Orissa High Court
A.F.R Shiva @ Gurucharan Singh vs State Of Odisha on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.213 OF 2023
In the matter of an Appeal under section 374(2) of the Code of
Criminal Procedure and from the judgment of conviction and order of
sentence dated 20.01.2023 passed by the learned 2nd Additional Sessions
Judge, Baripada, in Sessions Trial Case No.52 of 2019 arising out of G.R.
Case No.486 of 2018.
A.F.R Shiva @ Gurucharan Singh
....
Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode)
---------------------------------------------------------------------------------
For Appellant - Mr.Dipak Ranjan Mishra
Advocate
For Respondent - Mr.Saubhagya Ketan Nayak,
Additional Government Advocate,
Mr.S.S.Mohapatra,
Additional Standing Counsel.
CORAM:
MR.JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING :04.05.2023 : DATE OF JUDGMENT:05.05.2023
D.Dash, J. The Appellant, by filing this Appeal, has called in question the
judgment of conviction and the order of sentence dated 20.01.2023 passed
by the learned 2nd Additional Sessions Judge, Baripada, in Sessions Trial
Case No.52 of 2019 arising out of G.R. Case No.486 of 2018 (T.C.
No.1649 /2018) corresponding to Chandua P.S. Case No.20 of 2018 of the
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Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),
Baripada.
The Appellant (accused) faced the Trial with another accused i.e.
Duna Singh @ Dinosar and two others namely Beta @ Bibekananda @
Santosh Hansdaah & Dasmat Marndi standing charged for commission of
offence under section 302/120(B)/34 of the Indian Penal Code, 1860 (for
short 'the IPC'). He as well as accused Duna Singh @ Dinosar have been
convicted for commission of offence under section 302/34 of IPC and
section 120(B) of IPC. Accordingly, this accused has been sentenced to
undergo imprisonment for life and pay fine of Rs.5,000/- in default to
undergo rigorous imprisonment for a period of six (06) months for the
offence under section 302 of the IPC and imprisonment for life and fine of
Rs.5000/- in default to undergo rigorous imprisonment for six months for
the offence under section 302/120(B) of IPC with stipulation that the
substantive sentences would run concurrently and the realized fine be
given to the dependants of deceased (Sonu Singh @ Chhota). The other
accused Duna Singh @ Dinosar has also been convicted for the above
noted offences and he has been visited with the sentences which have been
so imposed upon the present accused. The two others namely Beta @
Bibekananda @ Santosh and Dasmat have however, been acquitted of the
charges.
It is stated at the Bar and also reported by the Registry that the
convict Duna Singh @ Dinosar has not yet filed any appeal against his
conviction and sentence.
2. Prosecution case is that this accused as well as the other accused
Duna Singh @ Dinosar are two brothers and they had a step brother
namely Sonu Singh @ Chhota (deceased). It is said that this accused with
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his brother Duna entertaining the belief in their mind that the deceased by
professing sorcery was finishing their family members one after the
another, have murdered the deceased. It is further said that this accused
with his brother Duna for the purpose engaged the other two accused
persons namely Beta @ Bibekananda and Dasmat (since acquitted) by
hiring them. Father and another brother of this accused as well as that of
the accused Duna having suddenly suffered from diseases when died, this
accused and his brother accused Duna Singh @ Dinosar consulted
different Ojhas (persons who too profess sorcery) and were told by them
that the deceased was responsible for the death of those family members
by playing sorcery which he was professing. Having received such
information, this accused and his brother accused Duna (non-appellant)
are said to have hatched a plan to kill the deceased and for that purpose
they took the assistance of two others namely, Dasmat and Beta (since
acquitted).
On 11.06.2018 around 8 p.m., accused Duna called the deceased
outside to consume liquor and accepting the request, the deceased went
with accused Duna to the house of one Nini Singh (P.W.8) and there they
consumed handia (local intoxicant as commonly known). The next
morning, the dead body of the deceased was found on the west side field
of his house. Receiving the news, the son of the deceased namely Mangal
Singh (Informant-P.W.1) went to the place where the dead body was
lying and found his father lying dead having cut injuries on his throat and
different parts of body with profuse bleeding. He then presented a written
report with the Officer-in-Charge (OIC) of Chandua Police Station,
having got it scribed by one Gande Singh (P.W.16). The OIC receiving
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the said report, treated the same as FIR (Ext.1) and immediately
registered the case and took up investigation.
