(2) The facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
(3) The circumstances should be of a
conclusive nature and tendency,
(4) They should exclude every possible
hypothesis except the one to be proved, and
(5) There must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused."
11. In the case in hand, following circumstances are
12. The FIR (Exh.55) was lodged by PW 1 - Arun against an
unknown person on 21.12.2015 by 01.00 p.m. He testified that the
land gut no.108, situated at village Wagholi, Tq. and Dist.
Osmanabad, belonged to him. By 07.00 in the morning of
21.12.2015, he went to his field. He then visited the public well to
see the water level. Surprisingly, he noticed one gunny bag in the
well. He suspected something amiss. He, therefore, shared the said
fact with the villagers. Two-three persons from them removed the
gunny bag from the well. The bag contained the dead body of a lady
in the age group of 20-22 years. He, therefore, lodged the FIR with
13. PW 2 - Kakasaheb is a witness to the spot panchnama
(Exh.62). His evidence indicates that it was a public well at village
Wagholi. The dead body of a girl put in the gunny bag was thrown in
the well. The panchnama indicates marks of tyres of a four-wheeler
at the crime-scene. The articles like, nylon rope, stones, Odhani
(Dupatta) were seized under the panchnama (Exh.131).
14. Exh.73 is the post mortem report. PW 22 - Dr. Ashwini
had conduced autopsy on the mortal remains of the girl. She
years. According to PW 22 - Dr. Ashwini, the girl died of
"hemorrhagic shock due to cut throat injury". Following injuries
a) Incised wound just below chin over neck of size 7 x
2 x 9 cm. encircling V shaped all the great vessels of
both sides are completely cut through, with
completely transaction of trachea with intact
esophagus at thyroid level.
b) Stab wound over left hypochondrium region on
lateral side of size 5 x 3 x 8 cm., oval shaped.
c) Stab wound over upper left sided back, 3 x 2 x 6.5
cm.
d) Multiple linear abrasions over left wrist.
e) Subcutaneous hemorrhage of size 7 x 5 x 0.5 cm. Over
gastric region.
f) Bite mark of aquatics over left eyebrow, post
mortem in nature, margins irregular of size 2 x 1 x
0.2 cm.
15. The aforesaid facts go a long way to prove that the girl,
whose dead body was found in the well, was done to death. The
question is, whether the appellants are the authors of her murder.
16. PW 18 - Popatlal is the father of the deceased Kanchan.
The deceased girl was his daughter, has been proved by the DNA
report (Exh.97) (not challenged before us). He testified that his
daughter - Kanchan did M.B.A., Law (First year), in the year 2010-
2011. She was serving with Blue Dart Company, Yerwada, Pune. For
the purpose of verification, the appellant Prakash had paid visit to his
residence and shop as well. Appellant Prakash was her boss. The
nature of their job was such that both were required to travel
together to various places. Their relationship grew into emotional
one. He convinced his daughter to disassociate from appellant
Prakash. She did not listen. He further testified that she was under
influence of Prakash. PW 18 - Popatlal went on to state that in the
Marathi month - Margashirsh in the year 2014, Kanchan was
admitted to Surya Hospital, as she had consumed poison. Said fact
was informed to him by appellant - Prakash. He, therefore, visited
Surya Hospital to find Prakash at her bedside. He further went on to
state that as an effort to break their relationship, he had fixed
Kanchan's marriage with one fellow of their community. Appellant
Prakash, however, played a spoilsport. Kanchan too refused to marry
anyone else.
17. The evidence of PW 18 - Popatlal further disclosed that in
July, 2015, Kanchan told that she was searching another job. She,
therefore, left in search therefor. She did not return. He, therefore,
lodged a missing person's report at Ganesh Peth Police Chowki. The
report finds place at Exh.278. He further went on to state that on
10.12.2015, he received a phone call of appellant - Prakash. He
informed that Kanchan was crying and he (Popatlal) should meet her.
He, therefore, along with his brother Sohanlal (PW 19), went to room
no.108, Aradhana Hotel, Alandi. Kanchan was crying. He made a
phone call to his wife to establish telephonic conversation between
Kanchan and her mother. Kanchan told that she would meet her
after three months. Since Popatlal's brother - Sohanlal was with him,
he went down to see him off. When he returned back to the hotel,
Kanchan was not there. He, therefore, immediately called the police.
