Ajay Kanu @ Dara vs State Of U.P.
2017 Latest Caselaw 4232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 5124 of 2003
 
Appellant :- Ajay Kanu @ Dara
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dr. Pradeep Kumar Mishra,Kamal Krishna,Shailendra,Shashi Prakash Mishra [Ac]
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

(DELIVERED BY HON'BLE BHARAT BHUSHAN,J.)

1. This appeal is directed against the judgment and order dated 22.09.2003 passed by Additional Sessions Judge (Fast Track Court No. 2) Azamgarh in Sessions Trial No. 789 of 1992 arising out of Case Crime No. 385 of 1992, Police Station (in short "P.S.") Saraimeer, District Azamgarh whereby appellant Ajay Kanu alias Dara was convicted under sections 302, 307 and 324 of the Indian Penal Code (in short "I.P.C."). The appellant was sentenced to rigorous life imprisonment and a fine of Rs. 10,000/- with default stipulation under section 302 IPC, rigorous imprisonment of ten year's and fine of Rs. 5000/- with default stipulation under section 307 IPC and three year's rigorous imprisonment and fine of Rs. 2000/- with default stipulation under section 324 IPC. All substantive sentences were ordered to run concurrently.

2. Appellant Ajay Kanu alias Dara was son-in-law of deceased Bhagelu Ram Kanu. P.W.-5 Rekha had married appellant Ajay Kanu alias Dara. Rekha was living with her parents at the relevant point of time. Appellant came to take back his wife some 5-6 days prior to the incident. However, deceased Bhagelu Ram Kanu declined to send his daughter for some more days.

3. Appellant Ajay Kanu alias Dara was very unhappy at this decision and went to village Phoolpur to meet his own relations on 21.09.1992. He came back again in the evening at 6.00 P.M. to his in-law's house and insisted on Vidai of his wife. Deceased Bhagelu Ram Kanu informed him that Rekha had gone to village Sanjarpur to visit P.W.- 3 Shree Chandra Gupta, her maternal uncle (Mama). The appellant was incensed but went to sleep on roof after taking his meals in the company of his in-laws. Deceased Bhagelu Ram Kanu, deceased Madhuri Devi, P.W.-2 Rama Devi and P.W.-1 Ram Chet also went to sleep on their designated places.

4. At about 1.00 A.M., in between the night of 21/22.09.1992 appellant Ajay Kanu alias Dara came down from roof and asked to open the door of room (Kothari). As deceased Bhagelu Ram Kanu was opening the shutter, accused Ajay Kanu alias Dara stabbed him with Karauli (sharp edged weapon). He kept attacking Bhagelu Ram Kanu. Other family members went to rescue him but accused attacked Madhuri Devi, the sister of informant as well. Madhuri fell down. Both, Bhagelu Ram Kanu and Madhuri died on the spot on account of injuries sustained in that attack.

5. It is alleged that informant Ram Chet (P.W.-1) and Smt. Rama Devi (mother-in-law) also sustained several injuries in the episode. These injuries were caused by appellant Ajay Kanu alias Dara. Thereafter, appellant Ajay Kanu alias Dara ran away from the spot. Commotion of family of injured attracted the neighbours. They opened the door. Informant went to the Police Station with his mother, injured Smt. Rama Devi and lodged First Information Report (in short "FIR") at 2.00 A.M. in the same night at Police Station Saraimeer, District Azamgarh, which was located almost one kilometer away from the place of occurrence. Thus, the report was lodged within sixty minutes of the incident. FIR (exhibit Ka- 26) and chick report (Exhibit Ka-1) are available on record. Relevant entries were made in the General Diary (in short "G.D."), the extract of which is available on record as Exhibit Ka- 27.

