Crl.A.No.52-DB of [SECTION]1 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.52-DB of [SECTION]1 Date of decision: May 17, [SECTION]3 [ENTITY] Appellant Vs. [ENTITY] Respondent CORAM:- HON'BLE MR JUSTICE AJAY KUMAR MITTAL HON'BLE MR JUSTICE GURMEET SINGH SANDHAWALIA Present: Mr. [ENTITY], Advocate for the appellant. Mr. [ENTITY], Sr.DAG,Haryana. [ENTITY],J.
1. Appellant [ENTITY] (in short, "[ENTITY]") has filed the present appeal against the judgment passed by learned District & Sessions Judge, Sirsa dated 11.11.[SECTION]0 whereby he has been convicted and sentenced under [SECTION] [ACT] to undergo life imprisonment and to pay a fine of ` 10,000/- and in default thereof, to undergo further simple imprisonment for four months. The appellant has also been convicted and sentenced under [SECTION] [ACT] to undergo RI for three years and to pay a fine of ` 5000/- and in default thereof, to undergo further simple imprisonment for two months. Both the sentences have been ordered to run concurrently. Initially, there were three accused namely [ENTITY], [ENTITY] and [ENTITY]. [ENTITY] and [ENTITY] have been convicted and sentenced as mentioned above, whereas [ENTITY] has been acquitted. [ENTITY] has not filed any appeal. Only [ENTITY] has filed the present appeal.
2. Case of the prosecution is that complainant [ENTITY] wife of [ENTITY], resident of Village Chormar, made a statement to the police on 12.9.2009 to the effect that her husband expired several years ago. She had three sons namely [ENTITY], [ENTITY] and [ENTITY]. [ENTITY] and [ENTITY] had expired and their families were living separately. She was living with the children of her son [ENTITY]. Her elder son [ENTITY] had two sons out of whom [ENTITY] was elder and [ENTITY] was younger to him. [ENTITY] was married and was living separately in the same house and [ENTITY] was residing separately in the same house alongwith his mother [ENTITY]. [ENTITY] was addicted to intoxicants. [ENTITY], resident of Village Naurang was on visiting terms with [ENTITY] and they were doing business together. [ENTITY] often used to visit [ENTITY], daughter-in-law of complainant in the house. Character of [ENTITY] was doubtful. [ENTITY] underwent an eye operation about one month back and she had gone to her daughter [ENTITY] in Village Malikpura. On 12.9.2009 at about 8 AM on receipt of information regarding the death of her grand son [ENTITY], she reached the house of her daughter-in-law [ENTITY] and saw that her grand son [ENTITY] was lying dead and preparation for his cremation had already been done. When she enquired about the cause of death, her daughter-in-law [ENTITY] told her that [ENTITY] was suffering from brain fever in the night and he died because of the same. [ENTITY] took all the family members in confidence and got [ENTITY] cremated. She and her other family members had gone in deep grief on account of the death. After about four hours when she gained consciousness, she enquired from her daughter-in- law [ENTITY] about the ligature marks on the neck of [ENTITY] but she did not give any reply and she suddenly left the house on some pretext. Thereafter when she enquired from her grand son [ENTITY], she came to know that on previous night [ENTITY] had come to the house of [ENTITY] and they both had taken liquor till late in the night. [ENTITY] had illicit relations with [ENTITY] and for this reason [ENTITY] used to quarrel with his mother and that is why [ENTITY] and [ENTITY] had killed [ENTITY] by throttling his neck. She also personally enquired about the same and the aforesaid fact came to light. Her daughter-in-law [ENTITY] and [ENTITY] in order to conceal their illicit relations and to remove [ENTITY] from their way committed murder of [ENTITY] by administering some intoxicant and then by throttling his neck and getting him cremated clandestinely. On the above statement of [ENTITY], complainant, Inspector [ENTITY], SHO [ENTITY] made his endorsement and sent the same to Police Station,[ENTITY] on the basis of which the present case was registered against accused [ENTITY] and [ENTITY] under [SECTION], [SECTION] read with [SECTION] [ACT].
3. Inquest proceedings were conducted. Accused [ENTITY] and [ENTITY] were arrested on 13.9.2009. During interrogation, [ENTITY] suffered a disclosure statement thereby disclosing the manner as to how they had planned to kill [ENTITY] i.e. by throttling his neck after administering pesticide to him by admixing in the liquor. She also disclosed the place of concealing the bottle of the pesticide. The disclosure statement was reduced into writing and pursuant thereto she got an empty bottle of pesticide recovered from the disclosed place which was converted into a parcel sealed with the seal of SC and was taken into possession vide recovery memo attested by the witness. Similarly [ENTITY] also suffered a disclosure statement and pointed out the place where [ENTITY] was killed. On 14.9.2009, accused [ENTITY] and [ENTITY] during their police remand suffered statements disclosing the role of [ENTITY] in the crime. The said disclosure statements were also reduced into writing and in pursuance thereof, [ENTITY] was recovered from the disclosed place which was made into separate parcel after sealing the same with the seal HS. Thereafter on 14.9.2009, accused [ENTITY] was arrested and during interrogation, he also suffered a disclosure statement about hatching a conspiracy with accused [ENTITY] and [ENTITY] about 10-12 days prior to 11.9.2009 for killing [ENTITY] and about bringing a pesticide bottle from the house of [ENTITY] in the fields where he used to go for labour work.
