Amitav Kumar Gupta, J.@mdashAll the above appeals are taken up together for hearing as they have arisen out of the common judgment and order of conviction dated 05.02.2003 and order of sentence dated 07.02.2003 passed by learned XI Addl. Judicial Commissioner, Ranchi in S.T. Case No. 261/1997 whereby and whereunder the appellants were convicted for the offence under Sections 302 and 34 of the Indian Penal Code (for short ''I.P.C.) and were sentenced to undergo imprisonment for life and for the charge under Section 364 of the I.P.C. they were also sentenced to undergo R.I. for seven years and R.I. for three years under Section 201 I.P.C., however no separate sentence was passed under Section 120B I.P.C.
2. The case of the prosecution is based on the fardbeyan of the informant, Parwati Devi (P.W. 8) recorded on 28.08.1996 in presence of Kailash Prasad (P.W. 10), Officer-in-charge, Khelari PS. wherein she narrated that on 27.08.1996 at 8 P.M. her husband, Narayan Sao(deceased) came home after his duty, at Khelari PS.; that at that time, co-villagers, Gopal Sao (appellant) and Laxmi Sonar (appellant) came and asked her husband to accompany them for eating and drinking but her husband expressed his unwillingness, however, both the appellants persuaded him to accompany them. That her husband went with the appellants but he did not return in the night which aroused her anxiety and in the early morning she along with her devar (brother-in-law), Parash Nath Sahu (P.W. 4) and her brother, Ram Sevak Sah (P.W. 5) went in search of her husband to the house of Laxmi Sonar; she enquired from Laxmi Sonar and Gopal Sao about her husband who told her not to worry as her husband had gone to the house of Silsin sao @ Narain Sao (appellant) for taking liquor. The evasive reply by Laxmi Sonar and Gopal Sao aroused her suspicion whereupon she went in search of her husband, to the house of Silsil Sao @ Narain Sao, but Silsil Sao @ Narain Sao was not present at his house. That she entered the house of Silsil Sao @ Narain Sao and found that the room was freshly wiped and cleaned and there were blood stains in the room and she saw the cream colour plastic shoes of her husband lying in the corner of the room.
The informant stated that she made enquiry from the villagers whereupon she learnt that a few days back Dwarika Sao(appellant) had organised a feast in his house where Gopal Sao, Jetha Sao and Laxmi Sonar were present and after eating and drinking they had made plans to kill her husband.
It is alleged by her that Gopal Sao, Laxmi Sonar, Silsil Sao @ Narain Sao, Jetha Sao and Dwarika Sao in conspiracy with other associates had taken away her husband and after making him take liquor had killed and hidden the dead body of her husband. It is stated that she returned home whereas (P.W. 4) kept searching for her husband. It is alleged that her husband as a Chowkidar of Khelari police station was instrumental in getting Gopal Sao and Laxmi Sonar arrested in the case of gun and revolver looting of one Parmar Sahab and he had also got Silsil Sao @ Narain Sao arrested a year and half back in a case of illicit liquor, due to which they had conspired and murdered her husband.
On the basis of the said fardbeyan, Khelari P.S. Case No. 82/1996 dated 28.08.1996 under Sections 364/302/201/34 and 120B I.P.C. was registered.
3. During investigation, accused-appellants-Silsil Sao @ Narain Sao and Laxmi Sonar were arrested and they confessed their guilt, whereafter the dead body of Narayan Sao and other articles namely, tangi blood stained mat etc. were recovered; that the inquest report was prepared and the dead body was sent for post-mortem examination. On completion of investigation charge-sheet was submitted and cognizance taken whereafter the case was committed to the court of Sessions. The case was transferred for trial and disposal to the court of Addl. Judicial Commissioner (XI), Ranchi. Charges were framed under the aforesaid Sections and explained to the accused to which they pleaded not guilty and claimed to be tried. In course of trial, the prosecution examined 12 witnesses.
Ext. 1 is the signature of (P.W.-2) Satyadeo Sahu on the seizure list of one pair of plastic shoe; Ext. 1/1 is the signature of P.W.-2 on the seizure list of blood stained soil; Ext. 1/2 is the signature of P.W.-2 on the seizure list of half burnt straw and blood stained soil; Ext. 1/3 is the signature of P.W.-2 on the seizure list of blood stained clothes belonging to accused Silsil Sao and tangi Ext. 1/4 is the signature of P.W.-2 on the seizure list of blood stained mat; Ext. 1/5 is the signature of P.W.-2 on the seizure list of sack; Ext. 1/6 is the signature of P.W.-2 on the seizure list of blood stained Banyan(vest) and underwear belonging to accused Gopal Sao; Ext. 2 is the signature of (P.W.-3) Rajendra Prasad on the seizure list of shoe; Ext. 2/1 is the signature of P.W.-3 on the seizure list of half burnt straw and blood stained soil; Ext. 2/2 is the signature of P.W.-3 on the seizure list of blood stained mat; Ext. 2/3 is the signature of accused Lakshmi Sonar on the seizure list of blood stained mat; Ext. 2/4 is the signature of P.W.-3 on the seizure list of blood stained clothes; Ext. 2/5 is the signature of accused Jetha Sao on the seizure list of blood stained cloth; Ext. 3 is the signature of (P.W.-4) Paras Nath Sah on the carbon copy of inquest report; Ext. 3/1 is the signature of P.W.-4 on the seizure list of sack; Ext. 4 is the signature of (P.W.-5) Ram Sevak Sah on the fardbeyan; Ext. 4/1 is the signature of P.W-5 on the carbon copy of inquest report; Ext. 5 is the signature of (P.W-6) Mani Sao on the seizure list of blood stained soil; Ext. 5/1 is the signature of P.W-6 on the seizure list of blood stained yellow colour banyan, an underwear and blood stained tangi; Ext. 6 is the post-mortem report; Ext. 7 is fardbeyan; Ext. 8 is the formal FIR; Ext. 9 is seizure list of a pair of plastic shoes; Ext. 10-the seizure list of blood stained soil; Ext. 11-seizure list of half burnt blood stained straw and blood stained soil; Exts. 12 and 13 are the confessional statement of appellants-accused Silsil Sao and Laxmi Sonar; Ext. 14-the seizure list of blood stained yellow colour banyan (vest) and underwear and blood stained tangi; Ext. 15-the seizure list of blood stained mat; Ext. 16-the carbon copy of inquest report; Ext. 17-seizure list of sack; Ext. 18-seizure list of blood stained red colour cloth and banyan (vest) and under wear and Ext. 19 is the statement of P.W.-1 under Section 164 Cr.P.C.
4. On closure of prosecution case statement under Section 313 Cr.P.C. of the accused was recorded and the defence is of complete denial.
