IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Jairam Das @ Ramji Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.105/2005) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 6-12-2004 in Sessions Case No.104/2002 passed by Shri Abdul Gafoor, RHJS, Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur. Date of Judgment: March 03, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE GUMAN SINGH Mr. S.S.Hora, for the appellant. Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Challenge in this appeal is to the judgment dated December 6, 2004 of learned Additional Sessions Judge (Fast Track) No.2 Jaipur City whereby appellant was convicted and sentenced as under:- U/s.302 IPC: To undergo imprisonment for life and fine of Rs.5000/- in default to further suffer six months simple imprisonment. U/s.201 IPC: To undergo seven years rigorous imprisonment and fine of Rs.500/- in default to further suffer one month simple imprisonment. The substantive sentences were ordered to run concurrently. 2. The prosecution case as unfolded during trial is as under:- A written report (Ex.P-6) was handed over by one Kaidar Soni (Pw.13) at Police Station Ramganj Jaipur on October 11, 2001 wherein it was stated that Sudha Sharma, aged about 40-45 years, who was residing near Ganesh temple, was missing for the last 10-15 days. Raghuveer Singh Head Constable was directed to inquire about the missing lady. After sometime i.e. on November 2, 2001 at 12.15 PM Ramanand Sharma (Pw.1), who was posted as Sub Inspector in the office of DIG Jaipur Range, lodged a written report (Ex.P-1) at Police Station Phagi to the effect that he got secret information that Sudha Sharma, whose missing report was registered at Police Station Ramganj, was murdered by Jairam Das Gurjar @ Ramji, Geeta Khandelwal, Sunil, Rang Lal Gurjar, Driver Mangi Lal and Bhola Ram and her dead body was thrown into the well existed just in front of Prahlad Ram Dharamshala. On that report case under sections 302, 201 and 34 IPC was registered and investigation commenced. As per direction of S.P. Jaipur City (North) the investigation was transferred to Circle Officer Police Station Manak Chowk Jaipur. Dead body got recovered, statements of witnesses under section 161 CrPC were recorded, accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.2 Jaipur City Jaipur. Charges under sections 302, 201 and 201/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 42 witnesses. In the explanation under Sec.313 CrPC, the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. We have heard rival submissions. Since there is no eye witness of the occurrence and the prosecution case rests on circumstantial evidence, we have to examine whether:- (i) the circumstances from which an inference of guilt is sought to be drawn, have been cogently and firmly established; (ii) those circumstances are of a definite tendency unerringly pointing towards the guilt of the appellants; (iii) the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellants and none else. 4. As per post mortem report (Ex.P-59) condition of the dead body was as under:- “Body received in advanced stage of putrificative changes emitting foul smell. On examination one Salwar, one Kurta, bra, underwear found covering the body parts, skull found separately on removing the clothings a sanitary pad found at the vulva opening. Bra found adherent to the chest wall. A few pieces of gunny bag also found over the clothing on removal of clothing following are observed:- 1.Skull: Over the skull, dried few inches 2 part of scalp with long hairs softed in body fluid and sticked together are found which are kept for further forensic investigations. Mandible both maxillae palate and all teeth found missing. On left side of skull there is a fracture line extending from just at the level of zygomatic process and running backwards in horizontal plane crossing over left temporal, parietal and occipital bone. The total length of this fracture line is 25cm x 0.2 to 0.1 cm the anterior part of 16cm length of this fracture line is deeper, wide and clean cut. The left fronto tempro parietal region 9 x 8.0cm area showing dried brownish black clotted blood. Left zygomatic bone found missing with the remaining posterior part showing clean cut margins. The portion of the left maxilla attached to the frontal bone also showing clean cut fracture area. This skull as such subjected to X-ray examination. (2) Vertebral column cervical first to 4th vertebrae found missing rest of the vertebrae are intact with soft tissue which are in the process of putrefaction. 3. Right upper extremity: Right humerus found missing right forearm and hands found with soft tissues with fallen of nails both radius and ulna including the bones of hand found intact. The covering skin is sodden and yellowish-brown in colour. 