2006 JTR(SC) 67
2006 39 AIC 648 ; 2006 1 ALD(Cri)(SC) 580 ; 2006 54 AllCriC 832 ; 2006 2 BBCJ(SC) 188 ; 2006 1 CriCC 1066 ; 2006 CriLR 171 ; 2006 1 Crimes(SC) 201 ; 2006 2 EastCrC(SC) 33 ; 2006 1 JCC 259 ; 2006 2 JT 262 ; 2006 1 RCR(Cri) 818 ; 2006 2 SBR 300 ; 2006 2 Scale 25 ; 2006 9 SCC 386 ; 2006 2 SCC(Cri) 568 ; 2006 3 SCJ 401 ; 2006 UAD 415 ; 2006 1 UJ 593 ; 2006 1 WLC 340 ; 2006 KHC 1144 ; 2006 1 Supreme 561
2006(1) Supreme 561
Supreme Court of India
(From Uttaranchal High Court)
H.K. Sema & Dr. A.R. Lakshmanan, JJ.
Nisar Khan @ Guddu & Ors. —Appellants
versus
State of Uttaranchal —Respondent
Criminal Appeal No. 137 of 2005
With
Criminal Appeal No. 138/2005
Decided on 25-1-2006
Counsel for the Parties :
For the Appellants : Jaspal Singh, Sr. Advocate, Ms. Manjula Gupta, M.D. Pandeya, Mahabir Singh, Rishi Malhotra and Prem Malhotra, Advocates.
For the Respondent : Avatar Singh Rawat, AAG, Jatinder Kumar Bhatia, Advocate.
Important point
Where accused got the fire arm recovered from underneath sand by river bank, recovery could not be disbelieved on ground that place was frequented by public.
Act Referred :INDIAN PENAL CODE : S.302, S.149, S.148
(A) The offences punishable under Sections 302 (murder), 148 (rioting armed with deadly weapon), 149 (unlawful assembly), and Section 25 of the Arms Act were committed in the context of a coordinated attack involving five accused who armed themselves with pistols and Katas and entered the office of the deceased, leading to his death by gunshot. The provisions operate cumulatively, with Sections 148 and 149 providing the framework for rioting and unlawful assembly, Section 302 addressing the substantive offence of murder, and Section 25 of the Arms Act dealing with the possession of illegal arms in relation to the recovered weapons. The evidentiary value of the recovery was evaluated under Section 27 of the Evidence Act read with Sections 148 and 149, shaping the admissibility of the disclosure statement and subsequent recovery of the arms.
(B) Key legal principles include: (i) recovery of arms pursuant to the disclosure statement of the accused is admissible under Section 27 of the Evidence Act; (ii) the discovery statement leading to recovery of crime articles, even if unsigned, is valid if the accused directs the recovery; (iii) courts must disregard inadmissible parts of a statement and focus on the discovery part; (iv) credible direct eyewitness testimony, even if later turned hostile, can sustain conviction if supported by corroborative circumstances; (v) postmortem injuries caused by sharp objects may coexist with gunshot wounds; and (vi) concurrent sentencing applies where multiple offences are adjudicated.
Facts of the case:
The accused, travelling in a car bearing registration number DL 3C B 0888, entered the office of the deceased armed with pistols and Katas, and fired indiscriminately causing the death of the deceased. The accused were arrested, and pursuant to their disclosure statements, weapons were recovered from the bank of a river where they had been hidden under sand and stones. Three eyewitnesses supported the prosecution, though two turned hostile during trial. The trial court convicted all five accused under Sections 302/149, 25 of the Arms Act, and Section 148 IPC, sentencing them to death. The High Court set aside the death sentence and converted it to life imprisonment, while acquitting the accused of the Arms Act charge. No appeal was filed by the State against this conversion.
Findings of Court:
The High Court erred in disbelieving the recovery memo solely because the location was a public place, as the recovery was made from a concealed spot pointed out by the accused following their disclosure statements. The court also correctly held that the incised wounds mentioned in the postmortem could result from objects like furniture containing nails or steel material, and this did not negate the gunshot injuries. The eyewitnesses, despite being turned hostile, had consistently supported the prosecution version regarding the date, place, and genesis of the incident, and their earlier testimonies were reliable. No infirmity was found in the concurrent findings of the trial court and the High Court.
Issues:
Whether the recovery of arms following the disclosure statement is admissible under Section 27 of the Evidence Act; whether the turning hostile of eyewitnesses undermines the prosecution case; whether the postmortem incised wounds negate gunshot injury; and whether the High Court correctly set aside the death sentence and converted it to life imprisonment.
Ratio Decidendi:
The recovery of arms pursuant to the disclosure statement is admissible under Section 27 of the Evidence Act, and the discovery of the weapons from the indicated location corroborates the accuseds involvement. Courts must focus on the discoverable part of the statement and not be deterred by the public nature of the location. Hostile eyewitness testimony supported by contemporaneous statements can sustain conviction, and concurrent postmortem injuries do not negate gunshot wounds. The High Court correctly exercised discretion in commuting the death sentence to life imprisonment.
