Yatindra Singh and B.N. Shukla, JJ. - In this criminal appeal-apart from the question regarding guilt of Krishna Kumar alias Pappu (the Appellant) in looting, kidnapping, and killing three innocent people - the question involved is, 'Should the recovery memo be signed by the accused?" THE FACTS 2. At the relevant time, Sri Mahesh Verma (the Informant) was living in village Kalinagar, district Pilibhit along with his father Shri Krishna Verma, his wife Smt. Chaina Devi and his four children. Out of these four children, at least two were daughters namely Km. Arati and Km. Pooja. The Informant's family were jewel­lers and did Sarrafa business. 3. The Appellant is resident of the same village. It has come in the evidence that: * The Appellant used to work in the Jewellery Shop of the Informant; and * Ho was well known to the family. This has not been challenged. 4. In the night of 16-17 December, 1994, an incident took place. An FIR (Ext. Ka-4) was lodged by the Informant on 17.12.1994 at 5:55 a.m. The allegations in the FIR are, * The informant was not present at his residence in the night and had gone to Puranpur to attend a marriage ceremony. He was informed by Sri Virendra Kurnar Pandey and the Appellant at about 4:30 a.m. regarding the incident; * In the night, there was noise of crackers in front of the house; * Shri Krishna Verma and the Infor­mant's wife Smt. Chaina Devi were killed by some miscreants. Their bodies have been burnt; * One of the -informant's daughter, Km. Arati, aged about 8 years, is missing. It is possible that miscre­ants might have taken her away and kill her; * Personal and business Jewellery - about 20 Kg. silver, 200 gm. gold and Rs. 25, 000/ - has been looted. In the FIR the time of the incident is not mentioned but in the evidence (PW-1 and PW-10), it has come that noise of blast/crackers/fire-arms was heard at about 2-2.30 a.m.). 5. Sri Atar Singh. Sub-Inspector, started investigation of the case the same day. According to the prosecution, he re­covered a cracker from the place of the in­cident and a similar cracker from the house of the Appellant. The Appellant was taken into custody at 2:10 p.m. on that day. 5. Sri Atar Singh. Sub-Inspector, started investigation of the case the same day. According to the prosecution, he re­covered a cracker from the place of the in­cident and a similar cracker from the house of the Appellant. The Appellant was taken into custody at 2:10 p.m. on that day. Thereafter on his pointing, the following items were recovered, * A part of looted jewellery from the Eucalyptus wooden stack near the house of the Appellant; * A part of looted jewellery and cash from the residence of the Appel­lant; * The dead body of Km. Arati from a well, which is about a kilometre away from the place of incident. The Panchayatnamas, search and re­covery memos were prepared by Sri Atar Singh. The Informant was also made ac­cused for conspiracy in the crime. 6. Sri Atar Singh investigated the case for one day only namely on 17.12.1994. Thereafter investigation was taken over by his superior Sri Dinesh Kumar Singh on the next day. He arrested the Informant on 2.1.1995 at about 8:10 p.m. 7. The police submitted a charge-sheet (Ex Ka-14) against the Appellant and the Informant. The case was committed to the Court of session on 30.8.1996 and was registered as ST No. 569 of 1996. On 22.11.1997, the Additional Session Judge, Court No. 7, Pilibhit framed charges against; * The Appellant under sections 394, 302, 201, 364, and 411 IPC; * The Informant under sections 394, 302, 364, and 201 read with section 120-B IPC. 8. Apart from the other documentary evidence, the following documentary evi­dence was filed by the prosecution. (i) Panchayatnama dated 17.12.1994 (Ex Ka-15 ) and post mortem report dated 17.12.1994 (Ex Ka-8) of the deceased Sri Krishna Verma; (ii) Panchayatnama dated 17.12.1994 (Ex Ka-16) and post mortem report dated 17.12.1994 (Ex Ka-9) of the deceased Smt. Chaina Devi; (iii) Panchayatnama dated 17.12.1994 (Ex Ka-1) and post mortem report dated 18.12.1994 (Ex Ka-40) of the deceased Arati; (iv) Recovery memo dated 17.12.1994 of the looted articles (jewellery and cash) from the stack of eucalyptus wood and from the house of the Appellant (Ex Ka-2); (v) Recovery memos dated 17.12.1994 of unused cracker from the place of incident (Ex Ka-18) and from the house;of the Appellant (Ex Ka-19); (vi) Recovery memo of dead body of Km. Arati. Arati. (Ex Ka-3); (vii) Site plan of the place of the inci­dent (House of the Informant) (Ex Ka-37), place of recovery of loot from the house of the Appellant (Ex Ka-38), and place ol recovery of dead body of Arati (Ex Ka-39); (viii) Report of the Vidhi Vigyan Shaia about crackers (Ex Ka-4I) and blood (Ex Ka-42); (ix) Carbon copies of parchas of the General Diary (GD) (Ex Ka-5, Ex Ka-6 and Ex Ka-7). 