is, by now, almost settled that Dying declaration is admissible in evidence by virtue of [SECTION] of [ACT], despite same being hearsay. [SECTION] of the [ACT] is reproduced as under:-
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases.
(1) When it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question (2) to (8) xxxxxxxx
[SECTION]. In "[PRECEDENT], it is held that:-
"xxxxx a statement by a dying person as to cause of death has a special sanctity which should on first principles be respected if it is credible and trustworthy. There should not be any evidence to the effect that the statement was a result of tutoring, prompting or a product of imagination. Further the deceased should be in fit state of mind to make the statement. This caution and care has to be taken as the deceased is not subjected to cross-examination. The court must be fully satisfied that the dying declaration impress a truth on it, after examining the circumstances in which the dying person had made the ex-parte statement. If on such examination, the court is satisfied that the declaration was the true version of the occurrence, conviction could be solely based on it.
28. In "[PRECEDENT] it has been observed that where conviction is solely based on the dying declaration, the Court has to consider carefully the dying declaration and the evidence of the witnesses supporting it. Care should be taken to ensure whether it is established that the dying declaration was genuine, true and free from doubts and was recorded when the injured was in a fit state of mind.
29. In the case of "[PRECEDENT], the Constitution Bench of Hon'ble Supreme Court has held thus:-
The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is a man will not meet his Maker with a lie in his mouth (nemo moiturus praesumitur mentiri). [ENTITY] said, truth sits on the lips of a dying man. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.
30. In "[PRECEDENT], the Supreme Court has pointed out that the admissibility of the dying declaration rests on the principle of necessity. The principles thereof have been culled out in the following terms in paras 28 and 29 of the pronouncement which shed valuable light on the issue under examination in the present case and read as follows :-
29. A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinize all the relevant attendant circumstances. [see [PRECEDENT]. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and /or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it. In [PRECEDENT] the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-
declaration by itself insufficient for sustaining a (SIC) con charge of murder. In Kako Singh @ Surendra Singh v.
State of M.P. 1982 CriLJ 986: 1982 CriLJ 986 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have been coherent statement. In [PRECEDENT] this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In [PRECEDENT] the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present.
31. In the pronouncement in the case of "[PRECEDENT] the Supreme Court ruled thus:-
28. In K. Ramachandra Reddy Vs. Public Prosecutor [(1976) 3 SCC 618: 1976 SCC (Cri) 473:
AIR 1976 SC 1994] the Court having noticed the evidence of PW 20 therein who conducted the post- mortem that there were as many as 48 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries, came to the conclusion that in view of those serious injuries it was difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. It was also a case where the Magistrate did not put a direct question to the injured whether he was capable mentally to make any statement. In the circumstances this Court came to the conclusion that the Magistrate committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make any statement. It has been observed that even though the deceased might have been conscious in the strict sense of the term, there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence.
The certificate issued by the doctor that the deceased was in a fit state of mind to make statement by itself would not be sufficient to dispel the doubts created by the circumstances and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured.
xxxxxxxx Manner and standards of proof of a statement under Section
32 of the [ACT].
32. A Statement attributed to a dead person has to satisfy certain well recognized conditions before it can be admissible in evidence as a dying declaration under [SECTION] of [ACT]. Such conditions are laid down in the landmark judgment of the Supreme Court in "[PRECEDENT] which still holds the field. In this binding judicial pronouncement, the Supreme Court conducted a review of the relevant provisions of the [ACT] as well as judicial precedents of the Supreme Court and High Courts in India and laid down the principles thus:-
16. On a review of the relevant provisions of the [ACT] and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a mush higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
33. On the aspect of the scrutiny which the Court has to conduct and the conclusion which could be drawn, based on a dying declaration is concerned, in para 17, the court had observed as follows:-
17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.
34. Now adverting back to the facts of the present case. After going through the testimonies of PW-7 [ENTITY] and PW-8 [ENTITY] in so far as dying declarations are concerned, we find that the depositions made by said two witnesses in this regard, do not inspire confidence of the Court for the reasons indicated hereinbelow.
