Shiv Kumar Sharma, J.
1. Javed Masood and Syed Najib Hasan, appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) Tonk, who vide judgment dated July 25, 2003, convicted and sentenced them as under:
Under Section 302 IPC:
Both to undergo imprisonment for life and fine of Rs. 100/- in default to further suffer three months simple imprisonment.
Under Section 201 IPC:
Both to undergo three years rigorous imprisonment and fine of Rs. 100/- in default to further suffer three months simple imprisonment.
Under Section 148 IPC:
Both to undergo three years rigorous imprisonment and fine of Rs. 100/- in default to further suffer three months simple imprisonment. The substantive sentences were ordered to run concurrently.
FACTS AND RIVAL SUBMISSIONS:
2. Put briefly the prosecution case is that on May 25, 1999 at 1 PM Sub Inspector of Police Station Kotwali Tonk recorded Parcha Bayan (Ex.P12) of Chuttu @ Nizamuddin (Pw. 5) wherein he stated that on the said day around 12.15 to 12.30 AM he in the company of Saleem and Noor, was getting his truck repaired at Rajasthan Tyrewala near Roadways Depot Tonk. At that time Mohammad Deen @ Mulla came at the shop of Ayub Bhai, suddenly 10-12 persons equipped with arms came over there and surrounded Mohammad Deen @ Mulla. Out of those persons Javed, Khalid, Nazeeb, Ashraf and Aziz were armed with Gupties, Mehmood, Iqbal, Nasir, Matin, Rashidullah were equipped with swords and knives. Gullo @ Arif, Saddique and some other unknown persons had Gandasa. Javed Masood inflicted blow with Gupti on the chest of Mohammad Deen @ Mulla. Khalid, Nazib, Ashraf and Aziz inflicted blows on neck, face and back. Ashraf also gave a blow on the temporal region and Mehmood, Iqbal, Nasir, Matin, Rashidulla gave blows on other parts of the body. Gullo & Saddique gave blows with sword on back and hands of Mullaji. Believing Mullaji to be dead the assailants fled away. Meanwhile police vehicle reached to the spot and removed Mullaji to hospital where he was declared as dead. On that parcha bayan case under Sections 302, 324, 326, 147, 148 and 149 IPC was registered and investigation commenced. Statements of witnesses were recorded, accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under Sections 148, 302, 323, 324, 326/149 and 201 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 33 witnesses. In the explanation under Section 313 CrPC, the appellants claimed innocence. It was stated that on July 25, 1998 Chhuttu, Noor, Salim, Raees assaulted them and FIR was registered as 219/1998 and charge sheet was filed against them. In that case Nazeed Hasan was a witness. Therefore Chhotu, real brother of deceased, falsely implicated the appellants in the instant case. Three witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. We have heard learned Counsel for the appellants, learned Public Prosecutor and learned Counsel for the complainant and with their assistance scanned the material on record.
4. The death of Mohammaddin @ Mulla was undeniably homicidal in nature. As per post mortem report (Ex.P-43) following ante mortem injuries were found on the dead body:
1. Incised wound 1' x ' sub cut deep right parietal posterior part, elliptical
2. Incised wound 1' x ' phanyngeal cavity deep elliptical vertical bleeding + Rt. carotid region ant. to ear lobule.
3. Incised wound ' x ' muscle deep on Rt. parotid region anterior to injury No. 2 vertical elliptical.
4. Contusion 3' x 2' lt. forehead above lt. eye brow with black eye.
5. Incised wound 1' x 1/8' sub cut elliptical 1' lateral to eye on face right vertical.
6. Incised wound elliptical 1' x ' muscle deep on upper 1/3rd forearm Lt. vertical.
7. Incised wound elliptical 1' x ' muscle deep on lt. arm upper 1/3 vertical.
8. Penetrating incised wound 1' x ' Rt. chest cavity deep 2' above & ' medial to right nipple on anterior right chest wall elliptical, directing down & medial aspect.
9. Penetrating incised wound 1' x ' chest cavity deep elliptical, oblique 1' medial to injury No. 8 giving downward & laterally on ant. chest wall (Rt.)
10. Incised wound 1' x ' muscle deep elliptical oblique direction medial & lateral aspect Rt. lower chest mammary line interiorly.
11. Penetrating Incised wound 1' x ' abdominal cavity deep on left hypochondrium on abdominal wall elliptical obliquely placed 2' below sub costal Lt. marg & 2' lt. lateral to mid line.
