Even though we are disposing of these appeals by this order it is necessary, considering the interpretation of section 27 of the Evidence Act and also from our experience regarding the manner and the mode in which discoveries under section 27 of the Evidence Act are proved in the trial Court, either before the Magistrate or before the Sessions Judge, we deem it necessary to give certain guide-lines and directions in this regard to all the trial courts. Those directions are as follows:-
(A) The prosecutor conducting criminal cases where a recovery or discovery under section 27 of the Evidence Act is to be proved, should be careful in seeking compliance to section 27 strictly from the concerned witnesses viz. the panchas and the Investigating Officer who are intended to be examined for that purpose.
(B) The prosecutor should be careful in eliciting from the witnesses whether panchas or police officer, the exact words used by accused with reference to the articles involved in the crime, place where they are kept and the manner in which they are kept.
(C) The Judge of Judges (including Magistrate and Sessions Judge recording evidence) should take down the words used by witnesses whether panchas or police officer regarding disclosure made by accused to them or regarding statement made by accused to them which led to the discovery of objects, the place where the objects were kept and the manner in which they were kept.
(D) The trial Court should bear in mind that mere proof of panchanama as a document itself is not sufficient and the contents of the panchanama viz. the statements of accused under section 27 of the Evidence Act must be proved and brought on record by the witnesses in their oral testimony.
(E) The prosecutor and the trial Court should not permit summary of the evidence of the witnesses to go on record in so far as the oral evidence is in respect of section 27 of this Act. Whatever witnesses state in the Court in this regard as the words of the accused or the statements of the accused should be taken down in its full original form and there should be no abridging or curtailment in that regard while recording the evidence.
(F) While examining memorandum of discovery under section 27 of the Evidence Act, that part of the statement of the accused which is liable to be excluded as inadmissible should be specifically mentioned in the deposition.
(G) When the arguments started in this case we found that there was no map either sketch map, rough map, or map drawn according to scale of the scene of offence or the spot where the murder took place. This created handicap and obstacle in appreciation of evidence, and therefore, we were required to visit the spot, and hence it is necessary to give further directions to the Investigating Officers and the Police Officers that in every offence where capital punishment is prescribed and on considering the nature of the offence and facts of the case, the Investigating Officers should prepare a map or a plan depicting true and correct picture of the scene of offence, surrounding areas and the places where the witnesses claimed to be present. These directions should be circulated to the Commissioner of Police or Inspector General who in turn will communicate all the Investigating Officers within his jurisdiction.
These guide lines are only regarding the steps to be taken while recording the evidence and they are not to be construed in any manner limitation or liberties of the trial courts in appreciating the evidence that has come on record. All these directions should be scrupulously followed by all the concerned.
Bombay High Court
Shri Shankar Gopal Patil & Others vs The State Of Maharashtra on 14 October, 1999
Equivalent citations: 2000 (5) BomCR 360, 2000 BomCR Cri
Bench: D Trivedi, D Deshpande
1. Appeal No. 336 of 1996 is filed by the State against the acquittal of original Accused Nos. 2 and 4 to 12. Appeal No. 371 of 1996 is filed by original accused No. 2 against his conviction and Appeal No. 135 of 1996 is filed by original accused No. 1 and 3 against their conviction.
2. All the accused Nos. 1 to 12 have been prosecuted under section 302 read with section 149 of the Indian Penal Code, under sections 326, 307 read with section 34 of the Indian Penal Code, under section 27 of the Arms Act read with section 34 of the Indian Penal Code and separately under sections 147, 148 and 149 of the Indian Penal Code.
3. All the Accused Nos. 1 to 12 were acquitted for the offences punishable under sections 147, 148 and 149 of the Indian Penal Code. And out of 12 accused, Accused Nos. 1, 2, 3, 7 and 8 have been convicted. Accused Nos. 1 and 3 are convicted under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life. Accused Nos. 7 and 8 are convicted under section 326 of the Indian Penal Code and each is sentenced to suffer R.I. for four years and to pay fine of Rs. 500/-, in default to suffer further R.I. for three months. Accused No. 2 is convicted under section 307 of the Indian Penal Code and sentenced to suffer R.I. for seven years and to pay fine of Rs. 500/- in default to suffer further R.I. for three months. Accused Nos. 1, 2 and 3 are convicted under section 27 of the Arms Act read with section 34 of the Indian Penal Code and each is sentenced to suffer R.I. for three months.
4. It is in this background the State has filed an appeal against the acquittal of the other accused for the substantive offences and the offences under sections 147, 148 and 149 of the Indian Penal Code, and the Accused Nos. 1 and 3 and 2 have filed their appeals against their convictions. It appears from the record that Accused Nos. 7 and 8 viz. Eknath Mahadu Patil and Barashya Babu Bhoir respectively, have not filed any appeal against their conviction under section 326 of the Indian Penal Code by which they were sentenced to suffer R.I. for four years and fine etc.
5. The facts of the prosecution case are as under :
Prosecution Witness No. 1 Baliram Pandurang Bhoir owned an agricultural field bearing Survey No. 93 Hissa No. 2 at Dahisar Naka. He had two sons so far as this case is concerned viz. Ramdas and Narayan, Ramdas died in the incident because of the bullet injury and other injuries to his person.
Narayan was also one of the victims of the assault who received bullet injury, but he was survive. He is Prosecution Witness No. 2.
6. There was a dispute in respect of Survey No. 93 between Baliram Pandurang Bhoir (P.W. No. 1) on one side and accused Shankar Gopal Patil on the other side. Balirarn Pandurang Bhoir, had, therefore got the land measured in April 1992 through a Government Surveyor. But at that time boundary marks could not be fixed, and therefore, it was decided to fix the boundary marks on next time. On 29th June 1992 cadastral surveyor Jogi was brought to the Survey No. 93 from Thane in a jeep by Baliram and his sons Narayan and Chandrakant. They came to the disputed field at about 12.00 noon. Some work was done by the cadastral surveyor Jogi. Thereafter, at about 1.00 p.m. survey work was stopped for lunch break.
7. The field is just near to Dahisar Naka. There are two ways from southern and eastern directions of the said field. Southern road is a tar road going to Dahisar village. Eastern road is a Kaccha footpath known as Walkan Road. There is a Agrawal garage along with compound wall which is adjacent to this kaccha road on the eastern side. At the time of incident there were two gates to Agrawal compound, one is on the eastern side and another on the southern side. From the gate at eastern side a footpath was available through the area of Agrawal compound going to Dahisar village through and by the side of field known as Chikan Shet.
8. As per the prosecution case when the survey work was stopped for lunch break Narayan and Ramdas. P.W. No. 2 and the deceased, started to go to village by this footpath. Ramdas was ahead and Narayan was followed him. Baliram was in the field Survey No. 93. When they reached at Agrawal compound on the eastern side gate, a jeep came from Dahisar Naka and all the Accused Nos. 1 to 12 got down from the jeep. They were armed with weapons. Three of them had guns. They started chasing Narayan and Ramdas. They opened fire from the guns and a bullet was hit to Ramdas. He was also assaulted by other accused with other weapons causing as many as eight injuries to Ramdas. Narayan was also assaulted by guns. Thereafter the accused ran away from the spot towards Dahisar Naka to the southern side. The villagers and Balirarn assembled and Baliram had seen all the accused running away towards Dahisar Naka with the weapons in their hands. Narayan told him and the villagers about the assault, names of the accused and the weapons which they had with them. He also told that Ramdas was dead and was lying.
9. Thereafter Narayan was removed in a jeep by Baliram and villagers and taken to Mumbra Police Out Post and then he was taken to Civil Hospital Thane. In the mean time the Mumbra Police had also received an information that there was a firing at Dahisar Naka, and therefore, they had deputed one Sub-Inspector in a jeep. Baliram met this sub-inspector on the way. His complaint was taken down as a F.I.R. and offences were registered. Thereafter, investigation was started. All the three guns and other weapons were recovered at the instance of concerned accused under section 27. Postmortem of the body of Ramdas was undertaken. Spot panchanama was prepared. Statements of witnesses were recorded. The guns were sent to the ballistic expert along with cartridges seized on the spot. Other articles were sent to the Chemical Analyzer and after completing the investigation, charge sheet was, filed and the accused came to be convicted as stated above.
