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2004 DIGILAW 166 (HP)

GURDEV SINGH v. STATE OF H. P.

2004-07-23

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The appellant, Gurdev Singh, hereinafter referred to as the accused, stands convicted by the learned Additional Sessions Judge, Mandi, in Sessions Trial No. 12 of 2000 vide judgment dated 18.12.2001 for the offences under Sections 364, 302, 201 and 382, Indian Penal Code and upon such conviction he has been sentenced as under : Offence Sentence imposed 1. 364 Indian Penal Code. Rigorous imprisonment for 10 years and fine of Rs. 2,000. In default of payment of fine, simple imprisonment for six months. 2. 302 Indian Penal Code. Rigorous imprisonment for life and fine of Rs. 3,000. In default of payment of fine, simple imprisonment for six months. 3. 382 Indian Penal Code. Rigorous imprisonment for five years and fine of Rs. 1,000. In default of payment of fine, simple imprisonment for three months. 4. 201 Indian Penal Code. Rigorous imprisonment for three years and fine of Rs. 500. In default of payment of fine, simple imprisonment for two months. 2. The matrix of the prosecution case may be stated thus. One Bhim Singh son of PW 2 Man Singh and husband of PW 1 Smt. Meena Kumari (hereinafter referred to as the deceased) was the owner-cum-driver of Taxi (Maruti Van) No. H.P.02-1150. He had purchased the said taxi from PW6 Gajinder Vaid. Since the whole of the sale consideration had not been paid by the deceased to PW6, the taxi continued in the name of PW 1 in the Registration Certificate. 3. On 7.1.2000 the deceased had left his house with his taxi. While leaving he did not inform his wife (PW1) about his destination. He did not return till 13.1.2000 nor any information was received regarding his whereabouts. PW1 Smt. Meena Kumari made efforts to know regarding the whereabouts of the deceased from various relatives and friends. On 13.1.2000 she came to know from one Sanju who was previously working with her husband, that the taxi belonging to the deceased was in the custody of Ludhiana Police and that the whereabouts of the deceased were not known. PW 1 Smt. Meena Kumari, accordingly lodged a report with the police about her missing husband. She also informed her father-in-law (PW2 Man Singh) in this regard through the abovenamed Sanju. 4. PW 2 Man Singh along with a brother of PW 1 and PW 6 Gajinder Vaid then proceeded to Ludhiana and got the taxi released. PW 1 Smt. Meena Kumari, accordingly lodged a report with the police about her missing husband. She also informed her father-in-law (PW2 Man Singh) in this regard through the abovenamed Sanju. 4. PW 2 Man Singh along with a brother of PW 1 and PW 6 Gajinder Vaid then proceeded to Ludhiana and got the taxi released. It was then revealed that the said taxi was taken into possession from one Kuldeep Singh on 12.1.2000 at about 7 p.m. at Gill Nehar Ludhiana on the basis of some secret information and that a case for the offences under Section 379/411 Indian Penal Code, stood registered at Police Station Division No. 6, Ludhiana, against the said Kuldeep Singh. 5. Since the whereabouts of the deceased could not be known till 21.1.2000, on the basis of the report made by PW 2 Man Singh, a case for the offence under Section 364, Indian Penal Code, came to be registered at Police Station Sadar, Mandi vide FIR No. 54/2000 (Ex. PB). Such report reads: "Stated that I am resident of village Kohlu, Police Station Gohar. I have two sons. Bhim Singh, my elder son of about 28 years of age, owned Maruti Van (Taxi No. HP-02-1150) which was attached with Mandi Tax Union, Bus Stand. On 7.1.2000 he had gone somewhere from Mandi carrying passengers. Since he did not return till 12.1.2000, a report about his being missing was lodged at Police Post City, Mandi, on 13.1.2000. One, Sanju, who is working with Anand Kumar Rajiv Kapoor came to me and told that Bhim Singh had sold his vehicle to one Sardar (a sikh gentleman) and that such Sardar had been apprehended at Ludhiana while Bhim Singh had absconded. I went to Ludhiana. The police got the van identified from me and told me that since the van belonged to me, the same be got released from the Court. I told them that I wanted my son. To which they replied that my son would be traced out lateron and that I should take the van first. This Maruti van was purchased from Gajinder Vaidya. I had taken Gajender Vaidya with me to Ludhiana. My son has not returned so far. I suspect that the passengers, who had taken Bhim Singh from Mandi, had carried him away with the intention of murdering him and snatching away the Maruti Van. This Maruti van was purchased from Gajinder Vaidya. I had taken Gajender Vaidya with me to Ludhiana. My son has not returned so far. I suspect that the passengers, who had taken Bhim Singh from Mandi, had carried him away with the intention of murdering him and snatching away the Maruti Van. I have come to lodge the report." 6. The case was investigated firstly by PW19 Assistant Sub Inspector Ram Karan and thereafter by PW20 Sub Inspector Ram Swaroop. During the course of investigation, PW 19 on 22.1.2000 took into possession copy of the seizure memo of the van Ex. PW 20/C, copy of FIR registered at Ludhiana against Kuldeep Singh for the offence under Section 379/411, Indian Penal Code (Ex. PW20/A), copy of the seizure memo of the registration certificate Ex. PW20/E and copies of the zimnies recorded by PW21 Assistant Sub Inspector Balbir Singh of Police Station Division No. 6, Ludhiana, Ex. PW21/G and PW21/H. The involvement of the accused as well as of S/Shri Kuldeep Singh, Nirmal Singh and Raj Kumar was disclosed to him by PW21. A search for the accused and his abovenamed three companions was carried out and all these persons came to be arrested one by one during the period between 29.1.2000 and 15.2.2000. PW19 on 26.2.2000 also took into possession the Maruti Van from PW 6 Gajinder Vaid, which was got released earlier by him, at Ludhiana. The investigation was then taken over by PW20 Sub Inspector Ram Swaroop. 