3. In course of investigation the Investigating Officer (I.O-P.W.21)
examined the Informant and other witnesses and then visited the spot. He
also requisitioned the services of the members of the scientific team. He
held inquest over the dead body in presence of witnesses and prepared the
report (Ext.2). He then arrested this accused and his brother accused
Duna. It is said that they confessed to have committed the crime by
hatching the conspiracy and by hiring the services of the other two
persons who have been acquitted and have intentionally caused the death
of the deceased. It is also said that this accused had then led the police
and other witnesses to the place where he had kept the iron katuri
(M.O.III) concealed, pursuant to the statement given to the police and had
given recovery of the same which has been seized. The dead body of the
deceased was sent for post mortem examination. The I.O (P.W.21) in
course of investigation having seized several incriminating articles under
seizure lists had sent those for chemical examination through Court.
Finally on completion of investigation, the Final Form was submitted
placing this accused, his brother accused Duna Singh @ Dinosar as well
as the other two who have been acquitted, to face the Trial for
commission of offence under section 302/120(B)/34 of IPC.
4. Learned SDJM, Baripada having received the Final Form as above,
took cognizance of the above offences and after observing formalities
committed the case to the Court of Sessions. That is how the Trial
commenced by framing the charges for the said offences against all the
four accused.
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5. In the Trial, the prosecution in total examined twenty two (22)
witnesses. As already stated P.W.1, who is the son of the deceased is
informant and P.W.2, 3 and 4 are the witnesses to the inquest. P.W.7 and
P.W.12 are the witnesses to the recovery of the Katuri at the instance of
this accused and P.W.8 is the witness in support of the last seen theory.
The Doctor who had conducted the autopsy over the dead body of the
deceased is P.W.20 and the Investigating Officer is P.W.21. whereas
P.W.22 is the Scientific Officer of District Forensic Science Laboratory.
The prosecution besides leading the evidence by examining the eye
witnesses has proved several documents which have been admitted in
evidence and marked Ext.1 to 26/1. Out of those, the FIR is Ext.1, the
Inquest Report is Ext.2, the statement of this accused leading the I.O
(P.W.21) and witnesses in giving recovery of the Katuri has been marked
as Ext.7/2 whereas the Post Mortem Report is Ext.4. Some of the
incriminating articles having been produced during Trial, those have been
marked as Material Objects (M.O.-I to M.O.-V) and out of those, the
important one is that Katuri (M.O.III) which is said to be the weapon used
in causing the fatal injury upon the deceased leading to his death.
6. The defence case is that of complete denial and false implication.
However, no evidence either oral or documentary has been led from the
side of the accused despite the opportunity.
7. The informant-P.W.1 who is the son of the deceased has stated to
have gone to the place where the dead body of his father was lying and to
have seen his father lying dead with cut injury on his neck as well as the
other injuries on other parts of the body causing bleeding. The I.O
(P.W.21), who has held inquest over the dead body of the deceased in
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presence of the witnesses has also noted such injuries on the person of
the deceased which he had reflected in his report (Ext.2).
The Doctor (P.W.20), who had held autopsy over the dead body of
the deceased has found six chopped wounds on different parts of the body
of the deceased and she has stated so during his examination in the Trial
as well as noted all those in her report (Ext.14). She has stated the
dimensions of each of the injuries as well as their seats. Besides the
above, she has also noticed two cut mark present over the right shoulder
and below that. During the internal examination, she has found the
fracture of mandible, teeth, cut injury on the neck, vessels, muscles,
trachea, osephagus with signs of heavy bleeding and most importantly
cervical vertebra to have been bisected and blood inside trachea. As per
her version, all these injuries are ante mortem in nature and could have
been caused by moderate to heavy sharp cutting weapon. Having stated
that the cause of death was due to the shock and hemorrhage resulting
from these fatal injuries on the neck, it is her evidence that four such
injuries which she noticed are individually fatal and each are sufficient in
ordinary course of nature to cause the death and therefore, combinedly
the same would inevitably be the result. With all these obtained evidence
as discussed, remaining unchallenged by the defence, we are of the view
that the prosecution has established that the nature of death of Sonu
Singh @ Chhota was homicidal. In fact what we find that this aspect of
the case was not under the challenge from the side of the defence before
the Trial Court and that is also the situation before us.
Having said so, we are now called upon to examine the evidence
piloted by the prosecution in finding out the complicity of this accused in
the said homicidal death of the deceased.
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But before undertaking that exercise the submission by the learned
Counsels for the Appellant as well learned counsel for the State which
would stand for being addressed are noted in the following two pars.