10. We heard Mr. Shirish Gupte for all the convicted accused against their conviction and Mr. Shringarpure, learned A.P.P in reply thereto and also in support of State Appeal No. 336 of 1996 against the acquittal of the accused and also Mr. Chitnis for original Accused Nos. 2, 4 to 12 in the appeal against all the acquitted accused.
11. It is necessary to mention here that when the arguments were heard at length it was found necessary by both of us that spot inspection was necessary to enable us to appreciate the evidence properly. Mr. Gupte, Mr. Chitnis and learned A.P.P. also made similar suggestion. Therefore, spot was inspected by us on 28-8-1999. Spot note was prepared. A rough sketch was depicted by me in the presence of the Advocates and Sr. P.I. of Mumbra Police Station was also present and that spot note and map are forming the part of record and for the purpose of convenience they have been marked and exhibited as X-1.
12. Mr. Shirish Gupte, while challenging the conviction made the following submissions:-
The entire case of the prosecution is false. The evidence of Baliram Pandurang Bhoir (P.W. No. 1) is false because Baliram did not witness any incident, could not seen the incident, was not at all present on the spot and no narration was made to him by Narayan, hence, the F.I.R. lodged by Baliram is required to be rejected. The prosecution did not examine Government Cadastral Surveyor Shri Jogi, even though, according to the evidence of Baliram (P.W. No. 1) and Narayan (P.W. No. 2) Shri Jogi was very much present when the alleged firing took place.
13. Non-examining Shri Jogi is a serious lacuna of the prosecution case and it falsifies the prosecution case. Janu Bhoir (P.W. No. 3) was not present when Ramdas was assaulted and killed. The story of the prosecution that all the 12 accused came to the spot in a jeep and ran away from the spot after their object was achieved without taking the jeep is highly improbable because the accused would have in all probability and should have used the jeep for running away from the spot. Other witnesses of the prosecution are of got up witnesses and none of them had seen the assault. Recovery of guns and other weapons from the different accused is defective and is against the provisions of section 27 of the Evidence Act, and in view of the ruling of the Supreme Court in that regard, no reliance can be placed on the evidence of recovery. Therefore, there is no evidence to corroborate the testimony of Narayan (P.W. No. 2). There is also no evidence showing the involvement of each of the accused separately and independently, and therefore, the conviction of the accused is wrong and is liable to be set aside. The trial Court did not consider this important lacuna in the prosecution case and accepted inadmissible evidence and improbable story of the prosecution witnesses, and therefore, came to a wrong conclusion against the accused holding them guilty of offence.
14. Regarding these submissions of Mr. Shirish Gupte and regarding the appeal against the acquittal filed by the State it was contended by the learned A.P.P. Mr. Shringarpure that findings of the trial Court that there was no unlawful assembly was totally wrong and contrary to the proved facts. He made attack on the reasonings given by the trial Court for acquitting all the accused of the offences under sections 147, 148 and 149 of the Indian Penal Code and for acquitting the Accused Nos. 2 and 4 to 12 of other offences.
According to him there was sufficient evidence against all the accused, and particularly against the acquitted accused, for their conviction.
15. As against this, Mr. Chitnis appearing for the acquitted accused supported the submissions made by Mr. Shirish Gupte and in addition he contended that the evidence of recovery of all the weapons and other articles at the instance of other accused was full of legal lacuna and defects, and the trial Court has rightly rejected that evidence and acquitted the accused. And therefore, according to him, there were no reasons to interferer with the order of acquittal.
16. Out of the 12 accused, as per the prosecution case, Accused No. 1 Shankar Patil, Accused No. 2 Najir Shaikh and Accused No. 3 Balirarn Waman Patil had guns with them and which were discovered at their instance. Accused No. 4 Pandurang Kalu Patil, Accused No. 5 Baliram Ganpat Patil and Accused No. 6 Janardan Shaligram Patil had knives with them. Accused No. 7 Eknath Patil had sword with him. Accused No. 8 Barashya Bhoir had knife, Accused No. 9 Baburao Patil had stick. Accused No. 10 Dadu Patil had no weapon. Accused No. 11 Waman Patil had knife, and Accused No. 12 had stick with him.
17. The eye witnesses include P.W. No. 1 Baliram Pandurang Bhoir, P.W. No. 2 Narayan Bhoir, P.W. No. 3 Janu Bhoir, P.W. 4 Prabhakar. Bhoir and P.W. No. 5 Harish Bhoir. The other witnesses include different panchas in respect of the panchanama for recovery of weapons and other articles, the doctors, the Police Officers etc.
18. Mr. Gupte has made an attack on the evidence of P.W. No. 1 Baliram on the ground that there were serious infirmities in his evidence, and therefore, his evidence is false and liable to be rejected. The important thing to be borne in my mind in this regard is that P.W. No. 1 Baliram does not claim to be an eye witness. He has not seen the incident of assault by the accused on deceased Ramdas and injured Narayan (P.W. No. 2). What he states is that he was in the field and he heard the report of the gun from east side. At that time when he saw towards east side, he has seen that all these accused running towards the hillock area. (Obviously this running of the accused after the assault was completed by them and that accused were armed with weapons as described by P.W. No. 1). Secondly, according to him, he then went by road by which Narayan and Ramdas had proceeded to the village. He found Narayan in injured condition and then Narayan told him about the incident and the weapons carried by each of the accused and the assault made by them to Ramdas and Narayan. Thereafter P.W. No. 1 took Narayan in a jeep and then got him admitted in the hospital.
19. From this evidence it is clear that Balirarn (P.W. No. 1) is not the witness to the incident. The only question is, therefore, whether he could have seen the accused running away from the field after the assault with the weapons in their hands and whether Narayan could have narrated the incident to him and whether Baliram was fit and competent to lodge F.I.R.
20. The trial Court has relied upon the evidence of Baliram but has also held that even if the presence of Balirarn in the field and his seeing the accused running away after the assault is not accepted, the narration by Narayan of the incident to him and lodging of. F.I.R. by Baliram are the facts proved by the prosecution beyond reasonable doubt. These reasons given by the trial Court, even after hearing Mr. Gupte, do not appear to be unreasonable or without any basis.
21. Admittedly, Baliram (P.W. No. 1) was the head of the family. It was his land which was in dispute and for which Surveyor Jogi was called. Therefore, his presence in the field at the time of work of Surveyor Jogi (not examined by the prosecution) cannot be said to be unnatural. He stated that the surveyor stopped work at 1.00 p.m. for lunch and then Chandrakant and Ramdas left the land for their lunch. So also surveyor Jogi went for his lunch. And within 3-4 minutes thereafter he heard report of the gun from the eastern side and he saw the accused were running towards the hillock area (direction opposite to the place of assault) with weapons in their hands. The presence of Balirarn (P.W. No. 1) in the field at that particular moment can be excluded on the ground that surveyor Jogi stopped survey work and had gone for lunch then Baliram being the head of the family was likely to accompany with surveyor Jogi and according to the suggestion of the defence Baliram was in his hotel which is towards hillock side.
22. However, there is no reason to disbelieve Baliram so far as narration made by Narayan of the incident to him is concerned. Admittedly, the hotel is about 4-5 minutes away from the spot where Narayan and Ramdas were assaulted and injured. And even though Ramdas died on the spot and Narayan survived, and therefore, going of Baliram to the spot on receiving information of the incident and attack, and Narayan's narrating entire incident, cannot be rejected and there are no reasons to disbelieve him in that regard. No doubt Narayan was in a injured condition and his injuries were bleeding, but he was conscious and on seeing his father it was natural for Narayan to disclose as to what had happened and how Ramdas and Narayan were assaulted, by whom and with what weapons.