7. On 23.2.2000 PW 17 Sub Inspector K.D. Sharma of Police Station Balh, District Mandi, through Police Post Rewalsar received information about the presence of a dead body covered under the stones in a "Nallah" known as "Chua-Ka-Naal" in village Khabu. On such information PW17 went to the spot and found the dead body of a male lying in the "Nallah" covered by stones. Since it had become dark by the time PW17 reached the spot, the dead body could not be taken out. PW17 prepared a "Rukka" Ex. PW14/A and sent it to the Police Station for registration of the case for the offences under Sections 302 and 201, Indian Penal Code. The spot was secured and dead body kept under guard for the night. On the following day, that is, on 24.2.2000 the dead body was taken out and got photographed. PW17 prepared a "Rukka" Ex. PW14/A and sent it to the Police Station for registration of the case for the offences under Sections 302 and 201, Indian Penal Code. The spot was secured and dead body kept under guard for the night. On the following day, that is, on 24.2.2000 the dead body was taken out and got photographed. Inquest report was prepared and the dead body was sent to Zonal Hospital, Mandi for post mortem. The sticker on the shirt of the deceased bore the name of Vijay Tailor, Mandi, which led to the suspicion that the deceased might be some one from Mandi. Since there was already a case registered at Mandi about a missing person, it was decided to get the dead body identified. Consequently, PW 1 and PW 2 were asked to identify the dead body. Both of them identified the dead body to be that of Bhim Singh, husband of PW 1 and son of PW 2. 8. PW 10 Dr. Jiva Nand on 24.2.2000 carried out the post mortem of the deceased. He observed as under:— "Multilated and partially decomposed body with some adipocere formation in both shoulders, upper arms, fore-arms, buttocks and, thighs with degloving of skin of hands and feet due to moisture. Body was full of maggorts and pupae with some foul smell. He was wearing a bluish lining sweater, woolen light brown checkdar shirt torned at left lower frontal part and left axillary area, white under banyan wet, khakhu pant, torn on left thigh medial side, whitish underwear. All clothes were dirty, soiled with dust particulars and wet at places. Most of scalp hairs were missing but there were thick black hair present on chest, back, arms, legs, scalp tissue and facial tissues was blackened, dried making face disfigured with soft tissue of mandible missing. Eye balls were also shrunken, dried to small mass. All sixteen teeth were present in upper Jaw but both first molar were missing in lower jaw (Anti-mortem fall). Most of the soft tissues were missing from front and sides of neck and full of maggoth and pupae exposing cervical vertebrae on fontal aspect. Upper part and whole of oesophagus, prachea, lungs, heart, Abdominal wall on front and side with all abdominal organs missing (exposing thoracic and lumber spine) pelvic cavity was also empty. Penis was intact. Left half of secretal sac with left testicle missing. Upper part and whole of oesophagus, prachea, lungs, heart, Abdominal wall on front and side with all abdominal organs missing (exposing thoracic and lumber spine) pelvic cavity was also empty. Penis was intact. Left half of secretal sac with left testicle missing. Soft tissue from left hip to just above knee on frontal medial and lateral sides was missing exposing left femur at places but intact. Soft tissue was also missing from right inguinal area, both heels and from medial side of left ankle joint. This missing tissue appears to be eaten by animal/Ants/Maggots etc. 9. PW 10 found the following two anti mortem injuries on the person of the deceased :— (i) One lacerated wound on the scalp over right parietal area near mid line lying linear of size 3x1 cm. in size with dried margin and underlying contusion over whole right parital area. (ii) Fracture of ribs 7th and 8th on left side along anterior axillary line with its ends lying separate. Clotted and dried blood was present on both ends. Margins of chest cave left due to missing of abdominal walls were irregular in nature." 10. No definite opinion as to the cause of death could be given by PW 10 due to advanced stage of decomposition and missing of most of the organs of the body. Probable time between injury and death also could not be ascertained. Probable time between death and post mortem was opined as two weeks to six weeks. 11. The accused was arrested in the present case, as per the arrest memo placed on the record, on 15.2.2000. His companions namely Raj Kumar, Kuldeep Singh and Nirmal Singh were arrested earlier on 29.1.2000 and 4.2.2000, for the offence under Section 364, Indian Penal Code. Consequent upon the recovery of the dead body of the deceased the offences under Sections 302 and 201 as also 382 read with Section 34, Indian Penal Code, also came to be added. 