HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 05.12.2018 Delivered on 21.02.2019 Court No. - 34 Case :- JAIL APPEAL No. - [SECTION]79 of 2008 Appellant :- [ENTITY] Respondent :- State Counsel for Appellant :- From Jail, [ENTITY], A.C. Counsel for Respondent :- A.G.A. AND Case :- CRIMINAL APPEAL No. - 1395 of 2008 Appellant :- [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] Counsel for Respondent :- Govt. Advocate Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
(Delivered by Hon'ble [ENTITY],J.)
1. Jail Appeal No. [SECTION]79 of 2008 under [SECTION] [ACT] has been filed by accused-appellant, [ENTITY] through Superintendent of Jail, Aligarh whereas [CASE NUMBER] under [SECTION] [ACT] has been filed by accused-appellant, [ENTITY]. Both the appeals arise out of single judgment and order dated 19.02.2008, passed by Sri [ENTITY], Additional Sessions Judge (Court No. 6), Aligarh in [CASE NUMBER] relating to [CASE NUMBER], P.S. Chandaus, District Aligarh whereby both accused-appellants have been convicted under [SECTION] [ACT] and sentenced to undergo life imprisonment with a fine of Rs. 5,000/- each. In default of payment of fine, they have to undergo further simple imprisonment of two years each.
2. Factual matrix of the case as evident from First Information Report (hereinafter referred to as "FIR") as well as material available on record is as follows.
3. A written report, Ex.Ka-1 dated 01.07.2005 was submitted in Police Station Chandaus, District Aligarh by [ENTITY], PW-1, [ENTITY], alleging that in the morning of 01.07.2005, [ENTITY] along with his brother, [ENTITY] was present at his home. At about 09:30 AM, accused-appellants [ENTITY] and [ENTITY], residents of Qasba, Chandaus, came over there and called [ENTITY]'s brother [ENTITY] out of the house. When [ENTITY] saw outside house, he found all the three (two accused and one [ENTITY]'s brother) were talking with each other at some distance from [ENTITY]'s house. After a little, [ENTITY] heard alarm of his brother, [ENTITY], craving to save him, whereupon [ENTITY] and his brother [ENTITY] rushed to the spot and witnessed, [ENTITY] and [ENTITY] inflicting knife blows to [ENTITY]. [ENTITY] and [ENTITY] then raised alarm whereupon, [ENTITY] and PW-2, [ENTITY] also reached there. They exhorted accused-appellants whereupon they (accused-appellants), assuming injured [ENTITY] to be dead, left him in a pool of blood and fled towards market, wielding knives and holding threats. Due to terror created by accused-appellants, shopkeepers started downing shutters of shops and market began to close. All passers-by and travelers started hue and cry, running hither and thither resulting in stampede and affecting public peace and law and order badly. Incident pertained to at about 10:00 AM. In order to save life of injured [ENTITY], he was taken to Medical College and at the time of admission in the hospital itself, Doctor declared him dead. Leaving dead body in the hospital, [ENTITY] went to police station to lodge report. On the basis of Written Report Ex.Ka-1 presented by [ENTITY], PW-1, a [CASE NUMBER] under [SECTION] [ACT] was registered at P.S. Chandaus, District Aligarh by Constable Clerk [ENTITY]. He prepared a Chik Report (Ex.Ka-2) and also made entry in General Diary as Report No. 20 at 01:30 PM on 01.07.2005, a copy of which is Ex.Ka-3.
4. After the case was registered, investigation was undertaken by PW-3, [ENTITY] who took copies of FIR, Chik Report, extract of case diary with him and recorded statement of scribe of FIR. He also recorded statement of PW-1, [ENTITY] [ENTITY]. On pointing out of [ENTITY], he visited spot and prepared site plan, Ex.Ka-4. The same day, he arrested accused-appellants who stated that they had been engaged as Driver and Helper on the truck along with deceased [ENTITY]. Investigating Officer (hereinafter referred to as "I.O.") also recovered knives, Material Exhibits-1 and 2, on pointing out of accused-appellants from the place near bridge of Karbal River. Knives were kept in two separate clothes, properly sealed and thereafter, recovery memo, Ex.Ka-5 was prepared in the presence of witnesses, [ENTITY] and [ENTITY]. Blood stained clothes of [ENTITY] and witness [ENTITY] were also sealed in a cloth and recovery memo, Ex.Ka-6 was prepared in respect thereof. I.O. PW-3 then after duly sealing the dead body and preparing relevant documents sent the same to District Hospital for postmortem through Constables [ENTITY] and [ENTITY] of police station, Civil Lines, Aligarh.