6. Both injured namely Smt. Rama Devi and Ram Chet were sent for medical examination by police after noting their injuries in relevant record of the P.S. P.W. -10 Krishna Prasad Gupta, the then Sub Inspector (in short "S.I."), P.S. Saraimeer and P.W. -11 Ram Tej Verma, Station House Officer (in short "S.H.O."), Sarai Meer went to place of occurrence. P.W. -11 Ram Tej Verma commenced investigation. Inquest proceedings were drawn. These proceedings were initiated at 6.00 A.M., in the morning of 22.09.1992 and completed by 9.00 A.M. The inquest report of deceased Bhagelu Ram Kanu, as Exhibit Ka -2 and deceased Madhuri Devi as Exhibit Ka- 11, are available on record. The cadavers were sent for post-mortem through Constable Akhilesh Pandey and Nebu Lal.

7. Blood stained and simple scrappings of place of occurrence were taken (Fard Exhibit Ka- 7). The blood stained clothes (Fard Exhibit Ka- 8) were also taken into possession. Accused was arrested on the same day at about 1.30 P.M., on 22.09.1992 on Kharekha corner (eksM+) on the information furnished by one informant and a Karauli was also recovered at the instance of the appellant.

8. Meanwhile injured Smt. Rama Devi and injured Ram Chet were medically examined by P.W. -7 Dr. VP Pandey in between the night of 21/22.09.1992 at about 3.00 A.M. It is pertinent to point out that both these injured were taken for medical examination by Constable Arjun Singh of P.S. Saraimeer. Dr. VP Pandey found following injuries on the person of injured Smt. Rama Devi (P.W.- 2):

1. One cm incised wound, 06 cm x 1½ x ½ cm fresh bleeding present in the mid of left cubital fossa of left Extremisties. Longitudinally under observation. Advised X-ray. Margin clean cut well defined evarted.

2. One lacerated wound ½ cm x ½ cm x ½ cm fresh bleeding present on the outer area of left ear.

3. One contusion 3 cm x 3 cm area on the hypogastrium area of abdomen Lt side. Red in colour.

9. Same doctor found following injuries on the person of informant Ram Chet :

1. One Incised wound 12 cm x 3 cm x ½ cm. Fresh bleeding present on the left side of back badr side from upper part of posterior arm pit to inferior angle of left scapular bone. Margin clean in cut well defined evarted.

2. One punctured wound ½ x ½ cm x 2½ cm. Fresh bleeding More probing is not possible due to profused bleeding. Swelling around the wound sustained on the Mid of Left side of Back 2 cm lateral from mid line. Margin clean cut inverted. Under observation. Advised X-ray.

3. One Incised wound 3 cm x ½ cm x ½ cm obliquely on Lower part of Left side of Back just 3 cm below of left renal angle area. Margins clear cut well defined evarted. Fresh blood present.

4. One incised wound 3 cm x ½ cm x ½ cm on the back of left elbow joint just. Margin clear cut well defined evarted. Blood present.

10. Appellant Ajay Kanu alias Dara were also medically examined by Dr. VP Pandey in the wake of his arrest and found following injuries on his person:

1. One incised wound on the root of left index finger on palm side. Margins clear cut well defined evarted and swelling and inflammed measuring the wound 2 cm x ½ cm x ½ cm. Blood clot present in the wound. Stitched longitudinally wound clear and stitched Discovered with anti septification.

11. Medical report of Smt. Rama Devi and Ram Chet are available on record at Exhibit Ka- 5 and Exhibit Ka- 6 respectively.

12. Cadavers of deceased Bhagelu Ram Kanu and Km. MadhuriDevi were subjected to post-mortem by Dr. J.S. Gogiya (P.W.- 6). The doctor found following ante mortem injuries on the person of Bhagelu Ram Kanu:

1. Incised wound (punctured) 4 cm x 2 cm cavity deep in right side abdomen 3 cm below right Umbilicus.

2. Incised wound 3 cm x 1 cm x cavity deep in the middle of abdomen 10 cm above the Umbilicus.

3. Incised wound (punctured) 3 cm x 1 cm cavity deep left side of abdomen. 6 cm above left side of umbilicus.

4. Incised wound 2 cm x ½ cm x muscle deep of abdomen 2 cm from umbilicus left side.

5. Incised wound 2 cm x ½ cm muscle deep on right hand thumb and index finger.

6. Incised wound 3 cm x 1 cm x muscle deep on right thigh 27 cm above right knee.

7. Incised wound 3 cm x 1 cm right hand dorsel on the back of right hand.

8. Incised wound 3½ cm x 1 cm x muscle deep of right thigh 19 cm of right knee.

13. This doctor also found following injuries on the person of deceased Km. Madhuri Devi :

1. Incised wound 4 cm x 1 cm x cavity deep on the front of chest left side 10 cm below left clavicle 2 cm from mid line.

2. Incised wound 3 cm x 1 cm x 1 cm on front of chest right side 12 cm below right clavicle.

3. Incised wound 6 cm x 2 cm x 2 cm on left upper arm 10 cm from left shoulder.

4. Incised wound 4 cm x 2 cm x 1 cm left upper arm 10 cm from left elbow.

5. Incised wound 3 cm x 1 cm x 1 cm on left upper arm 8 cm from left elbow.

6. Incised wound 2 cm x 1 cm on right side chest Lateral region 13 cm from right clavicle.

7. Incised wound 4 cm x 2 cm x cavity deep in right side clavicle 1 cm from Axilla.

8. Incised wound 4 cm x 1 cm x 1 cm on right upper arm 4 cm from right Axilla.

9. Incised wound 6 cm x 2 cm x 1½ cm on right upper arm 15 cm from right shoulder.

10. Incised wound 5 cm x 2 cm right upper arm 1 cm from right elbow.

11. Incised wound 3 cm x 1 cm x 1 cm on right fore-arm 8 cm from right elbow.

12. Incised wound 5 cm x 3 cm x ¾ cm on right forearm 10 cm from right elbow.

13. Incised wound 3 cm x 1 cm x ½ cm on right forearm 4 cm from right wrist.

14. Incised wound 4 cm x 2 cm x ½ cm on right forearm 3 cm from right wrist.

15. Incised wound 4 cm x 2 cm x ½ cm on left side chest back 3 cm from left scapula.

16. Incised wound 3½ cm x 1½ cm x 1 cm on right side chest back below lower angle of the right scapula

17. Incised wound 1 cm x 1 cm x ½ cm on the back of chest 14 cm below right ...right side.

18. Incised wound 2 cm x 1 cm x 1 cm on right thigh 14 cm knee.

19. Incised wound 2½ cm x ½ cm x ½ cm right leg 18 cm from right knee.

20. Incised wound 1½ cm x ½ cm x ½ cm on right foot laterally.

14. Post-mortem reports of deceased Bhagelu Ram Kanu and Km. Madhuri Devi are available on Exhibit Ka- 2 and Ka- 3 respectively. On completion of investigation, charge-sheet (Exhibit Ka- 25) was submitted against appellant Ajay Kanu alias Dara.

15. The trial judge framed charges against appellant Ajay Kanu alias Dara under sections 302, 307 and 324 IPC on 15.01.1993. Accused denied charges and claimed to be tried.

16. Prosecution produced as many as eleven witnesses in support of its allegation namely P.W. -1 injured Ram Chet (jnformant/ eye witness, son of deceased Bhagelu Ram Kanu and brother of deceased Smt. Madhuri), P.W. -2 injured Smt. Rama Devi (injured eye witness/ wife of deceased Bhagelu Ram Kanu and mother of deceased Madhuri, P.W.- 3 Shree Chandra Gupta, scribe; P.W. 4 Dr. Ram Nath (neighbour of deceased persons)/witness of inquest; P.W. - 5 Rekha, w/o appellant Ajay Kanu alias Dara, P.W.- 6 Dr. JS Gogiya (conducted both post-mortems), P.W. -7 Dr. VP Pandey (conducted medical examination of the injured as well as appellant Ajay Kanu alias Dara), P.W. -8 Shamsher Alam (witness of documentation and recovery of weapon), P.W.-9 Kailash Pal Singh (witness of documentation as well as recovery of Karauli; sharp edged weapon), P.W. -10 KP Singh (prepared inquest report) and P.W.- 11 Ram Tej Verma, Investigating Officer (in short "I.O.").