12. The accused while in custody is alleged to have made a disclosure statement on 18.2.2000 Ex. PC leading to the discovery of the alleged weapon of offence, namely tyre lever Ex. P12 from the bushes on the bank of Kiratpur Canal in Punjab on 19.2.2000. PW 20 Sub Inspector Ram Swaroop is further alleged to have recovered one stereo (Ex. P 6), Box of double speaker (Ex. P 7), Towel (Ex. PC leading to the discovery of the alleged weapon of offence, namely tyre lever Ex. P12 from the bushes on the bank of Kiratpur Canal in Punjab on 19.2.2000. PW 20 Sub Inspector Ram Swaroop is further alleged to have recovered one stereo (Ex. P 6), Box of double speaker (Ex. P 7), Towel (Ex. P 8), Shawl (Ex. P 9), Torch (Ex. P 10) and seven audio cassettes (Ex. P 11) belonging to the deceased from the house of PW 18 Kuljinder Singh at the instance of the accused. The articles so recovered, namely, Ex. P 6 to P 11 were identified by PW 2 Man Singh in the presence of an Executive Magistrate PW 5 Gokal Chand on 5.4.2000 as belonging to the deceased. 13. On the completion of the investigation the accused was sent up for trial for the offences under Sections 364, 302, 201 and 382/34, Indian Penal Code. His three companions (co-accused), namely, S/Shri Nirmal Singh, Kuldeep Singh and Raj Kumar were sent up for trial for the offence under Section 382 read with Section 34, Indian Penal Code. 14. On having been charged, the accused and his co-accused pleaded not guilty and claimed trial. The defence of the accused as well as that of his co-accused was that of denial simpliciter and false implication. 15. The prosecution in support of its case in order to bring home the offences against the accused and his three co-accused, examined twenty-two witnesses in all. No evidence was led either by the accused or his three co-accused in defence. 16. The learned trial Judge on consideration of the evidence led before him came to the conclusion that offences under Sections 364, 302, 201 and 382, Indian Penal Code stood proved against the accused beyond reasonable doubt. He, accordingly, convicted and sentenced the accused as aforesaid. 17. In so far as the three co-accused, namely, Nirmal Singh, Kuldeep Singh and Raj Kumar are concerned, they were acquitted by the learned trial Judge of the offence under Section 382 read with Section 34, Indian Penal Code. 18. It may be stated that the acquittal of the above named three co-accused has not been assailed by the State by way of an appeal under Section 378, Code of Criminal Procedure. Such acquittal has, thus, become final. 19. 18. It may be stated that the acquittal of the above named three co-accused has not been assailed by the State by way of an appeal under Section 378, Code of Criminal Procedure. Such acquittal has, thus, become final. 19. Admittedly, there is no direct evidence as to the offences for which the accused stands convicted and sentenced. The case of the prosecution is based on circumstantial evidence. 20. It is by now well settled that in a case based on circumstantial evidence, the Court can record conviction but before doing so it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by un-impeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. 21. In the present case the only circumstantial evidence pressed into service against the accused are:— (i) Recovery of the taxi belonging to the deceased at Ludhiana by the Ludhiana Police on 12.1.2000; (ii) Making of the disclosure statement Ex. PC by the accused and the discovery of the tyre lever Ex. P-12 in pursuance thereof; (iii) Recovery of the articles P-6 to P-11 belonging to the accused from the house of PW 18 Kuljinder Singh at the instance of the accused. 22. Taking the first two circumstances together, it is pertinent to note that the learned trial Judge in holding the said two circumstances as having been proved against the accused, has very heavily relied upon the portion A to A of the alleged disclosure statement Ex. PC made by the accused on 18.2.2000. Such portion of the said disclosure statement reads:— "On the morning of 3.1.2000 I had come to Barmana from Kiratpur in a private truck. I took my meals at Barmana. From there I took a HRTC bus and reached Mandi at about 2 p.m. I kept on roaming in Mandi Bazaar and Gurdwara. In the evening at about 7 p.m. I went to the Taxi stand at bus stop. Maruti Van No. HP-02-1150 was parked there and the driver thereof was sitting therein. I took my meals at Barmana. From there I took a HRTC bus and reached Mandi at about 2 p.m. I kept on roaming in Mandi Bazaar and Gurdwara. In the evening at about 7 p.m. I went to the Taxi stand at bus stop. Maruti Van No. HP-02-1150 was parked there and the driver thereof was sitting therein. I asked the driver if he was ready to go to Amritsar for which I offered him fare of Rs. 2,000. The driver agreed. I paid him Rs. 600 as advance and told him that the balance amount would be paid at home in Kiratpur. I was sitting on the front seat of the van. The driver routed the van via Rewalsar, Jahu, Bhotta, Naina Devi to Kiratpur. The driver got the van entered at the Barrier falling between Naina Devi and Kiratpur. The van was taken to a Kutcha road on the bank of Kiratpur canal. At an isolated place, I asked the driver to stop the van so that we may urinate. The driver stopped the van and started urinating. I also got down from the van and took out the tyre lever lying in the van. I hit the driver, who was then urinating by the side of the road, on his head from behind with the tyre lever. He fell down after raising a loud scream. I picked him up and threw him in the canal. I also concealed the tyre lever nearby which place is only known to me. I can point out the spot and get the tyre lever recovered.” 