1 CRIMINAL APPEAL No.409 OF 2002 - - - - Against the judgment of conviction dated 26.6.2002 and order of sentence dated 27.6.2002 passed by the Fast Track Court No.3, Motihari, in Sessions Trial No.9 of 1982. - - - - 1. SK. WAHEED @ SK. WAHID 2. Jaibunnisha alias Sona Devi … … Appellants Versus STATE OF BIHAR … … Respondent For the appellants: Smt. Rina Sinha, Amicus Curiae For the State : Shri Ashwini Kumar Sinha, Addl.P.P. P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE RAKESH KUMAR - - - - Dharnidhar Jha & Rakesh Kumar, JJ.- Sk. Waheed alias Sk. Wahid and his wife Jaibunnisha alias Sona Devi were tried by Fast Track Court No.3, Motihari, in Sessions Trial No.9 of 1982 for a composite charges under Sections 302 and 201 of the Indian Penal Code. Both of them were held guilty of committing the above noted offences by the judgment delivered by that court on 26.6.2002 and were directed to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/- each and in default of payment of fine to suffer imprisonment for three months. The order of sentence which was passed on 27.6.2002 does not specify any sentence separately for the offence under Section 201 of the Penal Code. The two appellants have preferred the present appeal for questioning the propriety of the findings and sentence passed against them. 2 2. The Chaukidar of the village, namely, Jai Mangal Hazari( P.W.14) picked up a rumour that the wife of appellant Sk. Waheed alias Sk. Wahid, namely, Bibi Mohidan was not being seen in the village Bahlolpur and that she had been killed and her dead body was concealed in the night intervening 31.10.1979 and 1.11.1979 he came to the village so as to verifying the report and alleged that as soon as appellant Sk.Waheed alias Sk.Wahid saw P.W.14, he started running away. The informant attempted to chase him but could not get him as the appellant Sk. Waheed alias Sk. Wahid made good his escape. P.W.14 doubted that Sk. Waheed alias Sk. Wahid had murdered and disposed or concealed the dead body of the deceased Bibi Mohidan. 3. As regards the cause of occurrence, P.W.14 alleged that appellant Sk.Waheed alias Sk. Wahid had developed an illicit relationship with Sona Devi alias Jaibunnisha, appellant no.2, when she was the wife of one Parmeshwar Turha and gave abladishments to her to abandon her matrimonial relationship with the said Parmeshwar Turha and to come to him and, accordingly, appellant no.2 deserted her husband and her matrimonial house for which a case had also been lodged. Subsequently, appellant no.2 Jaibunnisha alias Sona Devi got herself married to appellant no.1 and both the appellants ill-treated and tortured the deceased so much so as to forcing the deceased Bibi Mohidan to beg for alms so as to sustaining herself. It was, lastly, alleged that on 3 the previous day, a Wednesday, there was some quarrel between appellant no.2 and the deceased and, as such, the occurrence had taken place. This information was reduced into writing in the form of F.I.R. which has been marked Ext.2 4. It appears that the investigation was started as the two appellants were suspected to have committed the murder and also to have concealed or destroyed the dead body. They were arrested and questioned during which they pointed out to the police that they had murdered the deceased Bibi Mohidan and had buried the dead body in a part of their cattle shed which place was covered by fodder. Accordingly, the Investigating Officer of the case, who has not been examined, got the place dug up by appellant no.1 himself and recovered the dead body. The Investigating Officer of the case held inquest on the dead body and prepared inquest report and thereafter sent the dead body for post-mortem examination. 5. Dr. Kapildeo Singh, P.W.15. held the post-mortem examination on the dead body of the deceased. As per his evidence, the dead body was decomposed but the form of the body was maintained. On cutting and opening the ribs of both the sides of the chest P.W.15 found the 3rd, 4th, 5th and 6th ribs fractured and the lungs of both the sides had collapsed. In the opinion of P.W. 15 the injuries were caused by hard and blunt substance, like, Musal and the 4 death was caused on account of the above injuries within 7 to 16 days of holding of the post-mortem examination. In his cross examination, in paragraph 3, P.W.15 stated that when he was stating that the form of the dead body was maintained, he could mean to say that it was not mutilated and was intact. 6. After finding sufficient material the two appellants were sent up for trial by the police. 7. The defence of the appellants was of complete innocence about their participation in the commission of the offence. They pleaded that they had falsely been implicated by some of the family members of the deceased lady as also by the ex-husband of appellant Jaibunnisha alias Sona Devi on account of annoyance they were nursing in their hearts because appellant no. 2 Jaibunnisha alias Sona Devi deserted her husband and her married status so as to going with appellant Sk. Waheed alias Sk.Wahid. 