9. The prosecution produced the following witnesses: (i) Sri Vinod Kumar Pandey (PW-1): He is the witness who reached on the spot immediately after incident. He was declared hostile; (ii) Sri Mohan lal (PW-2): He was supposed to prove conspiracy be­tween the Accused and the Infor­mant. He was also declared hostile; (iii) Sri Ram Nath Gupta (PW-3): He is witness of the Panchayatnamas of deceased Smt. Chaina Devi (Ex Ka-16) and Shri Krishna Verma (Ex Ka-15). He was also declared hos­tile; (iv) Sri Ram Bahadur Singh Yadav (PW-4): He is witness of the recov­ery memo of the jewellery and cash (Ex. Ka-2), and dead body of de­ceased Km. Arati (Ex Ka-3). He was also declared hostile; (v) Sri Santosh Kumar Gupta (PW-5): He is Head Constable. He prepared the Chik report (Ex Ka-4) and proved the carbon copies of the parchas of the GD (Ex Ka-5, Ex Ka-6 and Ex Ka-7); (vi) Dr. Kripal Singh (PW-6): He has, conducted the post mortem of Shri Krishna Verma (Ex Ka-8) and Smt. Chaina Devi (Ex Ka-9); (vii) Sri Rajiv Kumar Gupta (PW-7): He has weighed the looted jewellery and gave a certificate of its weight (Ex Ka-10); (viii) Sri Farooq Husain (PW-8): He is also witness of the recovery memo of the looted jewellery and cash (Ex Ka-2) and dead body of Km. Arati (Ex Ka-3). He was also declared hostile; (ix) Sri Mahendra Pal Mishra (PW-9): He is sales man of a medicine shop. He has deposed selling two tablets to the Appellant for uneasiness; (x) Sri Ram Kishor Pandey (PW-10): He is neighbour of the deceased. He reached the spot immediately after the incident; (xi) Sri Dinesh Kumar Singh (PW-11): He has conducted the subsequent investigation from 18.12.1994 and submitted the charge-sheet (Ex Ka-14); (xii) Sri Ashok Kumar Verma (CW-1): He is the brother of the deceased Smt. Chaina Devi (brother-in-law of the Informant). He was exam­ined as a Court witness; (xiii) Km. He reached the spot immediately after the incident; (xi) Sri Dinesh Kumar Singh (PW-11): He has conducted the subsequent investigation from 18.12.1994 and submitted the charge-sheet (Ex Ka-14); (xii) Sri Ashok Kumar Verma (CW-1): He is the brother of the deceased Smt. Chaina Devi (brother-in-law of the Informant). He was exam­ined as a Court witness; (xiii) Km. Pooja Verma (CW-2); She is the daughter of the Informant and the Deceased Smt. Chaina Devi. She was examined as a Court witness. 10. The defence neither filed any documentary evidence nor examined any witness. 11. The statements of the Accused, under section 313 Cr.P.C., were recorded on 18.4.2006. The Additional Session Judge, Court No. 7, Pilibhit by his judgment dated 26.4.2006: * Acquitted the Informant from the charges; but * Convicted the Appellant under sections 302/394/364/201 and 411 IPC; and * Awarded death sentence to the Appellant on 28.4.2006. 12. Against this judgment and sen­tence, a reference registered as Reference No. 7 of 2006 was sent to this Court. The Appellant also filed Criminal Appeal No. 2625 of 2006 against conviction and sen­tence. This appeal and reference were sent back on 15.12.2006 with the following di­rections: (i) The Session Judge Pilibhit was re­quested to decide the case himself; (ii) The Session Judge was required to examine Sri Atar Singh (Sub In­spector); (iii) The Appellant was to be 'afforded an opportunity to cross-examine Km. Pooja (CW-2). 13. The Session Judge Pilibhit after remand afforded opportunity to the Appel­lant to cross-examine Kni. Pooja Verma and examinee.): (i) Sri Atar Singh (Sub-Inspector) (CW-3): He had conducted the in­vestigation on 17.12.1994. He had recovered the crackers, looted arti­cles and the dead body of the de­ceased Arati; (ii) Dr. GP Agnihotri (CW4): He had conducted the post-mortem of Km. Arati; (iii) Sri Naresh Chandra Verma (CW-5): He had written FIR on the dic­tation of the Informant. 14. The statements, under section 313 CrPC, of both the Accused were again re­corded on 4.7.2007. The Appellant had de­nied any information regarding recovered articles in his earlier statement dated 18.4.2006 but in the subsequent statement on 4.7.2007, he claimed old silver jewellery to be his. Their statements, under section 313 Cr.P.C., were recorded for the third time on 16.8.2007 after evidence of Sri Naresh Chandra Verma (CW-5). 15. The Appellant had de­nied any information regarding recovered articles in his earlier statement dated 18.4.2006 but in the subsequent statement on 4.7.2007, he claimed old silver jewellery to be his. Their statements, under section 313 Cr.P.C., were recorded for the third time on 16.8.2007 after evidence of Sri Naresh Chandra Verma (CW-5). 15. The Session Judge, Pilibhit by his judgment again acquitted the Informant but convicted the Appellant under sections 394, 302, 364 and 411 IPC on 27.9.2007. On the next day (28.9.2007), the Appellant was awarded: (i) Death sentence under section 302 IPC; (ii) 10 years rigorous imprisonment and a fine of Rs. one lakh under section 394 IPC; (iii) Life imprisonment and a fine of Rs. 50, 000/- under section 364 IPC' (iv) Three years rigorous imprisonment and a fine of Rs. 10, 000/- under section 201 IPC; (v) Two years rigorous imprisonment under section 411, IPC. 16. Against the death sentence, a ref­erence (Registered as Reference No. 25 of 2007) has been sent to this Court. The Ap­pellant has also filed Criminal Appeal No. 7058 of 2007 against his conviction and sentence. POINTS FOR DETERMINATION 17. We have heard Sri Dilip Kumar, Counsel for the appellant and Sri Dr. Chaudhary, the Government Advocate and Sri Anand Tiwari for the State. We are thankful to the Counsel appearing in the case for correcting a part of the judg­ment under the heading (THE FACTS and POINTS FOR DETERMINATION). Yet, if there are any mistakes, they are ours. ing points arise for determination in the case: The follow- (i) Whether the recovery memo is re­quired to be signed by the accused, (ii) Whether the recovery memos are unreliable and should be dis­carded, (iii) Whether the statement of Km. Pooja unreliable, (iv) Whether the Appellant is guilty of committing the crime, (v) Has there been failure to comply section 313 Cr.P.C. by not pointing out the specific part of evidence of Atar Singh regarding recovery? Has it vitiated the trial? (vi) If the Appellant is guilty, then what should be the punishment? 