12. Incised wound ' x 1/8' sub cuticle 4' below left nipple transverse elliptical.
13. Abrasion 3 No. 2', 2', 1' linear oblique each parallel to each other 4' lat. & above to umblicus on lt. Ant. abdominal wall.
14. Incised wound 4' x ' muscle oblique above down 2' lateral to (Rt. nipple, on Rt. chest anterior lat.)
15. Incised wound 1' x ' muscle deep elliptical horizontally in mid axillary region (right).
16. Penetrating Incised wound 1' x ' chest cavity deep Rt. mid axillary region ' below injury No. 15, elliptical vertical bleeding.
17. Incised wound 1' x ' x scapular deep horizontal elliptical Rt. back chest inter scapular region.
18. Incised wound 1' x ' muscle deep left to mid line of back on chest vertical elliptical
19. Incised wound 1' x ' muscle deep transverse ' right medial to mid line on Rt. back of chest
20. Incised wound ' x ' muscle deep on left lower to chest back in lower part elliptical horizontal.
21. Abrasion (three) ' x ' each three No. number Rt. knee joint.
22. Abrasion (two) ' x ' on left knee joint.
In the opinion of the members of the Medical Board the cause of death was shock due to excessive hemorrhage on account of injury to right lung and Liver by penetrating chest injuries.
5. Mr. S.R. Bajwa, learned Senior Counsel appearing for the appellants canvassed that the testimony of Mohammad Ayub (Pw. 6) directly stands in conflict with the testimony of informant Chhuttan (Pw. 5), Noor (Pw. 13) and Raees (Pw. 14). Mohd. Ayub categorically stated that where deceased was assaulted no one was present at the spot. In such a situation, the presence of informant Chhuttan (Pw. 5), Noor Mohammad (Pw. 13) and Raees (Pw. 14) at the relevant time on the place of incident becomes highly suspect.
6. In his deposition Mohd.Ayub (Pw. 6) stated that while he was on his Tyre-shop Mohammadin @ Mulla came alone to his shop on Motor cycle around 12.30 PM to pay a sum of Rs. 15,000/- a part of money outstanding against him. Mulla wanted to purchase more tyres on credit but he declined. Thereafter they had a discussion and he agreed to arrange for old tyres. He left Mulla sitting on the shop and went inside of Godown in search of old tyres. When he came back to his shop he did not find Mulla at his shop. Soon thereafter he heard noise and saw few persons passing in the nearby street. He also rushed to the street and found Mulla lying dead in the pool of blood. He informed the police about the incident. Police arrived within 5-10 minutes and took the dead body of Mulla in a Gypsi. After about 10-15 minutes Chhuttan and Noor Bhai came over there and asked about the incident. He then narrated the incident to them. In his cross examination Mohd. Ayub categorically stated that at the time of incident Chhuttan, Noor, Salim and Raees were not there.
7. Chhuttan (Pw. 5) deposed that around 12.15 PM he along with Noor and Salim had gone for getting the Truck belonging his elder brother, repaired. His elder brother Mulla ji followed them on motor cycle. Mulla ji told Noor to accompany him to the shop of Ayub Bhai Tyre wala since Mulla ji would to pay some money to Ayub Bhai. Mullaji and Noor went to the shop of Ayub Bhai and he (Chhuttan) and Salim stayed near the truck. After 5-7 minutes he heard the noise of quarrel. Salim went near the place of quarrel and saw 10-12 persons, who were armed with weapons, surrounded Mullaji. Javed Masood inflicted blow with Gupti on the chest of Mullaji while Nazeeb gave blow with knife on his abdomen and chest. Khalid and other 10-12 persons were inflicting blows indiscriminately on his back. After Mullaji fell down the assailants fled away. In the meanwhile police jeep of white colour arrived and Mullaji was removed to Hospital. The incident was witnessed by Hussain, Raees, Ayub Bhai Tyre wala. Chhuttan's Parcha Bayan (Ex.P-12) was recorded by the police. Noor Mohammad (Pw. 13) deposed that around 12.30 PM he had gone to Chungi Naka to get the truck of Mulla Teen band repaired. As soon as he reached there Mullaji came from behind. He took Noor Mohammad with him and went to Ayub Bhai Tyre wala and paid a sum of Rupees fifteen hundred to him. In the meanwhile Javed Masood and Nazib arrived. Altercations ensued between them. Noor Mohammad called Chhuttan and Salim who were standing near the truck. Javed then inflicted blow with Gupti on the chest and abdomen of Mullaji, thereafter Nazib gave blow with Chhurra on his chest. Mullaji fell down. Finding police Gupsy arrived the assailants fled away. The police with their help put Mullaji in the jeep and rushed to the Hospital. They also followed the Gupsy and went to the hospital. Raees (Pw. 14) in his deposition stated that around 12.15 PM while he was coming from Shaboo's shop, he saw crowd near the shop of Ayub Tyre wala. Ten-twelve persons surrounded Mulla. Javed gave blow with Gupti on the chest of Mulla. Nazib also inflicted Chhurra blow on the chest of Mulla. Other also caused injuries. In the meanwhile police arrived and Mulla was removed to the hospital.