His evidence further discloses that on 12.12.2015, he received
Kanchan's phone call, expressing desire to talk to her mother. She,
accordingly, spoke with her mother on the following day. They
thought Kanchan might be with appellant Prakash and was under
pressure. His evidence further disclosed that on 14.06.2016, police
official of Osmanabad Police Station came to him with the
photographs of Kanchan and informed about her murder. He
identified Kanchan from the photographs.
18. PW 18 - Popatlal was subjected to searching cross-
examination. He admitted that Kanchan did not make any allegation
against appellant Prakash. He was confronted with his police
statement, which is silent to state therein that appellant Prakash was
her boss. In our view, this is not a material omission. According to
him, Kanchan resided separately for six months in a flat at Dhanori
and Sathe Vasti. He did not lodge any report against appellant
Prakash in relation to his relationship with his daughter. He gave
name of one Sandip Kaushal with whom he had proposed Kanchan's
marriage.
19. The evidence of PW 19 - Sohanlal, brother of PW 18 -
Popatlal, is very much consistent with the evidence Popatlal (PW 18).
He testified to have had accompanied his brother Popatlal to Surya
Hospital, Pune, to meet Kanchan there. Appellant - Prakash was
present in the hospital. He advised Kanchan to disassociate herself
from appellant Prakash. He further testified to have accompanied
his brother Popatlal to Room No.108 of Aradhana Hotel, Alandi, to
meet Kanchan. He found that she was frightened. Then, evidence of
PW 21 - Sushila, mother of Kanchan, is also on the lines of the
evidence of her husband (Popatlal) and brother-in-law (Sohanlal).
The evidence of these three witnesses go a long
way to indicate that both appellant Prakash and Kanchan
were serving with Blue Dart company, at Pune. Both of them
were emotionally involved. Kanchan was reluctant to marry
someone else. She was even reluctant to disassociate herself
from appellant Prakash.
20. There is ample and voluminous evidence on record
indicating appellant Prakash had left the job with Blue Dart company.
He, then, secured a job with Great Wall Corporate Services, Nagpur.
PW 9 - Bramhdev, testified that he was serving as Site Supervisor
with HBK Infrastructure, Nagpur. He was Caretaker of `Herbal
Creation' building. Appellant Prakash was residing in flat No.403
along with one lady in that building. The flat was owned by Seema
Sahastrabuddhe (PW 12). Both of them were residing therein for 6-7
months. Appellant Prakash left the flat in 2016. During cross-
examination, it has been brought on record that appellant Prakash
told him (PW 9) that "madam was not keeping well" and therefore,
she was not with him.
21. PW 10 - Harshita testified that she was H.R. Executive in
Great Wall Corporate Services Pvt. Ltd. in 2016. It was the appellant
Prakash, who had interviewed her for the job. Appellant Prakash
was residing in the guest house of the company.
22. The material witness is PW 11 - Ninad. He testified that
he was Executive Officer with Great Wall Corporate Services.
Appellant Prakash was Branch Manager. The company had given
mobile phones to all the employees. For residence, company had
assigned flat (guest house). One mobile phone was given to
appellant Prakash. The flat given to Prakash was situated in Siddhi
Apartment, Lok Seva Nagar, Nagpur. He (PW 11) and Prakash were
residing in the said guest house (flat). PW 11 - Ninad went on to
testify that in August, 2015, Prakash took one flat on rent in Issasani
area. Prakash told him that his wife was coming to reside with him.
When he visited the flat of Prakash, he introduced his wife by name,
Kanchan. The evidence of this witness further disclosed that in the
meantime, one lady along with children came to the guest house.
From them, he learnt that Kanchan was not Prakash's wife but they
were living together. He further went on to state that from
December, 2015 onward, Prakash again started residing in the guest
house. He left the flat taken on rent. On inquiry, he told that
Kanchan left for her village and he, therefore, vacated the flat.
