Ashok @ Gunga Etc vs State Of Haryana on 24 January, 2025

Punjab-Haryana High Court

Ashok @ Gunga Etc vs State Of Haryana on 24 January, 2025

Bench: Sureshwar Thakur, Vikas Suri

                           Neutral Citation No:=2025:PHHC:011317-DB




CRA-D-1000-DB-2013 & CRA-D-111-DB-2013 (O&M)
                                                                          -1-


       In the High Court of Punjab and Haryana at Chandigarh

1.                                               CRA-D-1000-DB-2013
                                                 Reserved on: 09.01.2025
                                                 Date of Decision: 24.01.2025

Ashok @ Gunga @ Sarpanch and others
                                                                  ......Appellants
                                        Versus

State of Haryana
                                                                 ......Respondent

2.                                               CRA-D-111-DB-2013 (O&M)

Naresh @ Pappu
                                                                   ......Appellant

                                        Versus

State of Haryana
                                                                 ......Respondent

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE VIKAS SURI

Argued by: Ms. Ishima Randhawa, Advocate
           for the appellants (amicus curiae).

            Mr. Ankur Mittal, Addl. AG Haryana with
            Mr. P.P. Chahar, Sr. DAG, Haryana,
            Mr. Saurabh Mago, DAG, Haryana,
            Mr. Gaurav Bansal, DAG, Haryana and
            Mr. Karan Jindal, DAG, Haryana.

                       ****

SURESHWAR THAKUR, J.

1. Since both the above appeals arise from a common verdict,

made by the learned trial Judge concerned, hence both the appeals (supra)

are amenable for a common verdict being made thereons.

2. Both the appeals (supra) are directed against the impugned

verdict, as made on 15.10.2012, upon Sessions Case bearing No.77 of

2008/2011, by the learned Additional Sessions Judge, Rohtak, wherethrough

in respect of charges drawn against the accused for an offence punishable
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under Section 460 of the IPC, besides under Section 25/54/59 of the Arms

Act, thus the learned trial Judge concerned, proceeded to record a finding of

conviction against appellants-convicts Ashok @ Gunga, Naresh @ Pappu,

Tutia and Prem @ Risalu for an offence punishable under Section 460 of the

IPC, whereas, he convicted the appellant Naresh @ Pappu for an offence

punishable under Sections 25/54/59 of the Arms Act. Moreover, the

remaining co-accused namely Naresh @ Nareshi and Pappu were acquitted

from the charges (supra), as became drawn against them. Moreover, through

a separate sentencing order of 22.10.2012, the learned trial Judge concerned,

sentenced the appellants-convicts in the hereinafter extracted manner.

“Xxx
Therefore, keeping in view the facts and circumstances of the
case, convicts Ashok @ Gunga, Naresh @ Pappu, Tutia and
Prem @ Risalu are sentenced to undergo rigorous
imprisonment for life each and to pay a fine of Rs.10,000/- each
and in default of payment of fine, they shall undergo rigorous
imprisonment for six months each, under Section 460 of the
Indian Penal Code. Accused Naresh @ Pappu is also sentenced
to undergo rigorous imprisonment for a period of three years
and to pay a fine of Rs.5,000/- under Section 25/54/59 of Arms
Act and in default of payment of fine, he shall further undergo
rigorous imprisonment for a period of three months.

Xxx”

3. The above imposed sentences of imprisonment, were ordered to

run concurrently qua appellant Naresh @ Pappu. The period spent in prison

by the convicts, thus during investigation or trial, was, in terms of Section

428 of Cr.P.C., ordered to be set off from the above imposed substantive

sentence(s) of imprisonment, upon the convicts.

4. Since all the accused-convicts became aggrieved from the

above drawn verdict of conviction, besides also, became aggrieved from the
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consequent thereto sentence(s) of imprisonment, and, of fine as became

imposed, upon them, by the learned convicting Court concerned, thereupons

they chose to institute thereagainst their respective criminal appeals, before

this Court i.e. CRA-D-1000-DB-2013 and CRA-D-111-DB-2013.

5. The State of Haryana has not challenged the verdict of acquittal

against the other co-accused namely Naresh @ Nareshi and Pappu, either

before this Court or before the Hon’ble Apex Court, as such the verdict of

acquittal rendered qua them has acquired binding and conclusive effect.

Factual Background

6. The genesis of the prosecution case becomes embodied in the

appeal FIR, to which Ex.P39 is assigned. The narrations carried in Ex.P39

are, that on 17.5.2007, an information from Police Post New Bus Stand,

Rohtak was received in Police Station Urban Estate, Rohtak through

telephone to the effect that Ravi @ Monu son of Ramesh Kumar, resident of

Uttam Vihar, Rohtak, was admitted in PGIMS, Rohtak owing to fire arm

injuries. On this information, ASI Banarsi Dass, Incharge, Police Post, New

Bus Stand, Rohtak along with other police officials reached PGIMS, Rohtak

and collected ruqa to the effect that Ravi was already dead. ASI Banarsi

Dass recorded the statement of Ramesh Kumar son of Sube Singh, resident

of Uttam Vihar Colony, Rohtak to the effect that he was running STD Booth

under the name and style of M/s Monu Enterprises. In the night of 17.5.2007

at about 3.00 a.m., he and his wife Rajbala and son Ravi @ Monu were

sleeping in their room at their residence. From the courtyard some noise was

heard by them on which they came out in the courtyard. There was no light.

