Himachal Pradesh High Court

State Of H.P vs Surjeet Singh And Ors on 7 May, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 4039 of 2013 Reserved on: 23.04.2024


                                              Date of Decision: 07.05.2024





    State of H.P.                                                                 ...Appellant.
                                          Versus
    Surjeet Singh and ors.                                                       ...Respondents





    Coram

Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 Yes

For the Appellant : Mr. Baldev Negi, Additional Advocate General.

For the Respondents : Mr. Vijay Kumar, Advocate, vice Mr. Sanjeev Kumar Suri, Advocate.

                                                Ms. Sheetal Vyas,                  Advocate,          as
                                                Amicus Curiae.





    Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 12.03.2013, passed by learned Additional Sessions Judge,

Fast Track Court, Una, District Una, H.P vide which the

respondents (accused before the learned Trial Court) were

acquitted of the commission of offences, with which they were

charged. (Parties shall hereinafter be referred to in the same

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

manner as they were arrayed before the learned Trial Court for

convenience).

2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan against the accused

for the commission of offences punishable under Sections 302

and 201 read with Section 34 of IPC. It was asserted that Up-

Pradhan, Gram Panchayat, Ladoli informed the police

telephonically on 20.03.2011 that a dead body was lying at Panjoa

Chowk. Police recorded Entry No.12A (Ext. PW17/A) in the police

station and directed ASI-Ram Swaroop (PW23), Constable

Ashwani Kumar, HHC Manjeet Singh, HHC Gian Chand and HHC

Ashok Raj to verify the correctness of the information. ASI-Ram

Swaroop and other police officials went to the spot and found the

naked dead body of some unknown person lying on the grass. He

took the photographs (Ext. PW10/A and PW10/B) and prepared the

inquest report (Ext. PW4/A). He filed an application (Ext. PW11/B)

for conducting the post-mortem examination of the dead body.

Dr Ravinder Mohan (PW11) conducted the post-mortem

examination and found multiple injuries on the body. In his

opinion, the cause of death was a fracture of the frontal bone

above the left eyebrow. He issued the post-mortem report (Ext.

PW11/A). He preserved finger pulps bilateral hands, teeth and

hairs for DNA profiling. He also preserved the viscera of the

deceased. He handed over all the articles to the police official

accompanying the body. ASI-Ram Swaroop prepared the site

plans (Ext. PW21/B and Ext. PW21/C) and handed over the post-

mortem report to the SHO. The head injuries suffered by the

deceased showed that the death was caused by beating; hence, FIR

(Ext. PW21/A) was registered at the police station. Inspector

Gurdeep Singh (PW21) conducted the investigation. He made

inquiries in the neighbourhood and recorded the statements of

Man Bhari (PW5) and her husband Harjeet Singh (PW9). He found

from their statements that the death was caused in the house of

Surjeet Singh. He went to the house of Surjeet Singh and found a

trolley in the courtyard. The trolley was moved and blood stains

were found on the ground. Surjeet Singh disclosed on inquiry that

one person had demanded water during the intervening night of

19/20.03.2011 by saying Baba Nanak Pani Pilao (Baba Nanak serve

water). He lifted the blood stains from the courtyard with the help

of a piece of cloth. These were put in an empty matchbox and the

matchbox was sealed in a cloth parcel with three impressions of

seal 'A'. The matchbox was seized vide memo (Ext. PW6/A).

Accused-Surjeet Singh produced three sticks (Ext. P1 to P3),

which were put in a cloth parcel and the parcel was sealed with

seal 'A'. It was seized vide memo (Ext. PW6/E). Sample seal (Ext.

PW6/F) was taken on a separate piece of cloth. T-shirt (Ext. P5)

and half pants (Ext. P6) were also recovered, which were put in a

cloth parcel and the parcel was sealed with seal 'A'. It was seized

vide memo (Ext. PW6/G). A site plan of the place of recovery (Ext.

PW21/B) was prepared. Accused Surjeet Singh made a disclosure

statement (Ext. PW6/H) that he could get the shirt recovered. He

recovered one shirt from a distance of 300 meters from his house

lying on a barbed wire. The shirt was put in a cloth parcel and the

parcel was sealed with seal 'T'. The parcel was seized vide memo

Ext. PW6/J. The site plan of the place of the recovery of the shirt

(Ext. PW21/C) was prepared. He also obtained the call details

record, which showed that Raj Kumar and Satish Kumar had

talked to each other. A team of forensic experts was called to the

spot. Surinder Kumar Pal (PW22) visited the spot and lifted small

dry grass leaves and hair-like strands from the grass. Blood stains

were also lifted from the cemented floor. Photographs (Ext.