23. Mr. Gupte criticized the evidence of Baliram on the grounds that the story of Baliram regarding lodging of F.I.R. in Mumbra Police Station is falsified by the evidence of Investigating Officer. In this regard Baliram had stated as under:-
"Then I asked the villagers who were gathered there to bring the jeep. Then we took the injured Narayan first at Dahisar Police Chowky but since there was no one present in the chowky so we went to Mumbra Police Station. The Police immediately took Narayan to the hospital. Then my complaint was recorded."
The F.I.R. lodged by Baliram is at Exhibit 70 and the timing mentioned by P.S.I. More there upon is 2.15 p.m. on 29-6-1992. P.S.I. More was examined by the prosecution as P.W. No. 18. He has stated that on 29-6-1992 he was present in the police station. At about 1.30 p.m. a wireless message was received that there was a firing at Dahisar. He left the police station with staff in a jeep and on way complainant met them when he was coming in rickshaw. Therefore, the complainant gave a signal to stop the vehicle, and then the complainant accompanied them to Dahisar and after reaching Dahisar he recorded the complaint of Balirarn which is at Exhibit 70 and then same was forwarded to Mumbra Police Station.
24. On the face of it the evidence of Baliram regarding sequence of lodging of F.I.R. and the place where it was lodged is contradictory to the evidence of P.W. No. 18. Mr. Gupte, therefore, contended that in view of this contradiction the entire story of Balirarn regarding lodging of report i.e. the F.I.R. Exhibit 70 on the basis of narration made by Narayan is liable to be rejected.
25. Before accepting the submissions of Mr. Gupte regarding the F.I.R. it is pertinent to note that the statement of Narayan was recorded by the police on the same day i.e. on the night in the hospital while he was on the death bed, and according to Baliram, he had lodged the F.I.R. on the basis of narration given by Narayan and even before the trial Court Baliram categorically admitted that whatever information he got about the incident was given by Narayan and by no one-else. Further the evidence of Narayan and the contents of the F.I.R. and also the statement of Narayan recorded in the hospital are almost identical and there is no variation and variance regarding material particulars.
26. If at all the F.I.R. was concoction on the part of Baliram after deliberation with his relatives and on account of previous enmity with the accused. Baliram could have stated that he was present at the time of incident. But neither in the F.I.R. nor before the Court Baliram has claimed to be an eye witness. His report was taken down at 2.15 p.m. and therefore the contradiction in the evidence of Baliram and P.S.I. More regarding the place of lodging of F.I.R. cannot be regarded as fatal to the prosecution. There is one more angle to the evidence of Baliram and i.e. according to him and according to Narayan, Baliram met Narayan immediately after the assault and Narayan disclosed the incident to him. Considering the fact that Surveyor Jogi had come to measure the land of Baliram and also considering the fact that Baliram was the father and Karta of the family and directly involved in the survey, the presence of Baliram at the time of survey cannot be totally ruled out. Further the fact that Baliram's hotel was 3-4 minutes away from the spot of incident of assault and even from the fields of Baliram, then Baliram's going to see Narayan after the assault cannot be ruled out. Therefore, even if the evidence of Baliram regarding lodging of F.I.R. is rejected not on account of F.I.R. being concocted but on account of contradiction regarding place of lodging F.I.R., the evidence of Baliram can be accepted so far as the narration given by Narayan is concerned. Therefore, the trial Court has rightly accepted the evidence of Baliram so far as this limited aspect is concerned and we are also of the same view that Baliram's evidence regarding narration made by Narayan is required to be accepted.
27. Other important witness of the prosecution is injured Narayan (P.W. No. 2). His evidence was criticized by Mr. Gupte regarding the details of the assault given by Narayan and regarding the manner in which the assault was carried out and part played by each of the accused together with the weapons in their hands.
28. Admittedly, Narayan was present when the survey work was going on. He has been injured in the assault and he had bullet injury, and therefore, it cannot at all be said that he was not present on the spot. His injuries are the proof of his presence, and he has received a gun shot injury on his head, neck and back. The prosecution has proved that the gun was used in this assault, and therefore, there cannot be any dispute about the presence of Narayan and his receiving injuries in the incident. The evidence of Narayan against the accused as an author of his injuries and the author of injuries of Ramdas can be accepted by the Court.
29. Narayan has stated that on the date of incident survey was carried up to 1.00 p.m. When everybody left for lunch from the field of Baliram, Ramdas started first and Narayan followed him and while they were going by the footway by the side of Agarwal compound a jeep came from the side of Dahisar Naka. It stopped at the Agarwal compound and 12 persons got down i.e. all the 12 accused. They had arms with them and they assaulted Ramdas with knife and also assaulted Narayan. Ramdas died and Narayan survived. After the assault they i.e. the accused ran away towards hillock side.
30. According to Mr. Gupte, Narayan was not in a position to see the injuries of Ramdas because if Narayan was hit by bullet then he could not have been in a position to see and secondly the details given by Narayan regarding the assault on Ramdas are improbable. I do not find any force in these submissions. The evidence of Narayan is totally unshaken in the cross-examination. The evidence of doctors, postmortem notes, spot panchanama and evidence of Narayan all taken together are sufficient to hold that Narayan is a truthful witness.
31. According to Narayan, Accused No. 1 Shankar, Accused No. 2 Najir and Accused No. 3 Baliram had guns each in their hands. Accused Nos. 3, 4, 6, 8 and 11 had knives each in their hands. Accused No. 7 had a sword in his hand. And Ramdas was assaulted by all these accused. The postmortem notes of Ramdas proved by P.W. No. 15 Dr. Ramchandra Ovale show that Ramdas had eight injuries on his body, out of which three were incise wounds and part of right ear was cut, and injury Nos. 1 to 6 and 8 were circular wounds that were caused by fire arms and there was a fracture to the scalp as per injury No. 7. Therefore, postmortem notes prove that Ramdas was assaulted by sharp weapons and hard and blunt object and also by fire arms.
32. Secondly Narayan had abrasion on left occipital region as per injury No. 1, and injury Nos. 2 to 5 were circular punctured wounds. As per the evidence of P.W. No. 15 Dr. Ovale all these injuries were caused by gun and injury No. 1 was caused by hard and blunt object. It is therefore clear that Narayan was injured by gun fire and some hard and blunt object.
33. So far as injuries on the body of Ramdas are concerned, according to, Narayan, Accused No. 8 Barashya assaulted Ramdas with the knife and so also other accused were having knives and swords in addition Accused No. 1 Shankar, Accused No. 3 Baliram and accused No. 2 Najir also fired shots against Ramdas and Narayan. In the cross-examination he has stated that there were total 3-4 gun fire from those assailants.
34. Considering the fact that Ramdas had three fire arms injuries and Narayan had also fire arm injury on account of shots fired from the guns, the evidence of Narayan that there were 3-4 gun shots appears to be correct and has to be accepted.
35. According to Mr. Gupte, Narayan's evidence was liable to be rejected because if Narayan was assaulted first, he could not have witnessed the assault on Ramdas, and if Ramdas was assaulted first, Narayan would not have remained there as a silent spectator. None of these submissions can be accepted because Narayan has categorically stated that this incident lasted for about 4-5 minutes and Narayan was not a silent spectator but was hit by bullet injury. It is nobody's case nor the defence that Ramdas was shot at some other place and Narayan was shot at some other place and Narayan could not see or be present on the spot whether Ramdas was shot. The defence of the accused was of total denial. But considering the fact that Narayan and Ramdas both were injured by firing from guns, that they were in the same field, and evidence of Narayan is fully corroborated by the Doctor referred to above it is clear that Narayan had witnessed the incident of assault on Ramdas. The multiple injury on Ramdas shows that there were many assailants armed with deadly sharp cutting weapons.
36. The spot panchanama further corroborates the story of Narayan and Ramdas because the place where Narayan fell and place where Ramdas fell after being injured are on the footway that goes through the Agarwal compound to the village. We have seen and inspected that spot as stated above and found that there is no obstacle or a tree between the place where Narayan was injured and the place where the Ramdas was found dead. The distance between two places is very short and finding of empty cartridges of 12 borer, finding of blood stains from the place where the Ramdas was shot, finding of slipper and pair of sandals and one live cartridge will clearly show that the incident of assault occurred between the Agarwal compound and Chikan Shet where body of Ramdas was found. These all the circumstances corroborate the testimony of Narayan regarding number of assailants and the weapons with them and the manner in which they caused injuries. In fact, Narayan was subjected to search in cross-examination but nothing was brought on record out of his cross examination. The defence lawyers could not shake his credits nor could bring anything on record to show that he was giving false evidence or trying to falsely implicate the accused. Minor contradictions here and there will not fatal at all.