4. Left upper extremity: Left humerus and ulna bone found attached with tenderous tissues other soft tissues and bones of forearm and hand found missing. Humerus -29cm, ulna -23cm. 5. Trunk: neck tissues found missing. Both clavicals sternum and all the ribs, vertebrae, palvis found intact with sodden at places dried up found attached with few insects (which are preserved entomological study) found crowling over it. Pubic hair are shaved and external genital organs of female (adult) type identifiable. Breasts are dried up and adherent to bra with greasy white material underwear. On dissection: antrysed both lungs dried up pleura, heart, diaphragm, liver with gall bladder, covering peritoneum, loops of intestine adherent to each other right and left kidney and other soft tissue found which are preserved for relevant forensic examination. 6. Left lower extremity: Only left femur covered with chalk white greasy material mixed with antrlysed muscles of thigh found. Left knee, left leg and foot found missing. 7. Right lower extremity: Right femur found covered with few tags of chalk white greasy material with antrlysed muscles in upper ½ part right tibia and fibula are found without any soft tissues right foot is missing. Trachanter to condyle 37.0 cm. Head to condyle 39.0cm right tibia med.malleous to condyle 33.0 to 32.5cm.” In the opinion of the members of the Medical Board the cause of death was head injury caused by sharp edged weapon, the remains were of a adult female of age more than 25 years and time since death (post mortem internal) was more than one month but less than three months. 5. Babu Lal Koolwal (Pw.3), who knew the deceased for the last seven years, deposed that deceased was General Secretary of Hindu Mahasabha. She was thickly connected with Ram Snehi Sampraday of the appellant. Being Secretary of the party this witness used to talk her over telephone. On September 4, 2001 when he ranged her, she did not respond. He then started searching her. On November 2, 2001 Ramanand SHO informed him about a dead body. He was taken by police to a well of village Harsulia. Dead body was lifted out of the well. From the ear-rings, iron bangle, thread of neck and clothes, he identified the dead body as of Sudha. Prem Devi (Pw.6) stated that the deceased told her that her relations with Baba Jai Ram Das became strained as she had in her possession the indecent photographs of Jai Ram Das and she wanted to expose him. This witness was also taken to the well of village Harsulia where she identified the dead body as of Sudha Sharma from ear-rings, Tulsi-mala, Tabiz, red thread and iron bangle. Kalyani (Pw.11) deposed that few days prior to her death Sudha told her that she had in her possession nude photographs of Baba Jai Ram Das and Baba Jai Ram Das was a wolf in saint's clothings and used to entrap women for bad purposes. Kalyani further deposed that she met Sudha last time on September 4 in Hanuman temple, on being enquired she was told on dated 4 around 7 PM she was seen entering into Ramdwara at that time Baba Jai Ram Das and Mangi Lal were inside. Around 9.30 PM Baba Jai Ram Das and Mangi Lal left Ramdwara but Sudha was not seen with them. Basanti (Pw.7) deposed that she had seen Sudha around 7 PM coming on `Luna' and entering Ramdwara. 6. Despite lengthy cross examination, testimony of these witnesses could not be shattered. The prosecution is able to establish that Sudha earlier resided in a rented house but few months before she disappeared she started residing in Ramdwara which was owned and managed by Baba Jai Ram Das (appellant). On September 4 at 7 PM she entered into Ramdwara. Baba Jai Ram Das at that time was inside Ramdwara. Around 9.30 PM Baba Jai Ram Das was seen coming out of Ramdwara but Sudha was not seen thereafter. It is also established that Sudha had indecent photographs of Baba Jai Ram Das and she wanted to expose his objectionable activities with the women. 7. It also appears that the appellant was arrested on November 3, 2001 and on the basis of his disclosure statements recorded in Ex.P-63, P- 64, P-65 and P-66 vehicle bearing No.RJ-26C-0395, axe and ornaments got recovered. There is also evidence of extra judicial confession. Subhash (Pw.41), a reporter of daily news paper, visited jail to meet the appellant where appellant admitted that he had killed Sudha. 8. It is contended by learned counsel for the appellant that conviction of appellant is in the air inasmuch as neither there is evidence of last seen nor any connecting recovery. The remains of the deceased alleged to have been assumed were of female aged 25 years while the deceased was stated to be of 45 years of age. Further the axe that has been recovered at the instance of appellant did not contain any blood mark. The extra judicial confession allegedly recorded by reporter of news paper was totally unreliable. Reliance is placed on Ravinder Prakash Vs. State of Haryana (2002)8 SCC 426, Balwinder Singh Vs. State of Punjab [1995 Supp.(4) SCC 259], Bharat Vs. State of M.P. (2003)3 SCC 106, State of Goa Vs. Sanjay Thakran (2007)3 SCC 755, Sunny Kapoor Vs. State (2006)10 SCC 182 and Balbir Singh Vs. State of Punjab (1999)9 SCC 30. 