23. The above disclosure statement is alleged to have been made by the accused in the presence of Umesh Kumar and Rakesh Kumar. While Umesh Kumar has not been examined by the prosecution, Rakesh Kumar has been examined as PW 3 to prove the making of disclosure statement Ex. PC by the accused. In pursuance of such statement the tyre lever Ex. P12 is alleged to have been recovered by PW 20, the investigation officer on 19.2.2000 in the presence of PW 8 Sergant Singh and PW9 Bhupender Singh. Both these witnesses have not supported the prosecution case as to the recovery of the tyre lever Ex. P12 at the instance of the accused. P12 is alleged to have been recovered by PW 20, the investigation officer on 19.2.2000 in the presence of PW 8 Sergant Singh and PW9 Bhupender Singh. Both these witnesses have not supported the prosecution case as to the recovery of the tyre lever Ex. P12 at the instance of the accused. They have stated that when they reached the spot the tyre lever was already with the police and they were told that the same was got recovered by the accused. 24. The learned trial Judge has come to the conclusion that the whole of the statement "A" to "A" of Ex. PC (quoted above) is "relevant and admissible in evidence". Placing reliance thereon, the learned trial Judge went on to hold in para 25 at page 27 of the impugned judgment as under:— "From the facts narrated in portion A to A of Ex. PC, it is proved undisputedly that on 7.1.2000, accused Gurdev Singh came from Kiratpur side in a private truck to Barmana, where he took his meal and from Barmana, he took HRTC bus and reached Mandi at about 2 p.m. He remained roaming in Mandi Bazar and near Gurudwara and at about 7 p.m. he came to taxi stand situate near bus stand and he found taxi No. HP-02-1150 parked there. He asked driver i.e. deceased Bhim Singh, whether he will go to Amritsar, he will pay Rs. 2,000 as fare. Deceased immediately agreed. Accused Gurdev Singh paid Rs. 600 as advance and assured the driver (deceased Bhim Singh) to pay balance amount at Kiratpur and accused took front seat in the taxi, both of them went towards Kiratpur. Near Kiratpur canal, van was made to park on his request on the pretext that he intends to urinate himself. Driver stopped the van and he also went to urinate himself, there deceased Bhim Singh was given blow on his head by tyre liver and deceased after raising loud cry fell down. He threw dead body in the canal and also he hid tyre liver in the bushes nearby." 25. The contention raised on behalf of the accused that the alleged disclosure statement Ex. He threw dead body in the canal and also he hid tyre liver in the bushes nearby." 25. The contention raised on behalf of the accused that the alleged disclosure statement Ex. PC contained confessional elements on the part of the accused, therefore, the statement in its entirety was inadmissible in evidence, was repelled by the learned trial Judge by observing in para 30 at page 30 of the impugned judgment as under :— "Contention of learned defence counsel that since disclosure statement Ex. PC contains confessional elements of the accused and, therefore, his entire statement is inadmissible in evidence and cannot be used against the accused also, appears to be without any force, for the reasons, that accused might have made a false statement to the effect that he threw dead body of the deceased in a canal, as dead body of the deceased was not recovered by that time. Disclosure statement was recorded on 18.2.2000, whereas, dead body of the deceased was for the first time located on 23.2.2000, in a Nallah on Rewalsar-Durgapur road, and it was extracted from the heap of the stones, in mutilated and decomposed condition on 24.2.2000. The accused might have suppressed the real fact and portion of disclosure statement Ex. PC, to the effect, that he inflicted blow with tyre liver on the head of decease may not be relevant. Whereas rest of the contents of statement Ex. PC are admissible, not only under Section 27 of the Indian Evidence Act, but also, under Section 8 of the Indian Evidence Act being his previous and subsequent conduct.” 26. It may be stated without any hesitation that the learned trial Judge has erred in holding the entire statement "A" to "A" of Ex. PC as admissible in evidence and in placing reliance thereon in convicting and sentencing the accused. 27. Section 25 of the Evidence Act, 1872 provides that no confession made to a police officer shall be proved as against a person accused of an offence. Section 26 further provides that no confession made by a person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 28. Therefore, the statement Ex. Section 26 further provides that no confession made by a person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 28. Therefore, the statement Ex. PC alleged to have been made by the accused before PW 20, the investigation officer, in view of the provisions contained in Sections 25 and 26, Evidence Act, 1872, would not be admissible. 29. Section 27, Evidence Act, which, both in form and in substance, operates as a proviso to Sections 25 and 26, provides :— "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 distinctly to the fact thereby discovered, may be proved." 30. Dealing with the scope of the above section, the Honble Supreme Court in Earabhadrappa v. State of Karnataka, AIR 1983 SC 446, has held that for the applicability of the Section two conditions are pre-requisite, namely, (1) the information must be such as has caused the discovery of the fact; and (2) the information must relate distinctly to the fact discovered. 31. In Mohamed Inayatulla v. The State of Maharashtra, AIR 1976 SC 483, the accused therein had made a disclosure statement in the following terms: "I will tell the place of deposit of three chemical drums which I took out from Haji Bunder on first August." 