37. It was contended by Mr. Gupte that if according to Narayan, Ramdas was ahead and Narayan was followed him, and if Narayan saw a jeep first then assailants would have attacked on Narayan first and in that case he would not have in a position to witness the incident. Even this arguments is without any basis. Why assailants attacked Ramdas or Narayan is known to the assailants themselves. But the fact that Ramdas was assaulted brutally with all the deadly weapons clearly shows that the main intention of the assailants was to kill Ramdas and therefore, there is nothing unnatural if at the first instance Ramdas was assaulted and then Narayan was assaulted. Narayan has specifically stated that Ramdas was ahead him by only 10-15 feet and the first shot of gun fire was against Ramdas and thereafter he was assaulted by knives and swords, and then fire at again. The trail of blood running about 94 ft. from Agarwal compound to the spot where Ramdas was found dead clearly proves that after receiving first bullet injury Ramdas ran to save the life towards Chikan Shet where he was assaulted brutally and killed by the assailants.
38. The evidence of the witness can be questioned and criticized mainly on the basis of his cross-examination or regarding his natural conduct. But even though Narayan was subjected to cross examine by two sets of Advocates appearing for different accused, there is nothing at all brought on record to shake his credit or to make his presence impossible on the spot when Ramdas was attacked.
39. It is true that there are certain omissions in the evidence of Narayan to the role attributed to the accused and in the statement of the police. But that aspect would be considered when the evidence against each of the accused will be scrutinized. Suffice to say that evidence of Narayan has to be accepted and was rightly accepted by the trial Court.
40. Apart from Baliram and Narayan, there are three more eye witnesses to the incident according to the prosecution. They are Janu Bhoir (P.W. No. 3). Prabhakar Bhoir (P.W. No. 4) and Harish Bhoir (P.W. No. 5). Janu Bhoir (P.W. No. 3) has stated that at about 1.00 p.m. on the date of incident he was going for lunch to his house at Dahisar, and when he passing by the side of Agarwal compound and reached up to the Chikan field (this is the field where body of Ramdas was found), he heard noise of gun from the side of Agarwal compound. He looked back and saw that Ramdas and Narayan were running and they were being chased by the Accused Nos. 1, 2, 3, 4, 5 and 6. Accused Nos. 1, 2 and 3 had guns and Accused Nos. 4 and 6 had knives and guns were being fired at Ramdas and Narayan. On seeing those persons this witness got frightened and started running towards the village. He met some villagers on way. He told them what had happen on the spot and at that time all of them came to the spot but at that time assailants had fled away towards Dahisar Naka. He then noticed that Ramdas was dead and having injuries on head, back and on the right ear and Narayan was also having head injury and there was bleeding.
41. The evidence of this witness was challenged by Mr. Gupte on the ground that he is a chance witness and has no reason to present there. It was also contended by Mr. Gupte that this witness does not speak about Accused Nos. 7 to 12 and does not attribute any role. He also contended that witness Janu Bhoir was the cousin of Ramdas and for all these reasons the evidence of this witness was liable to be rejected.
42. Even if according to Narayan, there were 12 accused who participated in the assault, this witness has spoken about Accused Nos. 1 to 6 only and he does not name any of the accused. But this cannot be the reason to reject the testimony of this witness because what witness stated is that when he was near Chikan Shet he heard the noise of gun firing, he looked back and found that Ramdas and Narayan were running and they being chased by Accused Nos. 1 to 6. The witness has stated that after hearing gun firing he got frightened and ran towards the village. Admittedly, this witness has not seen the accused actually assaulted on Narayan and Ramdas and when he saw these accused because he turn back after hearing gun firing, it is most likely and most natural that he did not wait to count the number of the assailants and to see how many were there and with what weapons.
43. It is pertinent to note that certain statements of the witnesses regarding some trifle and unimportant matters could lead to the circumstances giving total credibility to those witnesses. The evidence of P.W. No. 3 Janu Bhoir has to be accepted because he has stated that when he came back and saw Ramdas, Ramdas had injury on his head, and on the right ear and in the cross examination he has stated that in all there were five gun shots firing. This witness is corroborated, in both these regards, firstly, by the evidence of P.W. No. 15 Ramchandra Ovale because Dr. Ovale (P.W. No. 15) has stated and noted in his postmortem notes that part of right ear pinna of Ramdas was cut by an injury nearly 2" X 1". Secondly, Narayan (P.W. No, 2) also states that there were 4-5 shots of gun firing. Admittedly, as per the postmortem notes Ramdas had three bullet injuries and Narayan had one, and therefore, when P.W. No. 3 Janu Bhoir had seen that there were five gun shots fire, it is clear that he is a truthful witness.
44. The other two witnesses are P.W. No. 4 Prabhakar Bhoir and P.W. No. 5 Harish Bhoir. However, the evidence of these witnesses is of no help to the prosecution case because P.W. No. 4 Prabhakar Bhoir has stated that when at about 1.00 p.m. he was going for lunch towards Wakan road he saw a jeep stopping near the godown of Kakaseth and Accused Nos. 1, 2 and 3 got down with their companions and Accused Nos. 1, 2 and 3 had guns in their hands and they started running towards Ramdas and Narayan, and on seeing them he got frightened and hidden himself thereafter. Evidence of this witness cannot be accepted in support of the prosecution as rightly argued by Mr. Gupte, because, if according to him, this witness was present in the field on the date of incident along with Baliram, Ramdas and Narayan and if at about 1.00 p.m. he was walking towards Wakan road, then he was expected to witness the entire incident, and all the accused with all the arms with their hands. But he has restricted himself to Accused Nos. 1, 2 and 3, and therefore, his evidence becomes suspicious and has to be rejected. Similar is the case with P.W. No. 5 Harish Bhoir. He had seen a jeep coming from the side of Dahisar Village and had also seen Accused Nos. 1, 2, 3, 5, 6 and 8 only. He states that they assaulted Ramdas and Narayan and then ran towards Dahisar Naka. But in examination-in-chief he does not say as to in what manner Ramdas and Narayan were assaulted and how Ramdas and Narayan received injuries. The witness admitted in the examination-in-chief itself that he does not know where Ramdas sustained injuries and this is in spite of his presence on the spot of half an hour. The evidence of this witness is improbable and does not all at inspire any confidence and same has to be rejected.
45. Therefore, out of five eye-witnesses of the prosecution, eye witness Baliram (P.W. No. 1) has not seen the incident, and therefore, his evidence and the evidence of P.W. No. 4 Prabhakar Bhoir and (P.W. No. 5) Harish Bhoir is not acceptable. Therefore, what remains is the evidence of Narayan P.W. No. 2 and Janu P.W. No. 3, but it is not the number of witnesses examined, but the quality, credibility and integrity of the witnesses coupled with their consistency that matters. And since, as discussed above, the evidence of Narayan and Janu is corroborative to each other, and since the evidence of the Doctor, conducting postmortem and examining Narayan i.e. Dr. Ovale (P.W. No. 15), and the panch also supports the prosecution, it has to be accepted, and as has been rightly accepted by the trial Court, that Narayan and Ramdas were assaulted with guns, knives and swords on the date, time and place by the accused assailants and that Baliram lodged his report on the basis of the narration given by Narayan.
