Punjab-Haryana High Court
Akhilesh Paswan vs State Of Haryana on 14 November, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:150011-DB
CRA-D-522-DB-2013 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CRA-D-522-DB-2013 (O&M)
Reserved on: 04.11.2024
Date of Decision: 14.11.2024
Akhilesh Paswan ......Appellant
Versus
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Sudershan Thakur, Advocate (Legal Aid Counsel)
for the appellant.
Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana.
****
SURESHWAR THAKUR, J.
1. The instant appeal is directed against the impugned verdict, as
made on 5.4.2013, upon Sessions Case No. 9 of 2011, by the learned
Sessions Judge, Panchkula, wherethrough in respect of charges drawn
against the accused qua offence punishable under Sections 302, 307, 324,
506 IPC, the learned trial Judge concerned, proceeded to record a finding of
conviction against the accused-appellant.
2. Moreover, through a separate sentencing order dated 8.4.2013,
the learned trial Judge concerned, sentenced the convict-appellant in the
hereafter extracted manner-
(i) 302 IPC Imprisonment for life and also pay a fine of Rs.
5000/-. In default of payment of fine, he shall
further undergo imprisonment for six months.
(ii) 307 IPC Imprisonment for seven years and also pay a fine
of Rs. 5000/-. In default of payment of fine, he
shall further undergo imprisonment for six
months.
(iii) 324 IPC Imprisonment for two years.
(iv) 506 IPC Imprisonment for one year.
3. All the above imposed sentences of imprisonment, were ordered
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to run concurrently However, the period of detention undergone by the
accused-appellant, during the investigations, and, trial of the case, was, in
terms of Section 428 of the Cr.P.C., rather ordered to be set off from the
above imposed sentence(s) of imprisonment.
Factual Background
4. The genesis of the prosecution case, becomes embodied in the
appeal FIR, to which Ex PA/2 is assigned. As per the prosecution case,
Sunita made a complaint Ex.PA to the police on 21.8.2011 to the effect that
Akhilesh son of Dashrath resident of village Birhama, District Bihar had
been working for them for the last two years. On the fateful night, after
having dinner, she alongwith her children had come out of the house for a
stroll. Her husband had also gone to the nearby market. Her mother-in-law
Shanti was alone in the house with the servant. When she reached the main
gate of her house, she heard the cries of her mother-in-law. She immediately
ran inside the house alongwith two daughters aged 9 years and 7½ years,
whereupon she found that the lights of her mother-in-law's room had been
switched off. She switched on the lights, and, found that her mother-in-law
was lying on the floor and Akhilesh was inflicting injuries on her stomach
with a scissor. The complainant out of fright started shouting. Akhilesh
caught hold of the legs of the mother-in- law and dragged her towards the
bathroom. The complainant ran forward to save her mother-in-law on which
Akhilesh inflicted injuries on her face with the scissor. Akhilesh also
attacked her daughters and inflicted injuries upon them. He was brandishing
the scissor and was threatening them. He managed to run away. The
complainant came out of the house and shouted and asked for help. Her cries
attracted several persons. Parveen, her husband also arrived on the scene on
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her call and the incident was narrated to him. The neighbours called in an
ambulance. Shanti was taken to the hospital but she was declared dead. The
complainant disclosed that she and her mother-in-law had at times scolded
their servant when he was found negligent in performing his duties and she
suspected that this could be the reason for the attack. On the basis of the
said statement, the appeal FIR was registered.
Investigation proceedings
5. During the course of investigations, a dog squad and the crime
team was summoned. A photographer was also called. Post-mortem of
deceased Shanti Devi was got conducted from General Hospital, Sector-6,
Panchkula and her dead body was handed over to her relatives. After seeking
the opinion of the doctor regarding the injuries suffered by the daughters of
the complainant, an offence under Section 307 IPC was also added. A team
was sent to Bihar and the accused was arrested. He suffered a disclosure
statement and demarcated the spot and got the plier recovered from his
room. The police also recovered blood stained clothes of the accused and
one dismantled scissor from the nearby park. The weapon of offence and
the clothes were sent to the FSL concerned. After conclusion of
investigations, the investigating officer concerned, proceeded to institute a
report under Section 173 of the Cr.P.C., before the learned committal Court
concerned.
Committal Proceedings
6. Since the offences under Sections 302 and 307 of the IPC were
exclusively triable by the Court of Session, thus, the learned committal
Court concerned, through a committal order made on 3.12.2011, hence
proceeded to commit the accused to face trial before the Court of Session.
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Trial Proceedings
7. The learned trial Judge concerned, after receiving the case for
trial, after its becoming committed to her, made an objective analysis of the
incriminatory material, adduced before her. Resultantly, she proceeded to
draw charges against the accused for the offences punishable under Sections
302, 307, 324 and under Section 506 IPC. The afore drawn charges were put
to the accused-appellant, to which he pleaded not guilty, and, claimed trial.
8. In proof of its case, the prosecution examined 16 witnesses,
and, thereafter the learned Public Prosecutor concerned, closed the
prosecution evidence.
9. After the closure of prosecution evidence, the learned trial
Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but
thereins, the accused pleaded innocence, and, claimed false implication.
Though, the accused chose to adduce defence evidence, however, he did not
lead any witness into the witness box.
10. As above stated, the learned trial Judge concerned, proceeded to
convict the accused-appellant for the charge(s) (supra), as became drawn
against him, and, also as above stated, proceeded to, in the hereinabove
manner, impose the sentence(s) of imprisonment, as well as of fine, upon the
accused-appellant.
Submissions of the learned counsel for the appellant
11. The learned counsel for the aggrieved convict-appellant has
argued before this Court, that both the impugned verdict of conviction, and,
the consequent thereto order of sentence, thus require an interference. He
supports the above submission on the ground, that they are based on a gross
misappreciation, and, non-appreciation of evidence germane to the charge.
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The said submissions are hinged on the following grounds.
