A.B. Pal, J.
1. We have heard Mr. D.C. Roy, learned Counsel for the convict-appellant and Mr. D. Sarkar, learned Public Prosecutor along with Mr. R. C. Debnath, learned Spl. P. P. for the State.
2. This criminal appeal is directed against the judgment dated 19-7-2002 passed by learned Additional Sessions Judge, Belonia, South Tripura, in Session Trial No. 78 (ST/B) of 2001. The appellant Arab Ali has been convicted under Section 302 and 201 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life with fine of Rs. 5,000/- under Section 302, IPC by the said judgment. No separate sentence has been imposed under Section 201 of IPC. The appellant has been booked for committing the murder of one Ali Miah on 15-8-2001, sometime in the afternoon. The victim was aged 70 years at that time. According to the prosecution version on 15-8-2001 in the afternoon the victim and the convict-appellant were proceeding towards Birchandra Nagar Bazar. The victim had Rs. 2100/2200/- with him. At about 1.30 p.m. they were last seen together by P.Ws. 2.3 and 10. Thereafter, this victim was missing. The informant Hachan Ali is the son of the victim who was instructed by his father to meet him in the market. But the father could not be found in the market. In search of his father the informant returned home and came to know that his father was seen together with the convict in the afternoon. He then along with 10/12 villagers went to the house of the convict in the evening and interrogated him when he made a confession to them that he had murdered Ali Miah and took away the money from the victim. The convict was then apprehended and confined in the house of Suraj Mia (P.W. 1). Thereafter, the police was informed. Again in presence of the police the convict made the disclosure verbally that he had killed the victim and concealed his dead body in a nearby-jungle. He led the villagers and the police to the place wherefrom the dead body of the victim and the lathi which was used as weapon of offence were recovered. The investigation was thus set in motion with the FIR lodged by Hachan Ali (P.W. 9) the son of the victim. During the course of investigation post-mortem on the dead body was done which showed that the death had occurred due to multiple fractures in the skull caused by blunt weapon like lathi. The learned trial Court proceeded to convict the appellant on the basis of the (i) extra judicial confession by the convict to P.Ws. 1,4,5 and 11 which led to the discovery of the dead body and weapon of offence; (ii) on the last seen evidence coming from P.Ws. 2, 3 and 10; (iii) on the recovery of the dead body and (iv) the post mortem report.
3. Several questions have been raised before the learned trial Court as well as before this Court in appeal whether the circumstantial evidence coming from the aforementioned category of witness can be said to have proved the prosecution case beyond reasonable shadow of doubt and whether it can be said that no reasonable hypothesis can be drawn from such circumstances which is consistent with the innocence of the victim. Before adverting to these questions which have been elaborately dealt with by the learned Additional Sessions Judge in the judgment impugned we may briefly notice the evidence coming from the aforementioned witnesses.
4. We first take up the category of witnesses who deposed about the victim having been seen last with the convict P.W.2. Smt. Chaltrakanya Mura Singh, is a tribal woman. Her house is situated by the side of the way to Birchandra Nagar Market. She claimed that on the date of occurrence at about 1.30 p.m. had seen the convict Arab Ali and the victim Ali Miah proceeding towards the market. On the same evening Hachan Ali and his brother, who are sons of the deceased, came to her house and asked her about their father's whereabout. She told them that she had seen the convict and the victim together proceeding towards the mar -ket.
5. P.W. 3 is Brajendra Mura Singh, who was catching fish in his paddy field at about 1.30 p.m. on the fateful day. The convict first came to him and asked whether Ali Miah had been there. He replied in the negative. The convict then was waiting there under a tree. After some time the victim Ali Miah arrived there and then both Arab Ali and Ali Mian proceeded towards the market. In the same evening at about 7.30 p.m. Ali Mia's son came to him and inquired about his father's whereabout. He disclosed to them what he had seen, i.e. the convict and the victim together at 1.30 p.m. proceeding towards the market.
6. The 3rd witness is P.W. 10 Adu Jamatia who also had occasion to see the convict and the victim proceeding together towards the said market. He disclosed to the informant and his brother that he had seen in the same way as had been seen by P.W. 2 and 3.
These three witnesses belonging to scheduled tribe community are independent witnesses and they had corroborated each other on this part of the prosecution story that some time before the alleged occurrence of murder the victim and the convict were seen together. In the cross-examination part of these three witnesses there is nothing to discredit them from what they have stated in the examination in Chief. It thus, came to be established in the opinion of the learned trial Court, with which we entirely agree, that on the date of occurrence some time before the commission of murder the victim and convict were seen together proceeding towards the market. It is the well settled law, as rightly argued by Mr. Sarkar learned public prosecutor that a presumption against the convict in such circumstances must arise and the convict is duty bound to lead evidence for rebutting such presumption. Mr. Sarkar has pointed out that in the entire cross-examination of witnesses by the defence and in the examination of the convict under Section 313 of the Criminal Procedure Code no attempt has been made by the defence to offer suitable explanation in order to break the presumptive value of the circumstantial chain built by the last seen evidence.
