/ / 'T1 2-- HIC3H COUKX OS JODICATU&E POR MADHYA SRABESH ffE JABALPUR C&IMIHAL &PPBXL HO. <31^fe /1997 Division Bench (:r!n,), APPBLLAtIT; (IN JAIL) RB3PONDELW R^k®shKuniar alias Naa'ki.^son of Tigre)3hrivas, aged about'33 years, resident of vilJ.uge Akola, Police Station Masturi, I'ahsi-1 ana District Bi^spur (!'I.P«) -; VSRSUS 8- State of lladhya Pradesh. CRIMINAL APPSAL OIIDSR SECTION 374(2) OF THB CODB OF CRIMINAL PROCEDURE. ^a^? /t^.-l^ ^ o » •iCi «» --^^z-— ^ JuA... ^'Pt-'^^. ,/'-r \y HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Criminal Appeat No. 946 OF 1997 Rakesh Kumar Vs. State of M.P. \ JUDGEMENTFORCON1 LAja-B<-MU_ Sd/- Dhirendra Mishra Judge HON'BLE SHRI L.C.BHADOO .J. ^ Sd/- L.C.BHADOO Judge JUDGE /02/2006 PQST£ORJUDGMENTON23 FEBRUAF Sd/- iu 2.s-^0272006 iL.- .; 1"\ i4S of 1997 Vs. •Shri Sanjay K. Agravval, learned counsel for the appellant. Shri U.N.S.Deo, learned Additional Public Prosecutor with Shri Akhil Mishra and Shri M.P.S.Bhatia, learnsd Panel Lawyers for the respondent/State. ^J JUDGMENT (z^.02.2006) The appeilant by the instant appeal under section 374(2) of the Code of Crimina! Procedure has challenged the iegaiity and correctness of the judgment dated 05 March 1997 passed by iearned 6 Additional Sessions Judge, Bilaspur in S.T.No. 186/96 and by which after hoiding the accused/appeliant guilty of causing death of Prahlad has convicted him under section 302 of the Indian Penal Code and sentenced him to undes-go iife imprisonment. 2. The case of the prosecution, in brief, is that deceased Prahlad and accused Rakesh vrfio were cousin and barbers by caste were engaged in the profession of hair cutting and are residents of the same viliage. However, customers were comparatively satisfied with the work of Prahlad, as a resuit ofwhich customers ofthe appetlant started reducing and thus the income of the appeliant was also reducing. Therefore, because of this envy on 18.03.1996 at about 12.00 noon the appellant assauited Prahlad by knifs vrfien he came to his new house where deceased Prahlad was piaying harmonium and caused his death. The appellant went to the police station Masturi on the same day at about 15.00 hours and iodged the First \c\ V:- Information Report of Ex.P/14. initiaily the police before registering the F.I.R., recorded merg intimation of Ex.P/15 at about 14.45 hours on the information ofthe appeiiant that he has caused death of Prahlad by knife and has covered the dead body viflth gunny bags and concealed it under the vwod in his house and has iocked the house from outside. Crime No. 94.'96 under section 302 ofthe !PC was registered against the appei!ant. He has mentioned in the FIR that he took out knife from his pocket and assaulted the deceased when the deceased was playing harmonium and stated that white assauiting the deceased he has aiso sustained injuries over fingers of both his hands. He further stated he had covered the dead body by gunny bags and placed wood over ii in his house and thereafter has locked the house from outside. Memorandum of the appeHant under P-1 was recorded at about 15.30 hours in vAich accused/appellant Rakesh stated that he has murdered his cousin Prahiad after assauiting him by knife and has kept the dead body in the eorner of hls house by covering it vAh the gunny bags and wood and has locked the house. The knife, bunch of keys, bloodstained ful! pant and b!oodstained shirt were seized from the accused Rakesh on 18.12.1996 in the police station at about 15.45 hours vide Ex.P/2. The police proceeded towards the place of incident. Discovery Panchanama of dead body of Ex.P/4 was prepared by A.S.S.B.C. Singh in the presence of the witnesses and the appeiiant on 18.03.1996 itself. Lock ofthe house of the appellant vras seized from the appellant vide Ex.P/3. The inquest of Ex.P/9 over the dead body was performed after due notice to ths witnesses. The dead body was sent for postmortem to Govt. Hospital, Masturi vide Ex.P/18. Dr. M.K. Rai (P.W.11) conducted postmortem overthe dead body and submitted his report Ex.P/24. The doctor performing autopsy found six incised wounds over nose, right temporai region, right lateral of neck between chin and thyroid gland, below left elbow joint, on the base of the right thumb. Apart from the above incised wound, he aiso found stab injury on the anterior of the thyroid gland resulting In cut of the irachea and esophagus, stab injury on the right shoulder region and stab injury on the ieft thigh. He opined that all the injuries were ante mortem in nature and cause of death is asphyxla and excessive hemorrhage due to cutting ofthe trachea ofthyroid on the thyroid region ofthe neck andcutting ofthe large vessels of 9. 