(a) That with the results qua the apposite examinations, as
made by the FSL concerned, borne in report bearing Ex.PX, thus omitting to
record a conclusive finding qua the stains of blood occurring on the
incriminatory items, rather matching with the blood group of the deceased.
Consequently, it is argued, that therebys the recovery, as became made of
the incriminatory item(s), especially of the broken scissors, when remained
unmatched with the blood group of the deceased, therebys no evidentiary
tenacity becoming garnered by the recoveries of the incriminatory items, as
became sent for examination(s) to the FSL concerned.
(b) That since the recovery of a dismantled piece of scissor(s)
was made from an accessible place, whereas, the recovery of the said
discovered fact, in pursuance to the making of a disclosure statement rather
was required to be effected from a place unaccessible to the public, besides
was required to be effected from a place within the exclusive knowledge of
the accused-appellant, whereins, it became hidden or camouflaged.
Therefore, he has argued, that the recovery from an open place, as became
effected of a broken scissor(s), thus is an inefficacious recovery, besides is
required to be concluded to be a manipulated recovery, on the ground, that it
became planted at the site of recovery.
(c) Though during the course of trial, a propagation was
raised by the convict-appellant, that he was a juvenile at the time of the
commission of offence, therebys an effective order, thus was required to be
made on the said application. However, since no effective order has been
recorded on the said application, thereupon, the trial as became entered upon
the present accused-appellant, who at the stage of commission of offence,
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rather was a juvenile, thus is a vitiated trial.
12. Consequently, he has argued that the impugned verdict of
conviction, and, the consequent thereto order of sentence, as became
recorded by the learned trial Court concerned, are required to be quashed
and set aside.
Submissions of the learned State counsel
13. On the other hand, the learned State counsel has argued before
this Court, that the verdict of conviction, and, consequent thereto sentence(s)
(supra), as become imposed upon the convict, are well merited, and, do not
require any interference, being made by this Court in the exercise of its
appellate jurisdiction. Therefore, he has argued that the instant appeal, as
preferred by the convict-appellant be dismissed.
Analysis of the depositions of the eye witnesses to the occurrence,
who respectively stepped into the witness box as PW-1 and PW-3
14. Complainant Sunita, who is the purported eye witness to the
occurrence, stepped into the witness box as PW-1, and, deposed that her
elder daughter was 9 years old and the younger daughter was 7 years old.
She along with her husband Parveen and mother-in-law Shanti were residing
together. She further deposed that she had a servant namely Akhilesh i.e.
the present appellant, who had been working in their house for the last two
years. She further deposed, that on 20.8.2011, she along with her children
went for a walk after having dinner, whereas, her husband had gone to the
market. Thereafter on return when they were near the main gate of the
house, she heard the cries of her mother-in-law, upon which she along with
her children went inside. She noticed that the lights of her mother-in-law's
room were switched off. She further deposed that upon switching on the
lights, she saw that appellant Akhilesh was inflicting scissors blows upon
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her mother-in-law. Subsequently, the appellant forcibly tried to drag her
mother-in-law inside the bathroom. She also deposed that when she tried to
rescue her mother-in-law, thereupon the appellant also inflicted scissor
blows upon her face, which in fact struck the right side of her forehead,
underneath her left eye, on her right forearm and on the right side of her
stomach. Thereafter the accused came out of the room and inflicted injuries
upon her daughters and fled away from the spot. Therefore, the supra
voicings made by PW-1, in her examination-in-chief, qua the genesis of the
prosecution case, are naturally in complete alignment with her previously
made statement, in writing, to which Ex.PA becomes assigned. Moreover,
though she was subjected to the ordeal of a grilling cross-examination by the
learned counsel for the accused, but she remained unscathed in the said
ordeal.
15. Significantly, since a wholesome reading of her testification, as
carried in her examination-in-chief, and, in her cross-examination, does not
unfold, qua thereins rather becoming carried any rife improvements or
embellishments viz-a-viz his previously recorded statement, in writing, nor
when her testification suffers from any further taint of its being ridden with
any intra se contradiction, thus intra se her examination-in-chief, and, her
cross-examination, therefore, utmost sanctity is to be assigned to her
testification.
16. The deposition of PW-1 is supported by the deposition of the
other eye witness to the occurrence, namely Pratibha aged 7½ years, who is
the daughter of the complainant, and, who stepped into the witness box as
PW-3 after hers becoming declared to be competent to testify. The echoings
occurring in the examination-in-chief of PW-3 are in complete harmony
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with the echoings, as became rendered in respect of the crime event by PW-
1. Though, upon the said witness becoming subjected to the ordeal of an
exacting cross-examination, she acquiesced to the suggestion that she has
been tutored by her father to make a statement. Resultantly, on the said
premise, an argument is raised by the learned counsel for the appellant, that
the testification of the said witness is uncreditworthy. Nonetheless if the said
submission is of some worth, yet its vigour also becomes denuded.
17. The reason for making the said conclusion, spurs from the
factum, that since the eye witness to the occurrence, namely, Sunita (PW-1)
has rendered an untainted ocular account vis-a-vis the crime event. In
sequel, even if, any purported blemish ingrains the testification of PW-3,
who otherwise is a child witness, therebys the effect of the said purported
blemish, but naturally becomes underwhelmed in the taint-free rendition of a
worthy ocular account qua the crime event, thus by PW-1.
Signatured disclosure statement of convict-appellant
Akhilesh Paswan Ex. PF/2
18. During the course of investigations, being made into the appeal
FIR, convict-appellant Akhilesh Paswan, thus made his signatured
disclosure statement, to which Ex. PF/2 becomes assigned. The signatured
disclosure statement, as made by the accused is ad verbatim extracted
hereinafter.
"x x x x
At about 4.00 P.M. in the evening a person gave lot of money in a
packet to Parveen Kumar. Greed developed in my mind. 1 opened
a nut of the scissor kept in my room with the plier and kept one
piece of scissor under my bed. At about 9.00 Р.М. during night
Shanti Devi, Sunita Devi and children were given food by me.