17. Statement of appellant was recorded under section 313 of the Code of Criminal Procedure (in short "Cr.P.C.") wherein he denied all allegations and claimed false implication on account of previous enmity.

18. The learned Additional Sessions Judge was convinced of prosecution evidence, therefore, held appellant Ajay Kanu alias Dara guilty for the offence under sections 302, 307 and 324 IPC and sentenced him aforesaid by impugned judgment dated 22.09.2003. This judgment is under challenge before this Court.

19. We have heard Sri Shashi Prakash Mishra, learned Amicus Curie for appellant and Sri Rajeev Sharma, learned AGA for State.

20. Learned Amicus Curie has argued that FIR was ante-timed. He has argued that evidence is full of contradictions creating doubt about the presence of the witnesses on the spot. Time of arrival of police at the place of occurrence is uncertain. Manner of the incident is not certain. No independent witness of vicinity was produced.

21. On the contrary, learned AGA has disputed the arguments of learned Amicus Curie claiming that as many as two injured witnesses of same family have supported allegations against their own son-in-law. He has submitted that minor discrepancies should not be taken into consideration. They merely indicate that witnesses were not tutored. He also claimed that there was no reason for family of deceased to implicate their own son-in-law in a false case and spare the real culprit.

22. The record reveals that in this gruesome incident as many as two persons died and two persons were seriously injured. The prosecution case primarily depends upon the testimony of two injured witnesses. The injuries sustained by P.W.- 1 Ram Chet and P.W.- 2 Smt. Rama Devi are significant and were found fresh at the time of medical examination. Their injuries do indicate and establish their presence on the spot. Appellant Ajay Kanu alias Dara is son-in-law of P.W.- 2 Smt. Rama Devi and brother-in-law of P.W.- 1 Ram Chet. Ordinarily, it is difficult to believe that they would implicate such a close relative for no reason. The claim that appellant had previous enmity with them, has not been established. A bland assertion in this regard alone is not acceptable.

23. Prosecution evidence reveals that the appellant was living with family of deceased for last 5-6 days prior to the incident. This fact has been admitted by appellant himself in his statement recorded under section 313 Cr.P.C. It is unbelievable that that a relative with antagonistic relationship would continue to live with rival family for 5-6 days. It is pertinent to point out that injuries sustained by deceased Bhagelu Ram Kanu and Km. Madhuri were grievous, which resulted in their instantaneous deaths. P.W.- 6 Dr. JS Gogiya found eight ante-mortem injuries on the person of Bhagelu Ram Kanu. The post-mortem was conducted on deceased Bhagelu Ram Kanu at 3.00 P.M. on 22.09.1992. There was no delay as far as post-mortem is concerned. Several incised wounds were found on his stomach. They disclose that the assailant indeed had intention to commit murder.

24. Similarly, deceased Madhuri Devi sustained as many as twenty incised wounds on various parts of her body. The evidence of P.W. 6 Dr. JS Gogiya and the contents of post-mortem examination reports leave no manner of doubt that both deceased died on account of homicide.

25. P.W.- 1 Ram Chet and P.W.- 2 Smt. Rama Devi have clearly delineated the genesis and manner of attacks on the deceased. It is alleged that appellant Ajay Kanu alias Dara was unhappy on account of refusal of family to send his wife back to matrimonial home. It appears that his wife Rekha was perhaps not interested in accompanying him to the matrimonial home. She has testified as P.W.- 5 which indicates that she was barely 20 years old in 1995. Meaning thereby, she was aged around 16-17 at the time of the incident. She has claimed that appellant Ajay Kanu alias Dara was drunkard and used to beat her, therefore she asked her father not to send to her matrimonial home immediately. Deceased Bhagelu Ram Kanu therefore was reluctant to send his daughter back to her matrimonial home immediately.