32. In pursuance of such disclosure statement the drums were recovered from the place pointed out by the accused. A question arose as to what extent the above statement was admissible against the accused under Section 27 of the Evidence Act. It was held : ".....It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact- in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably" "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the proveable information. The phrase "distinctly" relates "to the fact thereby discovered" (sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered." 33. It was further held that the statement had to be split up into its components and to separate the admissible from the inadmissible portion(s). Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Thus processed, only the first part of the statement, viz., "I will tell the place of deposit of the three chemical drums" was held to be the immediate and direct cause of the fact discovered and, therefore, admissible under Section 27, Evidence Act. The rest of the statement, which was found to constitute only the past history of the drums or their theft by the accused and which was not the distinct and proximate cause of the discovery, was held to be inadmissible and required to be ruled out of evidence altogether. 34. In Babboo and others v. The State of Madhya Pradesh, AIR 1979 SC 1042, the accused therein made a statement that he would show the Katarnas with which he assaulted the victim on 21.9.1973 at night. 34. In Babboo and others v. The State of Madhya Pradesh, AIR 1979 SC 1042, the accused therein made a statement that he would show the Katarnas with which he assaulted the victim on 21.9.1973 at night. It was held that the first part of the statement would be inadmissible because the fact that the accused assaulted the victim was not discovered in pursuance of the information given by the accused. It would be a confessional statement to the police officer hit by Section 25 of the Evidence Act. Therefore, no importance was attached to the recovery of blood stained "Katarna" on the information given by the accused. 35. A similar question arose in Chunilal v. The Union of India, AIR 1964 H.P. 27. In this case the accused made a statement that he had stolen six gold plated "Mohras" and two gold plated "Galpatas" and a "Sankh" from the temple and that after extracting gold from the "Mohras" and Galpatas", had buried their copper linings and the "Sankh" under a tree in Batabi forest. 36. It was held that the first part of the statement that the accused had stolen gold plated "Mohras", "Galpatas" and "Sankh" from the temple, was not admissible in evidence under Section 27, Evidence Act, as this part of the statement did not relate to the discovery of any article. The second part of the statement that the accused had extracted gold from the "Mohras" and "Galpatas" and had hidden the copper linings and the "Sankh" under a tree in the forest was held to be admissible in evidence under Section 27 of the Evidence Act since such part of the statement distinctly related to the discovery of the articles and the knowledge of the accused of the place where the articles were lying hidden. 37. Similarly, in Shri Adinath Chakraborty v. The State, AIR 1967 Tripura 1, in the recovery memo the full information as to how the gold chain was recovered had not been given. The information given by the accused leading to discovery of gold chain was also not produced and proved in evidence. The Investigation Officer, during the course of trial as a witness for the prosecution deposed that the accused had stated that he had killed the deceased and thrown him down from the bridge and had kept concealed the gold chain after snatching it. The Investigation Officer, during the course of trial as a witness for the prosecution deposed that the accused had stated that he had killed the deceased and thrown him down from the bridge and had kept concealed the gold chain after snatching it. It was held that only the portion of the statement that the accused had concealed the gold chain, was admissible and the rest of the statement was inadmissible in evidence. 38. Following the above principle of law, the entire statement "A" to "A" of Ex. PC would not be admissible in evidence. Only the last portion that "I also concealed the tyre lever nearby which place is only known to me. I can point out the spot and get the tyre lever recovered" which distinctly relates to the discovery of tyre lever Ex. P 12, would be admissible in evidence under Section 27 of the Act. 39. The learned trial Judge has also erred in holding that the statement "A" to "A" of Ex. PC would also be admissible in evidence under Section 8 of the Evidence Act being the previous and subsequent conduct of the accused. Dealing with the distinction between the provisions contained in Sections 8 and 27 of the Evidence Act, the Honble Supreme Court in Prakash Chand v. State (Delhi Admn.), AIR 1979 SC 400, has held that there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact, and the statement made to a Police Officer in the course of an investigation which is hit by Section 162, Code of Criminal Procedure. What is excluded by Section 162, is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of investigation. What is excluded by Section 162, is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence, were found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27, Evidence Act. 40. Thus, at the most the only fact which the prosecution has been able to prove is that tyre lever Ex. P 12 was discovered at the instance of the accused in pursuance of the disclosure statement made by him, though the two independent witnesses to the discovery, namely, PW 8 Sarjean Singh and PW 9 Bhupender Singh have not supported the prosecution case about discovery of tyre lever Ex. P-12 at the instance of the accused. 