Deepak Gupta, C.J.
1. This is a very unfortunate case where a man has been convicted for having committed an offence punishable under Section 302 of the IPC read with Section 201 of the IPC and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 3,000/- and in default of payment of fine to suffer simple imprisonment for three months for commission of offence punishable under Section 302 of the IPC and has been further sentenced to undergo imprisonment for one year and pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for two months for commission of offence punishable under Section 201 of the IPC, when there is no evidence against him.
2. The undisputed facts are that on 05.09.2011, the accused Nirmal Deb lodged a report with the Kamalpur police station that his wife was missing from about 9.00 am on 4th September, 2011. The FIR was lodged by none other than the mother of the accused (PW-20) and she stated that her daughter-in-law had left the house at about 9.00 am on 04.09.2011 and had not returned home. Her son had lodged a missing person report with the Kamalpur police station but on 06.09.2011 at about 11.00 am, she had come to know from one Ratansing Bhumis (PW-2) that the body of her daughter-in-law was lying in one jungle. She then went to the place of occurrence and realized that her daughter-in-law had been killed by somebody. Therefore, the FIR had been lodged.
3. The police investigated the matter and according to the prosecution story on 7th September, 2011, the accused made some confession to the effect that he had murdered his wife and also led the police party to a place where the weapon of offence (16 inch long bamboo) was kept and on the basis of this recovery of the bamboo and the confessional statement, the accused was charge sheeted. The motive given is that the appellant and his wife used to fight off and on and, therefore, the deceased was murdered. The learned trial Court relied upon the confessional statement as well as the recovery of the bamboo to come to the conclusion that the appellant had murdered his wife. Hence, the present appeal.
4. We have gone through the entire record and we are constrained to observe that the manner in which the case has been decided leaves much to be desired. It is more than apparent that the learned trial Court was not even aware of the basic principle of the law of evidences.
5. Section 25 to 27 of the Evidence Act, read as follows:
"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.
26. Confession by accused while in custody of police not to be proved against him- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. 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".
6. Section 25 of the Indian Evidence Act clearly states that no confession made to a police officer shall be proved against a person accused of any offence. Section 26 provides that no confession made by a person while he is in the custody of a police officer shall be proved against such person unless the confession is made in presence of a Magistrate. Section 27 is by way of a proviso to Section 25 and 26 and by the application of Section 27 the statement of the accused person can be split up. The portion relating to his confession remains inadmissible in evidence but the portion which leads to recovery of some other legal evidence can be used against the accused if the recovery is done in accordance with law.
7. Before the learned trial Court a number of very important judgments were cited. In State of Himachal Pradesh v. Jeet Singh, reported in , CRI.L.J.2025, the Apex Court held that the fact discovered by the police with the help of the disclosure statement and the recovery of incriminating articles on the strength of such statement can be proved and used against the accused and this will show that the accused had concealed those articles which were recovered at his instance. Therefore, even if a confession is made but that confession can be split up then the confessional part of the statement is inadmissible in evidence but the part relating to recovery or discovery for a fact can be admitted in evidence.
8. Similarly, in The Delhi Administration v. Balakrishan reported in , AIR 1972 SC 3, the Apex Court held as follows:
"The only evidence which remains is the evidence of the disclosure statements made by the accused to the Police Officers in the presence of Panch witnesses and the alleged recovery of stolen property in consequence of the disclosure statements. Section 27 of the Evidence Act permits proof of so much of the information which is given by persons accused of an offence when in the custody of a Police Officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Under Sections 25 and 26 of the Evidence Act, no confession made to a Police Officer whether in custody or not can be proved as against the accused. But Section 27 is by way of a proviso to these sections and a statement, even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against the accused in the circumstances stated in Section 27."
9. In State of Karnataka v. David Razario and another, reported in , 2002 Cri.L.J. 4127, the Apex Court has held as follows:--
"The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence At is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. V. Balakrishan , (AIR) 1972 SC 3) and Md. Inayatullah v. State of Maharashtra (, AIR 1976 SC 483). The words "so much of such information" as relates distinctly to the fact thereby discovered are very important and the whole force of the section concentrates on them. Clearly the extent to the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. 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 into 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 which is otherwise admissible becomes inadmissible under Section 27 if the information did not 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 a reliable information It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (, AIR 1947 PC 67) 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. Danu Gopinatu Shirde and Ors. , (2000)Cri.L.J.2301]. No doubt, the information permitted to be admitted in evidence is 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"
10. The Apex Court in David Razario''s judgment clearly held that Section 27 only provides for admission of that evidence which otherwise would not have been admissible under Section 25 and 26 is the one which is information leading to discovery. It has been clearly laid down in Section 27 that only that portion of the statement which leads to discovery of any fact is admissible in evidence.
