Rajasthan High Court – Jodhpur
State Of Raj vs Deva Ram (2024:Rj-Jd:52581-Db) on 18 December, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:52581-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 605/1997
State of Rajasthan
----Appellant
Versus
Deva Ram son of Netiji, resident of Kothar, Police Station Nana
District Pali.
----Respondent
For Appellant(s) : Mr. N.K. Gurjar, GA-cum-AAG.
For Respondent(s) : None present.
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON’BLE DR. JUSTICE NUPUR BHATI
Judgment
REPORTABLE
18/12/2024
Per, Dr. Nupur Bhati, J
The State of Rajasthan has filed this appeal under section
378 of the Code of Criminal Procedure against the judgment dated
27.02.1997 passed by the learned Additional Sessions Judge, Bali,
(Rajasthan) (hereinafter referred as ‘Trial Court’) in Sessions Case
No.14/1985, whereby the accused was acquitted from the charges
framed for the offences under sections 302, 364 and 417 of the
Indian Penal Code.
2. Succinctly stated, the facts of the case are that the
complainant, namely, Mr. Hussain submitted a written complaint
(Ex.P/39) on 14.05.1985 before the S.H.O., Police Station, Nana,
District Pali, stating therein that on 11.05.1985, his nephew
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namely, Saleem and Harun who were engaged in the business of
buying and selling goats, came to him and apprised that they have
made a deal with Deva son of Neti Raika to buy 100 goats and
asked the complainant to give them Rs.15,000/-. In the written
complaint, it was further stated that he (complainant) gave a sum
of Rs.15,000/- to Saleem, the denomination whereof was;
hundred currency notes were of Rs.100/- and hundred currency
notes were of Rs.50/-. Thereafter, his nephews went to Kothar,
however, the complainant pleaded that he does not know as to
whether the money was parted with Deva or not. Yesterday, i.e.
on 13.05.1985 at about 09-10:00 in the morning Deva Raika
came to Chamunderi and asked Harun and Saleem to give him
consideration and take the goats. At that time, complainant was
present there and Harun and Saleem left the place with
Rs.15,000/-. For bringing the goats, Sabir S/o Faiz Mohd. and
Mohan Bavri also accompanied with his nephews and they all
boarded the bus at 12’O clock. Thereafter, the complainant waited
for his nephews up till late night. The complainant further alleged
that today, in the morning he enquired from Sabir and Mohan
Bavri about his nephews, they apprised that yesterday Deva had
taken them to Kambeshwar Ji Mahadev to bring goats. Sabir and
Mohan Bavri also apprised the complainant that in the afternoon
at about 02:00 pm they were made to sit at the boarder ( dkadM+),
whereas Deva took Harun and Saleem with him to bring the goats
from ahead and both accompanied Deva. Thereafter, about about
one hour, Deva Raika returned and there were blood stains on his
shirt (dqrkZ) and the ‘Lathi’, which he was carrying. On being asked
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by them, Deva apprised that he has done away with two goats
and offered blood to Mataji and Harun and Saleem were sent away
with goats. They further apprised that thereafter they came to
Kothar with Deva. Sabir and Mohan Bavri also apprised that they
came home late at night despite Deva’s refusal. The complainant
further stated in the written complaint that since Harun and
Saleem did not return with the goats up till morning, he got
suspicious and started mounting search of his nephews with Musa
son of Faiz Mohd., Sabir son of Suleman, Mohan Bavi, and Sabir in
Kambeshwar Mahadev forest. During the search, they found the
dead body of Harun, soaked in blood, lying under a tree on
southern side of the temple, however, they could not locate Salim.
It was further alleged that while leaving, Harun was wearing a
ladies’ wrist watch, however, the same was missing and there was
no money in the pocket of Harun. Saleem was also wearing a wrist
watch, whose whereabouts are also not known. The complainant
stated in the written complaint that Deva had murdered his
nephews by deceiving them for money and theafter they returned
to Chamunderi from the forest. With these averments/allegations,
the complainant gave the report for taking action against the
culprit.
3. The SHO, Police Station Nana, on receipt of the aforesaid
written complaint registered a case vide F.I.R. No.33/1985
(Ex.P/40) for the offences under sections 417, 364 and 302 of the
Indian Penal Code. Thereafter, in pursuance of information
furnished by the accused the dead body of Saleem was also
recovered from the hills.