In the courtyard, they saw three young persons in the darkness. He along

with his wife and son, caught hold two persons and raised alarm. Third boy

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jumped on the wall. Those two persons and they (complainant and others)

were grappling with each other. Third boy fired fire shot upon them and

caused injury on the forehead of his son Ravi alias Monu. In the meantime,

on hearing noise, his tenant Naresh Kumar Nanda son of Ram Singh came

out. Then, the third boy who was on the wall gave two more fire shots, but

they escaped. While they were busy in saving Monu, in the meantime, those

two persons also fled away from the spot after jumping over the wall in the

street. His son Monu became unconscious. He and Naresh after arranging

some vehicle, took Monu to PGIMS, Rohtak, where he was declared dead by

the doctors. On the basis of aforesaid statement, the instant case was

registered. Statements of the witnesses were recorded. Accused were

arrested and after completion of necessary formalities of the investigation,

the challan/report under Section 173 Cr.P.C. were prepared and presented in

the court for trial.

Committal Proceedings

7. Since the offence punishable under Section 460 of the IPC, was

exclusively triable by the Court of Session, thus, the learned committal

Court concerned, through a committal order made on 10.04.2008, hence

proceeded to commit the accused to face trial before the Court of Session.

Trial Proceedings

8. The learned trial Judge concerned, after receiving the case for

trial, made an objective analysis of the incriminatory material, adduced

before him. Resultantly, he proceeded to draw a charge against accused, for

the commission of an offence punishable under Sections 460 IPC, besides

under Section 25 of the Arms Act. The afore drawn charges were put to the

accused, to which they pleaded not guilty, and, claimed trial.

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9. In proof of its case, the prosecution examined 33 witnesses,

and, thereafter the learned Public Prosecutor concerned, closed the

prosecution evidence. After the closure of prosecution evidence, the learned

trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C.,

but thereins, the accused pleaded innocence, and, claimed false implication.

However, they did not lead any witness defence evidence.

Submissions of the learned counsel for the appellants-accused

10. The learned counsel for the aggrieved convicts-appellants has

argued before this Court, that both the impugned verdict of conviction, and,

the consequent thereto order of sentence, thus require an interference. He

supports the above submission on the ground, that it is based on a gross

misappreciation, and, non-appreciation of evidence germane to the charge.

Submissions of the learned State counsel

11. On the other hand, the learned State counsel has argued before

this Court, that the verdict of conviction, and, consequent thereto sentence(s)

(supra), as become imposed upon the convicts-appellants, are well merited,

and, do not require any interference, being made by this Court in the

exercise of its appellate jurisdiction. Therefore, he has argued that both the

appeals, as preferred by the convicts-appellants, be dismissed.

Analysis of the deposition of eye witnesses to the occurrence who
respectively stepped into the witness box as PW-5 and PW-24

12. Both the witnesses (supra), in their respectively made

depositions, as comprised in their respective examinations-in-chief, ascribed

to the convicts-appellants, thus the incriminatory role, inasmuch as, with

theirs wielding the respective incriminatory weapons of offence, theirs hence

giving firearm injury to the deceased Ravi alias Monu.

13. It is evident on a reading of depositions of the above witnesses,
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that both of them, though were not aware of the identity(ies) of the convicts-

appellants. However, yet the PWs (supra) identified the appellants when

they made their respective appearances before the learned trial Judge

concerned. The (supra) respective identifications, as made by the PWs

(supra), thus upon the appellants making their respective appearances before

the learned trial Judge concerned, rather has remained unrebutted. Therefore,

when also there is apparently no efficacious cross-examination made upon

both the eye witnesses (supra), thus suggesting, that the present convicts-

appellants, thus were mis-identified or qua they were not participants in the

crime event, nor when any affirmative answer thereto became meted, thus by

the eye witnesses (supra). Therefore, the first time identification, by them

thus in Court vis-a-vis the respective identities of the convicts concerned,

rather even without prior thereto any valid test identification parade being

held, rather does not make the apposite identifications, rendered only in

Court to be lacking in any evidentiary vigor.

14. Moreover, even if assumingly irrespective of identifications,

made in Court by the PWs (supra), vis-a-vis the present appellants, thus

upon their making respective appearances before the learned trial Judge

concerned, though remained unrebutted or remained unimpeached, wherebys

though prima facie there was an imperative necessity cast upon the

investigating officer concerned, to during the course of investigations

becoming conducted into the crime event rather to hold a valid test

identification parade, whereins, the PWs (supra) identified the accused.