8. According to learned Senior Counsel, the testimony of informant Chhuttan (Pw. 5), Noor Mohammad (Pw. 13) and Raees (Pw. 14) does not get corroboration from any independent source and it calls for very stringent and close scrutiny, as they happen to be highly partisan witnesses. None of these witnesses can be placed on pedestal of a wholly reliable witness. It is further contended that the prosecution story as divulged by the informant in Parcha Bayan, has not found approval from Investigating Agency, which is reflected from the fact that investigation qua all other accused persons has been kept open under Section 173(8) CrPC. Learned Senior Counsel vociferously urged that since the incident occurred near the shop of Mohd. Ayub Tyre wala (Pw. 6), his testimony ought to have been relied upon and the testimony of Chhuttan, Noor Mohammad and Raees should have been discarded out rightly.
9. Learned Public Prosecutor however contended that Mohd. Ayub (Pw. 6) was examined as eye witness but he did not support the prosecution story and he ought to have been declared hostile. If prosecutor at the trial did not choose to do so, the appellants could not get benefit because the public Prosecutor shirked his duties and responsibilities.
ROLE OF PUBLIC PROSECUTOR:
10. Looking to the allegation flung at the Public Prosecutor we at the outset need to address ourselves as to what role Public Prosecutor are supposed to play and in what manner role of Public Prosecutor is defined by International Guidelines and International & National Jurisprudence.
11. In Indian Criminal Justice system there is a confusion about the duties and responsibilities of Public Prosecutor.
12. In United States, the duty of a Public Prosecutor or other government lawyer is to seek justice, not merely to convict and to see that justice is done. Rule 3.8 of the Model Rules of Professional Conduct formulated by the American Bar Association lays down that the Prosecutor in a criminal case shall refrain from prosecuting a charge that the Prosecutor knows is not supported by probable cause and make timely disclosure to the defense of all evidence or information known to the Prosecutor that tends to negate the guilt of the accused or mitigates the offense and in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the Prosecutor, except when the Prosecutor is relieved of this responsibility by a protective order of the tribunal.
13. In Harry Berger v. United States of America (1934) 295 US 78-89 Mr. Justice Sutherland, delivering the opinion of the Court said that:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. [She/] he may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much [her/] his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
14. The Supreme Court of Canada has also elaborated upon role of Prosecutor in R. v. Boucher (1954)110 CCC 263 (SCC) by saying that:
It cannot be over emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel has a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of Prosecutor excludes any notion of winning or losing; her/his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings. R. v. Boucher (1954) 110 CCC 263 at p. 270.
15. According to New Zealand Law Society's Rules of Professional Conduct although the Prosecutor is an advocate, he or she must prosecute 'dispassionately and with scrupulous fairness' [Rule 9.01, Rules for Professional Conduct for Barristers and Solicitors, Adopted by the New Zealand Law Society on 28th July, 1989]. The New Zealand courts have explained that the Crown's duty is to present its case fairly and completely, and to be as firm as the circumstances warrant, but the Crown must never 'struggle for a conviction' R. v. Puddick (1865) 176 ER 622. They have further said that it is 'quite impermissible' for a Prosecutor to attempt to persuade the jury by factors of prejudice or emotion and that the Prosecutor is neither the lawyer for the victim, nor a lawyer for the police. He or she acts on behalf of the community, and has a responsibility to ensure that justice is done in a fair and balanced way. R. v. Roulston (1976) 2 NZLR 644 at p. 654.
