66. From paragraph No. 64 onwards the Trial Court has looked into the circumstantial evidence, like discovery of 4 swords under Section 27 of the Evidence Act. Accused persons, particularly accused Nos. 1 to 4 have attacked this discovery only on the ground that all of them were not taken to the well and it is only accused No. 2 Vinod who pointed out that Well. It is also stated that in statement made, these accused persons no where state that they can show the Well or take out the swords from the said Well. Statement at Exh. 215 shows that it is signed by accused No. 1 Vijay. He has stated that 4 swords were used to attack Makrand and then the same were thrown in the Well of Prabhakar i.e. in a well in field of Prabhakar Gawande. Exh. 216 is same statement by accused No. 3 Devanand. Exh. 217 is similar statement by accused No. 4 Shankar. Accused No. 2 Vinod at Exh. 218 has, however, in addition stated that he would show said Well if police force and witness accompanied him. All these statements are signed by the accused persons and it is not their defence that their signatures were obtained by force upon it. Contention that they did not agree to show the Well or to take out swords form that Well is, not very material. Trial Court has considered this aspect in the light of various precedents and noted ingredients of Section 27in paragraph No. 72. It held that Section 27 of Evidence Act does not require that the accused person should show eagerness to point out a place where the evidence was kept hidden. Judgment of Hon'ble Apex Court reported at MANU/SC/0465/2005 : 2005 Cr.L.J. 3950 (SC) : (2005 ALL MR (Cri) 2805 (S.C.)) (State (NCT) Delhi vrs. Navjot Sandhu) pressed into service by Shri Mundra, learned counsel shows that on the basis of information furnished by such accused, the investigating officer may go to the place in the company of other witness and recover such object. By doing so, the investigating officer discovers a fact. In present matter, though the investigating officer states that all four accused were carried to the Well, the memorandum of seizure at Exh. 219 shows that it was only accused No. 2 who was taken to that Well. 4 swords were then taken out and seized from it. This seizure memo is again signed by accused No. 2 Vinod. There is no signature of other accused persons on it. It is not the case of the prosecution that though other accused were carried to that place, they refused to sign upon the seizure panchnama. However, material on record establishes that accused persons gave knowledge to the investigating officer about the availability of murder weapons in the said Well below water. They stated that all 4 swords were thrown by them in one and the same Well. Accused No. 2 has actually taken the witness and police to that Well and 4 swords were then seized. Thus this discovery is in consequence of information received from all the accused. We therefore, find the objection being raised by the accused persons unsustainable. Fact that handle of a sword found at spot of crime fits with the blade of sword i.e. one of the weapons recovered from Well is not in dispute.
MANU/PR/0049/1946AIR (34) 1947 Privy Council 67 (Pulukuri Kottaya and others vrs. Emperor) relied upon by Shri Mardikar has been considered in Harivadan Babubhai Patel v. State of Gujarat, MANU/SC/0623/2013 : (2013) 7 SCC 45 : (2013 ALL SCR 2524), where at page 53, the Hon'ble Apex Court states that:-
" 18. In State of Maharashtra v. Damu it has been held as follows: (SCC p. 283, para 35)"35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."19. The same principle has been laid down in State of Maharashtra v. Suresh, State of Punjab v. Gurnam Kaur, Aftab Ahmad Anasari v. State of Uttaranchal, Bhagwan Dass v. State (NCT of Delhi), Manu Sharma v. State (NCT of Delhi) and Rumi Bora Dutta v. State of Assam.20. In the case at hand, the factum of information related to the discovery of the dead body and other articles and the said information was within the special knowledge of the present appellant. Hence, the doctrine of confirmation by subsequent events is attracted and, therefore, we have no hesitation in holding that the recovery or discovery in the case at hand is a relevant fact or material which can be relied upon and has been correctly relied upon."