7. Next we come to the second part of the circumstantial evidence coming from P.Ws. 1, 4, 5 and 11. When the informant and his brother came to know that their father was last seen with the appellant herein, they along with others including the witnesses aforementioned went to the house of the appellant and wanted to know from him about the whereabout of the victim. From Suraj Miah (P.W. 1) we know that being interrogated by the witnesses the appellant confessed to them that he had murdered All Miah, but immediately after the confession he made retraction that he did not go to Birchandra nagar market along with All Miah. This contradictory statement of the convict is echoed in the deposition of Abdul Rahaman (P.W. 4) and Abdul Azid (P.W. 11). But Rahim Jamatia (P.W. 5) stated that being questioned about whereabout of All Miah the appellant told him that he had murdered the victim and concealed the dead body in the jungle by the side of Rata Chara School. To this witness the convict did not retract. The convict was then confined in the house of P.W. 1 and the police was informed. When the Police Officer came and interrogated him in presence of the aforementioned witnesses he again made the confession and took him to the Jungle near the side of Rata Chara School wherefrom the dead body and the lathi were recovered. This witness further stated that the lathi by which All Miah was assaulted was lying by the side of the dead body. Thus, according to P.W. 5 the appellant not only confessed without retraction that he murdered All Mian and concealed the dead body in jungle by the side of road near Rata Chara School, he also led them to that spot. Similarly, P.W. 11 supported P.W. 5 stating that after making the confession convict had taken them to the place where the dead body was concealed. The appellant had further confessed that he had taken away Rs. 2140/- from deceased Ali Miah and kept the amount in his house under a quilt. It is on record that the said amount has been recovered and seized from his house during investigation. Thus from the above discussion it is seen that the appellant made confession when he was interrogated by the villagers some of whom have been examined by prosecution. Thereafter, when the police was in the scene he again made the confession. Following the disclosure made to the witnesses as well as to the police, the dead body and the weapon of offence could be recovered from the near by jungle. It is the submission at Mr. Sarkar that the extra Judicial confessions coming from P.Ws. 1,4,5 and 11 are important piece of evidence to strengthen the presumption, which has arisen from the last seen evidence.
8. We have seen in the Judgment impugned that long arguments have been placed to assail the contention that the disclosure made to the police following which the dead body and the lathi were recovered cannot be admissible as evidence under Section 27 of the Evidence Act 1872. The argument advanced is that the essential ingredients of such evidence must be (1) the accused is in the custody of the police; (2) he made a statement which has been recorded; (3) certain recovery has been made of the instance of the accused; (4) there is a close relation between the statement and the recovery made. Several decisions have been relied on by the defence in support of the argument that all the above essential ingredients are sine qua non to take the aid of Section 27 of the Evidence Act in order to derive the benefit of the disclosure made. The same argument has been strongly placed before us by Mr. Roy, the learned Counsel for the appellant in support of which he has referred to a decision of the Supreme Court reported in : AIR1988SC1705 (Makhan Singh v. State of Punjab). In para 14 of the said judgment the Apex Court held as below:
14. Then we are left with the recovery of the dead bodies. Investigating Officer S.I. Puran Singh (P.W. 8) admitted in cross-examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other article, were kept buried and concealed. This clearly indicates that he could get some information from the statement of Amrik Singh. As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field. The Investigating Officer himself admitted and after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient. It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none else. Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstance against the appellant.
The ratio laid down by the Apex Court in Makhan Singh : AIR1988SC1705 (supra) has been reiterated in 1992 Cri LJ 3972 (Ramua alias Ram Lal v. State of U.P.). The observation made in para 19 of the said judgment is gainfully quoted below:
19. Broadly speaking there are four conditions, before Section 27 is applied. 1st that the accused must be in the custody of a police officer, 2ndly, the accused must give an information to the police (the exception contemplated by Section 27 is that even though this information may amount to a confession), 3rdly there must be discovery of an instrument and fourthly the information must relate distinctly to the fact discovered. This Section 27 is drafted on the same lines as Section 150 of Evidence Act XXV of 1861, or the relevant section of Indian Evidence Act VIII of 1869. A five Judge Full Bench of this Court in Queen Empress v. Babu Lal (1884) 6 Alld. 509, held that the information may be to the police officer or to any other private individual. In the present case there was no information (i.e. the accused while in police custody must have said 'you will find a Kulhari at such a place and I killed my wife with it') the appellant was not in police custody when he pointed out the weapon. Experience reveals that Section 27 of the Act has been very often, misused by the police, hence Court must be vigilant about, its circumvention. In the absence of any Information being furnished to the police just pointing out to the weapon and its recovery is not a relevant fact.
