Kamlesh Charpota s/o Jeevaji vs State of Rajasthan

This criminal appeal preferred by the accused/appellant registers a challenge to the impugned judgment and order dated 24.06.2011 passed by

the learned Additional Sessions Judge, Fast Track No.2, Udaipur in Sessions Case No.6/2011 (168/09), whereby the accused/appellant has been

convicted as under:

For offence under Section 302 IPC:

Life imprisonment alongwith a fine of Rs.1000/-, in default of payment of which, the accused/appellant to further undergo simple

imprisonment for a period of one month.

For offence under Section 201 IPC:

Five years'' rigorous imprisonment alongwith a fine of Rs.1000/-, in default of payment of which, the accused/appellant to further

undergo, imprisonment for a period of one month.

The fascicule of facts, indispensable and germane to comprehend the backdrop of the prosecution, based whereupon the prosecution was set in

motion and present arraignment has been made, has its genesis and origin to the incident causing the death of Laxman, being traceable thereto.

The prosecution case unfolds with an oral information given by one Narayan Lal on 17.06.2009, at about 11:00 a.m., to the effect that on the

same day, at about 06:00 a.m., when he was going through his agricultural field to the house of his brother, Poona, he found that near Kagliya Wali

Magri, a person was lying dead. Narayan Lal stated that he went straightway to his father, Varda and told him about the dead body, whereupon

Varda alongwith the Sarpanch, Hakra Charpota, Pancha Ram Dodiyar, Amardas etc. came to the site and found that the dead body was of

Laxman son of Jeevaji Charpota.

Thereafter, the present accused appellant-Kamlesh also reached the spot and on being inquired, he initially told that he had a land dispute with

Varda, and therefore, Varda and his family members had murdered his (Kamlesh''s) brother, Laxman.

The police also came on the site and upon being asked from the family members, it was found that no reason for the incident came to their

knowledge.

The complainant further stated that Nanalal, the elder brother of Kamlesh asked him that if he had committed any wrong, then he should narrate

the same, upon which Kamlesh admitted that he had murdered his brother Laxman at some other place and the intention was that he wanted to put

the allegation of crime upon Varda and his family members. Therefore, to settle the scores with them, he had shifted the dead body of Laxman and

kept it near the house of Varda.

The FIR of the aforementioned incident was lodged at Police Station, Paanarwa and criminal case No.62/2009 under Sections 302 and 201 of

the Indian Penal Code (hereinafter referred to as ""the IPC'') was registered and the investigation commenced thereafter. The charge-sheet was

filed against Kamlesh for the offences under Sections 302 and 201 IPC and the matter was committed by the learned Judicial Magistrate, First

Class, Kotda to the learned Sessions Court, Udaipur, whereafter the hearing of the case had commenced in the Court of learned Additional

District & Sessions Judge (Fast Track) No.1, Udaipur, after the trial being transferred there. The charges were framed. The prosecution examined

23 witnesses and exhibited 34 documents. On completion of the prosecution evidence, the accused/appellant was examined under Section 313

Cr.P.C., and was confronted with all the incriminating materials brought on record. However, upon his denial to the same, the accused was made

to stand the trial.

The learned court below framed two questions for determination. Firstly, whether Kamlesh, in the night of 16.06.2009, killed his brother

Laxman Charpota by beating him with a stone; and secondly, whether Kamlesh had shifted the dead body of Laxman around 200 metres from the

house of Narayanlal situated near Kagliya Wali Magri, for implicating Varda and his family members. In totality, the learned court below had

examined the matter alongwith the aspect of extra judicial confession and the evidence of last seen, and after such ratiocination, the learned court

below has convicted the accused/appellant, as above.

Before adverting to the competing and contrasting assertions advanced, apt and expedient it would be to undertake an analysis of the evidence

on record, to the extent indispensable for the purpose of the present adjudication.

PW-1 Pancharam and PW-2 Narayanlal gave their statements, but were declared hostile by the prosecution. However, these prosecution

witnesses have indicated in their statement under Section 164 Cr.P.C., and admitted in their crossexamination that they, in fact, had informed the

police that Kamlesh had told them about the incident and the same was accordingly narrated.

PW-2 Narayan also admitted that he had seen the dead body at first and when Kamlesh had arrived at the place where the dead body of

Laxman was lying, he informed that he had in fact caused the death of Laxman.

PW-7 Poona, in his cross-examination, has stated that Kamlesh had admitted that he had in fact caused the death of Laxman, who was his

brother.

At the time of investigation, clothes of accused/appellant Kamlesh were confiscated and the stone utilized for committing the crime was also

recovered. The FSL Report was also taken. Exhibit P/8 and Exhibit P/9 indicated the place where actually the crime was committed and Exhibit

P/12 indicated the recovery of soil and stone. The recovery of blood stained soil and stone was also indicated in Exhibit P/11. The recovery was

substantiated by independent witness Hakra and Kanhaiyalal; out of which, Hakra has been produced as PW-5, and has admitted the recovery

memo. However, Kanhaiyalal has denied the recovery memo on the ground that the same was signed by him in the police station.

The recovery of blood stained stone alongwith soil and the clothes of Kamlesh as well as clothes of deceased Laxman and the place where the

dead body was later on put, were put to investigation. As per the FSL Report, which is Exhibit P/34, there was human blood on the stone, and the

place where the dead body was lying; on the clothes of the deceased; the soil around and the stone which was used for commission of the crime

alongwith the underwear of the deceased and shawl, all had ""O"" Blood Group.

The FSL Report thus indicated that the blood on the clothes of the deceased as well as the accused belonged to the same blood group. The

parameters of the evidence have to be examined in light of the law of extra judicial confession, as the matter does not have any eye witness.

The last seen evidence has been rendered by PW-12 Smt.Lalki, who has deposed in her examination in chief that she knows accused

Kamlesh and deceased Laxman and she had seen them a day earlier and while they came for lunch a day before to her house, they went away

after the lunch.

PW-13 Soma has stated that he knows Laxman and Kamlesh, and when they came to his house, he brought liquor, which was consumed by

Laxman, and thereafter, Soma went away. Thus, Soma and Smt.Lalki have rendered the last seen evidence of the previous day of the afternoon at

12:00 p.m. and 5:00 p.m.

Learned counsel for the accused/appellant however, stated that this connection of last seen with the extra judicial confession does not fulfill the

parameters of the criminal jurisprudence and should have been taken as a weak evidence by the learned court below.