16. The Canadian jurisprudence has also interpreted the role of a Prosecutor by laying down that a Prosecutor's responsibilities are public in nature. As a Prosecutor and public representative, Crown counsel's demeanor and actions should be fair, dispassionate and moderate, show no signs of partisanship R. v. Henderson (1999)44 OR (3d) 628 (CA), open to the possibility of the innocence of the accused person and avoid 'tunnel vision' [...tunnel vision means the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably color the evaluation of information received and one's conduct in response to that information' The Commission on Proceedings involving Guy Paul Morin, the Hon'ble Fred Kaufman, Commissioner Toronto: Queen's Printer, 1998 at p.1136. It is especially important that Crown counsel avoid personalising their role in Court R. v. FS (2000) 47 OR (3d) 349 (Ont.CA). The Canadian Supreme Court has further very strongly held that although Crown counsel work closely with the police, the separation between police and Crown roles is of fundamental importance to the proper administration of justice. R. v. Regan (2002) 1 SCR 297 (SCC).
17. The ideal Public Prosecutor is not concerned with securing convictions, or with satisfying departments of the State Governments with which she/he has been in contact. He must consider herself/himself as an agent of justice. Per Anantanarayanan, CJ in A. Mohambaram v. MA Jayavelu 1970 Cri LJ 241 The Allahabad High Court had ruled that it is the duty of the Public Prosecutor to see that justice is vindicated and that he should not obtain an unrighteous conviction. Kashinath Dinka (1871)8 BHC (CrC) 126.
18. The purpose of a criminal trial being to determine the guilt or innocence of the accused person, the duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of the accused persons has to be conducted with the utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be 'a seemly eagerness for, or grasping at a conviction'. Ananat Wasudeo Chandekar v. King Emperor AIR 1924 Nag 243.
19. The only aim of a Public Prosecutor should be to aid the court in discovering truth. A Public Prosecutor should avoid any proceedings likely to intimidate or unduly influence witnesses on either side. There should be on her/his part no unseemly eagerness for, or grasping at, conviction. Kashinath Dinka (1871)8 BHC (CrC) 126.
20. The duty of a Public Prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in the possession of the prosecution, whether it be in favour of or against the accused and to leave the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged. Ghirrao v. Emperor (1933)34 Cri LJ 1099 (Oudh Chief Court). It is as much the duty of the Prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble : 2003CriLJ4548 .
21. A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure, 1973. She/he is not a part of the investigating agency. She/he is an independent statutory authority. She/he is neither the post office of the investigating agency, nor its 'forwarding agency' but is charged with a statutory duty. Hitendra Vishnu Thakur v. State of Maharashtra : 1995CriLJ517 . The purpose of a criminal trial is not to support at all cost a theory, but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the Public Prosecutor is to represent not the police, but the State and her/his duty should be discharged by her/him fairly and fearlessly and with a full sense of responsibility that attaches to her/his position. Ram Ranjan Ray v. Emperor (1915) 42 Cal 422. There can be no manner of doubt that Parliament intended that Public Prosecutors should be free from the control of the police department. 1976 Cri LJ 32 (All).
22. The Patna High Court held that purpose of a criminal trial is not to support a given theory at all costs but to investigate the offence and to determine the fault or innocence of the accused and the duty of the Public Prosecutor is to represent not the police but the Crown and her/his duty should be discharged by her/him fairly and fearlessly and with full sense of responsibility that attaches to her/his position. Kunja Subudhi v. Emperor (1929)30 Cri LJ 675.
23. The Andhra Pradesh High Court had ruled that prosecution should not mean persecution and the Prosecutor should be scrupulously fair to the accused and should not strive for conviction in all these cases. It further stated that the courts should be zealous to see that the prosecution of an offender should not be given to a private party. The court also said that if there is no one to control the situation when there was a possibility of things going wrong, it would amount to a legalised manner of causing vengeance. Medichetty Ramakistiah v. State of AP : AIR1959AP659 .
24. It is inconsistent with the ethics of legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused. Sunil Kumar Pal v. Phota Sk : AIR1984SC1591 .
25. It is the Public Prosecutors' duty to present the truth before the court. Fair trial means a trial before an impartial Judge, a fair Prosecutor and atmosphere of judicial calm. The Prosecutor who does not act fairly and acts more like a counsel for the defense is a liability to the fair judicial system. Zahira Habibulla H. Sheikh v. State of Gujarat : 2004CriLJ2050 .