PW21/J and PW21/M) were taken. He prepared the report (Ext.

PW20/A). The articles were deposited in the police station from

where these were sent to RFSL, Dharamshala for analysis. Report

(Ext. PW20/B) was issued showing that human blood of group 'A'

was detected in the blood lifted on a cloth from the floor, blood-

stained cement pieces of the floor, blood-stained dry grass leaves

and shirt. Human blood was detected on the bamboo sticks and

hair sample but the result was inconclusive regarding the blood

group. After the completion of the investigation, the police

prepared the challan and presented it to the court of learned

judicial magistrate, first class, court no.1, amb, who committed it

to the court of sessions for trial. Learned Sessions Judge assigned

the matter to the learned Additional Sessions Judge, Fast Track

Court, Una for trial.

3. The accused-Surjeet Singh was charged with the

commission of offences punishable under Sections 302, 201 read

with Section 34 of IPC. Accused Jamal Din, Satish Kumar and

Naresh Kumar were charged with the commission of offences

punishable under Section 201 read with Section 34 of IPC. The

accused persons pleaded not guilty and claimed to be trial.

4. The prosecution examined 23 witnesses to prove its

case. Joginder Singh (PW1) is the brother of the deceased Makhan

Singh. Sultan Ali (PW2) noticed the dead body and informed Up-

Pradhan about the same. The dead body was handed over to

Joginder Pal (PW3) for cremation. Shashi Bala (PW4) was Pradhan

of Gram Panchayat, who was associated with the taking of the

photographs and inquest report. Man Bhari (PW5) is the

neighbour of the accused but she did not support the prosecution

case. Pramod Kumar (PW6) is the witness to the recovery. Ashok

Kumar (PW7) and Kiran Pal (PW8) are the witnesses to the

recovery. Harjeet Singh (PW9) is the husband of Man Bhari, who

has not supported the prosecution case. Mohinder Singh (PW10)

is the photographer, who took the photographs of the spot. Dr.

Ravinder Mohan (PW11) conducted the post-mortem

examination. HC-Ashwani Kumar (PW12) was posted as

Malkhana Incharge with whom, the case property was deposited.

Constable Rajinder Pal (PW13) is the witness to the recovery. Gian

Chand (PW14) prepared the site plan of the spot and handed over

a copy of the jamabandi and his report. Constable Vipin Kumar

(PW15) is the witness to taking out the dead body from the

mortuary. HC-Karanjit Singh (PW16) is the witness to the

handing over of the dead body to Joginder Pal. HHC-Sada Shiv

(PW17) proved the entries in the daily diary. HC-Subhash Chand

(PW18) is the witness to the recovery of the documents of the

scooter. Balwinder Singh (PW19) was told about the sighting of

the dead body and is a witness to the recovery. SI-Ashok Kumar

(PW20) effected various recoveries. Gurdeep Singh (PW21)

conducted the investigation. Surinder Kumar Pal (PW22) is the

forensic expert, who had recovered blood stains from the spot.

ASI-Ram Swaroop (PW23) was sent to the spot to verify the

correctness of the information received by the police.

The accused Surjeet Singh denied the prosecution case

in its entirety in his statement recorded under Section 313 of

Cr.P.C. He stated that he was innocent and was falsely implicated.

The deceased was mentally retarded and had received injuries in a

road accident due to a fall. He knocked at the door and demanded

water. Surjeet's mother opened the gate. The deceased had

bleeding injuries. When Surjeet's mother went inside the house to

bring water, the deceased ran away and fell in the ditches near the

house of Surjeet; however, Surjeet was not present at his home on

the date of the incident. The other accused denied the prosecution

case and claimed that they were innocent and had visited the

village on the next day of the incident. They were falsely

implicated. No defence was sought to be adduced by the accused.

6. Learned Trial Court held that the prosecution had

failed to connect the shirt to the deceased-Makhan Singh. Man

Bhari and her husband denied the involvement of the accused.