1st POINT: SIGNING BY THE ACCUSED - NOT NECESSARY 18. The recovery memos were pre­pared by Sri Atar Singh. They were signed by him and ofher witnesses. However, they are neither signed by the Appellant nor copies were given to him. Should recovery memo be signed by the accused also? 19. 1st POINT: SIGNING BY THE ACCUSED - NOT NECESSARY 18. The recovery memos were pre­pared by Sri Atar Singh. They were signed by him and ofher witnesses. However, they are neither signed by the Appellant nor copies were given to him. Should recovery memo be signed by the accused also? 19. The Counsel for the Appellant submitted that the recovery memo under section 27 of the Evidence Act is required to be signed by the accused in view of, (i) Sections 100 and 165 Cr.P.C.; (ii) The proforma of different memos prescribed under Police Regula­tion; and (iii) The decision of the Supreme Court in Jackaran Singh v. State of Punjab:, AIR 1995 SC 2345 (the Jackaran case). 20. Chapter II of the Indian Evidence Act, 1872 (The Evidence Act) deals with relevancy of facts. Under sub-heading 'Admissions' the admission and confession are dealt with. Sections 25 and 26 state that confession to the police officer or by the accused in police custody cannot be proved against him. The first report of the Indian Law Commission' This is quoted in paragraph 11.8 of the 69th report of the Law Commission of India on the Evidence Act, 1872 records the reason as follows: The evidence taken by the Parliamen­tary Committees on Indian Affairs during the Sessions of 1852 and 1853 and other papers, which have been brought to our notice, abun­dantly show that the powers of the Police are often abused for pur­poses of extortion and oppression; and we have considered whether the powers now exercised by the police might not be greatly abridged. A police officer, on receiving intimation of the occurrence of a dacoity or other offence of a serious character, failing to discover the perpetrators of the offence, often endeavours to secure himself against any charge of supineness or neglect by getting up a case against parties whose cir­cumstances or characters are such as are likely to obtain credit for an accusation of the kind against them. This is not infrequently done by extorting or fabricating false confession; and, when this step is once taken, there is of course im­punity for real offenders, and a great encouragement to crime. This is not infrequently done by extorting or fabricating false confession; and, when this step is once taken, there is of course im­punity for real offenders, and a great encouragement to crime. We are persuaded that any provision to correct the exercise of this power by the police will be futile; and we accordingly propose to remedy the evil, as far as possible, by the adoption of a rule prohibiting any examination whatever of any ac­cused party by the police, the result of which is to constitute a written document. This, of course, will not prevent a police officer from receiv­ing any information which any once may voluntarily offer to him; but the police will not be permitted to put upon record any statement made by a party accused of an of­fence.' 21. Section 27 is an exception to sec­tions 25 and 26 of the Evidence Act. It is based on the doctrine of confirmation by subsequent (discovered) facts: it was firstly illustrated in Warrick hall's case (1783) I Leach C.C. 283. See 69th report of the Law Commission, of India on the Evidence Act paragraph 11.23. 22. The Supreme Court in the Dec-man Upadhaya Case, See State of UP v. Deoman Upadhaya, AIR 1960 SCI 125 (paragraphs 10, and 7) has explained the reason for these sec­tions: 'Sections 25 and 26 were enacted not because the law presumed the statement to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evi­dence. Section 27 is founded on the principle that even though the evidence re­lating to confessional or 'other statements' made by a person, whilst he is in the custody of a po­lice officer, is tainted and therefore inadmissible, if the truth of the in­formation given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered.... By section 27, even if a fact is deposed to as discovered in consequence of in­formation received" only that much of the information is admissible as distinctly relates to the fact discov­ered.' 23. By section 27, even if a fact is deposed to as discovered in consequence of in­formation received" only that much of the information is admissible as distinctly relates to the fact discov­ered.' 23. However later, in the Sunil case, State Government of NCT of Delhi v. Sunil; 2001 (42) ACC 223 (SC) the Supreme Court recommends the rever­sal of the same: "We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over per­sisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the pre­sumption that the police records are untrustworthy. As a proposi­tion of law the presumption should be the other way around." (i) sections 100 and 165 Cr.P.C. - Not Ap­plicable 24. Section 100 Cr.P.C. is titled 'Person in charge of closed place to allow search' and is in Chapter VII (Processes to compel the production of things). Sub­sections 4 and 5 of section 100 Cr.P.C. pro­vide that search shall be made in presence of independent witnesses and list of things seized shall be signed by them. Sub-section (6) of section 100 Cr.P.C. provides that a copy of list will be delivered to the occu­pant. There is no requirement that list of the things is required to be signed by the occupant. 