46. Apart from this oral evidence the prosecution has relied upon the evidence of recovery of weapons to connect the accused with this offence. As per P.W. No. 18 Vasantrao More a gun with five cartridges was recovered from Accused No. 2 Nazir vide Exhibits 91 and 92 and another gun was recovered at the instance of accused Waman Patil vide Exhibit 84 and 85 along with licence and four live cartridges of 12 borer under Exhibit 82. Similarly on 6-7-1992 one air gun, swords, and big knives were recovered from accused Shankar Patil under Panchanama Exhibits 87 and 88 along with two swords, one gun and two big knives. The evidence of recovery of these weapons from different accused was challenged by Mr. Gupte who was supported by Mr. Chitnis on the ground that in the memorandum of recovery of these relevant panchas, the concerned accused have no where stated that they have hidden the weapons at a particular place and that they are ready and willing to point out the place and make discovery of gun and other weapons. Further according to both these Advocates, neither the panchas nor the Investigating Officer have proved the contents of the panchanamas by oral evidence, and therefore, the entire evidence regarding recovery is liable to be rejected.
47. Exhibit 84 is the memorandum of statement of accused Waman Patil dated 4-7-1992 and Exhibit 85 is the memorandum panchanama. One panch Altaf Ahmed Khan was examined by the prosecution but he turned hostile. The same panch was the witness of memorandum of panchanama of recovery of weapon at the instance of accused Waman Patil. But he did not support the prosecution.
48. Exhibit 87 and 88 are the discovery memorandum at the instance of accused Shankar Patil and panchanama of recovery respectively. Witness Mohamad Ali Vaisakar (P.W. 9) was examined by the prosecution to prove these documents. But he turned hostile and did not support the prosecution. Prosecution has also examined P.W. No. 10 Khoda Bhadwar to prove Exhibit 87 and 88. But he also turned hostile.
49. The prosecution then examined Mukesh Vyas (P.W. 11) to prove discovery memorandum at the instance of accused Nazir and panchanama of recovery Exhibits 91 and 92 respectively. But he also turned hostile.
50. It is pertinent to note that all these witnesses examined by the prosecution for proving Exhibits 84, 85, 87, 88, 91 and 92. They admitted their signatures on the respective panchanamas but did not support the prosecution on the other aspects. In this back ground, therefore, the prosecution was left with no alternative but to rely upon the evidence of the Investigating Officer.
51. P.W. No. 18 Dy. S.P. Vasantrao More, the Investigating Officer, in paragraph No. 6 of his deposition has stated that on 30-7-92 accused Nazir Shaikh while in custody voluntarily agreed to point out the place and to make the discovery of a gun in the presence of two panchas. Accordingly memorandum was prepared in the presence of two panchas as per Exhibit 91 and there after accused produced gun with five cartridges as per panchanama Exhibit 92. According to this witness on 4-7-92 accused Waman Nana Patil made a statement and voluntarily agreed to point out a place and to make discovery of a gun. Thereafter memorandum was prepared as per Exhibit 84 and it was followed by the panchanama Exhibit 85 after the gun was produced by this accused. Similarly, on 6-7-92 accused Shankar Patil voluntarily made a statement to point out a place and to make discovery of the weapons i.e. one air gun, swords and big knives. Accordingly memorandum was prepared and it was followed by the panchanama Exhibit 88.
52. According to Mr. Gupte and Mr. Chitnis, P.W. No. 18 Vasantrao More has not stated in his oral testimony that any of these three accused has disclosed that they had hidden or kept certain weapons at a certain place and that they were ready to point out the place to the Police Officer. Therefore, according to these Advocates evidence of recovery is liable to be rejected.
53. Reliance was placed by Mr. Gupte and Mr. Chitnis on a judgment of Privy Council reported in A.I.R. 1947(34) Privy Council 67 Pulukru Kottaya v. Emperor, which is followed by the Supreme Court in State of U.P. v. Jageshwar, in support of their contentions that there is no compliance to the requirements of section 27 of the Evidence Act as interpreted by the Privy Council and the Supreme Court in the aforesaid two judgments. In the present case, no evidence to fulfil those requirements is adduced by the prosecution, and hence the evidence of recovery was required to be rejected outright. They also contended that the contents of the panchanamas were not proved by the prosecution i.e. neither the panch witnesses nor the Investigating Officer, and therefore, discovery memorandum and the panchanamas could not be read in the evidence. It is, therefore, necessary to find out as to what has been laid down by the Privy Council and the Supreme Court in the aforesaid judgments: whether those judgments apply to the present case: what is the scope of section 27 of the Evidence Act: what are the requirements of proving section 27 of the Evidence Act: and whether the prosecution, in the instant case has succeeded in proving those requirements.
54. The Privy Council has in the aforesaid judgment discussed the provisions of section 27 of the Evidence Act from paragraph No. 8 onwards. After reproducing sections 25, 26 and 27 it was held and observed by the Privy Council as under:-
"The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as related distinctly to the fact thereby discovered may be proved."
It was further observed:-
"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."
Further it is observed:-
"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."
55. The judgment of the Supreme Court that is relied by Mr. Gupte and Mr. Chitnis is of no use to the accused because in that case a gun that was recovered in pursuance of the statement made by Durga. But the gun was not recovered from Durga, nor did Durga made a statement that he had concealed it at a place which he would point out. The gun was recovered from a person called Sunder Ahir who was not examined by the prosecution, and therefore, on the basis of these facts, the Supreme Court has rejected the evidence of recovery of the gun and made certain observations consistent with the views taken by the Privy Council in the aforesaid judgment.
56. A close scrutiny of the judgment of the Privy Council shows that the words "fact discovered" used in section 27 of the Evidence Act can not be equated with the "object produced", and according to the Privy Council, "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, i.e. a place from which the object is produced. The Privy Council has, therefore, laid emphasis on the place from which the object was produced and the knowledge of the accused about the place and has considered that to treat the words "fact discovered" equivalent to the object produced is fallacious. Further from the illustration given by the Privy Council which is reproduced above regarding the statement of the accused that "I will produce a knife concealed in the roof of my house" the Privy Council has observed that this statement does not lead to discovery of a knife because knives were discovered many years ago and according to the Privy Council this statement 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 becomes very relevant.
57. With respect we are unable to agree with the interpretation of the Privy Council of section 27 not because it does not lay down correct law, but because is has failed to take into consideration some material aspects of section 27 of the Evidence Act. Let us, therefore, see again what section 27 lays down in the sequence given in that section itself. Admittedly section 27 is a Proviso to the sections 25 and 26 because it starts with the word "Provided". Section 27 as paraphrases as under:-
(1) when any fact is deposed to:
(2} as discovered in consequence of information received;
(3) from a person accused in a custody of police.
(4) so much of such information:
(5) whether it amounts to confession or not;
(6) as relates distinctly;
(7) to the fact thereby discovered may be proved.
58. The first requirement of section 27 is, when any act is deposed to, and the Heading of this section 27 is "How much of information received from accused may be proved". This heading and the words "when any fact is deposed to" will show that the section is referring to the oral evidence given by witness in the Court. As per Oxford concise dictionary, 'to depose' means 'bear witness', or 'testify to'. Therefore, these words are used with reference to the occular account given by the witness in the Court where the witness is deposing regarding "a fact". The word 'fact' is defined in section 3 of the Evidence Act as "Fact" means and includes --- (1) any thing, state of things, or relation of things, capable of being perceived by the senses : (2) any mental condition of which any person is conscious. In the illustrations given in the definition of fact, following illustration (a) is given as; (a) that there are certain objects arranged in a certain order in a certain place, is a fact.
59. It becomes, therefore, clear from the definition of word 'fact' that the definition has given meaning of fact and has also shown what it includes in the meaning. Part (1) of this definition relates to, anything, state of things, or relation of things. The meaning of the word 'thing' as is given in the Concise Oxford Dictionary, 'inanimate material object'. Inanimate means destitute of life, not endowed with animal life, spiritless and every thing other than animal world.
60. It will, therefore, be clear that 'thing' means every thing inanimate (though it may also include animate objects).
61. In Sarkar on Evidence 1999, Fifteenth Edition on page 41 the word 'fact' has been considered by the Author as :
"Bentham has classified into physical and psychological. By "physical facts" are meant such as either have their seat in some inanimate being or if in one that is animate, then not by virtue of the qualities which constitute it such: while "psychological facts" are those which have their seat in an animate being by virtue of the qualities by which it is constituted animate. Thus, the existence of visible objects, the outward acts of intelligent agents, range themselves under the former class: while to the latter belong such as only exist in the mind of an individual."