During cross-examination, PW 11 - Ninad admitted that Prakash did
not tell him that he was taking the flat since his wife was coming to
stay with him. In the cross-examination, it has been brought on
record that PW 11 - Ninad was on talking terms with Kanchan
madam (deceased).
23. PW 12 - Adv. Seema Sahastrabuddhe was the owner of
Flat No.403 in `Harbals Creation' building. She testified that she
rented out the flat to appellant Prakash, wherein he was residing
along with one Kanchan. Both of them would come to her to make
payment of rent. In the cross-examination, she admitted that no
lease agreement was executed between her and appellant Prakash.
24. The evidence of the aforesaid witnesses makes out
a case that appellant Prakash secured a job with Great Wall
Corporate Services, Nagpur. Initially, he stayed in the
company's guest house. He then secured a flat on rent on
the ground that his family would be joining to reside with
him. He, thereafter, started residing with a lady (Kanchan).
In the meanwhile, the wife of appellant Prakash along with
their children visited the guest house. These witnesses then
realised that the lady by name, Kanchan, residing with the
appellant Prakash was not his real wife. It is true that no
photograph of Kanchan was shown to any of them to identify
that deceased Kanchan was the lady who was residing with
appellant Prakash at Nagpur.
25. The term "proved", appearing in Section 3 of the
Evidence Act, speaks that, "a fact is said to be proved when, after
considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon
the supposition that it exists".
26 So far, we have come across the evidence indicating that
Kanchan was daughter of PW 18 - Popatlal and PW 21 - Sushila. She
was deeply involved with appellant Prakash, emotionally. Both of
them had served in Blue Dart company at Pune. When Kanchan was
admitted in Surya hospital at Pune, appellant Prakash was at her
bedside. After some days, both of them left the job. Appellant
Prakash secured job at Nagpur. After a brief stay in the company's
guest house, he secured a flat on rent and started residing with a
lady by name, Kanchan, at Nagpur. Kanchan, daughter of PW 18 -
Popatlal and PW 21 - Sushila was alive until 20.12.2015. From all
these facts, we have no hesitation to reach to the conclusion that the
lady residing with appellant Prakash at Nagpur, was none other than
Kanchan (deceased). The evidence also indicates that after the
death of Kanchan, the appellant Prakash returned Nagpur alone. He
quit the rented flat and again started residing in the company's
guest house. He informed his colleague (PW 11 - Ninad) that
Kanchan had gone to her village (made a false statement). The
aforesaid evidence also indicates that the company/employer of the
appellant Prakash had provided him with a cellphone.
27. PW 33 - Raj Tilak Roushan did investigation of the crime.
It is in his evidence that the Kurti on the person of the deceased
Kanchan had a tag "Jaipur Kurti.com" (we have verified this fact). He
found that similar Kurti was available on the e-commerce websites
like, Flipkart, Amazon, etc. He exercised powers under Section 91 of
the Code of Criminal Procedure and issued notices online through e-
mail, requesting those websites to provide the telephonic details of
the persons who had purchased such type of Kurtis during the period
01.01.2015 to the date of finding of the dead body of Kanchan, i.e.
20.12.2015. There were approximately, 18000 persons, who had
purchased such type of Kurtis on Flipkart and 7 persons who had
purchased the same from Amazon. He compared the tower dump
data with the data received from Flipkart. One phone number came
common. It was `7722093380'. The SDR record indicates that it was
in the name of one Amol Sonwane, who was working with Great Wall
Corporate Services. PW 33 - Raj Tilak placed on record the
documents (Exhs.244, 245, 246 and 248) in the nature of his e-mail
letters sent to Flipkart and the replies thereto. He also received
certificate under Section 65(b) of the Evidence Act from Flipkart. The
same was also marked as Exh.247. The witness placed on record the
letters received from the employer of appellant Prakash (Exhs.249
and 250). The best evidence in proof of documents is examination
of author thereof. There are ways and means to prove a document.
Those are:-
(i) By calling a person who signed or wrote a
document.
(ii) By calling a person in whose presence the
document was signed or written.
(iii) By calling a handwriting expert.
(iv) By calling a person acquainted with the
handwriting of the person by whom the
document is supposed to be signed or written.