25. Section 165 Cr.P.C. is titled 'Search by police officer' and is in Chapter XII (Information to the police and their powers to investigate). Sub-section (4) of section 165 provides that as far as applicable pro­visions contained in section 100 will apply to a search under this section. This section also nowhere mandates that the list pre­pared should be signed by the person searched. Of course under sub-section (5) of this section, the person searched can ob­tain copy of the list. 26. Sub-section (4) of section 165 provides that as far as applicable pro­visions contained in section 100 will apply to a search under this section. This section also nowhere mandates that the list pre­pared should be signed by the person searched. Of course under sub-section (5) of this section, the person searched can ob­tain copy of the list. 26. The Supreme Court in the Sunil case, 2001 (42) ACC 223 (SC) explains: '[R]ecovery of an object pursuant to the information supplied by an ac­cused in custody is different from the searching endeavour envisaged in Chapter VII of the Code.' In our opinion, sections 100 and 165 Cr.P.C.: * Do not relate to recovery, on pointing out of the accused; and * Are not applicable to the discovery under section 27 of the Evidence Act. (ii) Police Regulations - No Requirement to Obtain Signature 27. The Police Regulations provide different proforma including the one for recovery memo on pointing out by the ac­cused. But we are afraid it does not contain anything that may indicate or require that the signature of the accused are to be ob­tained on the recovery memo or an en­dorsement is to be made that he has re­fused to accept the same. 28. The proforma indicates a column 'Received a carbon copy... Signature of the Accused/ thumb impression'. This only means that: * A copy of the recovery memo should be given to accused; and * A receipt should be obtained from him. Obtaining receipt of the recovery memo is different from requiring his signa­ture on the same: it is merely to record that a copy of the recovery memo has been supplied to the accused. In its absence, the Court may presume that the copy was not given. 29. In our opinion, it cannot be said, as a matter of law that: * The signatures of the accused have to be obtained on the recovery memo; or * An endorsement is required that the accused has refused to accept it; and * Merely failure to do so, vitiates the recovery. If there were such a provision, then it might run afoul of Article 20(3) of the Constitution of India. 30. In this case it is not relevant whether receipt of providing copy of the recovery memo was obtained or not: it is admitted that recovery memos were not supplied to the Appellant. If there were such a provision, then it might run afoul of Article 20(3) of the Constitution of India. 30. In this case it is not relevant whether receipt of providing copy of the recovery memo was obtained or not: it is admitted that recovery memos were not supplied to the Appellant. The question, whether it has vitiated the recovery or no't, will be considered, while deciding the sec­ond point. (iii) The Jackaran Case - Not Applicable 31. In the Jackaran case, AIR 1995 SC 2345 , the Supreme Court had discarded the recovery memo observing: The absence of signatures or thumb impression of the accused on the disclosure statement recorded under section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the dis­closure statement.' But the Jackaran case is distinguishable: it was decided on its own fact. 32. In the Golakonda case, Golakonda Venkateswara Rao v. State of A.P., 2003 (10) AIC 135 (SC) = 2003 (47) ACC 686 (SC), * Disclosure and recovery memos were not signed by the accused; and * Some of the recovered articles were not even produced before the Court; and * It was a case of circumstantial evi­dence, Yet the Supreme Court distinguished the Jackaran case. The Court relying upon the memos upheld the conviction. The Court observed: 'Every case has to be decided on its own facts. The facts of that case [the Jackaran case] do not fit in the facts of the case at hand... In the instant case, while it is true that neither the disclosure statement nor the recovery memo bear the signatures of the accused but the fact remains that pursuant to the disclosure statement MOs have been recovered from the well and dug out from a place which is pointed out by the appellant, leaves no manner of doubt that the recovery of MOs has been made on the basis of the voluntary disclo­sure statement.' The case, that we are deciding, is simi­lar to this case. 33. A Division Bench (see below), KM. Ibrahim v. State of Kamataka; 2000 CrLJ 197 of Andhra Pradesh High Court also distin­guished the Jackaran case and upheld the conviction. 34. This point was also dealt by the Supreme Court in the Teja Ram Case, State of Rajasthan v. Teja Ram, 1999 SCC (Cri) 436 (paragraph 30) = 1999 (38) ACC 627 (SC). Ibrahim v. State of Kamataka; 2000 CrLJ 197 of Andhra Pradesh High Court also distin­guished the Jackaran case and upheld the conviction. 