67. Hon'ble Apex Court in Rumi Bora Dutta v. State of Assam, (MANU/SC/0593/2013 : (2013) 7 SCC 417) : (2013 ALL SCR 2459), at page 424 also refers to Pulukuri Kottaya and others vrs. Emperor, (supra) and holds:
"16. In this context, we may refer with profit to the ruling in State of Maharashtra v. Damu wherein it has been observed that: (SCC pp. 28283, para 35)"35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum." Thereafter, the two learned Judges proceeded to state as follows: (SCC p. 283, para 35)"35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section [Section 27]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."17. In State of Punjab v. Gurnam Kaur it has been laid down that: (SCC p. 228, para 14)"14. If by reason of statements made by an accused some facts have been discovered, the same would be admissible against the person who had made the statement in terms of Section 27 of the Evidence Act."18. In Aftab Ahmad Anasari v. State of Uttaranchal, after referring to an earlier decision in Pulukuri Kotayya, a two-Judge Bench opined in the context of the said case that when the accused was ready to show the place where he had concealed the clothes of the deceased, the same was clearly admissible under Section 27 of the Evidence Act because the same related distinctly to the discovery of the clothes of the deceased from that very place.19. In Bhagwan Dass v. State (NCT of Delhi), relying on the decisions in Aftab Ahmad Anasari and Manu Sharma v. State (NCT of Delhi), the Court opined that when the accused had given a statement that related to discovery of an electric wire by which the crime was committed, the said disclosure statement was admissible as evidence.20. In the case at hand, both the accused have led to discovery of the knife and the skipping rope used in the crime. It was within their special knowledge. The medical evidence corroborates the fact that the deceased died because of strangulation and further there was a stab injury on his chest. Thus, the weapon and the other articles have direct nexus with the injuries found in the postmortem report."
It is important to note that in Jitender Kumar v. State of Haryana, (MANU/SC/0532/2012 : (2012) 6 SCC 204) : (2012 ALL SCR 1890), at page 215, Hon'ble Apex Court has laid down that-
"28. This contention of the learned counsel for the appellant need not detain us any further as the law in this regard has been settled by various pronouncements of this Court. What has been recorded in Ext. P-43 cannot be taken to be confession of the accused in relation to commission of the crime, but the other part by which the motorcycle was recovered, would be the portion admissible in evidence. The admissible part can very safely be segregated from the inadmissible part in this statement."
We, therefore, find that Pulukuri Kottaya and others vrs. Emperor, (supra) need not be separately looked into by us.
68. Observations of Hon'ble Apex Court in Yakub Abdul Razak Memon v. State of Maharashtra, MANU/SC/0268/2013 : (2013) 13 SCC 1, at page 1003 on joint disclosures or simultaneous disclosures are also important. There the Hon'ble Apex Court while holding joint discovery and statements legal, also cites State (NCT) Delhi vrs. Navjot Sandhu, (2005 ALL MR (Cri) 2805 (S.C.) ) (supra) with approval. Relevant observations are:--
"145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lakhs from the truck in which they were found at Srinagar is in issue. The learned Senior Advocate Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording 'a person' excludes the applicability of the section to more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the court is really a matter of evaluation of evidence."
We, in this backdrop, do not find it necessary to refer to Mustkeem @ Sirajudeen vrs. State of Rajasthan, (2011 ALL SCR 2662 ) (supra) which does not lay down any different proposition. It only stipulates that burden lies on prosecution to establish the close link between the discovery of such weapon and its use in the crime. The fact that swordhandle found at the spot of murder exactly fits on the swordblade recovered without handle along with three swords from same Well under Section 27 of Evidence Act, is not in dispute.
Some arguments were advanced about the Well from which swords were seized. Contention is revenue records i.e. 7/12 extract (Exh. 332) of field survey No. 142/A owned by Prabhakar Gawande does not show any Well in field. We find that Vinod had shown a Well which was about 45 feet from the road and 4 swords were seized from that Well. Accused has shown that field as belonging to Prabhakar Gawande. In seizure panchnama boundaries of said field are also given. All accused have stated that swords were thrown in the Well situated in the field of Prabhakar Gawande. The objection, therefore, is misconceived. Trial Court has also found that though field belongs to Ramchandra Gawande, Prabhakar Gawande being his son, he was mentioned as owner. Thus 4 swords are found/discovered under Section 27 at the instance of accused Nos. 1 to 4, and Trial Court has also drawn adverse inference against them for dropping all swords in the Well. In this situation, not expressly mentioning in memorandum that statement recorded under section 27 was not read over to the accused persons by itself cannot be held fatal. None of the accused has made any grievance about their signatures on memorandum drawn under Section 27 of Evidence Act.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Decided On: 01.08.2014
Appellants: Vijay and Ors.
Vs.
Respondent: The State of Maharashtra
Vs.
Respondent: The State of Maharashtra
Hon'ble Judges/Coram:B.P. Dharmadhikari and C.V. Bhadang , JJ.
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