0 the neck (carotid and jugular vessels) and the death was opined to be homicidal in nature. The bloodstained gunny bags, six in number, by whtch the dead body was covered, four pieces of wood, a pair of slippers of She deceased vrfere seized from the accused from his house after removing ths same from the dead body vids Ex.P/12. Plain soi! and bloodstaJned soit v./ere taken into possession from the place of occurrence vide Ex.P/13. Sealed packet containing shirt, lungi and underif/ear of the deceased sent by the doctor performing autopsy was seized vide Ex.P/16. The v/eapon of offence knife seized from the accused was sent for examination to the dodor vide Ex.P/19 and the doctor gavs his opinion vide Ex.P/25 after examining the said knife that the injuries present overthe person ofthe deceased could be caused bythe knife. The spot map of Ex.P/20 was prepared by A.S.I. in the presence ofwitness namely Tularam. Seized articles were sent for chemicai examination vide Ex.P/22. Spot map of Ex.P/7 'iwas also prepared by Halka Patwari (P.W.2). After recording the statements of the wtnesses charge sheet v.as filed in the Court of Judicial lUlagistraie First Class, Biiaspur vidio in turn committed the case to the Sessions Judge, Bilaspur and the same vi/as received on transfer by the learned 6 Additional Sessions Judge for triai. Learned trial Court framed charge under section 302 of the !PC. The appeliant abjured his guilt. 3. The prosecution in order to establish its case examined as many as 11 v/itnesses. Statement ofthe accused Viras recorded under section 313 of the Cr.P.C. in which he denied the circumstances appearing against him in the prosscution case. However, in reply to question No. 1 he admitted that he lodgect the report Ex.P/14 in po!ice station Masturi and in replyto question No. 2 he stated that he 'nad come to kill him. In his statement the accused has aiso stated that his statement was recorded foreibly and he had no snmity. 4. After hearing the Additionai Public Prosecutor on behalf of the State and counsel for the accused/appellant, the Court below convicied and sentenced the accused as mentioned above. 2/' 5. Homicidal death of deceased Prahlad is not in disDUte. Even otherwise, from the statement of P.W. 11 Dr. Rai who has found as many as nine incised wounds and stab injuries over the body ofthe deceased and has opined that the death ofthe deceased was caused due to excessive bleeding and cutting ofthe trachea and thyroid on the thyroid region ofthe neck and cutting ofthe large vessels ofthe neck (carotid and jugular vessels) and as such the death was homicidal in nature, therefore, it is established that the death of deceased Prahiad was homicidal in nature. Nowthe second question to be decided is - whether the prosecution has been able to establish the involvement of the accused in causing the death of deceased Prahlad? 7. Admittedly there is no eyewitness to the incident and the whole case rests on circumstantial evidence. The circumstances relied upon by the prosecution to establish the guilt of the accused may be summarized as under; i) That the appellant ^vent to the police station on the date of inddent wsth btoodstained knife and gave information wtiich vras duly recorded as Ex.P/14 and on the basis of which offence was registered against him. ii) That in the document of Ex.P/14, in the merg intimation of Ex.P/15 and in the memorandumof Ex.P/1, the appellant had stated that he has kept the dead body in the comer of his house by covering it with gunny bags and tog of v/ood and'had locked the house from outside. iii) That on the disclosure of the appeliant, the dsad body of Prahiad was recovered from his house vide Panchanama of Ex.P/4 iv) That P.W. 5 Lekhram and P.W. 8 Ramayan on She date of incident at about 1.30 to 2.00 p.m. had seen the appellant running towards village Dodki and at that time he v/as putting on bloodstained pant and shirt. 9. /7 v) That on 18.03.1996 bloodstained knife was seized from the .appellant by P.W. 10 vide Ex.P/2 in the presence of the witnesses and seized articles i.e. knife, ciothing ofthe deceased and other articles were sent for chemical examination to Forensic Science Laboratory and as per the report of F.S.L dated 10.05.96 bloodstains were found over knife, clothing ofthe deceased and that ofthe accused. vi) That during assault appetiant Rakesh also systained one incised injury over small finger of teft hand, abrasion over ring finger, incised wound over upper portion ofthe small finger of the right hand and one abrasion over middie finger ofthe right hand. 8. We have heard learned counsel for the parties, perused the impugned judgment ofthetrial Courtandthe evidence available on record. 