34. This point was also dealt by the Supreme Court in the Teja Ram Case, State of Rajasthan v. Teja Ram, 1999 SCC (Cri) 436 (paragraph 30) = 1999 (38) ACC 627 (SC). The Court held': The resultant position is that the Inves­tigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure-memo for the recovery of any article cov­ered by section 27 of the Evidence Act. But if any signature has been obtained by an Investigating Officer, there is nothing wrong or illegal about it." 35. In view of this, we hold that re­covery memo, under section 27 of the Evi­dence Act, is not required to be signed by the accused though a copy of the same should be supplied to him. Failure to do so - depending on the circumstances - may raise an inference against it. 2nd POINT: RECOVERY MEMO - RELIABE 36. The Counsel for the Appellant submitted that recovery memos are unreli­able and recovery is vitiated as: (i) There is no disclosure memo; (ii) There is no independent witness to support the recovery memo and those who were produced, have not supported it; (iii) The copy of recovery memo was neither served nor given to the Appellant; (iv) There is a discrepancy in the quantity of jewellery mentioned in the FIR and that recovered; (v) The recovered jewellery has also not been identified though a part of it could be identified by the per­sons who had pawned their jewel­lery; (vi) There is a well at the place of inci­dent. There was no justification to throw the dead body of Km. Arti in the well one Kilometre away, (i) Disclosure Memo - Not Required 37. There is nothing in section 27 of the Indian Evidence Act to require two separate documents. No mandatory provi­sion has been brought to our notice that the disclosure memo should be separately pre­pared. The fact that they are often pre­pared, and perhaps it is better if they are prepared, does not mean that in case dis­closure memo is not prepared then the re­covery is unreliable. 38. In the present case, the informa­tion regarding disclosure has been stated by Sri Atar Singh (CW-3). The fact that they are often pre­pared, and perhaps it is better if they are prepared, does not mean that in case dis­closure memo is not prepared then the re­covery is unreliable. 38. In the present case, the informa­tion regarding disclosure has been stated by Sri Atar Singh (CW-3). This fact is not only recorded in Case Diary and General Diary but is also mentioned, in the recovery memos. Sri Ram Bahadur Singh Yadav (PW-4) and Sri Ashok Kumar Verma (CW-1) have also deposed about the same. 39. This case was a sensational one; everything was happening at a fast speed-recovery of looted articles, dead body - in such a situation if the disclosure memo could not be separately prepared then no objection can be taken. It does not affect the reliability or the trustworthiness of the re­covery memos or the recovery. (ii) Witnesses Have Supported the Recov­ery Memo 40. In the Sunti case, 2001 (42) ACC 223 (SC) the Supreme Court clarified that there is no requirement of obtaining signature of independent wit­ness on the disclosure or recovery memo. The Court held that: "In this context we may point out that there is no requirement either un­der section 27 of the Evidence Act or under section 161 of the Code of Criminal Procedure, .to obtain sig nature of independent witnesses on the record in which statement of an accused is written. The legal obli­gation to call independent and re­spectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code.' In view of this, it was not mandatory to get signature of any independent witness on recovery memo under section 27 of the Evidence Act though it is always better to do so. However, in this case, recovery memos are signed by independent wit­nesses: Ram Bahadur Singh Yadav (PW-4) and Farooq Husain (PW-8). They are wit­nesses of the recovery memos and are resi­dent of the same village. 41. The examination-in-chief of Ram Bahadur Singh Yadav (PW-4) was recorded on 3.11.1998. He has signed the recovery memos. He has stated that recovery was done at the instance of and in front of the Appellant. His cross-examination was done on 25.3.2003 after about five years. It is during this period that he turned hostile. 42. 41. The examination-in-chief of Ram Bahadur Singh Yadav (PW-4) was recorded on 3.11.1998. He has signed the recovery memos. He has stated that recovery was done at the instance of and in front of the Appellant. His cross-examination was done on 25.3.2003 after about five years. It is during this period that he turned hostile. 42. The statement of Sri Farooq Husain (PW-8) was recorded on 25.6.2005. It was after about seven years of the incident. By that time, he had turned hostile and denied recovery of the looted articles in front of him. Nevertheless he has accepted that: * He has signed the recovery memos relating; * The dead body of Km. Arati was recovered in front of him; * The Appellant was also present at the time, when the dead body of Km. Arti was recovered. 43. The Counsel for the Appellant submitted that: * The aforesaid independent wit­nesses were declared hostile; * They have not supported the re­covery memos; * Their statement cannot be relied upon. 44. It is settled (see below for cita­tions)' that the evidence of a prosecution witness cannot be rejected in totality merely because he has turned hostile or the prosecution has chosen to treat him as hostile and cross-examined him. His evi­dence is neither effaced nor washed off from the record. It can be accepted to the extent his version is found dependable. 