9. In order to adjudge the submissions when we look the material on record we find that recovery of articles got effected at the instance of appellant in presence of Motbirs 10. A look at the Recovery Memos goes to show that pursuant to information provided by appellant police party got recovered the articles. 11. Section 27 of Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the conditions prescribed by it. The law in India on the subject dealt with in Section 27 is wider than the common law in England. It appears from the provisions of Section 27 that it has been taken bodily from the English law. In both the laws there is a greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him then for one who knows of the danger. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose. 12. Section 27 seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby than the information was true and accordingly can be safely allowed to be given in evidence. It is not correct to presume that information given by the accused under section 27 is compelled testimony, so as to attract Article 20 (3) of the Constitution. 13. In Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400] the Apex Court held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct, under section 8, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27. 14. In Rammi Vs. State of MP (1999)8 SCC 649, the Apex Court held thus:- (Paras 11&12) “Regarding the recovery of weapons, the prosecution could utilise statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which the accused had furnished to the police officer and which led to the recovery of the weapons.” “True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.” 15. In Himachal Pradesh Administration Vs. Om Prakash (1972)1 SCC 249 the Apex Court interpreted Section 27 of Evidence Act thus:- “A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the `cause and effect' that information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused.” 16. In Ghanshyam Das Vs. State of Assam (2005) 13 SCC 387 the Supreme Court held that evidence regarding pointing the place where weapon was thrown and its recovery can be looked into to throw light on the conduct of accused under section 8. It was observed as under:- (Para 5) “Another incriminating which corroborates the case of the prosecution is that the appellant led the IO PW.12 to Kharbhanga riverside and pointed out the place where he had thrown away the Khukri. According to the evidence of PW.12 the IO and PW.6, the Khukri was recovered from the river with the help of a diver. Though both the courts have eschewed this circumstance from consideration on the ground that no information was recorded by PW.12 the IO so as to attract Section 27 of the Evidence Act, we are of the view that the evidence of PW.12 and PW.6 to the effect that the accused led them to the spot and pointed out the place where the Khukri was thrown, which fact stands confirmed by its recovery, can be looked into to throw light on the conduct of the accused under section 8 of the Evidence Act.” 17. We cannot approach the action of Investigating Officer with initial distrust. The investigating officer had no enmity with the appellant. Even if independent person fails to support the recovery of incriminating articles at the instance of accused, it cannot be presumed that recovery is untrustworthy. The Supreme Court in State Govt.of NCT Delhi Vs. Sunil (2001)1 SCC 652 indicated in para 21 thus:- “It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” 18. Having analysed the evidence adduced at the trial we find no merit in the submissions of learned counsel for the appellant. In the opinion of Medical Board the remains were of an adult female of age more than 25 years. Learned counsel failed to advert his attention towards the words `more than'. The dead body was identified from the clothes, iron bangle, Tulsi-mala, Tabiz and ear rings by the persons who were in constant touch with the deceased and used to meet her daily. The appellant had motive to kill the deceased as she knew about his illicit relations with many women. She had his nude photographs with the women and she wanted to expose him. She was last seen alive with him in Ramdwara. Recovery of incriminating articles got effected on the basis of his disclosure statements and while in judicial custody he gave interview to a press reporter which was published in news paper. In the interview he admitted his guilt. 19. From the facts established we find that the circumstantial evidence in the instant case does not fall short of the required standard of proof. The circumstances so established are consistent only with the guilt of appellant and inconsistent with his innocence. All the circumstances exclude with certainty the possibility of guilt of any person other than the appellant. 20. For these reasons, we find no merit in the appeal and it accordingly stands dismissed. Conviction and sentence of appellant under section 302 and 201 IPC are maintained. (Guman Singh),J. (Shiv Kumar Sharma)J. arn/