The defence examined three witnesses namely D.W-1 Mahendra Prasad, D.W-2 Rameshwar Sah D.W-3 Ram Kumar Sah.
On the basis of the evidence and materials on record, learned trial court found the appellants guilty of the aforesaid charges and convicted them by the impugned judgment and order.
5. Mr. B.M. Tripathy, learned Sr. counsel appearing on behalf of appellant, Gopal Sao has assailed the impugned judgment and submitted that P.W.-1(Bhagwania Mundain) has been declared hostile; P.W. 4(Paras Nath Sao) has stated that he did not tell the police that appellant, Gopal Sao was present in the house of appellant- Laxmi Sonar when they enquired from him the whereabout of the deceased, Narayan Sao; that P.W. 5(Ram Sevak Sah), in paragraph 21 of his deposition, had stated that there was normal talks between the deceased and the appellants as such the charge of abduction or kidnapping has not been established; that P.W. 6(Mani Sao) has stated in paragraph 14 that the informant had told him that Silsil Sao @ Narain Sao and Laxmi Sonar had taken away the deceased-Narayan Sao; that P.W. 8 (Parwati Devi), the informant has stated in paragraph 5 of her deposition that when P.W. 10 (Kailash Prasad) i.e. the Investigating Officer threatened P.W. 1 then P.W.-1 disclosed about the occurrence. It is further submitted that since P.W. 1 has not supported the case of the prosecution the evidence of P.W. 8 remains unsubstantiated; that P.W. 8 has admitted in paragraph 13 of her testimony that the house of the appellant - Gopal Sao is adjacent to her house thus it is surprising that she never asked the appellant regarding the whereabout of her husband on the same night; that P.W. 8 admitted that Mahendra Prasad, a doctor in Malaria department, is a tenant in her house since last three years and Dr. Mahendra Prasad (D.W. 1) has stated that the deceased was killed by the members of Maoist Co-ordination Committee (MCC-extremist organisation); that the witnesses have made contradictory statement by making improvements in their statement under Section 161 Cr.P.C. and the P.W. 11, the Investigating Officer has stated that the witnesses did not make the statements under Section 161 Cr.P.C. accordingly, the trustworthiness of the testimonies of the witnesses is doubtful. It is argued that D.W. 1(Mahendra Prasad), D.W. 2(Rameshwar Sao) and D.W. 3(Ram Kumar Sah) have stated that informant''s husband was killed by the members of MCC as they considered the deceased to be a police informer; that the learned trial court failed to appreciate the facts as pointed out above and the prosecution has failed to produce the seized articles and no F.S.L. report was produced to show that blood stained banyan (vest) and underwear alleged to be seized from the house of the appellant contained human blood; that the prosecution has failed to prove the charges beyond reasonable be against the appellant-Gopal Sao, hence the impugned judgment is fit to be set aside and appellant Gopal Sao should be acquitted.
6. Learned counsel appearing on behalf of appellants-Jetha Sao and Dwarika Sao, while adopting the aforesaid argument has submitted that none of the witnesses have named that these appellants had any role to play in the alleged crime and (P.W. 1), who is the sole eye witness has not supported her statement made under Section 164 Cr.P.C; consequently there is no material on record to fasten the charges against the appellants and the appellants should be exonerated of the charges.
7. Learned Sr. counsel, Mr. A.K. Kashyap appearing on behalf of appellant- Laxmi Sonar and Silsil Sao has contended that the entire case is based on circumstantial evidence as P.W. 1, the eye witness has not supported the prosecution''s case; that no material evidence has been brought forth by the prosecution to prove that these appellants were last seen with the deceased at the house of appellant- Silsil Sao. It is argued that the confessional statement was simultaneously recorded by the police and the said statement does not come within the purview of Section 27 of the Evidence Act as the relevant portion regarding the discovery of the dead body on the basis of the confessional statement of the appellants has not been marked out; that in fact the entire confessional statement has been considered by the learned trial court which is hit under Section 25 and 26 of the Evidence Act and inadmissible under Section 27 of the Evidence Act; that it is settled law that when discovery has already been made then there cannot be any rediscovery. It is further submitted that the witnesses in whose presence the extra-judicial confession was made have not been examined which shows that the confessional statement was forcibly recorded by police; that P.W. 10 Kailash Prasad, the Officer In-charge, Khelari P.S. has stated that he does not know whether the witnesses in whose presence the accused had made confessional statement have been cited as witnesses or not. It is further submitted that the learned trial court has erred in law by placing reliance on the statement of P.W. 1 recorded under Section 164 Cr.P.C. as P.W. 1 has categorically stated that she had made the statement on threats and was tutored by the police and suggest to this effect has also been given to P.W. 11, the Investigating Officer, who has stated in paragraphs 22 and 23 of his testimony that P.W. 1 was sent in the company of A.S.I, Puroshottam Singh of Khelari police station; that the said statement has not been recorded in accordance with the provision of Section 164 Cr.P.C. and the reliance placed on by the learned trial court on such statement is against the provision of law and hence the conviction of this appellant is fit to be set aside.
8. On the other hand, learned A.P.P. appearing for the State has contended that though P.W. 1 (Bhagwania Mundain) has resiled from her statement made under Section 164 Cr.P.C. but the Judicial Magistrate (P.W. 12) who recorded the statement of P.W. 1 has stated that he had recorded the statement under Section 164 Cr.P.C. which is admissible; that the same is corroborated by other evidence on record. He has further submitted that P.W. 8, the informant has supported her statement as made in the F.I.R. stating that the appellants, Laxmi Sonar and Gopal Sao had taken her husband and this has been supported by P.Ws. 4 and 5. That the deceased, Narayan Sao had gone with the appellants- Laxmi Sonar and Gopal Sao and subsequently he was killed by the appellants at the house of P.W.-1 the mistress of appellant Silsil Sao; that P.W.-3, 4, 5 and 8 have stated that Laxmi Sonar and Gopal Sao had told them that the deceased was having liquor at the house of appellant, Silsil Sao @ Narain Sao. That P.Ws. 4, 5, 8, 10 and 11 have stated that they found blood stains in the room which was freshly cleaned and wiped and the shoes of deceased was recovered from the room. That the appellant, Silsil Sao @ Narayan Sao and Laxmi Sonar had confessed before the witnesses that they had killed the informant''s husband and thrown the dead body in a well in Kumar Patra jungle. That on the disclosure statement of the appellants the dead body of the deceased was recovered from the well of Chetlal Sao and inquest report was prepared; that the dead body was kept in a sack (gunny bag) which was seized in presence of witnesses; that there is complete chain of circumstantial evidence to establish the fact that the informant''s husband was taken away by the appellant, Laxmi Sonar and Gopal Sao and in pursuance to a conspiracy of all the appellants as per the extra judicial confessional statement of the appellants, they killed the informant''s husband; that on the basis of the confessional statement the tangi, the weapon used for killing the deceased was recovered and half burnt straw, blood stained earth and blood stained (vest) banyan and underwear of the appellant Silsil Sao and the dead body of the deceased were recovered; that the seizure list witnesses have also supported the seizure of blood stained gamchi, banayan, underwear from the house of appellant, Gopal Sao; that the witnesses have supported the seizure and the recovery of dead body from the well, of the dilapidated house of which Chetlal Sao was the care-taker. It is contended that in the fardbeyan the alleged motive for killing was because the deceased was instrumental in the arrest of Laxmi Sonar and Gopal Sao in connection with looting of revolver and gun from the house of Parmar Sahab in connection with Khelari P.S. Case No. 78/1995 which is supported by P.W-11, Investigating Officer, in paragraph 65 of his testimony; that the deceased was also instrumental in sending the appellant, Silsil Sao @ Narayin Sao to jail in connection with illicit liquor case; that the deceased was last seen with the appellants Laxmi Sonar and Gopal Sao whereafter his dead body was discovered on the basis of confessional statement of the appellants Laxmi Sonar and Silsil Sao; that the learned court below has scrutinized the evidence and convicted the appellants on the basis of the materials on record. It is argued that the impugned judgment and order requires no interference by this Court.