Resultantly, the subsequent thereto identification, as made in Court, thus

may acquire evidentiary tenacity.

15. However, even if a valid test identification parade became not

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conducted by the investigating officer concerned, during the course of his

holding investigations into the crime event, whereins, the PWs (supra)

identified the appellants, yet the non-conducting thereofs, does not beget any

inference, that the testifications rendered by the eye witnesses (supra) rather

loosing their creditworthiness. The reasons being;

a) Since validly made recoveries become effected from the

appellants, in pursuance to their making effective efficacious

disclosure statements.

b) The recovery of pistol through recovery memo at the instance

of the appellants to the investigating officer concerned, when has

been pronounced by the ballistic expert to be used in the crime

event. Resultantly therebys the effect, if any, of the apposite first

time identifications being made vis-a-vis respective identities of

the appellants thus without prior thereto a valid test identification

parade being conducted by the investigating officer concerned,

during the course of his holding investigation, thus does not

acquire any iota of significance nor therebys either the credible

testification of the PWs rather loose their respective

credibility(ies) nor for the hereinafter assigned reasons, thus suffer

any emaciation.

16. Be that as it may, an incisive and wholesome reading of the

depositions of the said eye witnesses to the occurrence unfolds that; a) both

of them did not either grossly improve nor grossly embelished upon their

previously recorded statements in writing, b) both of them have in respect of

the crime event thus made a version in complete alignment with the version

embodied in the FIR, c) both of them have narrated an ocular account vis-a-

vis the crime event which is but free from any taint of any inter se or intra se
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contradiction. Resultantly, therebys the eye witness account as became

rendered by them vis-a-vis the crime event, rather is to be assigned the

completest evidentiary vigor, wherebys the prosecution has been able to

cogently establish the charge drawn against the accused.

Signatured disclosure statements of the accused and pursuant thereto
recoveries

17. During the course of investigations, being made into the appeal

FIR, convicts-appellants, made their respective signatured disclosure

statements, to which Exs.P2, P3, P15, and P26, become respectively

assigned.

18. The disclosure statements (supra), carry thereons the signatures,

of the convicts concerned. In their signatured disclosure statements (supra),

convicts, confessed their guilt in inflicting injuries on the persons’ of the

injured and deceased, hence with the recovered weapons. The further

speaking therein is qua theirs keeping, and, concealing the incriminatory

weapons of offence. Moreover, the said signatured disclosure statements do

also make speakings about theirs alone being aware about the location of

theirs hiding and keeping the same, and, also revealed their willingness to

cause the recovery of the incriminatory weapons, to the investigating officer

concerned, from the place of theirs hiding, and, keeping the same.

19. Significantly, since the appellants have not been able to either

ably deny their signatures as occur on Exs.P2, P3, P15, and P26 nor when

they have been able to prove the apposite denial. Moreover, since they have

also not been able to bring forth tangible evidence but suggestive that the

recoveries are either contrived or invented. Therefore, all the memos are

concluded to be holding the utmost evidentiary tenacity.

20. Significantly also since post the making of the said signatured
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disclosure statements, becoming made, thus by the convicts to the

investigating officer concerned, each of them through recovery memos

Ex.P6, P8, P17, and P33, thus caused the recoveries of the weapons of

offence to the investigating officer concerned. Consequently, when the said

made recoveries are also not suggested by any cogent evidence to be planted

recoveries. Resultantly, the effect thereof, is that the valid recoveries were

made vis-a-vis the incriminatory weapons of offence by the convicts, to the

investigating officer concerned. In sequel, the makings of the valid

signatured disclosure statements, by the convicts besides the pursuant

thereto effectuation(s) of valid recoveries of the incriminatory weapons of

offence, thus by each of the convicts to the investigating officer concerned,

but naturally corroborates and supports the unblemished and credible eye

witness account (supra), as becomes rendered vis-a-vis the crime occurrence,

thus by the ocular witnesses (supra).

21. However, yet for assessing the vigor of the said made disclosure

statements and consequent thereto made recoveries, it apt to refer to the

principles governing the assigning of creditworthiness to the said made

disclosure statements and to the consequent thereto made recoveries. The

principles governing the facet (supra), become embodied in paragraphs

Nos.23 to 27 of a judgment rendered by the Hon’ble Apex Court in

Criminal Appeal Nos.1030 of 2023, titled as “Manoj Kumar Soni V. State

of Madhya Pradesh“, decided on 11.08.2023, relevant paragraphs whereof

become extracted hereinafter.