The dead body was found at a distance of about 300 meters from

the house of Surjeet Singh. The prosecution filed the charge sheet

against the accused persons based on suspicion, which is not

sufficient to convict them ; hence, they were acquitted of the

offences with which they were charged.

7. Being aggrieved from the judgment passed by the

learned Trial Court, the State has filed the present appeal

asserting that the judgment is wrong on the facts as well as on

law. The evidence was not properly appreciated and the accused

were acquitted on flimsy grounds. The testimonies of prosecution

witnesses were discarded for untenable reasons. It was duly

proved that the deceased was last seen in the house of the

accused-Surjeet Singh, which fact was also admitted by the

accused-Surjeet Singh in his statement recorded under Section

313 of Cr.P.C. Blood stains were found in the courtyard of the

accused-Surjeet Singh. The weapons of offence were recovered at

the instance of the accused. The shirt was also recovered pursuant

to the disclosure statement made by accused-Surjeet Singh.

Learned Trial Court erred in ignoring the evidence; hence, it was

prayed that the present appeal be allowed, and the accused be

convicted and dealt with as per the law.

8. We have heard Mr. Baldev Negi, learned Additional

Advocate General, for the appellant/State. Ms Sheetal Vyas

learned counsel as Amicus Curiae and Mr Vijay Kumar, learned

vice counsel for the accused/respondent.

Mr Baldev Negi, learned Additional Advocate General,

for the appellant/State submitted that the learned Trial Court

erred in acquitting the accused. It was duly proved that the

deceased had gone towards the house of the accused-Surjeet

Singh. Blood stains were found on the floor. The death was caused

by injury to the head and such an injury could have been caused by

sticks. The shirt of the deceased was recovered at the instance of

Surjeet Singh. All these circumstances lead to only one inference

that the accused-Surjeet Singh had committed the murder and

the co-accused had destroyed the evidence to shelter Surjeet

Singh from punishment. Hence, he prayed that the present appeal

be allowed and the judgment passed by the learned Trial Court be

set aside.

10. Ms Sheetal Vyas, learned Amicus Curiae and Mr Vijay

Kumar learned vice counsel for the accused/respondent

supported the judgment passed by the learned Trial Court. They

submitted that Man Bhari and her husband have not supported

the prosecution case. A proper explanation was provided by

accused Surjeet Singh for the presence of blood stains in his

house, which competes in probability with the prosecution

version. Learned Trial Court had taken a reasonable view, after

properly appreciating the evidence. Hence, they prayed that the

present appeal be dismissed.

11. We have given considerable thought to the

submissions and have gone through the records carefully.

12. The present appeal has been filed against judgment of

acquittal. It was laid down by the Hon'ble Supreme Court in Babu

Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine

SC 561, that the Court can interfere with an order of acquittal if the

judgments suffer from patent perversity or there is some

misreading of evidence or omission to consider the material on

record. It was observed:

36. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for

challenging the acquittal of the accused recorded by the trial Court.

37. This Court in the case of Rajesh Prasad v. State of Bihar1 encapsulated the legal position covering the field

.

after considering various earlier judgments and held as

below:--

"29. After referring to a catena of judgments, this Court culled out the following general principles

regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC

415] "42. From the above decisions, in our considered view, the following general r principles regarding the powers of the

appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon

which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the

exercise of such power and an appellate court

on the evidence before it may reach its conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial

and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of

.

criminal jurisprudence that every person shall

be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

38. Further, in the case of H.D. Sundara v. State of Karnataka

2023 (9) SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:--

"8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral

and documentary evidence;

8.3. The appellate court, while deciding an appeal

against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused

was proved beyond a reasonable doubt and no other conclusion was possible."

39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the

judgment of acquittal recorded by the trial Court in favour

of the accused has to be exercised within the four corners of the following principles:--

(a) That the judgment of acquittal suffers from

patent perversity;

(b) That the same is based on a misreading/omission to consider material evidence on record;

(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

40. The appellate Court, in order to interfere with the

judgment of acquittal would have to record pertinent

findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."

13. The present appeal has to be decided on the

parameters laid down by the Hon'ble Supreme Court.