8. Learned counsel for the Appellant (accused, Shiva @ Guru Charan
Singh) submitted that so far as this accused is concerned, the finding of
guilt returned by the Trial court is not the outcome of just and proper
appreciation of evidence. He submitted that the conviction in respect of this
accused is merely based on conjectures and surmises. He further submitted
that when the prosecution is based on circumstantial evidence, except the
evidence that this accused had led the police and witnesses to the place in
giving recovery of that Katuri M.O.III which too is not believable as having
not been proved beyond reasonable doubt by leading clear cogent and
acceptable evidence, there is no other evidence to find out his complicity.
In this connection he has invited our attention to the depositions of the
concerned witnesses which we would discuss later while addressing the
issue. He submitted that the evidence on record to whatever extent we may
say point the finger of guilt at the accused are not at all believable being
wholly concocted. He further submitted that when the prosecution case that
this accused with his brother accused Duna having hired the services of
two other persons who also faced the Trial had been successful in their
mission in finally executing the plan that they had hatched in eliminating
the deceased has failed and thus those two persons who had been arraigned
as accused persons being the hired criminals for the purpose of committing
the offence have been acquitted, the charge under section 120(B) of the IPC
as against this accused has no leg to stands as no such evidence at all
surfaces that this accused being a party to the conspiracy hatched by
arriving at an agreement with others in achieving the goal of committing
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the crime by causing the murder of Sonu Singh @ Chhota. He further
submitted that even accepting the evidence let in by the prosecution on
their face value, this accused cannot be held liable for any of the offences
for commission of which he has been convicted and sentenced.
9. Learned counsel for the State submitted that the prosecution having
established the motive for this accused as well as the brother accused Duna
for elimination of the deceased whom they were suspecting to be the
person responsible for causing harm to their father and brother in causing
their death by practicing the witchcraft; that coupled with the evidence as to
the last seen theory which has been established as well as the factum
recovery of the weapon(Katuri-M.O.-III) at the instance of this accused
which too has been proved, the finding of conviction of this accused for
the offence is not liable to be interfered with.
10. Keeping in view the submissions made, we have carefully read the
impugned judgment of conviction passed by the Trial Court. We have also
extensively travelled through the depositions of all the witnesses i.e. P.W.1
to P.W.22 and have perused the documents admitted in evidence and
marked Exts.1 to Ext.26/1.
11. Indisputably, the prosecution case against this accused is based on
the circumstantial evidence and the circumstances projected are:- (a) last
seen theory (b) recovery of the weapon (Katuri-M.O.-III), pursuant to the
statement of this accused while in police custody by leading the police and
other witnesses to the place in giving recovery of the same followed by its
seizure and evidence that by the user of this weapon, the injury found with
the deceased are possible; and (c) the motive behind the crime.
12. Before going to discuss the evidence let in by the prosecution in
establishing the above noted circumstances, one by one, whether those
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unerringly point at the guilt of this accused it would be apt and proper to
place the principles governing the appreciation of circumstantial evidence.
13. A three judge Bench of the Apex Court in Sharad Bidhichand Sarda
v. State of Maharashtra (1984) 4 SCC 116, held as under:
"Before discussing the cases relied upon by the High Court we
would like to cite a few decisions on the nature, character and essential
proof required in a criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this Court is Hanumant
v. The State of Madhya Pradesh [AIR 1952 SC 343: 1952 SCR 1091; 1953
Cri LJ 129] This case has been uniformly followed and applied by this
Court in a large number of later decisions uptodate, for instance, the cases
of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198: 1970
SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625:
AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid
down in Hanumant's case [AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ
129] it is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully established, and all the
facts so established should be consistent only with the hypothesis of the
guilt of the accused. Again, the circumstances should be of a conclusive
nature and tendency and they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such
as to show that within all human probability the act must have been done
by the accused."
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14. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be said to
be fully established: (1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. It may be noted here that
this Court indicated that the circumstances concerned 'must or should' and
not 'may be' established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should be proved' as
was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra
[(1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 CRI LJ 1783] where the
following observations were made: [SCC Para 19,p.807:SCC(Cri) p. 1047]
"Certainly, it is a primary principle that the accused must be and not merely
may be guilty before a court can convict and the mental distance between
'may be' and 'must be' is long and divides vague conjectures from sure
conclusions." (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. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on circumstantial
evidence.
Thus in view of the above, the court must consider a case of
circumstantial evidence in light of the aforesaid settled legal propositions.
In a case of circumstantial evidence, the judgment remains essentially
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inferential. The inference is drawn from the established facts as the
circumstances lead to particular inferences. The court has to drawn an
inference with respect to whether the chain of circumstances is complete
and when the circumstances therein are collectively considered, the same
must lead only to the irresistible conclusion that the accused alone is the
perpetrator of the crime in question. All the circumstances so established
must be of a conclusive nature and consistent only with the hypothesis of
the guilt of the accused.