(v) By comparing in Court the disputed document
or writing with some admitted document or
writing.
(vi) By proof of an admission by the person who is
alleged to have signed or written the document
that he signed or wrote it.
(vii) By the statement of a deceased professional
scribe, made in the ordinary course of business,
that the signature on the document is that of a
particular person.
(viii) A document is proved to have been made if it is
shown to have been made at the request of a
person by some other person, e.g., by the scribe
who signed on behalf of the executant.
(ix) By other circumstantial evidence, AIR 1957
Manipur 9(12)**AIR 1981 Madh Pra 69(72):
1981 MPLJ 192 (DB)
28. In our view, one of the modes of proving of the
document, would be tendering in evidence such document by the
person who has received it in response to his official course of
business. Section 114 of the Evidence Act reds thus:-
"114. Court may presume existence of
certain facts.- The Court may presume the
existence of any fact which it thinks likely
to have happened, regard being had to
the common course of natural events,
human conduct and public and private
business, in their relation to the facts of
the particular case.
The Court may presume -
(e) that the judicial and official acts have been
regularly performed.
(f) that the common course of business has been
followed in particular cases;
29. As such, in response to the communications made by the
Investigating Officer, the office copies whereof are on record and
admitted in evidence, the employer of appellant Prakash informed
that the aforesaid cellphone was being used by the appellant
Prakash; and Flipkart informed that the said Kurti was ordered by a
person holding the said cellphone and it was delivered on his address
at Nagpur. Then, we have evidence of the Nodal Officer of Vodafone
Idea Ltd. (PW 30 - Dattaram). In response to the requisition given
by the police authorities, he produced on record the CDR, SDR and
the tower locations of three cellphones numbers namely,
7722093380, 7743898148 and 8975671499. He supplied the said
information along with the certificate under Section 65(b) of
Evidence Act (Exh.230), indicating that the cellphone no.
7743898148 was in the name of appellant - Pratibha, wife of
appellant - Prakash. The cellphone no. 8975671499 was in the name
of Subhash Lohar (father of appellant - Datta). All the three
cellphone numbers were in contact with each other for long. We do
not propose to give details thereof since, considering their interse
close relations, they are bound to be in contact with each other on
cellphones. The material piece of evidence is the tower location of
cellphone no.7722093380. Same indicates that on the fateful day, it
travelled from Nagpur upto village Hadgaon and returned back to
Nagpur on the following day, i.e. 20.12.2015. During the material
time, said cellphone had neither received any incoming call nor any
call was made therefrom. Same suggests that appellant Prakash is
intelligent. He must have kept the cellphone switched off. He did
not offer any explanation as to why did he had been to village
Hadgaon, wherefrom village Wagholi, the place of his brother-in-law
(appellant Datta) was at a short distance, compared to Nagpur. On
his way back to Nagpur on 21.12.2015, the appellant Prakash had to
been to Sadik Motors Pvt. Ltd. with his Vento car bearing registration
No.MH-12-JZ-4720, for repairing. The motor mechanic (PW 20)
testified to have inspected the vehicle. He noticed some blood
stains on the front left side door and seat of the car. The appellant
Prakash told him that while coming to Nagpur, dacoits committed
attack with stones. The head of his wife dashed against the
dashboard. She, thereby, received injuries. Since the expenditure of
the repairs of the car were amounting to Rs.40,000/- plus, the
appellant Prakash took away the car. A bill was issued of Zero
amount. The appellant then sold the said car to Jafar (PW 15).
30. Necessarily, the statements of the witnesses have been
recorded late after the incident, since, by that time, identity and
involvement of the appellant had not been surfaced. The appellant
Prakash was arrested on 15.06.2016; appellant Datta was arrested
on 16.06.2016; and appellant Pratibha was arrested on 29.06.2016.
The trial court mostly relied on inadmissible piece of evidence
namely, the disclosure statement made by the appellant - Datta,
disclosing the manner in which the crime was committed and the
dead body was thrown into the well.