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Cleaned the utensils. Sunita went away outside alongwith her
both children. Parveen went to the market. I started watching TV
in the room of Shanti Devi. I asked key from Shanti Devi of the
locker who had refused to give the key of the locker. I gave many
blows upon Shanti Devi with a piece of scissor with intent to kill
her, who cried heavily. Then I threw away Shanti Devi by
dragging her feet to the bathroom. Sunita and her children
reached at the spot. That Sunita tried to save Shanti Devi then I
gave blow with scissor on the face of Sunita. Then I attacked with
the scissor upon both the children. All ran away outside by
crying. Due to fear I went to roof and took out the bag and
thrown it backside on the road and passing through kitchen and
jumped over the back wall and went to park at Rally Chowk. I
removed the blood stained clothes, other clothes were worn from
the bag and I left the bag, blood stained clothes and scissor there
and ran away to Bihar. Sunil friend who lived in Agra, his name
was falsely disclosed. I did not know him. I in the greed of money
murdered Shanti Devi by attacking with the scissor and also
attacked upon Sunita and her children. That I can demarcate that
Park Rally Chowk by going there with you where I kept the bag,
blood stained clothes and piece of scissor and the plier with
which I opened the nut of scissor, that plier I myself kept in the
Almirah at H. No. 575, sector 12, Panchkula in the room, in
which I resided over the roof which I can get recovered by going
with you."
19. Pursuant to the above made signatured disclosure statement, the
convict-appellant Akhilesh Paswan ensured the recovery of one plier, which
was taken into police possession, through recovery memo, to which
Ex. PF becomes assigned. The supra plier became used by the convict-
appellant to dismantle the potentialized weapon of offence i.e. the scissor(s).
20. The disclosure statement (supra), carries thereons the signature,
of the convict-appellant. In his signatured disclosure statement (supra), the
convict, confessed his guilt in inflicting injuries on the person of the
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deceased, hence with the supra incriminatory weapon. The further speaking
therein is qua his keeping, and, concealing the supra incriminatory item i.e.
the plier. Moreover, the said signatured disclosure statement does also make
speakings about his alone being aware about the location of his hiding and
keeping the same, and, also revealed his willingness to cause the recovery of
the supra incriminatory item, to the investigating officer concerned, from the
place of his hiding, and, keeping the same.
21. Significantly, since the appellant has not been able to either
ably deny his signatures as occurs on the exhibit (supra) nor when he has
been able to prove the apposite denial. Moreover, since he has also not been
able to bring forth tangible evidence but suggestive that the recovery(ies)
is/are either contrived or invented. Therefore, the recovery memo (Ex. PF) is
prima facie concluded to be holding the utmost evidentiary tenacity .
22. Moreover also, since post the making of the said signatured
disclosure statement, thus by the convict to the investigating officer
concerned, he through the recovery memo (Ex. PF), thus caused the
recovery of the incriminatory item to the investigating officer concerned.
Consequently, when the said made recovery(ies) is/are also not suggested by
any cogent evidence to be planted recovery(ies). Resultantly, the effect
thereof, is that, valid recovery(ies) was/were made vis-a-vis the supra
incriminatory item i.e. of plier by the convict, to the investigating officer
concerned. In sequel, the making of the valid signatured disclosure
statement, by the convict besides the pursuant thereto effectuation of valid
recovery(ies) of the supra incriminatory item(s), thus by the convict to the
investigating officer concerned, but naturally prima facie corroborates and
supports the case of the prosecution.
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23. However, yet for assessing the vigor of the said made disclosure
statement and consequent thereto made recovery, it is apt to refer to the
principles governing the assigning of creditworthiness to the said made
disclosure statement and to the consequent thereto made recovery. The
principles governing the facet (supra), become embodied in paragraphs Nos.
23 to 27 of a judgment rendered by the Hon'ble Apex Court in Criminal
Appeal Nos.1030 of 2023, titled as "Manoj Kumar Soni V. State of
Madhya Pradesh", decided on 11.8.2023, relevant paragraphs whereof
become extracted hereinafter.
23. The law on the evidentiary value of disclosure statements under
Section 27, Evidence Act made by the accused himself seems to be
well established. The decision of the Privy Council in Pulukuri
Kotayya and others vs. King-Emperor holds the field even today
wherein it was held that the provided information must be directly
relevant to the discovered fact, including details about the physical
object, its place of origin, and the accused person's awareness of
these aspects. The Privy Council observed:
The difficulty, however great, of proving that a fact
discovered on information supplied by the accused is a
relevant fact can afford no justification for reading into s. 27
something which is not there, and admitting in evidence a
confession barred by s. 26. Except in cases in which the
possession, or concealment, of an object constitutes the gist of
the offence charged, it can seldom happen that information
relating to the discovery of a fact forms the foundation of the
prosecution case. It is only one link in the chain of proof, and
the other links must be forged in manner allowed by law.
24. The law on the evidentiary value of disclosure statements of
co-accused too is settled; the courts have hesitated to place
reliance solely on disclosure statements of co-accused and used
them merely to support the conviction or, as Sir Lawrence
Jenkins observed in Emperor vs. Lalit Mohan Chuckerburty,
to "lend assurance to other evidence against a co-accused". In
Haricharan Kurmi vs. State of Bihar, this Court, speaking
through the Constitution Bench, elaborated upon the approach
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to be adopted by courts when dealing with disclosure
statements:
13. ...In dealing with a criminal case where the prosecution
relies upon the confession of one accused person against
another accused person, the proper approach to adopt is to
consider the other evidence against such an accused person,
and if the said evidence appears to be satisfactory and the
court is inclined to hold that the said evidence may sustain
the charge framed against the said accused person, the court
turns to the confession with a view to assure itself that the
conclusion which it is inclined to draw from the other
evidence is right.