26. The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor and is entirely within the discretion of the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above her/him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide herself/himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with her/him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. The sole consideration for the Public Prosecutor when she/he decides a withdrawal from a prosecution is the larger factor of administration of justice, not political favours nor party pressures nor like concerns. Balwant Singh v. State of Bihar : 1977CriLJ1935 .
27. The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggests to her/him to consider whether the prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend. Balwant Singh v. State of Bihar : 1977CriLJ1935 .
28. The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction. Shiv Kumar v. Hukam Chand : (1999)7SCC467 .
29. Having analysed afore quoted guidelines we find that it is the duty of a Public Prosecutor to bring to attention of the Court, any issue that the defense could have raised, but has failed to do. But, in doing so, Public Prosecutor cannot act as if he is defending the victim, nor can he appear on behalf of the accused. When the Prosecutor acts in a manner as if he was defending the accused, then there is no fair trial. A PP is an independent entity from police and police cannot order him to conduct prosecution in a particular way. The PP represents the State and not the police and can only be influenced by 'public interest'.
HOSTILE WITNESS:
30. In the instant case the Public Prosecutor at the trial did not religiously follow his responsibilities and duties provided under the Indian Evidence Act. He acted casually while Mohd. Ayub (Pw. 6) was deposing in the court. The Public Prosecutor ought to have requested the court under Section 154 of the Evidence Act to allow him to cross examine Mohd. Ayub. When the witness exhibits an opposite feeling viz. when he by his attitude and demeanour shows that he is hostile or unfriendly to the party calling him, the court in such a case permit a party to put any question to his own witness which might be put in cross examination by his opponent i.e. may permit him to lead. The evidence of a witness who has been declared hostile deserves to be scrutinised carefully not only at the time of deciding the case but even at the time when the witness is in the witness-box and being examined. It is the duty of prosecution to put questions to a hostile witness which are relevant for the purpose of ascertaining whether he is speaking the truth. The testimony of witness is not completely effaced merely because he is declared hostile. Such part of a hostile witness, as inspires confidence can be accepted by the Court.
31. Coming to the evidence of Mohd. Ayub (Pw. 6) we notice that he himself did not see the incident and when the incident occurred he was inside his godown. How could then he depose that Chhuttu, Noor and Raees were not present at the time of incident. In his deposition he stated that crowd gathered there but he did not name the persons who were present in the crowd. We find many twists and turns in the testimony of Mohd. Ayub. Once he declined to provide tyres to Mulla on credit, then why he changed his mind and entered in the godown exactly at the time when the incident did occur, why did he not allow Mulla to accompany him to the godown for choosing the tyres of his own choice. We thus find it difficult to believe that when Mulla was assaulted no one was present at the spot.
32. That takes us to the submission of learned Senior Counsel that Chhuttu, Noor Mohd. and Raees were highly partisan witnesses and cannot be placed on the pedestal of a wholly reliable witness.
33. We find ourselves unable to accept this submission. It is well settled that though the chance witness is not necessarily a false witness, is proverbially rash to act upon such evidence. In the case of a chance witness, if that witness gives sufficient reasons for his presence, that evidence can be accepted.
34. Even truthful version of occurrence given by kith and kin of the deceased may be relied upon as was held in Krishna Ram v. State of Rajasthan : 1993CriLJ1056 by the Hon'ble Supreme Court:
(Para 4)
We have gone through the evidence of the eye witnesses. No doubt Pws 1,2,3 and 6 are kith and kin of the deceased but they have given a truthful version of the whole occurrence. Even Ex.P-1 all the material particulars are mentioned particularly the fact that the deceased was dragged to the house of A-1 and that there he was tied and beaten. As noted already even A-1 admitted that the deceased was tied in his house but added that because of the scuffle between PW. 6 and the deceased, latter was tied. Immediately after registering the crime, the SHO went to the house of A-1 and found the deceased tied and he was having bleeding injuries. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye-witnesses consistently to this effect. Both the Courts below have given cogent and convincing reasons for accepting the evidence of the eye witnesses. The evidence adduced in defence is not at all material and the courts below have rightly rejected the same. The trial court acquitted Keshra Ram A-6 giving the benefit of doubt. In our view the same in any manner does not affect the evidence of eye witnesses who are the most natural witnesses. We see absolutely no merits in these appeals. The appeals are dismissed accordingly.
35. In Ram Lakhan v. State of UP : 1996CriLJ3496 held that the evidence of close relatives of deceased is not liable to be rejected on ground of interested witnesses. What is necessary is that Court should scrutinize evidence of such witness carefully.