9. We have carefully gone through the factual aspects of the two cases in which the above decisions have been rendered. It would be seen therefrom that the investigating Police Officer recorded the statement of the accused in those cases and on the basis of the disclosure made in that statement certain discovery was made. In the case in hand no such statement of the accused has been recorded by the investigating Police Officer. What has emerged from the deposition of the witnesses discussed above is that the convict has made a disclosure in his extra judicial confession to the witnesses before arrival of police and in that extra-judicial confession he not only stated that he had killed the victim but also that he had concealed the dead body and the lathi by which the victim was killed in near by jungle. Thus the confession includes a statement by virtue of which the dead body and the weapon of offence could be recovered. No doubt after arrival of the police the convict reiterated the disclosure and thereafter he had taken the police and the witnesses to the place where from the deadbody and the lathi were recovered. Thus it would be apparent that the prosecution made no conscious attempt to rely on the statement of the accused given to the police leading to the discovery. From the above decision of the Apex Court it would be seen that such a statement could be given to private individuals also as has been given in the present case leading to the discovery of the dead body and the weapon of offence. The learned trial Court has strenuously made analysis to finally take the view that the essential ingredients of Section 27 are very much present in the case in hand for the reason that when the police came the accused was by implication handed over and thereafter he made a disclosure following which the discovery was made. According to the learned trial Court the accused was in the custody of the police when he made the disclosure and following that disclosure the dead body and the weapon of offence were found. Though we have no reason to disagree with the view taken by the learned trial Court, at the same time we place on record that even without the aid of Section 27, the evidence relating to discovery of the deadbody and weapon of offence is very much admissible on the basis of the disclosure made by the convict to the witnesses aforementioned. Thus this part of the evidence relating to extra-judicial confession and the disclosure about the place where the dead body and the weapon of offence were concealed leads, in our view, strong support to the other part of the circumstantial evidence which comes from the witnesses who had seen the convict and the victim together immediately before the commission of the crime. Needless to say, Section 27 is to be pressed into service only toy make admissible a statement to police, which is otherwise inadmissible leading to certain discovery relating to the offence.
10. It is not in dispute that the money taken by the convict from the victim was found in the house of the appellant and this fact has come from the evidence of none but Smt. Pramila Bibi (P.W. 6), the wife of the appellant himself. It cannot also be in dispute that the death of All Miah had occurred due to the fractured injury in his skull caused by blunt weapon like lathi, as has been deposed by Dr. Bidhu Bhusan Das (P.W. 7) who conducted the post mortem examination. By the recovery of the money, the argument placed by Mr. Sarkar is that, the motive of the offence committed by the appellant has been well proved, though in a case of murder it is not necessary for prosecution to separately and specifically prove mens rea. Mr. Sarkar, learned P.P. has made a robust argument that in a case, such as this, based on circumstantial evidence, when prosecution has been able by adducing evidence to show that certain presumption about the guilt of the accused has to be drawn, the onus of disproving such a presumption heavily lies on the accused and this onus has not been discharge by the appellant in the present case. We have touched this issue above and now in support of his contention Mr. Sarkar has placed reliance on a decision of the Apex Court in State of W. B. v. Mir, Mohammad Omar i 2000 (8) SCC 382 : 2000 Cri LJ 4047.
11. Dealing with the question of presumption drawn from circumstantial evidence and the onus of the accused to lead evidence to rebut the same the Supreme Court made important observation in para 31 of the said judgment which is gainfully quoted below:
31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
12. From the above discussions it would _ seen that if the circumstantial evidence of last seen together extra judicial confession discovery of the deadbody, and the weapon of offence, cause of the death and recovery of the money from the house of the convict are taken and rationally arranged together a chain of circumstantial evidence is strongly built upon, and the only reasonable hypothesis which can be drawn therefrom is that none but the appellant had committed the offence of murder of All Miah with the ill intention of taking away the money from him. There has been no attempt from the defence to lead any evidence to detract from the same. The law laid down by the Apex Court if placed on the anvil of the above facts and circumstances, there would be no reason for us to take a different view from what has been taken by the learned trial Court. Considered thus we find no reason to interfere with the Judgment of conviction and sentence impugned and, therefore, this appeal having no merit is hereby dismissed.