JUDGMENT 1. - Naseer (since deceased) could not learn this well known less.that while dealing with friends, if hopes are with you tragedies also happen. A sum of Rs. 50,000/- arranged for payment of Bank loan, became enemy of Naseer and he had to sacrify his life. Lala @ Naresh, a close friend of Naseer, who was behind the killing, put to trial before the learned Additional Sessions Judge (Fast Track) Laxmangarh District Alwar, who vide judgment dated January 23, 2004 convicted and sentenced the appellant as under : U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 2,000/-, in default to further suffer rigorous imprisonment for six months. U/s. 404 IPC : To suffer rigorous imprisonment for two years and fine of Rs. 1,000/-, in default to further suffer rigorous imprisonment for one month. U/s. 4/25 Arms Act : To suffer rigorous imprisonment for six months and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for fifteen days. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that one Fatela, Up Sarpanch village Javli submitted written report (Ex.P-10) at Police Station Laxmangarh (Alwar) on July 27, 2002 to the effect that a dead body of unknown person aged 20-25 years was lying on the way of Banjare ka Bas. On that report proceedings under section 174 CrPC were initiated. Inquest report was drawn. On the said day Nabi Khan (Pw.3) identified the dead body as of his brother Naseer vide Identification memo (Ex.P-5). On July 29, 2002 Nabi Khan submitted a written report (Ex.P-8) at Police Station Laxman Garh stating therein that on seeing the dead body of Naseer he became upset therefore he could not lodge the report forthwith. It was further stated that on July 19, 2002 at 8 AM while his brother Naseer had gone to State Bank Ramgarh to deposit a sum of Rs. 50,000/- against his tractor loan account, Lala Nai (appellant) met him at the bus-stand. Lala and Naseer went together to Lala's house where they ate food together. On July 25, 2002 Naseer stayed in the house of Israel at village Sedampur. Naseer told Israel that a sum of Rs. 50,000/- which was kept by him with Lala, would be received by him and he would deposit the same in the bank. Lala and Naseer went together to Lala's house where they ate food together. On July 25, 2002 Naseer stayed in the house of Israel at village Sedampur. Naseer told Israel that a sum of Rs. 50,000/- which was kept by him with Lala, would be received by him and he would deposit the same in the bank. On July 26, 2002 Naseer left the house of Israel. Informant Nabi Khan expressed in the report that it was Lala who committed murder of Naseer. On that report a case under sections 302 and 201 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, appellant Lala was arrested 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) Laxmangarh District Alwar Charges under sections 302, 404 and 201 IPC and 4/25 Arms Act were framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Section 313 Cr.P.C, the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. Death of Naseer was undeniably homicidal in nature. As per Post Mortem report (Ex.P-37) following ante mortem injuries were found on the dead body : 1. Incised wound 7 x 2.5 cm depth upto vertebral column posteriority neck at base of skull. There is clotted blood present in the wound. There are muscles of nape cut, there is fracture of cervical second vertebral and injury of spinal cord present. 2. Stab wound 3.5 x 2 cm depth upto post surface of trachea apply neck just below sput border of joint cartilage. There is upper ⅓ of thyroid cartilage cut, Trachea is cut antrly, both side large carotid vessels are cut, there is clotted blood present in the wound. 3. Stab wound 3 x 2 cm upto post surface of trachea anply neck just below injury no.2. There is middle ⅓ of thyroid cartilage cut. There is trachea and large carotid vessels are cut. Clotted blood present in the wound. In the opinion of Dr. L.K. Sharma (Pw.21) the cause of death was cardio respiratory failure due to injury to trachea, large vessels of neck and cervicle vertibrae. There is middle ⅓ of thyroid cartilage cut. There is trachea and large carotid vessels are cut. Clotted blood present in the wound. In the opinion of Dr. L.K. Sharma (Pw.21) the cause of death was cardio respiratory failure due to injury to trachea, large vessels of neck and cervicle vertibrae. 