5. Autopsy on the dead body of deceased [ENTITY] was conducted by PW-5, Dr. [ENTITY], Senior Child Specialist, M.S. Hospital, Aligarh on 01.07.2005 at about 05:40 PM. On external examination, deceased was found of average body built; aged about 22 years; about - day had passed since his death; rigor mortis present in upper and lower limbs. He found following ante mortem injuries on the person of deceased.
"(i) Incised wound 3 cm x 1 cm x bone deep on right side chest, 5 cm below right nipple.
(ii) Incised wound 7 cm x 2 cm x muscle deep on right forearm and wrist.
(iii) Incised wound 2 cm x 1 cm x muscle deep on right side lower part of abdomen."
(Emphasis added)
6. On internal examination, right side 9th rib was fractured; heart was empty; abdominal cavity was filled with blood; teeth 16 x 16; stomach empty; small and large intestine filled with gases and faecal matter and incised wound on right lobe of liver. In the opinion of doctor, death had occurred due to shock and hemorrhage. Thereafter, dead body along with clothes of deceased were returned to Constables who had brought dead body. PW-5 prepared postmortem report Ex.Ka-9.
7. After conclusion of investigation, PW-3, [ENTITY], I.O., submitted charge-sheet dated 08.09.2005 (Ex.Ka-7) in the Court of Chief Judicial Magistrate, Aligarh against accused-appellants under [SECTION] [ACT]. Vide order dated 24.12.2005, case was committed to Court of Sessions, fixing 07.01.2006 for trial. Charge in the case was framed by Additional Sessions Judge, Court No. 6, Aligarh which reads as under :-
eSa ,l0,l0 yky] vij l= U;k;k/kh'k] dksVZ la[;k&6] vyhx<+ vki vfHk;qDrx.k jghl o dnhj ij fuEu vkjksi vkjksfir djrk gwWa%& 1- ;g fd fnukad 01-07-05 dks le; djhc 10 cts fnu cgn LFkku dLck cktkj p.MkSl vPNu ds ?kj ds ikl vUrxZr Fkkuk p.MkSl ftyk vyhx<+ esa vkius lkekU; vk'k; dks vxzlj djrs gq, vius&vius Nqjh ls oknh ckcw [kkWa ds HkkbZ vQlj mQZ xV~Vk dks ekjdj rFkk xksn dj pksVsa igqapkbZ] ftlls mldh e`R;q gks x;hA bl izdkj vkius Hkk0na0 la0 dh /kkjk&302@34 ds v/[ENTITY]Muh; vijk/k dkfjr fd;k] tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk eSa ;g funsZ'k nsrk gwWa fd mijksDr vkjksi ds vk/kkj ij vkidk ijh{k.k bl U;k;ky; }kjk fd;k tk;sxkA "I, [ENTITY], Additional Sessions Judge, Court No. 6, Aligarh, charge you [ENTITY] and [ENTITY] as follows:-
That you on 01.07.2005 at about 10:00 AM in Qasba Bazar, Chandaus near the house of [ENTITY] within Police Station Chandaun, District Aligarh infurtherance of common intention, by beating and inflicting knife blows you caused grievous injuries to [ENTITY], brother of [ENTITY] [ENTITY] which resulted in his death. Thereby you committed an offence punishable under [SECTION] [ACT] which is within the cognizance of this Court.
I hereby direct you be tried for the aforesaid charge by this Court." (Emphasis added) (English Translation by Court)
8. Both accused-appellants pleaded not guilty and claimed to be tried.
9. In support of its case, prosecution has examined six witnesses in all, out of which PW-1, [ENTITY], [ENTITY] and PW-2 [ENTITY] are witnesses of fact. PW-3 [ENTITY], I.O., has proved Chik Report, Ex.Ka-2, carbon copy of G.D. Ex.Ka-3, Material Exhibits 1 and 2 i.e. knives recovered on the pointing out of accused, recovery memo Ex.Ka-5, in respect of knives, recovery memo Ex.Ka-6, pertaining to bloodstained clothes of [ENTITY] [ENTITY] and [ENTITY] and charge-sheet Ex.Ka-7. PW-4 [ENTITY] is witness of recovery memo Ex.Ka-6, in respect of bloodstained clothes of [ENTITY] [ENTITY] and [ENTITY]. PW-5 Dr. [ENTITY] had conducted autopsy on the dead body of deceased and has proved postmortem report Ex.Ka-8. PW-6, Head Constable, [ENTITY] had prepared relevant papers with regard to autopsy and has proved Inquest Ex.Ka-10, [ENTITY] Ex.Ka-11, Photo Nash Ex.Ka-14, specimen of seal, Report of R.I. Ex.Ka-12 and letter of request to C.M.O. Ex.Ka-13.