23. The law on the evidentiary value of disclosure
statements under Section 27, Evidence Act made by the accused
himself seems to be well established. The decision of the Privy
Council in Pulukuri Kotayya and others vs. King-Emperor

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holds the field even today wherein it was held that the provided
information must be directly relevant to the discovered fact,
including details about the physical object, its place of origin,
and the accused person’s awareness of these aspects. The Privy
Council observed:

The difficulty, however great, of proving that a fact
discovered on information supplied by the accused is a
relevant fact can afford no justification for reading into s. 27
something which is not there, and admitting in evidence a
confession barred by s. 26. Except in cases in which the
possession, or concealment, of an object constitutes the gist of
the offence charged, it can seldom happen that information
relating to the discovery of a fact forms the foundation of the
prosecution case. It is only one link in the chain of proof, and
the other links must be forged in manner allowed by law.

24. The law on the evidentiary value of disclosure statements of
co-accused too is settled; the courts have hesitated to place
reliance solely on disclosure statements of co-accused and used
them merely to support the conviction or, as Sir Lawrence
Jenkins observed in Emperor vs. Lalit Mohan Chuckerburty,
to “lend assurance to other evidence against a co-accused”. In
Haricharan Kurmi vs. State of Bihar, this Court, speaking
through the Constitution Bench, elaborated upon the approach
to be adopted by courts when dealing with disclosure
statements:

13. …In dealing with a criminal case where the
prosecution relies upon the confession of one accused person
against another accused person, the proper approach to
adopt is to consider the other evidence against such an
accused person, and if the said evidence appears to be
satisfactory and the court is inclined to hold that the said
evidence may sustain the charge framed against the said
accused person, the court turns to the confession with a view
to assure itself that the conclusion which it is inclined to draw
from the other evidence is right.

25. In yet another case of discrediting a flawed conviction
under Section 411, IPC, this Court, in Shiv Kumar vs. State of
Madhya Pradesh overturned the conviction under Section 411,
declined to place undue reliance solely on the disclosure
statements of the co-accused, and held:

24. …, the disclosure statement of one accused cannot

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be accepted as a proof of the appellant having knowledge of
utensils being stolen goods. The prosecution has also failed to
establish any basis for the appellant to believe that the
utensils seized from him were stolen articles. The factum of
selling utensils at a lower price cannot, by itself, lead to the
conclusion that the appellant was aware of the theft of those
articles. The essential ingredient of mens rea is clearly not
established for the charge under Section 411 IPC. The
prosecution’s evidence on this aspect, as they would speak of
the character Gratiano in Merchant of Venice, can be
appropriately described as, “you speak an infinite deal of
nothing.” [William Shakespeare, Merchant of Venice, Act 1
Scene 1.]

26. Coming to the case at hand, there is not a single iota
of evidence except the disclosure statements of Manoj and the
co-accused, which supposedly led the I.O. to the recovery of the
stolen articles from Manoj and Rs.3,000.00 from Kallu. At this
stage, we must hold that admissibility and credibility are two
distinct aspects and the latter is really a matter of evaluation of
other available evidence. The statements of police witnesses
would have been acceptable, had they supported the
prosecution case, and if any other credible evidence were
brought on record. While the recoveries made by the I.O. under
Section 27, Evidence Act upon the disclosure statements by
Manoj, Kallu and the other co-accused could be held to have
led to discovery of facts and may be admissible, the same
cannot be held to be credible in view of the other evidence
available on record.

27. While property seizure memos could have been a
reliable piece of evidence in support of Manoj’s conviction,
what has transpired is that the seizure witnesses turned hostile
right from the word ‘go’. The common version of all the seizure
witnesses, i.e., PWs 5, 6, 11 and 16, was that they were made to
sign the seizure memos on the insistence of the ‘daroga’ and
that too, two of them had signed at the police station. There is,
thus, no scope to rely on a part of the depositions of the said
PWs 5, 6, 11 and 16. Viewed thus, the seizure loses credibility.

22. Furthermore, in a judgment rendered by the Hon’ble Apex

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Court in Criminal Appeal No.2438 of 2010, titled as “Bijender @ Mandar

V. State of Haryana“, decided on 08.11.2021, the relevant principles

governing the assigning of creditworthiness become set forth in paragraph

16 thereof, paragraph whereof becomes extracted hereinafter.

16. We have implored ourselves with abounding
pronouncements of this Court on this point. It may be true that
at times the Court can convict an accused exclusively on the
basis of his disclosure statement and the resultant recovery of
inculpatory material. However, in order to sustain the guilt of
such accused, the recovery should be unimpeachable and not be
shrouded with elements of doubt. We may hasten to add that
circumstances such as (i) the period of interval between the
malfeasance and the disclosure; (ii) commonality of the
recovered object and its availability in the market; (iii) nature
of the object and its relevance to the crime; (iv) ease of
transferability of the object; (v) the testimony and
trustworthiness of the attesting witness before the Court and/or
other like factors, are weighty consideraions that aid in gauging
the intrinsic evidentiary value and credibility of the recovery.
(See: Tulsiram Kanu vs. The State; Pancho vs. State of
Haryana; State of Rajasthan vs. Talevar & Anr and Bharama
Parasram Kudhachkar vs. State of Karnataka).