9. On perusal of the judgment of the trial Court it appears that the trial court has considered the recovery of the dead body, blood stained mat and clothes of the accused/appellant, on the basis of the confessional statement of the appellants Laxmi Sonar and Silsil Sao and considered the statement under Section 164 Cr.P.C. of P.W.-1 Bhagwania Mundain and found the evidence reliable and convincing and convicted the appellants by the aforesaid impugned judgment.
In light of the findings of the trial court and the arguments of the learned counsels there is mixed question of legal issues and facts, the question to be answered and adjudicated are whether the confessional statement of the appellants Laxmi Sonar and Silsin Sao @ Narayan Sao amount to extra-judicial confession? Whether the confessional statement leading to discovery of fact, place of hiding of the tangi, the clothes and blood stained mat, dead body etc. is admissible under Section 27 of the Evidence Act? Whether statement under Section 164 Cr.P.C. of P.W-1 is admissible? Whether the prosecution has been able to establish the chain of events to show that the appellants in pursuance to a conspiracy had abducted the deceased and thereafter killed him?
These legal issues have to be considered in the backdrop of evidence and emergent fact to determine whether the impugned judgment is sustainable in law and on facts of the case and evidence on record.
10. It is evident that the foundation of impugned judgment as well as the prosecution case hinges on the confessional statement of appellants-Laxmi Sonar and Silsil Sao. The trial Court has admitted the confessional statements-Exts. 12 and 13 without giving any cogent reasons regarding the admissibility of such confessional statements as legal evidence.
11. It is well settled that confessional statement of the accused before the police is inadmissible and Section 25 and 26 of the Evidence Act places a bar on such confessional statement recorded by the police. The confessional statement is admissible if it is voluntarily made and the duty is cast on the prosecution to prove that the confessional statement was voluntary because in Section 24 of the Evidence Act the word used is "-- if the making of confession ''appears'' to have been caused by inducement, threat or promise ---". The word ''appears'' used in the provision has been inserted to provide a safeguard in the interest of accused and it signifies that if it appears to the Court from the circumstances that a confession is not voluntary it must be rejected. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, if the same is to be relied upon solely for the purpose of seeking a conviction. This being the well settled proposition of law it is apparent that the trial court has not recorded a finding that the confessional statements were voluntarily made in accordance with the prescribed procedure of law.
12. It is evident that the doctor i.e. P.W.-7, who conducted the post-mortem (Ext-6) found following ante-mortem injuries:--
"(i) Incised wound 14 x 3 cm x bone deep on the front part of neck situated transversally cutting the soft tissues, blood vessels trachea, oesophagus, fifth and sixth cervical vertebra completely, spinal chord and 3rd and 4th spinal vertebra partially. On inspection of the wound, the vertebra was cut at 4 places indicate spec minimum 4 blows. There was infiltration of blood and blood clot into soft bony tissues at the site of cut injury. The doctor also found lacerated wound 2 x 1 cm x soft tissues and 2.5 x 1 c.m x soft tissues over left forehead."
In the opinion of the doctor, the incised wounds were caused by heavy, sharp cutting weapon and lacerated wounds by hard and blunt substance.
Death was due to shock and hemorrhage as a result of the above noted incised wounds and the time elapsed since death was 18-48 hours. Admittedly the deceased met a homicidal death.
13. The prosecution case, as narrated by P.W.- 8 in the fardbeyan (Ext-7) is that on enquiry from the villagers, she learnt that a few days back, the appellant Dwarika Sao had arranged a feast at his house, which was attended by appellants. Gopal Sao, Jetha Sao and Laxmi Sonal and other associates who had consumed liquor and they had planned to kill her husband, Narayan Sao (the deceased) and she was of the firm belief that all the appellants, in conspiracy with other associates had kidnapped her husband and after giving him liquor had killed him and hidden the dead body somewhere.
P.W.-10 officer-in-charge and P.W.-11 investigating officer has deposed that confidential information was received at 8:40 am on 28/08/1996, that the deceased had gone out with the appellants Gopal Sao and Laxmi Sonar but had not returned home and on the said information a station diary entry was made and they went to the house of the deceased and recorded the statement/ferdbeyan of P.W.-8.
P.W.-11 (investigating officer) has deposed that after recording the fardbeyan of P.W-8 he recorded the statement of P.W-5 and inspected the place of occurrence i.e. the house of P.W.-1 which is in possession of appellant- accused Silsil Sao. P.W.-10 has deposed that the fardbeyan was recorded in the presence of P.W.-5, Ram Sewak Sao and one Sitaram Sao and he had handed over the investigation to P.W.-11. P.W.-10 stated that in the presence of P.W.-2 and P.W.-3, he seized one pair of cream colour old plastic shoes vide seizure list, (Ext-9) prepared by him; that in the presence of P.W.-6 and P.W.-2 the seizure list of blood stained earth was prepared and from the south west of the place of occurrence and in the presence of P.W.-2 and P.W.-3 the seizure list was prepared of half burnt blood stained straw and blood stained earth from the maize field; that at 11:50 am he got confidential information that appellants Laxmi Sonar and Silsil Sao were fleeing away whereupon he along with the police force chased and apprehended the appellant; that the confessional statement of appellants Silsil Sao and Laxmi Sonar was recorded by him at 12:15 p.m. and 1 p.m. respectively, in the presence of villagers Prayag Sahu, Triveni Sahu and Prabhat Kumar Sahu; that the appellants confessed their guilt detailing the commission of the crime; that Silsil Sao disclosed that he had hidden his blood stained baniyan (vest) and underwear and the tangi which was used to kill the deceased, in the maize field and also disclosed regarding hiding of the dead body in a well.