4. Statements of the witnesses were recorded under [SECTION] [ACT]. Post mortem of the remnants of the deceased was got conducted. Viscera, bones and burnt clothes of the deceased were made into separate parcels and sealed and were taken into possession vide recovery memo. All the parcels were sent to the FSL, Madhuban for chemical analysis. On completion of investigation, challan was presented in the court against all the three accused under [SECTION], [SECTION] read with [SECTION] [ACT]. Thereafter the case was committed to the Court of Sessions vide order dated 24.12.2009 by Judicial Magistrate, First Class Dabwali. On 28.01.[SECTION]0 on being charged for the offence under [SECTION] and [SECTION] [ACT], all the accused pleaded not guilty and claimed trial.
5. The prosecution examined fifteen witnesses in support of its case besides placing reliance upon several documents. The Public Prosecutor gave up PWs Dr. [ENTITY] and ASI [ENTITY] as unnecessary and tendered in evidence report of FSL, Madhuban as Ex.PD.
6. PW-1 Dr. [ENTITY], Resident Doctor, Department of Forensic Medicine, PGIMS, Rohtak conducted post mortem examination on the dead body of [ENTITY] on 15.9.2009 and the report Ex.PA submitted by him contained following observations:-
"Received charred human remains comprising of following:
i) burnt pieces of cloth, which could be identified. Off white in colour. 2. Cooked up viscera. 3. Left femur upper 1/3th of shaft, with the head of femur intact. 4. Lower pelvic region (left pelvic bone).
The rest was jumbled and cooked up, could not be identified. On dissection burnt pieces of the body ribs and one clavicle could be identified. The pelvic bone and other human remains were male in character. Head of femur, ischial tuberosity and ishium was fused. The scalp, skull, brain and the thoracic organs were missing. The cooked up viscera as available was preserved for chemical analysis."
7. After going through the FSL report Ex.PD and PMR, PW1 Dr. [ENTITY] vide endorsement Ex.PE/1 on the police application Ex.PE opined that the cause of death could not be ascertained due to described condition of the body. He could not say if the death could be possible by administering poison or by way of throttling. PW-2 Dr. [ENTITY], Medical Officer, General Hospital, Sirsa deposed that on 15.9.2009, he alongwith Dr. [ENTITY] being the members of the Board of Doctors received one sealed parcel containing unidentified burnt parts of the dead body of [ENTITY] and since exact opinion regarding this case could not be given by the Board of Doctors at that time, they resealed the parcel and referred it to the Forensic Department, PGIMS Rohtak for examination vide referral slip Ex.PF/1. PW-3 ASI [ENTITY] deposed about scribing formal FIR Ex.PH on 12.9.2009 on receipt of Ex.PG statement of [ENTITY] alongwith ruqa sent by Inspector [ENTITY]. PW-4 [ENTITY] and PW5 ASI [ENTITY] tendered in evidence their duly sworn affidavits Ex.PI and PJ respectively in order to complete the chain of link evidence to the effect that the case property was not tampered with by them or anybody else during the period it remained in their custody. PW6 [ENTITY], Draftsman deposed about preparing scaled site plans on 20.10.2009 as Ex.PK and Ex.[ENTITY] with correct marginal notes on the demarcation of complainant [ENTITY].
8. PW-7 ASI [ENTITY] deposed that on 14.9.2009 he was deputed by Inspector [ENTITY] PW15 for getting autopsy conducted on the parts of the dead body of [ENTITY]. He went to PGIMS Rohtak and got post mortem conducted and on 16.9.2009, the Medical officers handed over one parcel containing viscera and other parcels containing papers, etc. to him and he handed over the same to Inspector [ENTITY] who took the same into his possession vide recovery memo Ex.PM. PW8 ASI [ENTITY] stated that he remained associated in the investigation of the case with Inspector [ENTITY]. PW9 [ENTITY], complainant supported the prosecution case and deposed as per her statement Ex.PG made before the police on 12.9.2009. PW-10 [ENTITY] deposed that on 11.9.2009 or 12.9.2009 at about 10.30 PM he was called by the wife of [ENTITY],his God brother to bring a doctor as her daughter [ENTITY] was to deliver a child and on the way to the house of Dr. [ENTITY], when he reached near the house of [ENTITY], he saw [ENTITY] and [ENTITY] standing in the court-yard and talking with each other that [ENTITY] was obstacle in their relations and therefore he be done away and [ENTITY] asked [ENTITY] to take [ENTITY] inside the room for eliminating him and then he went to call the doctor. On the next morning he came to know that [ENTITY] had been murdered by [ENTITY] and [ENTITY]. PW-11 [ENTITY] deposed that [ENTITY] deceased was his grand son amongst collaterals and on the day of cremation, accused [ENTITY] and [ENTITY] came to him and suffered extra judicial confession to the effect that they both had committed murder of [ENTITY] because he was obstacle in their illicit relations. PW12 [ENTITY] refused to support the prosecution case and on the request of learned Public Prosecutor, he was declared hostile. PW13 [CASE NUMBER] testified about delivering copies of special reports to the Area Magistrate, Superintendent of Police and Deputy Superintendent of Police on 12.9.2009 and proved copy of FIR as Ex.PH. PW-14 [ENTITY] also refused to support the prosecution case. Accordingly, on the request of learned Public Prosecutor, he was declared hostile.