25. In yet another case of discrediting a flawed conviction
under Section 411, IPC, this Court, in Shiv Kumar vs. State of
Madhya Pradesh overturned the conviction under Section 411,
declined to place undue reliance solely on the disclosure
statements of the co-accused, and held:
24. ..., the disclosure statement of one accused cannot be
accepted as a proof of the appellant having knowledge of
utensils being stolen goods. The prosecution has also failed to
establish any basis for the appellant to believe that the
utensils seized from him were stolen articles. The factum of
selling utensils at a lower price cannot, by itself, lead to the
conclusion that the appellant was aware of the theft of those
articles. The essential ingredient of mens rea is clearly not
established for the charge under Section 411 IPC. The
prosecution's evidence on this aspect, as they would speak of
the character Gratiano in Merchant of Venice, can be
appropriately described as, "you speak an infinite deal of
nothing." [William Shakespeare, Merchant of Venice, Act 1
Scene 1.]
26. Coming to the case at hand, there is not a single iota of
evidence except the disclosure statements of Manoj and the co-
accused, which supposedly led the I.O. to the recovery of the
stolen articles from Manoj and Rs.3,000.00 from Kallu. At this
stage, we must hold that admissibility and credibility are two
distinct aspects and the latter is really a matter of evaluation of
other available evidence. The statements of police witnesses
would have been acceptable, had they supported the
prosecution case, and if any other credible evidence were
brought on record. While the recoveries made by the I.O. under
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Section 27, Evidence Act upon the disclosure statements by
Manoj, Kallu and the other co-accused could be held to have
led to discovery of facts and may be admissible, the same
cannot be held to be credible in view of the other evidence
available on record.
27. While property seizure memos could have been a reliable
piece of evidence in support of Manoj's conviction, what has
transpired is that the seizure witnesses turned hostile right from
the word 'go'. The common version of all the seizure witnesses,
i.e., PWs 5, 6, 11 and 16, was that they were made to sign the
seizure memos on the insistence of the 'daroga' and that too,
two of them had signed at the police station. There is, thus, no
scope to rely on a part of the depositions of the said PWs 5, 6,
11 and 16. Viewed thus, the seizure loses credibility.
24. Furthermore, in a judgment rendered by the Hon'ble Apex Court in
Criminal Appeal No.2438 of 2010, titled as "Bijender @ Mandar V. State
of Haryana", decided on 08.11.2021, the relevant principles governing the
apposite assigning of creditworthiness become set forth in paragraph 16
thereof, paragraph whereof becomes extracted hereinafter.
16. We have implored ourselves with abounding
pronouncements of this Court on this point. It may be true that
at times the Court can convict an accused exclusively on the
basis of his disclosure statement and the resultant recovery of
inculpatory material. However, in order to sustain the guilt of
such accused, the recovery should be unimpeachable and not
be shrouded with elements of doubt. We may hasten to add that
circumstances such as (i) the period of interval between the
malfeasance and the disclosure; (ii) commonality of the
recovered object and its availability in the market; (iii) nature
of the object and its relevance to the crime; (iv) ease of
transferability of the object; (v) the testimony and
trustworthiness of the attesting witness before the Court and/or
other like factors, are weighty consideraions that aid in
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gauging the intrinsic evidentiary value and credibility of the
recovery. (See: Tulsiram Kanu vs. The State; Pancho vs. State
of Haryana; State of Rajasthan vs. Talevar & Anr and
Bharama Parasram Kudhachkar vs. State of Karnataka).
25. Furthermore, in another judgment rendered by the Hon'ble
Apex Court in Special Leave Petition (Criminal) No.863 of 2019, titled as
"Perumal Raja @ Perumal V. State, Rep. By Inspector of Police", decided
on 03.01.2024, the relevant principles governing the assigning of
creditworthiness become set forth in paragraphs 22 to 25 thereof, paragraphs
whereof become extracted hereinafter.
22. However, we must clarify that Section 27 of the Evidence
Act, as held in these judgments, does not lay down the principle
that discovery of a fact is to be equated to the object produced
or found. The discovery of the fact resulting in recovery of a
physical object exhibits knowledge or mental awareness of the
person accused of the offence as to the existence of the physical
object at the particular place. Accordingly, discovery of a fact
includes the object found, the place from which it was produced
and the knowledge of the accused as to its existence. To this
extent, therefore, factum of discovery combines both the
physical object as well as the mental consciousness of the
informant accused in relation thereto. In Mohmed Inayatullah
v. State of Maharashtra12, elucidating on Section 27 of the
Evidence Act, it has been held that the first condition imposed
and necessary for bringing the section into operation is the
discovery of a fact which should be a relevant fact in
consequence of information received from a person accused of
an offence. The second is that the discovery of such a fact must
be deposed to. A fact already known to the police will fall foul
and not meet this condition. The third is that at the time of
receipt of the information, the accused must be in police
custody. Lastly, it is only so much of information which relates
distinctly to the fact thereby discovered resulting in recovery of
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a physical object which is admissible. Rest of the information is
to be excluded. The word 'distinctly' is used to limit and define
the scope of the information and means 'directly',
'indubitably', 'strictly' or 'unmistakably'. Only that part of the
information which is clear, immediate and a proximate cause of
discovery is admissible.
23. The facts proved by the prosecution, particularly the
admissible portion of the statement of the accused, would give
rise to two alternative hypotheses, namely, (i) that the accused
had himself deposited the physical items which were recovered;
or (ii) only the accused knew that the physical items were lying
at that place. The second hypothesis is wholly compatible with
the innocence of the accused, whereas the first would be a
factor to show involvement of the accused in the offence. The
court has to analyse which of the hypotheses should be
accepted in a particular case.
24. Section 27 of the Evidence Act is frequently used by the
police, and the courts must be vigilant about its application to
ensure credibility of evidence, as the provision is vulnerable to
abuse. However, this does not mean that in every case
invocation of Section 27 of the Evidence Act must be seen with
suspicion and is to be discarded as perfunctory and unworthy
of credence.