P.W.-10 has stated that at 1 p.m. appellant Laxmi Sonar''s confessional statement was also recorded and he admitted that the deceased had got him arrested in Khelari PS. case No. 78 of 1995 in connection with looting of the gun of Parmar Sahab and after his release from jail he made plans for killing the deceased and appellant Laxmi Sonar disclosed that a week earlier they had made plans at the house of appellant Dwarika Sao. That they had served substantial amount of liquor to the deceased whereafter appellant Silsil Sao @ Narain Sao had given a tangi blow on the neck of the deceased thereafter appellant Gopal Sao had also assaulted the deceased with the same tangi due to which the deceased died. Both the accused-appellants confessed that they had put the dead body in a sack and after tying it to a bamboo pole they had carried the dead body and kept it in the well of the house of which Chetlal Sah is the care taker.
P.W.-11 had inspected the house of P.W.-1 which comprised of three rooms-the room facing west was locked, the other room was facing north and adjacent east to this room was another room which was used for cooking. That the room facing north was the place of occurrence and he found that though the room appeared to have been recently cleaned but blood stains were visible. That attempt had been made to scrap and erase blood stains on the wall. P.W.-11 deposed that it was in this room, the mat was laid and the deceased alongwith the appellant had consumed liquor. The shoes of the deceased were found in the north western corner of the said room which was seized along with the blood stained earth. He deposed that if the door of this room was kept open then the happenings in the room can be witnessed from the north western side. That, on inspection/of the nearby place, he found half burnt straw and blood stained earth.
14. From the fardbeyan of the informant, it is evident that she has narrated regarding the conspiracy which was hatched a week prior to the murder of her husband in the house of Dwarka Sao
There is no explanation as to from whom the informant (P.W. 8) had got the information of the said conspiracy neither P.W.-11 examined any witnesses to justify or ascertain this aspect of the fardbeyan. Apparently no witness has come forward to testify that any information of such conspiracy was given by any person either to the police or the informant P.W-8.
P.W-8 in her deposition has stated that P.W-10 had recorded her statement and then they went to the house of P.W.-1. That on the threats of the police P.W.-1 had disclosed that the appellants had killed her husband. This testimony of P.W-8 reveals that P.W.-1 had disclosed the names of the appellants and about the occurrence to P.W.-11 prior to the arrest of the appellants Laxmi Sonar and Silsin Sao by the police. P.W.-11 in cross-examination (para 63) has stated that P.W-8 had, in her statement under Section 161 Cr.P.C. stated that on enquiry by P.W-8, P.W-1 had told her that the appellant after making her husband drink liquor had assaulted her husband with tangi and killed him in the night of 27/28.08.1996. That they had packed the dead body in a sack, and after tying it to a bamboo pole had thrown it in the well of Chetlal Sah, situated at Patra.
15. This admission by P.W.-11 that P.W. 8 had made such a statement under Section 161 Cr.P.C. falsifies the statement of P.W.-11 that he did not find P.W.-1 on his first two visits at 11 hours and 13:30 hours and finally met her at 18:40 hours when he recorded her statement. It is admitted by P.W-8 in her deposition that when Laxmi Sonar told her that her husband had gone to eat and drink at the house of appellant Silsil Sao then she went there and she met P.W.-1 who initially expressed her ignorance regarding her husband''s whereabouts, whereafter, P.W-8 was returning home and on the way, she met P.W-8 who recorded her statement and they went to the house of P.W.-1, who was threatened by the police and due to the threats and fear P.W-1 disclosed the fact of killing of her husband by the appellants as admitted in para 63 by P.W.-11 as noticed above; P.W.-11''s testimony is that on inspection he found that the north facing room was the place where the mat was laid down and the accused/appellants had consumed liquor. This shows that P.W.-11 had prior information and knowledge that the deceased and the appellant had consumed liquor while sitting on the mat and source of information could only be the disclosure made by P.W-1 which can be gathered from the statement of P.W.-1 under Section 164 Cr.P.C. wherein there is narration that a week prior to the occurrence, appellant Dwarika Sao had organised eating and drinking feast along with all the appellants where they had made plans to kill chowkidar Narayan Sao i.e. the deceased husband of the informant.
16. As noticed P.W-8 in her fardbeyan disclosed the fact about the feast at Dwarika Sao''s house a week prior to the commission of murder of her husband. As discussed P.W-8 has not disclosed the source of such information neither has P.W-11, made efforts to examine any villagers who had disclosed about the feast organised at appellant Dwarika Sao''s place where the appellants had assembled and conspiracy was hatched for killing of the P.W.-8''s husband (the deceased). Thus the presumption and inference can be drawn that the theory of conspiracy which had been disclosed in the statement under Section 164 Cr.P.C. of P.W.-1 or the confessional statement of the appellants must have taken recorded place prior to recording of the fardbeyan of P.W.-8. The evidence of P.W.-8 and the admission of P.W.-11 in para 63 shows that the knowledge of the dead body of the deceased and other articles were not solely on the basis of confessional statement of the appellants.
17. The essence of Section 27 of the Evidence Act is based on the principle that the information must be the cause of the discovery and the information must relate to a fact not otherwise known by the police. It has been held in State of Haryana v. Gaghseer Singh AIR 2003, SC 4377 (4381-82) that where the dead body was recovered on the basis of information already known, the evidence of recovery cannot be relied upon. It is settled legal position that the information must be the cause of recovery and not on the basis of confirmation of an already known fact. In other words, the information must relate to a fact not otherwise known to the police.
18. It is settled principle that there are certain conditions for application of Section 27 of the Evidence Act. Firstly, the accused must be in the custody of a police officer. Secondly he must give an information to the police. Thirdly, there must be discovery of a fact. Fourthly, the information must relate to the fact discovered. Fifthly, the fact discovered must be one which was not within the knowledge of the police and knowledge of the fact was for the first time derived from the information given by the accused. Broadly speaking Section 27 embodies what is known as the doctrine of confirmation by subsequent event and for invoking the provision of Section 27, it must be proved that a fact was discovered in consequence of the information furnished by the accused.