Learned counsel for the accused/appellant has pointed out that the FIR was lodged with a delay, as the incident had happened on 16.06.2009,

whereas the FIR was lodged on 17.06.2009 and was submitted before the learned court below on 19.06.2009. Forty eight hours taken for the

FIR to reach the learned court below, as per learned counsel for the petitioner, was an unexplained delay.

Learned counsel for the accused/appellant also pointed out that the recovery of the stone has been shown to have been made on 17.06.2009

itself, whereas the arrest of the accused has been made on 18.06.2009.

Learned counsel for the accused/appellant has further drawn the attention of this Court towards Exhibit P/8 and has argued that Exhibit P/8,

which was pertaining to the recovery of the blood stained soil and stone, could not be believed. Learned counsel for the accused/appellant has

further stated that the evidence of Hakra and Kanhaiyalal is also doubtful.

Learned counsel for the accused/appellant also stated that the FIR contained the fact of the extra judicial confession before the police

personnel, and in fact, the complainant has specifically stated in the FIR that in presence of the police personnel, Kamlesh admitted that he had in

fact admitted to Narayanlal that he (Kamlesh) had caused the death of Laxman at some other place and for taking revenge from Varda and his

family members, such an act of shifting the dead body of Laxman near the house of Varda was committed by Kamlesh.

The narration in the FIR itself does not induce confidence as accused Kamlesh, deceased Laxman and Nanalal were real brothers and no

dispute has been attributed to Kamlesh and Varda.

The relationship of Kamlesh and Laxman has been narrated as that of normal brothers and none of the witnesses have attributed any reason as

to why the real brother of deceased Laxman would commit such a crime.

The dispute with Varda and his family members is also not so prominent so as to warrant scheming by Kamlesh to implicate Varda and his

family members, in such a manner.

Learned counsel for the accused/appellant has also drawn the attention of this Court towards Exhibit P/27, in which identification of spot of the

incident and recovery of the blood stained stone has been narrated.

Learned counsel for the accused/appellant has further shown to this Court the FSL Report, which is Exhibit P/34, which reflects that the pieces

of stones, control pieces of stones, baniyan, blood smeared soil, control soil, stone, chaddi, shawl, were sent for FSL. Learned counsel for the

accused/appellant further stated that just because the same belonged to the same blood group, the same does not mean that it would be an

absolute circumstantial evidence.

Learned counsel for the accused/appellant further reiterated that Pancharam has deposed in his examination that he did not have any

knowledge about any dispute between Kamlesh and Varda, and he did not know why the death was caused by Kamlesh and in fact, he has

admitted that he even did not know as to whether Kamlesh was the person, who caused the death of Laxman.

Learned counsel for the accused/appellant further pointed out that Narayanlal and all have specifically admitted that none of them have seen the

incident and have barely levelled allegations on the basis of extra judicial confession.

Learned counsel for the accused/appellant also shown to this Court that Narayanlal had admitted in his statement that he did not know about

any dispute subsisting between Kamlesh and Varda, and was not having any knowledge as to how and why Kamlesh had killed Laxman.

Learned counsel for the petitioner has again reiterated the evidence rendered by PW-8 Nanalal, who specifically denied that Kamlesh had told

him that he killed Laxman.

Learned counsel for the accused/appellant has further drawn the attention of this Court towards the issue of last seen also, and has pointedly

made an argument that Smt.Lalki and Soma, who are prosecution witnesses No.12 and 13 respectively, have merely deposed regarding the

brothers, namely, Kamlesh and Laxman being together on the previous day, which is not an unusual fact as both brothers in fact were in good

relationship, and admittedly, were together without any discord.

Learned counsel for the accused/appellant further points out that such deposition of the witnesses of last seen have no significance, and thus, in

the present set of facts, such deposition is a weak evidence, as the same does not point towards any unnatural circumstance, which could

substantiate the fact that Kamlesh had killed Laxman. It is quite natural that both being real brothers, were together on the previous day and none

of the witnesses have pointed out any animosity or anger or incident or any kind of discord or any reason sufficient for a person to cause death of

his real brother.

Learned counsel for the accused/appellant also drawn the attention of this Court towards the evidence rendered by PW- 17 Alkhi, the wife of

deceased laxman and in her statement, she has not made any deposition so as to substantiate the allegation levelled against Kamlesh for causing

death of his real brother, Laxman. She in fact has pleaded ignorance about the reason sufficient for the alleged incident. However, she has made it

clear that both the brothers were together at home and both were having good relationship, and therefore, she in fact has deposed that she is

confident that Kamlesh has not caused the death of Laxman, who was his (Kamlesh''s) real brother.

Learned counsel for the accused/appellant has further shown to this Court the evidence rendered by PW-22 Dr.Ramchandra Lamba, who

upon his examination by the court has deposed that injury, which has been sustained by the deceased, could have been caused even if a person fell

from the height on the stones.

Learned counsel for the accused/appellant has thus stated that there is no eye witness to the alleged incident, and admittedly, the prosecution

case travels only on the basis of extra judicial confession and the evidence of last seen.

Learned counsel for the accused/appellant further pointed out that it is clear from the evidence of Nanalal, who is also the brother of the

deceased that he has not supported the prosecution story of the extra judicial confession. The extra judicial confession has not been supported by

any of the witnesses and the FIR itself has a fact mentioned therein that the extra judicial confession was made after the police arrived at the spot,

where the dead body of deceased Laxman was lying, which makes the extra judicial confession very doubtful.

Learned counsel for the accused/appellant also stated that the last seen evidence is also not very worthy of credence, as it does not point out

anything regarding the subsisting dispute between the two real brothers, namely, Kamlesh and Laxman, which could strengthen the circumstantial

evidence for believing that the death of Laxman was caused by Kamlesh. Moreover, the fact of the brothers having good relationship is uniform,

even in the evidence of Alki, the wife of deceased Laxman, and thus, such last seen evidence virtually collapses.

Learned counsel for the accused/appellant further stated that as per the evidence of PW-23 Shivnath Singh, the investigating officer, it is clear

that there is no fact regarding the extra judicial confession having been made by the accused, after arrival of the police at the spot.

Learned counsel for the accused/appellant also pointed out that if the extra judicial confession was made in front of the police team, then there

was no reason why the arrest would have been delayed to 18.06.2009.

Learned counsel for the accused/appellant further pointed out that the stone size and the FSL Report and the Postmortem Report do not

provide any strength to the story of the prosecution.

Learned counsel for the accused/appellant has also shown from the evidence of PW-23 Shivnath Singh, the investigating officer that the

samples at Malkhana were without seal for a considerable period.