Result:
The appeals are dismissed, and the convictions under Sections 302/149, 25 of the Arms Act, and Section 148 IPC are upheld with concurrent sentences, while the death sentence is replaced by life imprisonment as per the High Courts order.
(A) The offences punishable under Sections 302 (murder), 148 (rioting armed with deadly weapon), 149 (unlawful assembly), and Section 25 of the Arms Act were committed in the context of a coordinated attack involving five accused who armed themselves with pistols and Katas and entered the office of the deceased, leading to his death by gunshot. The provisions operate cumulatively, with Sections 148 and 149 providing the framework for rioting and unlawful assembly, Section 302 addressing the substantive offence of murder, and Section 25 of the Arms Act dealing with the possession of illegal arms in relation to the recovered weapons. The evidentiary value of the recovery was evaluated under Section 27 of the Evidence Act read with Sections 148 and 149, shaping the admissibility of the disclosure statement and subsequent recovery of the arms.
(B) Key legal principles include: (i) recovery of arms pursuant to the disclosure statement of the accused is admissible under Section 27 of the Evidence Act; (ii) the discovery statement leading to recovery of crime articles, even if unsigned, is valid if the accused directs the recovery; (iii) courts must disregard inadmissible parts of a statement and focus on the discovery part; (iv) credible direct eyewitness testimony, even if later turned hostile, can sustain conviction if supported by corroborative circumstances; (v) postmortem injuries caused by sharp objects may coexist with gunshot wounds; and (vi) concurrent sentencing applies where multiple offences are adjudicated.
Facts of the case:
The accused, travelling in a car bearing registration number DL 3C B 0888, entered the office of the deceased armed with pistols and Katas, and fired indiscriminately causing the death of the deceased. The accused were arrested, and pursuant to their disclosure statements, weapons were recovered from the bank of a river where they had been hidden under sand and stones. Three eyewitnesses supported the prosecution, though two turned hostile during trial. The trial court convicted all five accused under Sections 302/149, 25 of the Arms Act, and Section 148 IPC, sentencing them to death. The High Court set aside the death sentence and converted it to life imprisonment, while acquitting the accused of the Arms Act charge. No appeal was filed by the State against this conversion.
Findings of Court:
The High Court erred in disbelieving the recovery memo solely because the location was a public place, as the recovery was made from a concealed spot pointed out by the accused following their disclosure statements. The court also correctly held that the incised wounds mentioned in the postmortem could result from objects like furniture containing nails or steel material, and this did not negate the gunshot injuries. The eyewitnesses, despite being turned hostile, had consistently supported the prosecution version regarding the date, place, and genesis of the incident, and their earlier testimonies were reliable. No infirmity was found in the concurrent findings of the trial court and the High Court.
Issues:
Whether the recovery of arms following the disclosure statement is admissible under Section 27 of the Evidence Act; whether the turning hostile of eyewitnesses undermines the prosecution case; whether the postmortem incised wounds negate gunshot injury; and whether the High Court correctly set aside the death sentence and converted it to life imprisonment.
Ratio Decidendi:
The recovery of arms pursuant to the disclosure statement is admissible under Section 27 of the Evidence Act, and the discovery of the weapons from the indicated location corroborates the accuseds involvement. Courts must focus on the discoverable part of the statement and not be deterred by the public nature of the location. Hostile eyewitness testimony supported by contemporaneous statements can sustain conviction, and concurrent postmortem injuries do not negate gunshot wounds. The High Court correctly exercised discretion in commuting the death sentence to life imprisonment.
Result:
The appeals are dismissed, and the convictions under Sections 302/149, 25 of the Arms Act, and Section 148 IPC are upheld with concurrent sentences, while the death sentence is replaced by life imprisonment as per the High Courts order.
Judgment
Sema, J.—These two appeals are directed against a common judgment of the High Court of Uttaranchal at Nainital dated 5.8.2004 confirming the order of the trial court convicting the five appellants under Sections 149, 302/149 IPC and a fine of Rs. 10,000/-; in default two years’ RI. They were further convicted under Section 25 of the Arms Act and Section 148 IPC and sentenced to three years’ RI respectively and a fine amounting to Rs. 1,000/-; in default one year’s RI. It was further directed that all the sentences would run concurrently.
2. Criminal Appeal No. 137 of 2005 has been preferred by three accused, A1-Nisar Khan alias Guddu, A2-Gulzar Khan alias Pappu and A3-Bhura alias Shakil. Criminal Appeal No. 138 of 2005 has been preferred by two accused, A4-Rajesh Sharma and A5-Navin Sharma. The trial court convicted A4-Rajesh Sharma and A5-Navin Sharma under Section 302/149 IPC and sentenced them to death. However, on appeal the High Court set aside the death sentence imposed upon A4 and A5 and converted the death sentence into life imprisonment.
