Crl.A. 194/2005 BEFORE THE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR THE HON’BLE MR JUSTICE A K GOSWAMI Goswami, J This appeal arises out of a judgment and order dated 11.7.05 passed by t he learned Sessions Judge, Kamrup in Sessions Case No. 26(K)/03 convicting the accused appellant under Section 302 IPC and sentencing him to suffer rigorous i mprisonment for life and to pay a fine of Rs. 3,000/-, in default, further rigor ous imprisonment for one year. 2. One Md. Asad Ali had lodged an Ejahar on 12.10.2000 stating that his so n, Md. Alifuddin had killed his wife by stabbing her with a dagger while he was sleeping with her in the bed. The ejahar was received by the police at the plac e of occurrence at 1.10 P.M. and consequently, same was forwarded to the Office r-in-Charge, Hajo Police Station, for registering a case under Section 302 IPC and accordingly, Hajo PS Case No.176/2000 under Section 302 IPC was registered. 3. After completion of the investigation, the police submitted charge sheet under Section 302 IPC against the accused and the case being exclusively triabl e by the Court of Sessions, the case was committed to the Court of Sessions Jud ge, Kamrup by the learned Magistrate. Accordingly, Sessions Case No. 26(K)/03 w as registered. Charge under Section 302 IPC was framed against the accused to wh ich he pleaded not guilty and claimed to be tried. 4. The prosecution, in all, had examined 11 witnesses during the course of trial. The defence had also examined two witnesses. 5. We have heard Mr. NJ Das, learned counsel for the appellant and Mr. Z. K amar, learned PP for the State of Assam. 6. PW 1, Siraj Ali, is a neighbour of the accused. According to him, after hearing hue and cry in the house of the accused, he went there. Some people had already gathered there and he had found Salima, the wife of the accused, dead. He also said that on being asked by his father, the accused had said that he had killed his wife. He deposed that he along with some other persons, had inform ed the police at the Hajo Police Station about the occurrence and accordingly, t he police had come to the place of occurrence. He is also a signatory to the inq uest report (Ext- 1). He also stated that on being shown by the accused, the pol ice had seized a dagger and he was a witness to the seizure list, Ext-2 . He had stated that the accused had produced the dagger from inside his house and th e size of the dagger would be about 1 ‰ ft. long. In his cross-examination, he had deposed that the couple had quarreled frequently as the deceased had pref erred not to stay in the village as she hailed from Guwahati. He had also clarif ied that he had not seen where from the accused had brought out the dagger and, in fact, he had signed the seizure list on being told by the police that they h ad seized the dagger. 7. P.W. 2, Md Painar Ali, also deposed that after hearing hue and cry at ar ound 3 / 4 a. m. in the house of the accused, he had gone there where he found that many people including PW 1 had already assembled there. He had deposed tha t the accused had told that he would go to jail because he had killed his wife and that he confessed voluntarily. In cross-examination, he had stated that he h ad seen the dead body after it was taken out from the house. He had also gone to the police station along with PW 1. He also deposed to the effect that the pol ice had taken the dagger from inside the house. It also came out in his evidenc e that the deceased used to beat up the accused sometime. In cross-examination, he reaffirmed that he heard the accused telling his father that he had killed his wife. 8. PW 3, Msstt. Gulsan Bibi, is the mother of the accused who deposed that the deceased also lived in their house and there was frequent quarrels between her son and daughter-in-law. She also stated that she had found Salima lying in the bed and the accused unconscious on the courtyard. 9. PW 4, Md. Atab Ali, who is a neighbour of the accused, had deposed that there was a hue and cry in the house of the accused and the accused had come ou t of the room and said that he would go to jail as he had cut a man. He was info rmed by the police that the police had found a dagger in the house of the accuse d. 10. PW 5, Md. Latifur Raman, does not contribute much to the prosecution cas e and he had merely stated that he had heard that the accused had killed his wi fe by stabbing her with a knife. 11. PW 6, Md Asad Ali, is the father of the accused. It is in his evidence that he had come out of the house after hearing commotion in the morning and he saw that his daughter-in-law was lying dead in the bed in the house. He stated t hat he also found the accused lying unconscious on the courtyard. He stated that he did not lodge any ejahar and he had merely put a signature as guardian. He stated that the accused had told him that Salima had killed herself by stabbing with a dagger. In cross-examination, he stated that he was not aware as to who h ad written the ejahar. 