Saturday, 23 June 2018

How much of information received from accused U/S 27 of Evidence Act may be proved?

. Section 27 of the Act reads as under:
“27. How much of information received from accused
may be proved.
Provided that, when any fact is deposed to as
discovered in consequence of information received
from a person accused of any offence, in the custody
of a police officer, so much of such information,
whether it amounts to a confession or not, as relates
6 Cr. Revision No.404/2017
distinctly to the fact thereby discovered, may be
proved.”
(Emphasis supplied)
10. Section 27 of the Act makes that part of the statement
which is distinctly related to the discovery admissible as a whole,
whether it be in the nature of confession or not (K.Chinnaswamy
Reddy Vs. State of Andhra Pradesh and another, AIR 1962 SC
1788, relied on).
For the application of section 27 the statement must be split
into its components and to separate the admissible portion and
only those components or portions which were the immediate
cause of the discovery would be legal evidence and not the rest
which must be excluded and rejected. (see: Mohd. Inayatullah
Vs. State of Maharashtra, AIR 1976 SC 483).
Section 27 permits the derivative use of custodial
statements in the ordinary course of events. In Indian Law, there
is no automatic presumption that the custodial statements have
been extracted through compulsion (see: Smt. Selvi Vs. State of
Karnataka, AIR 2010 SC 1974).
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Criminal Revision No.404 of 2017