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4. To establish charges against the accused-Devaram under
sections 302, 364 and 417 of the Indian Penal Code as framed
against him, the prosecution laid evidence through 27 witnesses
and produced 50 material objects and documents. After the
prosecution closed its evidence, statement of the accused was
recorded under Section 313 Cr.P.C., wherein he claimed
innocence. Nine documents were also produced in defence to
prove innocence of the accused.
5. Having regard to the materials brought on record in Session
Case No.14/1985, the Trial Court framed the following issues:
English Translation:
“1. Whether in the afternoon of 13.5.85 or around this time
at border of Kothar Kambeshwari Mahadevji forest or around
this area, the accused murdered Saleem and Harun?
2. Whether in the afternoon of 13.5.85 or around this time,
the accused deceitfully took Saleem and Harun with him with
the intent of murdering them?
3. Whether in the afternoon of 13.5.85 the accused
deceitfully took Saleem and Harun with him in the garb of
selling goats whereas the intent of the accused was never to
sell goats?”
6. After hearing the learned Public Prosecutor and the learned
counsel for defence, the trial Court vide judgment dated
27.02.1997 proceeded to acquit the accused as the prosecution
was unable to establish the charge under sections 364, 302 and
417 of the Indian Penal Code beyond reasonable doubt.
7. Challenging the aforesaid judgment passed in Session Case
No.14/1985, the learned Public Prosecutor vehemently and
fervently submits that the learned Trial Court erred in not
considering the statement of Mohan (PW-14), who was eye
witness and supported the case of prosecution, merely on the
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ground that his statement could not be believed as he died before
he could be cross-examined in the Court. He also submits that the
learned trial Court utterly failed to consider certain other aspects
of the case such as blood-stained Lathi, admission of guilt by the
accused-Devaram himself that he inflicted Lathi blows and caused
the death of Harun and Saleem, recovery of money from the
house of the accused; all of these aspects point towards the guilt
of the accused. He further submits that the admission of guilt by
the accused before the police as well as before Jagmal (PW-10)
and Bhaggaram (PW-4) gives credence to the case of the
prosecution. He also submits that the learned trial Court has
discredited the testimony of Sabir (PW-15) merely on the basis of
some irrelevant contradictions.
8. We have given our anxious consideration to the submissions
made by learned Public Prosecutor and have perused the materials
available on record.
9. The prosecution, in order to substantiate its case on the
point of extra-judicial confession of the accused examined Moti
Singh (PW-5), Jahur Mohammad (PW-9), Samiya (PW-11) and
Jagmal (PW-10) before the learned trial Court.
10. It is revealed from the testimony of Jahur Mohammad (PW-
9) that when he was at Kambeshwari Hill along with SHO and
Fakeer Mohammad, someone came and told them that the
accused was made to sit inside the Panchayat Building at Kothar.
Thereafter, they reached at the Panchayat building and the Police
questioned the accused as to who killed Saleem and Harun, to
which the accused replied that he had killed both of them. The
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relevant part of the testimony of Juhur Mohammad (PW-9) is
being reproduced as under:
“brus esa fdlh us vkdj dgk fd dksBkj esa iapk;r ds vanj
nsok dks idM+ dj cSBk j[kk gS] bl ij eSa] Qdhj vgen o Fkkusnkj
lkgc dksBkj x;sA ogk¡ ij iqfyl us nsokjke dks idM+k vkSj iwNk dh
lyhe o gk:u dks fdlus ekjk gS rks nsok us crk;k fd eSaus ekjk gSA
nsok ds iapk;r esa gksus dh lwpuk fdl veq[k O;fDr us nh
mldk uke ugha crk ldrkA tc lwpuk nh rc eSa Fkkusnkj lkgc ds
ikl FkkA dksBkj ge thi ysdj x;s FksA dksBkj esa Fkkusnkj ds vykok
iqfyl okys 3&4 vkSj thi esa lkFk FksA nsokjke }kjk iqfyl ds lkeus
ekjus dh ckr dh gk¡ Hkjus dh ckr eSaus vkSj fdlh dks ugha crkbZA
tc eqfYte dks dksBkj ls yk;s rks jkLrs esa iqfyl us eqfYte ls dksbZ
iwNrkN ugha dhA iapk;r esa iwNrkN dh Fkh lyhe dh yk”k ds ckjs
esaA nsok us iapk;r esa iqfyl ds iwNus ij ;g crk;k Fkk fd yk”k
igkM+ ij iM+h gS tks crkrk gw¡A”
English Translation:-
“Meanwhile, someone came and told that Deva is
being held captive in the Panchayat at Kothar. On this, me,
Fakir Ahmed and the Police Officer went to Kothar. There,
the police officer caught Devaram and asked him who killed
Salim and Harun to which, he replied he killed them.