9. PW15 Inspector [ENTITY], Investigating Officer deposed about investigations conducted by him in the case. He deposed that on 12.9.2009, on receipt of information regarding the present case in Village Chormar, he reached the place of occurrence alongwith other police officials and recorded statement of [ENTITY] as Ex.PG and after making endorsement Ex.PG/1, he sent the same to the Police Station through Constable [ENTITY] on the basis of which formal FIR Ex.PH was recorded by ASI [ENTITY]. He reached the house of [ENTITY] and associated 4-5 persons including [ENTITY], [ENTITY] and [ENTITY] in investigation. Thereafter, they reached the cremation ground where the dead body of the deceased was burning and with the help of other persons he extinguished the fire and then he called the Crime Team to the spot. He also reached the house of [ENTITY] and inspected the spot. From the cremation ground he took into possession the partially burnt bones in one parcel and ash in another parcel and also prepared rough site plan of that place as Ex.PDD. PW-15 [ENTITY] further deposed that accused [ENTITY] and [ENTITY] were produced before him by [ENTITY] at T-point of Village Chormar on 13.9.2009 and on interrogation they suffered disclosure statements Ex.PN and Ex.PO respectively and as a result of which empty bottle was recovered from the disclosed place which was taken into possession. Inspector [ENTITY] further deposed about interrogation of both the accused on 14.9.2009 and as a result of their another disclosure statements Ex.PS and Ex.PT, regarding complicity of accused [ENTITY] in the crime and about taking into possession chunni vide recovery memo Ex.PX and preparing rough site plan Ex.PX/1 of the place from where chunni was recovered. He further deposed that on 16.9.2009, ASI [ENTITY] produced before him sealed parcels of viscera, police papers, half burnt bones, half burnt clothes of the deceased handed over to him by the doctors and he took the same into his possession vide recovery memo Ex.PM. On 20.10.2009, he got scaled site plan prepared and that on 9.12.2009, he moved application Ex.PE to the Medical Officer, General Hospital, Sirsa upon which the doctor gave his opinion Ex.PE/1 and that on completion of investigation, he prepared report under [SECTION] [ACT] on 24.10.2009.
10. After conclusion of evidence of the prosecution, statements of the accused under [SECTION] [ACT] were recorded wherein all the accused denied incriminating circumstances and evidence against them and claimed themselves to be innocent. However, no evidence was produced by the accused in their defence.
11. After considering the entire evidence and hearing the counsel for the accused and the State, the Sessions Court vide judgment dated 11.11.[SECTION]0 held that the prosecution had successfully brought home guilt of accused [ENTITY] and [ENTITY] under [SECTION] and [SECTION] [ACT]. Accordingly, both the accused were convicted and sentenced as mentioned above whereas accused [ENTITY] was acquitted of the charges framed against him. Hence the present appeal by [ENTITY], appellant only.
12. Learned counsel for the appellant argued that the appellant is innocent and has been falsely implicated due to enmity between [ENTITY] and [ENTITY]. Moreover, [ENTITY] also only suspects and there is no concrete allegation against the accused. [ENTITY] and [ENTITY] were not on visiting terms and therefore, there was reason to implant the accused in a false case. The prosecution in a case of circumstantial evidence was required to bring cogent evidence to connect the accused with the crime which the prosecution has failed to prove. The cause of death as advanced by the prosecution does not stand established whereas it was a case of natural death and for that reason, the dead body of deceased, [ENTITY] was cremated by the family members and the villagers. It was urged that no reliance can be placed on the extra judicial confession alleged to have been made before [ENTITY] (PW11) as there was no occasion or reason to have made such extra judicial confession especially when said [ENTITY] was a labourer and had no acquaintance with the local police who could have given any help to the accused. Another contradiction in the prosecution version was pointed out with reference to the time when extra judicial confession is said to have been made before [ENTITY]. According to the prosecution, the extra judicial confession was made on 13.9.2009 whereas [ENTITY] PW9 had deposed that [ENTITY] and [ENTITY] were arrested on 12.9.2009 at 3 PM and 6 PM respectively. Thus, no credence could be placed on the statement of [ENTITY]. The veracity of the testimony of [ENTITY] (PW10), the witness who claimed to have seen [ENTITY] and [ENTITY] in the compound of house of [ENTITY] on 11.9.2009 at 10.30 PM, was also challenged being incredible and doubtful as the alleged occurrence took place on 11.9.2009 between 9 PM to 10 PM whereas PW 10 [ENTITY], witness to the conspiracy deposed that the occurrence took place at 10.30 PM on 11.9.2009 or 12.9.2009. He was not sure about the date of occurrence. According to the learned counsel, the entire story put forth by the prosecution cannot be relied upon in the absence of examination of any witness who had bathed the dead body so as to prove the injuries, if any, on the dead body of the deceased. Acquittal of the accused [ENTITY] was sought on the ground of various irreconcilable contradictions and inherent improbabilities in the prosecution version and the evidence produced by it. Delay in lodging the FIR Ex.PH was also pressed as a ground for seeking acquittal as the alleged occurrence is said to have taken place on 11.9.2009 between 9 PM to 10 PM, while FIR was registered at the instance of [ENTITY] (PW9) on 12.9.2009 at 5.50 PM which was received by Duty Magistrate at 10 PM whereas [ENTITY] had come to the place of occurrence at 8 AM on 12.9.2009.