45. The version of the hostile wit­nesses is dependable or not, depends on the facts of each case. The relevant facts in this case are as follows: 1. This proposition has been stated in the fol­lowing decisions of the Supreme. Court: Radha Monan Singh alias lal Saheb v. State of ' UP, 2006139) AIC 31 (SC) = 2006 (54) ACC 862 (SC) = (2006) 2 SCC 450 ; Bhagwan Singh v. State of Haryana, 1976 (13) ACC 64 (SC) = (1976) 1 SCC 389 Rabindra Kumar dev v. State of Orissa, 1977 (14) ACC 97 (SC) = (1976) 4 SCC 233 = AIR 1977 SC 170 and Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 = 1980 SCC (Cr) 59 = AIR 1979 SC 1848 . (i) Everything happened at the fast pace. The'looted articles and dead body was recovered on the same day. It was done within 12 hours of lodging of the FIR. (i) Everything happened at the fast pace. The'looted articles and dead body was recovered on the same day. It was done within 12 hours of lodging of the FIR. (ii) The recovery related to larga valu­able jewellery (10 Kg of silver and 650 gram of gold). In our opinion, it could not have been implanted. (iii) The jewellery was weighed by an­other jeweller Sri Rajiv Kumar Gupta (PW-7). He has given a cer­tificate for the same. He has not been cross-examined. No sugges­tion was given to him that the Jewellery was not weighed by him. This shows the articles were recov­ered. (iv) Sri Ashok Kumar Verma (CW-1) is the brother of deceased Smt. Chaina Devi. His sister was killed. It was natural that he should be present. He was late and was not present at the time when articles were recovered (he has also not made any such statement). He came at the time when the recov­ered jewellery was being weighed by Sri Rajiv Kumar Gupta (PW-7). He has signed this certificate. The dead body of Km. Arati was dis­covered after weighing the jewel­lery. He was present when her body was being recovered though he has not signed the recovery memo. He has deposed: * The recovery of dead body of Km. Arati was at the instance of the Appellant. * The Appellant was present at the time when dead body of Km. Arati was being taken out of the well; (y) Sri Atar Singh (CW-3) had investi­gated the case on 17.12.1994. He had made the recoveries and pre­pared the memos. He has deposed that recovery of the articles and the dead body was done at the in­stance of the Appellant. There is suggestion to him that recovery memos were prepared at the police station but there is no suggestion that: * The Jewellary has been implanted by him; * The recovery was not done from the place from where it is said to be recovered; (vi) The recovery memo records that recovery was done at the instance of the Appellant. (vii) The statement of the appellant has been recorded three times. For the first time it was recorded on 4.7.2007. In this statement he de­nied the recovery. However, in his statement recorded on 16.8.2007 he claimed old silver jewellery (a part of recovered jewellery) to be taken from his house. (vii) The statement of the appellant has been recorded three times. For the first time it was recorded on 4.7.2007. In this statement he de­nied the recovery. However, in his statement recorded on 16.8.2007 he claimed old silver jewellery (a part of recovered jewellery) to be taken from his house. He himself admits part of the recovery from his house. 46. Considering the relevant facts mentioned in the preceding paragraph, we have no reason to disbelive the examina-tion-in-chief of Ram Bahadur Singh Yadav (PW-4) that the recovery was done at the instance of the Appellant and recoveries memos were prepared, we accept the statement of Sri Atar Singh (CW-3) as well as Sri Ashok Kumar Verma CW-1 regard­ing recovery. (iii) Recovery Memos - Copies Not Given - In the Circumstances Not Fatal 47. The Counsel for the Appellant submitted that the prosecution case is doubtful as the copies of different memos were not been given to the Appellant. 48. It is correct that the copies of the recovery memos were not given. But this should be se6n in the circumstances of the case: Everything was happening at a fast pace: the recovery of the crackers, two dead bodies at the place of in­cident, the recovery of cracker at the place of incident and at the residence of Appellant, recovery of a part of the looted property from the stack of eucalyptus wood near the house of the Appellant and another part in the house of the Appellant, and the dead body of Km. Arati in the well that was a Kilometre away from the place of incident - in between these events, the looted jewellery was weighed also. This all was done within 12 hours of the lodging of the FIR; There was a huge crowd at the time of recoveries. Ashok Kumar Verma (CW-1) states that there were 100-150 people at the time re­covery of dead body of Km. Arati. This all was done by Sri Atar Singh. He conducted the investiga­tion for one day. Thereafter it was taken over by his superior Sri Dinesh Kumar Singh. In the aforesaid circumstances, if Sri Atar Singh could not provide the copies of the recovery memos to the Appellant, then in our opinion, neither the recovery is viti­ated nor it makes the prosecution case doubtful. (iv) Discrepancy in the Jewellery - Not Material 49. Thereafter it was taken over by his superior Sri Dinesh Kumar Singh. In the aforesaid circumstances, if Sri Atar Singh could not provide the copies of the recovery memos to the Appellant, then in our opinion, neither the recovery is viti­ated nor it makes the prosecution case doubtful. (iv) Discrepancy in the Jewellery - Not Material 49. There is a discrepancy between the quantity of the jewellery mentioned in the FIR and the quantity of the jewellery recovered. In the recovered articles, the silver jewellery and Rupees are less but golden jewellery is more. But this is natural rather than unusual. The Informant was informed at about 4:30 a.m. in the morning. He came to his house and lodged the FIR immediately at 5.55 a.m. In the FIR, he has mentioned the approximate quantity. He could not possibly say how much was taken away. It is not material. 