"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."
"The first and the basic infirmity in the evidence of all the aforesaid
prosecution witnesses is that none of them have deposed the exact
statement said to have been made by the appellant herein which ultimately
led to the discovery of a fact relevant under section 27 of the Evidence
Act."
15. Bearing the above settled principles in mind, let us proceed in our
journey first of all to ascertain as to whether the above noted circumstances
have been proved beyond reasonable doubt through clear, cogent and
acceptable evidence in so far as the present accused Shiva @ Guru Charan
Singh is concerned.
16. The circumstance that the deceased was last seen in the company of
the accused persons is sought to be proved through its star witness is P.W.8
namely, Nini Singh. She has stated that accused Duna (non-Appellant) and
deceased Chhota had been to her house to consume Handia and as there
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was no Handia, she offered them to consume liquor which was available in
her house and which they consumed and then left the house. The dead body
was recovered on the next day morning with several cut injuries over it and
it was then lying in an open place. Now accepting the evidence of this
witness, what she has stated does in no way run after this accused Shiva.
From above statement of P.W.8 once can neither presume that as accused
Duna and this accused Shiva are two full blooded brother and the deceased
(Suna) was their step brother, this accused met them on the way when
P.W.8 is sating nothing in respect of this accused. Therefore, the
circumstance is not against this accused that the deceased was last seen in
his company and that is running against the other accused Duna who
happens to be the brother of this accused. There cannot be any inference
from the fact that since the brother of this accused who was living with this
accused under one roof even if we say for a moment that they were having
very good relationship and their relationship with the deceased was sour,
the presence of this accused that time even in a nearby place cannot be
inferred. But then also the time gap being not so short, such a circumstance
itself is too fragile in so far as that accused Duna is concerned and that
certainly requires corroboration that after leaving the house, they too had
been seen together for sometime as this P.W.8 is stating. The Trial Court in
fact has noted the evidence of P.W.8 in extentio that it is her evidence that
deceased and accused Duna were seen together and they had been to her
house, took liquor and left. This P.W.8 is not stating to have seen them
proceeding together after leaving the house. Thus that in no way comes to
the aid of the prosecution in so far as the complicity of this accused as well
as accused Duna (non-Appellant) are concerned. Therefore, even without
going to critically examine the evidence of P.W.8 as to the reliability and
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trustworthiness and refraining ourselves from making any comment on
either way, we find that what she has stated, we simply put it in this way
that her evidence has no implication in respect of the present accused as
also the other accused Duna (non-Appellant). Therefore, both this accused
as well as accused Duna (non-Appellant) were under no obligation to offer
any explanation as to how and where the company of the deceased was
parted with in view of the shifting of burden of proof when the time gap
between the last seen and the time of death is not that short. In so far as
this accused Shiva @ Gurucharan as also the accused Duna (non-
Appellant) are concerned, the foundational facts which the prosecution was
under the obligation to prove beyond reasonable doubt by leading clear,
cogent and acceptable evidence in order to prove the initial burden of proof
for shifting the same upon the shoulder of the accused has not been
proved.
17. The motive playing the role and becoming the compelling force for
this accused as also accused Duna (non-Appellant) in committing the
crime, we find that there is no such acceptable evidence on record and the
prosecution has not examined any witness in proving any such instance to
have occurred in the village concerning the deceased so as to infer that this
accused as also accused Duna (non-Appellant) had decided and declared to
eliminate the deceased for that reason of entertainment of the belief in their
mind that the deceased by playing sorcery which has been instrumental in
putting an end to the life of their family members i.e. their father and a
brother. Reading being given to the judgment of the Trial Court, we too
find that in clear terms it has not been held that the prosecution has
established the motive beyond reasonable doubt by leading clear cogent
and acceptable evidence.
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18. The Trial Court having said at one point of time at para 35 of its
judgment that the motive of the accused persons to commit the crime is not
known to anybody, has however turned around in again stating that due to
their belief that the deceased might have been professing sorcery relating to
the death of the family members, they have been prompted to conspire to
take the life of the deceased to end their fear of losing their family members
for all times to come. This has been said by placing implicit reliance upon
the disclosure statement of this accused recorded by the I.O (P.W.21) under
Ext.7/2 which we would discuss hereinafter.
19. This now takes us to examine the evidence as to the recovery of the
Katuri (M.O-III) said to have been made at the instance of this accused.