10. After conclusion of prosecution evidence, statements of accused-appellants under [SECTION] [ACT] were recorded. Both of them has stated that prosecution story is false and witnesses are also deposing falsely. False charge-sheet has been submitted and they have been implicated in the case by police forcefully.
11. After conclusion of hearing, Trial Court assessed evidence and has recorded a finding of guilt convicting accused-appellants, [ENTITY] and [ENTITY] under [SECTION] read with [SECTION] [ACT] and sentenced them with life imprisonment and a fine of Rs. 5,000/- each as stated above.
12. In order to arrive at finding of guilt for convicting both appellants, Trial Court has given following reasons :-
(i) Incident had taken place at around 09:30/10:00 AM while report was lodged at around 01:30 PM but it cannot be said to be a delayed FIR for the reason that deceased initially, was seriously injured and taken to Medical College, Aligarh where he was declared dead and, thereafter, report was lodged at P.S. Chandaus by brother of deceased.
(ii) FIR is neither ante-time nor anti-dated. Distance from Village-Chandaus to Medical College at Aligarh appears to be 40-50 kilometres since it took about one and a half hours from Village-Chandaus to Medical College, Aligarh and Injured, [ENTITY], was declared dead at around 11-12 hours in Medical College, Aligarh. Conduct of [ENTITY] and his brother in first taking care of [ENTITY] to take him to Medical College is quite reasonable and therefore, it cannot be said that there was any delay in lodging of report.
(iii) There is no delay in sending report to Magistrate.
(iv) If some place has not been shown in site plan that will not help accused-appellants, when there are other evidence sufficient to record a finding of guilt against accused-appellants.
(v) Non-recording of names of witnesses in G.D is neither a normal practice nor it is any such defect so as to doubt prosecution case.
(vi) There is no material contradiction in oral testimony of PW-1 and PW-2 and in fact, it is corroborated by medical evidence.
(vii) A doubt was created that postmortem was conducted on the body of deceased which was not of [ENTITY] since it was mentioned in column-4 of postmortem report that penis of dead body was not circumcised. This has no substance for the reason that [ENTITY] was brought by his brother PW-1 and others to Medical College where he was declared dead and Panchayatnama was also prepared on the same dead body, which is on record as Ex.Ka-10.
(viii) Discovery of knives on the information received from accused-appellants, has been proved by witnesses and no material contradiction could be extracted in cross-examination and, therefore, evidence is consistent.
(ix) Minor inconsistencies in the evidence would not render otherwise credible ocular and oral testimony of witnesses which is duly corroborated by other materials.
13. Heard Sri [ENTITY], learned Amicus Curiae appearing for appellant-[ENTITY] in Jail Appeal No. [SECTION]79 of 2008 and Sri [ENTITY], learned counsel appearing for appellant-[ENTITY] in [CASE NUMBER]. Sri [ENTITY], learned A.G.A. was heard on behalf of State in both the appeals.
14. Assailing the judgment of Court below, learned counsel for accused-appellants contended that there was an apparent delay in lodging of FIR; report was not expeditiously forwarded to Magistrate; there is a serious doubt that postmortem report is not that of [ENTITY] (the alleged deceased brother of [ENTITY]); PW-1 is closely related to deceased; there is no market shown in site plan; PW-2, another witness of fact, is also a distant relative of deceased; there was no enmity; there was no motive to commit the offence as alleged and that prosecution failed miserably to prove its case beyond reasonable doubt, hence appellants have been convicted illegally.
15. On the contrary, learned A.G.A. has contended that this is a case of ocular testimony of witnesses of fact which is duly corroborated by injuries sustained by deceased [ENTITY] as proved by postmortem and Doctor who conducted postmortem. Even weapon of crime was discovered on the information given by accused-appellants in custody and, therefore, this evidence also corroborates the fact that accused-appellants have committed crime in question. There is no material illegality or irregularity in the process so as to discredit prosecution version. Hence, judgment of Court below warrants no interference.