26. The evidence, further, reveals that this infuriated appellant Ajay Kanu alias Dara. He kept waiting for 5-6 days. One day he went to village Phoolpur to meet his relative but again came back and insisted on the Vidai of Rekha. However, her parents were not willing, therefore, they sent their daughter Rekha to Sanjarpur, the village of maternal uncle P.W. -3 Shree Chandra Gupta perhaps to avoid any unpleasantness. When Ajay Kanu came back to his in-law's place from village Phoolpur, the departure of Rekha to his maternal uncle's place inflamed him. This is not merely a presumption. This fact has been reinforced by trustworthy testimony of P.W.- 1 Ram Chet and P.W.- 2 Smt. Rama Devi.

27. A detailed and searching cross-examination has been conducted with both P.W.- 1 Ram Chet and P.W.- 2 Smt. Rama Devi yet nothing could be extracted from them. We believe that testimony of both these witnesses is natural, consistent with normal human conduct and trustworthy.

28. Learned Amicus Curie has argued that FIR was ante-timed. He has submitted that prosecution says that FIR was lodged after arrival of P.W.- 3 Shree Chandra Gupta, brother of injured Smt. Rama Devi. He has also drawn attention of the Court towards the statement of Smt. Rama Devi wherein she has stated that his brother Shree Chandra Gupta came at the dawn of 22.09.1992. The Amicus Curie submitted that if Shree Chandra Gupta came in the morning then it was not possible to lodge FIR at 2.00 A.M. in the intervening night of 21/22.09.1992.

29. We are not convinced of this argument at all. P.W.- 1 Ram Chet has specifically stated that after committing gruesome double murders, appellant Ajay Kanu ran away from the spot. Meanwhile, somebody informed his maternal uncle, P.W.- 3 Shree Chandra Gupta at village Sanjarpur. The identity of this person has not been disclosed but considering gruesome nature of the incident, it is apparent that situation at the spot must have been frightening. Two persons had died; two other persons of same family were seriously wounded. This crime was perpetrated by a member of the family. All these things must have created feeling of dread and panic. In such a scenario, minor discrepancies in description of events is inevitable. It is pertinent to point out that even trial judge has observed condition of P.W.- 2 Rama Devi even during recording of her testimony. His observations are available on paper book of this file. It would be pertinent to reproduce those observations as under:

"At this stage witness seems to be disturbed and (sic) she is uttering something relating to her deceased husband and daughter and I feel that is not having normal mental stage to answer the questions put to her by defence correctly as such now where it is 3.50 P.M. Hearing is adjourned and further cross examination is deferred for 20.1.1994"

30. The evidence of P.W.- 2 Smt. Rama Devi was recorded in January 1994 almost after two years of the incident and yet she had not regained her mental balance. It is not very difficult to imagine her mental condition in the immediate aftermath of the incident.

31. P.W.- 1 Ram Chet has specifically stated that his maternal uncle rushed immediately and the report was lodged at 2.00 A.M. in between the night of 21/22.09.1992 at the P.S. Saraimeer, which was merely one kilometer away from the place of occurrence. P.W.- 3 Shree Chandra Gupta has also supported this claim. He has testified that he rushed immediately to the residence of deceased Bhagelu Ram Kanu and got the report lodged at P.S. Sarai Meer. Extract of G.D., Exhibit Ka-27 also establish the time of lodging of the FIR.