I cannot tell the name of the person who informed
me about Deva being in the Panchayat. When the
information was given, I was with the police officer. We
had gone to the storehouse in the jeep. Apart from the
police officer, there were 3-4 other person in the jeep at
Kothar. I did not tell anybody else about Devaram
admitting in front of the police to having killed. When the
accused was brought from Kothar, the police did not
interrogate him on the way, they had interrogated him in
the Panchayat about the dead body of Salim. Deva, upon
the interrogation made by the police in the panchayat, told
that the dead body was lying on the mountain. Come, I will
tell you.”
11. The Hon’ble Supreme Court of India in “Perumal Raja v.
State” 2024 SCC OnLine SC 12 has held that once the suspected
person comes into the hands of a police officer, he is no longer at
liberty and would be deemed to be in ‘custody’ within the meaning
of sections 25 to 27 of the Indian Evidence Act. The relevant
paragraph of the aforesaid judgment is being reproduced as
under:
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“28. …..Thus, in our considered view the correct
interpretation would be that as soon as an accused or suspected
person comes into the hands of a police officer, he is no longer at
liberty and is under a check, and is, therefore, in “custody” within
the meaning of Sections 25 to 27 of the Evidence Act. It is for this
reason that the expression “custody” has been held, as earlier
observed, to include surveillance, restriction or restraint by the
police.”
12. At this juncture, it would be appropriate to take into
consideration section 26 of the Indian Evidence Act, which is being
reproduced as under:
“26. Confession by accused while in custody of police not to
be proved against him.- No confession made by any person whilst
he is in the custody of a police-officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against
such person.
Explanation.- In this section “Magistrate” does not include
the head of a village discharging magisterial functions in the
Presidency of Fort St. George or elsewhere, unless such headman is
a Magistrate exercising the powers of a Magistrate under the Code
of Criminal Procedure, 1882.”
13. What emerges from the bare perusal of section 26 of the
Indian Evidence Act is that no confession made by any person
while he is in the custody of police-officer shall be proved against
such person unless such confession is made in the immediate
presence of a Magistrate.
14. In the case at hand, it is seen that the confession was made
by the accused to the police while he was made to sit inside the
Panchayat building, which would be deemed as being in the
custody of police; therefore, the confession made by the accused
to the police would be hit by section 26 of the Indian Evidence Act
and in sequitur is not admissible as evidence and cannot be
proved as against the accused. The prosecution, in order to
substantiate its case on the point of admission of guilt by the
accused, has also relied on the evidence of Samiya (PW-11). The
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relevant part of the statement of Samiya (PW-11) is being
reproduced as under:
“eSaus Hkyk o txh;k dks ns[kk FkkA ;s nksuksa nsok ls ckr dj jgs
FksA txh;k o Hkyk us eqyfte ls iwNk Fkk fd dlkbZ;ksa ds Nksjks us
dw.k ekjh;k vkSj dBs ekjh;k rks eqyfte us dgk Fkk fd eSa ekjh;ks
dkcs”ojth ds igkM+ esaA ftl le; nsok ls ;g ckr iwNh ml le;
iqfyl okys ekStwn ugha FksA ;g ckr iapk;r esa iwNh Fkh fnu vLr
gksus esa nks ?kaVs dk fnu ckdh FkkA bu nksuksa tuks us lkFk&lkFk iwNkA ”
English Translation:-
“I saw Bhala and Jagiya. They were talking to Deva.
Jagiya and Bhala asked the accused that who killed the
butcher’s sons and where, to which, the accused replied
that I killed them at the hills of Kambeshwari. When this
question was asked to Deva, there was no police personnel
present at that time. This question was asked in the
Panchayat. There were two hours left in the sunset when
this question was asked by both of them.”
15. Samiya (PW-11) has stated that he saw Jagmal (PW-10) and
Bhaggaram (PW-4) were talking to the accused and he heard
them asking the accused as to who killed Saleem and Harun to
which the accused answered that he murdered Saleem and Harun.
However, both Jagmal (PW-10) and Bhaggaram (PW-4) have been
declared as hostile witnesses therefore, the testimony of Samiya
(PW-11) as well, was unworthy of credence and does not
substantiate the case of the prosecution on the point of admission
of guilt by the accused.