23. Furthermore, in another judgment rendered by the Hon’ble

Apex Court in Special Leave Petition (Criminal) No.863 of 2019, titled as

“Perumal Raja @ Perumal V. State, Rep. By Inspector of Police”, decided

on 03.01.2024, the relevant principles governing the assigning of

creditworthiness become set forth in paragraphs 22 to 25 thereof, paragraphs

whereof become extracted hereinafter.

22. However, we must clarify that Section 27 of the
Evidence Act, as held in these judgments, does not lay down the
principle that discovery of a fact is to be equated to the object
produced or found. The discovery of the fact resulting in
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recovery of a physical object exhibits knowledge or mental
awareness of the person accused of the offence as to the
existence of the physical object at the particular place.
Accordingly, discovery of a fact includes the object found, the
place from which it was produced and the knowledge of the
accused as to its existence. To this extent, therefore, factum of
discovery combines both the physical object as well as the
mental consciousness of the informant accused in relation
thereto. In Mohmed Inayatullah v. State of Maharashtra12,
elucidating on Section 27 of the Evidence Act, it has been held
that the first condition imposed and necessary for bringing the
section into operation is the discovery of a fact which should be
a relevant fact in consequence of information received from a
person accused of an offence. The second is that the discovery
of such a fact must be deposed to. A fact already known to the
police will fall foul and not meet this condition. The third is that
at the time of receipt of the information, the accused must be in
police custody. Lastly, it is only so much of information which
relates distinctly to the fact thereby discovered resulting in
recovery of a physical object which is admissible. Rest of the
information is to be excluded. The word ‘distinctly’ is used to
limit and define the scope of the information and means
‘directly’, ‘indubitably’, ‘strictly’ or ‘unmistakably’. Only that
part of the information which is clear, immediate and a
proximate cause of discovery is admissible.

23. The facts proved by the prosecution, particularly the
admissible portion of the statement of the accused, would give
rise to two alternative hypotheses, namely, (i) that the accused
had himself deposited the physical items which were recovered;
or (ii) only the accused knew that the physical items were lying
at that place. The second hypothesis is wholly compatible with
the innocence of the accused, whereas the first would be a
factor to show involvement of the accused in the offence. The
court has to analyse which of the hypotheses should be accepted
in a particular case.

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24. Section 27 of the Evidence Act is frequently used by
the police, and the courts must be vigilant about its application
to ensure credibility of evidence, as the provision is vulnerable
to abuse. However, this does not mean that in every case
invocation of Section 27 of the Evidence Act must be seen with
suspicion and is to be discarded as perfunctory and unworthy of
credence.

25. The pre-requisite of police custody, within the meaning of
Section 27 of the Evidence Act, ought to be read pragmatically
and not formalistically or euphemistically. In the present case,
the disclosure statement (Exhibit P-37) was made by the
appellant – Perumal Raja @ Perumal on 25.04.2008, when he
was detained in another case, namely, FIR No. 204/2008,
registered at PS Grand Bazar, Puducherry, relating to the
murder of Rajaram. He was subsequently arrested in this case,
that is FIR. No.80/2008, which was registered at PS
Odiansalai, Puducherry. The expression “custody” under
Section 27 of the Evidence Act does not mean formal custody. It
includes any kind of restriction, restraint or even surveillance
by the police. Even if the accused was not formally arrested at
the time of giving information, the accused ought to be deemed,
for all practical purposes, in the custody of the police.

24. Now the principles set forth thereins are that the defence, is

required to be proving;

i) That the disclosure statement and the consequent thereto

recovery being forged or fabricated through the defence proving

that the discovery of fact, as made in pursuance to a signatured

disclosure statement made by the accused to the investigating

officer, during the term of his custodial interrogation, rather not

leading to the discovery of the incriminatory fact;

ii) That the fact discovered was planted;

iii) It was easily available in the market;

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iv) It not being made from a secluded place thus exclusively

within the knowledge of the accused.

v) The recovery thereof made through the recovery memo in

pursuance to the making of a disclosure statement, rather not

being enclosed in a sealed cloth parcel nor the incriminatory

item enclosed therein becoming sent, if required, for analyses to

the FSL concerned, nor the same becoming shown to the doctor

concerned, who steps into the witness box for proving that with

the user of the relevant recovery, thus resulted in the causings of

the fatal ante mortem injuries or in the causing of the relevant

life endangering injuries, as the case may be, upon the

concerned.

vi) That the defence is also required to be impeaching the

credit of the marginal witnesses, both to the disclosure

statement and to the recovery memo by ensuring that the said

marginal witnesses, do make speakings, that the recoveries were

not made in their presence and by making further speakings that

they are compelled, tutored or coerced by the investigating

officer concerned, to sign the apposite memos. Conspicuously,

despite the fact that the said recovery memos were not made in

pursuance to the accused leading the investigating officer to the

site of recovery. Contrarily the recovery memo(s) becoming

prepared in the police station concerned.

vii) The defence adducing evidence to the extent that with

there being an immense gap inter se the making of the

signatured disclosure statement and the consequent thereto

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recovery being made, that therebys the recovered items or the

discovered fact, rather becoming planted onto the relevant site,

through a stratagem employed by the investigating officer.