36. In Baitullah v. State of UP : AIR1997SC3946 Hon'ble Supreme Court held that evidence of interested witness cannot be discarded merely on ground that he is interested. It is normally expected that witness would not leave out real culprits and rope in innocent persons.
37. In Tapubha Bhagwanji v. State of Gujarat : 2002CriLJ3733 the Apex Court held as under:
(Para 12)
The witnesses examined on behalf of the prosecution are witnesses who in normal course of event are expected to know about the incident. Their deposition do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. Nothing has been brought on record either in cross examination of the witnesses concerned or in any other evidence to show any good reason as to why they should falsely implicate the accused in the case. Thus rejection of their testimony on ground that they are interested witnesses being in relation of deceased, not proper.
Emphasis supplied)
38. In Angnoo v. State of UP : 1971CriLJ285 the Apex court held that the fact of relationship would add to value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished.
39. In Bolineedi Venkataramaiah v. State of Andhra Pradesh : 1994CriLJ61 the Apex Court considered the case where there was bitter enmity between prosecution party and accused party, group of persons chased deceased and inflicted injuries. The presence of witnesses at place of occurrence was not found doubtful. It was held that being interested witnesses their evidence was subjected to greater scrutiny. Specific overt acts attributed to accused. Corroboration of overt acts by medical and circumstantial evidence was found. Only those accused to whom specific overt acts had been attributed consistently by all witnesses were convicted. The plea that some of the accused were acquitted, the same evidence cannot be accepted against other accused, was not found tenable.
40. In Suraj Pal v. State of UP : 1994CriLJ928 the Apex court found that the medical evidence fully establish the injury to eye witnesses, eye witnesses gave consistent version and it was held that their evidence cannot be discarded on ground that they were interested witnesses or that coaccused was acquitted on self-same evidence or that there were minor variations.
41. In Kartik Malhar v. State of Bihar : 1996CriLJ889 , the Apex Court held that 'we may also observe that the ground that the witness being a close relative and consequently being partisan witness should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case : [1954]1SCR145 in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witness Speaking through Vivian Bose, J., the Court observed para 25 of : [1954]1SCR145 ):
We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur.
42. In Thangaiya v. State of Tamil Nadu 2005 Cri.L.J. 684 the Apex Court indicated as under:
In a murder trial by describing the independent witnesses as `chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere `chance witnesses'. The expression `chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. In instant case, the plea of the accused that PW-3 was chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. Therefore, there is no substance in the plea that evidence of independent witness which is clear and cogent is to be discarded.
43. It is no doubt true that there are infirmities in the prosecution case but this fact itself does not falsify the entire prosecution story. The evidence of prosecution is consistent qua appellants Javed Masood and Sayed Nazeeb. Specific overt acts have been attributed consistently to them. The ocular version narrated by these witnesses gets corroboration from the post mortem report of the deceased.
44. Having gone through the testimony of Chhuttu, Noor Mohd. and Raees we find that on the day and at the time of incident they reached the place of incident and saw the occurrence. The infirmities pointed out by learned Senior Counsel do not go into the root of the case. On examining the testimony of Chhuttu, Noor Mohd. and Raees from the point of view of trustworthiness we find that their testimony inspire confidence.
45. The ocular evidence also get support from the circumstantial evidence. On the basis of disclosure statements of appellants the Investigating Officer recovered Gupti and Chhurra and drawn memos. The appellants were arrested vide memos Ex.P-1 and Ex.P-2. Appellant Javed gave information under Section 27 of Evidence Act to the effect that he got burnt his pant and Nazeeb also got burnt his clothes. The information given by appellants were recorded in memos Ex.P-37 and Ex.P39. Similarly Javed gave information about Gupti, whereas Nazeeb gave information about Chhurra, which were recorded in memos Ex.P-40 and Ex.P-41. At the instance of Nazeeb Chhurra got recovered vide memo Ex.P-9 and at the instance of Javed Gupti got recovered vide memo Ex.P-8. The weapons were seized and sealed. At the instance of appellants vide memo Ex.P-16 metal buttons, chain, huck etc. were recovered from ash of clothes. The recovered articles were sent to FSL for examination vide memo Ex.P-42.
RECOVERY OF WEAPONS:
46. Section 27 of Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the conditions prescribed by it. The law in India on the subject dealt with in Section 27 is wider than the common law in England. It appears from the provisions of Section 27 that it has been taken bodily from the English law. In both the laws there is a greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him then for one who knows of the danger. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose.