16. The prosecution has presented two eyewitnesses namely –
Mohan (PW-14) and Sabir (PW-15) in order to prove the guilt of
accused. However, the learned trial Court has not taken into
account the statement of Mohan (PW-14) on the ground that he
died before he could be cross-examined by the defence, thus, his
statement cannot be proved against the accused.
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17. We are of the view that the truthfulness of the evidence
tendered by a witness can be tested only when the witness is
cross-examined. Therefore, the examination-in-chief of PW-14,
without an opportunity to the accused to cross-examine him,
cannot be used against the accused. Moreover, the statement of
Mohan (PW-14) is neither corroborated nor supported by the
surrounding circumstances, thus, his statement does not advance
the case of the prosecution.
18. The prosecution has also placed reliance on the statement of
Sabir (PW-15). However, the learned Trial Court has considered
the statements of Sabir (PW-15) to be untrustworthy on the
ground of material contradictions in the statements given by him
before the Police and the Magistrate.
19. The relevant part of the statement of Sabir (PW-15) before
the Magistrate under section 164 of the Code of Criminal
Procedure (Ex.D/8) is being reproduced as under:
“uk”rk ikuh djus ds ckn nsok us dgk fd pyks cdjh Vkyus
pyrs gSa fQj cdjh Vkyus exjs x;sA exjs esa nsok us eq>s] eksgu o
gk:.k dks exjk esa cSBk fn;k vksj dgk eaS vkSj lyhe mij tk jgs gS
rqe yksx cdjh b/kj vkos rks /;ku j[kukA nsok mij tkdj vk/ks ?ksVs
ls vdsyk okfil vk;k vksj 150&200 QqV nwjh ls vkokt nh fd
gk:.k b/kj vk fQj ge rhuksa mlds ikl tkus yxs rks nsok us dgk
gk:.k dks vdsys HkstksA fQj ge nksuks uhps cSB x;s o gk:.k pyk
x;kA
gk:.k ikl igwWpk rks igwWprs gh Þekjs jsß ekjs dh vkokt vkbZ
vkSj rks geus ns[kk ¼[kM+s gksdj½ fd nsok gk:.k dks ykfB;kW ls ekj jgk
FkkA gk:.k uhps fxjk gqvk FkkA fQj eSa vksj eksgu ogkW ls Mj ds Hkkx
x;sA fQj jkr Hkj ge exjs esa ?kwers jgs jkLrk Hkwy x;sA fQj fnu
mxrs gh ge pkeq.Msjh xkWo igwWps ogk¡ gk:.k ds ekek] ek¡ o vU;
fj”rsnkjks dks bryk nh fQj eSa vksj eksgu xkWo okyks lkFk ysdj yk”k
crkus ys x;sA exjs ds uhps gk:.k dh yk”k iM+h FkhA lyhe dh yk”k
ml le; ugha feyhA fQj ckn es nsok dks tc iqfyl us idM+ fy;k
rks mlds lkFk pydj lyhe dh yk”k exjs ij crkbZA fQj ge ?kj
ij vk x;sA”
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20. It is seen from Ex.D/8 that Sabir (PW-15), in his statement
before the Magistrate under section 164 of the Code of Criminal
Procedure, has stated that after reaching at the hill of
Kambeshwari Mahadevji, the accused asked Sabir, Mohan and
Harun to sit at the ‘Magre’ and took Saleem with him up to the
hill. After half an hour, the accused came back and from a
distance of 150-200 feet called for Harun, and asked only Harun
to come. Sabir (PW-15) and Mohan(PW-14) stayed back and saw
that the accused was beating Harun with his Lathi. Upon seeing
this, both of them ran away due to fear and spent the night in the
forest as they could not find the way out. Thereafter, the next
morning, both of them went to Chamunderi Village and informed
the family members of Saleem and Harun about the incident.
Thereafter, Sabir (PW-15) and Mohan (PW-14) took villagers with
them to show the dead body of Harun; however, they could not
find the dead body of Saleem.