20. The relevant section 27 of the Evidence Act is under the heading as
to how much of information received from the accused may be proved then.
It reads:-
"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 provided."
21. In case of Sampath Kumar v.Inspector of Police, Krishnagiri, (2012)
4 SCC 124, decided on 02.03.2012, the Apex Court held as under:-
"In N.J.Suaj V. State [(2004)11 SCC 346: 2004 SCC (Cri) 85] the
prosecution case was based entirely upon circumstantial evidence and a
motive. Having discussed the circumstances relied upon by the prosecution,
this Court rejected motive which was the only remaining circumstance
relied upon by the prosecution stating that the presence of a motive was not
enough for supporting a conviction, for it is well-settled that the chain of
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circumstances should be such as to lead to an irresistible conclusion, that is
incompatible with the innocence of the accused.
To the same effect is the decision of the Apex Court in Santosh
Kumar Singh v. State [(2010) 9 SCC 747: (2010) 3 SCC (Cri) 1469) and
Rukia Begum v.State of Karnataka [(2011) 4 SCC 779: (2011) 2 SCC (Cri)
488: AIR 2011 SC 1585] where this Court held that motive alone in the
absence of any other circumstantial evidence would not be sufficient to
convict the appellant. Reference may also be made to the decision of the
Court in Sunil Rai @ Paua and Ors. v. Union Territory, Chandigarh (AIR
2011 SC 2545). The Apex Court explained the legal position as follows :
"In any event, motive alone can hardly be a ground for conviction.
On the materials on record, there may be some suspicion against the
accused but as is often said suspicion, howsoever, strong cannot take the
place of proof."
"Suffice it to say although, according to the appellants the question
of the appellant-Velu having the motive to harm the deceased-Senthil for
falling in love with his sister, Usha did not survive once the family had
decided to offer Usha in matrimony to the deceased-Senthil. Yet even
assuming that the appellant- Velu had not reconciled to the idea of Usha
getting married to the deceased-Senthil, all that can be said was that the
appellant-Velu had a motive for physically harming the deceased. That may
be an important circumstance in a case based on circumstantial evidence
but cannot take the place of conclusive proof that the person concerned was
the author of the crime. One could even say that the presence of motive in
the facts and circumstances of the case creates a strong suspicion against
the appellant but suspicion, howsoever strong, also cannot be a substitute
for proof of the guilt of the accused beyond a reasonable doubt."
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Thus, even if it is believed that the accused appellant had a motive
to commit the crime, the same may be an important circumstance in a case
based on circumstantial evidence but cannot take the place as conclusive
proof that the person concerned was the author of the crime. One could
even say that the presence of motive in the facts and circumstances of the
case creates a strong suspicion against the accused appellant but suspicion,
howsoever strong, cannot be a substitute for proof of the guilt of the
accused beyond reasonable doubt. The Trial Court rightly disbelieved
motive to commit the crime as the evidence in this regard is absolutely
hearsay in nature.
Thus the Trial Court's view as aforesaid is outcome of erroneous
appreciation of the legal position.
22. The conditions necessary for the applicability of section 27 of the
Act are broadly as under:-
i. Discovery of fact inconsequence of an information received
from accused;
ii. Discovery of such fact to be deposed to;
iii. The accused must be in police custody when he gave
information; and
iv. So much of information as relates distinctly to the fact thereby
discovered is admissible-Mohmed Inayatullah V. The State of
Maharashtra: AIR (1976) SC 483.
Two conditions for application:-
i. Information must be such as has caused discovery of the fact;
and
ii. Information must relate distinctly to the fact discovered
Earabhadrappa v. State of Karnataka: AIR (1983) SC 446.
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23. We may refer to and rely upon a Constitution Bench decision of the
Apex Court in the case of State of Uttar Pradesh V. Deoman Upadhyaya
reported in AIR (1960) SC 1125, wherein page 71 explains the positions of
law as regards the section 27 of the Evidence Act.
"The law has thus made a classification of accused persons into two: (1)
those who have the danger brought home to them by detention on a charge;
and (2) those who are yet free. In the former category are also those persons
who surrender to the custody by words or action. The protection given to
these two classes is different. In the case of persons belonging to the second
category the law has ruled that their statements are not admissible, and in
the case of the first category, only that portion of the statement is
admissible as is guaranteed by the discovery of a relevant fact unknown
before the statement to the investigating authority. That statement may
even be confessional in nature, as when the person in custody says ; "I
pushed him down such and such mineshaft", and the body of the victim is
found as a result, and it can be proved that his death was due to injuries
received by a fall down the mineshaft."