31. PW 3 - Ramesh is witness to the disclosure statements
(Exhs.102 and 103). The appellant - Prakash too made disclosure
statement pointing out the place in Nagpur, whereat, he destroyed
the articles of deceased Kanchan. No object was recovered pursuant
to any of these disclosure statements. Both the statements,
therefore, would be irrelevant and not inadmissible in terms of
Section 27 of the Evidence Act, except for making out the case about
the conduct of the appellants. A photographer had accompanied on
all the occasions. He too testified accordingly. Then, there is
evidence of the carrier/police officials, who carried the seized articles
to F.S.L., Aurangabad and Kalina as well. Their evidence was not
referred to.
32. From the aforesaid evidence, what can be said to have
been made out is that:-
(i) Deceased Kanchan was daughter of Popatlal (PW 18);
(ii) She and appellant Prakash, initially, were employed with
Blue Dart Company;
(iii) Their job profile required them to travel together at
various places;
(iv) The acquaintance between the two developed into
emotional relationship;
(v) Kanchan had, once, consumed poison. She was admitted
to Surya Hospital, at Pune.
(vi) Appellant Prakash was by her bed side;
(vii) The parents of Kanchan made great efforts to ensure
break up between the two, but in vain. They had settled
marriage of Kanchan with a boy from Dewas;
(viii) The appellant played a spoilsport. Kanchan too refused
to marry anyone else. Same indicates bonding between
the appellant Prakash and Kanchan);
(ix) After some days, both of them left the job with Blue Dart
company;
(x) The appellant Prakash secured a job at Nagpur. He
stayed in the company's guest house for some days and
then, took a flat on rent to stay with his family;
(xi) He then started residing in the said flat with a lady by
name, Kanchan. In our view, said lady must have been
Kanchan (deceased) and none else;
(xii) The appellant Prakash's employer had provided with him
a cellphone no.7722093380. Said cellphone travelled
from Nagpur to village Hadgaon, meaning thereby,
appellant Prakash came down to Hadgaon. Then, he
switched off the cellphone.
(xiii) He started backward journey on 20.12.2015 (CDR record
indicates that tower location;
(xiv) PW 1 - Arun noticed the dead body of a lady in the public
well at village Wagholi, Dist. Osmanabad;
(xv) Appellant Prakash gave false explanation to the motor
mechanic and even to his colleague (same is stated
above);
33. In view of illustration (d) to Section 114 of the Evidence
Act, it has to be presumed that a thing or state of things which has
been shown to be in existence within a period shorter than that
within which such things or state of things usually cease to exist, is
still in existence.
Based on the aforesaid evidence, it has to be presumed
that the relationship between the appellant Prakash and deceased
Kanchan that had continued while they were serving with Blue Dart
company, Pune, continued even after they left the said job. Both of
them stayed together as husband and wife at Nagpur. On the fateful
day, appellant Prakash left Nagpur with her for village Wagholi, Dist.
Osmanabad. He returned back alone to Nagpur and offered a false
explanation to his colleague.
34. In view of the above facts, we reached to the conclusion
that it was the appellant Prakash who owe explanation as to what
he did with Kanchan, who was staying with him as his wife. It is
reiterated that he offered no explanation to any of the incriminating
circumstances appearing in the evidence against him. The only
conclusion, therefore, could be drawn that the appellant Prakash
committed murder of Kanchan. There is also evidence to indicate
that Prakash's father had lodged N.C. against him. Although he was
not examined, the N.C. has been proved by the police constable by
tendering it in evidence. It was in relation to the quarrel between him
and the family members over his relationship with Kanchan.
35 The question is, whether the appellants - Datta and
Pratibha could be said to be privy to the crime. Appellant - Pratibha,
wife of appellant Prakash, was alleged to have conspired with her
husband and brother, to eliminate Kanchan. To make out the case of
conspiracy, the evidence relied on is C.D.R., indicating interaction
between these cellphones. Admittedly, the calls between the
appellants have not been recorded. They being family members
bound to have interaction on cellphone. True, one of the calls was at
an odd hour, i.e. little before 04.00 am. Based on the same, we,
however, cannot jump to the conclusion that appellant - Pratibha
was privy to the conspiracy. Section Section 120-A of Indian Penal
Code defines conspiracy, which reads thus:-
120A. Definition of criminal conspiracy.- When two
or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy:
Provided that no agreement except an
agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the
agreement is done by one or more parties to such
agreement in pursuance thereof.