11. Section 27 envisages two conditions. The first is that the statement must be made while the accused is in the custody of the police and if the statement only relates to discovery of certain incriminating material, the statement is admissible in evidence. Even if it inculpates the accused than also the statement in so far as it relates to discovery of a fact is admissible. In case the statement made while in custody comprises both a confession as well as of statement leading to recovery of certain material evidence then that part of the statement which is a confession remains totally inadmissible in evidence and what is admissible is only that portion of the statement leading to discovery of evidence. To give an example, if an accused states that he shot the deceased with a revolver and after shooting the deceased he has hidden the revolver at a particular place, the portion of the statement that he shot his wife is inadmissible in evidence but if at the instance of the accused the revolver is recovered, that portion of the statement leading to discovery of the revolver is admissible. If the prosecution proves that the bullet fired from that revolver had killed the deceased then the evidence can be used against the accused.
12. Applying these principles to the present case, we may now examine the statements of the witnesses.
13. It is not disputed that the witnesses to the so called confessional statement and the statement leading to the discovery, are PW-7, PW-8, PW-9, PW-10 and PW-11. Their statements are virtually identical on material facts and, therefore, we are only quoting the statement of PW-7 in extenso:
"I know present accused Nirmal Deb and his wife Madhumita Deb. About 6 months ago Madhumita died. One day about 6 months ago in the evening some police staff came to my house and told me to go the house of Nirmal Deb. Thereafter I went to the house of accused and some other persons of the locality also arrived in his house. Darogababu told my nephew Dulal to break the lock of the kitchen of Nirmal then he had broken the lock by a spade. Nirmal in presence of persons and the police confessed there he had given blow by a bamboo upon the head of his wife Madhumita then his wife fled towards tilla land and he did not go behind her. Nirmal Deb brought a bamboo stick from his kitchen and told that he had given blow by said stick. Darogababu seized the bamboo stick under seizure list on which I put my signature. The signature of the witness on the seizure list is marked as Ext. 5. This is the bamboo stick and seized by darogababu and also I put my signature on the said bamboo stick. The bamboo stick is marked Ext. MO 2. Accused Nirmal Deb is present and identified.
Cross: I had not given any statement to darogababu. I have seen darogababu and police staff alongwith reporter of newspaper in the house of Nirmal Deb when I arrived there. I cannot say what was written in the seizure list. Such type of bamboo stick found available in other house of our locality. It is not a fact that Nirmal Deb did not bring a bamboo stick from his kitchen or in our presence he did not tell that he had given blow by the said bamboo stick upon head of his wife. It is not a fact that darogababu collected the present bamboo stick then obtained my signature on it. It is not a fact that I deposed falsely as per dictation of darogababu".
14. The statement of PW-7 shows that police officials came to his house and directed him to go to the house of the accused Nirmal Deb. When he went to the house of Nirmal Deb, the Investigating Officer directed Dulal Sutradhar (PW-1) to break open the lock of the kitchen of Nirmal Deb. It is further stated that Nirmal Deb in presence of persons and the police confessed that he had given blow by a bamboo upon the head of his wife Madhumita when his wife fled away towards tilla land and he did not go behind her. Thereafter, Nirmal brought a bamboo stick from his kitchen and told that he had given blow with the said stick. As far as that portion of that statement which relates to confession made by Nirmal Deb that he had given blow by bamboo upon the head of his wife, is concerned, that is totally inadmissible in view of the provisions of Section 25 and 26. What could be admissible is only the statement that he had used the bamboo and if the bamboo is related to the offence that would be a circumstance against the accused.
15. From the statement of this witness, it is apparent that the police were aware even before the recovery that the so called bamboo was lying in the kitchen. The witness i.e. PW-7 was called from his house and told to go straight to the house of the accused. This clearly shows that the police officials clearly knew that some material was to be recovered from the house of the accused. Further, the Investigating Officer told Dulal to break open the lock of the kitchen which clearly indicates that he not only knew that the incriminating material was kept in the house but he also knew that it was kept in the kitchen.
16. Section 27 can only be used when it relates to discovery of a fact. A fact which is already known to the police cannot be said to be discovered. It may be that the accused may have made a similar statement to the police before he made this statement to the witnesses. If that was so, then that earlier statement should have been recorded by the police at the police station itself and thereafter on the basis of that statement recorded in the police station, the police could have proceeded to the matter. Here what has happened is that the Investigating Officer already knew that the alleged weapon of offence i.e. the bamboo stick was kept in the kitchen of the house of the accused. Most of the PWs to the recovery were called by the police official themselves.
17. PW-9 (Himangshu Sutradhar) is a neighbor and it is not clear from his statement that whether he was called or he was present there by himself. PW-9 states that he along with police staff and reporter of newspaper went to the house of the accused. PW-10 (Debojit Guharoy) and PW-11 (Amal Chakraborty) are the reporters. He stated that the darogababu and the police staff brought the accused Nirmal Deb to his house at Krishnanagar from Kamalpur police station and he also went to the house of Nirmal Deb separately. There Nirmal Deb demonstrated how he had killed his wife and this witness (PW-11) allegedly shot this entire incident on his video-camera.
