Crl.A. 183/2003 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B.LOKUR HON’BLE MR JUSTICE ARUP KUMAR GOSWAMI JUDGMENT AND ORDER (A,K,Goswami,j) This criminal appeal is directed against the judgment dated 4.4.2003 passed by t he learned Sessions Judge,Darrang at Mongaldoi in Sessions Case No. 103 (DM)/200 0 convicting the appellant under Section 302 IPC and sentencing him to suffer im prisonment for life and to pay fine of Rs. 5000/-, in default, further rigorous imprisonment for one year. 2. One Mokbul Hussain had lodged an ejahar before the Officer in-Charge , Silbori Police outpost on 5.11.99 stating that some assailants had entered into the house of his elder brother’s son Md.Azizul Hoque by opening the door at ar ound 11.30 p.m on 4.11.99 and killed him by cutting his throat with sharp knife while asleep. Accordingly, Silbori police outpost G.D.Entry No. 56 dated 5.11. 99 was made at 6.30 a.m. and the same was forwarded to the Officer-In-charge, Dalgoan Police Station whereupon Dolgoan P.S. Case No. 231/99 under Section 302 I.P.C was registered. 3. The Investigating Officer investigated the offence and on completion of investigation and finding materials against the accused/ appellant, submitted c harge sheet under Section 448/302 IPC. 4. The case was committed by the learned Judicial Magistrate, Ist. Class,Ud alguri to the Court of Sessions Judge,Darrang whereupon Sessions Case No. 103 (D M)/2000 was registered under Section 302 IPC. Charge under Section 302 IPC was framed against the accused person and the same was explained to him. The accused pleaded not guilty and claimed to be tried. During the course of trial, the pr osecution examined 7 witnesses whereas defence adduced no evidence. 5. Informant Mokbul Hussain was examined as P.W-1, wife of the deceased Az izul Hoque, namely, Musstt. Halima Khatun was examined as P.W-2, Musstt. Jubaid a Khatun, mother of the deceased was examined as P.W-3, Md. Jahurul Hoque , th e brother of the deceased was examined as P.W-4, P.W-5 Bhabani Pasad Khound is the Doctor who conducted the post mortem examination, P.W-6 Hatem Ali is a neig hbor and co-villager of the deceased and P.W-7 is the Sub-Inspector of Police w ho had conducted and investigated the case and had laid the charge sheet. 6. Out of the aforesaid witnesses, P.W-1, P.W-3 and P.W-6 are not eye witne sses to the occurrence.P.W-2 is an eye witness to the occurrence and P.W-4 was d eclared a hostile witness by the prosecution.P.W-6 is a witness to a seizure lis t Exhibit-4 by which a curved dao about 1 ‰ ft. long with its handle was seiz ed after the same was recovered on being led by the accused . P.W-7 also claims to have recorded the statement of the accused by which the accused claims to hav e confessed his murder and had also stated that he had kept the dao in a pond ne ar his house. 7. The learned trial Court convicted the accused/ appellant basing on the t estimony of P.W-2, the recovery of the dao as per the statement of the accused l eading to its discovery and also holding that confession in the facts and circum stances of the case was admissible in evidence. 8. P.W-1 came to the place of occurrence almost immediately after the occu rrence after P.W-4 had informed him about the incident. According to him ,he did not name anybody in the ejahar as he did not suspect anybody. 9. P.W-2 had deposed that when she was sleeping with her husband and her baby son, she woke up when the baby cried out . She found that the accused had entered her house and had killed her husband by cutting his neck with dao. She deposed that she could recognize the accused when he flashed his torch light. In her cross-examination, she had stated that she had a quarrel with the wife of t he accused at about 4 p.m. on the day of occurrence. It was also her assertion t hat she had told P.W-1 and others that the accused had killed her husband. 10. P.W-3 in her deposition stated that P.W-2 had told her as well as h er eldest son P.W. 4 that Latif had killed her husband .It has come out in her evidence in cross examination that when P.W-1 had come , P.W-2 had not told hi m that the accused had killed the deceased. However, she further stated that sh e had informed P.W-1 about what P.W-2 had told her and that P.W-1 had gone to th e police station after he was informed by her about the complicity of the accuse d in the murder. 11. P.W-4, as was noted earlier, had been declared hostile and nothing res ts on the testimony of P.W-4. 12. P.W-5 had found the following injuries on the deceased:- A cut throat injury rectangular in shape measuring 10 cm x 5 cm up to laryngea l depth injuring trachea and larynx completely and major vesselsm nerves and mus cles . According to him, the cause of death was due to haemorrhage and shock as a resul t of injuries sustained . 