13. Learned counsel for the appellant [ENTITY] submitted that there is contradiction in the statement of PW-15 [ENTITY] regarding date and time of arrest and production of accused [ENTITY] and [ENTITY]. He also deposed that no independent witness was joined by him during interrogation of both the accused. Learned counsel further submitted that the deceased was a drug addict. He died due to over intoxication and not because of poisoning or throttling. No cause of death was mentioned either in the post mortem report Ex.PC or FSL report Ex.PD. There was no mention of poison in biochemistry report. Both pesticide bottle and [ENTITY] were not sent to FSL for examination. No recovery was effected from the appellant in pursuance to disclosure statement Ex.PO and Ex.PT by [ENTITY]. Reliance was placed on paras 10 and 16 of the judgment of the Apex Court in [PRECEDENT]. PW9 [ENTITY], the complainant did not have good relations with [ENTITY] and was not on visiting terms with her and therefore the motive for committing the offence was weak. She only suspected the commission of offence by [ENTITY] and [ENTITY]. In this way, the appellant has been falsely implicated. Support was gathered from observations in para 15 of the judgment in [ENTITY] Mavi v. State of NCT of Delhi, [SECTION]2(3) RCR (Criminal) 681 and judgment reported as Sampath Kumar v. Inspector of Police, Krishnagiri, [SECTION]2(2) RCR (Criminal) 231 in this regard. Alleged extra judicial confession was before [ENTITY] PW11 who admits that he did not know [ENTITY]. Citing Para 11 of the case reported as Madhvi Parkash v. [ENTITY], [SECTION]2(3) RCR (Criminal) 102, paras 15, 16 and 19 of [PRECEDENT] and para 15 of State of Andhra Pradesh v. S.Swarnalatha and others, [SECTION]0(5) RCR (Criminal) 453, it was contended that extra judicial confession by itself is weak evidence but it can be taken into consideration as corroborative of the primary evidence where the same is natural and inspires confidence. However, in the present case, the alleged extra judicial confession was made before [ENTITY] PW11 who did not even know [ENTITY] prior to the murder.
14. It was next pointed out that the prosecution had not sent the pesticide bottle and [ENTITY] alleged to have been recovered in pursuance to disclosure statement of [ENTITY] for FSL examination. Continuing with his arguments, learned counsel for the appellant stated that no poison had been detected in the dead body of deceased - [ENTITY]. Smt. [ENTITY] had made a disclosure statement Ex.PN on 13.9.2009 and empty pesticide bottle was recovered. Another disclosure statement Ex.PS was recorded on 14.9.2009 and [ENTITY] was recovered. Though disclosure statement of [ENTITY] - appellant Ex.PO was recorded on 13.9.2009 but no recovery was made from him. Another disclosure statement Ex.PT was recorded on 14.9.2009 and again no recovery was effected. The disclosure statement was, thus, inadmissible under [SECTION] of the [ACT]. Further, there were contradictions in the two disclosure statements. Furthermore, the case of the appellant was sought to be distinguished from that of [ENTITY] by urging that disclosure statements of [ENTITY] Ex.PN and Ex.PS were recorded on 13.9.2009 and recovery of pesticide bottle and [ENTITY] was made whereas in the case of [ENTITY], disclosure statement Ex.PO and Ex.PT were recorded but there was no recovery effected. Even in the disclosure statement of [ENTITY], there are contradictions in so far as role of [ENTITY] was concerned in as much as regarding bringing of pesticide bottle and then also relating to role of [ENTITY]. Pesticide is normally available in the house of farmers and no independent witness was associated during investigation. The empty bottle of liquor was also not recovered and therefore question of sending it for FSL examination did not arise.
15. On the other hand, learned counsel for the State besides supporting the conviction and sentence awarded by the Sessions Court, submitted that there was clear-cut motive to kill the deceased. [ENTITY], daughter-in-law of the complainant and [ENTITY] had illicit relations. [ENTITY], deceased was obstacle in their way. In order to remove this obstacle, they planned to commit murder of [ENTITY]. The case is based upon circumstantial evidence i.e. the statement of PW10 [ENTITY]. The extra-judicial confession was made before [ENTITY], PW11.
16. Learned State counsel contended that guilt of the accused was well established and he had been rightly convicted by the trial court. The conviction recorded by the trial court was in consonance with the consistent testimony of [ENTITY] (PW9) - complainant, [ENTITY] (PW10) and [ENTITY] (PW11) and also the testimony of official witnesses. There was no motive for these witnesses to have deposed falsely against the accused whereas there existed strong motive on the part of [ENTITY] - accused to eliminate deceased [ENTITY]. Elaborating his arguments, it was submitted that the case was based on the circumstantial evidence which clearly established the motive on the part of [ENTITY] and [ENTITY] for killing [ENTITY]. The last seen evidence of [ENTITY] (PW10) and extra judicial confession suffered by accused [ENTITY] was also against the appellant. Support was also gathered from Medical Evidence (Ex.PD) and statement of [ENTITY], PW-15. In the end, prayer for dismissal of the appeal was made on the ground that the trial court had rightly assessed the evidence on record and had correctly recorded finding of conviction against the accused - [ENTITY] and [ENTITY]. Reliance was placed upon following observations noted in [ENTITY]'s Medical Jurisprudence and Toxicology - Twentythird Edition:-
"Moral and Circumstantial Evidence: In a case of criminal poisoning, the fact whether the accused was the person who administered the poison can be proved only from moral and circumstantial evidence. This is furnished by common witnesses, who testify to the recent purchase of the poison by the accused. The medical witness should not hazard an opinion on moral and circumstantial proof. He should certify to the cause of death from medical facts only. He should not, however, omit to note the surroundings of the patient, and the nervousness and anxiety of the relatives or some other persons regarding the haste with which they want the body to be disposed of by burial or cremation. On 13 November 1956, [ENTITY] was brought in an unconscious condition to GT Hospital by Dr. [ENTITY], reporting that he had brought her from Poona for consultation in Bombay. Sugar and acetone were detected in the urine, but the patient died in a few hours with a doubtful diagnosis of diabetic coma and some ligature marks. A post mortem was asked for, but was unduly delayed. In the meanwhile, the doctor resorted to forgery to grab all her property. Dr. [ENTITY] was arrested, tried and sentenced to death for murder and imprisonment for life, for forgery and misappropriation by the Sessions and the High Court. However, in an appeal to the Supreme Court, it was claimed that the medical expert could not say with conviction that death had been caused by poisoning or that the death could not have been due to natural causes. Though the majority of the Supreme Court judges found the conviction and the death sentence appropriate, one judge dissented. This case illustrates great emphasis on the moral as distinguished from medical evidence, which can supply the cause of death from such circumstances."