25. Therefore, unless the said defence(s) are well raised and are

also ably proven, thereupon the making of a disclosure statement by the

accused and the consequent thereto recovery, but are to be assigned

credence. Conspicuously, when the said incriminatory link in the chain of

incriminatory evidence rather is also the pivotal corroborative link, thus even

in a case based upon eye witness account.

26. Be that as it may, if upon a prosecution case rested upon eye

witness account, the eye witness concerned, resiles therefrom his previously

made statement. Moreover, also upon his becoming cross-examined by the

learned Public Prosecutor concerned, thus the judicial conscience of the

Court become completely satisfied that the investigating officer concerned,

did record, thus a fabricated apposite previously made statement in writing,

therebys the Courts would be led to declare that the said made apposite

resilings are well made resilings by the eye witness concerned, thus from his

previously made statement in writing.

27. Moreover, in case the Court, in the above manner, becomes

satisfied about the well made resilings by the eye witness concerned, to the

crime event, thereupon the Court may consequently draw a conclusion, that

the recoveries made in pursuance to the disclosure statement made by the

accused, even if they do become ably proven, yet therebys may be the said

disclosure statement, and, the consequent thereto made recoveries also

loosing their evidentiary tenacity. The said rule is not a straitjacket principle,

but it has to be carefully applied depending upon the facts, circumstances

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and evidence in each case. Tritely put in the said event, upon comparative

weighings being made of the well made resilings, thus by the eye witness

concerned, from his previously made statement in writing, and, of the well

proven recoveries made in pursuance to the efficaciously proven disclosure

statement rendered by the accused, the Court is required to be drawing a

conclusion, as to whether evidentiary tenacity has to be yet assigned to the

disclosure statement and the pursuant thereto recovery memo, especially

when they become ably proven and also do not fall foul from the above

stated principles, and/or to the well made resiling by the eye witness

concerned, from his previously recorded statement in writing. Emphatically,

the said exercise requires an insightful apposite comparative analyses being

made.

28. To a limited extent also if there is clear cogent medical account,

which alike, a frailly rendered eye witness account to the extent (supra), vis-

a-vis the prosecution case based upon eye witness account rather unfolds qua

the ante mortem injuries or other injuries as became entailed on the apposite

regions of the body(ies) concerned, thus not being a sequel of users

thereovers of the recovered weapon of offence, therebys too, the apposite

signatured disclosure statement and the consequent thereto recovery, when

may be is of corroborative evidentiary vigor, but when other adduced

prosecution evidence, but also likewise fails to connect the recoveries with

the medical account, therebys the said signatured disclosure statement and

the consequent thereto recovery, thus may also loose their evidentiary vigor.

Even the said rule has to be carefully applied depending upon the facts,

circumstances, and, the adduced evidence in every case.

29. However, in a case based upon circumstantial evidence when

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the appositely made signatured disclosure statement by the accused and the

consequent thereto prepared recovery memos, do not fall foul, of the above

stated principles, therebys they acquire grave evidentiary vigor, especially

when in pursuance thereto able recoveries are made.

30. The makings of signatured disclosure statement and the

consequent thereto recoveries, upon able proof becoming rendered qua both,

thus form firm incriminatory links in a case rested upon circumstantial

evidence. In the above genre of cases, the prosecution apart from proving the

above genre of charges, thus also become encumbered with the duty to

discharge the apposite onus, through also cogently proving other

incriminatory links, if they are so adduced in evidence, rather for sustaining

the charge drawn against the accused.

31. Consequently, since the statutory provisions enclosed in Section

25 of the Indian Evidence Act, provisions whereof becomes extracted

hereinafter, do not assign statutory admissibility to a simpliciter/bald

confession made by an accused, thus before the police officer, rather during

the term of his suffering custodial interrogation, but when the exception

thereto, becomes engrafted in Section 27 of the Indian Evidence Act,

provisions whereof becomes extracted hereinafter. Therefore, therebys when

there is a statutory recognition of admissibility to a confession, as, made by

an accused before a police officer, but only when the confession, as made by

the accused, before the police officer concerned, but becomes made during

the term of his spending police custody, whereafters the said incriminatory

confession, rather also evidently leads the accused, to lead the investigating

officer to the place of discovery, place whereof, is exclusively within the

domain of his exclusive knowledge.

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“25. Confession to police-officer not to be proved.–No
confession made to a police-officer, shall be proved as against a person
accused of any offence.