In support of his submissions, learned counsel for the accused/appellant relied upon the precedent law laid down by the Hon''ble Supreme

Court in State of Himachal Pradesh Vs. Raj Kumar, reported in 2014(2) WLC (SC) Cri. 108, wherein the following order has been passed:

In this appeal judgment and order dated 19/11/2004 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal

No.401 of 2002 is under challenge.

The respondent is the sole accused. He was tried by the Additional Sessions Judge, Una, (Himachal Pradesh) for offence

punishable under Section 302 of the Indian Penal Code (""the IPC""). The Sessions Court convicted the respondent under Section 302

of the IPC and sentenced him to suffer life imprisonment and to pay a fine of Rs.3,000/-. In default of payment of fine, he was

ordered to suffer simple imprisonment for further period of three months. The respondent preferred an appeal to the High Court. By

the impugned judgment and order, the High Court set aside the order of conviction and acquitted the accused. Being aggrieved by the

acquittal of the accused, the State of Himachal has approached this Court.

According to the prosecution, on 1/10/1998 at about 7.15 a.m., PW-7 Balbir Singh, Ward Panch and Nambardar of Halqua

Bhadorkali, went to the Police Post Daulatpur and lodged daily diary report (Ex-PA) stating that at about 7.00 a.m, PW-6 Dev Raj

of the same village came to his house and informed him that one Ashwani Kumar @ Pinku (""the deceased"") had been killed. They

went to the house of Ashwani Kumar. They found the deceased lying in a pool of blood on a cot with various cut injuries on his head.

PW-9 immediately rushed to the Police Post on his Scooter to lodge the report. The respondent, who is the brother of the deceased

also reached the Police Post and disclosed to PW-7 Balbir Singh that he had murdered his brother with a ""Darat''. On the basis of

daily diary report (Ex-PA), First Information Report (Ex-PW-11/A) was recorded by PW-11 HC Yog Raj, at the Police Station

Gagret. Investigation was set in motion. After completion of investigation, the respondent came to be charged as aforesaid.

In support of its case, the prosecution examined as many as 14 witnesses. The respondent pleaded not guilty to the charge. In his

statement recorded under Section 313 of the Code, the respondent denied all the allegations leveled against him by the prosecution.

Admittedly, the prosecution case is based on circumstantial evidence. The circumstances were enumerated by the trial court as

under:

1) that the relationship between the deceased and the accused was not cordial due to the dispute on account of the possession of the

room;

2) that on the evening of 30.9.1998, there was a scuffle between the accused and the deceased;

3) that the accused had made an extra judicial confession of his guilt on the morning of 1.10.1998 in presence of Balbir Singh;

4) that the accused got recovered the blood stained Darat from his possession under Section 27 of the Indian Evidence Act;

5) that he had handed over to the police his blood stained Pyazama and shirt to the police;

6) that the accused was seen with the Darat coming out of the room of the deceased in the early morning of 1.10.1998 by his brother

Naresh Kumar an Smt. Neelam Kumari;

7) that the blood group of the Darat, Chadar and Pyazama of the accused was opined to be the same i.e. group B by the chemical

analyst; and

8) that the shirt of the accused the khessi and pillow cover of the deceased had the blood stains of human being.

The trial court held that the circumstances Nos.3, 4 and 6 were not proved. Thus, the extra-judicial confession of the respondent,

the alleged recovery of blood stained Darat from the respondent''s possession and the claim of PW-4 Naresh Kumar and PW-9

Smt. Neelam Kumari that the respondent was seen by them coming out of the room of the deceased with a Darat in the early morning

of 1.10.1998 are held to be not proved.

Circumstances Nos.3, 4 and 6 having been held not proved, the trial court erred in convicting the respondent on the basis of the

remaining circumstances. The strained relationship between the respondent and the deceased, the scuffle that had allegedly taken

place between them on 30/9/1998; the alleged handing over of pyazama and shirt to the police by the respondent; same group of

blood found on Darat (the recovery of which is not proved), on the Chadar found on the cot on which the deceased was lying and on

pyazama of the respondent and human blood found on the khessi and pillow cover of the deceased were not, in our opinion in the

facts of this case, sufficient to convict the respondent.

While overturning the trial court''s order, the High Court held that the trial court has rightly held that the first two circumstances are

proved. The High Court, however, held that strained relationship between the respondent and the deceased and a minor scuffle

between the two is not sufficient to convict the respondent. The High Court confirmed the trial court''s finding that circumstances

Nos.3, 4 and 6 are not proved. The High Court further held that circumstances Nos.5, 7 and 8 are also not proved and the trial court

was wrong in holding that they were proved. The upshot of this is that there is a concurrent finding reached by the trial court and the

High Court that circumstances Nos.3, 4 and 6 have not been proved. Having carefully perused the impugned judgment and also the

evidence on record, we are of the opinion that the High Court has rightly held that strained relationship and minor scuffle between the

respondent and the deceased in the facts of this case is not sufficient to convict the respondent. The High Court has discussed

circumstances Nos.5, 7 and 8 in detail and has rightly held them not proved. We are, therefore, of the view that no fault could be

found with the impugned judgment.

In Sharad Birdhichand Sarda v. State of Maharashtra[1], this Court laid down the five principles as regards the proof of a case

based on circumstantial evidence. This Court has reiterated those principles time and again. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

xxx xxx xxx

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be

explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial

evidence.

In our opinion, in this case, for the reasons which we have already noted, the chain of circumstances is not so complete as not to

leave any reasonable ground for the conclusion consistent with the innocence of the respondent. It is not possible to say that in all

human probability the respondent was the culprit. The High Court has, therefore, rightly set aside the conviction and sentence and

acquitted the respondent. Besides, while dealing with an appeal against order of acquittal, we have to be cautious. Unless the order of

acquittal is perverse, it cannot be overturned. We find the impugned judgment to be well reasoned and legally sound. It is not

perverse. The appeal is, therefore, liable to be dismissed and is dismissed.

Learned counsel for the accused/appellant has further placed reliance on the precedent law laid down by the Hon''ble Apex Court in State of

Punjab Vs. Gurdeep Singh (Crl.A. 393 of 1992, decided on 08.09.1999), relevant portion of which reads as under:

The observations of this Court In the case of State of Uttar Pradesh v. M.K. Anthony : 1985CriLJ493 seems to be rather

apposite in this context.