21. It would also be relevant to refer the statement of Sabir
(PW-15) before the police (Ex.D/7). The same is reproduced
hereunder:
“ge cl ls jokuk gksdj dkEcsljth egknso igq¡ps o ogk ls nsok
gedks ;g dgdj taxy esa ysdj jokuk gks x;k fd cdjh;k vkxs gS lks
ysus pyks ftl ij ge mlds lkFk jokuk gq, o dkQh vkxs taxy esa
x;s rks eq>s o eksgu okxjh dks dkdj ij fcBk;k o dgk fd rqe ;gh
ij cSBks D;ksfd jsckjh tkrh es cdjh;k cspus ij eukbZ gS o rqEgs ns[kk
rks cdjh;k ugha nsaxs ml le; djhc 2 cts Fks rFkk ges ogh ij
fcBkdj nsokjke] gk:u o lyhe dks lkFk ysdj taxy esa vkxs jokuk
gks x;s o tYnh gh cdjh;k ysdj okil vkus dk nsok us dgk ftl ij
ge ogh ij cSB x;sA djhc ,d ?kaVk ckn nsok okil gekjs ikl vk;k
ftlds dqrsZ ij [kqu ds nkx Fks o ykBh Hkh [kqu ls Hkjh gqbZ Fkh ftl
ij eSus o eksgu us nsok dks iqNk fd [kqu dSls yxk gS rks nsok us dgk
fd cdjh;k ugha py jgh Fkh blfy, nks cdjh;k ekjdj ekrkth dks(Downloaded on 17/01/2025 at 09:21:49 PM)
[2024:RJ-JD:52581-DB] (11 of 21) [CRLA-605/1997]fNaVs fn;s gS o gk:u] lyhe dks cdjh;k nsdj pkeq.Msjh dh rjQ
jokuk dj fn;s gSA fQj ge nksuks nsok ds lkFk jokuk gks x;sA nsok
cgqr ?kcjk;k gqvk Fkk ge rhuks dkEcsljth igqaps ogk pk; ikuh ih;s
rFkk ogh ij jD[kh ,d lkbZfdy nsok us yh tks nsok dksBkj ls
ykdj ;gk jD[kh gksuk dg jgk Fkk fQj dksBkj ds fy, jokuk gq, jkLrs
es nsok ds ckj&ckj cgqr T;knk ilhuk vk jgk FkkA nsj jkr ge rhuks
dksBkj igqaps tgk¡ nsok us ges :dus dk dgk exj geus euk fd;k o
mlls lkbZfdy ekaxh rks nsok us euk dj fn;k fd lkbZfdy esjh ugha gS
nqljks ls ekaxdj yk;k gq¡ fQj eSa o eksgu dkQh jkr xqtjus ij dksBkj
ls pkeq.Msjh iSny jokuk gksdj igqpsA lqcg rd g:u o lyhe
cdjh;k ysdj ?kj ugh vk;s Fks bl ij gqlSu iq= xuhth us eq>s o
eksgu dks buds cdjh;k ysdj ugh vkus ckcr iqNk ftldks eSus o
eksgu us mDr lkjh ckr crkbZ ftl ij gqlSu dks “kd gqvk rc gqlSu]
eqlk iq= QSt eksgEen] lyhe iq= lqyseku] eksgu o eSa lHkh pkeq.Msjh
ls jokuk gksdj gk:u o lyhe dh ryk”k esa dkEcslj egknso ds igkM
es o taxy es x;s o ryk”k dh rks gk:u dh yk”k [kqu ls Hkjh gqbZ
taxy es isM+ ds uhps iMh gqbZ ns[kh o lyhe dk dksbZ irk ugha pykA ”
22. A bare perusal of Ex.D/7 shows that the accused took
Saleem and Harun with him inside the forest and asked Sabir
(PW-15) and Mohan (PW-14) to stay back at ‘Kankar’. Thereafter,
when the accused came back after one hour, both of them saw
blood stains on ‘Kurta’ and ‘Lathi’ of the accused. When they
questioned the accused regarding the blood stains he told them
that he had killed two goats and offered blood to ‘Mataji’.
Thereafter, both of them went to Kothar along with the accused
and from there both of them went to Chamunderi. As Harun and
Saleem did not returned till the morning, Hussain inquired with
Sabir (PW-15) and Mohan (PW-14) about Saleem and Harun, to
which they told him everything. However, Hussain got suspicious
and went to Kameshwar Mahadev hill along with Moosa, Saleem
son of Sulaiman, Mohan (PW-14) and Sabir (PW-15) to search for
Harun and Saleem. Upon their search, they found dead body of
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Harun in the forest on hill, however, they were unable to find
Saleem.
23. It is quite evident that there were glaring contradictions
between the statement of Sabir (PW-15) before the police
(Ex.D/7) and the Magistrate (Ex.D/8).