50. The Informant is one person who could have identified the jewellery but he was also accused in the case. He could not be'produced as a witness. Nevertheless the case of the informant is that the jewellery belongs to him; looting was at his resi­dence. He along with his father were jewel­lers and carrying on saraffa business: the jewellery could be with them. (v) Identification Not Done - Not Mate­rial 51. Some jewellery was pawned and could have been identified by the pawner. It has not been done. But does it effect the prosecution case? 52. In this regard, the relevant facts are as follows: (i) The articles were recovered im­mediately after the incident. The quantity recovered is large. (ii) The fact that there were slips at­tached to it shows that they were taken away from the residence of the Appellant. The slips could not be attached so quickly unless and until they were already there. The informant and his father were do­ing this business. They could be in their house. The Appellant does not do this business. It could not be his. (iii) The informant is claiming these articles. No other person has come forward to claim the jewellery. (iv) The Appellant himself never claimed any article in his statement under section 313 Cr.P.C. on 18.4.2006. It was only subsequently that he changed his stand and claimed a part of the jewellery namely old silver jewellery. It could not be his. (iii) The informant is claiming these articles. No other person has come forward to claim the jewellery. (iv) The Appellant himself never claimed any article in his statement under section 313 Cr.P.C. on 18.4.2006. It was only subsequently that he changed his stand and claimed a part of the jewellery namely old silver jewellery. But his statement cannot be accepted for the reasons: * Nothing has been brought on the record to show that he had means to or could have it; * In case jewellery was his and the police had taken it away then this could only be on 17.12.1994. It is surprising that he neither com­plained about it for 12 years nor claimed it at any time before 4.7.2007; * No claim for gold, new silvery jewellery and rupees has been made. In the facts and circum­stances of the case, if the jewellery was not identified then neither the prosecution case is weakened nor the recovery is vitiated. (vi) Arati Killed - Where Her Body was Found 53. The dead body of the Arati was recovered from the well a kilometre away from the place of incident. This does not create any doubt in the recovery or the case of the prosecution. It only means that she was not killed in the house but was taken away and killed near that well. Thereafter her body dumped into the well. There can be reasons for not killing her in the house. 54. There was no animosity with the child. There cannot be any reasons to kill her except that she might have got up in the night and saw the dead bodies of her mother and grand father. At that time, she might have thought of going to her father at Puranpur. The person, who wanted no noise at that time, took her away from that place, killed her at a distance and then dumped her body in the well. We have rea­sons to believe {see sub-heading: 'Peculiar Aspects - (Crime by Knoivn Person' under next point) that crime was committed by known person. He could have taken her out. Nothing turns upon this circumstance. 55. We hold that: * The dead body of Km. We have rea­sons to believe {see sub-heading: 'Peculiar Aspects - (Crime by Knoivn Person' under next point) that crime was committed by known person. He could have taken her out. Nothing turns upon this circumstance. 55. We hold that: * The dead body of Km. Arati and the articles were recovered at the instance of the Appellant; * This information/ fact is admissi­ble under section 27 of the Evi­dence Act; * The recovered articles were looted from the Informant's house on the date of incident. 3rd POINT: POOJA'S STATEMENT-PART IS BELIEVABLE 56. The Counsel for the Appellant re­ferred to the Zafar case, Zafar v. State of UP, 2003 (46) ACC 376 (SC) and the Indal case, State of UP v. Indal Ram, 2005 (53) ACC 821 and submitted that no reliance should be placed on the statement of Km. Pooja as, * She is a child witness. Her evidence should be scrutinised with due care and caution; * Km. Pooja never informed about the incident to anyone in the last 12 years whereas natural conduct would be to inform her father or any other member from her mother's side; * Her father was also accused in the case. She could be giving tutored statement to save her father. * Sri Vinod Kumar Pandey (PW-1) and Sri Ram Kishore Pandey (PW- (10) have stated that children were sleeping when they entered the house. She could not have seen the incident. * She was not summoned to depose in the case but has came on her own accord; * Her statement was recorded after about 12 years of the incident. She could not have possibly remem­bered it. 57. Km. Pooja is a child witness and her evidence is to be scrutinised with care and caution. Before we consider her state­ment and submissions of the Counsel for the Appellant, it would be proper to refer to some peculiar aspects of the case. Peculiar Aspects Incident Camouflaged as Loot 58. The incident took place in the night intervening 16-17.12.1994. The neigh­bours came to know about it at 2:00-2:30 a.m. in the morning due to the noise. At that time, it was thought that the noise was of the firearms but, in fact, it wasn't. 59. The neighbours gathered at the house of the deceased and found the stack of eucalyptus