Next significant circumstance against appellant is
that pursuant to information given by accused Arif under
Section 27 of the Evidence Act with regard to dead body
(Exhibit P-65) and similar information given by accused Sunil
Panchal(Exhibit P-66), the police immediately reached the
place where from they recovered dead body of Abhishek vide
Exhibit P-17 at 8.00 P.M. on 14.03.2005 itself which heither to
remained untraceable. We are not inclined to countenance
the argument that since recovery of dead body was made
from open place, no new fact can be held to have been
discovered at the instance of the accused. Rajendra
ojha(P.W.24), the investigating officer has made it clear that
it was a deserted multi storied building, which normally no
one visits. Such unfurnished multi storied deserted building
can by no stretch of reasoning be descried as an open place.
Moreover, as per the post mortem report, duration of death
was 72 to 120 hours. The fact that no one could notice the
dead body lying there even for so long, only reinforces the
conclusion that the dead body could be recovered only on the
basis of information furnished by the accused under Section
27 of the Evidence Act. Solely because information memos,
arrest memos and information memo and seizure memo of
motorcycle and STD slip mentioned offence under Section 302
IPC, which were prepared an hour or so prior to preparation
of recovery memo of dead body at 8.00 P.M. on 14.03.2005
could not render this significant stage of investigation asdoubtful. On the information given by the accused
immediately after their arrest, if the police had come to
know about murder of abducted boy and mentioned offence
under Section 302 IPC in the aforesaid memos, the same was
quite natural and there was nothing unnatural in what the
police did at that time.
The Supreme Court in State of Maharashtra Vs.
Damu Gopinath Shinde, AIR 2000 SC 1691(supra) has
observed that 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 search made on the strength of any
information obtained from the accused, such a discovery is
guarantee that the information supplied by the accused is
true. The information might be confessional or non
inculpatory in nature, but if it results in discovery of a fact, it
become reliable information. Therefore, the law permits
such information to be used as evidence by restricting the
admissible portion to the minimum. Relying on the judgment
of Privy Council in Pulukuri Kottayya Vs. Emperor, AIR
1947 PC 67, the Supreme Court held that “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 the effect.
Minor discrepancies in the investigation cannot be
a reason to discard the entire prosecution case. The Supreme
Court in State Govt. of NCT of Delhi Vs. Sunil & Another,
(2001) 1 SCC 652 held that mere absence of independent
witness when investigating officer recorded the statement of
the accused and the article was recovered pursuant thereto is
not sufficient ground to discard the evidence. Evidence of
police officer regarding the recovery at the instance of the
accused should ordinarily be believed. Official acts of police
should be presumed to be regularly performed. Archaic
notion to approach actions of police with initial distrust
should be discarded. Even if, for the present we do not
believe the factum of recovery of silver chain and silver
amulet at the instance of the accused-appellant Sunil
Panchal, because as per Niranjan Gautam(P.W.13), police
photographer, he saw them lying on the floor near the dead
body on 14.03.2005 and took pictures of the same which are
Exhibits P-28, P-32 and P-33, there is otherwise enough
evidence on record which points to the guilt of the accusedappellants
and none else. Since discovery of the place where
the dead body was found was made pursuant to information
given by the accused under Section 27 of the Evidence Act,
which eventually led to recovery of dead body of the
abducted boy, recovery of silver chain and silver amulet from
that place then even, as per testimony of Niranjan
Gautam(P.W.13) relied by the defence, could also be read
against the accused-appellants. Moreover, cricket bat was
also recovered at the instance of accused Arif vide Exhibit P-
59. Mere non-mention of these articles in the missing person
report and first information report may not be a reason to
hold that they did not belong to the deceased, particularly
when they have been identified by his father, Subroto
Mukherjee(P.W.3) in the proceedings conducted by HariMohan Gupta(P.W.15).
that pursuant to information given by accused Arif under
Section 27 of the Evidence Act with regard to dead body
(Exhibit P-65) and similar information given by accused Sunil
Panchal(Exhibit P-66), the police immediately reached the
place where from they recovered dead body of Abhishek vide
Exhibit P-17 at 8.00 P.M. on 14.03.2005 itself which heither to
remained untraceable. We are not inclined to countenance
the argument that since recovery of dead body was made
from open place, no new fact can be held to have been
discovered at the instance of the accused. Rajendra
ojha(P.W.24), the investigating officer has made it clear that
it was a deserted multi storied building, which normally no
one visits. Such unfurnished multi storied deserted building
can by no stretch of reasoning be descried as an open place.