9. Defence of the accused/appellant is two fold. Firstly, it is argued on beha.lf of the accused/appellant that the vAole case of the prosecution rests on the circumstantial evidence, however, the circumstances relied upon by the prosecution have not been established by teading cogent evidence. There is no motive for the appellant to kili the deceased and the motiye attributed to the appellant for commission ofthe offence stands belied by the statements of the prosecution witnesses as P.W. 3 Tularam - father of the deceased who in paragraph -8 of his statement has denied the suggestions of animosity. Whereas P.W. 6 Pramod Kumar - brother of the deceased in paragraph -2 ofhis statement has stated that two days beforethe incident his elder brother did the shaving ofthe accused and the accused had done the shaving ofthe deceased and there was no animosity between them. !t is true that from the evidence availabie on record apparent motive for commission of the offence is not established. It is further argued that the case of the prosecution is heavily based on the memorandum of the appellant recorded under Section 27 of the Evidence Act and in pursuance of the said ^> memorandum the dead body of the deceased was found from the locked house ofthe appellant. 10. Learned counsei for the accused/appeiiant reiying upon the judgment ofthe Supreme Court reported in (2004) 10 SCC 657 in the matter ofAnter Singh Vs. State of Raiasthan submits that in the instant case requiremsnt of Section 27 of the Evidence Act has not been fulfilled and therefore, recoveiy ofthe dead body of Prahlad from the house ofthe accused cannot be' taken as a circumstance for establishing the guilt of the accused as the memorandum of the accused (Ex.P/1) was recorded at 15.30 hours on 18.03.1996 and from the documents of Ex.P/15 & P/14 i.e. merg intimation and First Information Report recorded at 14.45 hours and 15.00 hours on 18.03.1996 respectively, it would be evident that the fact disclosed by the appellant in his memorandum statement of Ex.P/1 was already knowi to the police. It is further argued that in order to prove the memorandum of the accused, it is necessary that the discovery is in consequence of the information received from the accused v«hois accused ofany offence and he must be !n the custody ofthe police officers and above all, discovery ofthe fact in consequence of information received from the accused in custody must be deposed to. Hovirever, in the instant case from perusa! of the stafement of P.W. 10 - Investigating Officer who has simply stated in paragraph -4 that on 18.03.1996 after arresting the accused Rakesh Kumar he recorded his memorandum statement of Ex.P/1 and thereafter in the presence of Panchas discovery Panchanama of dead body of Ex.P/4 was prepared, 'rt is evident that this witness has novrfiere stated that the dead body was discovered on the basis of information given by the accused/appeilant. 11. In this regard learned counsel for the accused/appellant places his rsliance on the judgments reported in J.T. 2005 (7) SC oage 1. StaSe (N.C.T. of Delhi) Vs. Naviot Sandhu @. Afsan Gury.^StateIN.C.T. of Delhi) Vs. Sved Abdut Rehman Gilani, Shaukat Hussain Guru Vs. State (N.C.T. of Delhi). iVlohd. Afza! Vs. State (N.C.T. of Dslhi) and the judgment reported 9^ in 1836 Cri. L.J. 317 in the matter ofM. Abbas Dakshina KannadaVs. The State of Karnataka, Dakshina Kannada. 12. !t is further argued that the memorandum itself is not a substantive piece of evidence in the absence of express deposition in the Court by the investigating officer that he recorded a particuiar statement as per memorandum which is exhibited herein. He relies upon the judgment reported in 1996 Cr.L.J. 257 in the matter of N. Raiendra Prasad Bhat. Vs. 13. Learned counsel for the accused/appeliant further argues that the Court below considering the statements of P.W. 5 Lekhram and P.W. Ramayan who have stated that on the date of incident they had seen the accused running tovrards village Dodki and at that time he \vas putting on the bloodstained pant and shirt, has taken the same as an incriminating circumstance against the accused/appellant ignoring the fact that P.W. 5 Lekhram has stated that v»hen he asked the accused as to vAere he 'was going, the accused replied that he had quarreled vi/ith one Chamra and therefore, he was going to lodge the report in the police station. it is submitted that seizure of the bloodstained clothing of the deceased and bloodstained knife seized from the appellant, cannot be considered as incriminating circumstance in the absence of opinion ofthe serologists as to the origin ofthe blood found on the above articles. 