32. In addition to that, the testimony of P.W.- 7 Dr. VP Pandey obviates any possibility of ante-timing of the FIR. He has testified that he examined P.W.- 2 Smt. Rama Devi at 3.00 A.M. between the night of 21/22.09.1992 along with P.W. -1 Ram Chet. This doctor has also testified that both the injured were brought by Constable Arjun Singh of P.S. Saraimeer. If FIR had not been lodged before 3.00 A.M., in the intervening night of 21/22.09.1992 then there was no occasion for Constable Arjun Singh to take the injured to the hospital for medical examination. Even the cadavers of both the deceased had already been sent for post-mortem. In fact, inquest proceedings were conducted from 6.00 A.M. to 9.00 A.M. Both the inquest reports contain Crime No. 385 of 1992 on it. Crime Number is also enshrined between the contents of these inquest reports whereby obviating any possibility of incorporating it subsequently.

33. P.W.- 4 Dr. Ram Nath, a neighbour of the deceased has also confirmed the preparation of inquest reports in the morning. He had, in fact, signed these inquest reports. If the FIR had not been lodged by 6.00 A.M., the disclosure of crime number within the contents of inquest reports would not have been possible. Testimony of P.W. 10 S.I. Krishna Pal Singh and P.W.- 11 I.O. Ram Tej Verma also reinforce this conclusion. It is pertinent to point out that even P.W.- 2 Smt. Rama Devi has claimed that she had reached the P.S. at 2.00 A.M. in the night. Her evidence in this regard is reproduced as below:

** dry ds ,d ?kaVs ds ckn Fkkuk igap xbZ FkhA eS ugh crk ldrh fd dry ds fdruh nsj ckn eSa Fkkuk dks [kcj nh Fkh tcfd eSa ;g crk ldrh gWw fd Fkkuk ij nks cts jkr dks igaqp xbZ FkhA **

34. It is apparent that even the testimony of P.W.- 2 Rama Devi does not support the claim of ante-timing of FIR. It is true that at one place she has stated that her brother came at the dawn but that is neither here nor there. To some people dawn means start of a day and some people consider it prior to the day break. We believe that this illiterate woman, who had put thumb impression on her testimony, was in a difficult mental condition, as observed by the trial judge himself. She was facing searching cross-examination by a very competent lawyer, therefore, to consider her an unreliable witness on one minor discrepancy would not be justified. We believe that minor discrepancies would not affect the prosecution case adversely.

35. While appreciating the evidence of P.Ws. -1 and 2, we must be conscious of length of the time consumed in recording the evidence of injured witnesses. In our considered opinion, the evidence of P.Ws. 1 and 2, who lost two members of their family in the fateful incident at the hands of close relative, is credible and there is no major deviation or discrepancy. The fact that P.W. -2 was perturbed even at the time of recording of her evidence, as observed by the trial judge, is revealing and this observation cannot be ignored. We have to appraise the testimony of these injured witnesses in the backdrop of their social and educational background.

36. Learned Amicus Curie has also claimed that no independent witness has been produced to establish the incident. We are not convinced of this argument as well. The incident occurred within the four walls of a house. Obviously only inmates of the house would have seen the incident. The presence of injured witnesses inside the house was very natural and the injuries sustained by them are consistent with the prosecution story.

37. Learned Amicus Curie has also argued that appellant had no motive to commit the crime. The question of motive is one of the perceptions. It is not always possible to perceive the motive which ordinarily lies in the heart of perpetrator of the crime. The witnesses believe that refusal of deceased Bhagelu Ram Kanu to send his daughter with appellant infuriated him. The contours of story and evidence, do indicate that their conclusion is not way off the mark.

38. Motive for doing a criminal act is ordinarily a difficult area for the prosecution. One cannot normally see into the minds of another. Motive is emotion which impels a person to do a particular act. The act need not be necessarily proportional to such impulses. We believe it is illogical to suggest that no criminal act can be presumed unless motive is proved. In the present case, the prosecution has put forward a definite motive, which has been reiterated not only by P.Ws. 1 and 2 but also by P.W. -5 Rekha, wife of the appellant. Therefore, we are convinced that argument of lack of motive is not sustainable. In any case, direct trustworthy evidence of commission of crime is available, therefore, we cannot acquit the accused on perceived lack of motive.