It is very easy to allege a case of conspiracy but difficult to prove the
same. Mere telephonic conversations between appellant Pratibha
and her husband appellant - Prakash and brother appellant - Datta,
no way lead us to conclude she (appellant Pratibha) to have had
hatched conspiracy to eliminate Kanchan. She, therefore, deserves
to be acquitted.
36. So far as appellant - Datta is concerned, he appears to
have helped his brother-in-law (appellant Prakash) in doing away
with Kanchan. In that regard, we have evidence in the nature of the
disclosure statement made by him, wherein, he stated as to when
appellant Prakash came to his village, when he joined him and how
executed the plan. Whatever he has stated to the Investigating
Officer and deposed to by the witnesses thereto, was altogether
inadmissible in evidence. Mere conduct is grossly insufficient to hold
him guilty of the crime in question. He too, therefore, deserves to be
acquitted.
37. We have gone through the authorities relied on by
learned counsel for the appellants. Needless to mention, the factum
of murder is a question of fact. Each criminal case has to be decided
on the facts and circumstances of it. What has been observed in the
case relied on by learned counsel for the appellants were on our
mind while deciding the present appeals. So far as regards the
judgment in the case of Charandas Swami Vs. State of Gujarat
and anr., AIR 2017 SSC 1761, relied on by learned APP is
concerned, we find the same to be inapplicable to the present case.
Paragraph 45 of the said judgment reads thus:-
45. The dead body of deceased Gadadharanandji
was found on 4th May, 1998 in a burnt condition in a
ditch behind the house of PW50 in Barothi village in
Rajasthan. How the dead body of Gadadharanandji
reached that spot was revealed by none other than
Accused No.3. In what circumstances burnt injuries
were caused on the dead body of Gadadharanandji, no
prosecution witness has spoken about that. Be that as
it may, the fact that the dead body recovered from
Barothi village on 4th May, 1998 was that of
Gadadharanandji could be known only after Accused
No.3, during the course of investigation, made a
disclosure about the location where he had disposed
of the dead body of Gadadharanandji. Till the
aforesaid disclosure was made, in the records of the
Rajasthan police, the dead body was noted as that of
an unknown person. If, the Accused No.3 had not
disclosed to the Investigating Officer about the
location where the dead body was dumped by him -
which information was personally known to him and
at best Accused No.5 and none else, then the
investigation would not have made any headway. The
disclosure made by Accused No.3 to the investigating
officer was recorded in the panchanama Exh. 188,
when he had led the police party to the spot where the
dead body was dumped by him. That location
matched with the location from where the dead body
of an unknown person was recovered on 4th May,
1998 on the information given by PW50 to the local
police at Barothi. The fact that the dead body was
already recovered from the same place on 4th May,
1998 and so noted in the public records in the State of
Rajasthan does not undermine the admissibility of the
disclosure made by Accused No.3 to the investigating
officer about the location where the dead body of
Gadadharanandji was dumped by him, which
information was exclusively within the personal
knowledge of Accused No. 3. The fact that the dead
body recovered on 4th May 1998 was of
Gadadharanandji, was unraveled and discovered only
after the results of its medical examination became
available to the investigating agency. Till then, it was
considered to be of an unknown person. The Courts
below have accepted the case of the prosecution that
the disclosure made by Accused No.3 about the
location where the dead body of Gadadharanandji was
dumped by him, was admissible under Section 27 of
the Evidence Act. The appellants, however, take
exception to that by relying on the reported decisions.
In our view, the decision in the case of Navjot Sandhu
(AIR 2005 SC 3820) (Supra) has adverted to all the
previous decisions and restated the legal position. In
paragraph 114, while considering the arguments
advanced by the parties regarding the sweep of
Section 27 of the Evidence Act, the Court formulated
two questions which read thus:
"(i) Whether the discovery of fact
referred to in Section 27 should be
confined only to the discovery of a
material object and the knowledge of
the accused in relation thereto or the
discovery could be in respect of his
mental state or knowledge in relation
to certain things -- concrete or non-
concrete.