14. The prosecution relied upon the statements of Man

Bhari (PW5) and Harjeet Singh (PW9) to prove that the deceased

had gone to the house of Surjeet. Harjeet (PW9) did not support

the prosecution case. He stated that he did not know anything

about the case. He was permitted to be cross-examined. He

admitted in his cross-examination that one person shouting Baba

Nanaka Baba Nanaka was coming from village Panjoa on the road.

He admitted that he presumed that the person raising the noise

was Ashok Kumar, who was mentally challenged. He remained on

the bed but did not see the person. He stated in his cross-

examination, by learned counsel for the defence that he had not

seen the person, who was making noise on that night.

15. The statement of this witness nowhere proves that the

deceased was identified by him as the person, who was shouting

or that he had gone to the house of Surjeet. Hence, his testimony

does not establish the circumstance that the deceased had gone to

16. to the house of the accused-Surjeet.

Man Bhari (PW5) stated that she heard a man saying

Baba Nanak coming from Panjoa on the intervening night of

19/20.03.2011. She told her husband, who asked her to sleep

quietly because the person was Ashok, who was mentally

challenged. She slept again and she did not know what had

happened. She was permitted to be cross-examined. She admitted

that the person had gone towards the house of Gurdev. She denied

that the person was crying for water in the house of Gurdev. She

denied that she heard the noise of beating from the house of

Gurdev. She admitted that the inside of the house of Gurdev was

not visible from her house. She had not heard accused-Surjeet

saying that a thief had entered his house. She denied that Jamal

Din and Nirmala Devi came to the house of Gurdev. She admitted

that a scooter had come but she could not say anything about the

scooter rider. She denied that the four accused took the person

towards Panjoa. She admitted that the person sat near her house

and called Nanak Baba Pani Pilao. She did not know that the

accused had asked that person to get up and go. She denied that

she woke up and recognised the accused person. She denied that

accused Surjeet entered his house at 2:00 am and his sister-in-

law told him to sleep. She denied the previous statement recorded

by the police.

17. It is apparent from her statement that she had

specifically denied the prosecution version that the deceased had

gone to the house of accused Surjeet Singh, where, he was beaten

by the accused. She also denied that other accused took the person

with them; hence, her testimony does not advance the

prosecution case.

18. Heavy reliance was placed upon the statement made

by the accused-Surjeet Singh in his statement recorded under

Section 313 of Cr.P.C., wherein, he admitted that an unknown

person had visited his house to submit that the fact that the

deceased was last seen in the house of accused-Surjeet Singh is

not in dispute. This submission is not acceptable. It was laid down

by the Hon'ble Supreme Court in the State of Maharashtra and ors.

vs. Sukhdeo Singh and ors., 1992(3) SCC 700 that the Courts can rely

upon the statement of the accused made under Section 313 Cr.P.C.

It was observed:

51. That brings us to the question of whether such a

statement recorded under S. 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-sec. (3) says

that the accused shall not render himself liable to punishment if he gives false answers. Then comes sub-

sec. (4) which reads:

r"(4). The answers given by the accused may be taken

into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."

Thus, the answers given by the accused in response to his examination under S. 313 can be taken into consideration in such an inquiry or trial. This much is clear on a plain

reading of the above sub-section. Therefore, though not strictly evidence, sub-sec. (4) permits that it may be taken

into consideration in the said inquiry or trial. See State of Maharashtra v.R.B. Chowdhari (1967) 3 SCR 708 : (AIR 1968

SC 110). This Court in the case of Hate Singh v. State of Madhya Bharat, 1953 Cri LJ 1933:(AIR 1953 SC 468) held that an answer given by an accused under S. 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678: (1964 (1) Cri LJ 730) this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the

relevant observations at pages 684-685 (of SCR) : (at p.733 of Cri LJ):

"Under S. 342 of the Code of Criminal procedure by the first sub-section, insofar as it

.

is material, the Court may at any stage of the

enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall

put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under S.342 is

primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident r which forms the subject matter of the charge

and his defence. By sub-sec. (3), the answers given by the accused may "be taken into consideration" at the enquiry or the trial. If the accused person in his examination under S. 342

confesses to the commission of the offence charged against him the Court relying upon that confession, proceeds to convict him, but if

he does not confess and in explaining circumstance appearing in the evidence

against him sets up his version and seeks to explain his conduct pleading that he has committed no offence, the statement of the

accused can only be taken into consideration in its entirety."