24. The scope and ambit of section 27 of the evidence act were
illuminatingly stated in Pulukuri Kottaya and Others V. Emperor, AIR
1947 PC 67, which have become locus classicus, in the following words.
" 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
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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."
25. In Dudh Nath Pandey V. State of U.P., AIR (1981) SC 911, the Apex
Court observed that the evidence of discovery of pistol at the instance of
the appellant cannot, by itself, prove that he who pointed out the weapon
wielded it in the offence. The statement accompanying the discovery was
found to be vague to identify the authorship of concealment and it was held
that pointing out of the weapon may, at the best, prove the appellant's
knowledge as to where the weapon was kept.
26. In the aforesaid context, we may also refer to a decision of the Apex
Court in the case of Bodhraj @ Bodha and Others v. State of Jammu and
Kashmir reported in (2002) 8 SCC 45, as under:
"It would appear that under Section 27 as it stands in order to render
the evidence leading to discovery of any fact admissible, the information
must come from any accused in custody of the police. The requirement of
police custody is productive of extremely anomalous results and may lead
to the exclusion of much valuable evidence in cases where a person, who is
subsequently taken in to custody and becomes an accused, after committing
a crime meets a police officer or voluntarily goes to him or to the police
station and states the circumstances of the crime which lead to the
discovery of the dead body, weapon or any other material fact, in
consequence of the information thus received from him. This information
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which is otherwise admissible becomes inadmissible under Section 27 if
the information did come from a person in the custody of a police officer or
did come from a person not in the custody of a police officer. The statement
which is admissible under Section 27 is the one which is the information
leading to discovery Thus, what is admissible being the information, the
same has to be proved and not the opinion formed on it by the police
officer. In other words, the exact information given by the accused while in
custody which led to recovery of the articles has to be proved. It is,
therefore, necessary for the benefit of both the accused and prosecution that
information given should be recorded and proved and if not so recorded,
the exact information must be adduced through evidence. The basic idea
embedded in Section 27 of the Evidence Act is the doctrine of confirmation
by subsequent events. The doctrine is founded on the principle that if any
fact is discovered as a search made on the strength of any Information
obtained from a prisoner, such a discovery is a guarantee that the
Information supplied by the prisoner is true. The information might be
confessional or non-inculpatory in nature but if it results in discovery of a
fact, it becomes reliable information. It is now well settled that recovery of
an object is not discovery of fact envisaged in the section. Decision of the
Privy Council in Palukuri Kotayya v. Emperor AIR (1947) PC 67: 48 Cri
LJ 533: 74 IA 65 is the most quoted authority for supporting the
interpretation that the "fact discovered" envisaged in the section embraces
the place from which the object was produced, the knowledge of the
accused as to it, but the information given must relate distinctly to that
effect. [see State of Maharashtra v. Damu Gopinath Shinde & others (2000)
6 SCC 269: 2000 SCC (Cri) 1088: 2000 Cri LJ 2301); (2000) Crl.L.J
2301]. No doubt, the information permitted to be admitted in evidence is
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confined to that portion of the information which "distinctly relates to the
fact thereby discovered.'' But the information to get admissibility need not
be so truncated as to make it insensible or incomprehensible. The extent of
information admitted should be consistent with understandability. Mere
statement that the accused led the police and the witnesses to the place
where he had concealed the articles is not indicative of the information
given."
27. Bearing the aforesaid legal position in mind in adverting to the given
case, we find that the prosecution for the purpose has relied upon the
evidence of P.W.7 who is a co-villager of the deceased. It is his evidence
that when he was sleeping in his house in the night, local Gram Rakhi told
him and then he called one Sudhir Hembram and both went with the Gram
Rakhi and police Officer near the canal of their village where the police
vehicle was there and this accused was inside the said vehicle. His further
evidence on the score is that the accused came and went near the culvert
and he brought out the katuri under the culvert and produced before the
police which he was seized. He is not stating as to what was the statement
of the accused. His evidence is that when this witness joined being called
by the local Gramrakhi, already the police vehicle carrying the accused was
near the culvert. This witness is not stating that in his presence the accused
gave any statement before the police and pursuant to that statement, he
went near the culvert and from under the culvert brought the katuri and
produced before the police which was seized. It is not stated by this witness
as to how the police in the vehicle carrying this accused had come near the
culvert and what was then the purpose for the same and how could that
very place was selected. He has also stated that being present nearby, he
was not able to know the conversation between police and this accused
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which in other way cannot be definitely said to be not the usual coercive
words being hurdled at this accused explaining the fatal consequences
thereof. According to his evidence, police vehicle was near their house at a
distance of 400 to 500 meters away from the culvert and then, there was no
water under the culvert and people use to go under the said culvert.