41. Proceeding on the assumption that tyre lever Ex. P12 was recovered at the instance of the accused in pursuance of the disclosure statement alleged to have been made by him, it is significant to note that such tyre lever has neither been proved either to be the weapon of offence or that the same belonged to the deceased and was kept by him in his van. None of the prosecution witnesses have identified the same to be belonging to the deceased. It is not the case of the prosecution that Ex. P 12 belong to the accused. In the absence of specific evidence to show that Ex. PI 2 was the weapon of offence and the same was kept by the deceased in his van, the circumstances of its discovery at the instance of the accused is of no significance. 42. Admittedly, the van was not recovered from the accused. As per prosecution own case, the same was recovered by PW 21 of Ludhiana Police at Ludhiana on 12.1.2000 from the possession of Kuldeep Singh, a co-accused. 42. Admittedly, the van was not recovered from the accused. As per prosecution own case, the same was recovered by PW 21 of Ludhiana Police at Ludhiana on 12.1.2000 from the possession of Kuldeep Singh, a co-accused. It is also in evidence that upon the recovery of the van, a case for the offences under Section 379/411, Indian Penal Code, was registered against the said Kuldeep Singh at Ludhiana and he is facing prosecution for such offence at Ludhiana. 43. As stated above, the above named Kuldeep Singh and two others were prosecuted in the present case along with the accused for the offence under Section 382 read with Section 34, Indian Penal Code. He stands acquitted of such offence. 44. There is not even an iota of evidence that Kuldeep Singh above named and the other two co-accused, namely, Nirmal Singh and Raj Kumar were known to the accused. There is also no evidence to show as to how the said Kuldeep Singh came to possess the van belong to the deceased on 12.1.2000 when it was seized by PW 21 at Ludhiana. 45. In the light of admitted fact that the van was recovered from Kuldeep Singh and not from the accused, this circumstance of recovery of the van cannot be pressed into service against the accused. 46. Next comes the circumstance of recovery of articles Ext. P 6 to P 11, namely, stereo, loud speakers, towel, torch, shawl and seven audio cassettes, from PW 18 Kuljinder Singh in pursuance of the information given by the accused. Admittedly, no disclosure statement alleged to have been made by the accused in this regard was recorded by the Investigation Officer. 47. PW 20, Sub Inspector Ram Swaroop, the Investigation Officer has deposed :— "The accused had disclosed keeping the articles of the deceased with one Kuljinder Singh alias Pradhan, Mama of the accused at Ludhiana and on 20.2.20001 along with police officials proceeded to Ludhiana to the house of Kuljinder Singh along with one Sarjeant Singh. PW Ganshayam was also associated there at the spot. Kuljinder Singh admitted of his having received the articles from accused Gurdev and produced Ex. P 6 to P11 which were taken into possession by me in the presence of above named witnesses vide seizure memo Ex. PW Ganshayam was also associated there at the spot. Kuljinder Singh admitted of his having received the articles from accused Gurdev and produced Ex. P 6 to P11 which were taken into possession by me in the presence of above named witnesses vide seizure memo Ex. PW 8/B after sealing the same in a parcel sealed with seal impression T. After keeping specimen, I handed over the seal to Kuljinder @ Pradhan. Thereafter I along with accused came back to Mandi. The house of Kuljinder was disclosed by the accused Gurdev and he has led the police party and other to his house." 48. There is nothing in the statement of PW 20 as to when the accused had disclosed to him about the articles P 6 to P11 lying with PW 18 Kuljinder Singh at Ludhiana. However, it is evident from the above statement that such information is shown to have been given by the accused at Mandi that is why PW 20 has gone to state that on 20.1.2000 he along with other police officials had proceeded to Ludhiana. 49. It is in the evidence of the prosecution that the disclosure statement Ex. PC was made by the accused at Mandi on 18.1.2000 whereupon PW 20 on the following day, that is, on 19.1.2000 had gone to Kiratpur and recovered the tyre lever Ex. P12 from the bank of Kiratpur canal. Nothing has come in the statement of PW 20 that after effecting the recovery of Ex. P 12 at Kiratpur, he had returned to Mandi on 19.1.2000. On the other hand, PW 8 Sarjeant Singh, a resident of Ropar and who is alleged to have been associated in the recovery of Ex. P 6 to P 11 as also in the recovery of tyre lever Ex. P12 has stated that from Kiratpur canal they had proceeded to Ludhiana on the evening of 19.1.2000 and that the accused had led the police party to the house of PW 18 Kuljinder Singh. 50. If as per PW 8, the police party had gone to Ludhiana from Kiratpur on 19.1.2000, then the version given by PW 20 that he proceeded to Ludhiana from Mandi on 20.1.2000 stands falsified. 51. PW 8 and PW 9 were associated during investigation at Kiratpur on 19.1.2000 for the purpose of effecting the recovery of the tyre lever Ex. P 12. 51. PW 8 and PW 9 were associated during investigation at Kiratpur on 19.1.2000 for the purpose of effecting the recovery of the tyre lever Ex. P 12. PW 8 is a resident of District Ropar. According to PW 20 he had taken PW 8 to Ludhiana from Mandi which is contrary to the stand taken by PW 8 that he went to Ludhiana along with PW 20 from Kiratpur. Nothing has come on the record to show that PW 8 was present in Mandi on 20.1.2000 and in what connection when he was found in the investigation of the case by PW 20 and taken to Ludhiana. 