8. In support of the charges, the prosecution examined as many as 15 witnesses. P.W.1, Abdul Salam, P.W.2 Bindeshwari Prasad and P.W.3 Md. Yasin have given evidence during course of the trial that Sk.Waheed alias Sk.Wahid and Jaibunnisha alias Sona Devi, the two appellants were picked up by the police and were also brought to their village and made statements to the police pointing out the place where the dead body of the deceased was buried after killing her. They have also stated in some satisfying details the facts 5 that appellant sk.Waheed alias Sk. Wahid dug up the earth of the house where fodder had been stored after removing the fodder whereupon a foul smell was found coming and a gunny bag was also found buried there which contained the dead body of Mohidan as per description of it in the inquest report which appears marked as Ext. 1/2 in the present case. 9. As regards the other witnesses, P.W. 4 Chulhai Ram has given statement that the deceased had a thoroughly bad relationship with appellant Sk. Waheed alias Sk. Wahid after he had married appellant no.2 Jaibunnisha alias Sona Devi whereas P.W. 5 Akidan, who happened to be the sister of the deceased, has given evidence that while she was coming after collecting alms, the appellants were assaulting the deceased. P.W. 6 Nagendra Sah and P.W.8 Sheikh Mobin were tendered for cross-examination whereas P.W.7 Sheik Raju and P.W.11 Masir Ahmad and P.W. 13 Sheikh Wazair were declared hostile. P.W.9 Sheikh Abid Hussain has also given evidence on the quarrel between appellant no.2 Jaibunnisha alias Sona Devi and the deceased. P.W. 10 Sheodhar Sah is a witness who has claimed having seen the dead body being taken out by appellant Sk.Wahid by himself digging up the earth. He has further given evidence that the dead body was pointed out by the appellants but his evidence in paragraph 2 indicates as if the pointing of the dead body by the appellants was not done in his presence. P.W.12 Imteyaz Ahmad is a witness of formal character who has proved the F.I.R. Ext.2 and P.W. 14 6 Jai Mangal Hazari, as indicated above, is the informant of the case and P.W.15 is the Doctor who held post mortem examination on the dead body of the deceased. 10. As regards the defence, it did not examine any witness but brought on record a few documents in support of its plea that the appellants have been falsely implicated by the persons who were inimically disposed towards them. Exts. A and A/1 are the copies of the judgments rendered in two criminal cases. Ext.B series are the depositions of different witnesses in Sessions Trial No.135 of 1988, the judgment of which is Ext. A. 11. Smt. Rina Sinha, learned Amicus Curiae appearing on behalf of the appellants has submitted that the evidence of P.Ws. 1 to 4 or 5 does not have any relevancy on the discovery of the dead body and that the fact that the dead body was recovered on account of being pointed out by appellant Sk. Waheed alias Sk. Wahid appears not reliable. It was contended further that the recovery of the dead body is not a circumstance which could be utilized against the appellants for recording their conviction and that besides the above evidence there does not appear any material on record for sustaining the conviction of the deceased. 12. In support of her contention that recovery of the dead body even at the instance of the appellants may not be sufficient for holding them guilty, Smt. Sinha has placed reliance on the decision of the Supreme Court reported in 7 (1981) 2 S.C.C. 166 Dudh Nath Pandey Vs. State of Uttar Pradesh as also A.I.R. 1996 S.C. 1186 Harbans Lal Vs.State of Punjab besides a decision of Himachal Pradesh High Court reported in 2008 Cri.L.J. ( NOC)893 State of H.P.Vs. Nirmala Devi & anr. 13. As against the above, the learned Additional Public Prosecutor, Shri Ashwini Kumar Sinha has submitted that even if the Investigating Officer has not been examined, who had recorded confessions of the two appellants which have also not been brought on record, there is material sufficient on record to indicate that the two appellants had made some disclosure statements before the police while they were in their custody and that information led to the recovery of the dead body. It was contended that the information was admissible under Section 27 of the Evidence Act as the fact of concealment of the dead body at a particular place was discovered consequent upon the above disclosure. It was contended further that not only there was an information and discovery of the fact but there was the conduct of the appellant, and also that he removed the fodder from the place of recovery and dug up the earth to bring out the gunny bag containing the dead body and these facts, when read together, clearly imparted the knowledge about the commission of murder of the deceased and also the concealment of the dead body by the appellants. It was contended that not only the information and the discovery 8 consequent upon that information were admissible under Section 27 of the Evidence Act, but the place where the dead body had been buried and from where the same was recovered was also relevant under the above provision of the Evidence Act. In support of the contention, learned Additional Public Prosecutor has placed reliance on the decision of Gauhati High Court reported in 2010 Cri.L.J. 275 Narayan Debnath Vs. The State of Assam. 