24. The learned Trial Court observed that Sabir (PW-15) during
his cross-examination stated that in his statement under section
164 of the Code of Criminal Procedure (Ex.D/8) before the
Magistrate he had mentioned that the accused was carrying ‘Kadi
wali Lathi’. However, the learned Trial Court after perusal of his
statement under Section 164 Code of Criminal Procedure found
that the said version was not written in Ex.D/8. Learned Trial
Court also observed that Sabir (PW-.15) stated in the Court that
his statement before Police (Ex.D/9) from ‘g’ to ‘h’ was incorrect,
wherein it has been written that “I thought that due to my
previous statements being incorrect, Devaram might be acquitted
and therefore I am giving correct statement now.” PW.15 Sabir
also stated that his statement before the Police (Ex.D/9) from ‘a’
to ‘b’ was incorrect, wherein it was stated by him that Devaram
came back after half an hour. Further, PW-15 Sabir also stated
that his statement before the Police (Ex.D/9) from ‘c’ to ‘d’ was
incorrect wherein it was stated that there were blood stains on the
‘Angrakhi’ as well as on ‘Lathi’ of Devaram and that Devaram
offered two goats to ‘Mataji’. He also stated that he gave these
statements out of fear to save himself. Sabir (PW-15) also stated
in the Court that his statement before the Police (Ex.D/7) from ‘m’
to ‘n’ was incorrect, wherein it was stated by him that the accused
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asked him and Mohan (PW-14) to stay back at ‘Kankar’ and took
Saleem and Harun and when the accused came back after one
hour there were blood stains on his ‘Kurta’ as well as on his
‘Lathi’.
25. We find that the learned Trial Court rightly observed that
there were material contradictions in the statements of Sabir
(PW-.15) given under Section 161 of Code of Criminal Procedure
(Ex.D/7) and section 164 of Code of Criminal Procedure (Ex.D/8)
recorded by the investigating officer and the Magistrate
respectively, inasmuch as on one hand he had stated in his
statement before the Police (Ex.D/7) that the accused took both
Saleem and Harun with him however, in his statement before the
Magistrate (Ex.D/8) he had stated that the accused initially took
Saleem with him and asked Mohan (PW-14), Harun and him to
stay back. Thus, the testimony of Sabir (PW-15) is untrustworthy
and does not establish the case of the prosecution.
26. The prosecution has also relied upon the testimony of Magan
Lal (PW-1), Bhabuta (PW-6), Banne Singh (PW-26) and
Phoolchand Constable (PW-16) with respect to the blood-stained
clothes and Lathi. The learned trial Court has observed that
constable Phoolchand (PW-16) during his cross-examination
admitted that he could not tell the name of the person, to whom
he handed over the articles at the FSL, Jaipur. He also could not
tell as to how many seals were there on each article. This witness
stated in the Court that on 10th he stayed at Police Station Pali and
received the articles from the Office of Superintendent of Police on
10th itself, which articles were submitted in the Malkhana of Police
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[2024:RJ-JD:52581-DB] (14 of 21) [CRLA-605/1997]
Station Pali on the same day. Thereafter, on the next day i.e. on
11th said witness collected the articles from the Police Station and
deposited the same with the FSL, Jaipur. Further, no one of Police
Station Pali has been examined by the prosecution to substantiate
the version given by PW-.16 Phoolchand. The learned Trial Court
has also observed that as per note appended on Ex.P/50 i.e. FSL
report, the article bearing mark ‘b’, the Vest/ cfu;ku was missing.
According to the FSL report (Ex.P/50), blood groups of the ten
packets sent to the FSL, Jaipur could not be identified and
therefore, the accused cannot be linked to the crime on the basis
of the expert opinion as well. Thus, in view of aforementioned
facts that one of the important evidence, that was Vest/ cfu;ku was
missing from the packet, and was thus, not examined by the FSL,
Jaipur and other ten packets containing blood samples also could
not be identified, there is no iota of doubt that the accused cannot
be linked to the crime on the basis of expert opinion.