19. On scrutiny of the evidence, as brought on record in the foregoing paragraphs, it is admitted by the investigating officer that P.W.-8 had, in her statement under Section 161 Cr.P.C. told him that P.W.-1 had disclosed the involvement of the appellants and it is on record as per the deposition of P.W.-8 that police had gone with her to the house of P.W.-1 who on threats had disclosed about the killing of the informant''s husband by the appellants and the statement under Section 164 relied on by the court below bears graphic details of the commission of crime and of stowing of the dead body by the appellants.
20. The Supreme Court in the case of
21. The confessional statement of the accused before the police is hit under Section 25 and 26 of the Evidence Act. In the instant case, the evidence of P.W.-10 and P.W.-11 as well as other witnesses shows that the appellant accused had made statement in the presence of the police before the villagers. The said statement was made during investigation and the appellant had already been named as the accused. It is settled law that custody does not necessarily mean custody after arrest but it is inclusive of a state of affairs in which the accused has come into the hands of a police officer or has been under some form of surveillance or restriction on his movements by the police. Thus if the accused persons is present before the police and cannot depart at his own free will this amounts to custody of the police.
22. Apparently the facts and circumstances and the testimony of witnesses reveals that the extra judicial confession was made by the appellant in the presence of police.
23. It is settled proposition of law that extra-judicial confession is a weak piece of evidence and though it is possible to base a conviction on the basis of extra judicial confession, the confessional statement must be proved like any other fact and value thereof depends upon veracity of witnesses to whom it was made.
24. In this connection, P.W.-10 has stated that the confessional statement of the appellants were recorded one after another in the presence of villagers Prayag Sahu, Triveni Sahu and Prbhat Kumar Sahu. On perusal of the confessional statements, the signature of the aforementioned people are present but there is no explanation as to why the said witnesses were not examined by the prosecution. P.W.-11, the I.O., in para 49 and 51 of his cross examination has categorically stated that P.W.-3 had not stated under Section 161 Cr.P.C. that the appellants had confessed their guilt in the presence of witnesses. Likewise I.O. has admitted in para 58 of his cross-examination that P.W-5 had not made any statement under Section 161 Cr.P.C. that the appellants had confessed their guilt in the presence of the villagers. P.W.-11 has admitted that P.W-6''s statement was recorded under Section 161 Cr.P.C. as a hearsay witness. That P.W.-2 is a hearsay witness. In para 45 and 46 of cross-examination, P.W.-11 has stated that P.W.-2 did not state under Section 161 Cr.P.C. that he was also searching for the deceased and P.W.-2 was merely a witness with regard to seizure of articles. P.W.-8 though has made a statement that the appellants had confessed their guilt regarding killing of her husband in presence of villagers and dumping the dead body packed in sack along with a boulder in the well of Chetlal Sao. Admittedly P.W.-8 is a hearsay witness. There is no mention of recovery of a boulder along with the dead body in the sack. P.W.-9 has stated that when the appellants were caught, there was a crowd and in presence of the crowd, the appellants Silsil Sao and Laxmi Sonar admitted that they had killed the chowkidar but in cross examination in para 6 he has stated that he leaves his house for doing coolie work at 8 a.m. and returns at 4 p.m. and in para 10 he has admitted that on the said date he had gone to plough the field of Ram Milan Sah and had returned at 4 p.m.
25. It is the prosecution''s case that the confessional statement of the appellants was recorded by P.W.-10 and P.W.-11, between 12 p.m. and 1 p.m. P.W.-9 has admitted that on the day of occurrence he returned from work at 4 p.m.. Thus his presence at the time of recording the confessional statement of appellants is doubtful.
26. Though P.W-2 has denied that he is the cousin nephew of the deceased but P.W-8, the wife of the deceased has, in para 12 of her cross examination stated that P.W-2, P.W-3 and P.W-6 are the uncles in terms of village and tola. It is evident from the deposition of P.Ws. 2, 3, 6 that they are related to each other and there exists a kinship between them and the deceased and P.W-8.
27. P.W-4 brother of the deceased and P.W-5 brother of the informant have deposed that the villagers were present at the time the appellants confessed their guilt but the prosecution has not examined any independent witnesses regarding the extra judicial confession moreover as noticed the witnesses, in whose presence, the confessional statement was recorded have also not been examined. The veracity of the testimony of the witnesses so examined on the point of extra judicial confession is contradictory to the statements made under Section 161 Cr.P.C., attention of which have been drawn during cross examination of P.W.-11. The possibility cannot be ruled out that the said witnesses are the stock witnesses of the police.
28. P.Ws. 8, 4 and 5 have stated that they went in search of the deceased Narayan Sao, (the deceased) to the house of the appellant Laxmi Sonar and appellant Gopal Sao was also present at that time. Laxmi Sonar told P.W.-8 not to worry and her husband had gone to take liquor at the house of appellant Silsil Sao@ Narain Sao. If the appellants were involved in commission of the crime, as alleged by the prosecution, then in such a situation they would not have directed the informant to go to the house of appellant Silsil Sao because they were aware that the tell- tale traces of crime would have been discovered if the informant and witnesses visited the house of appellant Silsil Sao. This is against the normal conduct of a person who is an accomplice to the crime to point out the place where the crime was committed by him and other accomplices.
29. P.W.-8 in her fardbeyan as well as her testimony has deposed that she went to the house of appellant Silsin Sao but did not find him. That she went to the house of P.W.-1 and found blood stains in the house and shoes of her husband lying in a corner of the house. That she asked P.W.-1 about her husband who expressed ignorance about her husband whereas in her fardbeyan she has stated that she had gone to the house but she did not find Silsin Sao and she entered the house where she found one room freshly wiped. If the narration of fardbeyan is considered then it does not appear natural that a criminal would have kept the door unlocked for any person to enter and see the traces of blood stains in the house. In her deposition she has not stated that she had confronted or asked P.W.-1 regarding the presence of the shoes of her husband in the house which should have been the natural conduct of person whose husband was traceless and his shoes were present at the house of P.W.-1.
30. P.W-8, in her cross examination, in para 13 has stated that appellant Gopal Sao''s house is adjacent to her house. P.W-4, in para 11 of his cross-examination has stated that the house of the appellant Gopal Sao is situated nearby and visible to the extent that a call from his house can be heard at the house of Gopal Sao. P.W-5 has also stated that the house of the appellant is situated 50 yards from the house of his deceased brother-in-law. P.W.-4, in cross-examination in para 12 has stated that he had asked appellant Gopal Sao in the morning at 6 a.m. and the appellant had told him that his brother had not come to his house but this has not been deposed by P.Ws. 5 and 8. It is evident from the testimony of P.Ws. 4, 5 and 8 that appellant Gopal Sao''s house is near the house of the informant. In such a situation the natural conduct of P.W.-8 or 4 and 5 would have been to immediately visit the house of appellant Gopal Sao and enquire the whereabouts of her husband as the deceased had accompanied the appellant Gopal Sao and Laxmi Sonar.