14. Some circumstances appear attempted to be created by the prosecution so as to creating the link of last seen in the chain of circumstances. Evidence on the above link appears coming from the evidence of P.Ws. 1,2 and also from P.W.10. They have stated that they saw the deceased being taken away by appellant Jaibunnisha alias Sona Devi. P.Ws. 1 and 2 have stated that the purpose for taking the deceased with her was narrated by appellant Jaibunisha alias Sona Devi to clean the Angan of her house with dung and water. This fact does not appear stated by P.W.10 Sheodhar Sah who has rather stated that while being taken away, the deceased was being assaulted by appellant No.2 Jaibunnisha alias Sona Devi. We do not find ourselves inclined to accept the story told by P.W.10 Sheodhar Sah as regards the deceased being assaulted because that part of the story has not been stated either by P.W. 1 or P.W. 2. They have simply stated that the deceased was being taken away by appellant Sona Devi alias Jaibunnesha. All the witnesses have stated that after 9 appellant Sk.Waheed alias Sk.Wahid had married appellant no.2, Jaibunnesha after getting her to desert her family and husband, the relationship of the deceased with her husband Sk.Waheed alias Sk.Wahid had worsened and she was tortured to such an extent that she had to beg for alms in the village or in the nearby locality. She used to be absent from her house for quite some days also because she had to go out for begging. 15. A contention was raised by Smt. Sinha, learned Amicus Curiae as to why the appellants would expel or torture the deceased has not been stated. It is plain as appears to be told by P.W. 1 Abdul Salam that the deceased was the own cousin of the appellant Sk. Waheed alias Sk. Wahid and the two were married together. The house in which the deceased and her husband were residing was also very much near the house of the parents of the deceased. It is indicated sufficiently by the evidence of the witnesses that after the two appellants had married together, the deceased used to pick up quarrels with appellant no.2 regularly. There could be some reason on that account under which it would have been very difficult for the appellants to carrying on with the deceased and carry forward their new life peacefully and in the manner they had dreamt of. Possibly these could be the reasons that they could have done the ultimate. 10 16. The witnesses have stated this fact also that on the day on which the dead body was recovered the appellants were not in their house and had fled to Raxaul where they were found by the police and from where the two were brought to their village Bahlolpur. The witnesses, like, P.Ws. 1,2,3 and 6 have stated that on questioning, the appellants showed their inclination to point out where had they buried the dead body and, accordingly, appellant no.1 Sk. Waheed alias Sk. Wahid had removed the fodder and had himself dug up the earth to bring out the gunny bag containing the dead body of Bibi Mohidan which was duly identified by the witnesses present there. Even P.W.3 Md. Yasin who has been partly declared hostile has stated that the two appellants made disclosure statements before the police at his Darbaja. This is the evidence of P.Ws. 1 and 2 that the two appellants Sk. Waheed alias Sk.Wahid and Jaibunnisha were questioned by the police at the Darbaja of the Mukhiya, i.e., P.W. 3, Md. Yasin. Thus, it remains not in doubt that the appellants had made disclosure statements before the police. 17. A question was raised as regards the admissibility of the information dropped by the two appellant through the above stated disclosure statements under Section 27 of the Evidence Act on the ground that the Police Officer who recorded the statements of the two appellants has not been examined. If we consider the provision of Section 27 of the Evidence Act, we may find that what is made admissible under 11 that provision is the discovery of the fact consequent upon the information received from an accused of any offence. The condition precedent is that the information leading to discovery of the fact must have been supplied by the accused when he was in custody of the Police Officer and that must distinctly relate to the facts discovered. A bare perusal of that condition may indicate that it is not a mandate of the provision that the information leading to the discovery of a fact must be reduced into writing. In our opinion, an information, if it is given to the Police Officer in presence of so many persons as in the present case, and if the witnesses come together to state before a court as to what information the accused had divulged to the police Officer while in custody of the Police Officer and further that the same information had led to the recovery of a particular fact then in our considered view, there is no requirement that the Police Officer receiving the information be examined. The courts are required to have satisfactory evidence about the information being supplied by the accused if it is coming from the witnesses other than the Police Officer who has given evidence on disclosure statement rendering some information as a result of which a fact is discovered. The other requirements are that while making disclosure statement the accused should be in police custody and that information should “distinctly” relate to the fact “discovered”. It is too well known to be stated 12 that word “distinctly” means unmistakably and clearly. There should not be any doubt and there should not be any factual detail or any such circumstance which could impart the previous knowledge to the police about the concealment of a particular object before the information is received by it. 18. Here, in the present case, the witnesses, like, P.Ws. 1,2 3 and 10 have clearly stated that the two appellants made statements before the police Officer when they had been arrested and brought from Raxaul as to how the deceased had been murdered and concealed by them and at what place and thereafter appellant Sk. Waheed alias Sk.Wahid had himself removed the fodder from that