27. The learned Trial Court, after taking into consideration the
recovery made by the Investigating Officer (PW-26) from the
house of the accused, which included a blood-stained cloth,
currency notes of Rs.3,900/- and a blood-stained watch, has
observed that the complainant Hussain (PW-23) in the FIR
(Ex.P/40) has stated that Rs.15,000/- was given to Salim
whereas, in the Roznamcha at Shivganj, he has stated that an
amount of Rs.20,000/- was given to Salim. Learned Trial Court
has also observed that Hussain in his examination has stated that
after 2-3 days from the death of Harun and Salim, he asked
Arshia regarding Rs.15,000/- to which she replied that Salim had
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[2024:RJ-JD:52581-DB] (15 of 21) [CRLA-605/1997]
kept Rs.5,000/- at home. Thus, under the given circumstances, it
has been rightly observed by the learned Trial Court, that firstly,
Arshiya (Salim’s mother) was not examined by the prosecution
and secondly, there were contradictions between the contents of
FIR (Ex.P/40) and the statement of Hussain (PW-23) with regard
to the money given by Hussain to Salim.
28. Moreover, this Court also finds that the learned Trial Court
has rightly taken into consideration the fact that it could also not
be proved that with whom the accused made the deal for the
selling of goats. Also, it is seen that Sabir (PW-15) deposed in the
Court that even Harun, Salim and Mohan did not inform him with
regard to the place they were going to buy goats and that it was
only when they were leaving for Chamunderi by bus, that they got
to know that they were heading to Kambeshwarji and even at this
point, the accused was not asked as to whose goats are being sold
to them. Therefore, under the given circumstances, learned Trial
Court has rightly observed that the prosecution has failed to
present its case in a clear and reliable manner. As discussed
aforesaid, there is no definite place mentioned by the witnesses
with respect to buying of goats and the witnesses namely; Harji
(PW-2), Bhagga Ram (PW-4), Moti Singh (PW-5), Jagmal (PW-10),
Rama (PW-13), Devaram (PW-18), Nanka (PW-22) and Chhagan
Singh (PW-25) also turned hostile and thus, the story of the
prosecution could not be proved.
29. We now come to the scope of Section 27 of the Indian
Evidence Act on the information given by the accused and the
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[2024:RJ-JD:52581-DB] (16 of 21) [CRLA-605/1997]
recovery made by the I.O. thereto. For the purpose of the same,
the relevant provision is reproduced as under:
“27. How much of information received from
accused may be proved.
Provided that, when any fact is deposed to as discovered in
consequence of information received from a person
accused of any offence, in the custody of a police-officer,
so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved.”
30. In the case of “Mohammed Inayatullah v State of
Maharashtra” AIR 1976 SC 483, the Hon’ble Apex Court laid down
four conditions required to invoke Section 27 of the Indian
Evidence Act. The Hon’ble Apex Court held as under:
“…12. 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…”
31. While considering the facts of this case, in the light of the
provision as well as aforementioned principles, it is seen that the
accused stated that the dead body of Salim can be recovered from
the Hills (‘Pahadi’) but this is not his statement that he hide the
dead body of Salim in the Hills (‘Pahadi’). Thus, one of the
essential conditions required for invoking Section 27 of the Indian
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[2024:RJ-JD:52581-DB] (17 of 21) [CRLA-605/1997]
Evidence Act, that is, the fact to be proved based on the
information of the accused given while in the custody of police
should distinctly relate to the discovery of the fact, is not present
in this case.
32. Furthermore, with regard to the recovery of Lathi from the
Bala ka Puliya made on the basis of information of the accused, it
is seen that the recovery of Lathi has been made from an open
place which is accessible to public at large. On this issue, we
would refer to the judgment of the Hon’ble Apex Court in the case
of “Manjunath & Ors. v. State of Karnataka” : (2023) 14 SCR 727.
The relevant para of the said judgment is reproduced as under:
“27. Prima facie, in the present facts, the 3 conditions
above appear to be met. However, the Trial Court held, given
that the discoveries made were either from a public place or
from an area where other persons also resided, reliance
thereupon, could not be made. We find this approach of the
Trial Court to be correct.”
33. Therefore, the recovery of Lathi made on the basis of
information given by the accused does not come within the sweep
of Section 27 of the Indian Evidence Act as the Lathi has been
recovered from the place which is accessible to the public at large.
34. Secondly, it is also seen that the blood stains found on the
Lathi and the blood of the deceased, have not been examined and
therefore, for lack of corroborative evidence, this Court concurs
with the finding of the learned Trial Court that the recovery of
Lathi along with blood stains, based on the information given by
the accused is not a reliable piece of evidence and does not help
establishing the guilt of the accused.