16. In order to examine rival submissions, we find from record that both accused-appellants were well acquainted with deceased as well as [ENTITY] and all were residents of Village Chandaus. At around 09:30 AM, accused-appellants came to residence of [ENTITY] and deceased when both were present thereat. They called [ENTITY] (the deceased) and when reached near market inflicted knife blows on him and when he raised alarm, [ENTITY] came out from his house [ENTITY], [ENTITY] and [ENTITY] also came to that place and exhorted accused-appellants who ran away threatening others from creating obstructions.
17. [ENTITY] PW-1 has clarified that after calling [ENTITY] from house, accused-appellants and [ENTITY] were talking just at a distance of about 10 paces from house. From the statements of PW-1 and PW-2, it appears that there were residential houses as well as shops in nearby area. PW-1 himself has deposed that market is at about 40 furlongs from his house. On alarm raised by deceased [ENTITY], PW-1 [ENTITY] came out from his house and saw accused-appellants inflicting knife blows on [ENTITY]. Others also gathered and immediately. They arranged a Maruti Van and brought injured [ENTITY] to Medical College, Aligarh at around 11-12 in the day where [ENTITY] was declared dead. The factum that [ENTITY] was brought in casualty of J.N. Medical College, Aligarh has been proved by PW-6 Head Constable [ENTITY] stating that it is mentioned in Book No. 77. Statement of PW-1 is duly corroborated by statement of PW-2 also who has also given an ocular version of having seen knife blows inflicted by accused-appellants upon [ENTITY] and, thereafter, they ran away. Both witnesses have also said that incident caused furor in market and people getting frightened made no attempt to catch accused-appellants. Injured [ENTITY] was taken in a Maruti Van which was brought about 10-15 minutes of incident and thereby, injured was brought to Medical College at Aligarh where he was declared dead. In cross-examination, we do not find any such material contradiction extracted by defence so as to disbelieve the consistent and corroborative evidence of PW-1 and PW-2. [ENTITY] was a Driver and this fact has been admitted by [ENTITY] while reply to question no. 18 under [SECTION] [ACT] [ENTITY] was a labourer.
18. Learned counsel for appellants pointed out that PW-1 stated that market is about 40 furlongs from his house and trio were talking at about 10 paces from house of PW-1 while PW-2 has stated that his house was in market and incident took place at about 100 yards from his house. He has further said that [ENTITY]'s house is about three and a half kilometers from the place of incident and police station from the place of incident is about 1 Km which shows a material contradiction with place of incident vis vis, distance mentioned by PW-1 and PW-2. Having gone through entire evidence carefully, we find no reason to discredit ocular version of PW-1 and PW-2 for the above reason and in our view, there is no such material contradiction. PW-1 is an illiterate person and even cannot sign but put his thumb impression on documents. When injured was taken to Medical College, clothes of PW-1 and [ENTITY] PW-2 got stained with blood which were seized by police vide furd memo Ex.Ka-6. It shows that immediately after incident, both were there so as to take [ENTITY] to Medical College for treatment but injuries proved fatal and he was declared dead when reached Medical College.
19. The mere fact that PW-1 is a close relative i.e. brother of deceased, is not a reason to discredit otherwise credible evidence of PW-1. The testimony of an eye-witness merely because he happens to be a relative of deceased cannot be discarded as close relatives would be the last one to screen out the real culprit and implicate innocent person, as held in [PRECEDENT]. This aspect of the mater has further been clarified in [PRECEDENT] as follows:
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In [PRECEDENT], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."
20. Therefore, the mere fact that ocular version of PW-1, [ENTITY] [ENTITY], should be discarded since he is close relative i.e. brother of deceased, cannot be accepted. Further, ocular evidence is duly corroborated by medical evidence, inasmuch as, PW-1 and PW-2, both have deposed that accused-appellants inflicted knives blows upon [ENTITY] and this is what has been found in postmortem, which has been duly proved by Dr. [ENTITY], Senior Child Specialist, M.S. Hospital, Aligarh who conducted postmortem on the body of deceased and deposed as PW-5. Three incised wounds have been found on the body of [ENTITY], one on chest and another on lower part of abdomen which are on vital parts of body.