13. P.W-6 in his statement had stated that though the accused gave a dao to police, he had not seen from where the accused had produced the dao. Accordin g to him, he saw a dao in the hand of police and the dao was seized in the villa ge road. In cross examination, he had stated that he was not informed about the name of the accused though he was present at the place of occurrence till morn ing. 14. P.W-7 had stated that the accused confessed before him that he had ki lled the deceased with a dao and thereafter, produced the dao on 7.11.99 from u nder water of a tank near his house.It is his assertion that he had recorded the statement of the accused which was proved as Exhibit -5. 15. In his statement under Section 313 Cr.P.C,the accused had stated that he h ad not produced any dao and further he stated that he had not made any statemen t or confession before the P.W-7. He had also stated that there was a quarrel in the evening between his wife and P.W-2 and he had rebuked P.W-2. He had furth er stated that he had informed the deceased about the said incident and on that grudge, the case has been filed against him. 16. We have heard Shri M.H.Choudhury, learned Counsel for the appellant a nd Shri Z.Kamar, the learned Public Prosecutor, Assam. 17. Having broadly analysed the materials on record , let us now examine whet her Exhibit -5 is admissible in evidence and as to whether the same as well as t he Exhibit-4 can be acted upon for the purpose of implicating the appellant in t he crime in question. 18. It would appear that the accused was arrested on 7.11.99 from his resi dence at around 7.10 A.M. and thereafter he was taken to the police station at around 8.15 A.M. The confessional statement of the accused was recorded around 1 0.30 A.M. Exhibit-4 seizure list does not indicate wherefrom the dao was recove red. Though there were 4 witnesses to the said seizure list,only one out of the said 4 witnesses, namely, P.W-6, was examined, who in categorical terms had in dicated that he had not seen wherefrom the accused had produced the dao. It is also in his evidence that the dao was seized in the village road and he had si gned the seizure list there. The broad feature of the evidence of P.W-6 is tha t he had not seen the recovery being made at the instance of the accused. It w ould appear that the signature of the accused was taken on the seizure list, Exh ibit 4. Significant is to note that Exhibit-5, the confessional statement, is no t signed by the accused. 19. The policy underlying Sections 25 and 26 of the Indian Evidence Act,1872 , for short, the Act is to make it a substantive rule of law that confession w henever and wherever made to the police or while in the custody of the police to any person whosoever, unless made in the immediate presence of a Magistrate shall be presumed to have been obtained under the circumstances mentioned in Section 24 and therefore, inadmissible, except so far as provided by Section 27 of the Act. 20. In the celebrated decision of Pulukuri Kottaya Vs. Emperor, reporte d in AIR 1947 Privy Council 57,the scope and ambit of Section 27 of the Eviden ce Act had been stated and the relevant portion of the same is extracted herein below : [I]t is fallacious to treat the fact discovered within the section as equival ent to the object produced; the fact discovered embraces the place from which th e object is produced and the knowledge of the accused as to this, and the inform ation given must relate distinctly to this fact. Information as to past user, o r the past history, of the object produced is not related to its discovery in th e setting in which it is discovered. Information supplied by a person in custod y 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 informa nt to his knowledge, and if the knife is proved to have been used in the commiss ion of the offence, the fact discovered is very relevant. But if to the stateme nt the words be added with which I stabbed A these words are inadmissible sinc e they do not relate to the discovery of the knife in the house of the informant . 21. At one time it was held that the expression fact discovered in Sec tion 27 is restricted to a physical or material fact which can be perceive d by the senses, and that it does not include a mental fact. However, it is fairly settled now that the expression fact discovered includes not only the physical object produced, but also the place from which it is produced an d the knowledge of the accused as to this. 22. The Apex Court in Anter Singh Vs. State of Rajasthan reported in (2004 ) 10 SCC 657, summed up various requirements of Section 27 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 the question of relevancy. The relevancy of the fact discovered must be establi shed according to the prescriptions relating to relevancy of other evidence co nnecting 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 receive d from the accused and not by the accused’s own act. (4) The person 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 . 