25. The pre-requisite of police custody, within the meaning of
Section 27 of the Evidence Act, ought to be read pragmatically
and not formalistically or euphemistically. In the present case,
the disclosure statement (Exhibit P-37) was made by the
appellant - Perumal Raja @ Perumal on 25.04.2008, when he
was detained in another case, namely, FIR No. 204/2008,
registered at PS Grand Bazar, Puducherry, relating to the
murder of Rajaram. He was subsequently arrested in this case,
that is FIR. No.80/2008, which was registered at PS
Odiansalai, Puducherry. The expression "custody" under
Section 27 of the Evidence Act does not mean formal custody. It
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includes any kind of restriction, restraint or even surveillance
by the police. Even if the accused was not formally arrested at
the time of giving information, the accused ought to be deemed,
for all practical purposes, in the custody of the police.
26. Now the principles set forth thereins are that the defence, is
required to be proving;
i) That the disclosure statement and the consequent thereto
recovery being forged or fabricated through the defence proving
that the discovery of fact, as made in pursuance to a signatured
disclosure statement made by the accused to the investigating
officer, during the term of his custodial interrogation, rather not
leading to the discovery of the incriminatory fact;
ii) That the fact discovered was planted;
iii) It was easily available in the market;
iv) It not being made from a secluded place thus exclusively
within the knowledge of the accused.
v) The recovery thereof made through the recovery memo in
pursuance to the making of a disclosure statement, rather not
being enclosed in a sealed cloth parcel nor the incriminatory
item enclosed therein becoming sent, if required, for analyses to
the FSL concerned, nor the same becoming shown to the doctor
concerned, who steps into the witness box for proving that with
the user of the relevant recovery, thus resulted in the causings of
the fatal ante mortem injuries or in the causing of the relevant
life endangering injuries, as the case may be, upon the
concerned.
vi) That the defence is also required to be impeaching the
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credit of the marginal witnesses, both to the disclosure
statement and to the recovery memo by ensuring that the said
marginal witnesses, do make speakings, that the recoveries were
not made in their presence and by making further speakings that
they are compelled, tutored or coerced by the investigating
officer concerned, to sign the apposite memos. Conspicuously,
despite the fact that the said recovery memos were not made in
pursuance to the accused leading the investigating officer to the
site of recovery. Contrarily the recovery memo(s) becoming
prepared in the police station concerned.
vii) The defence adducing evidence to the extent that with
there being an immense gap inter se the making of the
signatured disclosure statement and the consequent thereto
recovery being made, that therebys the recovered items or the
discovered fact, rather becoming planted onto the relevant site,
through a stratagem employed by the investigating officer.
27. Therefore, unless the said defence(s) are well raised and are
also ably proven, thereupon the making of a disclosure statement by the
accused and the consequent thereto recovery, but are to be assigned
credence. Conspicuously, when the said incriminatory link in the chain of
incriminatory evidence rather is also the pivotal corroborative link, thus even
in a case based upon eye witness account.
28. Be that as it may, if upon a prosecution case rested upon eye
witness account, the eye witness concerned, resiles therefrom his previously
made statement. Moreover, also upon his becoming cross-examined by the
learned Public Prosecutor concerned, thus the judicial conscience of the
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Court become completely satisfied that the investigating officer concerned,
did record, thus a fabricated apposite previously made statement in writing,
therebys the Courts would be led to declare that the said made apposite
resilings are well made resilings by the eye witness concerned, thus from his
previously made statement in writing.
29. Moreover, in case the Court, in the above manner, becomes
satisfied about the well made resilings by the eye witness concerned, to the
crime event, thereupon the Court may consequently draw a conclusion, that
the recoveries made in pursuance to the disclosure statement made by the
accused, even if they do become ably proven, yet therebys may be the said
disclosure statement, and, the consequent thereto made recoveries also
loosing their evidentiary tenacity. The said rule is not a straitjacket principle,
but it has to be carefully applied depending upon the facts, circumstances
and evidence in each case. Tritely put in the said event, upon comparative
weighings being made of the well made resilings, thus by the eye witness
concerned, from his previously made statement in writing, and, of the well
proven recoveries made in pursuance to the efficaciously proven disclosure
statement rendered by the accused, the Court is required to be drawing a
conclusion, as to whether evidentiary tenacity has to be yet assigned to the
disclosure statement and the pursuant thereto recovery memo, especially
when they become ably proven and also do not fall foul from the above
stated principles, and/or to the well made resiling by the eye witness
concerned, from his previously recorded statement in writing. Emphatically,
the said exercise requires an insightful apposite comparative analyses being
made.
30. To a limited extent also if there is clear cogent medical account,
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which alike, a frailly rendered eye witness account to the extent (supra), vis-a-
vis the prosecution case based upon eye witness account rather unfolds qua the
ante mortem injuries or other injuries as became entailed on the apposite
regions of the body(ies) concerned, thus not being a sequel of users thereovers
of the recovered weapon of offence. Resultantly therebys too, the apposite
signatured disclosure statement and the consequent thereto recovery, when may
be is of corroborative evidentiary vigor, but when other adduced prosecution
evidence, but also likewise fails to connect the recoveries with the medical
account. In sequel, thus therebys the said signatured disclosure statement and
the consequent thereto recovery, thus may also loose their evidentiary vigor.
Even the said rule has to be carefully applied depending upon the facts,
circumstances, and, the adduced evidence in every case.
31. However, in a case based upon circumstantial evidence when
the appositely made signatured disclosure statement by the accused and the
consequent thereto prepared recovery memos, do not fall foul, of the above
stated principles, therebys they acquire grave evidentiary vigor, especially
when in pursuance thereto able recoveries are made.