21. Learned counsel for appellants contended that witnesses have said that accused-appellants inflicted several knives blows on [ENTITY] and PW-1 has said that both appellants inflicted three blows of knives but only three incised wounds have been found on the body of deceased, hence, ocular evidence is not consistent with medical evidence and there is a variation. When a person witnesses an incident, it cannot be expected from him that he would witness each and every movement and give minute details of entire incident like a scripted version and record everything very minutely. Substantial material aspects are noticed by witness and recorded in his mind and other facts if with some variation are given due to human nature, sometimes exaggerating the things and sometimes to make statement more credible. In a criminal case, when a testimony of ocular evidence is to be assessed, the normal conduct of witness; statement given by him broadly which a person, witness to an incident, is supposed to notice, is to be seen, particularly when it is corroborated by other evidence also. Each and every minor variation or inconsistency cannot be treated to be a death blow to the otherwise credible evidence of witness. Similarly, when there is some variation between medical and ocular evidence, it is well settled that oral evidence has to get primacy and medical evidence is basically opinionative. Medical evidence generally shows that injuries could have been caused in the manner alleged and nothing more than that. Testimony of eye witness cannot be thrown out on the ground of inconsistency with medical evidence not in the substance but in details.
22. So far as discrepancies, variation and contradiction occurred in the prosecution case are concerned, we have minutely analysed entire evidence in consonance with the submissions raised by learned Amicus Curiae on each and every point and find that the contradiction, variation and omission said to have occurred in prosecution evidence do not go to the root of case nor any prejudice is caused to accused-appellants due to laches on part of Investigating Officer, particularly when every fact has been explained by prosecution in its evidence, thus, same cannot form basis to disbelieve prosecution case. In [PRECEDENT], Court held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." Further, Court in [PRECEDENT] has held that minor contradictions are bound to appear in statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
23. In [PRECEDENT], Court said "The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by Court. If opinion is bereft of logic or objectivity, Court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation "
24. In [PRECEDENT], Court following the decision in [PRECEDENT] (Supra) said that when opinion given is not inconsistent with the probability of the case, Court cannot discard credible direct evidence otherwise administration of justice would have to depend on opinionative evidence of medical expert. Medical jurisprudence is not an exact science with precision; but merely opinionative.
25. In the present case, the only difference between medical and ocular evidence is number of injuries. PW-1 stated that both accused-appellants inflicted three blows of knife upon deceased while in postmortem only three incised wounds have been found on the body of deceased. The fact is that multiple incised wounds have been found on the body of deceased [ENTITY], therefore, it is duly corroborated and number of blows mentioned by PW-1 by itself, if not consistent with medical report, would not be sufficient to discard the evidence of PW-1 which is corroborated by statement of PW-2 that [ENTITY] and [ENTITY] both were inflicting knives blows on [ENTITY]. Thus, we do not find any material contradiction in medical and ocular evidence to discard prosecution version or to hold that prosecution has not proved its case beyond reasonable doubt.
[SECTION]. We have already noticed that there is no delay in lodging of report. PW-3 Sub-Inspector [ENTITY], has also proved that accused-appellants were arrested on 01.07.2005 itself. On the information given by them, two knives were recovered near the bridge of Karbal River at Melawa Road. [ENTITY], PW-4 has proved discovery of knives and recovery memo i.e. Ex.Ka-5. It is true that admission of guilt by accused-appellants before police is not admissible but factum that weapon of crime was discovered when accused-appellants were in custody and on the information received from them, to that extent fact is admissible under [SECTION] of [ACT] (hereinafter referred to as "[ACT]"). This fact further corroborates that accused-appellants have committed crime.
27. [SECTION] of [ACT] provides for how much of information received from accused who is in custody of police may be proved. It reads as under:
"27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
28. Aforesaid provision is by way of proviso to [SECTION] and [SECTION] of [ACT]. An statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused.
29. In [PRECEDENT] Court said that [SECTION] permits proof of so much of information which is given by persons accused of an offence when in custody of a Police Officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. [SECTION] and [SECTION] of [ACT] provides that no confession made to a Police Officer whether in custody or not can be proved as against the accused. [SECTION], therefore, is proviso to above Sections and statement even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against accused in the circumstances stated in [SECTION].
30. In [PRECEDENT] Court observed that though interpretation and scope of [SECTION] has been subject of consideration in several authoritative pronouncement but its application to concrete cases is not always free from difficulty. In order to make its application swift and convenient Court considered the provision again and said:
"12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly [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 in to operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."