19. This question was again considered by the Hon'ble

Supreme Court in Mohan Singh Vs Prem Singh, 2002 (10) SCC 236,

and it was held that the statement made by the accused under

Section 313 Cr.P.C. can be used to lend credence to the evidence led

by the prosecution, but a part of such statement cannot form the

sole basis for conviction. It was observed:-

"28. The statement made in defence by the accused under

.

Section 313, Cr.P.C. can certainly be taken aid of to lend

credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of

Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 Cr.P.C. of the accused can either be relied on in whole or in part. It may also be

possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar, (AIR 1969 SC 422):

"In this case, the exculpatory part of the statement in

Ex. 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury, which the appellant received was caused by the appellant's attempt to catch hold

of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under S. 342 Cr.P.C.

to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his

body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither

of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the blood stains being so considerable as to attract the attention of Ram Kishore Pandey, PW 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post-

mortem report, this knife could have been the cause of the injuries on the victim. In circumstances like these, there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex. 6 the High Court had acted rightly in accepting

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the inculpatory part and piercing the same with the

other evidence to come to the conclusion that the appellant was the person responsible for the crime."

20. It was laid down in Ramnaresh & Ors versus State of

Chhattisgarh, 2012 (4) SCC 257, that the statement of the accused

under Section 313 Cr.P.C. in so far as it supports the case of the

prosecution can be used against him for rendering conviction. It

was observed: -

"[22] It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of

recording a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put

forward his defence if the accused so desires. But once he does not avail of this opportunity, then consequences in

law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution,

can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."

21. This position was reiterated in Ashok Debbarma @

Achak Debbarma V/S State of Tripura, 2014 (4) SCC 747, and it was

held that the statement of the accused recorded under Section 313

Cr.P.C. can be used to lend corroboration to the statements of

prosecution witnesses. It was held: -

"24. We are of the view that, under the Section 313 statement, if the accused admits that, from the evidence of various witnesses, four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be

.

brushed aside. This Court in State of Maharashtra v.

Sukhdev Singh and another (1992) 3 SCC 700 held that since no oath is administered to the accused, the statement made by the accused under Section 313 CrPC will not be

evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC. But, Sub-section (4) says that the answers given

by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial. This Court in Hate Singh Bhagat Singh

(supra) held that the answers given by the accused under Section 313 examination can be used for proving his guilt

as much as the evidence given by the prosecution witness.

In Narain Singh v. State of Punjab (1963) 3 SCR 678, this Court held that when the accused confesses to the

commission of the offence with which he is charged, the Court may rely upon the confession and proceed to convict him.

25. This Court in Mohan Singh v. Prem Singh and another (2002) 10 SCC 236 held that the statement made in defence

by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under

Section 313 CrPC cannot be made the sole basis of his conviction. In this connection, reference may also be made to the judgment of this Court in Devender Kumar Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and Bishnu Prasad Sinha and another v. State of Assam (2007) 11 SCC 467. The above-mentioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same, the confession or admission of guilt can be

taken as a piece of evidence since the same lends credence to the evidence led by the prosecution."

22. This position was reiterated in Darshan Singh v. State of

Punjab, (2024) 3 SCC 164: 2024 SCC OnLine SC 17, wherein it was

observed:

37. The learned counsel for the respondent State has argued that no specific plea of alibi was taken in the statement of the appellant recorded under Section 313CrPC. In fact, it is submitted that there is an implicit

admission as to his presence in the house. It is too well settled that the statement of an accused under Section 313CrPC is no "evidence" because, firstly, it is not on oath and, secondly, the other party i.e. the prosecution does not

get an opportunity to cross-examine the accused. [Manu

Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385: AIR 2010 SC 2352] ]

38. It is trite law that the statement recorded under

Section 313CrPC cannot form the sole basis of conviction.

Therefore, the presence of the appellant cannot be found solely based on his statement, notwithstanding the lack of

independent evidence led by the prosecution. Further, this Court has previously considered the consequences when a

particular defence plea was not taken by the accused under Section 313CrPC and held that mere omission to take a

specific plea by the accused when examined under Section 313CrPC, is not enough to denude him of his right if the same can be made out otherwise. (See : Periasami v. State of T.N. [Periasami v. State of T.N., (1996) 6 SCC 457 : 1997 SCC (Cri) 121] )

23. Therefore, it is apparent from the judgments of the

Hon'ble Supreme Court that the Court can rely upon the

statements of the accused made under Section 313 Cr.P.C. to lend

assurance to the prosecution case but it is not permissible to

convict the accused solely on the basis of the statements made by

him under Section 313 of Cr.P.C.