31. P.W.-4 is the brother of the deceased and he has testified in his cross examination in para-9 that the police recorded his statement at his residence at 6 p.m. in the presence of his sister-in-law- P.W.-8 and P.W.-5. In para 26 and 39 of their cross examination have testified that the police had apprehended the appellant Laxmi Sonar and Silsil Sao at about 10/10:15 a.m. in para 36 he has stated that the police apprehended the appellants in his presence. In para 49 he has stated that the police recorded their confessional statement immediately thereafter. P.W.-3 has stated that on disclosure of appellant Laxmi Sonar, P.W.-1 and appellant Narayan Sao the dead body was recovered from the dilapidated well of Chetlal Sah. P.W.-8 has deposed in para 4, 5 and 6 that after recording her statement, the police went to the house of P.W.-1, who on threats and out of fear, disclosed the name of the appellants and the police then arrested the appellants Narain Sao and Laxmi Sonar, who were fleeing away. If the evidence of the aforesaid witnesses is believed then an inference can be drawn that the appellants were arrested at around 10:30 a.m. which raises a doubt regarding the claim by the I.O. about the arrest of the appellants at 12 p.m. Deposition of P.W-4, as stated above, shows that the police had confronted P.W-1 prior to the arrest of the appellants, which has also been supported by the informant, P.W-8 and corroborated by the I.O. in para 63. This further strengthens the fact that the I.O. had prior knowledge of the place where the dead body of the deceased was kept even before the disclosure statement made by the appellants.
32. The defence has given specific suggestion to P.W-11 the I.O., as per para 84 of cross-examination that the confessional statement of appellants was recorded forcibly. P.W.-11 in para 85 has admitted that he did not file any application for recording of the statement of the appellants before the Magistrate. It is settled legal proposition of law that confession made by the accused in police custody and not recorded before the Magistrate under Section 164 Cr.P.C. cannot be said to be voluntary and such statement is not a substantive evidence in the eye of law unless it is established that the confession was recorded in consonance to the procedure prescribed under the law.
33. P.W.-11, on the basis of fardbeyan (Ext-7) of P.W.-8, inspected and searched the house of P.W.-1, alleged to be in possession of the appellant Silsin Sao and seized blood stained soil and shoes as per Ext-9 and 10 in the presence of P.W.-2 and P.W.-3. P.W.-2, in cross examination has stated that he was at his house and police recorded his statement at 8 p.m. on 28/08/1996. He has also testified that he had seen the deceased wearing the cream coloured shoes and admitted that this type of shoes is available in the market and he can not say what size of shoes the deceased used to wear. P.W.-3 has stated that his house is situated 1/2 K.M. from Heslang Bazar and he had reached Heslang Bazar when the police came there. That the police recorded his statement at 4 a.m. on 29/08/1996. In para 24 of his cross-examination he has stated that if the shoes which were seized were kept along with other pairs of shoes, he would not be able to say as to which shoes belonged to whom.
34. There is no justification as to why the statements of P.W.-2 and P.W.-3 were recorded after such a long gap when they were present with the police throughout the search and seizure procedure. Such delay in recording the statement of PWs. 2 and 3, by I.O. is rather disturbing and disquieting feature of the prosecution''s case and the probability is that they are set up witnesses with a purpose to develop and suit the prosecutions'' case.
35. As discussed, P.W.-11 has deposed that in the north facing room, of the place of occurrence, the mat was laid down on which the deceased and the appellants had liquor, and on the northern wall of the said room, there is a door and if the door is kept open, the happenings in the room is visible from north western side. This description and findings of P.W.-11, when read with the statement of P.W-1 under Section 164 Cr.P.C. wherein it is narrated that on threats of dire consequences given to P.W.-1 by the appellants, P.W.-1 had fled and hid in the maize field, from where she saw the appellants assaulting the deceased and packing the dead body in a sack and after tying the sack with a bamboo stick they had carried the dead body.
36. The findings of the I.O. on the presumption that the mat was laid out and the deceased along with the appellants had liquor while sitting on the mat and the fact that activities going on inside the room was visible from the north western side i.e. the maize field as revealed in the statement under Section 164 Cr.P.C. of P.W.-1 does not display the investigative skill of P.W-11, in imagining and picturising the sequence or situation of how the crime was committed rather such incorporation by P.W-11, even prior to recording the statement of P.W.-1 or the confessional statement of appellants leads to the conclusion that P.W-11 had created a prosecution story and the finding was not due to investigative acumen of P.W-11 but it was the ingenuity of P.W-11 for purpose of developing or tailoring a story to suit the prosecutions'' case. P.W-10, the officer-in-charge in para 29 of his cross-examination has stated that after recording of fardbeyan of P.W.-8 he had handed over the investigation to P.W-11 at 10:30 a.m. and it is evident that P.W-11 had inspected the place of occurrence at around 10:30 a.m. Thus the findings as noted above points to the fact that P.W. 10 and P.W-11 had either already recovered the articles or they had prior knowledge of the place where the articles were kept. The reference of the mat being laid in the room even prior to recovery of a mat is a strong circumstance on this aspect. P.W. 10 and P.W-11 had also recovered half burnt straw and blood stained earth from the northern ridge of the maize field situated south west of the house of P.W.-1 and subsequently on the confessional statement of the appellant Silsil Sao, the blood stained clothes and tangi were recovered east of the well situated south of the house of P.W.-1, which has been marked as Ext. 14.
37. On perusal of Ext. 14, it is apparent that "the articles were recovered on the disclosure of appellant Silsil Sao had been inserted and added". P.W-11 has also stated that on the confessional statement of appellant Laxmi Sonar, the wet blood stained one old knitted mat of ''sharpat'' (reedgrass) was seized from the maize field situated north of the house of P.W.-1 (as per Ext. 15). It is evident in Ext. -15 that the words "on the disclosure of appellant", has been added later on.
38. From the evidence as discussed above, P.W.-11, without recovery of the mat, had described that the deceased and appellant had liquor while sitting on the mat and such a description, at the cost of repetition, of the manner of occurrence shows, could have only be done either prior knowledge or develop a story so as to suit the ingenuity of the police to circumvent the provisions of law for making out a case against the appellants.