35. PW-7 [ENTITY] is found to have testified that he did not give any statement U/[SECTION] [ACT] to the police despite the fact that investigating agency has filed his statement U/[SECTION] [ACT] alongwith the charge sheet. Not only this, PW-7 also deposed that deceased had made dying declaration in his presence alone. Same contradicts the story propounded in the charge sheet as also to the testimony of [ENTITY] (PW-8) who claimed that deceased had made dying declaration in his presence also. It is also not out of place to mention here that [ENTITY] Investigating Officer i.e. PW-13 nowhere deposed during his testimony that PW-7 or PW-8 had told him during the investigation that deceased had made oral dying declarations before them prior to his death.
36. It is also pertinent to mention here that the conduct of PW-7 and PW-8 seems to be unnatural in as much as despite the fact that they were the first persons who had reached the scene of crime and had found deceased lying in injured condition over there but still, they did not care either to inform the police or their employer i.e. the owner of restaurant and also did not make any effort to remove the injured to the hospital for providing him immediate medical attention so as to save his life. The said unnatural conduct on the part of PW-7 and PW-8 create reasonable doubt regarding their presence at the scene of crime immediately after the occurrence.
37. There is another reason which persuades us to reach at the aforesaid conclusion. The prosecution story as propounded in the charge sheet is that incident in question took place at 10.00 am and PW-7 and PW- 8, after being told by deceased that appellant was the assailant, had apprehended him from Police Bazaar somewhere around 11.00 am and both of them took appellant to Police Station. However, the IO of this case i.e. PW-13 testified during trial that he had apprehended the appellant from hospital at 5.10 pm. For the said purpose, the testimony of PW10 is also relevant as the said witness states that appellant was apprehended at 11.00 am and he was taken to Police Station immediately thereafter. The said contradictions about the time, manner and place of apprehension of appellant also create reasonable doubt in the case of prosecution, benefit of which, must go in favour of appellant.
38. There is another aspect involved in the matter. There is nothing on record to show or even suggest as to what was the mental state of mind of deceased at the time of making so called dying declaration before PW-7 and PW-8. It cannot be overlooked that deceased had sustained as many as 20 incised injuries which were caused to him by sharp edged object i.e. knife and that too on the vital parts of his body including at Chest, face, neck and limbs. It is not believable that after having sustained 24 injuries, the deceased would have still gained courage/strength to converse with PW- 7 or PW-8 to the extent of having made so called oral dying declarations disclosing the name of the assailant and the manner in which incident was committed against him. Thus, we do not find it safe to rely upon so called oral dying declarations made by deceased before PW7 and PW8 in the backdrop of the discussion made herein above.
RECOVERY OF KNIFE
39. Ld. Counsel of State vehemently argued that there has been recovery of weapon of offence i.e. knife (Ex. P1) in pursuance to disclosure statement made by appellant and same constitutes material incriminating circumstance against the appellant as the injuries mentioned in Autopsy Report and which were sustained by deceased, were caused by sharp edged weapon.
40. On the other hand, counsel of appellant repelled the aforesaid argument by submitting before us that the recovery of knife Ex. P1 is totally doubtful and is not admissible in the eyes of law.
41. From the perusal of record, we find that as per case of prosecution, appellant had made one disclosure statement before IO after his arrest in this case and one knife Ex. P1 is also alleged to have been recovered at the instance of appellant from near the scene of crime i.e. the room wherein injuries were caused to deceased. However, it is important to note that the said disclosure statement was not proved at all throughout the trial either by IO or in the testimony of any other prosecution witness. In the absence thereof, it cannot be said that the aforesaid knife was got recovered in pursuance of disclosure statement made by appellant. Such type of recovery is not admissible in evidence even by taking recourse to provision contained in [SECTION] of [ACT].