In paragraph 15 of the Report, this Court observed as below:

There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless

corroborated by some other credible evidence. The Courts have considered the evidence of extra judicial confession a weak piece of

evidence. If the evidence about extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not

even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a

motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and

unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against

it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra

judicial confession can be accepted and be the basis of a conviction. In such a situation, to go in search of corroboration itself tends

to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach

the same can be relied upon and a conviction can be founded thereon.

Incidentally, this Court in the case of Narayan Singh v. State of M.P. : 1985CriLJ1862 expressly observed that it is not open to

any Court to start with a presumption that extra judicial confession is a weak type of evidence. In paragraph 7 of the report this Court

observed:

Apart from this there is the evidence of PWs. 5 and 9 who state on oath that one of the accused admitted before them that he had

murdered the deceased. The learned Sessions Judge has brushed aside their evidence by presuming that their statements constituting

an extra judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any Court to start with

a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time

when the confession was made and the credibility of the witnesses who speak to such a confession. In the instant case, after perusing

the evidence of PWs 5 and 9 we are unable to find anything which could lead to the conclusion that these independent witnesses

were not telling the truth. The evidence of these two witnesses (PWs 5 and 9) which lends support to the evidence of PW 11 was

sufficient to warrant the conviction of the accused. The Sessions Judge has committed a grave error of law in analysing and

appreciating the evidence of PWs 5 and 9 and brushing them aside on untenable grounds.

In Baldev Raj v. State of Haryana : 1990CriLJ2643 this Court further stated the law as below (Para 9):

An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The

value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court

requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court

should not accept the evidence, if not the actual words but the substance were given. It is for the Court having regard to the credibility

of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is

satisfied that the confession was voluntary, conviction can be founded on such evidence. Keeping these principles in mind, we find

that the confession has been properly accepted and acted upon by the Courts below and there is no scope for any doubt regarding

the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW 4 and PW 5 being

responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the

appellant. The very presence of the appellant and his father with the party of Ishar Dass throughout the operation up to lodging of

complaint at the police station dispel any suspicion against the prosecution case and clearly point to the truthfulness of the same. We

are, therefore, unable to find any infirmity in the confession which has been accepted and relied upon by the Courts below.

While it is true that in Narayan Singh''s case : 1985CriLJ1862 (supra) this Court expressly observed that it is not open to any

Court to start with a presumption that extra judicial confession is a weak type of evidence, a later decision of this Court in Kavita v.

State of Tamilnadu : 1998CriLJ3624 stated that in the very nature of things it is a weak piece of evidence. In paragraph 4 of the

Report this Court in Kavita''s case (supra) observed:

There is no doubt that convictions can be based on extra judicial confession but it is well settled that in the very nature of things, it is a

weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness of

whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the

Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses.

Apparently there may seem to be some expression of divergence but on the totality of the situation, question of there being any

difference of expression of opinion does not arise, since Kavita''s case (supra) in no uncertain terms laid down that the evidentiary

value of the extra judicial confession depends upon the veracity of the witnesses to whom it is made and it is for the Court to decide

on the acceptability of the evidence having regard to the credibility of the witnesses.

Having dealt with the basics of the legal issue as regards evidentiary value of extra judicial confession and adverting to the factual

matrix of the matter at this juncture, the prosecution case as made out is to the following effect:

The deceased being a young girl of 10 years along with her brother Sandeep had gone to the house of the accused around 7.30/8.00

p.m. on 18th November, 1989 for the purpose of watching television. The evidence disclosed that Rajinder Singh who happened to

be father''s sister''s husband did also come to pay a visit to the house of the deceased''s father and it so happened and as the evidence

records that Rajinder Singh also went to the house of the accused for watching television along with the two little children. The factual

score depicts that the brother continued to watch the television but the elder sister left the television room to go back to her house.

Rajinder Singh again as the evidence disclosed came out as well and found that the accused in a drunken state following the deceased

on her way home around 8 O''clock in the evening.

The next piece of evidence is rather curious the deceased girl does not reach home but Rajinder Singh reaches home had his meal

along with the parents of the deceased. The younger brother who also went out for television watching in the house of the accused,

returned home and joined the parents and the uncle for the meal -- there was, however, no anxiety for the missing daughter of the

family and it was only after Rajinder Singh left for his house which is at the next village and around 10 to 15 k.m. away, the

deceased''s father Jaswant Singh tried to effect a search about the daughter -- Jaswant Singh, in a very natural way, went to the

house of the accused and found the accused and his brother to be very heavily drunk in the house itself and thus had to come back

without much information about the missing daughter.

The evidence goes on to record that next morning the body of the deceased was found in the open verandah of a building

belonging to one Smt. Ajmer Kaur. In her evidence Smt. Ajmer Kaur, being PW 4 stated that when she had gone to the verandah for

taking ''turi'' for the cattle, found the dead body of the child lying under the heap of ''turi'' and on such a find immediately informed the

girl''s father Jaswant Singh. On this score the father of the deceased stated that he on being informed cleared the ''turi'' and saw the

dead body of his daughter lying there fully naked and her salwar was lying near her. The father stated that she was smeared with

blood and was dead and thereafter requested the son of the Sarpanch to keep a watch on the body and went to the police station to

lodge the report along with the Sarpanch. The police arrived and the usual formalities were completed and FIR was lodged-and on

completion of the inquest sent the body for post mortem examination.

Dr. H.N. Sharma, PW5 found the following injuries on the person of the deceased:

(1) In front aspect of the neck, 1 cm. above the midline 2 abrasions with dimensions of 2 x 3 cm were seen. On dissection underline

tissues were found to be swollen. Clotted blood was seen in tissues. The thyroid cartilage on right laming was showing fracture line.

(2) The perennial area showed toori strawe. In the valve area blood clot was seen, hymen found ruptured, the vagina admitted two

fingers, posterior vaginal wall near commeasure showed laceration. Vaginal walls were congested. Labia minor were found congested

and torn, two swabs were taken each from vagina and cervix. They were smeared on slides and sent to Chemical Examiner Govt. of

Punjab Patiala.

The upper part of chest had prominent veins. The laryogal cavity showed clotted blood. Right side of heart found full of dark

coloured blood. Stomach was found empty, bladder contained around 20 ml. of urine.

The post mortem Doctor opined that death was caused due to injury No. 1. He also found that the deceased was subjected to

rape before the murder and the age of the deceased was between 7 to 11 years -- the facts above cannot but be ascribed to be not

only serious but ghastly in nature. While it is true that the social aberration which results from the offence is devastating by reason of

the nature of the offence committed on a very young girl and the offenders cannot possibly obtain any support or mitigating effect

from Courts of law, we however, remind ourselves that the law of the land shall have to be administered in accordance with the

principles of criminal justice.