3. No appeal has been preferred by the State of Uttaranchal against the order of the High Court converting the death sentence of A4 and A5 into life imprisonment. The High Court has also acquitted all the accused of the charge under Section 25 of the Arms Act. Aggrieved thereby by the order of the High Court confirming conviction recorded by the trial court the two appeals have been preferred by the five convicted accused by special leave.
4. We have heard the parties. It is contended by Mr. Jaspal, Singh, learned senior counsel that no link has been established with regard to the owner of the offending Car bearing No.DL 3C B 0888 (Fiat N.E.Car) connecting the accused with the offence. He further contended that the recovery of the arms said to have been used by the accused has not been proved by the prosecution. All the three eye-witnesses who have said to have been direct witnesses of the scene of occurrence have been turned hostile.
5. With regard to the Car bearing registration No. DL 3C B 0888 which was used by the accused in the course of the offence committed it has been established by the evidence of PW.2 Mohd. Arif. He has categorically stated that all the accused named in the FIR had come to the office of the deceased Juned Alam armed with pistols/Katas entered inside and started firing indiscriminately. This statement has been corroborated by the evidence of PW.1-Shoeb Alam and PW.4-Naeem Babu. Therefore, there is a direct evidence by the eye-witnesses. Non-recovery of the offending Car said to have been used by the accused will be no ground to disbelieve otherwise the creditworthy evidence of the prosecution witnesses.
6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17.12.1999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these have been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee alias Dhana vs. State of West Bengal, 1994 (2) SCC 220, it is held that entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
7. In the case of Gola Konda Venkateswara Rao vs. State of A.P., 2003(9) SCC 277, this Court reiterated the view and held that the discovery statement of an accused leading to recovery of of crime articles from concealed place. Even though the discovery statement and the recovery memo did not bear the accused’s signature. The fact of recovery from the well and dug out from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given fortified and confirmed by the discovery of the wearing apparel and skeletal remains of the deceased and, therefore, the information and statement cannot be held false. In the present case on the recovery memo the signatures of all the accused have been obtained. In the case of Praveen Kumar vs. State of Karnataka, 2003(12) SCC 199, the same view has been reiterated.
8. As already noted, in the instant case the discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointing out by each of the accused.
9. The other contention of Mr. Jaspal Singh that all the eye-witnesses were turned hostile and the credibility of their testimonies are doubted. It is clearly apparent on the record that eye-witness PW.4-Naeem Babu had filed an application before the trial Magistrate (Ex.Kha-27) that he has been threatened and intimidated by the accused not to depose against them. So also PW.1 and PW.2 who were eye-witnesses and supported the prosecution case consistently were turned hostile. PW.1 and PW.2, direct eye-witnesses of the occurrence were examined, cross-examined and discharged on 4.1.2001. They were recalled on 7.1.2002 and re-examined by the defence on which date all of them turned hostile and resiled from the previous statement. It clearly appears that the eye-witnesses were won over by threat or intimidation after more than one year of their examination and cross-examination and ultimately when the eye-witnesses were won over by the accused they were recalled and re-examined on 7.1.2002. Even on re-examination on 7.1.2002 the eye-witnesses consistently supported the prosecution story with regard to the date and place of incident, the Car in which they came and the genesis of incident. To that extent they supported the prosecution story. They resiled from the previous statement only with regard to the identity of the accused. It is in evidence on record that the accused and prosecution parties are at loggerheads because of business rivalry and known to each other from before. Naturally, by the time the eye-witnesses were recalled, they were won over either by money, by muscle power by threats or intimidation. We are of the view that no reasonable person properly instructed in law would allow an application filed by the accused to recall the eye-witnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.
10. The other contention of Mr. Jaspal Singh is that the prosecution evidence discloses that all the accused, five in numbers, armed with pistol and Katas and five deceased were done to death by the gun shot. He further pointed out that in the postmortem report the deceased also suffered incised wound which cannot be caused by the gun shot injury. This contention has been examined by the High Court and repelled on the ground that it is on the evidence on record that such incised wound could be caused by furniture, table and other articles lying inside the office where the murder has taken place. Mr. Jaspal Singh contended that this view of the High Court is extraneous because the Doctor who conducted the postmortem was not confronted with this question. But from the original record we find that this question was confronted with PW.3 Doctor -R.A. Kedia. The Doctor-PW.3 in his cross-examination categorically stated that such incised wound could be cause if a table is fixed with nail and other steel material inside the office. From the postmortem report it also clearly appears that the accused died of gun shot injury.
11. In the facts and circumstances of this case as stated above, we do not find any infirmities in the well reasoned concurrent finding recorded by the two courts below. These appeals, being devoid of merit, are accordingly dismissed.
Appeals dismissed.