42. In case titled as "[PRECEDENT], which was relied upon by Delhi High Court in "[PRECEDENT], has held as under:
xxxxx the discovery under [SECTION] of the [ACT] in presence of sub-ordinate police officers when the Investigating Officer is taking his sub-ordinate constable as a witness for the incriminating discovery then the same become very doubtful. xxxxx
43. As per [SECTION] and [SECTION] of [ACT], the confessional statement of accused persons either given to police officer or in police custody is not admissible in evidence. But [SECTION] is the proviso of [SECTION] and [SECTION]. As per [SECTION], [ACT], those portion of confessional statement given by the accused can be proved which led to discovery of any fact. The scope of the [SECTION] of The [ACT] was explained by the Privy Council in "[PRECEDENT]. Explaining the relationship between [SECTION] and [SECTION] and the ban imposed by [SECTION], their Lordships said:
[SECTION] 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 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. 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.
44. In the case titled as "[PRECEDENT], it has been held by The Hon'ble Supreme Court as under:-
11. xxxxx Although the interpretation and scope of [SECTION] has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says:
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.
12. 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] and [SECTION]. It is not necessary in this case to consider if this section qualifies, to any extent, [SECTION], 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 is the linch-pin 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 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 [PRECEDENT]). 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. xxxxx
45. In the matter titled as "[PRECEDENT], it has been held as under:-
25. With regard to [SECTION] of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under [SECTION] of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
46. Even otherwise, the recovery of said knife in the manner and from the place is also considered to be doubtful. We may note here that PW- 2 [ENTITY] and PW-6 [ENTITY] were claimed to be recovery witnesses of the said knife. However, one of the said two witnesses i.e. [ENTITY] (PW-6) deposed during trial that he does not know anything about this incident. Rather, he was illegally detained in police station for one and half day. Mr. [ENTITY] (PW-2) deposed that he was called at police station and his signature was obtained on recovery memo of the said knife. In case the testimony of said witness is believed then the recovery memo of knife if prepared at the police station itself then the same would lose its sanctity as held by the Hon'ble Supreme Court in "[PRECEDENT]
47. We may also add here that [ENTITY] (PW-6) and [ENTITY] (PW-2) the alleged recovery witnesses of knife, never identified the knife Ex. P1 during trial and nowhere testified that Ex. P1 was the same knife which was recovered in his presence. It was the duty of prosecution to put the said knife Ex. P1 to said witness during his testimony but same is not found to have been done in the present case.
48. There is another aspect involved in the matter which makes the recovery of knife Ex. P1 from the alleged place, doubtful. As already noted above, knife Ex. P1 was recovered during late night hours on the date of incident itself. As per admitted case of prosecution, the scene of crime i.e. the room wherein injuries were caused to deceased, was thoroughly searched by the police officials during evening hours on the date of incident itself but said knife was not recovered there from at that point of time. It is being claimed that the knife was recovered from the said room only after the appellant pointed out towards the said knife on subsequent visit made by police officials alongwith him to the said room during night hours. It is quite unbelieveable that the knife would not have been recovered from near the scene of crime at the time of previous search of the said place conducted by the IO. In this backdrop, the possibility of planting of said knife at the said place in order to create false evidence against the appellant, cannot be ruled out. Thus, we are inclined to accept the contention raised on behalf of appellant that the prosecution has failed to establish the recovery of said knife at the instance of appellant.
ALLEGED CONFESSIONAL STATEMENT OF APPELLANT
49. It is claimed on behalf of State that appellant had made confessional statement U/[SECTION] [ACT] before Magistrate during investigation. However, no benefit can be derived by prosecution from the said statement for the simple reason that appellant is found to have categorically stated before Magistrate in said statement that police had beaten him up and had also threatened him during police custody and thus, no reliance can be placed on such a confessional statement.
FSL RESULT WITH REGARD TO KNIFE AND T-SHIRT
50. As regards the FSL result (Ex.9) relied upon by prosecution, we may mention here that although it is opined by FSL Expert that blood was found on knife Ex. P1 and T-Shirt which was allegedly worn by appellant at the time of occurrence but the said result does not indict the appellant with the offence of murder in any manner. We may also mention here that investigating agency did not make any request for carrying out DNA Profiling in respect of the relevant exhibits. In other words, there is no iota of evidence to show that the blood found present on the knife Ex. P1 and T- Shirt of the appellant/ accused ( Ex.3) were of the deceased.