At this juncture, another aspect of the matter ought to be noted, namely, an extra judicial confession by the accused Gurdeep

Singh to one Jaspal Singh (P.W. 7). The extra judicial confession runs as below:

that 20 days ago I had committed a wrong act Manpreet Kaur her younger brother Sandeep Singh and their relation had come to see

television at our house. I came from outside after taking liquor. Then I was served rum by my brother who is in the army. When

Manpreet went out of the house, I followed her. Then I caught hold of her took her in the veranda where grain husk was lying. I then

untied string of salwar, committed rape on her and when she raised alarm, I gagged her mouth with her shawl. When I thought that

she will narrate what had happened to her, then I throttled her and killed and I concealed her body in the heap of grain husk and then

I ran away towards a pond and since then I have been roaming about. You are known to Jaswant Singh, father of girl. I had

committed this act in the influence of liquor and get me pardon from them as they are your relatives.

It is the evidence of Jaspal Singh (PW 7) that he is driving taxi at Ropar and the accused was also driving the car of a Sant which

was also being used as a taxi and used to park his car in the same parking space as used by Jaspal Singh. It is the categorical

evidence of Jaspal Singh that on 12th December, 1989 i.e. after about 24 days of the incident the accused came to him and told him

that he had committed rape on Manpreet Kaur and murdered her. The said evidence of Jaspal Singh was accepted by the learned

Sessions Judge by reason of the fact that it was corroborated by the evidence of Rajinder Singh who had stated that he found the

accused following. the deceased in a drunken condition. But that finding was negatived by the High Court on the ground that extra

judicial confession after long lapse of time is of no consequence. The High Court reminded itself that circumstantial evidence should

not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The circumstances must be of such a

nature and should form a complete chain as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime

of which he is charged.

There is no denial of the fact that extra judicial confession is admissible in evidence and the Court in appropriate cases can rely

thereon to the extent of even basing conviction of the accused. In a long catena of decisions of this Court, the settled position of the

present day is that the extra judicial confession by itself if, otherwise in conformity with the law, can be treated as substantive

evidence, and in appropriate cases it can be used to punish an offender. We, however, hasten to add here that this statement of law

stands qualified to the extent that the Court should insist on some assuring material or circumstance to treat the same as piece of

substantive evidence.

Having thus stated the law and general principles as to the extent of reliance to be placed on the circumstantial evidence, let us at

this juncture turn on to the factual score in a little bit greater detail for the purposes of the assessment of the entire situation as to

whether extra judicial confession noticed above can have any credence or evidentiary value. But before so doing certain basic

features in the matter in issue ought to be noted. The features being:

(i) the deceased a young girl of 7 to 10 years along with her brother had gone to the house of the accused in the evening for television

viewing.

(ii) Rajinder Singh who happened to be the brother-in-law Of the deceased''s father, also deemed it fit to go and watch the television

programme rather than stay with the relatives and have some chitchat with the brother-in-law;

(iii) Rajinder Singh also went out of the Television Room shortly after the deceased left the house of the accused and found that the

deceased was being followed by a drunken man - it is a definite piece of evidence in the matter that the house of the deceased and

that of the accused is not very far from each other (may be two or three houses in between);

(iv) Rajinder Singh being an elderly man - at least not a teen-ager -- allowed a girl of 7 to 10 years, being a close relative, to be

followed by a drunken man and quietly went back to the deceased''s house without any utterance as regards the event witnessed by

him -- had his meal with the brother-in-law and went back to the village.

The facts above, have been very strongly criticised by the High Court and we find sufficient justification in that regard since

normal reaction of a relative, would be to take the girl home or bring the father on to the sight immediately or even after going back to

the deceased''s house narrate the event of the girl being followed by a drunken man as also to go out with the father in search of the

girl afterwards along with the deceased''s father. It is difficult to treat it as a conduct in consonance with the normal human behavior of

a relative having seen the young girl of 10 years being followed by a drunken person. Human relationship cannot possibly have the

same kind of reaction as has been depicted by Shri Rajinder Singh and it is on this score that the learned Advocate for the

respondent herein also strongly commented upon the introduction of this particular witness in order to have a semblem of

corroboration at best so far as the extrajudicial confession is concerned.

The recovery of the body of the deceased by itself does not find any link or in any way connect the accused with the commission

of the offence. Records depict that Sandeep being the younger brother was not examined and the learned Advocate in support of the

appeal, also has no answer.

Turning attention on to the issue of probative value and total evidentiary impact in the matter, one cannot but return a verdict of

non-creditworthiness of such a piece of circumstantial evidence-- 24 long days have elapsed - and it is only then the investigating

officer was able to locate a fellow Taxi driver, who appears to be the brother-in-law of the brother-in-law of father of the deceased.

The evidence of Rajinder Singh thus becomes important -- but is it worthy of such an importance -- The Sessions Court has

exaggerated its effect, whereas the High Court has completely over-turned it and described the same as a wholly unreliable and

untrustworthy evidence.

We have herein before dealt with this particular piece of evidence -- Can the reaction of a close relative be in the manner as

Rajinder Singh had -- The answer cannot but be in the negative -- where is the anxiety to look for the girl -- where is the desire to

see that nothing untoward should happen -- a minor girl of 10 years being followed by a drunken man and thereafter the girl does not

come back home till such time he finishes the meal: Even thereafter not a word to the father but he quietly went back to his own

village: It is not a trustworthy evidence to rely on for corroboration to the extra-judicial confession to complete the chain of

circumstances. If the above pieces of evidence are kept aside -- there is no other available evidence which can even remotely

connect or point towards the guilt of the accused. There is no dispute that the deceased was raped and murdered but that would not

be enough for the prosecution to rope in the accused without some such evidence depicting unmistakably to the guilt of the accused.

The next important aspect is the credibility of the person who spoke about the confession. He is a taxi driver and no part of

evidence records that he has had a clout with the Police --It is not in evidence as to the period of friendship between accused and the

witness -- Indeed a very close friend may be taken into confidence and a confession effected -- Commission of an offence of a rape,

on a minor child and thereafter eliminating the victim girl from this world could not have been talked of or discussed with any or

everybody so casually. There must be some cogent reasons for making a confession of this nature. The only reason available in

evidence for affording an occasion to make the confession is that the accused used to drive the car of a Sant and as such, he used to

park his car in the same parking area where the witness was also parking the car.