Xxx

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.”

32. Significantly, it would not be insagacious to straightaway oust

the said made signatured disclosure statement or the consequent thereto

recovery, unless both fall foul of the above principles, besides unless the

said principles become proven by the defence. Contrarily, in case the

disclosure statement and the consequent thereto recovery enclosed in the

respective memos, do not fall foul of the above principles rather when they

become cogently established to link the accused with the relevant charge.

Resultantly, if the said comprises but a pivotal incriminatory link for proving

the charge drawn against the accused, therebys the snatching of the above

incriminatory link from the prosecution, through straightaway rejecting the

same, but would result in perpetration of injustice to the victim or to the

family members of the deceased, as the case may be.

33. Now coming the facts at hands, since the disclosure statements

and the consequent thereto recoveries do become efficaciously proven by the

prosecution. Moreover, when none of the marginal witnesses, to the said

memos become adequately impeached rather for belying the validity of

drawings of the memos nor also when it has been proven that the said

memos are fabricated or engineered, besides when it is also not proven that

the disclosure (supra) did not lead to the discovery of the apposite fact from

the relevant place of hiding, thus only within the exclusive knowledge of the
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accused.

34. Conspicuously also, when the said disclosure statement is but

not a bald or simpliciter disclosure statement, but evidently did lead to the

making of efficacious recovery(ies), at the instance of the accused, to the

police officer concerned.

35. Consequently, when therebys the above evident facts rather do

not fall foul of the above stated/underlined principles in the verdicts (supra).

Consequently, both the disclosure statement, and, the consequent thereto

recoveries, when do become efficaciously proven, therebys theretos

immense evidentiary tenacity is to be assigned. Preeminently also when thus

they do corroborate the rendition of credible eye witness account vis-a-vis

the crime event. Moreover, when the memos (supra) also lend corroboration

also to the medical account, therebys through all the links (supra), the charge

drawn against the accused becomes proven to the hilt.

MEDICAL EVIDENCE (POST MORTEM REPORT)

36. The autopsy upon the body of deceased Ravi alias Monu was

conducted on 17.05.2007 by PW-22. PW-22 has proven qua his, authoring

Ex.P54, as relates to the autopsy as made upon the body of deceased.

37. Moreover, he has proven that the cause of death of deceased

Ravi alias Monu, was owing to shock and haemorrhage and injury to vital

organ i.e. brain as a result of firearm injury described in the post mortem

report. All the injuries were declared to be ante mortem in nature and were

declared to be sufficient to cause death in ordinary course of life. The

relevant ante mortem injuries as noticed by PW-22 on the body of deceased

are extracted hereinafter.

“1. An oval shape wound of entry of firearm of size 2.2, 2.5 cm
present on the left frontal region of scalp, 2 cm lateral to
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midline 8 cm above the left supraorbital ridge 12 cm above and
interior to trugs of left ear. Abrasion collar present. There was
signing off scalp hair and blackening and – tattooing present
around the wound in a circumference of about 2 cm on
dissection hematoma present in the layers of scalp below the
injury. There was corresponding hold present in the skull with
surrounding bone fractured on further dissection track of bullet
directed posteriorly, medially and towards right going through
left cerebral hemisphere and right cerebral hemisphere going
towards to occipital region on the right. Bullet recovered in the
posterior most part of right occipital region of skull inner part.
One small metallic piece also recovered from skull just below
the entry wound inside the skull. All the underlying brain
tissued contused and haemorrhage present bilateral.

2. A lacerated wound x3 x1 cm size on the left parietal region of
scalp 5 cm lateral to midline 10 cm above the upper end of ear
clotted blood below the wound present in the scalp.

3. A bluish contusion around the right eye present with diffuse
swelling of lids.

4. An abrasion 4 x 1 cm reddish brown on the under surface of
chin.

5. A contusion red in colour 4 x 1.5 cm on the anterior aspect of
upper 1/3 of left arm.

6. An abrasion reddish brown 3 x 0.5cm on the anterior aspect
of middle 1/3 on left forearm.

7. A C.A red 2x 0.5 cm on the lower 1/3 of post aspect of left
forearm.

8. A contusion red in colour 15 x 2 cm on the anterior chest
wall on left side obliquely placed 6 cm lateral to left nipple at
4.0′ clock position lower and 10 cm lateral to unbilicus on left
side.

9. An abrasion 0.5 x 0.3 cm on the knuckle of left middle finger.

10. A contusion red in colour17x4 cm on the anterior aspect of
right elbow going below on the interior aspect of forearm.

11. An abrasion 4 x 0.3 cm red on the anterior aspect of middle
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1/3 of right forearm.

12. A contused abrasion 1 x 0.5 cm red in colour on the
anterior aspect of left knee.”

FSL REPORT

38. Cotton wool swab, T-shift and Cargo jeans pant became sent to

the FSL concerned, through Ballistic Division. After examinations being

made at the FSL concerned, qua the contents of the sealed parcels, thus the

expert concerned, drew the hereinafter extracted results.