18. We are shocked that the police investigating machinery can behave in such a fashion. It is no part of the job of the Investigating Officer to contact reporters of private channels and associate them with the recovery of the incriminating material. In case the police officer wants to call reporters then he should give notice to all reporters in the town and not to call one or two reporters whom he wants. The Investigating Officers would be better advised, to avoid getting reporters and if reporters are present and videography is done then the police must take steps to ensure that the provisions of the Information Technology Act and the relevant provisions of the Evidence Act relating to electronic evidence are scrupulously followed to ensure that the evidence is not been tempered with. In the present case the Investigating Officer did not seize the media on which the recording was done.
19. In the present case, assuming for the sake of argument, that the recovery of the bamboo is proved in accordance with law. What was the duty of the Investigating Officer thereafter? He had to link the bamboo with the death of the deceased. The bamboo had to be sent to the Forensic Science Laboratory to ascertain whether there were any blood stains on it. At the time of post-mortem this bamboo should have been shown to the doctors also who could have opined whether the injuries found on the person of the deceased could have been caused by such bamboo or not. The Investigating Officer did not even care to send the bamboo to the Forensic Science Laboratory. The prosecution has failed to lead any evidence worth the name to connect the so called recovered bamboo with the injury found on the person of the deceased.
20. Another important aspect is that according to PW-10, he had videographed the entire incident and when he was asked by the Investigating Officer to hand over the medium on which it was recorded, he told the Investigating Officer that he will first show the video recording on his channel and then he will hand it over to the Investigating Officer. This is not the way in which investigation is done. There and then the material should have been seized and sealed. The media on which the so called confession has been taped has not been produced in court.
21. From the facts narrated above, it is more than amply clear that either the accused himself had told the police officials where the bamboo was kept or the police had discovered it through some other sources. Whatever may be the source of information, that should have been recorded in the case diary and if it was on the basis of the statement made by the accused then his statement should have been recorded under Section 27 Cr.P.C. and thereafter they should have proceeded to the spot. In cases where the accused has to lead to discovery, the accused must walk ahead and take the police to the spot where he had hidden the item. It is not that the police points out where the item is kept and then the accused picks it up from the spot. In the present case some witnesses of recovery were straight away asked to come to the house of the accused and the Investigating Officer asked Dulal to break open the lock of the kitchen. This means that he knew where the weapon of offence was kept. Therefore, the recovery is not proved to be at the instance of the accused.
22. As far as the motive is concerned, it is alleged that the deceased was the second wife of the accused. From his first wife there was a daughter and from the second marriage there was a small three months son and that due to this there was conflict between the husband and wife.
23. We have scanned the entire evidence but we find that there is not one piece of evidence to show that on the date of the occurrence any fight took place between the deceased and the accused. Reliance has been placed on the statement of some witnesses who have stated that sometime there used to be altercation between the deceased and the accused. There is an altercation in every matrimonial home. Not one witness has stated that the altercations were of any serious nature or that there was any physical abuse involved.
24. The only relevant witness is PW-4 (Priyagopal Sutradhar) and according to him the accused on the date of occurrence was doing the work of plastering. The deceased came to the house of this witness with her newly born son, aged about 3 months and the daughter, Lovely (daughter from the previous marriage) and complained to the accused that she could not work in the house due to disturbance caused by the two children. Thereupon the accused kept his daughter with him and the deceased Madhumita went away back to her matrimonial home. In the mean time, this witness went away and when he came back he did not find the accused in his house. He, therefore, sent his nephew to the house of the accused to call him so that they could go and work at Bamuncherra and when his nephew came back, the nephew informed the witness that the accused had told him that his wife has left the house and gone somewhere and, therefore he has to look after his two children and cannot come to work.
25. We, fail to understand how this statement helps the prosecution in any manner. In fact this statement helps the accused because it shows that after he went home his wife was not present there and since he had two children to look after he could not go back and work. Not only that, next day, the accused himself lodged the missing person report with the police and it is the mother of the accused who lodged the FIR with the police.
26. This is a case based on circumstantial evidence. The law is well settled that in case of circumstantial evidence the prosecution is to link all the circumstances together to form a chain which leads to only one conclusion i.e. the guilt of the accused. In case there is any break in the link or if there is any chance of somebody else having committed the offence, then the accused cannot be convicted. As far as the present case is concerned, not even one of the circumstances, whether it is motive, whether it is recovery, whether it is confession is proved.
27. On behalf of the State, much reliance has been placed on the fact that the deceased was last seen together with the accused. There is nothing unusual about a husband and wife living together in the same house. They will obviously be last seen together in the house. The dead body was not recovered from the house but from a jungle nearby. This circumstance does not help the prosecution in any manner.
28. It is more than obvious that the Investigating Officer was totally incompetent and he did not know how to investigate the matter. We are also constrained to observe that the learned Additional Sessions Judge did not understand the provisions of the Evidence Act.
29. In view of the above discussion, we find that no case whatsoever is made out. The judgment of the learned trial court dated 10.09.2012 passed in case No. S.T.07(NT/KMP) of 2012 is accordingly set aside and the accused is acquitted. He is directed to release forthwith unless wanted in connection with some other cases.
Send down the LCRs.