In our view this piece of evidence does not inspire confidence as to the credibility of the witness. The choice of a person to

confess cannot be effected just like that.

In this context strong reliance was also placed by the High Court on the decision of this Court in the case of Makhan Singh v.

State of Punjab : AIR1988SC1705 . This Court while dealing with more or less similar situation in paragraph 11 observed:

On 10th August, 1985 FIR was lodged by Nihal Singh (PW 2) and on 13-8-1985 the appellant went to Amrik Singh (PW 3) to

make an extra judicial confession. Amrik Singh says that the appellant told him that as the police was after him he had come and

confessed the fact so that he might not be unnecessarily harassed. There is nothing to indicate that this Amrik Singh was a person

having some influence with the police or a person of some status to protect the appellant from harassment. In his cross-examination

he admits that he is neither the Lambardar or Sarpanch nor a person who is frequently visiting the police station. He further admits

that when he produced the appellant there was a crowd of 10 to 12 persons. There is no other corroborative evidence about the

extra-judicial confession. As rightly conceded by the learned Counsel for the State that extra judicial confession is a very weak piece

of evidence and is hardly of any consequence. The counsel, however, mainly relied on motive, the evidence of last seen, the evidence

of recovery of dead bodies and the conduct of the appellant in not making a report about the missing father and son.

The confession in the normal course of events are made to avoid harassment by the police and to a person who could otherwise

protect the accused against such a harassment. The records in the present appeal do not reflect any one of these aspects. As such it is

difficult to point to the accused with the crime on the basis of the evidence available in this case. The incident did take place on 18th

November, 1989 and the body was recovered on 19th November. The extra-judicial confession of the accused as regards his

involvement in the crime is said to have been effected to Jaspal Singh PW7 on December 7, 1989 - thus a delay of more than 20

days without any explanation whatsoever. The delay in recording extrajudicial confession before a person wholly unconnected with

the police is always a matter of great suspect. In our view the High Court was right in rejecting the confessional statement.

In view of want of sufficient circumstances, we record our concurrence with the findings of the High Court that the charge against

the respondent has not been proved beyond all reasonable doubt and his conviction therefore cannot be sustained. The appeal is

hence dismissed.

Per contra, learned Public Prosecutor for the State however denied the same and stated that the FIR was lodged and investigation had

commenced immediately, and also the accused was arrested on 18.06.2009 itself.

Learned Public Prosecutor has however stated that the FSL Report and the recovery memo clearly show that the blood stained stone and

clothes and the soil so recovered complete the chain of circumstantial evidence to the extent of proving the fact that the death in this case was

caused by the accused/appellant.

Learned Public Prosecutor has further stated that the place of incident has been disclosed by Kamlesh and stone as well as blood stained soil

has been recovered at his instance, and therefore, the implication of Kamlesh was definite.

Learned Public Prosecutor also stated that no material recovery was necessary for confirmation of the facts, because the site was itself

confirmed by accused Kamlesh, and it was an important aspect.

In support of his submissions, learned Public Prosecutor has relied upon the precedent law laid down by the Hon''ble Apex Court in

Charandas Swami Vs. State of Gujarat & Ors., reported in (2017) 7 SCC 177, relevant portion of which reads as under:-

""In our view, the decision in the case of Navjot Sandhu (Supra) has adverted to all the previous decisions and restated the legal

position. In paragraph 114, while considering the arguments advanced by the parties regarding the sweep of Section 27 of the

Evidence Act, the Court formulated two questions which read thus:

(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the

knowledge of the Accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to

certain things -- concrete or non-concrete.

(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The

subsequent event of discovery by the police with the aid of information furnished by the Accused -- whether can be put against him

Under Section 27.

In the context of these questions, the argument of the counsel for the State in that case has been adverted to in paragraphs 115 to

The Court then after analyzing Section 27 of the Evidence Act, in paragraphs 120 to 144 adverted to the relevant decisions on

the point. In paragraphs 120 and 121, the Court noted thus:

The history of case-law on the subject of confessions Under Section 27 unfolds divergent views and approaches. The

divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental

facts of which the Accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that

the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27.

(ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was

taken that any information, which served to connect the object with the offence charged, was admissible Under Section 27. The

decision of the Privy Council in Kottaya case which has been described as a locus classicus, had set at rest much of the controversy

that centred round the interpretation of Section 27. To a great extent the legal position has got crystallised with the rendering of this

decision. The authority of the Privy Council''s decision has not been questioned in any of the decisions of the highest court either in the

pre-or post-independence era. Right from the 1950s, till the advent of the new century and till date, the passages in this famous

decision are being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas as

demonstrated by the arguments advanced on behalf of the State.

The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should

depose that he discovered a fact in consequence of the information received from an Accused person in police custody. Thus, there

must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is

axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates

to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby

discovered that can be proved and nothing more. It is explicitly clarified in the Section that there is no taboo against receiving such

information in evidence merely because it amounts to a confession. At the same time, the last Clause makes it clear that it is not the

confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means

of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to

admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually

discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be

safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in

Kottaya case 64: (AIR p. 70, para 10)

clearly the extent of the information admissible must depend on the exact nature of the fact discovered and the information must

distinctly relate to that fact.

Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para 10)

Normally the Section is brought into operation when a person in police custody produces from some place of concealment some

object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. We

have emphasised the word ""normally"" because the illustrations given by the learned Judge are not exhaustive. The next point to be

noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical

object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the

information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in

its entirety.

Such contention of the Crown''s counsel was emphatically rejected with the following words: (AIR p. 70, para 10)

If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding Sections on confessions

made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person

under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the

inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the

persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. Then, Their

Lordships proceeded to give a lucid exposition of the expression ""fact discovered"" in the following passage, which is quoted time and

again by this Court: (AIR p. 70, para 10) In Their Lordships'' view it is fallacious to treat the ''fact discovered'' within the Section as

equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of

the Accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of

the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody

that ''I will produce a knife concealed in the roof of my house'' does not lead to the discovery of a knife; knives were discovered

many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the

knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the

words be added ''with which I stabbed A'' these words are inadmissible since they do not relate to the discovery of the knife in the

house of the informant.