These meanings of the words 'fact' and 'thing' will, therefore, show that when section 27 used the words 'fact' as deposed to and when section 3 gave definition of word 'fact' it meant to include objects also, which have not been taken into consideration by the Privy Council while interpreting section 27 of the Evidence Act. The observation of the Privy Council that it is fallacious to treat the "fact discovered" within the section as equivalent to the "object produced", in our humble and respectful opinion is not based on proper construction of the word 'fact deposed to' used in section 27. Because the definition of "fact" given in section 3 of the Evidence Act is not considered at all. The object discovered is a fact, and therefore, when a witness is deposing in the Court and deposes to a fact, it means he could and he should depose about the object discovered.
62. We have no quarrel with the interpretation put by the Privy Council that the fact discovered embraces the place from which the object is produced. But in our opinion the fact deposed to also includes the object produced.
63. It cannot therefore be said that the "object produced" in pursuance of the information given by the accused under section 27 of the Evidence Act, cannot be considered at all and that the object produced cannot be considered as "fallacious"
64. From the sequence in which section 27 has used its word as paraphrasing done by us above, the first stage is, proof of a fact by witness in Court, with reference to section 27. It has to be said that he is a witness in whose presence the accused made certain statements or gave certain information and the witness is telling the Court as to what information was given by the accused or what facts were disclosed by the accused, and the facts mean and include, the object concerned with the crime and the place where it has been kept by the accused.
65. Mr. Chitnis repeatedly urged that the judgment of the Privy Council and the judgment of the Supreme Court referred to above require that accused must state (with reference to section 27) that he will produce the knife or the object connected with the crime "which he has concealed at a particular place". According to Mr. Chitnis and Mr. Gupte, therefore, the statement of the accused must be to the effect that "he has concealed", and if that is not there, then discovery cannot be said to have been proved. Again with respect we are unable to agree with these submissions. Even though the Privy Council has quoted an illustration as "I will produce a knife concealed in the roof of my house". In our opinion it is not necessary for the accused to say that he has concealed a particular object or thing connected with the crime and we are supported in our views by the words used in section 27 itself. When it says as per paraphrases done by us at Sr. No. 5, "whether it amounts to confession or not" which have preceded so much of such information.
66. The panch witness or the Police Officer is deposing in a Court in respect of a fact including the object as well as the place where the object is kept regarding the information received from the accused and section 27 lays down as to what will be admissible in the course of law from the stage "so much of information will be admissible as relates distinctly to the fact discovered" and these words preceded by the words "whether it amounts to a confession or not". Use of the words "whether it amounts to a confession or not" is very vital and material and in our humble opinion that has not been taken into consideration by the Privy Council.
67. It is true that sections 25 and 26 of the Evidence Act exclude confessions made by the accused to a Police Officer and those confessions are inadmissible in evidence. However, when an exception was carved out of these sections by way of section 27, the Legislature permitted, proving of so much of such information, whether it amounts to confession or not, as it relates distinctly to the fact thereby discovered. In our opinion use of the words "whether it amounts to a confession or not" is an exception to the exception where two contingencies were foreseen, viz. (1) an information given by the accused may amount to a confession or (2) it may not amount to a confession. Now the Privy Council in "giving illustration has used word "I will produce a knife concealed in the roof of my house", in our opinion "I concealed in the roof of my house" amounts to a confession, which is permissible under section 27 of the Evidence Act. But the option given in section 27 by using of the word "whether it amounts to a confession or not" clearly shows that the accused need not use words viz. "I concealed, or that I concealed, or I concealed that". He can say that I will produce a knife kept in my house. For all these reasons stated above we hold that under section 27 of the Evidence Act the witnesses giving evidence about recovery can depose to about the objects discovered or things discovered and they can depose to about a place where they were kept as per information given by accused. We also hold that the object discovered, has to be necessarily considered as vital as place from which it is discovered because mere pointing out of a place without recovery of the object is of no use to the prosecution and mere telling about the object without place from which it is discovered is not also useful to the prosecution. Section 27 has, therefore, covered both the aspects of the matter viz. recovery of article, production of article or thing and the place where the article or thing was kept. It is not necessary that accused must state in the information which he gives to the police and the witness under section 27 that it was he who has hidden, kept, placed or concealed the article at a particular place. In view of the aforesaid legal position now we have to see whether the prosecution has succeeded in proving the recovery of weapons viz. guns, knives, cartridges etc. in this case.
68. Exhibits 84, 85, 87, 88, 91 and 92 are the memorandum of statement of the accused followed by the respective panchanamas. The prosecution has examined P.W. No. 8 Altaf Ahmed Khan to prove the statement of accused Waman Patil i.e. the memorandum of his statement Exhibit 84 and pan-chanama Exhibit 85. This witness did not support the prosecution and turned hostile. The prosecution has also examined Mohmand Ali Vaisakar (P.W. 9) to prove Exhibits 87 the memorandum regarding the statement made by Accused No. 1 Shankar Patil and the panchanama of recovery Exhibit 88. This witness also turned hostile. Thereafter prosecution has examined P.W. No. 10 Khoda Bhadwar for proving Exhibits 87 and 88 regarding the statement made by Accused No. 1 Shankar Patil and the panchanama made thereafter. But he also turned hostile and did not support the prosecution. The prosecution then examined Mukesh Vyas (P.W. No. 11) for proving the statement of accused Nazir Shaikh as per Exhibit 91 and the panchanama made thereafter as per Exhibit 92. But this witness turned hostile and he did not support the prosecution. Second witness examined by the prosecution for proving Exhibits 91 and 92 is Prasanna Nair (P.W. No. 12). But he also turned hostile and did not support the prosecution. Similarly witness Sudama Gade (P.W. No. 13) was examined by the prosecution for proving the panchanama of recovery of licence and cartridges from accused Nazir Shaikh. He also turned hostile and did not support the prosecution.
69. It is, therefore, clear that all the attempts were made by the prosecution to prove the discovery memorandums and panchanamas, but none of the 5-6 witnesses supported the prosecution though all of them admitted their signatures on the memorandums and panchanamas and also admitted signatures on the labels and seals in respect of the articles seized.
70. The prosecution was, therefore, left with no alternative to rely upon the evidence of Investigating Officer for proving of those discoveries from the respective accused, and accordingly, P.W. No. 18 Vasantrao More then P. 1 was examined. Witness Vasantrao More has stated in his evidence that on 2-7-92 accused Nazir Shaikh while in custody voluntarily agreed to point out the place and to make the discovery of a gun in the presence of two panchas, and accordingly, memorandum was prepared as per Exhibit 91. Thereafter accused Nazir Shaikh led the police party to the spot as described in the evidence i.e. to his house and took out a gun from the heap of wooden logs and produced the same along with 5 cartridges as per the Article Nos. 5/1 and 5/2 respectively and they were seized as per the panchanama.
71. P.W. No. 18 further stated that on 4-7-92 accused Waman Nana Patil voluntarily agreed to point out the place and to make discovery of a gun. Accordingly memorandum was prepared in presence of two panchas vide Exhibit 84. Thereafter accused Waman Patil led the police party to his house and took out a gun which was kept in the heap of wooden logs and it was seized under panchanama Exhibit 85. Article 7/1 is the same gun.
72. P.W. No. 18 has further stated that on 6-7-92 accused Shankar Patil voluntarily made a statement to point out the place and to make out the discovery of the weapons i.e. one air gun, swords and big knives. This was recorded as per memorandum Exhibit 87 in presence of two panchas and accused Shankar Patil then led the police parry to the spot where a room was opened by accused Shankar Patil and from the back side of the window one gun, two swords and two knives were produced by him as per panchanama Exhibit 88 and Articles 11/1, 11/2 and 11/3 are the same weapons respectively.