52. It appears that the story about recovery of articles Ex. P 6 to P 11 at the instance of the accused has been introduced just to provide a link against the accused. Be it stated that PW 18 has specifically denied the recovery of articles Ex. P 6 to P 11 from him. 53. Even if, for the sake of arguments, it is presumed that articles Ex. P 6 to P 11 were in fact recovered at the instance of the accused, such circumstance does not connect the accused with the commission of the offence(s). No convincing and reliable evidence has come on the record to show that these articles in fact belong to the deceased and were kept by him in the van. 54. The articles Ex. P 6 to P 11 are shown to have been identified by PW 2 Man Singh, father of the deceased, in an identification parade carried out by Executive Magistrate PW 5 Shri Gokal Chand. PW 2 has stated with regard to identification of articles Ex. P 6 to P 11 as under:— "I was conversant with the identity of various articles belonging to my son Bhim Singh. The same were got identified from me by the police in the presence of Executive Magistrate Mandi after mixing the same with other similar items.” 55. PW 5 Shri Gokal Chand, who conducted the identification parade in respect of articles Ex. P 6 to P 11 has deposed :— ".....On 5th April, 2000 police produced before me certain articles for identification in a sealed packet sealed with seal impression T. I inspected the sealed parcel which was found properly sealed. I got the seal open and articles were taken out of the sealed parcel. P 6 to P 11 has deposed :— ".....On 5th April, 2000 police produced before me certain articles for identification in a sealed packet sealed with seal impression T. I inspected the sealed parcel which was found properly sealed. I got the seal open and articles were taken out of the sealed parcel. The articles taken out from the sealed packet, car stereo, speaker torch, towel, one shawl and seven audio cassettes. At my own after inspecting these articles, I called for some articles re-assembling to these and were kept along with these articles. Thereafter Man Singh (PW-2) was called in the court room where articles were kept. The witness was identified to me by the police as Man Singh. I called upon said Man Singh to separate the articles kept for his identification. Shri Man Singh in my presence picked up all the articles which were taken out of the sealed packet and he identified the same taken out of the sealed packet. I prepared a memo of all these facts which is Ex.PW-5/A which was written type out at my own dictation and its bear my signature..." 56. The certificate Ex. PW 5/A recorded by PW 5 after conducting the identification parade, reads :— " CERTIFICATE’ This is certified that in connection with the case FIR No. 54/2000 dated 21.1.2000 under Sections 364/302, 201, 379, 34 IPC registered at the S.H.O. Sadar Mandi, a cloth parcel duly sealed with seal Mark T was produced by Sh. Bahadur Singh, the A.S.1., Police Station, Sadar, for the purpose of identification parade of the articles containing therein. The seals affixed on the said parcel, were intact. Subsequently the seal of the said parcel, was cut open and the parcel was taken out which was found containing one stereo—single speaker, one torch, one towel, one shawl and seven cassettes. These were properly examined and thereafter mixed together with another similar type of items. Later on, Sh. Man Singh, S/o Sh. Sauroo Ram, R/o Kohlen, Police Station Gohar, to whom by A.S.I. Sh. Bahadur Singh recognized had identified and sorted out those items in my presence which were mixed from the said parcel into it. These were properly examined and thereafter mixed together with another similar type of items. Later on, Sh. Man Singh, S/o Sh. Sauroo Ram, R/o Kohlen, Police Station Gohar, to whom by A.S.I. Sh. Bahadur Singh recognized had identified and sorted out those items in my presence which were mixed from the said parcel into it. The articles, which were separated, were only those article which were mixed up from the parcel, sealed with seal mark T. After identification of these items, the said articles were re-packed into the cloth parcel and duly sealed with seal mark A and further handed over to the police. After retaining the specimen of the seal on a separate piece of cloth, the seal was retained by the police in its possession. Hence the certificate in respect of identification report was issued." 57. This certificate Ex. PW 5/A is undated. From this it is not clear either as to when the identification parade was conducted or as to when the certificate was recorded and issued. PW 5 claims in his statement that the identification parade was conducted by him on 5.4.2000, that is, about one and a half months of the recovery of the articles. 58. It is the case of the prosecution that articles Ex. P 6 to P11 after having been recovered were sealed in a packet with the seal "T" and that after retaining a sample impression of such seal, the same was handed over in the custody of PW 8 Sarjeant Singh. This sealed packet was deposited by PW 20 in the Malkhana with PW 16 Head Constable Prem Chand. However, no sample of the seal impression "T" was deposited. It is in the statement of PW 16 that on 5.4.2000 the sealed packet sealed with seal "T" was taken from him by Assistant Sub Inspector Bahadur Singh for the purpose of identification of articles and that on the same day a sealed packet sealed with seal "A" was redeposited with him by the said Bahadur Singh. 