particular place and had taken out the dead body after digging up the earth which was found to be that of Bibi Mohidan. The inquest report also indicates that the dead body was recovered at the pointing of appellant Sk.Waheed alias Sk. Wahid from the cattle shed of the appellants which was facing east and after the fodder had been removed from that part of the shed where the dead body was found buried in a gunny bag. The whole description of the dead body appears in column nos.3 and 4 of the inquest report which appears at page 81 of the Paper Book and we find that the recovery was consequent upon the statements of the two appellants. The evidence of the witnesses on the point of the appellants giving information to the police while in its custody, leading to the recovery of the dead body appears quite 13 satisfactory to us and we have no hesitation in accepting and acting upon it. 19. On account of the finding recorded by us on the admissibility of the evidence of recovery of the dead body, we could point out that the inference naturally coming out is that it was within the knowledge of the accused persons as to how Bibi Mohidana had been murdered. The other inference which is raised from the above facts is that not only they had participated in the commission of murder but they had also participated in the concealment of the dead body at the place from where the same was recovered. Appellants Sk. Waheed alias Sk. Wahid was the husband of the deceased. Jaibunnisha alias Sona Devi, the other appellant, was the second wife of appellant Sk Waheed alias Sk.Wahid and the evidence clearly indicates that the two appellants were very much present in the house on the very day and night the lady was murdered. It was within the special knowledge of the two appellants as to how Bibi Mohidan happened to die or happened to be killed. In their statements under Section 313 Cr. P.C. which has been perused by us, we could find no tangible and acceptable explanation given by either of them as to how Bibi Mohidan was murdered, how her dead body was packed in a gunny bag and how the gunny bag was buried in the cattle shed of the appellants. It could be within the special knowledge of the two appellants to give reasonable explanation to the above 14 circumstances. The same was the premise upon which the Division Bench of Gauhati High Court raised an inference which was within the special knowledge of the appellants in 2010 Cr. L.J. 275. It was also held that in absence of any explanation coming from the accused it has to be presumed that the accused had themselves murdered the deceased and concealed the dead body. 20. We want to consider the decision cited by the learned Amicus Curiae before us in support of her contention. On considering the decision rendered in (1981)2 S.C.C. 166 we find that the fact was completely different. In that case the recovery was of a pistol at the instance of the accused but the evidence was completely lacking as regards the use of the weapon by the accused in commission of the crime. On that account no presumption was drawn against the accused of participating in the commission of the offence on account of recovery of the pistol. As such, that decision does not appear applicable in the present set of facts. As regards the decision reported in A.I.R. 1996 S.C. 1186 the facts of that case also appears vastly different with those of the present case. As may appear from the decision of the Supreme Court in the above noted case, the witnesses were found not reliable and that the recovery of the dead body from the house of the accused was found of no consequence inasmuch as the accused was found residing separately from the house of the deceased. 15 The above situation does not appear in the present case. As we have already held that on the day of occurrence the deceased had been brought by appellant no.2 Jaibunnisha alias Sona Devi and witnesses have stated that she was seen coming to the house of the appellants with appellant Jaibunisha alias Sona Devi. So far the decision reported in 2008 Cril L.J.(NOC)893 is concerned, the facts of that case also appears completely different from those of the present case. In the above noted decision of the Himachal Pradesh High Court, the evidence regarding recovery of the dead body at the instance of the accused was highly doubtful. We do not have any doubt about the evidence that the appellants dropped information and one of the appellants namely, Sk. Waheed alias Sk. Wahid himself dug out the dead body which was packed in a gunny bag. 21. After having considered the arguments and decisions cited, we find that the judgment, impugned herein, does not suffer from any error. The conviction of the two appellants was recorded properly and genuinely and the sentences which were minimum prescribed under law were passed upon the appellants. 22. In the result, we do not find any merit in the appeal and the same is hereby dismissed. 23. We sincerely record our appreciation of the assistance rendered to us by Smt. Rina Sinha, learned Amicus Curiae. She tried her best and placed all relevant facts 16 before us for our consideration. Considering her efforts we are of the considered view that she is entitled to a fee and that should be paid to her by the High Court Legal Services Committee. 24. Let a copy of the first and the last pages of the present judgment be made available to Smt. Rina Sinha for payment of her fee. ( Dharnidhar Jha, J.) ( Rakesh Kumar, J.) Patna High Court The 29th January, 2010 Kanth/A.F.R.