24. Even otherwise, this statement only admits that the

deceased had visited the house of Surjeet Singh. It contains

exculpatory parts that the deceased had already sustained

bleeding injuries and he left before the water could be brought by

Surjeet's mother. It also mentions that Surjeet was not present in

the house on the date of the incident. If the statement has to be

considered, it has to be considered in the whole. It was laid down

by the Hon'ble Supreme Court in Premchand v. State of

Maharashtra, (2023) 5 SCC 522: 2023 SCC OnLine SC 218 that it is

impermissible to rely upon the inculpatory part without

considering the exculpatory part. It was observed:

15. What follows from these authorities may briefly be summarised thus:

15.1. Section 313CrPC [clause (b) of sub-section (1)] is a valuable safeguard in the trial process for the accused to establish his innocence.

15.2. Section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him.

15.3. When questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court. 15.4. The accused may even admit or own incriminating

.

circumstances adduced against him to adopt legally

recognised defences.

15.5. An accused can make a statement without fear of being cross-examined by the prosecution or the latter

having any right to cross-examine him.

15.6. The explanations that an accused may furnish cannot be considered in isolation but have to be considered in conjunction with the evidence adduced by

the prosecution and, therefore, no conviction can be premised solely on the basis of the Section 313 statement(s).

15.8. Statement(s) of the accused cannot be dissected to

rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission.

15.9. If the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyse and consider his statements.

15.10. Any failure to consider the accused's explanation

of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.

25. It is an admitted version that a dead body was found at

a distance of 300 meters from the house of the accused. The

explanation provided by the accused that the deceased had

sustained injuries in a roadside accident due to the fall has been

corroborated by Dr Ravinder Mohan (PW11), who conducted the

post-mortem examination and admitted in his cross-

examination that the possibility of sustaining the injuries due to

the fall on a hard surface could not be ruled out. Thus, it is not

permissible to rely upon the inculpatory part of the statement

that the deceased had visited the house of the accused without

considering the exculpatory part that the deceased had sustained

injuries in a roadside accident.

26. Dr. Ravinder Mohan conducted the post-mortem

examination of the deceased on 20.03.2011 at 1:15 pm. He stated in

his cross-examination that the death occurred 24 to 48 hours

before the post-mortem examination, which means that as per

the Medical Officer, the death had taken place before 19.03.2011 at

1:15 pm. This is contrary to the prosecution case that the death

had taken place on the intervening night of 19.03.2011 and

20.03.2011.

27. It was submitted that blood lifted from the floor of the

house of the accused matched the blood group of the deceased.

This submission is not supported by the material on record. The

result of analysis (Ext. PW20/B) shows that human blood of group

'A' was detected on the blood lifted from the floor, and blood-

stained cement pieces of the floor but there is no evidence that

the deceased had blood group of 'A'. No DNA analysis was

conducted. The Medical Officer had preserved the samples for

DNA analysis, but these were not used. Even the blood of the

deceased was not preserved to determine his blood group. Thus,

there is nothing on record to show that the deceased had blood

group 'A' and that the blood lifted from the floor or cement pieces

of the floor was that of the deceased.

28. Reliance was also placed upon the recovery of bamboo

sticks. The result of the analysis shows that human blood was

detected on the bamboo sticks but the result was inconclusive.

Again, the result of the analysis does not show that the bamboo

sticks had the blood group of the deceased to connect them with

the commission of the crime.

29. The police had also seized the clothes of the accused,

however, no blood was detected on the clothes and the recovery of

the clothes will not help the accused.

30. Heavy reliance was placed upon the recovery of the

shirt, which was found to be containing human blood of group

'A'. Learned Trial Court held that there was nothing to connect

the shirt to the deceased. It was submitted that the statement

(Ext. PW6/H) shows that the accused-Surjeet Singh had removed

the shirt of the deceased and had thrown it in the bushes. This

submission is not acceptable. The statement under Section 27 of

the Indian Evidence Act can only be used to admit the fact

discovered as a consequence of information received from the

accused. Section 27 of the Indian Evidence Act reads:

"27. How much of information received from the accused

may be proved.