This Court has restated the legal position that the facts need not be self-probatory and the word ""fact"" as contemplated by

Section 27 is not limited to ""actual physical material object"". It further noted that the discovery of fact arises by reason of the fact that

the information given by the Accused exhibited the knowledge or the mental awareness of the informant as to its existence at a

particular place. In paragraph 128, the Court noted the statement of law in Udai Bhan (Supra) that, ""A discovery of a fact includes

the object found, the place from which it is produced and the knowledge of the Accused as to its existence."" The Court then posed a

question as to what would be the position if the physical object was not recovered at the instance of the accused. That issue has been

answered on the basis of precedents, as can be discerned from Paragraphs 129 to 132 of the reported judgment.

In paragraph 139, the Court noticed the decision in the case of Damu (Supra) which had dealt with the case where broken glass

piece was recovered from the spot matched with broken tail lamp and in paragraph 37 of that decision, the Court observed thus:

. . . . ""37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from

the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent

to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass

piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely

be held that the investigating officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to

the spot. (emphasis in original).

The Court then noted that the above view taken in Damu''s case does not make it a dent on the observations made and the legal

position spelt out in Om Prakash (supra) which distinguishes Damu''s case because there was discovery of a related physical object

at least in part. We may usefully reproduce paragraph No. 142 to 144 of the same reported decision, wherein the Court observed

thus:

There is one more point which we would like to discuss i.e. whether pointing out a material object by the Accused furnishing the

information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases

the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the

same to him, however, it is not essential that there should be such pointing out in order to make the information admissible Under

Section 27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot

in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz.

the concealment of an incriminating Article and the knowledge of the Accused furnishing the information about it. In other words,

where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the

informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the

rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take

the informant Accused to the spot, it will have no bearing on the point of admissibility Under Section 27, though it may be one of the

aspects that goes into evaluation of that particular piece of evidence.

How the Clause ""as relates distinctly to the fact thereby discovered"" has to be understood is the next point that deserves

consideration. The interpretation of this Clause is not in doubt. Apart from Kottaya case various decisions of this Court have

elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah

case. Sarkaria, J. analysed the ingredients of the Section and explained the ambit and nuances of this particular Clause in the following

words: (SCC p. 832, para 12)

The last but the most important condition is that only ''so much of the information'' as relates distinctly to the fact thereby discovered is

admissible. The rest of the information has to be excluded. The word ''distinctly'' means ''directly'', ''indubitably'', ''strictly'',

''unmistakably''. The word has been advisedly used to limit and define the scope of the provable information. The phrase ''distinctly

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

Accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions

and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords

some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the

discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the

fact discovered.

In the light of the legal position thus clarified, this Court excluded a part of the disclosure statement to which we have already

adverted.

In Bodhraj v. State of J & K this Court after referring to the decisions on the subject observed thus: (SCC p. 58, para 18)

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 of the information admissible must depend on the exact nature of the fact

discovered to which such information is required to relate.

Reliance was also placed on the recent decision of this Court in the case of Dupare (supra). The Court adverted to the relevant

precedents and observed thus, in paragraphs 23 to 29:

While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri

Kotayya v. King Emperor has held thus: (IA p. 77)

... it is fallacious to treat the ''fact discovered'' within the Section as equivalent to the object produced; the fact discovered embraces

the place from which the object is produced and the knowledge of the Accused as to this, and the information given must relate

distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the

setting in which it is discovered. Information supplied by a person in custody that ''I will produce a knife concealed in the roof of my

house'' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a

knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of

the offence, the fact discovered is very relevant. But if to the statement the words be added ''with which I stabbed A'', these words

are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

In Mohmed Inayatullah v. The State of Maharashtra, while dealing with the ambit and scope of Section 27 of the Evidence Act,

the Court held that:

Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application

to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the

Section and be reminded of its requirements. The Section says:

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.

The expression ""provided that"" together with the phrase ""whether it amounts to a confession or not"" show that the Section is in the

nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this

Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into

operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person Accused of an

offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information

the Accused must be in police custody. The last but the most important condition is that only ""so much of the information"" as relates

distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word ""distinctly"" means

directly"", ""indubitably"", ""strictly"", ""unmistakably"". The word has been advisedly used to limit and define the scope of the provable

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

of the information supplied by the Accused which is the direct and immediate cause of the discovery. The reason behind this partial

lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of

information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the

clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which''

may be indirectly or remotely related to the fact discovered.

At one time it was held that the expression ""fact discovered"" in the Section is restricted to a physical or material fact which can be

perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor, Ganu Chandra Kashid v. Emperor).

Now it is fairly settled that the expression ""fact discovered"" includes not only the physical object produced, but also the place from

which it is produced and the knowledge of the Accused as to this (see Palukuri Kotayya v. Emperor, Udai Bhan v. State of U P).

In Aftab Ahmad Anasari v. State of Uttaranchal after referring to the decision in Palukuri Kotayya, the Court adverted to seizure

of clothes of the deceased which were concealed by the accused. In that context, the Court opined that: (Aftab Ahmad Anasari

Case, SCC p. 596, para 40)

...the part of the disclosure statement, namely, that the Appellant was ready to show the place where he had concealed the

clothes of the deceased is clearly admissible Under Section 27 of the Evidence Act because the same relates distinctly to the

discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that

the clothes of the deceased were recovered from the house of the sister of the Appellant pursuant to the voluntary disclosure

statement made by the Appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and

therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits.

In State of Maharashtra v. Damu it has been held as follows:

...It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act,

1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor 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.

The similar principle has been laid down in State of Maharashtra v. Suresh, State of Punjab v. Gurnam Kaur, Aftab Ahmad Anasari

v. State of Uttaranchal, Bhagwan Dass v. State (NCT of Delhi), Manu Sharma v. State (NCT of Delhi) and Rumi Bora Dutta v.

State of Assam.

In the case at hand, as is perceptible, the recovery had taken place when the Appellant was Accused of an offence, he was in

custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses

have supported the seizure and nothing has been brought on record to discredit their testimony.

Additionally, another aspect can also be taken note of. The fact that the Appellant had led the police officer to find out the spot

where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible

in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.)

wherein the Court after referring to the decision in H.P. Admn. v. Om Prakash held thus: (Prakash Chand Case, SCC p. 95, para 8)

8....There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible Under

Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police

Officer in the course of an investigation which is hit by Section 162 of the Code of Criminal Procedure. What is excluded by Section

162, Code of Criminal Procedure is the statement made to a Police Officer in the course of investigation and not the evidence relating

to the conduct of an Accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the

course of an investigation. For example, the evidence of the circumstance, simpliciter, that an Accused person led a Police Officer

and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found

hidden, would be admissible as conduct, Under Section 8 of the Evidence Act, irrespective of whether any statement by the Accused

contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.