39. P.W.-2 has stated that the tangi with blood stained handle and blood stained clothes of Narayan Sao were recovered from the well situated east of the place of occurrence and the wet blood stained mat of ''sarphat'' (reedgrass) was recovered from the northern side of the house of P.W.-1. On the disclosure statement of the appellant Laxmi Sonar and Gopal Sao the dead body of Narayan Sao was recovered from the well of Chetlal Saw and blood stained vest, underwear and one gamcha was recovered from the house of Gopal Sao. In cross-examination he had stated that he was also searching for the deceased but subsequently he has retracted and testified that he had not gone in search of the deceased prior to the arrival of the police. That he was with the police from 10 in the morning till 9 o'' clock at night and there were a lot of villagers also. That the well is situated to south of the maize field and the house of Debra Lohra is also situated nearby. P.W. 3 is related to P.W. 2. He has testified that on the information of the appellant Laxmi Sonar the blood stained wet mat sharpat was recovered from the maize field north of the house of P.W. 1 and they recovered the blood stained gamcha, one vest and underwear from the house of Gopal Sao. In cross-examination he admitted that he came to know of the occurrence between 7/8 a.m. on 28.08.1996 whereafter he went to Heslang Bazar at 10/10:30 a.m. A crowd of about 50-60 people who were moving with the police. He has deposed that the half burnt mat belonged to Narayan Sao as it was found beside the house of Narayan Sao and the place from where the mat was recovered is at a distance of 20-25 feet from the house of P.W.-1 and such chatai (mat) is available aplenty in the villages. He was with the police from 10:30 a.m. to 6 p.m. He has stated that the police had recorded his statement after seizing the blood stained clothes of appellant Gopal Sao at about 5:30 p.m. whereas in cross-examination he has stated that the police recorded his statement at 4 a.m. on 29.08.1996. He has nowhere stated that P.W-8 or P.W-4 and 5 were present rather in para 8 of his cross-examination his testimony is that after recovery of the dead body the police came to the house of informant at 5 p.m. P.W.-2 has not deposed that the police had recorded the fardbeyan of P.W.-8 at 10 a.m.. Neither P.W.-8, 4 and 5 were present at the time of seizure of a pair of plastic shoes. P.W. s 2 and 3 have not testified that P.W.-8 had identified the shoes as belonging to her deceased husband.
40. P.W.-6 witnessed the seizure of blood stained vest and underwear and tangi on the basis of the disclosure statement of the appellant Silsil sao @ Narayan Sao and according to him the said apparels and tangi were recovered from the maize filed situated south to the house of P.W. 1. In cross-examination he has stated that he had disclosed the names of the appellants to the police. That his house is situated 1/2 (half) a Kilometer from the house of the deceased. That P.W.-8 had told him about the occurrence at about 8 a.m. and he had told the police that he had gone to search the deceased along with P.W.-8 and around 60-70 villagers were involved in the search but he was unable to disclose the names of the persons. That he had not stated before the police that the accused had made the disclosure statement in his presence. P.W.-6 is also related to P.W.-2 and 3 as they belong to the same family and P.W.-8, as has been noticed above, has admitted that PWs. 2, 3 and 6 are related to her deceased-husband on account of village relationship.
41. On going through the evidence and deposition of PWs. 2, 3 and 6, it is evident that the blood stained tangi was recovered from near a well and P.W-2 has stated that the well is situated in the maize field which is to the south of the house and on the northern side near the maize field is the house of Debra Lohra. On the eastern side is the field of Kaila Munda, on the western side is the field of Julsi Mukhiya which has also been stated by P.W.-11. P.W-11 has stated that blood stained clothes and tangi were recovered from the well situated south of the house and blood stained wet mat of sharpat was recovered from the maize field situated north of the house. Thus it is evident that the blood stained tangi was recovered from an open place which was accessible to people. The I.O. has not testified that the said tangi was sealed after seizure neither were the blood stained clothes sealed or the blood stained mat sealed and seized. The discovery of the articles, as noticed, was from a place, which was accessible and visible and was not concealed or hidden.
42. P.Ws.-4 and 5 have deposed that on the information of the appellants, the dead body of the deceased, packed in a sack was recovered from the well of Chetlal Saw which is situated in Kumar Patra Jungle and they had signed on the inquest report and seizure list of the sack.
43. In the confessional statement of the appellants the appellants Silsil Sao @ Narayan Sao stated that he along with the deceased and Gopal Sao and Laxmi Sonar had drinks and when the deceased was in a drunken state, he gave one tangi blow on the neck of the deceased whereupon the deceased fell down on the mat whereafter appellant Gopal Sao took the tangi and gave a blow with the tangi on the neck of the deceased due to which the deceased died. Appellant Laxmi Sonar''s confessional statement is verbatim the same. The appellants have not stated about the presence of P.W.-1, at the scene of crime. P.W.-1 has been cross examined by the prosecution with regard to her statement under Section 164 wherein her attention has been drawn to her statement that appellant Narain Sao had assaulted with tangi and appellant Laxmi, Gopal and Dwarika had caught hold/of the chowkidar the deceased.
44. It would appear from the confessional statement that two blows of tangi were received on the neck of the deceased whereas in the post-mortem the doctor, has opined that the vertebra was cut at four places indicating minimum four blows and the doctor also found 2 lacerated injuries over left forehead and the lacerated injuries were caused by hard and blunt substance. Neither in the confessional statement nor in the statement under Section 164 Cr.P.C. of P.W.-1, there is any narration of assault by hard and blunt weapon. It is evident from the confessional statement that two tangi blows were given but the medical evidence speaks of minimum four blows by heavy and sharp cutting weapon. The appellants have confessed that they had put the dead body in a sack and carried it after tying it to a bamboo stick. The I.O. did not recover the bamboo stick neither is there any serological or forensic report that the blood stains found on the tangi or the clothes were of the group of the blood of the deceased. On this aspect in the decision of the Apex Court in the
"In the instant case as discussed there is no serological report that the said blood stains on the clothes, or on the mat or on the weapon belonged to the blood group of the deceased neither have the seized articles been produced in the Court"
45. In the inquest report I.O. has made an endorsement for giving a finding whether the deceased had consumed liquor before his death. In this regard no finding has been brought on record by the prosecution by way of chemical examination or of the doctor who conducted the postmortem that any traces of alcohol was found in the viscera of the deceased.
46. P.W.-11, in cross- examination has deposed that P.W.-4 and P.W.-5 had come to know regarding the entire occurrence but they had not stated about the nature of the weapon used in the inquest report. That the witnesses had opined about sharp and heavy weapon and after recording their opinion he had signed on the inquest report. P.W.-11 has admitted that in the inquest report P.W.-4 and 5 have not disclosed the names of the assailants.
On perusal of the inquest report it is apparent that it has not been noted that the apparel of the deceased was stained with blood or the sack was stained with blood.