(ii) Whether it is necessary that the
discovery of fact should be by the
person making the disclosure or
directly at his instance. The
subsequent event of discovery by the
police with the aid of information
furnished by the accused -- whether
can be put against him under Section
27."
In the context of these questions, the argument of the
counsel for the State in that case has been adverted to
in paragraphs 115 to 118. The Court then after
analyzing Section 27 of the Evidence Act, in
paragraphs 120 to 144 adverted to the relevant
decisions on the point. In paragraphs 120 and 121
(para 13 of AIR), the Court noted thus:
"120. The history of case-law on the
subject of confessions under Section
27 unfolds divergent views and
approaches. The divergence was
mainly on twin aspects: (i) Whether
the facts contemplated by Section 27
are physical, material objects or the
mental facts of which the accused
giving the information could be said
to be aware of. Some Judges have
gone to the extent of holding that
the discovery of concrete facts, that
is to say material objects, which can
be exhibited in the Court are alone
covered by Section 27. (ii) The other
controversy was on the point
regarding the extent of admissibility
of a disclosure statement. In some
cases a view was taken that any
information, which served to connect
the object with the offence charged,
was admissible under Section 27.
The decision of the Privy Council in
Kottaya's case which has been
described as a locus classicus, had
set at rest much of the controversy
that centred round the interpretation
of Section 27. To a great extent the
legal position has got crystallised
with the rendering of this decision.
The authority of the Privy Council's
decision has not been questioned in
any of the decisions of the highest
court either in the pre-or post-
independence era. Right from the
1950s, till the advent of the new
century and till date, the passages in
this famous decision are being
approvingly quoted and reiterated by
the Judges of this Apex Court. Yet,
there remain certain grey areas as
demonstrated by the arguments
advanced on behalf of the State.
121. The first requisite condition for
utilising Section 27 in support of the
prosecution case is that the
investigating police officer should
depose that he discovered a fact in
consequence of the information
received from an accused person in
police custody. Thus, there must be a
discovery of fact not within the
knowledge of police officer as a
consequence of information received.
Of course, it is axiomatic that the
information or disclosure should be
free from any element of
compulsion. The next component of
Section 27 relates to the nature and
extent of information that can be
proved. It is only so much of the
information as relates distinctly to
the fact thereby discovered that can
be proved and nothing more. It is
explicitly clarified in the section that
there is no taboo against receiving
such information in evidence merely
because it amounts to a confession.
At the same time, the last clause
makes it clear that it is not the
confessional part that is admissible
but it is only such information or
part of it, which relates distinctly to
the fact discovered by means of the
information furnished. Thus, the
information conveyed in the
statement to the police ought to be
dissected if necessary so as to admit
only the information of the nature
mentioned in the section. The
rationale behind this provision is
that, if a fact is actually discovered in
consequence of the information
supplied, it affords some guarantee
that the information is true and can
therefore be safely allowed to be
admitted in evidence as an
incriminating factor against the
accused. As pointed out by the Privy
Council in Kottaya case 64: (AIR p.
70, para 10)
"clearly the extent of the
information admissible must
depend on the exact nature of
the fact discovered"
and the information must distinctly
relate to that fact.
Elucidating the scope of this section,
the Privy Council speaking through
Sir John Beaumont said: (AIR p. 70,
para 10)
"Normally the section is
brought into operation when a
person in police custody
produces from some place of
concealment some object, such
as a dead body, a weapon, or
ornaments, said to be
connected with the crime of
which the informant is
accused."