Provided that, when any fact is deposed to as discovered in consequence of information received from a person

accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

31. It is apparent from the bare perusal of the Section that

the whole of the statement made by the accused has not been

made admissible but only so much of the information that leads

to the discovery of the fact is admissible. This provision fell for

consideration before the Judicial Committee of the Privy Council

in Pulukari Kotayya vs. King Emperor AIR 1947 P.C. 67. This

judgment is a locus classicus and it settled much of the

controversy about the interpretation of Section 27. Lord

Beaumont J. who spoke on behalf of the Judicial Committee, said:

"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 the accused".

32. The statement made in the said case by the accused

was:

"...About 14 days ago, I, Kotayya and the people of my

.

party lay in wait for Sivayya and others at about

sunset time at the corner of the Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death.

The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my

stick in the rick of Venkatanarasu in the village. I will show you if you come. We did all this at the instigation of Pulukuri Kotayya."

33. It was contended before the judicial committee on

behalf of the Crown that the information given by the person that

the weapon produced is the one used by him in the commission of

the murder would be admissible. This contention was rejected and

it was said:

"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"

34. The meaning of the term 'fact discovered' was

explained as follows:

"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 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).

35. Ultimately, it was held that the whole of the statement

made by the accused in that case except the passage "'I hid it' (a

spear) and my stick in the rick of Venkatanarasu in the village. I

will show if you come" is inadmissible. It was held:

"The whole of that statement except the passage I hid it [a spear] and my stick in the rick of Venkatanarasu in the village. I will show if you come is inadmissible. In the evidence of the witness Potla China Mattayya proving the document the statement that accused 6 said I Mattayya and others went to the corner of the tank-land. We killed Sivayya and

Subayya must be omitted. A confession of accused 3 was deposed to by the police sub-inspector, who said that accused 3 said to him: "I stabbed Sivayya with a spear, I hid the spear in a yard in my village. I will show you the place." The first sentence must be

.

omitted. This was followed by a Mediatornama,

Exhibit Q.1, which is unobjectionable except for a sentence in the middle. He said that it was with that spear that he had stabbed Boddupati Sivayya, which

must be omitted."

36. In the present case, the whole of the statement is

regarding the past transaction. It does not lead to the discovery of

the fact that the shirt belonged to the deceased. It was laid down

by the Judicial Committee of the Privy Council in Narayan Swami

Versus Emperor AIR 1939 PC 47 that the article recovered has to be

linked with the commission of the crime independently and the

prosecution cannot rely upon the statement u/s 27 to prove its

connection with the commission of a crime. Hon'ble Supreme

Court held in Babbu Versus State of M.P. AIR 1979 S.C. 1042 that the

prosecution has to prove independently that the object recovered

was connected with the commission of an offence. It was

observed:

"13. The learned Additional Sessions Judge has also referred to the recovery of Katarnas on the information given by accused Nos. 1, 3 and 5. These recoveries hardly have any probative value in the facts and circumstances of this case. If there is no substantive evidence worth the name the recovery of Katarnas would hardly advance the prosecution case

against the accused. Katarnas appear to have been stained with human blood. However, it is revealing to refer to the recovery memos. Katarna is recovered from accused No. 1 under seizure memorandum Ex. P-8 in which it is recited that accused No. 1 made the

.

statement that he would show the Katarna with

which he assaulted Diwan Singh on 21-9-73 at night. The first part in the seizure memo would be inadmissible because the fact that accused No. 1

assaulted Diwan Singh is not discovered in pursuance of the information given by accused No. 1. It would be a confessional statement to a police officer hit by section 25 of the Evidence Act. The same infirmities

were to be found in regard to the recovery memos in respect of accused Nos. 3 and 5. In this background, we are not disposed to attach any importance to the

recovery of blood-stained Katarnas on the information given by accused Nos. 1, 3 and 5."

37. This position was reiterated in Musheer Khan v. State of

M.P., (2010) 2 SCC 748: (2010) 2 SCC (Cri) 1100: 2010 SCC OnLine SC

229 at page 762, wherein it was observed:

"57. The limited nature of the admissibility of the

facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the

following example:

Suppose a person accused of murder deposes to the police officer the fact result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused."