73. This evidence of P.W. No. 18 Vasantrao More according to Mr. Chitnis and Mr. Gupte does not fulfil the requirements of section 27 of the Evidence Act and is not consonant with the judgment of the Privy Council, and therefore, inadmissible and not acceptable. According to Mr. Gupte and Mr. Chitnis if at all P.W. No. 18 wanted to prove the discoveries of the weapons from the accused stated above it was necessary for P.W. No. 18 to state in Court on oath that the accused had stated before him and the panchas that he, the accused, had hidden a gun at a particular place and he would be ready to lead police party to that place. Both the Advocates also submitted that even though P.W. No. 18 can be said to have been proved the respective memorandums and the panchanamas, the contents of the memorandums being not brought on record by the oral evidence did not stand proved, and therefore, could not be relied upon by the prosecution.
74. It is true that in all the discovery panchanamas viz. Exhibits 84, 87, 91 respectively, the concerned accused have stated that they had kept the weapons or they had hidden at a particular place. For example in Exhibit 84 i.e. the memorandum of accused Waman Nana Patil he has stated . "I have hidden that Bandook or gun on the loft of my house and I will show that place and hand over the gun to you". Similarly in Exhibit 87 accused Shankar Patil has stated "Gun, knives and swords have been hidden by me behind a room adjacent to compound wall of Obhaj Warehouse" and in Exhibit 91 accused Nazir Shaikh has stated "a gun is hidden by me below the heap of wood in a old residential house at Pimpari Pada and that I was ready to give it to the police". It is also true that P.W. No. 18 has not reproduced or deposed to these exact words while giving evidence before the Court regarding each of the separate discovery memorandum.
75. If the submission of Mr. Chitnis and Mr. Gupte is accepted that the memorandum of discovery in a case under section 27 of the Evidence Act should contain, as per Privy Council ruling, the word of the accused that "I had hidden the weapon at a particular place" then that requirement is satisfied in all the memorandums of discovery Exhibits 84, 87, and 91. It is also clear that the Investigating Officer who has proved these three documents (all the panchas turned hostile) has not in his oral evidence reproduced the exact words of accused, "those respective accused have hidden the weapons at a particular place", which have been used in the memorandums Exhibits 84, 87, and 91. The question is whether on that count the entire evidence of the Investigating Officer is liable to be rejected. And we are of the opinion that the same can not be rejected, because we have already held and observed that the statement of the accused under section 27 of the Evidence Act need not be confessional, even if the accused says, according to the witness and Investigating Officer, that he is ready to point out a place and to make out discovery of the weapons or incriminating articles, that will be sufficient to prove the discovery memorandum though it may be that as a rule of cautious the prosecutor who is conducting the case and who is examining the witness for proving memorandum should try to extract from the witness the exact words used by accused and if the witness states those words, then the trial Court will have to refer those words.
76. We have found from our experience that the trial Court and even the prosecutor do not insist on the witness to reproduce the words used by accused regarding keeping of incriminating article or object connected with crime. This approach is wrong and it is required to be changed. Section 27 of the Evidence Act requires witness to prove in his deposition the statement of accused which led to the discovery of object and the fact of the accused keeping or concealing the object at a particular place.
77. The Investigating Officer in this case i.e. P.W. No. 18 Vasantrao More while proving of Exhibits 84, 87 and 91 separately has stated that the accused voluntarily made statement to point out a place and to make out discovery of the weapons. For example, regarding Exhibit 84 he has stated that on 4-7-92, while the accused Waman Nana Patil was in custody he voluntarily agreed to point out the place and to make discovery of a gun. Similarly regarding Exhibit 87, according to P.W. No. 18, accused Shankar Patil made a statement to point out the place and to make the discovery weapon i.e. one air gun, swords and big knives from village Dhansar by the side of compound wall of warehouse. Thirdly, according to P.W. No. 18, accused Nazir, while in custody, voluntarily agreed to point out the place and to make the discovery of a gun vide Exhibit 84. Now actually from the respective memorandums Exhibits 84, 87 and 91 the accused have stated that they had hidden those weapons at particular place, and therefore, if the prosecutor and the trial Court had insisted upon the witness to state the exact words, the witness would have successfully brought those words on record.
78. The question is, whether the evidence of P.W. No. 18 that the accused while in custody voluntarily agreed to point out the place and to make the discovery of gun or his specific deposition in the above paragraph is sufficient for the prosecution to prove the discovery, and since we have already considered the judgment of the Privy Council and have discussed and come to the conclusion that in our opinion this evidence of the Investigating Officer is sufficient to prove the discovery. The arguments and objections of Mr. Chitnis and Mr. Gupte are, therefore, liable to be rejected.
79. The effect is that the prosecution succeeds in proving discovery of the weapons at the instance of accused Waman Nana Patil, Shankar Patil and Nazir. These discoveries, particularly of guns, from these three accused corroborate the case of P.W. No. 2 Narayan that these three accused had guns with them and that these guns were used for firing on Ramdas and Narayan. This evidence further corroborated by the evidence of Forensic Expert and the postmortem report of Ramdas and medical examination papers of Narayan.
80. In the evidence of postmortem notes of Ramdas and in the medical examination papers of Narayan the Doctors have specifically stated that both had bullet injuries, two empty cartridges were recovered from the spot as per the spot panchanama. Those cartridges were also sent to the Forensic Expert and his opinion regarding the guns recovered from the accused and the empty cartridges is positive and affirmative in favour of the prosecution and against the accused. It is pertinent to note that the defence did not apply for calling the Ballistic Expert for cross-examination and questions in that regard were put to P.W. No. 18, the Investigating Officer, who was admittedly not an expert in ballistic. This witness has, on the basis of Ballistic Expert's report given his evidence. Forwarding letter to the Ballistic Expert is proved on record as per Exhibit 116 and the opinion of the Ballistic Expert is at Exhibit 121 dated 23-10-1992. The results of the analysis is that Exhibits 3 and 5 which are double barrel breech loading 12 bore shotguns in working order. Residue of fired ammunition nitrite was detected in both the barrel washings of the shotguns Exhibits 3 and 5, showing that the shotguns were used for firing prior to their receipt in the laboratory. The characteristic features of the firing pin impression on the empties in Exhibit 1-A and 6-B which were test fired cartridges tally among themselves and also tally with those cartridges which were recovered from the spot. Further Exhibit 9 was a . 177 air rifle. However during test firing it was observed that the air gun lead pellet can not be propelled from the barrel of the air rifle Exhibit 9 due insufficient air pressure, but residue of metallic lead was detected in the barrel washings of Exhibit 9, showing that Exhibit 9 was used for firing prior to its receipt in the laboratory. Thirdly the report of the Forensic Expert Exhibit 121, therefore, proves that the guns recovered at the instance of the accused in this case were used in the firing and it is further proved that it was the firing through those guns by which Ramdas and Narayan were assaulted and injured. The prosecution case is, therefore, proved that so far as Accused Nos. 1, 2, and 3 are concerned they had guns with them to kill Ramdas and to injured Narayan. Further C.A. reports coupled with the X-Ray plates of Narayan Bhoir show that Narayan was fired from small gun cartridges containing small pellets. This also proves using of guns for assaulting Ramdas and Narayan.
81. Out of 12 accused the trial Court found that Accused No. 1 Shankar Patil and Accused No. 3 Baliram Patil were directly responsible for causing death of Ramdas, and therefore, both of them held guilty for the offences under section 302 r/w section 34 of the Indian Penal Code. Accused No. 2 Nazir Shaikh was found guilty of offence under section 307 of the Penal Code for attempting to commit murder of P.W. No. 2 Narayan Bhoir. Accused Nos. 7 and 8 were found guilty by their individual acts in causing grievous hurts with dangerous weapons to deceased Ramdas Bhoir, therefore, they were held guilty under section 326 of the Indian Penal Code. Further Accused Nos. 1, 2 and 3 were found guilty under section 27 of the Indian Arms Act read with section 34 of the Indian Penal Code. Rest of the Accused Nos. 4, 5, 6, 9, 10, 11 and 12 were acquitted of all the charges levelled against them.