4. We have given our anxious consideration to the submissions advanced before us. 5. Since there was no eye witness of the occurrence and the prosecution founded its case on circumstantial evidence, we have to consider whether : (i) the circumstances from which an inference of guilt is sought to be drawn, have cogently and firmly established; (ii) those circumstances are of a definite tendency unerringly pointing towards the guilt of the appellants; (iii) the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence, in order to sustain conviction must be complete and incapable of explanation of any other 2 hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 6. Coming to the evidence adduced at the trial by the prosecution we notice that according to Nabi Khan (Pw.3) Naseer had gone to deposit a sum of Rs. 50,000/- to the Bank against the loan obtained by them for purchasing the tractor. Naseer was seen at the Bus-stand Khudiyana by Shimbhu Meena and Bhikki Miyan. They also saw Naseer and Lala going together to the house of Lala. Thereafter on 25th Naseer met Israel and told him that sum of Rs. 50,000/- was kept by him at the house of Lala Nai and the same will be deposited in Bank on the next day, but on 27th dead body of Naseer was found in village Javali. Nabi Khan further deposited that Lala and Naseer were friend. 7. Israel (Pw.12) deposed that on July 25, 2002 Naseer came to him and told him that since he had to pay bank loan, he had sold his cutter and kept sum of Rs. 50,000/- with Lala, which he will take back from Lala and deposit the same in the Bank. 8. 7. Israel (Pw.12) deposed that on July 25, 2002 Naseer came to him and told him that since he had to pay bank loan, he had sold his cutter and kept sum of Rs. 50,000/- with Lala, which he will take back from Lala and deposit the same in the Bank. 8. Shimbhu Dayal (Pw.16) and Bhikki (Pw.17) deposed that on July 19, 2002 around 9 AM they saw Lala and Naseer at Bus-stand Khudiyana. They together went to the house of Lala. Around 12 Noon Lala and Naseer boarded a bus which was going to Kathumar. 9. Ramesh Singh Tanwar SHO Laxmangarh (Pw.25) got recovered two pass-books of State Bank of India Branch Ramgarh and a currency note of Rs. 500/- bearing No. 2AQ 794200. During the course of investigation he arrested Lala Nai vide arrest memo Ex.P-40.On the basis of his disclosure statement (Ex.P-41) 40 currency notes of Rs. 500/- recovered at the instance of Lala were of the same series of the currency note which was found in the pocket of deceased. T-shirt stained with blood and stains burnt with bidi got recovered at the instance of Lala vide memo Ex.P-12. 10. Gordhan Lal Sikariya (Pw.24) C.O. Laxmangarh got recovered Gandasa at the instance of Lala vide memo Ex.P-19. The Gandasa was concealed under the soil. Lala also gave information that he opened hair-dresser shop at Kanota after investing a sum of Rs. 12,000/-. The information was entered in the memo Ex.P-39 on the basis of which recovery got effected vide memo Ex.P-17. 11. The factual situation emerges from the material on record may be summarised thus: (1) Nabi Khan (informant), Naseer (deceased) and Ishaq had joint loan account in the State Bank of India branch Ramgarh. (ii) Shimbhu Dayal (Pw.16) and Bhikki (Pw.17) saw appellant and deceased. (iii) On July 26, 2002 Naseer informed Israel (Pw.12) that since he kept a sum of Rs. 50,000/- with Lala he was going to Lala to take back money so that it could be deposited in bank. (iv) As per inquest report (Ex.P-2) two pass books of State Bank of India Branch Ramgarh, one telephone diary and one Five hundred rupee currency note were found in the pocket of the deceased bearing No. 2AQ 794200. (v) On the basis of disclosure statement of Lala, sum of Rs. (iv) As per inquest report (Ex.P-2) two pass books of State Bank of India Branch Ramgarh, one telephone diary and one Five hundred rupee currency note were found in the pocket of the deceased bearing No. 2AQ 794200. (v) On the basis of disclosure statement of Lala, sum of Rs. 20,000/- (40 notes of 500) recovered from his residential house vide recovery memo (Ex.P-11). Serial numbers of notes were 2AQ 794135 to 2AQ 794154 and 2AQ 79417 to 2AQ 794176. Notes bearing Nos. 2AQ 794155 and 794156 were missing. Serial number of 500 rupee note 'found in the pocket of dead body matched with the serial numbers of 500 rupee note