14. On -the other hand, learned counsel for the State supporting the impugned judgment of ths trial Court submits that conduct of the accused after commission of the offence is admissibte under Section 8 of the Evidence Act irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the pun/iew of Section 27 of the Evldence Act or not. !t is further argued that the accused in his statement in repty to questions put by the prosecution had admitted that he lodged oral report as per Ex.P/14 and has further stated that in fact Prahiad Kumar had come to kiil him. In support of his contention reliance is placed on thejudgments reported in AIR 1972 SC 975, Himachai 2> Administration Vs. Om Prakash and A!R 1879 SC 400 , Prakash Chand Vs. State (Delhi Admn.). 15. Ex.P/1 is the memorandum ofthe appeliant which was recorded in the presence ofwitnesses Jainarayan (P.W. 1) and Kashiram (P.W.9) byA.S.i. Vindhyachal Singh (P.W.10). Before recording of memorandum statement of Ex.P/1 on the information ofthe accused/appeliant that he has kept the dead body of deceased Prahlad in his house and locked it, merg intimation of Ex.P/15 and F.I.R. of Ex.P/14 were recorded one after the another. The F.1.R. also bears the signatures of witness Jainarayan and Kashiram. Objection of learned counsel for the accused/appellant is that the document of Ex.P/1 has not been proved in aecordance with law and therefore, cannot be led as evidence. it is stressed that the document couid be taken into consideration only on the condition that the police officer who prepared it, shouid have himself reproduced its contents in evidence either oraliy or by reproducing the same by refreshing his memory after reference to Ex.P/1. Forthis, paragraph -16 ofthejudgment delivered In the matlerofAnter.Singh (supra) relied upon is being reproduced as under; 16. Tha various requirements of ths section 27 of the Evsdence Act can be summeef up as follows:- (1) The fact cf whi'ch evklence is sought to be givan must be reSevant lo the issue. !t must be bome in mind that the provision has nothing to do w&h the questton of relevancy. The relavancy of the fact discovered must bs establi'shed according to the prescriptions relating to relevancy of other evidence connecting 9: w the crime in order to make tha fact discovared admissible. (2) The fact must hava been discovered. (3) The discovary must have been in consequence of some information recewed from the accused and not by the accused's own act. s.(- (4) The person giving the information must be accused of any offence. (5) He must be 'm tha wstody of a police officer. (6) Tha discovery of a fact !n consequence of information receivsd from an acwsed in custody mus( be deposed to. (7) Thereupon only that poriion of the information which relates distinctly or strictly to the fact discoverscf can be provad. The rest is madmissible. 16. !n the matter of State (NCT of Delhi) (supra) the Supreme Court has reiterated the conditions pre-requisite for applying Section 27 of the Evidenee Act in support of the prosecution case. in the matter of N.Rajendra Bhatt (supra) in paragraph- 16 also Kernataka High Court has held that the investigating officer recording statement of accused shouid depose in the Court that he recorded a particular statement of the accused as per certain record made by him and then refers to the msmo of Panchanama and memo of Panchanama itself cannot take place of substantive evidence. 17. In the instant case, the investigating officer in paragraph 4 of his evidence has stated that he has recorded the memorandum statement ofthe accused on 18.03.1996 wAiich is Ex.P/1 in which his signature is from 'c' to 'c' and has further stated that on 18.03.1996 in the presence of Panchas after discovery of dead body of Prahlad, discovery memo of Ex.P/4 Vias prepared in which he and the accused have put their signatures from 'd' to 'd' and 'e' to '©'. P.W. 1 Jainarayan is the attesting vAness of memorandum of Ex.P/1 who has stated that accused Rakesh gave information before Kashiram, Station House Officer and himself in the police station Masturi to the effect that he had put the dead body in the corner of his house, covered the same by gunny bags and wood and thereafter he took them along wth poiice personne! to village Akola. The !ock ofthe house was opened and thereafter accused Rakesh took out the gunnybags from the corner and had shovin the dead body in the gunny bag. On the information given by the villagers ha 10 Q^ came to know that the dead body was of Prahlad. He has admitted his signatures over Ex.P/1, Ex.P/2, Ex. P/3 and discovery memo of Ex.P/4. in the cross-examination he has stated that accused Rakesh was carrying knife, however, he does not recollect whether the knife, key and clothing were