32. The makings of signatured disclosure statement and the
consequent thereto recoveries, upon able proof becoming rendered qua both,
thus form firm incriminatory links in a case rested upon circumstantial
evidence. In the above genre of cases, the prosecution apart from proving the
above genre of charges, thus also become encumbered with the duty to
discharge the apposite onus, through also cogently proving other
incriminatory links, if they are so adduced in evidence, rather for sustaining
the charge drawn against the accused.
33. Consequently, since the statutory provisions enclosed in Section
25 of the Indian Evidence Act, provisions whereof becomes extracted
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hereinafter, do not assign statutory admissibility to a simpliciter/bald
confession made by an accused, thus before the police officer, rather during
the term of his suffering custodial interrogation, but when the exception
thereto, becomes engrafted in Section 27 of the Indian Evidence Act,
provisions whereof becomes extracted hereinafter. Therefore, therebys when
there is a statutory recognition of admissibility to a confession, as, made by
an accused before a police officer, but only when the confession, as made by
the accused, before the police officer concerned, but becomes made during
the term of his spending police custody, whereafters the said incriminatory
confession, rather also evidently leads the accused, to lead the investigating
officer to the place of discovery, place whereof, is exclusively within the
domain of his exclusive knowledge.
"25. Confession to police-officer not to be proved.--No confession made
to a police-officer, shall be proved as against a person accused of any
offence.
x x x x x
27. How much of information received from 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."
34. Significantly, it would not be insagacious to straightaway oust
the said made signatured disclosure statement or the consequent thereto
recovery, unless both fall foul of the above principles, besides unless the
said principles become proven by the defence. Contrarily, in case the
disclosure statement and the consequent thereto recovery enclosed in the
respective memos, do not fall foul of the above principles rather when they
become cogently established to link the accused with the relevant charge.
Resultantly, if the said comprises but a pivotal incriminatory link for proving
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the charge drawn against the accused, therebys the snatching of the above
incriminatory link from the prosecution, through straightaway rejecting the
same, but would result in perpetration of injustice to the victim or to the
family members of the deceased, as the case may be.
35. Now coming to the facts at hand, since the disclosure statement
and the consequent thereto recovery i.e. of plier does become efficaciously
proven by the prosecution. Moreover, when none of the marginal witnesses,
to the said memos become adequately impeached rather for belying the
validity of drawings of the memos nor also when it has been proven that the
said memos are fabricated or engineered, besides when it is also not proven
that the disclosure (supra) did not lead to the discovery of the apposite fact
from the relevant place of hiding, thus only within the exclusive knowledge
of the accused.
36. Therefore, for the reasons to be assigned hereinafter, though
prima facie, the effect of recovery of the potentialized weapon of offence i.e.
of the scissor(s), but is outside the contours of principles (supra), inasmuch
as, the recovery of the dismantled scissor(s) rather was made from an open
and accessible place. Consequently, when the principles (supra) underline
the necessity qua the recovery of the fact being effected from the place
exclusively within the knowledge of the convict, whereins, he has hidden or
camouflaged, thus the discovered or, the recovered fact. Contrarily when the
dismantled scissor(s) became recovered from the open place. Consequently
therebys prima facie no efficacy is required to be assigned to the recovery of
the dismantled piece of scissors, as became effected through recovery memo
Ex. PD.
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37. Be that as it may, since the paramount ocular account rendered
vis-a-vis the crime event, thus for the reasons (supra) becomes assigned
creditworthiness. Consequently, thus the effect of lack of evidentiary
tenacity becoming marshalled by recovery of a dismantled scissors, as
became effected through recovery memo Ex. PD, rather becomes totally
insignificant.
38. Moreover, since evidently the potentialized weapon of offence
i.e. the scissor(s) became dismantled, as such with the user of a plier by the
convict-appellant. Therefore, if the plier became confessed to be used by the
convict-appellant thus to dismantle the potentialized weapon of offence i.e.
the scissor(s). Resultantly, the inference therefroms, is that, the undisputed
effective recovery, thus for reasons (supra) hence of the said plier, as, used
by the convict-appellant, for dismantling the potentialized weapon of
offence i.e. the scissor(s), when became effected but in pursuance to the
making of a disclosure statement of the convict-appellant, rather from a
desolate place or from a place within the exclusive knowledge of the present
convict-appellant. In sequel, when an effective recovery of the plier became
effected, thus at the instance of the convict-appellant to the investigating
officer, therebys become fostered the hereinafter inference-
(a) That the plier becoming used by the convict-appellant to
dismantle the potentialized weapon of offence i.e. the scissor(s), but
irrespective of the fact that the recovery of the said potentialized weapon of
offence rather becoming effected from an open and accessible place.
(b) That there occurring ample evidence on record qua the
nexus inter se the making of an effective recovery of plier, thus with the
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dismantled scissor(s), as such, the said inter se nexus does make waned the
purported inefficacious recovery, if any, as became effected of the
potentialized weapon of offence i.e. the scissor(s).
Post-mortem report
39. The post-mortem report, to which Ex. PG/2 is assigned, became
proven by Dr. Sunil Gambhir (PW-5). PW-5 in his examination-in-chief, has
deposed that on an autopsy being conducted on the body of deceased Shanti
Devi by him along with Dr. Purnima, thus theirs noticing thereons the
hereinafter ante mortem injuries-
"A. An incised wound of size 6 cms x 3 cms and about 3 cms
apart another stab wound of size 3 cm x 2 cm x 3.5 cms was
present on the left infra-clavicular regioin.
On dissecion there is ecchymosis underneath.
B. An abrasion of size 4 cms x 0.2 cms present on left
shoulder.
C. A stab wound 3 cms x 1.0 cm x 2.5 cm and another 2.5
cm x 1.0 cms x 2.5 cms present on the left side of the neck,
below the ear lobule underlying tissues shows ecchymosis.
D. A stab wound of size 1.5 cms x 0.7 cms x 2.5 cms present
on the mid line of the neck, underlying tissues shows
ecchymosis.
E. An incised wound of size 1.5 cm x 1 cm present on the
right side of the neck just below the condyle of mandible
underlying tissues shows ecchymosis.