Moreover, as per the post mortem report, duration of death
was 72 to 120 hours. The fact that no one could notice the
dead body lying there even for so long, only reinforces the
conclusion that the dead body could be recovered only on the
basis of information furnished by the accused under Section
27 of the Evidence Act. Solely because information memos,
arrest memos and information memo and seizure memo of
motorcycle and STD slip mentioned offence under Section 302
IPC, which were prepared an hour or so prior to preparation
of recovery memo of dead body at 8.00 P.M. on 14.03.2005
could not render this significant stage of investigation asdoubtful. On the information given by the accused
immediately after their arrest, if the police had come to
know about murder of abducted boy and mentioned offence
under Section 302 IPC in the aforesaid memos, the same was
quite natural and there was nothing unnatural in what the
police did at that time.
The Supreme Court in State of Maharashtra Vs.
Damu Gopinath Shinde, AIR 2000 SC 1691(supra) has
observed that 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 search made on the strength of any
information obtained from the accused, such a discovery is
guarantee that the information supplied by the accused is
true. The information might be confessional or non
inculpatory in nature, but if it results in discovery of a fact, it
become reliable information. Therefore, the law permits
such information to be used as evidence by restricting the
admissible portion to the minimum. Relying on the judgment
of Privy Council in Pulukuri Kottayya Vs. Emperor, AIR
1947 PC 67, the Supreme Court held that “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 the effect.
Minor discrepancies in the investigation cannot be
a reason to discard the entire prosecution case. The Supreme
Court in State Govt. of NCT of Delhi Vs. Sunil & Another,
(2001) 1 SCC 652 held that mere absence of independent
witness when investigating officer recorded the statement of
the accused and the article was recovered pursuant thereto is
not sufficient ground to discard the evidence. Evidence of
police officer regarding the recovery at the instance of the
accused should ordinarily be believed. Official acts of police
should be presumed to be regularly performed. Archaic
notion to approach actions of police with initial distrust
should be discarded. Even if, for the present we do not
believe the factum of recovery of silver chain and silver
amulet at the instance of the accused-appellant Sunil
Panchal, because as per Niranjan Gautam(P.W.13), police
photographer, he saw them lying on the floor near the dead
body on 14.03.2005 and took pictures of the same which are
Exhibits P-28, P-32 and P-33, there is otherwise enough
evidence on record which points to the guilt of the accusedappellants
and none else. Since discovery of the place where
the dead body was found was made pursuant to information
given by the accused under Section 27 of the Evidence Act,
which eventually led to recovery of dead body of the
abducted boy, recovery of silver chain and silver amulet from
that place then even, as per testimony of Niranjan
Gautam(P.W.13) relied by the defence, could also be read
against the accused-appellants. Moreover, cricket bat was
also recovered at the instance of accused Arif vide Exhibit P-
59. Mere non-mention of these articles in the missing person
report and first information report may not be a reason to
hold that they did not belong to the deceased, particularly
when they have been identified by his father, Subroto
Mukherjee(P.W.3) in the proceedings conducted by HariMohan Gupta(P.W.15).
REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.
D.B. CRIMINIAL APPEAL NO. 151/2007
SUNIL PANCHAL VS. THE STATE OF RAJASTHAN.
DATE OF JUDGMENT : 03.06.2016
MR. JUSTICE MOHAMMAD RAFIQ
MR. JUSTICE VIJAY KUMAR VYAS
Citation: 2016 CRLJ 4238 Raj
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.
D.B. CRIMINIAL APPEAL NO. 151/2007
SUNIL PANCHAL VS. THE STATE OF RAJASTHAN.
DATE OF JUDGMENT : 03.06.2016
MR. JUSTICE MOHAMMAD RAFIQ
MR. JUSTICE VIJAY KUMAR VYAS
Citation: 2016 CRLJ 4238 Raj