12. PW.7, Md Rekibudin Ahmed, is the owner of a pharmacy and he had gone to the place of occurrence seeing a gathering and he found police personnel present there already. The accused was sitting in the police vehicle and the police had shown him a knife wrapped in a paper, which, he was told, was seized by the pol ice and he had signed as a witness in the seizure list, Ext-2. He had also said that the marital life of the couple was not very cordial and they used to quarre l some time. In the cross-examination he had said that sometime before the occur rence, the brothers of the deceased had tortured him and the accused had purc hased medicine from his pharmacy for treating the injuries sustained by him. 13. PW 8, Dr. Pratap Ch. Sarma is the Doctor who had conducted postmortem e xamination on the dead body of Salima Begum and he had found the following injur ies on her person :- 1) Defence cuts-present on palmar surface of 2nd finger of left hand o n middle phalanx, size being 2 cmsx 0.5 cm 0.5 cm deep. 2) Defence cut measuring 5 cms x 0.5 cm x 0.5 cm deep present on palmar surface of 3 rd finger of left and on middle phalanx. 3) Stab wound wedge shaped measuring 3 cmsx 1.5. cms x chest cavity deep present on front of chest at 24 cms below suprasternal Notch and 2 cms left to midline - the lower and pointed end of the wound being at 12 cms above and left to umbilicas. Weapon entered the left side of chest cavity cutting the chest wal l and left side of the Xiphoid process and pierced the lower lobe of left lung chest cavity contains 1000 ml blood. Direction of the stab wound - from front to back, right to left and below upwards. According to him, death was due to shock and hemorrhage resulting from s tab injury of chest which was ante-mortem, caused by sharp cutting pointed weapo n and homicidal in nature. The defence declined to cross-examine this witness. 14. PW. 9, Sahanur Ali, is a neighbour. He had deposed that he heard a loud cry in the house of the accused and hearing that, he got up from sleep and came to the courtyard of the accused, where he found that the father of the accuse d and some other neighbourhood persons had already gathered. The accused kept on saying that he finished . The people gathered there took the accused inside h is room whereupon he found Salima was lying in a pool of blood. The accused tri ed to flee away but he was over powered and was handed over to the police. Polic e seized one dagger from the house of the accused on being led and shown by th e accused. In cross-examination, he had said that the dagger which was seized, w as not shown to him by the prosecution. He also stated that there have been fre quent quarrels between the couple and a case was instituted by the wife against her husband. In cross-examination, he had said that the accused was arrested and had re-iterated that a dagger was recovered on being led by the accused. 15. PW.10, Mustt. Diljan Bibi, did not state anything about the occurrence a nd she is only a witness to the Ext-1. 16. PW 11, Ajmal Ali, was the Investigating Officer. He deposed that he had received verbal information from the PW 1 who had stated to him that one Alimudd in Ahmed had killed his wife and he had made one G.D. Entry No. 245 dated 12.10. 2000. He had asked for lodging of a formal ejahar, but nevertheless went to the place of occurrence and took up investigation. He had found the accused person at the place of occurrence and had arrested him. He also deposed that the accus ed had confessed his guilt before him and other persons present and the accused had also led him to show the dagger that was concealed by him in the house and t he same was seized in the presence of the witnesses. The dagger was exhibited a s Material Ext-1. It is also in his evidence that he had received the ejahar at the place of occurrence. In cross-examination, he had stated that the statement of the accused was not recorded before recovery of the dagger was effected and there is also no mention in his notes before whom the recovery was made. The dag ger was also not sent for Forensic Science Laboratory for examination. 17. The defence had also examined two witnesses as indicated earlier. DW. 1, Musstt. Sayera Begum, had said that the cause of quarrel between the couple w as the refusal of the accused to stay in the house of the father of the deceased . She does not say anything with regard to the incident. 18. DW. 2, Md. Kalam Ali, stated that he was present when the police had com e to the place of occurrence and according to him police had not seized anything . 19. In his 313 Cr.P.C. statement, the accused asserted that he had not confe ssed his guilt and professed his innocence. He also denounced the recovery of t he dagger made at his instance and his categorical assertion was that his wife had killed herself by stabbing herself with a dagger. He also admitted that the police had taken out the dead body from inside the house. 20. Above is the broad contours of the case unfolded by the prosecution and the defence. 21. The learned trial court had based the conviction of the accused on the b asis of the extra-judicial confession and the recovery of the weapon of assault at the instance of the accused person. 22. Mr. Das, learned counsel for the appellant, has submitted that convictio n and sentence passed by the learned trial court is not sustainable and the accu sed appellant is entitled to be acquitted of the charges under Section 302 IPC. According to him, the prosecution has miserably failed to prove the seizure of t he dagger. He further submits that the parents of the accused did not state abou t the so called extra-judicial confession made by the accused. He has also cont ended that the prosecution has suppressed the G.D. Entry and the ejahar, Ext.