38. Thus, the prosecution cannot rely upon the statement

recorded under Section 313 of Cr.P.C. to prove that the shirt

belonged to the deceased and this fact was required to be proved

by the independent evidence. However, no such evidence was led

in the present case and the recovery of the shirt at the instance of

the accused will not assist the prosecution.

39. Inspector -Gurdeep Singh (PW21) admitted in his

cross-examination that the place of recovery of the shirt was

open and accessible and the shirt was not concealed but it was

found on the barbed wire. Balwinder Singh (PW19), the witness to

the recovery of the shirt, also stated in his cross-examination

that the place where the shirt was lying was beside the road

visible to all and sundry. It was laid down by the Hon'ble Supreme

Court in Manjunath v. State of Karnataka, 2023 SCC OnLine SC 1421,

that where the recoveries were effected from a place accessible to

the public, the same cannot be relied upon. It was observed:

"25. The next aspect is the recovery of the alleged weapons, we have noted the particulars thereof while discussing the findings of the Trial Court. Such recoveries were discarded by the trial court stating that the clubs were recovered from a place accessible to the public and, the chopper and the rods were recovered from a house where other persons were also residing which compromises the sanctity of such recovery and takes away from the veracity thereof.

26. Further discovery made, to be one satisfying the requirements of Section 27, Indian Evidence Act it must be a fact that is discovered as a consequence of information received from a person in custody. The conditions have been discussed by the Privy Council

.

in PulukuriKotayya v. King Emperor 1946 SCC OnLIne

PC 47 and the position was reiterated by this Court in Mohd. Inayatullah v. State of Maharashtra (1976) 1 SCC 828, in the following terms:--

"12...It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in

consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the r information the accused must be in police custody.

The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to

be excluded. The word "distinctly" means "directly", "indubitably", "strictly", or "unmistakably". The word has been advisedly

used to limit and define the scope of the provable information. The phrase "distinctly

relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the

accused which is the direct and immediate cause of the discovery..." (Emphasis supplied)

27. Prima facie, in the present facts, the 3 conditions above appear to be met. However, the Trial Court held, given that the discoveries made were either from a public place or from an area where other persons also resided, reliance thereupon, could not be made. We find this approach of the trial court to be correct.

27.1 This court has, in various judgments, clarified

this position. Illustratively, in Jaikam Khan v. State of U.P. (2021) 13 SCC 716 it was observed:--

"One of the alleged recoveries is from the room where deceased Asgari used to sleep.

.

The other two recoveries are from the open

field, just behind the house of deceased Shaukeen Khan i.e. the place of the incident. It could thus be seen that the recoveries were

made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries."

27.2 Also, in Nikhil Chandra Mondal v. State of W.B.

(2023) 6 SCC 605 the Court held:--

"20. The trial court disbelieved the recovery of clothes and weapons on two grounds. Firstly, r that there was no memorandum statement of

the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. We find that the

approach adopted by the trial court was in accordance with the law. However, this circumstance which, in our view, could not

have been used, has been employed by the High Court to seek corroboration to the extra-

judicial confession."

28. As reflected from the record, and in particular the testimony of PW-15 it is clear that the discovery

(stick as shown by A10, for instance) was a eucalyptus stick, found from the eucalyptus plantation, which indisputably, is a public place and was found a week later. A second and third stick purportedly found half a kilometre away on that day itself, was found by a bush, once again, a place of public access. Two further sticks recovered at the instance A6 and A7, were also from public places. An iron chain produced from the house of A1 and A2 is not free from the possibility that any of the other occupants of their house were not responsible for it.

We, further cannot lose sight of the fact that sticks, whether bamboo or otherwise, are commonplace objects in village life, and therefore, such objects, being hardly out of the ordinary, and that too discovered in places of public access, cannot be used

to place the gauntlet of guilt on the accused persons.

40. Thus, no advantage can be derived from the

recovery of the shirt from an open and accessible place.

41. There is no other evidence to connect the accused with

the commission of crime. Hence, the learned Trial Court had

taken a reasonable view, which was possible based on the

evidence on record and it is not permissible for this Court to

interfere with the same while exercising jurisdiction under

Section 378 of Cr.P.C.

42. Consequently, the present appeal fails and the same is

dismissed.

(Vivek Singh Thakur) Judge