31. Idea behind [SECTION] has been explained by Court in para 20 of judgment in [PRECEDENT] (supra) as under:
"20. If all that is required to lift the ban be the inclusion in the confession information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. [SECTION] was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under [SECTION] as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under [SECTION] if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under [SECTION] is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in [SECTION] of the [ACT] is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-exculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in [PRECEDENT] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (see [PRECEDENT]). No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. "
(Emphasis Added)
32. Similar issue has been considered in a recent judgment of Supreme Court in [CASE NUMBER], [PRECEDENT], decided on 02.08.2018. Therein the Court held that [ACT] provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning to the alleged offence, such statement can be proved against him. Court held that recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt and such confessional statement stands and satisfies the test of [SECTION] of [ACT].
33. The witnesses have proved the fact that weapon i.e. knives used in commission of offence were recovered on pointing out of accused-appellants in custody. This fact which has been proved, in our view, is admissible in evidence. Court below has rightly taken the same as a relevant admissible evidence as part of chain of other circumstantial evidences.
34. Place of incident has also been proved. Nothing has been argued before us to show that there was any infirmity in this regard.
35. An attempt was made to argue that body upon which postmortem conducted was not that of [ENTITY] since it was mentioned in postmortem report that penis was not circumcised. However, we find that deceased was taken to hospital by his brother and others where he was declared dead and it was brought for postmortem by Constables [ENTITY], Civil Police and [ENTITY], Home Guard which fact has been proved by PW-5 Dr. [ENTITY]. He has also proved all documents which were received by him. Body of deceased was seized by PW-6, Head Constable [ENTITY], and after preparing [ENTITY], he handed over dead body to aforesaid two persons who brought the body for postmortem i.e. [ENTITY] and [ENTITY] and all these facts have been proved in the statement of PW-6. Defence has not been able to extract anything in cross-examination so as to discredit the evidence of PW-6, therefore, we find no reason to doubt identity of deceased. Moreso, for the reason that on this aspect, no question has been asked by defencce in cross-examination either from Doctor who conducted postmortem or from PW-6 who prepared [ENTITY] and handed over body to the persons who took it to hospital for postmortem.
36. In these facts and circumstances, we are of the view that this is a clear case of hit and run, which has been proved by prosecution beyond reasonable doubt against accused-appellants, based on ocular testimony and discovery of weapon of crime and with other corroborative evidence. Hence, Trial Court has rightly convicted accused-appellants.
37. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
38. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : ([PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]].
39. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
40. Hence, applying the principles laid down by Supreme Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed in the case in hand, we are clearly of the view that punishment imposed upon accused-appellants is proportionate to gravity of offence and, therefore, impugned judgment of Court below does not deserve to be interfered on this score also.
41. In view of above discussion, both the appeals are dismissed. Impugned judgment and order dated 19.02.2008, passed by Sri [ENTITY], Additional Sessions Judge (Court No. 6), Aligarh in [CASE NUMBER] relating to [CASE NUMBER], P.S. Chandaus, District Aligarh awarding sentence of imprisonment for life to accused-appellants, [ENTITY] and [ENTITY] for the offence under [SECTION] read with [SECTION] [ACT], is maintained and confirmed.
42. Lower court record along with the copy of this judgment be sent back immediately to court concerned for necessary compliance. Copy of judgment be also sent to accused-appellants through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.
43. Sri [ENTITY], learned Amicus Curiae appearing for appellant-[ENTITY] in Jail Appeal No. [SECTION]79 of 2008, has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri [ENTITY], Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
44. Before parting, we intend to place on record that for last sometime this Court hearing criminal appeals of capital punishments has mostly found that in cases where heinous crimes of rape and murder etc are involved, either investigation is not upto mark or Investigating Officers, maybe due to lack of knowledge or competence or qualifications, leave several lapses. Very frequently, we have noticed that Investigating Officers have not taken even basic steps necessary for investigation of particular kind of offences. For Example, in murder cases, site is not properly inspected, necessary information and forensic evidence is not collected. In rape cases, medical examination of victim is not conducted in time and properly and delay is sometimes by weeks' and months' together and so on. It appears that Investigating Officers are either ignorant of basic steps and fundamental of proper investigation in different kinds of crimes or they deliberately and intentionally proceed in a manner so that crucial and vital evidence may get contaminated or destroyed for the reasons other than bonafide.