17. After giving thoughtful consideration to the respective submissions made by learned counsel for the parties, we agree with learned counsel for the appellant.
18. On analysis of entire oral as well as documentary evidence on record, it emerges that the prosecution version is based on extra-judicial confession before [ENTITY] (PW11) and circumstantial evidence coupled with last seen evidence of [ENTITY] (PW10) and the disclosure statement made by the accused. In order to effectively adjudicate the controversy involved herein, the legal value of these instances is required to be evaluated and examined.
19. Taking up the issue of evaluation of extra judicial confession, it may be noticed that the Hon'ble Apex Court in [PRECEDENT] relating to evidentiary value of extra judicial confession made the following observations:-
"15.It is wholly unlikely that the accused would make extra- judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence.
16. While considering the question of value of extra-judicial confession of an accused, this Court in [PRECEDENT], observed as under:
"The first and foremost aspect which needs to be taken note of is that PW 9 is not a person who had intimate relations or friendship with the appellant. PW 9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross- examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus- stand. There is no earthly reason why he should go to PW 9 and confide to him as to what he had done "
20. Further, in State of Andhra Pradesh v. S.Swarnalatha and others, [SECTION]0(5) RCR (Criminal) 453, the Hon'ble Supreme Court recorded as under:-
"15. So far as the extra judicial confessions purported to have been made by the accused are concerned, we may notice that accused No.1 has retracted therefrom.
We do not find any reason as to why such extra judicial confession should be made before the son-in-law of the deceased, particularly when PW6 has admitted in no uncertain terms that the family of the deceased was not in cordial terms with him."
21. Scanning the evidence with respect to extra judicial confession, reference inevitably shall have to be made to the statement of [ENTITY] (PW11) before whom the alleged confession was stated to have been made. [ENTITY] in his statement had admitted that he did not know [ENTITY]. There was retraction in the statement of [ENTITY] made under [SECTION] [ACT]. [ENTITY] was a labourer who had no connection with the police or could have provided any assistance or help to the accused. Thus, the reason for making extra judicial confession before [ENTITY] remains unexplained. Further, the alleged extra judicial confession is stated to have been made on 13.9.2009 whereas according to [ENTITY] (PW9), the accused [ENTITY] was arrested by the police from his Village around 6 PM on the same day on which her statement was recorded by the police. The statement of [ENTITY], complainant was recorded on 12.9.2009 on the basis of which FIR (Ex.PH) was registered on that day at 5.50 PM. [ENTITY], PW11 deposed that both the accused were produced by him on next day after the cremation. He further deposed that police had recorded his statement only once on the day of cremation of [ENTITY]. Though [ENTITY] (PW15) deposed that [ENTITY] and [ENTITY] were arrested on 13.9.2009, but the statement of [ENTITY], is not in conformity with the version of [ENTITY]. This leaves doubt about the testimony of the prosecution witness, [ENTITY]. Taking totality of circumstances noticed above, no reliance can be placed on the extra judicial confession alleged to have been made before [ENTITY] (PW11).
22. Adverting to the effect and persuasiveness of circumstantial and last seen evidence, it would be apposite to refer to the decision of the Apex Court in Sampath Kumar v. Inspector of Police, Krishnagiri, [SECTION]2 (2) RCR (Criminal) 231, wherein it has been laid down as under:-
"14. In the present case the testimony cannot be wholly reliable or wholly unreliable. He is not a chance witness who had no reason to be found near the deceased at the time of the occurrence. There is evidence to show that [ENTITY] (PW7) used to sleep with the deceased-[ENTITY] in the verandah of the house. What makes it suspect is that the witness has, despite being a natural witness, made a substantial improvement in the version without their being any acceptable explanation for his silence in regard to the fact and matters which was in his knowledge and which would make all the difference in the case. The Court would, therefore, look for independent corroboration to his version, which corroboration is not forthcoming. All that is brought on record by the prosecution is the presence of a strong motive but that by itself is not enough to support a conviction especially in a case where the sentence can be capital punishment. In [PRECEDENT], the prosecution case was based entirely upon circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, this Court rejected motive which was the only remaining circumstance relied upon by the prosecution stating that the presence of a motive was not enough for supporting a conviction, for it is well-settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused. To the same effect is the decision of this Court in [PRECEDENT] through CBI. ([SECTION]0) 9 SCC 747 and Rukia Begum v. State of Karnataka AIR [SECTION]1 SC 1585 where this Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Rai @ Paua and Ors. v.
Union Territory, Chandigarh (AIR [SECTION]1 SC 2545). This Court explained the legal position as follows :
"In any event, motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof."