39. It is pertinent to point out that P.W.- 11 I.O., Ram Tej Verma has also proved the recovery of Karauli at the instance of the accused on the very next day of the incident. It is true that P.W.- 9 S.I., Kailash Prasad Gupta has failed to support the recovery of Karauli but careful perusal of his testimony merely reveals that it was not recovered in his presence. On the other hand, specific evidence has been given by P.W. -11 I.O., Ram Tej Verma that Karauli (sharp edged weapon, used in the commission of crime) was indeed recovered from the accused. Two witnesses, P.W.- 8 Shamsher Alam and P.W.- 9 Kailash Prasad Gupta have been produced by the prosecution in support of this recovery. Initially P.W. -8 Shamsher Alam partially admitted his presence, however, he did not support the claim of recovery. His turnaround during cross-examination, indicates that he was perhaps not interested in deposing against the appellant. Similarly, P.W. -9 Kailash Prasad Gupta initially supported the claim of this recovery on 22.09.1992 however, during cross-examination he too resiled from his earlier statement. But we believe that his earlier statement in this regard can be accepted. Merely because he later on resiled from his earlier statement, is no ground to reject his complete testimony. There is no logical reason to discard the evidence of P.W.- 11 I.O., Ram Tej Verma in this regard.

40. The evidence of PW- 8 Shamsher Alam and PW- 9 Kailash Pal Singh as well as that of Investigating Officer P.W.- 11 Ram Tej Verma unequivocally prove the presence of the accused on the date, place and time of offence. From the oral evidence of the witnesses, the presence is established. The weapon of the assault also recovered at the instance of the appellant. Recently, our view is fortified by the decision of the Hon'ble Apex Court in the case of Rajendrasingh vs. State of Uttaranchal, reported in (2013)4 SCC 713. The discovery panchnama was drawn as per the provisions of sec. 27 of the Evidence Act. In this case, it would be necessary for us to rely on the decision of the Privy Council in the case of Pulukuru Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 Privy Council 67, as far as section 27 of the Evidence Act is concerned. In this case, the appellant has committed the offence to do away with the deceased persons and therefore, having delved into each and every aspect, we do not think appropriate to take a different view than that taken by the learned trial Judge. The series of decisions namely Pulukuru Kottaya & Ors. (Supra), 2002 SC (Crl.) 217 State Of Maharashtra vs Bharat Fakira Dhiwar, (2002) 1 SCC 622 and the Subsequent decisions of the apex court in R. Shaji v. State of Kerala, AIR 2013 SC 651 and in Raja alias Rajinder Vs. State of Haryana JT 2015 (4) SC 57 and the latest decision in Soyebbhai Yusufbhai Bharania Vs. State of Gujarat, reported in 2017 (6) JT 381 and the landmark decision in Mukesh and Anr. Vs. State for NCT of Delhi and Others, AIR 2017 SC 2161, and therefore, the recovery cannot said to be bad and the trial court has not committed any mistake in considering this as a material piece of evidence pointing towards the guilt of the accused as it is discovery of a fact in consequence of information received from the accused. The recovery was made separately at the instance of the accused.

41. We have carefully perused all the evidence on record. We are convinced that prosecution evidence is trustworthy and prosecution has brought home the guilt of appellant by cogent, credible and trustworthy evidence.

42. We do not feel that any interference is warranted. Impugned judgment and order dated 22.09.2003 passed by Additional Sessions Judge (Fast Track Court No. 2) Azamgarh in Sessions Trial No. 789 of 1992 arising out of Case Crime No. 385 of 1992, P.S Saraimeer, District Azamgarh, is hereby affirmed. Accordingly, the instant criminal appeal is dismissed.

43. Let a copy of the judgment be sent to the court concerned through Sessions Judge, Azamgarh within fifteen days. The trial court shall thereafter report compliance within one month.

Order Date :-12.09.2017

shailesh