-1 is hit by the provision of Section 162 Cr.P.C. According to him, the deceased ha d inflicted injuries on herself as a result of which she had died. He submits th at in absence of any statement recorded prior to the recovery of the dagger at t he instance of the accused, no reliance can be placed on the said recovery, mor e so, in view of the fact that that there was conflicting versions of the prosec ution witnesses. 23. Mr. Z. Kamar, learned PP, on the other hand, submits that there is not hing to disbelieve PWs 1 and 2. He also submits that in the facts and circumsta nces of the case, recovery of the weapon of assault and the statement of the acc used has been proved. Arguing further, he submits that even if recovery part is held to be doubtful, than also, conviction can be sustained on the basis of the extra-judicial confession made by the accused. 24. We will deal with the weapon of offence first. PW 1, though had been sho wn as a witness to the seizure list, it would be evident from his deposition tha t the dagger was not seized in his presence and he did not know actually from wh ere the police had brought out a dagger. PW 2, though was shown to be a witness to the seizure, he is conspicuously silent on the subject of seizure so made. PW 9, though had stated that the dagger was seized on being led and shown by the a ccused, does not depose exactly wherefrom the dagger was recovered. He does not even say whether it was blood stained. PW 11 was also not categorical as to wh ether the accused had supposedly kept the dagger concealed. At the cost of repet ition, we have already noticed in the evidence of PW 11 that the statement of t he accused was not recorded before the recovery was made at the instance of the accused. It is also to be noticed that though PW 11 refers to the dagger seized by him as a material exhibit, evidence of PW 9, who otherwise had deposed that t here was a recovery made on being led and shown by the accused, stated in his e vidence that the dagger which has been seized by the police had not been shown b y the prosecution. The inference is that the dagger was not produced at the tria l. 25. In the case of Niranjan Panja -vs- State of West Bengal reported in (201 0) 6 SCC 525, the High Court had relied upon the discovery made in the absence of the weapon of offence and recorded under Section 27of the Evidence Act,1872 a nd the theory of last seen together. On the basis thereof, the High Court had p roceeded to hold that the chain of circumstances was complete against the accus ed. The Apex Court had made the following observation in this regard : The High Court has accepted the evidence on the recovery of the so-call ed weapon. We fail to follow as to how the said discovery could at all be relied upon in the absence of the weapon being produced before the court & & & & &.. Further, in paragraph 20, the Apex Court said thus :- For effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only the part of the statement which is not incriminating and leads to disc overy which becomes admissible. The evidence of this witness does not inspire c onfidence and it is of no use, more particularly, because the so-called hansua allegedly produced by the accused never saw the light of the day nor had the wi tness identified the same and the prosecution had also not given any explanatio n whatsoever about the disappearance of this weapon. 26. The question as to whether a statement, which, in legal parlance is com monly referred to as disclosure statement , need to be reduced into writing or not in order to make such a statement admissible in evidence under Section 27 of the Evidence Act, 1872, was considered by a Full Bench of this court in the case of Rajiv Phukan &Anr -Vs- State of Assam, reported in 2009 (2) GLT 414. Th is court, on consideration of the authorities and relying on the provisions con tained in the Evidence Act, 1872 and the Code of Criminal Procedure, 1973, point ed out as follows : Because of what have been discussed and pointed out above, we conclude that a ’disclosure statement’, to be admissible under Section 27 of the Evidence Act, is not statutorily required to be reduced into writing, though prudence de mands that such an information should be reduced into writing in order to enable the Court to know exactly as to what the accused is allegedly to have stated an d the extent to which the information given by him is admissible. The reference shall stand answered accordingly. 27. On the basis of the materials on record, we are reluctant to hold that the case sought to be projected by the prosecution with regard to the discovery of the weapon on being led and shown by the accused has been proved. 