F. An stab wound of size 3 cms x 2 cms x 3.5 cms present on
the right side of the chest underlying tissues shows ecchymosis.
On further dissection the underlying lung showed laceration
with evidence of ecchymosis of blood. There was blood
collection on the right side of the chest. Two stab wound of size
10 cms x 4.5 cms x 5.5 cms and another 5 cms x 4 cms x 4.5
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cms on the mid line of the abdomen 2 cms above the umbilicus
omentum, intestine exposed.
On further dissection the liver, spleen shows laceration with
ecchymosis of blood. There is collection of blood in the
abdomen. A stab wound of size 3 cms x 1.5 cms x 2.5 cms
present on the abdomen in the mid line, 2 cms below the
umbilicus. On dissection there is ecchymosis on underneath."
40. Furthermore, PW-5 also made a speaking in his examination-in-
chief, that the cause of demise of the deceased was owing to effects of ante
mortem injuries (supra). The said witness was also shown the scissors to
which Ex. P-8 and Ex. P-10 are assigned, upon which he deposed that the
injuries (supra) can be caused with the said weapon.
41. The above made echoings by PW-5, in his examination-in-
chief, became never challenged through any efficacious cross-examination,
being made upon him, by the learned defence counsel. Therefore, the
opinion, as made by PW-9 qua the demise of the deceased, thus acquires
formidable force. Consequently, the above echoings, as made by PW-9, in
his examination-in-chief, do relate, the fatal ante-mortem injuries to the time
of the crime event hence taking place at the crime site. Resultantly therebys
too, the purported blemished recovery of scissors becoming effected, thus
also becomes waned.
MLRs of injured
42. Dr. Megha Mittal, who medico legally examined injured Sunita
@ Isha, Garima and Pratibha, has stepped into the witness box as PW-6,
and, during the course of her examination-in-chief, she has proven the MLRs
of the said injured, to which respectively Ex. PH/1, Ex. PH/2 and Ex. PH/3
are assigned. She has also proven the existence of the hereinafter extracted
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injuries on the persons of injured (supra).
"Injuries on the person injured Sunita
1. Incised wound on forehead above right eye. Clean cut
with sharp edges and bleeding present. 3.5 cm x 3 cm x 2 cm.
2. Incised wound and hematoma surrounding left eye with
tapering towards nose sharp clean cut edges. 3 x .2 x .5 cm.
3. Incised wound on right forearm posteriorly 3 cm x 1 cm x
.2 cm with bleeding present and regular clean cut edges.
4. Hematoma 4 cm x 4 cm on left breast infraclavicular
area with tenderness.
Injuries on the person injured Garima
1. Stab wound with sharp edges and bleeding present 3 x .8
cm x 1.2 cm deep on right side of back over scapular area.
Subcutaneous tissue protruding out.
2. Incised wound spindle shape with taper. Subcutaneous
tissue protruding out. Size 5 x 1 x .5 cm.
Injuries on the person injured Pratibha
1. Stab wound with sharp clean cut edges and present over
left inframammary area and over ribcage 5 x 2.5 cm x 1 cm.
Subcutaneous tissue protruding out and bleeding present."
Report of the FSL concerned, to which Ex. PX becomes assigned
43. Through memo No. 36167 dated 8.9.2011, eight sealed cloth
parcels became sent, through Constable Manoj Kumar-1/499 to the FSL
concerned. The FSL concerned, thus upon making examinations of all the
incriminatory items, as became sent to it in sealed cloth parcels, hence made
thereons an opinion, opinion whereof, becomes ad verbatim extracted
hereinafter.
"x x x x
Description of parcel(s) and condition of seal(s)
Eight sealed parcel(s). The seal(s) were found intact and
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tallied with the specimen seal(s) as per forwarding authority's
letter.
Description of article (s) contained in parcel(s)
Parcel No. and seal Description of parcel(s)
No. impression
1. 5-OP It contained exhibit-1a to 1b
Exbt-1a: One small cut piece of printed bed sheet
stained with several large and small brownish
stains.
Exbt-1b: One greenish cap stained with few
medium and small brownish stains.
2. 5-OP It contained exhibit-2
Exbt-2: Damp and putrefied cotton wool swab.
3. 5-OP It contained exhibit-2
Exbt-3: One broken/piece of scissor with yellow
metallic grip.
4. 5-OP It contained exhibit-4a to 4c.
Exbt-4a: One striped shirt stained with several
medium and small brownish stains.
Exbt-4b: One brownish pants stained with few
medium and small brownish stains.
Exbt-4c: One white cotton banian stained with few
medium and small brownish stains.
5. 5-NK It contained exhibit-5a to 5b
Exbt-5a: One multicolored lady shirt stained with
few medium and small brownish stains.
Exbt-5b: One printed salwar stained with few
medium and small brownish stains.
6. 1-Doctor It contained exhibit-6.
Exbt-6: Dark brown putrefied liquid material
(approx. 3ml) described as blood.
7. 3-Doctor It contained exhibit-7a to 7b.
Exbt-7a: One damp printed lady's shirt stained
with several large and small brownish stains.
Exbt-7b: One damp printed salwar stained with
several large and small brownish stains.
Laboratory Examination
Laboratory examinations were carried out to detect the
presence of blood on the exhibits through chemical tests.
Blood thus detected was subjected to serological tests to
determine its species of origin. Based upon these examinations
the results obtained are given below:-
1. Exhibit-1a (bed sheet piece) was stained with several
large and small blood stains.
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2. Exhibit-1b (cap) was stained with several large and
small blood stains.
3. Blood was detected on exhibit-2 (swab) and on exhibit-3
(Scissors piece).
4. (i) Exhibit-4a (shirt) was stained with few and large and
small blood staines.
(ii) Exhibit-4b (Pants) and exhibit-4c (Banian), exhibit-
5a (Lady's shirt) and exhibit-5b (salwar) were stained
with few medium and small blood stains.