15. Suffice it to say although, according to the appellants the question of the appellant-[ENTITY] having the motive to harm the deceased-[ENTITY] for falling in love with his sister, [ENTITY] did not survive once the family had decided to offer [ENTITY] in matrimony to the deceased-[ENTITY]. Yet even assuming that the appellant- [ENTITY] had not reconciled to the idea of [ENTITY] getting married to the deceased-[ENTITY], all that can be said was that the appellant-[ENTITY] had a motive for physically harming the deceased. That may be an important circumstance in a case based on circumstantial evidence but cannot take the place of conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond a reasonable doubt."
23. The proof of a criminal charge by circumstantial evidence was noticed in [ENTITY] Mavi vs. State of NCT of Delhi, [SECTION]2(3) RCR (Criminal) 102 as under:-
"15. The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in [PRECEDENT] which principles have been consistently followed [PRECEDENT] [4], [PRECEDENT], [PRECEDENT] [6] , [PRECEDENT] [7] and [PRECEDENT].
16. The next question that has to engage the attention of the court is what are the circumstances that the prosecution has succeeded in proving in the present case and if so proved what is the conclusion that can be reached on the proved circumstances in the light of the principles of law indicated above.
17. to 19. xx xx xx xx xx xx xx
20. Though the above discussions would lead us to the conclusion that the prosecution, in the present case, has succeeded in proving a highly incriminating circumstance against the accused -appellant, yet, we do not consider that it would be wholly safe to hold that the only conclusion that can follow from the aforesaid proved circumstance is that the accused [ENTITY] is responsible for the death of the deceased that had occurred on 06.06.2001. We have also noticed that the High Court has convicted the accused-appellant under [SECTION] as well as [SECTION] [ACT] with the aid of [SECTION]. In a situation where co-accused [ENTITY] had died during the trial and the other co-accused [ENTITY] had been acquitted by the High Court, the culpability of the present accused-appellant with the aid of [SECTION] will be open to serious doubt. Such culpability will have to be determined on the basis of individual overt acts on the part of the accused appellant for which we do not find any cogent and reliable material on record."
24. Further, Division Bench of this Court in Madhvi Parkash v. [ENTITY], [SECTION]2(3) RCR (Criminal) 102 observed as under:-
"10. It is well established by now that in a case depending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain to prove the guilt of the accused beyond all reasonable doubts. The circumstances so proved must be consistent only with hypothesis of the guilt of the accused. Let the whole case be tested on the aforesaid touchstone. The evidence of last seen consists of [ENTITY] (PW-7) and [ENTITY] (PW-11). [ENTITY] (PW-11) has deposed that accused and the deceased had gone from the house to the canal for washing the Baan and to take bath on June 10th, 1996 at about 4.00 PM and thereafter deceased did not return. [ENTITY] (PW-7) has stated that on June 10th, 1996 he was on his way from Faridabad to his village in the fourwheeler. On reaching Gurgaon canal, he witnessed [ENTITY] and the accused taking bath in the canal. He stopped his vehicle and asked them to accompany him, if they wanted, but they did not. If the evidence of these witnesses is read in between the lines, it suggests that the entire story has been cooked up. [ENTITY] (PW-7) belongs to the same village to which the accused and the deceased belonged. The dead body of the deceased was found floating in the canal on June 11th, 1996, meaning thereby, on June 11th, 1996 or the next day, [ENTITY] must have come to know that [ENTITY] had died. In due course and as natural human conduct, the witness would have disclosed on June 12th, 1996 to the members of the family of the deceased or to the Police or to some other person that he had seen the deceased and the accused together on June 10th, 1996 while taking bath in the Gurgaon canal. This would have been his natural reaction to the whole situation when he had come to know that death of the deceased had taken place on June 11th, 1996. For the first time, per the story of the prosecution, he informed the Police on June 17th, 1996 that he witnessed the deceased and the accused-appellant taking bath in the canal on June 10th, 1996. In his cross-examination, he has stated that Police never recorded his statement. Clearly, it is absolutely false and frivolous on the face of it that this witness [ENTITY] ever saw [ENTITY] (deceased) and the accused together taking bath on June 10th, 1996 in the Gurgaon canal. His conduct is wholly unnatural indicating that he is a witness introduced later on. The statement of mother [ENTITY] is also not believable because [ENTITY] (PW-12) made statement before the Police (Exhibit PF) that [ENTITY] had returned to the village after washing the Baan and slept in the Baithak of the father of the accused and went out thereafter at 7.30 PM from there. The statement of [ENTITY] is belied by the statement of [ENTITY]. According to [ENTITY] the deceased and the accused had left her house at 4 PM and thereafter [ENTITY] did not return, whereas, [ENTITY] has stated that the accused and the deceased had gone to the canal at about 2/2.30 PM. [ENTITY] came and slept in the Baithak of the father of the accused-appellant and thereafter had gone somewhere at 7.30 PM. In view of this important variance, the credence of last seen gets demolished. It has been well settled by now that evidence of last seen requires further corroboration by independent material particulars and in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt against the accused. In view of this, the story of last seen is not substantiated and is therefore, repelled.
11. The next circumstance pressed into service is extrajudicial confessional made before [ENTITY] (PW-
12) and [ENTITY]. According to [ENTITY], Inspector (PW-13), he came to know on June 13th, 1996 that the accused-appellant had murdered the deceased on the basis of hearsay evidence. It was for the first time on June 14th, 1996 that [ENTITY] (accused-appellant) was produced by [ENTITY] (PW-12) and he made disclosure statement (Exhibit PN). Why should the accused make extra-judicial confession before [ENTITY] ? A criminal would not make extra-judicial confession simply for the heck of it. It is only in rare circumstances that a criminal would confess his guilt of murder. What help could be rendered by [ENTITY] to the accused ? He was the complainant. Why the accused should confess before him ?