Gyanchand Jain Vs. State of Madhya Pradesh

Dated:18/06/2018




(1) While framing charge, the trial Court in exercise of the power under
section 228 Cr.P.C., has to form an opinion judicially for its prima
facie satisfaction on the basis of the material available on record that
there is a ground for presuming that the accused has committed an
offence and is not expected to critically evaluate the
material/evidence placed on record by the prosecution.
Besides, to constitute an offence of criminal conspiracy is the
agreement between two or more persons to commit an offence. Mere
proof of such an agreement is sufficient to establish criminal
conspiracy
(2) To constitute an offence under section 307 IPC, it is not necessary
that injury, capable of causing death, should have been inflicted, but
the guilty intention or knowledge with which the act was done. The
intention and the knowledge are the matters of inference from totality
of circumstances available in a given case.
(3) Section 27 of the Act makes that part of the statement which is
distinctly related to the discovery admissible as a whole, whether it be
in the nature of confession or not.
(4) For the application of section 27 the statement must be split into its
components and to separate the admissible portion and only those
components or portions which were the immediate cause of the
discovery would be legal evidence and not the rest which must be
excluded and rejected.
(5) Section 27 permits the derivative use of custodial statements in the
ordinary course of events. In Indian Law, there is no automatic
presumption that the custodial statements have been extracted
through compulsion.
Revision dismissed.
-----------------------------------------------------------------------------------
Reserved on: 14/05/2018
O R D E R
(18/06/2018)
Rohit Arya, J.,
This revision petition under section 397 read with section
401 of Cr.P.C., by an accused is filed seeking quashment of
charge framed for the offence punishable under section 307 read
with section 120B IPC, on 08/02/2017 in sessions trial
No.100/2016 by the Additional Sessions Judge, Neemuch.
2. The prosecution case, in brief, is that the complainant,
2 Cr. Revision No.404/2017
Rajednra Jaroli in an injured condition on 28/05/2016 at about 21.30
hours gave information at the Community Hospital, Neemuch to
the effect that two unknown persons armed with pistol and an iron
rod reached Jaroli complex where his shop was situated and
inflicted injuries with an iron rod on the knee portion of both the
legs as a result he fell down, however, caught hold the pipe due
to which he sustained injury on the finger of his left hand and
intentionally threatened to kill by extortion uttering filthy abuses.
On hearing his scream, nearby people; Manish Napavaliya,
Shailendra, Porwal, Manoj Napavaliya intervened to save him.
On this, the miscreants fired bullet shots outside the shop in the
air and fled away on a motorcycle. Accordingly, dehati nalishi was
recorded at crime No.0/16. Thereafter, the injured was sent to
the hospital for medical examination and treatment.
Based on the aforesaid information, FIR No.279/2016 at
23.52 hours was registered by the Police Station, Neemuch
Cantt., Neemuch for the offence punishable under sections 323,
294, 506, 452, 336 and 34 IPC.
During investigation, the complainant and his witnesses
have suspected that the attack was due to previous enmity over
land dispute situated in Uday Vihar Colony between the
complainant and Virendra pal and Maulana resident of Akhepur
and his associates with an intention to kill the complainant.
After receiving secrete information during the course of
investigation on 04/06/2016, Yusuf s/o Mohd. Firoz Khan resident
of Neemuch was interrogated.
The accused Yusuf in his statement under section 27 of the
Evidence Act (for short 'the Act') has stated to have had frequent
conversation with Virendra Pal and Gyanchand Dosi (the
applicant) on mobile phone. The mobile phone was seized. The
CDR of Yusuf and CDR amongst Virendra Pal, Gyanchand Dosi,
Karan Nema were also obtained through the Cyber Cell. Yusuf
has stated that conspiracy was hatched by Virendra Pal and
Gyanchand Dosi. Virendra Pal sent the shooters Rajat, Tinu alias
Vajahat resident of Muzafarnagar, Pankaj Patwa resident of
Pratapgarh and others. Accordingly, the accused persons were
arrested.
On further investigation and information gathered from the
aforesaid accused persons, the shooters, viz., Rajat son of
3 Cr. Revision No.404/2017
Manoharlal Chabada resident of Gandhi Nagar, Muzafarnagar,
Uttar Pradesh, Tinu alias Vajahat Khan son of Mohd. Aslam Khan
Rangrej, resident of Muzafarnagar, U.P., and their associates
leader Bittu alias Gauravpal alias Buldog son of Shaymveer Singh
Gadariya, resident of Muzafarnagar, U.P., were arrested with the
help of the local police of the State of U.P., on 10/062016.
The fire arm and the iron pipe used for commission of the
offence were recovered from the house of Virendra Pal situated at
Pratapgarh. A few more accused persons on being named by
them have also been arrested.
On the statements of Karan Nema, a mobile of Nokia
company No.7400572711, Rajat – one pistol & two live
cartridges, Pankaj Patwa - red colour pulsar with registration
No.RJ35 SK 6440, Hero Honda Passion with registration
No.RJ12 SA 5363; Tinu alias Vajahat – one iron pipe were also
recovered having direct bearing on the basis of the statements
referable to the persons named therein as detailed in the final
report.
As such, the prosecution on the basis of statements of the
accused, the evidence of cyber call details, CCTV footage and
other incriminating material as well as circumstantial evidence,
the following accused persons have been arrested.
(i) Yusuf on 04/06/2016
(ii) Karan Nema on 04/06/2016
(iii)Gyanchand Dosa on 05/06/2016
(iv)Bittu alias Gauravpal alias Buldog on 10/06/2016
(v) Pankaj Patwa & Devendra on 14/06/2016
(vi) Rajat on 11.06.2016
(vii) Tinu alias Vajahat on 11/06/2016
(viii) Devendra @ Dev on 14/06/2016
The accused Virendra Pal and Intakhab alias Maulana are
absconding as per the final report.
Accordingly, final report has been submitted against the
accused persons for the offence punishable under sections 323,
294, 506, 336, 384, 452, 325, 201, 120-B & 307 IPC and 25, 27
of the Arms Act.
3. The relevant for the purpose of this revision petition is the
statement of Yusuf having conversation on mobile phone with
4 Cr. Revision No.404/2017
Virendra Pal and Gyanchand Dosi hatching conspiracy,