28. Even accepting P.W.7's evidence in toto, we find that it falls far
short of the legal requirements as to the admissibility of that part of the
statement of the accused as to the discovery of the fact that the Katuri being
kept concealed by him at the place which was within his special
knowledge, he had given recovery of the same to the police by leading the
police and other witnesses to that place of concealment. The witness having
not deposed as to what this accused said before the police, he has simply
admitted his signature on that statement as Ext.7. He has also stated to have
not asked anything to this accused who too had not told him anything.
29. The above being the evidence of the independent witness, next
remains the evidence of the I.O.(P.W.21). Let us now see what his version
is. As per his statement, he arrested all the accused persons including this
accused on 15.06.2018 at 5.30 p.m. He has stated that having arrested the
accused persons, he recorded the confessional statement of this accused.
We are unable to understand that this P.W.21 who was then the OIC of
the Police Station and proceeded to investigate a case of murder is not
aware of the rudimentary position of law that confession before the police
is not admissible in the eye of law. It does not at all appeal to us that the
accused being arrested, why his statement was recorded immediately.
Then this witness has gone to say and also the Trial Court has come to
record that this accused confessed to have committed the murder of the
deceased along with the other accused persons; he disclosed that his
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family members were suffering from fever for few years and his father
died due to such fever and that his wife and younger brother also suffered
and they did not recover despite the treatment of the Doctor and that
finally, his father Mangu died and thereafter they consulted one Ojha and
came to know that the deceased was practicing sorcery by keeping God
in his house and he used to quarrel with him and his brother for the
family dispute and threatened them to kill by practicing such sorcery and
by planning that he, his brother with the help of other have killed the
deceased. No part of the above evidence has any value in the eye of law
whatsoever. The exercise is one in futility, both at the end of investigation
as well as during the Trial. Be that as it may, this witness has not stated
that accused having narrated all these happenings as to his role as well as
the role of others therein led them to the spot i.e. culvert of
Mankadakenda where he had concealed weapon and then he proceeded to
the spot and accused brought the weapon of offence from the spot and
gave recovery of the same to them in presence of Bana Singh (P.W.7)
and Sudhir Hembram (P.W.12) who has not supported the prosecution. In
our considered view the evidence of P.W.21 what he has stated with
regard to the recovery part at the instance of the accused, does not pass
through the test as to the admissibility of the same under the provision of
Section 27 of the Evidence Act for whatever limited purpose it may be.
Therefore, giving recovery to the said Katuri where the accused had kept
it concealed and was within his special knowledge, as a circumstance has
not at all been proved.
30. On the conspectus of the analysis of the entire evidence let in by
the prosecution, we are of the view that the finding of the Trial Court that
the prosecution has established the charges against this accused Shiva @
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Gurucharan beyond reasonable doubt by leading clear, cogent and
acceptable evidence is not sustainable and, therefore, the judgment of
conviction and the order of sentence as against Accused-Appellant Shiva
@ Gurucharan Singh impugned in this Appeal are liable to be set aside.
31. Having held as above, this Appeal having been preferred by one of
the accused persons, namely, Shiva @ Gurucharan Singh, out of the two
accused persons, who have been convicted by the Court under section
302/34 and section 120 (B )of the IPC and that other convict, namely,
Duna Singh @ Dinosar, who was on trial with the present Accused-
Appellant (Shiva @ Gurucharan Singh) standing charged for the same
offence, we have also heard learned counsel for the State as to what
would be the impact of our findings upon the fate of the judgment of
conviction and order of sentence in so far as accused Duna Singh @
Dinosar, who has not appealed is concerned.
In this context, it may be stated that while dealing with a Criminal
Appeal filed by only one of the convicts if the Court finds that there is no
evidence worth the name to sustain the conviction of not only the
accused, who has filed the Appeal but also the other accused, who has not
appealed, the power of this Court in view of the provisions contained in
sections 401 & 482 of the Cr.P.C. can well be exercised in certain
eventuality to aside the conviction and sentence passed on the other
accused, who has not appealed so as to see that manifest injustice may not
be continued to be perpetrated for merely non filing of the Appeal by the
co-convict.