These pertinent questions have gone un-explained. It is rather sad thing that heinous crimes like murder are committed and our investigating agencies, instead of making use of scientific aids and criminalistics, make short work by setting up extra-judicial confession which has been repeatedly held to be evidence of weak nature. There could be no plausible reason for the accused to make extra-
judicial confession before [ENTITY] in this case. It appears that this evidence of extra-judicial confession before [ENTITY] is manufactured one so, it fails to inspire confidence.
12. Another circumstance is the recovery of the shirt at the instance of the accused-appellant.According to prosecution, the accused appellant concealed shirt in a small tank of a tubewell situated nearby the canal. The recovery was got effected on June 14th, 1996, that is, after 4 days of the occurrence. It is not believable that owner or anybody else would not have seen the shirt for 4 days particularly from a place which was accessible to all. No independent witness was joined nor the owner of the tubewell was examined. It is unbelievable that a person who commits a murder and throws the dead body and chappal of the deceased in flowing water would keep the shirt of the deceased in a tank of a tubewell nearby the spot. It defies imagination to accept that this was what the accused had done. Body in the river but shirt in a water tank of a tubewell. Wouldn't the accused appellant also throw the shirt in the canal to let the same disappear along with the dead body. This Court cannot accept the evidence of recovery of a shirt as a piece of substantive circumstantial evidence against the accused appellant.
13. Thus, the prosecution evidence falls woefully short of connecting the accused-appellant with the crime. It needs to be added here that in a case dependent on circumstantial evidence, a complete chain of circumstances is required. One circumstance would be just one knot but not a complete chain of circumstances. No complete chain of circumstances has been proved in this case."
25. The motive and circumstantial evidence has to be strong to prevent any other conclusion being possible on the basis of material on record to hold a person guilty of commission of a heinous crime under [SECTION] [ACT]. Noticing the evidence relating to circumstantial and last seen evidence of [ENTITY] (PW10), it may be noticed that it has been deposed by him that he had seen [ENTITY] and [ENTITY] in the compound of [ENTITY] on 11.9.2009 or 12.9.2009 at 10.30 PM when they were conspiring to eliminate deceased [ENTITY]. [ENTITY] has failed to clear the doubts regarding his having heard the accused at such an odd hour who according to him were narrating their plans loudly in the compound of the house. He was not sure about the date of occurrence. The witness had stated that it was raining at that time when he went to the house of [ENTITY] and, therefore, the presence of the accused in the open compound becomes doubtful. He did not disclose the conversation of both the accused to anybody in the Village. It was stated for the first time while appearing as a witness in the Court which was explained by stating that it was narrated to the police in his statement. No explanation had been given for not bringing this to the notice of the villagers at the earliest opportunity. The doubts in his statement render the reliability of his statement of no evidentiary value. Thus, the appellant [ENTITY] could not have been held guilty on the basis of circumstantial and last seen evidence of Shri [ENTITY] (PW10).
[SECTION]. The last issue relates to evidentiary value of disclosure statement made by the accused. [SECTION] of the [ACT] provides for admissibility of disclosure statement under certain circumstances enumerated thereunder. It reads thus:-
"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."
27. The aforesaid provision is founded on the principle that whenever any recovery is effected in pursuance to disclosure statement made in police custody, the confession may be presumed to be true and not to have been extracted. The value and admissibility of disclosure statement under [SECTION] of the [ACT] was elaborated in [PRECEDENT] as under:-
"10. We shall first deal with the plea as to whether evidence relating to recovery is acceptable when non- official witnesses did not support the recovery and made departure from the statements made during investigation. In [PRECEDENT] it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was taken in [PRECEDENT]. It was held even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. But the crucial question which needs to be considered in this case is whether the prosecution has been able to show that the pistol recovered was the one which was used for commission of the offence. As rightly contended by learned counsel for the appellant there are several circumstances which affects credibility of the prosecution version. Firstly, the so- called information was recorded by the IO (PW-16), and he does not even indicate that the gun to which reference was allegedly made was the weapon of assault. Further the custody of empty cartridges purported to have been recovered from the spot has not been established. In fact, the claim is that on 11.4.1979 empty cartridges were recovered. They were sent to the forensic science laboratory on 12.5.1979. It has not been explained as to where the empty cartridges were till then lying and with whom. Similar is the situation with the two bullets claimed to have been extracted from the dead body by the doctor. It has been accepted by PW-36 that the empty cartridges and the bullets were not deposited with the ballistic expert prior to the recovery of the pistol claimed to have been made on 29.4.1979. Significantly, though the witnesses claimed that the moulds, chappals found at the spot, the empty cartridges, the two bullets extracted and the pistol were sealed before being sent to the expert for examination and that they were sealed on the date they were recovered, but PW-23 who claimed to have taken the parcel to the laboratory categorically admitted that the packets were sealed in the Kotwali in his presence on the date he had taken for deposit with the laboratory i.e. 11.5.1979 and, in fact, the articles were deposited on 12.5.1979. Though the witness stated that different seals were used, a bare perusal of the materials on record clearly shows that only one seal was used. Additionally, PW-31 who took major part in the investigation had categorically admitted that the particular type of pistol which was allegedly seized could not have ejected any empty cartridges till all the six shots were fired and otherwise it could not be possible. In Exhibits 51 and 51A i.e. the spot map and the circumstances memo reference is made to the moulds. This was not possible because Exhibits 51 and 51A were prepared at about 9.30 a.m., while admittedly the moulds were