28. With regard to the next submission of Mr. Das that the ejahar is hit by the principle of Section 162 of the Cr.P.C., it is to be noted that the informat ion was received at 12.00 noon regarding the alleged occurrence and the police h ad set out to investigate the matter and the ejahar was received at the place of occurrence at 1.10 p.m. The distance between the place of occurrence and the police station is 12 Kms. P.W. 11 had stated that he had received verbal informa tion from PW 1 stating that the accused had killed his wife. There was no cross- examination of PW 11 with regard to the G.D. Entry recorded. The learned counsel for the appellant has placed reliance on a decision of this court in the case o f Mukul Mandal -Vs- The State of Assam, reported in 1997 (III) GLT 256, to cont end that the ejahar has been wrongly treated as an ejahar within the meaning of Section 154 Cr.P.C. The object of FIR being to obtain early information of alle ged criminal activities and to record the circumstances before there is time fo r them to be effaced and embellished, according to learned counsel, having regar d to the GD entry already recorded, Ext- 1 can at best be treated as previous s tatement which can be used only for the purpose of contradicting the witness. 29. It is to be noticed that there is no appreciable time difference between G.D. entry recorded and the FIR. Further more, the substance of the G.D. entry was also deposed to by the PW 11 when he made it explicitly clear that PW 1 ha d informed him that the accused had killed his wife. We have also noted that the re is no cross-examination of the PW 11 on this point. The factual matrix in Mu kul Mandal (Supra) was to the effect that after receipt of the information about the occurrence that had taken place around 8.40 p.m. on 28.8.91, police started investigation and after much of the investigation was over, and at a belated s tage, the ejahar was lodged on the intervening night of 28.8.91/29.8.91 at 1.00 a.m., after 3 / 4 hours of having set in motion the investigation. The facts of Mukul Mandal (Supra) is clearly distinguishable from the facts of this case. W e are not inclined to take a view that the prosecution has suppressed the genesi s of the occurrence. 30. It would appear that while PW 1 and PW 2 are categorical to the effect t hat accused had voluntarily confessed that he had killed his wife, PWs 3 and 6 gave a different picture altogether, inasmuch as, according to them, the accused was found unconscious on the courtyard. Though they were present, they did not say anything about the accused making any extra judicial confession. PW 9 had also said the accused was saying something like he finished . PW 4 had also d eposed that the accused had said that he would go to jail as he had cut a man. W e will not hazard a guess as to whether these two witnesses were referring to an extra-judicial confession when the language itself is not very clear. The In vestigating Officer had also deposed with regard to the extra-judicial confessio n made by the accused in the presence of different persons. It would appear that there is one set of evidence led by PWs 1 and 2, who are undisputedly disinter ested persons affirming the extra-judicial confession, made by the accused. Side by side, we have the evidence of PWs 3 and 6, who are, most interested witnesse s being the parents of the accused. The learned counsel for the appellant submit s that when there are two sets of evidence clearly depicting two different pictu res then, that set of evidence, which goes in favour of the accused, should be adopted by the court, and viewed from that angle, the accused appellant is entit led to have the benefit of statements made by the PWs 3 and 6. In order to bolst er his submission, he has placed reliance on a decision of this court in the cas e of Budhua Mura -Vs- State of Assam, reported in 2002(2) GLT 103. 31. This court, in the aforesaid case, making a reference to the reported ca se of Harchand Singh & Anr. -Vs- State of Haryana (AIR 1974 SC 344) stated thus : 24. Coupled with the above, we have to also bear in mind that when pros ecution adduces two sets of witnesses, one contradicting the other, and the Cour t is not a position to hold confidently as to which set of witnesses has told th e truth, then, both sets of witnesses have to be discarded or, at least, the set of evidence, which goes in favour of the accused shall be adopted by the Court. Reference may be made to Harchand Singh and another -Vs- State of Haryana (AIR 1974 SC 344). Keeping in mind this salutary principle of criminal law in mind, w hen we revert to the case before us, we find that the evidence given by PW-2 not only projects Mangra Mura alone as assailant of the deceased Ashok but it rules out the possibility of the present appellant having shot the deceased with arro w or having helped Mangra in killing the deceased by shooting the latter with ar row. Viewed from this angle too we have no option but to discard the evidence of PW-1, PW-4 and PW-5 as unsafe to place reliance upon . 32. Mr. Das has suggested that the projection of extra-judicial confession b y the prosecution is after thought. His reasoning is this - there is no whisper whatsoever, either in the ejahar or in the deposition of PW 11, in connection wi th recording of G.D. entry about the so called extra-judicial confession made b y the accused. We find that the submission does not have much substance. The acc used was directly implicated in the ejahar. PW. 11 also deposed that he went to the place of occurrence after being informed that the accused appellant had kill ed his wife. In such circumstances, we do not consider it necessary to indicate in detail in the ejahar as to the