47. In this connection, it is relevant to refer to the ratio laid down in the case of
48. Apparently P.W.-4 and P.W.-5, the witnesses to inquest report had knowledge of the involvement of the accused-appellants Laxmi Sonar and Narayan Sao @ Silsil Sao in the crime and use of ''tangi'' (axe) for assaulting the deceased but P.W.-11, as has been pointed out in cross-examination did not record the gist of the statements of the witness neither have the witnesses opined about the weapon used despite having the knowledge of the weapon used in assault.
49. As discussed above the medical evidence does not corroborate the manner of assault as narrated in the confessional statement of the appellants or if the statement under Section 164 Cr.P.C. of P.W.-1 is considered and this is fatal to the credibility of the prosecutions'' case.
50. It is settled principle of law that the statement under Section 164 Cr.P.C. cannot be treated as a substantive evidence. Moreover, P.W.-1 Bhagwania Mundain, has resiled from her statement made under Section 164 Cr.P.C. and she has been declared hostile. She has been cross-examined by the prosecution but she has denied any knowledge of the occurrence and in cross-examination she has stated that the police had tutored her for two days and threatened her to give the tutored statement. P.W-12, the Judicial Magistrate, who recorded the statement under Section 164 Cr.P.C. has admitted in his cross-examination that he did not enquire from the witness whether she was making the statement voluntarily or was making the statement after being tutored neither did he ask P.W.-1 regarding the period of her custody with the police. P.W-11 has admitted that he had sent P.W-1 with A.S.I Puroshattam Singh to the court for recording her statement under Section 164 Cr.P.C. it has already come via the evidence of P.W-8, as discussed above, that on threats and fear of police, P.W-1 had disclosed of the crime and suggestions have also been given to P.W-11 that threats were given to P.W-1 for the purpose of recording her statement under Section 164 Cr.P.C.
51. In view of the evidence of the witnesses, as discussed above the statement under Section 164 Cr.P.C. by P.W-1 cannot be considered to substantiate the prosecution''s case considering the fact that P.W-1 has resiled from her statement. Thus any discussion regarding the corroborative value of such statement will be futile.
52. The deposition of P.W-4, 5 and 8 in cross examination is that the appellant Laxmi Sonar and Gopal Sao had come and asked P.W. 8''s husband to accompany them for eating and drinking but he was reluctant. However on talks with the appellants the informant''s husband (the deceased) went out with them. In cross-examination P.W.-4 has stated that his brother (the deceased) used to go out with both the appellants who were on visiting terms and the deceased used to roam around in the village with them sometimes. That on the day of occurrence he had gone with them on being asked by the appellants. P.W.-5 has testified during cross-examination that there was normal talk between his brother-in-law (deceased) and the appellant when they had come to call him.
53. P.W.-8 has also stated that her husband (the deceased) was on talking terms with the appellants that''s why they had come and her husband had gone with them. As an after thought she has stated that the appellant Laxmi Sonar had asked her husband to accompany him to the house of Silsin Sao. However this has not been supported by P.Ws.-4 and 5. She has testified that it was a festival day and there were no arguments between the appellants and her husband and they had normal talks.
54. The evidences of P.W.-4, 5, and 8 reveal that no force or deceit was used by the appellants to compel the deceased to accompany them, as such, the ingredients for abduction, as defined under Section 362 of the I.P.C. is not made out. Thus there is no material evidence on record to establish or hold the appellants guilty for the offence under Section 364 read with 120B of the Indian Penal Code.
55. On scrutiny of the evidence of the witnesses and in view of the facts and circumstances of the case, it is clear that the prosecution''s case is based entirely on circumstantial evidence as P.W.-1, the alleged eye witness, has been declared hostile. It is well settled that the prosecution should establish the chain of circumstances so as not to leave any substantial doubt and in the opinion of the court, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility should be that the accused had committed a crime. It is settled legal position that the circumstances have to be examined cumulatively and the court has to examine the complete chain of events for determining whether all the materials sought to be established by the prosecution to bring home the guilt of the accused beyond all reasonable shadow of doubt has been brought on record. The above principle is based upon the basic cannon of criminal jurisprudence that the accused is innocent until and unless proven guilty.
56. That conviction can be based solely on circumstantial evidence provided the evidence or the chain of events when tested on the anvil of the settled principle of circumstantial evidence.
57. As discussed above, the confessional statement of the appellants before the police is hit under Section 25 and 26 of the Evidence Act. No doubt Section 27 of the Evidence Act is an exception to Section 25 and 26 and acts as a proviso to Section 25 and Section 26 of the Evidence Act, as it lays down that so much of the information given to informant is admissible which distinctly leads to the discovery of the fact is alone admissible.
58. In the case of
59. On scrutiny of the evidence, as discussed above, the conclusion arrived at by this Court is that the investigating officer prior to the recording of the confessional statement of the appellants, had already got prior knowledge of the articles recovered as discussed above and the information provided in the confessional statement by the appellants was not the immediate cause for discovery of the tangi, the mat, clothes etc. and dead body of the deceased. The sequence of events, leading to the recovery of tangi and the dead body, blood stained clothes and other articles has been analysed and discussed in the foregoing paragraphs and this Court holds that articles were not recovered or discovered in consequence of the confession of the appellants because the facts were already known to the I.O. And such statement does not come within the provisions of Section 27 of the Evidence Act.
60. Admittedly, the blood stained axe was not sealed neither were the blood stained clothes sealed. The said articles were not produced in the Court and the prosecution has failed to establish that the said blood stains were of the blood group of the deceased.
61. The prosecutions'' case is that the motive of committing murder of the deceased was because the deceased was instrumental in getting the accused/appellants arrested in a gun looting case viz. Khelari P.S. Case No. 72 of 1995 and getting the appellant Silsil Sao arrested in an illicit liquor case but the prosecution has not brought any documentary evidence on record in support of the contention and the testimony of P.Ws. 4, 5 and 8 clearly show that there existed good relationship between the deceased and the appellants Laxmi Sonar and Gopal Sao. Thus, the motive, for commission of the crime has not been proved by the prosecution.
62. In view of the discussions made above and considering the cumulative effect of the evidence and materials on record it is held that the prosecutions has not been able to establish the charges against the appellants namely, Silsil Sao @ Narayan Sao, Laxmi Sonar, Jetha Sao, Gopal Sao and Dwarika Sao beyond all reasonable shadow of doubt. Accordingly they are acquitted of the aforementioned charges.
63. The judgment of the Additional Judicial Commissioner-XI, Ranchi passed in Sessions Trial No. 261 of 1997 is hereby set aside. Appellants Silsil Sao @ Narayan Sao and Laxmi Sonar are directed to be released forthwith from custody if not wanted in any other case. Appellants Jetha Sao, Dwarika Sao and Gopal Sao are on bail and they are discharged of the liability of their respective bail bonds.
64. In the result the appeal is hereby allowed.