32. Upon discussion of evidence on record in great detail in the
foregoing paragraphs, we have arrived at the conclusion that the
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prosecution has failed to establish its case, which is based on
circumstantial evidence beyond reasonable doubt by leading clear, cogent
and acceptable evidence in proving the circumstances in showing that all
those circumstance taken together complete the chain of events in every
respect that all the hypothesis other than the guilt of the accused persons
are ruled out. The findings rendered by us are inter-dependant and
inextricably integrated in so far as the Appellant-Accused as well as the
convict who has not filed the Appeal are concerned. In this context, we
may refer to few authorative pronouncements which provide supports to
the view that we are going to take.
33. In case of Parbati Devi -V- The State; AIR 1952 Calcutta 835; two
persons were convicted under section 120-B read with section 366 of the
IPC. One of them appealed against the judgment of conviction and order
of sentence. His Lordships came to the conclusion that there was
absolutely no evidence to sustain the conviction of the Appellant-accused
or other non-Appellant-accused. Since the other co-accused had not
appealed, the question then arose for consideration was whether the
conviction and sentence passed on him can also be set aside even though
he had not appealed. While dealing with that question, it has been
observed as under:-
"When we were considering the appeal by Parvati Devi we came to the
definite conclusion that there was no evidence on the record which
would justify a conviction for conspiracy as between Parvati Devi arid
Shew Nath. It is not only in the exercise of the inherent power, but we
consider it to be the duty of the Court to exercise jurisdiction in such a
manner that manifest injustice may not be continued to be perpetrated.
It does not matter that Shew Nath has not appealed. This matter having
come to the notice of the Court, we think that we have got sufficient
jurisdiction under the inherent powers of the Court under Section 561-
A, Criminal P. C., 1898 to pass appropriate orders in the case of Shew
Nath also."
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34. In case of Hari Nath & Another -V- State of U.P.; AIR 1988 SC
345, the Hon'ble Supreme Court, while setting aside the judgment of
conviction and order of sentence passed against the appealing accused,
who had been convicted under section 396 of the IPC and sentenced
thereunder, has also set aside the conviction and order of sentence passed
against the non-appealing accused holding that the same cannot be sustain
consistent with the finding in and the result of the Appeal as the findings
are inter-dependent and inextricably integrated.
In case of Nirmal Pasi & Another -V- State of Bihar; (2003) 24
OCR (SC) 431, the Hon'ble Apex Court, upon discussion of the evidence,
came to conclude that the prosecution case, which relates to the arrest of
the Accused-Appellants suffers from serious infirmities. The Trial was
also held to be defective as most of the relevant incriminating evidence
had not been put to the Accused-Appellants in their statements under
section 313 Cr.P.C. in seeking explanation from them. So, the conviction
of the Accused-Appellants and the order of sentence for the offence under
section 396 of the IPC and the consequential order of sentence were set
aside. Having said so, coming to deal with the case of the third Accused
whose conviction although had been maintained by the High Court, he
had not chosen to file an Appeal before the Apex Court, it has been held
as under:-
" However, in view of what has been stated hereinabove, we find the case
of Accused Krishna Choudhary not distinguishable from the cases of Sona
Pasi and Nirmal Baheliya, Accused-Appellants and his conviction and the
sentence passed therein should also be set aside."
Resultantly, the Hon'ble Court, while directing that the Accused-
Appellants, namely, Sona Pasi and Nirmal Baheliya to be set at liberty
forthwith, if not wanted in any other case, has also set aside the
conviction for commission of offence under section 396 of the IPC and
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the sentence passed thereon as against the third Accused, namely, Krishna
Choudhary though he has not appealed and directed that he too be
released forthwith if not wanted in any other case.
Keeping in view all the aforesaid, in view of our foregoing
discussion and the position of law, we too in the case at hand conclude
that the judgment of conviction and order of sentence passed by the Trial
Court against Accused Duna @ Dinosar though he has not appealed are
liable to be set aside.
35. In the result, this Appeal stands allowed. The judgment of
conviction and order of sentence dated 20.01.2023 passed by the learned
2nd Additional Sessions Judge, Baripada, in Sessions Trial Case No.52 of
2019 arising out of G.R. Case No.486 of 2018 in respect of both the
Accused persons i.e. Shiva @ Gurucharan Singh, who is in Appeal
before us and the other one, namely, Duna @ Dinosar though he has not
appealed, are hereby set aside. Accordingly, the accused persons, namely,
Shiva @ Gurucharan Singh & Duna Singh @ Dinosar be set at liberty
forthwith, if their detention is not wanted in connection with any other
case.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
GITANJALI Digitally signed by (Dr.S.K.Panigrahi),
Judge.
GITANJALI NAYAK
NAYAK Date: 2023.05.05
17:46:26 +05'30'
Gitanjali
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