We have emphasised the word
"normally" because the illustrations
given by the learned Judge are not
exhaustive. The next point to be
noted is that the Privy Council
rejected the argument of the counsel
appearing for the Crown that the fact
discovered is the physical object
produced and that any and every
information which relates distinctly
to that object can be proved. Upon
this view, the information given by a
person that the weapon produced is
the one used by him in the
commission of the murder will be
admissible in its entirety. Such
contention of the Crown's counsel
was emphatically rejected with the
following words: (AIR p. 70, para
10) "If this be the effect of Section
27, little substance would remain in
the ban imposed by the two
preceding sections on confessions
made to the police, or by persons in
police custody. That ban was
presumably inspired by the fear of
the legislature that a person under
police influence might be induced to
confess by the exercise of undue
pressure. But if all that is required to
lift the ban be the inclusion in the
confession of information relating to
an object subsequently produced, it
seems reasonable to suppose that the
persuasive powers of the police will
prove equal to the occasion, and that
in practice the ban will lose its
effect." Then, Their Lordships
proceeded to give a lucid exposition
of the expression "fact discovered" in
the following passage, which is
quoted time and again by this Court:
(AIR p. 70, para 10) "In Their
Lordships' view it is fallacious to
treat the 'fact discovered' within the
section as equivalent to the object
produced; the fact discovered
embraces the place from which the
object is produced and the
knowledge of the accused as to this,
and the information given must
relate distinctly to this fact.
Information as to past user, or the
past history, of the object produced is
not related to its discovery in the
setting in which it is discovered.
Information supplied by a person in
custody that 'I will produce a knife
concealed in the roof of my house'
does not lead to the discovery of a
knife; knives were discovered many
years ago. It leads to the discovery of
the fact that a knife is concealed in
the house of the informant to his
knowledge, and if the knife is proved
to have been used in the commission
of the offence, the fact discovered is
very relevant. But if to the statement
the words be added 'with which I
stabbed A' these words are
inadmissible since they do not relate
to the discovery of the knife in the
house of the informant."
(emphasis supplied)
38. The facts in the case of Charandas Swami (supra)
would indicate that the dead body of Gadadharanandji was found in
Rajasthan. How the dead body reached that spot was revealed by
none other than the accused therein. By that time, the Investigating
Officer was not in the know thereof.
The facts in the present case, indicate that it is not that
based on the disclosure statement made by appellant Datta,
Investigating Officer or the officials of the police station with which
the crime was registered, came to know about identity of the
deceased Kanchan.
39. The evidence of Popatlal (PW 18) and the Investigating
Officer would indicate that the identity of the dead body was
established when the Investigating Officer had visited his house on
15.06.2016 with photograph in cellphone. Thereafter, the appellants
were arrested and then, the disclosure statement was made by
appellant - Datta. Be that as it may.
40. The appreciation of the evidence and the conclusion
arrived at, stated herein above, lead us to dismiss the appeal of
appellant Prakash and allow the appeals preferred by appellants -
Datta and Pratibha.
41. In the result, the following order:-
(i) Criminal Appeal No.480 of 2020 is allowed. The
impugned order dated 14.08.2020, passed by learned Addl. Sessions
Judge, Osmanabad, in Sessions case No.89 of 2016, convicting and
sentencing the appellant - Datta s/o. Subhash Lohar for the offences
punishable under Section 302 read with Section 120-B of Indian
Penal Code, is set aside. He is acquitted of the said offence. He be
released forthwith, if not required in any other case. Fine amount
paid by the appellant - Datta, if any, be refunded to him.
(ii) Criminal Appeal No.482 of 2020 is partly allowed.
(a) The conviction and sentence imposed vide impugned
order dated 14.08.2020 passed by learned Addl. Sessions Judge,
Osmanabad, in Sessions Case No.89 of 2016, for the offences
punishable under Section 302 r/w. 120-B of Indian Penal Code, to the
extent of appellant - Pratibha Prakash Chapekar, is set aside. She is
acquitted of the said offences. Fine amount paid by the appellant -
Pratibha, if any, be refunded to her. Her bail bonds shall stand
cancelled.
(b) Criminal Appeal No.482 of 2020 to the extent of
appellant - Prakash Suryakant Chapekar, is dismissed. He shall
surrender to his bail. His bail bonds stand cancelled.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
After pronouncement of the judgment, Ms. Poonam
Bodke Patil, learned counsel submits that since the appeal of
appellant - Prakash has been dismissed, who had been granted bail
by the Hon'ble Supreme Court, subsequent to dismissal of the
application for suspension of sentence by this Court, some time may
be granted for his surrender, so as to ensure that he would approach
the Hon'ble Supreme Court within a reasonable time.
On her request, the appellant - Prakash is granted four
weeks' time to surrender.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
...........
KBP