organizing shooters and commission of the offence based
whereupon the mobile phone was seized as well as the CDR of
Yusuf and CDR amongst Virendra Pal, Gyanchand Dosi, Karan
Nema were also obtained through the Cyber Cell.
4. Learned senior counsel for the petitioner submits that the
injuries sustained by the victim, Rajendra are simple in nature and
caused by hard and blunt object. None of the injury sustained by
him was dangerous to his life or grievous by nature. The Doctor
has not opined that the injuries sustained by the injured were
sufficient to cause his death in the ordinary course of nature.
Even on taking into consideration the face value of the charge
sheet including the nature of the injuries sustained by Rajendra
and the medical evidence as accepted in its entirety, the charge
of Section 307 read with section 120B IPC is not made out
against the present petitioner. The very basis for implicating the
present petitioner is the memorandum of Yusuf under section 27
of the Evidence Act (for short 'the Act') which is not admissible for
connecting the petitioner with the alleged offence. There was no
intention of the petitioner to kill the victim, Rajendra. In such
circumstances, it cannot be deemed that the petitioner or any of
the other accused have committed the offence punishable under
Section 307 read with section 120B IPC, to this extent the charge
is not sustainable and prayed to discharge the petitioner from the
charge under Section 307 read with section 120B IPC., by
allowing this revision petition.
5. In response, learned Public Prosecutor while justifying the
impugned order has contended that the charges framed by the
Trial Court are in consonance with the material placed on record
with the charge-sheet. She fairly submitted that although the
doctor has not given the clear opinion that the the injuries
sustained by Rajendra were sufficient to cause his death in the
ordinary course of nature but, careful perusal of the statement of
the injured complainant wherein he has categorically stated that
such an assault and marpeet with pistol was carried out by the
accused persons with intention to cause his death, the impugned
charge under Section 307 read with section 120B IPC does not
5 Cr. Revision No.404/2017
require for any interference at this stage and prayed for dismissal
of this revision.
6. Heard.
7. While framing charge, the trial Court in exercise of the
power under section 228 Cr.P.C., has to form an opinion judicially
for its prima facie satisfaction on the basis of the material
available on record that there is a ground for presuming that the
accused has committed an offence and is not expected to
critically evaluate the material/evidence placed on record by the
prosecution.
Besides, to constitute an offence of criminal conspiracy is
the agreement between two or more persons to commit an
offence. Mere proof of such an agreement is sufficient to establish
criminal conspiracy; Sushil Suri Vs. Central Bureau of
Investigation, (2011) 5 SCC 480. Nevertheless, the same is to
be proved by direct or circumstantial evidence or by both.
Likewise, to constitute an offence under section 307 IPC, it
is not necessary that injury, capable of causing death, should
have been inflicted, but the guilty intention or knowledge with
which the act was done. The intention and the knowledge are the
matters of inference from totality of circumstances available in a
given case.
8. The contention advanced against admissibility of the
statement of Yusuf under section 27 of the Act to implicate the
petitioner since is found to be based on misconception and
ignorance of the scope of section 27 of the Act; settled law
reiterated by the Hon'ble Supreme Court in series of decisions, it
is considered apposite to reiterate the same related to the
provision under section 27 of the Act, in that behalf.
9. Section 27 of the Act reads as under:
“27. How much of information received from accused
may be proved.
Provided that, when any fact is deposed to as
discovered in consequence of information received
from a person accused of any offence, in the custody
of a police officer, so much of such information,
whether it amounts to a confession or not, as relates
6 Cr. Revision No.404/2017
distinctly to the fact thereby discovered, may be
proved.”
(Emphasis supplied)
10. Section 27 of the Act makes that part of the statement
which is distinctly related to the discovery admissible as a whole,
whether it be in the nature of confession or not (K.Chinnaswamy
Reddy Vs. State of Andhra Pradesh and another, AIR 1962 SC
1788, relied on).
For the application of section 27 the statement must be split
into its components and to separate the admissible portion and
only those components or portions which were the immediate
cause of the discovery would be legal evidence and not the rest
which must be excluded and rejected. (see: Mohd. Inayatullah
Vs. State of Maharashtra, AIR 1976 SC 483).
Section 27 permits the derivative use of custodial
statements in the ordinary course of events. In Indian Law, there
is no automatic presumption that the custodial statements have
been extracted through compulsion (see: Smt. Selvi Vs. State of
Karnataka, AIR 2010 SC 1974).
11. In the instant case, the statement of Yusuf of having had
conversation related to conspiracy details with the accused
Virendra Pal (since absconding) and Gyanchand Dosi led to
discovery of mobile call details through Cyber cell (amongst
Yusuf, Virendra Pal and Gyanchand Dosi) is a statement which
prima facie admissible within the meaning of section 27 of the Act
albeit, still the prosecution has to show that the recoveries made
are connected with the crime during the course of the trial.
12. Accordingly, this Court sees no reason to interfere with the
order dated 08/02/2017 framing charge against the petitioner in
sessions trial No.100/2016 by the Additional Sessions Judge,
Neemuch for the offence punishable under section 307 read with
section 120B IPC.
13. Consequently, this revision petition fails and is hereby
dismissed.
7 Cr. Revision No.404/2017
14. Before parting with the case, it is considered apposite to
observe that any observations made in this order touching the
merits of the case are only for the reason that the learned senior
counsel insisted before this Court to address on merits of the
charges but, nevertheless, the same are for the purpose of
deciding the instant revision petition.
(Rohit Arya)
Judge
18/06/2018

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