TMI Blog2001 (2) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 302, 394, 397, 398, 342, 120B and 411 IPC besides Sections 25, 27, 54 and 59 of the Arms Act and Section 5 of the Terrorist and Disruption Activities (Prevention) Amendment Act, 1993 (hereinafter referred to as TADA (P) Act ). The trial court found appellant Vinod guilty of offences under Section 392/34, 397 and 302 IPC, besides Section 5 of the TADA(P) Act. He was sentenced to imprisonment for life and a fine of ₹ 2,000/- for the offence under Section 302 IPC, for seven years rigorous imprisonment for the offence under Sections 397, 392/34 and was also sentenced to rigorous imprisonment for five years and a fine of ₹ 2,000/- for the commission of offences under Section 5 of TADA (P). Accused Mohabat Ali was convicted for the offences under Sections 392/34 IPC and Section 5 of the TADA(P) Act and was sentenced to rigorous imprisonment for five years and a fine of ₹ 2,000/- on each count. Appellants Nawabuddin and Sanjay Moley were sentenced to five years rigorous imprisonment and a fine of ₹ 2,000/-- each for the commission of offence under Sections 392/34 IPC. Various sentences were also imposed in case of default of payment of fine. All the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon which the people collected. Formal case was registered on the basis of the statement of the aforesaid domestic servant. During investigation appellant Sanjay Moley, the nephew of the deceased was arrested and on his interrogation other accused apprehended. All the accused made disclosure statements in consequence of which the 32 bore revolver with six cartridges, a knife, blood stained clothes, scooter and the looted property were recovered from their houses and the places where they had stated to have hidden. After their conviction and sentences only three of the four accused have filed the present appeals. Mohabat Ali, convict has chosen not to challenge the verdict of the Designated Trial Court. We have heard at length S/Shri R.K. Jain and Sushil Kumar, Senior Advocates appearing for appellants Sanjay and Nawabuddin and Shri V.Ramasubramaniam, Amicus Curaie for appellant Vinod. The learned counsel appearing for the appellants have vehemently argued that in the absence of direct evidence in the form of eye-witnesses, the trial court was not justified in recording the conviction against the appellants and sentencing them to various imprisonments. According to them the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he should go to the police and make his genuine statement there. On the same night the witness was called in the police station where his statement was recorded. Assailing the testimony of PW5, Shri R.K. Jain, learned Senior Counsel appearing for Sanjay, appellant, submitted that the statement of the witness is fabricated, after-thought and unreliable. According to him, there was no cause or occasion for Sanjay to go to the witness for making the aforesaid extra judicial confession as, according to him, they did not have such relations between them which could prompt the aforesaid accused to confide with the witness. He has further submitted that as the accused Sanjay was in the police station at the time when statement of PW5 was recorded and despite statement permitted to go home, the story of the accused making the extra-judicial confession stood falsified. We have critically analysed the statement of the aforesaid witness and do not find any substance in the submissions made on behalf of the aforesaid accused. The witness, PW5 has categorically stated I developed friendship with accused Sanjay in the last 1 and half years of this incident . The common friend of the witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, had told us that my presence was required in the police station about a statement in regard to Sanjay, accused. Accused Sanjay was present in the police station at that time . There is no confusion in our mind that at the time the police party left the police station for contacting PW5 at about 7.30 and 8.00 p.m., Sanjay, appellant was present in the police station. He was directed to go home as by that time there was nothing against him as per the statement of SI Virender Singh (PW24). The testimony of PW5 in this regard does not suffer from any contradiction to absolve the appellant Sanjay of his criminal liability with respect to the commission of the crime for which he has been convicted and sentenced. As to why the said accused was not arrested on the same night, the defence has not sought any explanation from the IO. One of the reasons for not arresting accused Sanjay immediately after recording the statement of PW5 may be that the investigating officer knew that the said accused had to appear in the police station on the next morning at 10.00 a.m. for which specific directions had been given to him. Be that as it may, this alleged omission of not arresting the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27. The position of law in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. 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 admissible since they do not relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to the fact thereby discovery being admissible. Dealing with the conclusions arrived at by the High Court and on the facts of the case, this Court observed: The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable in so far as it distinctly relates to the fact thereby discovered; and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court. In Mohmed Inayatullah v. The State of Maharashtra [AIR 1976 SC 483] it was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in State of Maharashtra v. Damu, S/o Gopinath Shinde Ors. [2000 (6) SCC 269] has held that the Section 27 was based on the doctrine of confirmation by subsequent events and giving the section actual and expanding meanings, held: The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67] is the most quoted authority for supporting the interpretation that the fact discovered envisaged in the section embraces the place from which the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of the words looted property in relation to the articles seized which were found to have been taken away after the commission of the crime of murder and robbery would not change the nature of the statement. The words do not implicate the accused with the commission of the crime but refer only to the nature of the property hidden by them which were ultimately recovered consequent upon their disclosure statements. Hypertechnical approach, as projected by the defence counsel, would defeat the ends of justice and have disastrous effect. The property recovered consequent upon the making of the disclosure statements has been proved to be the property of the deceased, stolen after the commission of the offence of robbery and murder. Besides Section 27, the courts can draw presumptions under Section 114, Illustrations (a) and Section 106 of the Evidence Act. In Gulab Chand v. State of M.P. [1995 (3) SCC 574] where ornaments of the deceased were recovered from the possession of the accused immediately after the occurrence, this Court held: It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession in the recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible explanation for lawful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to disbelieve the testimony of the IO Harbans Singh (PW25). A faint attempt was made by the counsel for the appellants to persuade us to hold that the recoveries were doubtful because according to them prosecution had failed to ascertain the details of the stolen property and get it identified only after the recovery. Mrs.Renu Moley, PW17 who is the daughter of the deceased has deposed in the Court that she was called in the police station on 21st June, 1990 and enquired about the articles missing from her house. After checking she found missing 8 gold bangles, 6 other gold bangles, 6 pairs of ear- rings of gold, 6 pairs of tops, three pairs of ear-jhumkas, one Mangalsutra, one ginni, two golden rings, two idols of Lord Ganesha and Goddess Lakshmi made of silver, the plates of silver on which Air India was engraved, one lady set of silver, 8 wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20 suit-pieces, 6 gents suit-pieces, stitched shirt, two big bags of leather and one small bag. She has again stated that after the recovery of the property from the accused persons she identified the articles and found them to be belonging to her mother, which were stolen on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and within 3-4 days the recovery of the stolen articles was made from his house at the instance of the accused. The court held that such close proximity of the recovery which has been indicated by the court as important time factor should not be lost sight of . On the basis of the evidence led in the case and keeping in view the whole conspectus of the case the trial court rightly concluded that accused Vinod in the process of committing robbery used deadly weapon, namely, dagger and killing Smt.Sheela while the other three accused persons have participated in the commission of crime of robbery and actually removed huge articles including jewellery from the house of the deceased. Shri Ramsubramaniam, Advocate, appearing as Amicus Curaie for accused Vinod submitted that as the prosecution has failed to prove the origin of blood found on the pant and shirt of vinod appellant, he could not be held guilty of the offence of murder. Repelling such contention this Court in State of Rajasthan v. Teja Ram Ors. [JT 1992 (2) SC 279 ] held: Failure of the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