45. When questioned, learned A.G.A. has stated that number of criminal cases requiring investigation is very large while available Officers are quite inadequate in number and due to pressure of work, these officers, many a times, commit basic mistakes and blunders. Laxity on the part of prosecution and other State Authorities is writ large in many cases. Even post-mortem, which is a very important step for investigation, is not conducted by a Competent Medical Officer but done in a casual and reckless manner, mostly by Doctors who are not expert in Forensic Science to conduct autopsy. In the present case, we may place on record that PW-5 who has conducted post-mortem is a Senior Child Specialist which he himself has admitted. In many other cases, we have found that autopsy was conducted by specialist in Ophthalmologist or Dermatologist etc. and not by a Forensic Expert. It is really disgusting as to why autopsy is not conducted by a Forensic Expert as he may be able not to leave any lacuna in postmortem and would also be competent to depose in Courts so as to help Courts in finding out the truth.
46. Similarly, forensic examination of various aspects like, blood, semen, sperm, weapons etc. are not conducted by Forensic Experts/Chemical Examiners properly. We find almost in most cases, total lack of appropriate corroborative forensic examination of material facts creating lot of difficulty to the Courts to find out truth. Many times, for these lapses, prosecution fails and accused are acquitted on account of sheer lack and negligence on the part of prosecution in conducting appropriate and scientific investigation to corroborate each and every aspect in the matter and prove guilt of accused beyond reasonable doubt by connecting every piece of chain. This requires a serious immediate attention and consideration on the part of Government.
47. In State of U.P., we have seen that a number of serious and heinous crimes against women are continuously increasing in the last few years on account whereof public are not feeling safe. Yet no serious attempt has been made for maintenance of law and order by deploying adequate number of police personnel for prevention of crime. For effective and scientific investigation where crime has been committed, and effective prosecution so that guilty persons are not able to escape from cluches of law due to weak and faulty prosecution is an obligation of State. It is obliged to do its best so as to prove the guilt of persons who has actually committed crime and ensure that they are adequately punished.
48. Time and again, observations have been made by Courts but all have gone unheeded and responsible Authorities in State have not taken care to mitigate misery in the life of poor people.
49. In [PRECEDENT], Court has observed :
"It is the duty of the State Government to discharge its obligations in the matters relating to law and order and remain alert to the issues that emerge. It has a duty also to see that the investigations are speedily completed in an appropriate manner. If there is a failure of law and order situation, the executive is to be blamed. In the maintenance of law and order situation the judicial officers are not to be involved. But the executive has to remain absolutely alive to its duties and we are sure, the State Government shall look into the aspects and endeavour to see that appropriate steps are taken to maintain the law and order situation. "
50. A citizens' fundamental right to life and liberty includes a decent, secured and protected life. An effective machinery to maintain law and order which includes proper policing having all requisite facilities is an integrated constituent thereof. A common man including an honest taxpayers has a fundamental right to have appropriate facilities for effective investigation available to police so that common man may not feel unsafe and live with constant fear of criminals. He is entitled to have confidence of effective policing in State.
51. We would like to bring to the notice of Chief Secretary, U.P., Lucknow, Principal Secretary, Home as well as Principal Secretary, Law and Legal Remembrances, U.P. all these deficiencies on account whereof many a times, due to faulty investigation and weak prosecution, criminals are acquitted. Rule of law, for the laxity of State fails to attain goal. These authorities shall look into the matter to find out ways and methods for improvement in the mechanism of investigation and prosecution. As a matter of suggestion, we may observe that State may take steps for separating duties of maintenance of law and order from investigation and prosecution and different wings of Expert personnels in all the three fields may be constituted; forensic laboratories may be made available in all the Districts so that there may not be delay in Forensic Examination or inspection of crime scene by Forensic Experts and in the matter like post-mortem etc., Expert Forensic Medical Officers should be deployed instead of assigning duty of autopsy to Medical Officer having specialization in fields like Ophthalmology or Dermatology etc.
52. Registrar General shall forward a copy of this judgment to Chief Secretary, U.P., Lucknow, Additional Chief Secretary/Principal Secretary, Home as well as Principal Secretary, Law and Legal Remembrances, U.P. for information and necessary action. They would submit report of action taken in the matter within 15 days after expiry of six months from the date of receipt of judgment.
Order Date :- 21.02.2019 [ENTITY]