47. Section 27 seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby than the information was true and accordingly can be safely allowed to be given in evidence. It is not correct to presume that information given by the accused under Section 27 is compelled testimony, so as to attract Article 20(3) of the Constitution.
48. In Prakash Chand v. State (Delhi Admn.) : 1979CriLJ329 the Apex Court held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct, under Section 8, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27.
49. Their Lordships of the Supreme Court in Vijender v. State of Delhi (supra) had occasion to consider Section 27 of Evidence Act and observed as under:
(Para 17)
Another elementary statutory breach which we notice in recording the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on June 30, 1992 they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on June 27, 1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case evidence could not be led in respect thereof.
50. In State of Haryana v. Jagbir Singh (supra) the Supreme Court indicated as under:
(Para 21).Since the dead body was recovered on the basis of information already known, Section 27 of the Evidence Act has no application. As observed by this Court in Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 if a recovery of the incriminating articles alleged to have been made by the accused while in custody is inadmissible in evidence if the police already knew where they were hidden. That takes the case out of the purview of Section 27 of the Evidence Act.
51. In Rammi v. State of MP : 1999CriLJ4561 , the Apex Court held thus:
(Paras 11 & 12)
Regarding the recovery of weapons, the prosecution could utilise statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which the accused had furnished to the police officer and which led to the recovery of the weapons.
True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.
52. In Himachal Pradesh Administration v. Om Prakash : 1972CriLJ606 the Apex Court interpreted Section 27 of Evidence Act thus:
A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the `cause and effect' that information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused.
53. In Ghanshyam Das v. State of Assam (2005) 13 SCC 387 the Supreme Court held that evidence regarding pointing the place where weapon was thrown and its recovery can be looked into to throw light on the conduct of accused under Section 8. It was observed as under:
(Para 5)
Another incriminating which corroborates the case of the prosecution is that the appellant led the IO PW. 12 to Kharbhanga riverside and pointed out the place where he had thrown away the Khukri. According to the evidence of PW. 12 the IO and PW. 6, the Khukri was recovered from the river with the help of a diver. Though both the courts have eschewed this circumstance from consideration on the ground that no information was recorded by PW. 12 the IO so as to attract Section 27 of the Evidence Act, we are of the view that the evidence of PW. 12 and PW. 6 to the effect that the accused led them to the spot and pointed out the place where the Khukri was thrown, which fact stands confirmed by its recovery, can be looked into to throw light on the conduct of the accused under Section 8 of the Evidence Act.
54. In addition to the evidence of recovery of incriminating articles at the instance of accused persons, the prosecution has examined the witnesses who attributed specific overt act of the appellants.
55. We cannot approach the action of Investigating Officers with initial distrust. The investigating officers had no enmity with the appellants and the recovery at the instance of appellants gets support from the testimony of witnesses. Even if independent person fails to support the recovery of incriminating articles at the instance of appellants, it cannot be presumed that recovery is untrustworthy. The Supreme Court in State Govt. of NCT Delhi v. Sunil (2001) 1 SCC 652 indicated in para 21 thus:
It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
56. The contention raised on behalf of appellants that since the recovery of incriminating articles got effected from the places accessible to other, it vitiates the evidence under Section 27 of the Evidence Act. We find no substance in this submission. As earlier noticed the recovery of incriminating articles got effected from the places that were known alone to the accused persons. The Supreme Court in State of Himachal Pradesh v. Jeet Singh 1999 CrLJ 2025 held as under:
(Para 26)
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible of recovery of the articles was made from any place which is 'open or accessible to others'. It is fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the articles would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hide it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
57. In State of Maharashtra v. Bharat Fakira Dhiwar : 2002CriLJ218 , it was held that merely because the articles recovered at the instance of accused from a place open and accessible to other evidence would not become unreliable when those articles were concealed by the accused there. In the case on hand it is established that weapons were concealed in such a manner that it was out of visibility of others in normal circumstances. Therefore evidence of prosecution in regard to recovery of weapons at the instance of the appellants cannot be discarded.
58. In the ultimate analysis we find the charge under Section 302 IPC established against the appellants beyond reasonable doubt. We however acquit the appellants of the charges under Sections 201 and 148 IPC.
59. For these reasons we find no merit in the instant appeal and the same accordingly stands dismissed. Conviction and sentence of the appellants under Section 302 IPC are maintained.