recovered at the instance of Lala. (vi) Gandasa (crime weapon) concealed under the soil got recovered at the instance of Lala vide recovery memo Ex.P-19. Blade of Gandasa was stained with blood. (vii) On August 4, 2002 Lala got hired the shop of Tej Ram (Pw.19) on Rs. 600/- per month as rent and paid Tej Ram to currency notes of Rs. 500/- and two currency notes of Rs. 100/-. Lala invested a sum of Rs. 12,000/- in purchasing TV and other materials for the shop. (viii) T-shirt stained with blood belonging to Lala got recovered at his instance. Blood stains were found burnt. (ix) Lala and Naseer were seen together on July 19, 2002 at 9 AM. Naseer came from Imarti ka Bas and sat on the barber shop of Lala. Both talked together and went to Khudiana on a cycle. They came back at 12 noon and went towards Kathumar in a bus. 12. Most of the incriminating circumstances sought to be proved against Lala related to disclosure statement of Lala and recoveries effect on that basis. 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. 13. 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. 13. In Prakash Chand v. State (Delhi Admn.) [ AIR 1979 SC 400 ] 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. 14. 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." 15. 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." 16. That takes the case out of the purview of Section 27 of the Evidence Act." 16. In Rammi v. State of M.P., [ 1999(8) SCC 649 ] , 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." 17. In Himachal Pradesh Administration v. Om Prakash [ 1972(1) SCC 249 ] the Apex Court interpreted Section 27 of the 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. 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." 18. In Ghanshyam Das v. State of Assam, [2006(1) WLC (SC) Cri. 625 : 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 IP 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." 19. We find no merit in the submission of learned counsel for the appellant that the Investigating Officer falsely implicated Lala in the case. We cannot approach the action of Investigating Officers with initial distrust. The investigating officers had no enmity with the accused Lala and the recovery at the instance of accused gets support from the testimony of prosecution witnesses. We find no merit in the submission of learned counsel for the appellant that the Investigating Officer falsely implicated Lala in the case. We cannot approach the action of Investigating Officers with initial distrust. The investigating officers had no enmity with the accused Lala and the recovery at the instance of accused gets support from the testimony of prosecution witnesses. It is well settled that even if independent person fails to support the recovery of incriminating articles at the instance of accused, it cannot be presumed that recovery is untrustworthy. The Supreme Court in State Govt. of NCT of 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." 20. On analysing the testimony of Israel (Pw.12), Shimbhu Dayal (Pw.16), Bhikki (Pw.17), Ramesh Singh Tanwar (Pw.25) and Gordhan lal Sikariya (Pw.24) from the point of view of trustworthiness, we find that investigation in the instant case appears to be fair. In our opinion the prosecution has cogently and firmly established that it was the accused Lala who committed the crime. The circumstances established against accused Lala have unerringly point towards his guilt and if the circumstances are taken cumulatively they form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused Lala and none else. The circumstantial evidence, in order to sustain conviction of accused Lala are complete and incapable of explanation of any other hypothesis than that of the guilt of the accused Lala and they are consistent with the guilt of accused Lala and inconsistent with his innocence. 21. The circumstantial evidence, in order to sustain conviction of accused Lala are complete and incapable of explanation of any other hypothesis than that of the guilt of the accused Lala and they are consistent with the guilt of accused Lala and inconsistent with his innocence. 21. For these reasons, we find no merit in the instant appeal. The same accordingly stands dismissed. Conviction and sentence of appellant under sections 302, 404 IPC and under section 4/25 Arms Act are maintained.Appeal Dismissed. *******