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35. The information given by the accused may fall under section
27 of the Indian Evidence Act and admissible in evidence but the
fact remains that only Rs.3,900/- were recovered from the house
of deceased whereas the accused’s claim of giving Rs.15,000/-
raises suspicion about the prosecution story. The prosecution’s
case that the accused’s information would fall under section 27 of
the Indian Evidence Act as the same is partially corroborated by
the recovery of Rs.3,900/- was rightly not accepted by the learned
Trial Court as there is discrepancy in the amount recovered and in
such circumstances, the prosecution story stands demolished.
36. This Court also observes that the scope of interference in the
acquittal order passed by the learned Trial Court is very limited,
and if the impugned judgment of the learned Trial Court
demonstrates a legally plausible view, mere possibility of a
contrary view shall not justify the reversal of acquittal as held by
the Hon’ble Apex Court in a catena of judgments and thus, on that
count also, the impugned judgment deserves no interference by
this Court in the instant appeal.
37. At this juncture this Court deems it necessary to refer to the
judgments rendered by the Hon’ble Apex Court in the cases of
“Mallappa & Ors. Vs. State of Karnataka” : (2024) 3 SCC 544 and
“Babu Sahebagouda Rudragoudar and Ors. Vs. State of
Karnataka” : 2024 AIR SC 2252, as under-:
Mallappa & Ors. (Supra) :-
“…36. Our criminal jurisprudence is essentially based on
the promise that no innocent shall be condemned as guilty.
All the safeguards and the jurisprudential values of criminal
law, are intended to prevent any failure of justice. The(Downloaded on 17/01/2025 at 09:21:49 PM)
[2024:RJ-JD:52581-DB] (19 of 21) [CRLA-605/1997]principles which come into play while deciding an appeal
from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a
criminal trial and such appreciation must be comprehensive
inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result
in a miscarriage of justice and is in itself a ground of
challenge;
(iii) If the Court, after appreciation of evidence, finds that
two views are possible, the one in favour of the accused
shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the
reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal
in appeal on a re-appreciation of evidence, it must
specifically address all the reasons given by the Trial Court
for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity
or error of law or fact in the decision of the Trial Court.”
Babu Sahebagouda Rudragoudar and Ors. (Supra):-
“38. Further, in the case of H.D. Sundara & Ors. v. State of
Karnataka (2023) 9 SCC 581 this Court summarized the
principles governing the exercise of appellate jurisdiction
while dealing with an appeal against acquittal under Section
378 of CrPC as follows:
“8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against
acquittal, is entitled to reappreciate the oral and
documentary evidence;
8.3. The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to
consider whether the view taken by the Trial Court is a
possible view which could have been taken on the basis of
the evidence on record;
8.4. If the view taken is a possible view, the appellate court
cannot overturn the order of acquittal on the ground that
another view was also possible; and
8.5. The appellate court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other conclusion
was possible.”
39. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the
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[2024:RJ-JD:52581-DB] (20 of 21) [CRLA-605/1997]
judgment of acquittal recorded by the Trial Court in favour
of the accused has to be exercised within the four corners
of the following principles:
(a) That the judgment of acquittal suffers from patent
perversity;
(b) That the same is based on a misreading/omission to
consider material evidence on record;
(c) That no two reasonable views are possible and only the
view consistent with the guilt of the accused is possible
from the evidence available on record.”
38. In the light of the judgments cited above and the facts and
circumstances of the case as presented before us, this Court
observes that the prosecution has failed to prove its case beyond
reasonable doubt as there are glaring contradictions between the
statements made by the eyewitness, Sabir (PW-15), before the
Police (Ex.D/7) and the Magistrate (Ex.D/8) and one of the
important evidences, i.e. Vest/cfu;ku, was missing from the
packet, which could not be examined by the FSL, Jaipur as well as
the blood group in ten packets could not be identified. Further, as
observed by the learned Trial Court, the information given by the
accused does not fall under Section 27 of the Indian Evidence Act
as such information did not distinctly relate to the discovery of a
new fact and that, the Lathi which was recovered on the basis of
the information given by the accused was recovered from a place
which was accessible to public at large. In addition to these, there
have been major contradictions in the testimony of the
complainant, Hussain (PW- 23) and the contents of FIR (Ex.P/40),
with regard to the sum of money given by him to the deceased for
the purchase of goats, which further weakened the prosecution
case.
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39. As an upshot of the discussions made herein above, we find
no substance in the appeal preferred by the State and therefore,
the same is dismissed. The judgment dated 27.02.1997 passed by
the learned court below, is thus, upheld.
(DR. NUPUR BHATI),J (SHREE CHANDRASHEKHAR),J
57-AjayS./-
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