23. In Aloke Nath Dutta Vs. State of West Bengal, reported in (2007) 12 SCC 230, the Apex Court at paragraph 53, has laid down that law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together . It was reiterated that only that part of confession is admissible, which would be leading to the recovery of dead body and/ or recovery of articles. The Apex Court pointed out in the context of the facts of that case that the confession proceeded to state even the mode and manner of committing alleged murder and that it should not have been so done as it may influence the mind of the Court . 24. The Apex Court in Swamy Shraddananda alias Murali Monohar Mishra Vs .State of Karnataka , reported in (2007) 12 SCC 288, held in paragraph 42 that the Court while analyzing the evidence and appreciating the same cannot take no te of confession made before the police. 25. It would be appropriate to quote Exhibit 5 in its entirety for better ap preciation of the confessional statement :- My name and address are same as stated above. On being asked I say that I killed Aizul Hoque is true.As he has illicit relation with m y wife. I killed Aizul Hoque by cutting throat with a Dao while he was sleeping in his room entering into his room by opening door. Thereafter I have kept the said Dao in a pond nearby my house. There was nobody with me in this incident a nd I can find out the said Dao. Note: Abdul Latif has confessed this murder in front of me. Along with this he said that he can show the said Dao by which he killed. There fore I have gone and tried to rescue the said Dao with him.Now I have stated to No.1Kacharibhetitop village along with my colleagues and the accused. 26. The entire confessional statement of the accused is exhibited as Exhib it-5. The portion depicting the manner and method of killing Azizul Hoque is cl early not admissible in evidence. What is admissible is his statement relating to keeping of the dao in the pond near his house. 27. Exhibit-4 seizure list does not indicate that it had been recovered from the pond near the house of the accused on being led by him. Only one seizure wi tness, examined as P.W-6, belies the prosecution case that the dao was recove red on being led by the accused , inasmuch as, his categorical statement was that he had seen the dao being seized in the village road and also he had not wi tnessed wherefrom the dao was produced. Though the P.W-7 had mentioned in his ev idence that the accused had produced the dao from under water of a tank, for th e reason aforesaid, we are not inclined to rely upon such testimony as the same does not inspire confidence in view of the antecedent facts and circumstances. 28. In view of the aforesaid, we are inclined to discard the prosecution cas e of discovery of dao on being led by the accused and on the basis of informat ion given by him. 29. That leads us to the evidence of P.W-2 who claims to have been an eye wi tness to the occurrence. It is in her evidence that she had informed many peo ple including P.W-1 that the accused had killed her husband. P.W-3, mother of t he deceased, supported P.W-2 by saying that P.W-2 told her in the morning that she had recognized the accused and the said information was also conveyed by her to P.W-1, who then had gone to the police station to lodge ejahar. Significantl y, P.W-1 did not allege complicity of the accused in the ejahar and on the contr ary had said that some assailants had entered the house and had killed him by cutting his throat while asleep. It is the categorical assertion of the P.W-2 th at she had recognized the accused when he had flashed his torch light. If we bel ieve P.W-2 and P.W- 3, non mentioning of the assailant’s name in the ejahar by t he P.W-1 ,may not have much significance. We may also take note of the fact that the own brother of the deceased had also been declared hostile. Therefore, in t he facts and circumstances of the case, omission to state the name of the accuse d in the ejahar would not impeach the prosecution case. We find that the test imony of PW-2 and P.W-3 have remained unshaken during the cross examination. Min or contradiction between the evidence of P.W-2 with that of P.W-3 and P.W-1, in that she had also told P.W-1 that the accused was the assailant, is, consider ing the state in which the P.W-2 had found herself in the night, her husband h aving been killed with blood of her husband splashed all over and a baby by h er side , cannot be given undue importance. It is also not brought on record by the defence as to why the P.W-2 would falsely implicate the accused. The fact th at there was some sort of quarrel between P.W-2 and the wife of the accused on the day of occurrence, as deposed by P.W-2, had also been acknowledged by the ac cused in his statement under Section 313 Cr.P.C. We find the evidence of P.W-2 a nd P.W-3 to be trustworthy. 30. We are satisfied that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt and, therefore, we maintain the convictio n and sentence as ordered by the learned trial Court. 31. In the result, the appeal is dismissed. 32. Send back the L.C.Rs.