In A.N. Vekatesh and Anr. v. State of Karnataka it has been ruled that: (SCC p. 721, para 9)

By virtue of Section 8 of the Evidence Act, the conduct of the Accused person is relevant, if such conduct influences or is

influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the Accused pointed out to the

police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed,

would be admissible as conduct Under Section 8 irrespective of the fact whether the statement made by the Accused

contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash

Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the accused- Appellants (Exts. P-15 and P-16)

is not admissible Under Section 27 of the Evidence Act, still it is relevant Under Section 8. The evidence of the investigating officer

and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the Accused had taken them to the spot and pointed out the place where

the dead body was buried, is an admissible piece of evidence Under Section 8 as the conduct of the accused. Presence of A-1 and

A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant

circumstance and are admissible Under Section 8 of the Evidence Act.

Learned Public Prosecutor thus, relied upon Section 27 of the Evidence Act and has categorically averred that PW-19 Dr.Dharmendra had

dealt with the injury on the body of the accused and corroboration and time of the injury on the body of the deceased, and therefore, the chain of

circumstantial evidence was complete.

After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar on both the

sides, this Court finds that Kamlesh, the accused/appellant, is the real brother of deceased Laxman, and there was no reason or animosity between

them, for Kamlesh to have killed his own brother.

This Court also finds that the extra judicial confession is very weak, as PW-1 Pancharam and PW-2 Narayan have also almost faltered such

evidence; PW-2 Narayan has in fact stated that the incident had been narrated in front of Deputy Saheb, whereas the prosecution has not

produced any police personnel, which could substantiate the extra judicial confession, alleged to have been rendered on the same day.

This Court further finds that there is absolutely no eye witness to the incident and the villagers were not having any knowledge of any such

incident having happened, until the dead body was recovered.

This Court also finds that the last seen evidence rendered by Soma and Smt.Lalki do not induce any confidence, as they merely narrated about

the relationship and life of the two brothers, namely, accused Kamlesh and deceased Laxman on a previous day, which is very natural, as they

were real brothers having lunch together or their visiting some place together was a natural phenomenon, as Alkhi, the wife of the deceased has

also admitted that both the accused and the deceased were sharing good relationship with each other. The wife of the deceased has deposed that

she did not have any reason why Kamlesh would cause the death of Laxman and she has in fact stated that Kamlesh would have never thought to

cause death of his real brother, Laxman.

The injury report and the FSL Report also do not conclusively prove that the accused was the person, who caused the death of deceased

Laxman. In fact, two real brothers may have common blood group and the accused could have sustained small injury while lifting the dead body of

his brother for the purpose of cremation etc.

The other brother PW-8 Nanalal also has not supported the prosecution story and in fact specifically denied the extra judicial confession, and

he is also the elder brother of the both deceased and the accused/appellant, and thus, normally, would not have deposited in such a manner.

In the natural narration of the FIR, there is no motive, as it is unlikely for a person to kill his own brother so as to implicate a person, with

whom he is alleged to have any animosity. In this case, no such animosity between Kamlesh and Varda has been proved, which could be so

aggravated so as to induce Kamlesh to implicate Varda and his family members by killing his own brother Laxman. The record also does not show

any such dispute between Kamlesh and Varda.

It has also been observed by this Court that the FIR is of the incident occurred on 16.06.2009 in the night, and the FIR was submitted before

the competent court only on 19.06.2009. Though recovery is alleged to have been made at the instance of the accused in front of the independent

witnesses, but this also does not connect the accused/appellant with the crime beyond all reasonable doubt. A reasonable doubt has been created

in the mind of the Court by the family members of Kamlesh and Laxman, as the family members of the accused and the deceased have not

supported the prosecution case in respect of any probability for Kamlesh to make such a move for killing his own brother, and they have in fact

confirmed the good relationship so shared by the accused and the deceased, and which creates a doubt as to why the accused would kill his own

brother with no motive at all. It is also very doubtful in the circumstances that no dispute has been attributed between Kamlesh and Varda for

establishing the case of the prosecution.

The FSL Report, the Postmortem Report as well as the Injury Report do not indicate anything unusual, which would point towards

involvement of accused Kamlesh in the crime so committed. The injuries and the blood stained stone and soil also do not indicate anything which

could connect the accused with the commission of the alleged offence.

The extra judicial confession and the last seen evidence, which are the sheet anchor of the prosecution case and have been used by the learned

court below to connect the accused with the crime for convicting him, as above, are not confidenceworthy, as the same have not been sufficiently

proved beyond all reasonable doubt by the prosecution witnesses and exhibits.

Even one of the mautbir in the fard has turned hostile and denied fard. The parameters of Section 27 of the Evidence Act also do not give

confidence in the present facts.

The corroboration being pointed out by the learned Public Prosecutor in the identification of the spot by the accused and the injury sustained

by the accused and the FSL and all other reports and other evidence may confirm the death in this case, but to show that it would definitely

indicate that the death has been caused by accused Kamlesh is very unnatural. In all, two brothers were having healthy relationship, as indicated by

their family members, is a fact and the fact that Kamlesh was not having any subsisting dispute with Varda, takes out the air from the case of the

prosecution, and mere isolated investigation, which points fingers towards the accused, cannot be used for convicting the accused/appellant for the

murder of his own brother, deceased Laxman.

Thus, this Court is of the opinion that the impugned judgment and order has failed to appreciate that there was no evidence to prove the

prosecution case beyond all reasonable doubt, and all the evidence in the form of statements of witnesses, including Alkhi, the wife of deceased

Laxman and the reports, as above, pointed out that Kamlesh was innocent.

The learned court below had relied upon the evidence, which do not conclusively prove the commission of the alleged crime by accused

Kamlesh beyond all reasonable doubt.

The precedent law cited by learned Public Prosecutor is not applicable in the singular facts and circumstances of the case, and thus, the same

does not render any help to the prosecution; whereas the judgments cited by learned counsel for the accused/appellant are applicable to the

present fact situation.

In light of the aforesaid discussion, the present appeal is allowed and the impugned judgment and order dated 24.06.2011 passed by the

learned Additional Sessions Judge, Fast Track No.2, Udaipur in Sessions Case No.6/2011 (168/09) is quashed and set aside. The

accused/appellant is acquitted of the charges levelled against him in this case. The accused/appellant is set at liberty and the present

accused/appellant be released forthwith, if his detention is not required in any other case. The record of the learned court below be sent back

forthwith.