seized before him or not. In the cross-examination he denied the suggestion on behalf of the accused that when the accused entered his house Prahlad assauited him by knife, however, he saved it with his hand as a resuit of which he sustained injuries over his hand. He has also denied that the accused gave information that there -iwas some scuffle for snatehing as a resuit ofwhich the knife in the hand of Prahlad came in the hand ofaccused and in the self defence he assaulted Prahlad. PW-9 Kashiram has aiso stated that in the police station the accused informed that he had concealed the dead body with the gunny bags and kept wood over it and thereafter he took the police to the spot. PW-1 Jainarayan and AS! accompanied them to the house ofthe accused. The accused opened the lock ofhis room and from there he got discovered the dead body lying under the gunny bags and v/ood in the corner of his house. He has aiso stated that in the police station the accused took out a knife from his pocket and handed over the same to the Police. In the cross examination ofthe above two witnesses the defence has not been able to elicit anything vrfiich makes the statement ofthe above two witnesses unreliable or untrustworthy. 18. Section 27 is based on the doctrine of confirmation by subsequent facts. The doctrine is that where, in consequence of a confession otherAfise inadmissibie, search is made and facts are discovered v>tiich confirm it in material particulars, then such discovery is a guarantee that the confession made was true. But what is important to note is that oniy that portion of the information can be proved which relates distinctiy or strictly to the fact discovered. We have already referred to the statement of investigating officer in which he has not stated in so many words in his Court statement that what was the nature of information given by the accused in his memorandum statement and further that on the basis of the memorandum statement the body ofthe deceased was recovered from his house, though he has stated that he recorded the information given by the accused as per s'b 11 Ex.P/1 and in pursuance ofthe recovery ofthe dead body, discovery memo of Ex.P/1 was prepared. However, we have also referred to the statements of P.W. 1 Jainarayan and P.W. 9 Kashiram the attesting wtnesses of Ex.P/1 who have stated that the accused in their presence revealed in the police station that he has concealed the dead body of Prahlad in the corner of his house by putting gunny bags and log of wood over it. They have also admitted their signatures overthe memo of Ex.P/1. 19. Nowthe only question remains to be decided is - whether receiving of such information bythe accused/appellant has been done in accordance with iaw or not? 20. It is coirect that the statements or reports prepared outside the Court, cannot be by themselves accepted as preliminary or substantive evidence of the facts stated therein and oral evidence must, in aii cases whatever, be direct, that is to say- if it refers to a fact w4iich could be seen, it must be the eridence of a witness who says he saw it; if it refers to a fact vuhich could be heard, it must be the evidence of a witness vrfho says he heard it and so on as per Section 60 of the Evidence Act. Section 1 59 of the Eyidence Act permits a witness to refresh his memory by referring to any writing made by himself at the time of transaction concerning wliich he is questioned and Section 160 ofthe Evidence Act provides for cases vrfiere the vifltness has no independent recoliection say, from lapse of memory, of the transadion to vi^ich he v/ants to testify by looking at the document and states that although he has no such recollection he is sure that the contents of the document were correctly recorded at the time they were recorded and accordingly in our opinion in such circumstances the documents itseif beeomes primary evidence in the case. 21. From the above discussions, ws thinkthatthe correct legai position is somewhat like this that normally the police officers or an attestlng witness should reproduce the contents of the statement made by the accused under Section 27 of the Evidence Act in Court by refreshing his memory under Section 159 of the Evidence Act from the memorandum eariier prepared ^ thereof by him at the time the statement had been made to him or in hjs presence and which was recorded at the same time or soon after the makins of it and that would be perfectly unexceptional way of proving such a statement. We furtherthink from the fact and surrounding circumstances of the case that it cou!d hardly be expected in the natural course of human conduct that he could or would have a precise or dependabie recollection of