82. The trial Court has rejected the case of the prosecution regarding unlawful assembly under sections 147, 148 and 149 of the Indian Penal Code because according to trial Court the prosecution has failed to prove, common object of unlawful assembly. Further according to trial Court there was no evidence that all the accused encircled the deceased Ramdas and P.W. No. 2 Narayan and any of them instigated each other. Further observation of the trial Court is as under:-
"In short the circumstances in the present case do not reveal that the remaining accused, besides to whom I have held guilty, had any object or intention to commit any offence, since their active participation in the crime is not proved beyond reasonable doubt."
83. It is for this reason the trial Court held that the prosecution has not proved offence under sections 147, 148 and 149 of the Indian Penal Code, and therefore, Accused Nos. 1, 2, 3 and 7 and 8 were found and held guilty individually for their acts.
84. It is difficult to accept this logic of the trial Court. If the evidence of the prosecution viz. P.W. No. 2 Narayan alone is considered, which gets corroboration from the evidence discussed above, P.W. No. 2 Narayan has specifically given the names of five accused who were the assailants of his brother Ramdas and himself. According to him all of them were armed with weapons and all of them were assaulted Ramdas and himself, simultaneously in the course of same transaction, and thereafter the assailants ran away from the spot. Even P.W. No. 3 Janu Bhoir supports Narayan in this regard. Further injuries on the persons of Ramdas proved that he had bullet injury as well as injuries by other weapons. All these clearly show that the accused had formed unlawful assembly and they came at the spot with common object of killing Ramdas and also Narayan, because Narayan was also shot at, though he survived from the attack by guns. The so called absence of evidence of the accused surrounding Ramdas, as is observed by the trial Court, has to be inferred from the attack by five or more persons. The deadly attack resulting in death of Ramdas and fatal injuries to Narayan are sufficient in themselves to hold that accused were the members of unlawful assembly. Therefore, the finding of trial Court in that regard is required to be set aside.
85. So far as the guilt of accused is concerned, the trial Court has convicted Accused Nos. I and 3 under section 302 of the Indian Penal Code, Accused No. 2 under section 307 of the I.P.C. and Accused Nos. 7 and 8 under section 326 of the I.P.C. And since Accused Nos. 7 and 8 have not filed any appeal, question of interfering with their conviction does not arise.
86. We find that conviction of Accused No. 1 Shankar Patil and Accused No. 3 Balaram Patil for life under section 302 of the Indian Penal Code is proper, and therefore, their appeal is required to dismissed. So far as Accused No. 2 Nazir Shaikh is concerned, his conviction is altered from section 302 to 307 of the Indian Penal Code by allowing the appeal of the State in that regard. Consequently, appeal filed by Accused No. 2 bearing Nos. 371 of 1996 is required to dismissed.
87. Further the appeal of the State against acquittal is required to be allowed against Accused Nos. 4 and 6.
88. The question now remains is of sentence to be awarded to each of the Accused Nos. 1, 2, 3, 4 and 6. Since we have held that the accused had formed unlawful assembly, it will have to be held that all the Accused Nos. 1, 2, 3, 4 and 6 were the members of unlawful assembly and their common object was to kill Ramdas Bhoir and Narayan Bhoir. Accused Nos. 4 and 6 had with them knives with which they assaulted Ramdas.
89. As per medical evidence there are four incise wounds on the body of Ramdas. These Accused Nos. 4 and 6 had sharp weapons with them. All these injuries are near ear or on the neck. However, according to the prosecution, there were about 10-12 accused who assaulted Ramdas and considering this fact even though we have held that the prosecution has succeeded in proving unlawful assembly that these accused are the members of unlawful assembly, we do not propose to sentence Accused Nos. 4 and 6 to life imprisonment as they have been found guilty under section 326 read with sections 149 of the Indian Penal Code, and therefore, in our opinion sentence of ten years to Accused Nos. 4 and 6 each would be sufficient to meet the ends of justice.
90. Eve though we are disposing of these appeals by this order it is necessary, considering the interpretation of section 27 of the Evidence Act and also from our experience regarding the manner and the mode in which discoveries under section 27 of the Evidence Act are proved in the trial Court, either before the Magistrate or before the Sessions Judge, we deem it necessary to give certain guide-lines and directions in this regard to all the trial courts. Those directions are as follows:-
(A) The prosecutor conducting criminal cases where a recovery or discovery under section 27 of the Evidence Act is to be proved, should be careful in seeking compliance to section 27 strictly from the concerned witnesses viz. the panchas and the Investigating Officer who are intended to be examined for that purpose.
(B) The prosecutor should be careful in eliciting from the witnesses whether panchas or police officer, the exact words used by accused with reference to the articles involved in the crime, place where they are kept and the manner in which they are kept.
(C) The Judge of Judges (including Magistrate and Sessions Judge recording evidence) should take down the words used by witnesses whether panchas or police officer regarding disclosure made by accused to them or regarding statement made by accused to them which led to the discovery of objects, the place where the objects were kept and the manner in which they were kept.
(D) The trial Court should bear in mind that mere proof of panchanama as a document itself is not sufficient and the contents of the panchanama viz. the statements of accused under section 27 of the Evidence Act must be proved and brought on record by the witnesses in their oral testimony.
(E) The prosecutor and the trial Court should not permit summary of the evidence of the witnesses to go on record in so far as the oral evidence is in respect of section 27 of this Act. Whatever witnesses state in the Court in this regard as the words of the accused or the statements of the accused should be taken down in its full original form and there should be no abridging or curtailment in that regard while recording the evidence.
(F) While examining memorandum of discovery under section 27 of the Evidence Act, that part of the statement of the accused which is liable to be excluded as inadmissible should be specifically mentioned in the deposition.
(G) When the arguments started in this case we found that there was no map either sketch map, rough map, or map drawn according to scale of the scene of offence or the spot where the murder took place. This created handicap and obstacle in appreciation of evidence, and therefore, we were required to visit the spot, and hence it is necessary to give further directions to the Investigating Officers and the Police Officers that in every offence where capital punishment is prescribed and on considering the nature of the offence and facts of the case, the Investigating Officers should prepare a map or a plan depicting true and correct picture of the scene of offence, surrounding areas and the places where the witnesses claimed to be present. These directions should be circulated to the Commissioner of Police or Inspector General who in turn will communicate all the Investigating Officers within his jurisdiction.
These guide lines are only regarding the steps to be taken while recording the evidence and they are not to be construed in any manner limitation or liberties of the trial courts in appreciating the evidence that has come on record. All these directions should be scrupulously followed by all the concerned.
91. In the result we pass the following order ORDER Appeal filed by Accused No. 2 Shri Nazir Babu Shaikh bearing No. 37] of 1996 is dismissed.
Appeal filed by Accused Nos. 1 and 3 Shri Shankar Gopal Patil and Shri Balaram Waman Patil respectively bearing No. 135 of 1996 is also dismissed.
Appeal of the State against acquittal bearing No. 336 of 1996 is allowed in so far as Accused Nos. 2 Nazir Babu Shaikh, Accused No. 4 Pandurang Kalu Patil and Accused No. 6 Janardan Shaligarm Patil are concerned. Accused No. 2 is convicted under section 302 read with section 149 of the Indian Penal Code and sentenced to suffer R.I. for life, Accused Nos. 4 and 6 are convicted under section 326 read with section 149 of the Indian Penal Code and sentenced to suffer R.I. for 10 years each.
Acquittal of other Accused Nos. 5, 9, 10, 11 and 12 is up held and appeal of the State against those accused is dismissed.
Copy of this judgment be sent to all the Sessions Judges in the State who in turn circulate the aforesaid directions to all the trial courts and Metropolitan Magistrates in Bombay, and also to the Commissioner of Police or Inspector General in State who shall circulate the guideline in paragraph No. 90(G) to all the police station officers.
After the judgment was pronounced Mr. Chitnis, learned Counsel appearing for the accused/appellants prayed for six weeks time to surrender the accused before trial Court. Considering the submissions made by Mr. Chitnis and learned A.P.P. time to surrender as prayed for is granted.
92. Acquittal allowed. Appeal against conviction dismissed.
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