“Xxx
Results of serological analysis of blood
Sr. No. Name of exhibit Origin
I. Cotton wool swab Material disintegrated
4a. T-shirt Human
4b. Cargo jeans pants Human”

39. An analyses of the above made conclusions, as became drawn

by the experts concerned, working at the FSL concerned, and but after theirs

examining the contents of the sealed cloth parcels, as became sent there,

does but naturally brings forth an inference, that the prosecution has hence

invincibly proven, that the blood on the T-shirt and jeans pant in fact was

human blood. Therefore, irrespective of the fact that the prosecution has

been unable to bring forth evidence, that the blood occurring on the T-shirt

and jeans pant, was not belonging to the blood group of the deceased, yet

therebys the said stains of blood on the clothes (supra) are to be concluded to

be of the blood group of the deceased, especially when no evidence became

adduced by the defence, suggestive that the blood stains borne on T-shirt

and jeans pant rather not belonging to the blood of the deceased, thus

through the defence adducing the FTA card of the deceased.

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Report of Ballistic Expert

40. Moreover, when for reasons stated hereinafter, the report of the

FSL concerned, which becomes extracted hereinafter, does also pronounce

that the recovered firearm, as became sent for examination to the ballistic

expert, thus in sealed cloth parcels, rather was the relevant firearm

wherefrom the bullets, hence became fired, besides pronounces that the said

firearm was in a working condition. In sequitur, with this Court assigning

credence to the testification(s), of the ocular witness to the occurrence, and,

when in tandem therewith, the ballistic expert, has also made an opinion qua

the fired cartridge, becoming fired, from a country made pistol, as became

recovered through recovery memo Ex.P33, at the instance of the accused

concerned. Consequently, the charge drawn against the accused is to be

concluded to become invincibly proven but only to the extent qua the

findings of conviction as become recorded by the learned trial Court

concerned.

“LABORATORY EXAMINATION
Products of combustion of smokeless powder were
detected from barrels of Country made pistols marked W/1, W/2
and W/3 (each chambered for .315” cartridges). Test firings
were done in the laboratory from Countrymade pistols marked
W/1, W/2 & W/3. Their firing mechanism were found in working
order.

The class as well as individual characteristic marks
present on .315″ fired cartridge case marked C/1, .315″

misfired cartridges marked MC/1, MC/2, 315″ fired bullet
marked BC/1 and those on test fired cartridge cases and bullets
fired from Country made pistols marked W/1 to W/3 were
examined and compared under stereo and comparison
microscope.

Based on the examination carried out in the laboratory,
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the result of analysis is as under:-

RESULT

1. Country made pistols marked W/1 to W/3 (Ex.P68, Ex.P69
and Ex.P9) (each chambered for .315 cartridges) are firearms
as defined in Arms Act 54 of 1959. Their firing mechanism were
found in working order.

2. The Country made pistols marked W/1 to W/3 (Ex.P68,
Ex.P69 and Ex.P9) had been fired through.
3 .315″ fired cartridge case marked C/1 (Ex.P75) has been
fired from Country made pistol marked W/3 Ex.P9 and not from
any other firearm even of same make and bore/caliber, because
every firearm has got its own individual characteristic marks.

4. .315″ fired bullet marked BC/1 (Ex.P57) has been fired from
Country made pistol marked W/1 and not from any other
firearm even of same make and bore/caliber (Ex.P68), because
every firearm has got its own individual characteristic marks.

5. Misfired cartridge marked MC/1 (Ex.P77) has missed-fire
from Country made pistol marked W/1 (Ex.P68).

6. One of the firing pin impression present on .315″ misfired
cartridge marked MC/2 (Ex.P13) tallied with the firing pin
impression of country made pistol W/3 (Ex.P9).

7. Report in original from Serology division is enclosed
herein.”

FINAL ORDER

41. In consequence, the impugned verdict of conviction, and, also

the consequent therewith order of sentence, as becomes respectively

recorded, and, imposed, upon the convicts-appellants by the learned trial

Judge concerned, does not suffer from any gross perversity, or absurdity of

gross mis-appreciation, and, non-appreciation of the evidence on record. In

consequence, there is no merit in the appeals, as such, both the appeals are

dismissed. If the appellants are on bail, thereupon they are ordered to be

forthwith taken into custody through the learned trial Judge concerned,

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forthwith drawing committal warrants against the accused.

42. Case property, if any, be dealt with in accordance with law, but

only after the expiry of the period of limitation for the filing of an appeal.

43. Records be sent down forthwith.

44. The miscellaneous application(s), if any, is/are, also disposed

of.

(SURESHWAR THAKUR)
JUDGE

(VIKAS SURI)
24.01.2025 JUDGE
Ithlesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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