Case: Bodh Raj @ Bodha &amp; Others Vs. State of Jammu &amp; Kashmir

and Ashok Kumar are devoid of merit and deserve dismissal, which we direct.(29) Coming to the appeals filed by four appellants who were acquitted by the trial Court but convicted by the High Court, it has been argued with emphasis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittals should not have been rightly interfered with. It is to be noticed that the trial Court placed reliance on the evidence of Hari Kumar (PW-18) for the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subash Kumar which had holes indicating passage of bullet. However, a chemist (PW-22) was examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singh (PW-7) is concerned, his evidence was held to be not reliable. Therefore, the identification of accused No. 5, Subash Kumar by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to recovery established by the evidence of PW-18 cannot be lost sight of.(30) The evidence of Nainu (PW-9) was also described to be unreliable and it was said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit Singh. Their evidence has been analysed in great detail by the High Court and has been held to be reliable. It is of significance that practically there was no cross-examination on the recovery aspect. We do not find any reason to differ with the High Court in that regard. There can be no dispute with the proposition as urged by learned counsel for the appellants that two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court. In the case at hand, the course adopted by the High Court is proper.(31) Judged in the aforesaid background, conviction by the High Court of those four who were acquitted by the High Court does not warrant any interference.(32) The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased, A-1 and A-2 were seen together by witnesses, i.e. PWs-14, 15 and 18, in addition to the evidence of PWs-1 and 2.(33) It was submitted that there was unexplained delay in sending the FIR. This point was urged before the trial Court and also the High Court. It was noticed by the High Court that Showkat Khan (PW-38) was an investigating officer on 3/08/1994 for a day only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharma (PW-42) was asked to investigate into the matter. It was also noticed that the road between Bari Brahmana and Samba where the Court was located was closed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahmana but it was closed from Bari Brahmana to Samba. The days delay for the aforesaid purpose (the FIR has reached the Magistrate on 5-8-1994) cannot be said to be unusual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance.(34) Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.(35) As was observed by this Court in Ranbir and others v. State of Punjab, AIR 1973 SC 1409 the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. In the instant case however the situation does not arise.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Since their presence is doubtful, identification, if any, done by them becomes ipso facto doubtful. The recoveries purported to have done pursuant to the disclosure made by the accused persons is highly improbable and requisite safeguards have not been adopted while making alleged recoveries. The case against four of the accused persons who were acquitted by the trial Court rests on circumstantial evidence. The approach to be adopted by the Court while dealing with circumstantial evidence was kept in view by the trial Court. Unfortunately, the High Court did not do so. It was further submitted that there was no complete chain of circumstances established which ruled out even any remote possibility of anybody else than the accused persons being the authors of the crime. The examination ofs P.Ws. 1 and 2 was belated and, therefore, should not have been accepted. The evidence of P.Ws.accused persons is so improbable that no credence should be put on it. The High Court should not have disturbed the findings of innocence of four accused persons without any plausibleprincipal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts.To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred orstatement which is admissible under S. 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in S. 27 of the Evidence Act is the Doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional orin nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor, is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.(19) Coming to evidence brought on record to substantiate the accusations, it is at least clear that accused Nos. 1 and 2 left in the company of the deceased. Some evidence has also been brought to establish the motive i.e. the indebtedness of the accused to the deceased. In addition to this is the evidence ofand 2. So far as accused No. 2 is concerned, he almost stands on the same footing as accused No. 1. Additionally, Hari Kumarhas stated that accused No. 2 came to his shop and took sweets and left in car No. 566 JK02B belonging to accused No. 1. He has also stated about the return of accused No. 2 to the shop and a demand for aIn view of the circumstances noticed and highlighted by the trial Court and the High Court and in our considered opinion rightly the appeals filed by accused Ravinder Kumar and Ashok Kumar are devoid of merit and deserve dismissal, which we direct.(29) Coming to the appeals filed by four appellants who were acquitted by the trial Court but convicted by the High Court, it has been argued with emphasis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittals should not have been rightly interfered with. It is to be noticed that the trial Court placed reliance on the evidence of Hari Kumarfor the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subash Kumar which had holes indicating passage of bullet. However, a chemistwas examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singhis concerned, his evidence was held to be not reliable. Therefore, the identification of accused No. 5, Subash Kumar by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to recovery established by the evidence ofcannot be lost sight of.(30) The evidence of Nainuwas also described to be unreliable and it was said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit Singh. Their evidence has been analysed in great detail by the High Court and has been held to be reliable. It is of significance that practically there was noon the recovery aspect. We do not find any reason to differ with the High Court in that regard. There can be no dispute with the proposition as urged by learned counsel for the appellants that two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court. In the case at hand, the course adopted by the High Court is proper.(31) Judged in the aforesaid background, conviction by the High Court of those four who were acquitted by the High Court does not warrant any interference.(32) The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased,were seen together by witnesses, i.e.15 and 18, in addition to the evidence ofand 2.(33) It was submitted that there was unexplained delay in sending the FIR. This point was urged before the trial Court and also the High Court. It was noticed by the High Court that Showkat Khanwas an investigating officer on 3/08/1994 for a day only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharmawas asked to investigate into the matter. It was also noticed that the road between Bari Brahmana and Samba where the Court was located was closed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahmana but it was closed from Bari Brahmana to Samba. The days delay for the aforesaid purpose (the FIR has reached the Magistrate oncannot be said to be unusual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance.(34) Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.(35) As was observed by this Court in Ranbir and others v. State of Punjab, AIR 1973 SC 1409 the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. In the instant case however the situation does not arise.