taken much after as stated by the witnesses. Significantly in neither Exhibits 51 and 51A, reference is made to the recovery of any empty cartridges which was supposed to have been found near the dead body though reference was made to the moulds which were yet to come into existence. There was no evidence led as to when the bullets were handed over to the police by the doctor or where they were kept and in what condition. Though recovery from an open space may not always render it vulnerable, it would depend upon factual situation in a given case and the truthfulness or otherwise of such claim. In the case at hand the recovery was made from an open space visible from the place where the dead body was lying and at a close proximity. It is not clear from evidence that it was hidden in such a way so as making it difficult to be noticed. The evidence tendered is totally silent as to in whose custody were the bullets, empty cartridges and the pistol. The effect of such non- explanation was considered by this Court in Santa Singh v. State of Punjab (AIR 1956 SC 5[SECTION]). The Constitution Bench, inter alia, observed as follows:
"There is another element in the case which creates even greater difficulty. An empty cartridge case is alleged to have been recovered from the place of occurrence by the police on the 10th of September when they went there for investigation after receipt of the first information from [ENTITY] (P.W. 16); so also some blood-stained earth.They were carefully packed and sealed in two separate packets and dispatched to the Police Station. The sealed parcel of the earth was sent to the Chemical Examiner at Kasauli on the 11th October, 1954, and the sealed parcel of the empty cartridge case was sent to Dr. [ENTITY] as late as the 27th October, 1954. Even if we accept the explanation given by the Sub-Inspector of Police that the empty cartridge case had to be kept at the police station till the rifle used was recovered so that both might be sent to the expert for his opinion, nothing has been stated why after the rifle was recovered on the 28th September, 1954, along with 24 cartridges from the house of the accused, it was incumbent for the Police to retain the parcels of rifle and empty cartridge case with them till the 11th October, 1954. Naturally this inordinate delay raises much suspicion and has given rise to the suggestion on the part of the accused made in the course of the cross-examination of the Sub-Inspector that the empty cartridge case ultimately sent to the expert relates to a cartridge that was fired by them at the Police Station and is not the one recovered at the spot."
11. The scope and ambit of [SECTION] of the [ACT] were illuminatingly stated in [PRECEDENT] in the following words, which have become locus classicus:
It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A.', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant." (p. 77)
12. The aforesaid position was again highlighted in [PRECEDENT].
13. Although the interpretation and scope of [SECTION] has been the subject of several authoritative pronouncements, its application to concrete cases in the background events proved therein is not always free from difficulty. It will, therefore, be worthwhile at the outset, to have a short and swift glance at [SECTION] and be reminded of its requirements. The Section says :
"27. 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."
14. The expression "provided that" together with the phrase "whether it amounts to a confession or not" show that the section is in the nature of an exception to the preceding provisions particularly [SECTION] 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" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See [PRECEDENT]).
15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in [ENTITY]'s case (supra) and in [PRECEDENT].
16. The various requirements of the Section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
28. In the present case, the alleged disclosure statement of [ENTITY] would rather be hit by the provisions of [SECTION] of the [ACT] and would not be governed by [SECTION] thereof as no recovery in pursuance thereof was effected. Thus, the same in the facts and circumstances of the case could not be read against the accused.
29. In addition to the above, certain additional circumstances and aspects of the case need to be examined. According to the prosecution version, the motive for committing the offence was to eliminate [ENTITY] who had known about the illicit relationship of his mother with [ENTITY]. It has come in the evidence that [ENTITY] was about 45 years of age whereas [ENTITY] was about 22 years. In such a situation, to give acceptability to such a version, it was required of the prosecution to have produced cogent and reliable evidence by way of independent witnesses who could have supported the prosecution version. Failure to do so raises doubts about the motive imputed for commission of the offence. Further, the prosecution had failed to join any independent witness during investigation of the case. No recovery of the empty liquor bottle had been made. The prosecution had failed to examine any witness who had bathed the dead body to prove alleged strangulation marks on the neck of the deceased. No poison had been detected in the post mortem report. There was unexplained delay in lodging the FIR. The FSL report did not show cause of the death of deceased [ENTITY]. Furthermore, It is commonly known that the pesticide is readily available in the house of the farmers in the village. In the absence of any mention of poison found in the post mortem report, it could not be concluded that death was due to giving pesticides to [ENTITY] and there was only suspicion in the mind of the complainant-[ENTITY]. Dr. [ENTITY] (PW1) who conducted the post mortem on the body of the deceased [ENTITY] had recorded that the scalp, skull, brain and the thoracic organs were missing. He further deposed that after going through the FSL report (Ex.PD) and the PMR (Post Mortem Report) Ex.PA/PC, the cause of death could not be ascertained in this case due to described condition of the body. The deceased was a drug addict and appears to have died due to over intoxication. The pesticide bottle at the instance of [ENTITY] was not sent for FSL examination. These circumstances create doubt in the mind of the court regarding commission of offence by the appellant - [ENTITY] which the learned State counsel on the basis of evidence on record has failed to clear.
30. The cumulative effect of the above is that the conviction and sentence of [ENTITY] under [SECTION] and [SECTION] read with [SECTION] of [ACT] cannot be sustained and are accordingly set aside. The appeal is accepted and the appellant [ENTITY] is, thus, acquitted of the charges framed against him. He shall be released forthwith in case he is not required in any other case.
([ENTITY]) Judge May 17, [SECTION]3 ([ENTITY]) 'gs' Judge