51. At this juncture, we may also note that chance prints were lifted from the scene of crime by Finger Print Proficient. However, finger print report available on record shows that those chance prints were found to be faint at the time of their examination by Expert and thus, same can also not be taken into consideration so as to arrive at the conclusion of guilt of appellant.
OTHER CIRCUMSTANCES
52. Apart from the above discussion, the prosecution story which was unfolded by its witnesses during trial, raised certain questions which could not be answered by prosecution during the trial. Firstly, it is claimed that incident took place at 10.00 am and PW-7 and PW-8 had also reached the place of occurrence soon after the commission of incident but FIR is found to have been registered only at 2.45 pm and that too, on the statement of Shri [ENTITY] (PW-1) owner of the restaurant and not on the statement of either PW-7 or of PW-8. There is no explanation as to why the FIR could not have been registered on the statement of PW-7 or of PW-8 and as to why the statements of said two witnesses were not recorded prior to registration of FIR. This is more so when both the said witnesses claimed to have produced appellant in Police Station after apprehending him somewhere around 11.00 am or so. Secondly, according to informant Shri [ENTITY] (PW-1) his workers namely, [ENTITY] and [ENTITY] knew the details of incident. But [ENTITY] while appering as PW-6 deposed that he does not know anything about this case. The other person [ENTITY] has not been examined by the prosecution for the reasons best know to them. Thirdly, it is not clear who took injured to Nazareth Hospital and at what time. Moreover, neither the MLC has been proved nor any doctor form Nazareth Hospital has been examined. Fourthly, there is nothing on record to show as to how the information reached at PS regarding the occurrence and as to how the involvement of appellant came to the knowledge of police when it is nowhere the case of prosecution that PW7 or PW8 had met the police prior to apprehension of appellant. Fifthly, Post Mortem report is totally silent about the time since death. It is also pertinent to note that no subsequent opinion with regard to Knife Ex. P1, has been taken by IO from Autopsy Surgeon during investigation. Same clearly points out towards the faulty investigation conducted in this case. Sixthly, no motive whatsoever has been attributed to the appellant for committing the murder of deceased. It is well settled law that in a case based upon circumstantial evidence, motive assumes great importance and it is enjoined upon prosecution to establish motive on the part of accused for committing ghastly crime like murder. Same is totally found missing in the present case. Seventhly, it has come on record that two persons were also interrogated during investigation meaning thereby that said two persons were also under the net of suspicion of police. However, the entire record is silent as to what sort of investigation was conducted qua said two persons and who were the said two persons who were so interrogated by the IO. Eighthly, according to [ENTITY] (PW-10) he went to search the accused [ENTITY] and he was found at 11am on the same day at Indane Hotel. But according to IO i.e, PW-13 the accused detained at 5.10 pm on 20-03-2011 from Nazareth Hospital on being produced by his co- worker [ENTITY] whereas [ENTITY] PW-2 has not deposed that accused was apprehended and produced by him. Ninthly, it has come on record during trial that brother of deceased had seen mobile phone of deceased in the possession of appellant but again, no investigation is found to have been carried out on the said aspect. The entire record is silent as to what happened to the said mobile phone. IO perhaps did not seem it necessary to verify as to whether deceased was carrying any mobile phone at the time of occurrence, what was the SIM connection number thereof and what was the location of said SIM number at the time of occurrence. Likewise, IO also did not make any effort to carry out investigation as to whether appellant was having any mobile phone at the time of incident in question and what was the location of said mobile phone at that time. We are not happy with the quality of investigation carried out in this case. CONCLUSION
53. The net result of above discussion is that we do not agree with the finding of guilt of appellant recorded by trial Court in this case as we find that prosecution has miserably failed to bring home the guilt of appellant for the murder of [ENTITY], beyond pales of reasonable doubt. Consequently, we set-aside the impugned judgement and acquit the appellant of the said charge by giving him benefit of doubt. The appellant be released forthwith, if not required in any other case.
54. A copy of this Judgment be sent to the Superintendent Jail concerned for information and necessary compliance. Record of trial court be sent back immediately.
JUDGE CHIEF JUSTICE [ENTITY]