59. A bare reading of the statement of PW 5 as well as the certificate Ex. PW 5/A shows that no sample impression of the seal used in sealing the articles Ex. 59. A bare reading of the statement of PW 5 as well as the certificate Ex. PW 5/A shows that no sample impression of the seal used in sealing the articles Ex. P 6 to P 11 was produced before PW 5 so as to satisfy himself that the packet containing the articles were actually found sealed with the seal "T" used at the time of sealing. PW 5, therefore, had no opportunity to tally and compare the seal found on the packet produced before him. 60. Besides, Assistant Sub Inspector Bahadur Singh, who had carried the sealed packet from the police station to the court of PW 5 for the purpose of identification, has not been examined to show that the sealed packet so long as it remained in his custody was not tampered with. 61. The manner in which the identification parade was conducted by PW 5 also was not proper. It appears that all the articles were got identified simultaneously by mixing them with one set of similar articles. In fact each article was required to be got identified separately by mixing the same with a number of similar articles. 62. PW 2 Man Singh was living separately from the deceased. Therefore, it can hardly be believed that he had the occasion to see or handle these articles especially in view of the fact that these articles are claimed to have been kept by the deceased in the van. PW 2 has admitted that there was no special mark of identification on these articles. 63. There is yet another significant aspect of the case. As stated above, as per the prosecution case the van was seized at Ludhiana by PW 21 on 12.1.2000 from the possession of Kuldeep Singh. Ex. PW 21/C is the seizure memo prepared by PW 21 at the time of seizing the van. The relevant portion of this memo records :— "On checking the said Maruti Van from its inside, two number plates were recovered on which HP-02-1150 was written which were revealed as that of the said Maruti Van. On checking the said van its chasis No, and Engine No. were found as 856487 and 566318 respectively Since the said Maruti Van No. HP-02-1150 was believed to be stolen vehicle, it was taken, into possession vide this memo.” 64. On checking the said van its chasis No, and Engine No. were found as 856487 and 566318 respectively Since the said Maruti Van No. HP-02-1150 was believed to be stolen vehicle, it was taken, into possession vide this memo.” 64. There is no mention in this seizure memo about any other article(s), namely, tools, spare wheel etc. were found in the vehicle at the time of its seizure. Nor there is any mention about any stereo and/or the loud speaker having been found to have been removed therefrom. 65. It is further the admitted case of the prosecution that the van which was seized by Ludhiana Police was got released from there by PW 2 Man Singh and PW 6 Gajinder Vaidya, the registered owner of the van. No complaint appears to have been made by either of them at the time they obtained the release of the van about any article being found missing therefrom. PW 6 Gajinder Singh was earlier the owner of the van. He had sold the same to the deceased in the year 1999. He was, therefore, the best person to state if any stereo and the Loud speaker of the type and make shown to have been recovered from PW 18 were fitted in the van and, if so, whether the stereo and loud speaker recovered were the same. 66. Therefore, the alleged circumstances of recovery of articles Ex. P 6 to P 11 also cannot be pressed into service against the accused. 67. The prosecution story as unfolded is that one Sanju, stated to be earlier working with the deceased, is alleged to have informed PW 1 on 12.1.2000 that the van of the deceased was in the custody of Ludhiana Police and that the deceased was absconding. This Sanju is also alleged to have informed PW 2 on the following day, that is, 13.1.2000 about the van having been seized at Ludhiana by the police. It was on the basis of this information from Sanju that PW 1 on 13.1.2000 had lodged the report with the police at Mandi about her husband being missing and PW 2 had proceeded to Ludhiana along with PW Gajinder Vaidya for the release of the van. 68. It was on the basis of this information from Sanju that PW 1 on 13.1.2000 had lodged the report with the police at Mandi about her husband being missing and PW 2 had proceeded to Ludhiana along with PW Gajinder Vaidya for the release of the van. 68. Significantly, this Sanju has not been examined in the present case to show as to how he came to know about the van having been seized by police at Ludhiana. Nor there is any other evidence in this behalf. It is in the evidence of PW 21 Assistant Sub Inspector Balbir Singh of Ludhiana Police, that the van was seized by him at Ludhiana at about 7 p.m. on 12.1.2000. Therefore, it is highly improbable that the above said Sanju would have come to know about the seizure of van at Mandi on 12.1.2000. PW 1 is silent as to the time when she was informed by Sanju about the seizure of the van at Ludhiana. It was only Sanju who could have explained as to how and at what time he came to know about the seizure of the van at Ludhiana and from whom. Therefore, failure of the prosecution to examine the said Sanju casts a shadow of doubt on the truthfulness of the prosecution. 69. For the foregoing reasons, the present appeal is allowed. The conviction and sentence imposed upon the accused are set aside and he is acquitted of the offences under Sections 302, 364, 382 and 201, Indian Penal Code. 70. The accused, who is lodged in Jail undergoing sentence, be released forthwith if not required in any other case. The amount of fine, if already realised, shall be refunded to the accused. The case property be dealt with as per the directions of the learned trial Court. Appeal allowed.