5. Blood was detected in exhibit-6 (blood).
6. Exhibit-7a (Lady's shirt) and exhibit-7b (salwar) were
stained with several large and small blood stains."
Results of serological analysis of blood
Sr. No. Name of exhibit Origin Group
1. Bed sheet Human Inconclusive
1b. Cap Human Inconclusive
2. Cotton wool swab Material
Disintegrated
3. Scissor piece Human Inconclusive
4a. Shirt Human Inconclusive
4b. Pants Human Inconclusive
4c. Banian Human Inconclusive
5a. Lady's shirt Human Inconclusive
5b. Salwar Human Inconclusive
7. Blood Human Inconclusive
7a. Lady's shirt Human Inconclusive
7b. Salwar Human Inconclusive
"x x x x
Description of parcel(s) and condition of seal(s)
Received two sealed parcel(s) from Serology Division on
12.1.12. The seal(s) were intact as per the following note..
Description of article (s) contained in parcel(s)
Parcel No. and seal Description of parcel(s)
No. impression
3 Three seals It contained OPC and exhibit-3
of SERO Exbt-3: One detached blade of scissors with
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FSL (H) yellow metallic grip about 129 cm.
8. Five seals of It contained one detached blade of scissors with
OP yellow metallic grip about 27 cm and nut bolt.
The blade is marked exhibit-8(a) and nut bolt is
marked exhibit-8(b).
Laboratory Examination
Detached blades with grip of scissors marked exhibit-3,
8(a) and nut bolt marked exhibit-8(b) were examined physically
and under optical microscope. The following observations
were made.
1. The blade along with grip marked exhibit-3 and 8(a)
were having similar physical parameters, physical and
microscopic appearance.
2. Blades along with grip marked exhibit-3 and 8(a) were
physically fitted among each other through the nut bolt marked
exhibit-8(b).
Based on the above examination and observation following
opinion is given.
Opinion
Detached blades marked exhibit-3 and 8(a) could be the part of
the same scissor."
44. Though, a reading of the opinion, as made on the examined
items reveals, that no conclusive opinion was made by the Serologist
concerned, to the effect, that blood stains occurring on the incriminatory
items being compatible with the blood stains of the deceased. However, the
said inconclusivity is also of no worth, nor therebys the prime unblemished
ocular account rendered vis-a-vis the crime event by PW-1, rather looses its
evidentiary vigour.
45. The reason for so stating arise from the factum, that unless the
blood group of the deceased, as detailed in the FTM card, appertaining to the
deceased, thus became supplied by the family members of the deceased to
the investigating officer concerned, whereafters upon the latter sending the
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said supplied FTM card to the Serologist concerned, thus resulted in
therebys the Serologist concerned, becoming facilitated to make able inter se
matchings.
46. Therefore, in the above event, if there was but a facilitation to
the Serologist concerned, to either (a) declare that there were wants of
apposite compatible matchings or (b) he may have been led to declare that
there were apposite compatible matchings.
47. However, in the wake of the Serologist concerned, rather not
being purveyed the supra FTM card, thus he became precluded to make any
effective apposite compatibilities, whereupons the apposite inconclusivity of
opinion, rather cannot be construed to be a conclusive exculpatory opinion.
On the contrary, if the supra facilitations became purveyed to the Serologist
concerned, whereupon his becoming led to make a worthy exculpatory
opinion, thereupon, the effects of rendition of any unblemished ocular
account, may become construed to be unworthwhile, but yet subject to
through adduction of further proof by the accused-appellant, that none other
than the clothes whereons blood stains existed, were at the relevant time,
thus adorned by the deceased.
48. Reiteratedly since there is no evidence on record, thus detailing
that the family members of the deceased, supplied to the investigating
officer concerned, the FTM card of the deceased, for therebys the Serologist
concerned, becoming well facilitated to make the apposite matchings.
Resultantly, the effect thereof, is none other than that there was lack of
complete matchable material available with the Serologist concerned.
Moreover, reiteratedly the further effect thereof, is that, the lack of
conclusivity of opinion by the Serologist concerned, about the blood stains
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occurring on the incriminatory items either belonging or not belonging to the
deceased, but is of no firm exculpatory significance, nor therebys the
rendition of an unblemished ocular account vis-a-vis the crime event by PW-
1 rather looses its evidentiary tenacity.
49. In nutshell, there is vis-a-vis the crime event thus inter se
corroboration inter se the rendered ocular account with the medical account,.
50. Moreover, the argument raised by the learned counsel for the
appellant that since at the time of the commission of offence, he was a
juvenile, and, as such he was required to be tried by the Juvenile Justice
Board concerned, is also of no consequence, nor the supra argument raised
by the learned counsel for the appellant, that since no effective order became
passed by the learned trial Court concerned, on the relevant motion, therebys
the trial is vitiated, is also of no telling exculpatory effect. The reason for
stating so, becomes generated from the factum, that as a matter of fact, on
the relevant motion, a conclusive and binding declining order became
recorded on 15.3.2013, by the learned trial Judge concerned, wherebys the
appellant is estopped from making any oral challenge to the said passed
order. In summa, this Court finds no gross perversity or absurdity in the
appreciation of the adduced relevant evidence, as became made by the
learned trial Judge concerned.
Final order
51. The result of the above discussion, is that, this Court does not
find any merit in the instant appeal, and, is constrained to dismiss it.
Consequently, the appeal is dismissed. The impugned verdict of conviction,
as becomes recorded upon the convict-appellant, by the learned convicting
Court, is maintained, and, affirmed. Moreover, the consequent thereto order
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of sentence is also affirmed. If the convict is on bail, thereupon, the sentence
as imposed upon him, be ensured to be forthwith executed by the learned
trial Judge concerned, through his forthwith drawing committal warrants.
The case property be dealt with, in accordance with law, but after the expiry
of the period of limitation for the filing of an appeal.
52. Records be sent down forthwith.
53. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
November 14th, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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