wood burning. The neigh­bours came to know about it at 2:00-2:30 a.m. in the morning due to the noise. At that time, it was thought that the noise was of the firearms but, in fact, it wasn't. 59. The neighbours gathered at the house of the deceased and found the stack of eucalyptus wood burning. Inside the house, they found the bodies of Smt. Chaina Devi and Shri Krishna burning on the cots. The doctor (who conducted the post-mortem) has opined that due to burning, it cannot be said whether there was any firearm injury or not. However, neither any bullets (or pellets) were found in the bodies nor any firearm shell. There was no indication in the house that fire­arms were used. On the contrary, out side the house where stack of eucalyptus wood was burning, an unused cracker and re­mains of crackers were found (Ex Ka-18). This shows that: * No firearm was used; * The noise was of crackers. 60. If the real purpose was looting then it seems strange that: * The offender would have come with crackers and not firearms; * He would use crackers to make sound instead of using fire arms to threaten the inhabitants of the house. In view of this, we have no reason to doubt that crackers were used for camou­flaging - to give the incident an appearance of looting. (ii) Crime by Known Person 61. The site plan of the housfe of the Informant (Ex Ka-37) is on record. It shows that there is a public pathway on the east­ern side of the house. The entry of the house is also from eastern side. As one en­ters the house, there is a gallery, which is described as verandah in the site plan. It is here that two dead bodies were found burning. On the northern and southern side of this gallery, there are two smalls rooms - meant for animal fodder. After this gallery/verandah there is a courtyard. To­wards the western side of the courtyard are the bed rooms. One of these rooms is shown as the room where deceased Smt. Chandra Devi and the children used to sleep. Kitchen is in the northern side of the courtyard. It is clear from the site plan that the gallery/Varandah, where the dead bodies were found burning, is not a bed­room but a place where guests and outsid­ers were entertained. 62. One of these rooms is shown as the room where deceased Smt. Chandra Devi and the children used to sleep. Kitchen is in the northern side of the courtyard. It is clear from the site plan that the gallery/Varandah, where the dead bodies were found burning, is not a bed­room but a place where guests and outsid­ers were entertained. 62. The neighbours gathered around 2-2:30 a.m. At that time, the dead body of Smt. Chaina Devi and Shri Krishna were burning. They must have been killed earlier but it must be in the night, otherwise peo­ple would have noticed it. 63. Pilibhit is in Tarai area. It was winter night. The doors are closed early. Yet no door was found to be broken. Nothing was found to indicate that there was any forceful entry in the house. This indicates that the person was known to the inhabitants of the house and he entered with their consent. 64. Blood stains have been found on the walls of the Gallery/Verandah where their dead bodies were found burning. No blood stains were found anywhere else. This shows that this is the place where they were killed. Had they been killed anywhere else and then brought to this Gallery/ ve­randah then blood/, marks of dragging would have been found in the courtyard or other rooms. This also shows that the of­fender was being entertained here. This can only be possible if he was a known person. 65. It is also fortified by the fact (as we have held in the preceding heading) thai the incident was camouflaged as loot­ing. No real thief will do that. It has to be a person who knew everything and was a known person. 66. The Informant is one such person but he was not there in the night. He had gone to Puranpur for a marriage: the Ap­pellant himself had gone there to inform him about the incident. The Informant was also charged with the conspiracy in the crime but he has been acquitted by the Trial Court and no appeal has been filed by the State. It is nobody's case that he committed the crime: the case of the prosecution was that he was a conspirator. He was not in the house at the time, when the crime was committed. 67. The dead body of Arti was found in a well a Kilometre away. It is nobody's case that he committed the crime: the case of the prosecution was that he was a conspirator. He was not in the house at the time, when the crime was committed. 67. The dead body of Arti was found in a well a Kilometre away. She must have been killed there and not in the house oth­erwise her dead body could have been thrown in the well next to the house (see subheading (vi) Arti Killed - Where her body was found' under previous point). How could she go out of the house in the night? We have previously explained that she might have gone out there with the person there. She would not go out with a stranger in the night but could only go with a known person. 68. Sri Vinod Kumar Pandey (PW-1) in examination-in-chief, Sri Farooq Husain (PW-8), Sri Ram Kishor Pandey PW-10, and Km. Pooja Verma (C.W-2) in their cross-examination have deposed that the Appel­lant was well known to the family. The statements of these witnesses have been challenged but there is no challenge on the point that the Appellant was well known to the family members. In fact, he is so close so as to go to Puranpur to break the news to the Informant. He could be a person who could have entered the house in the fateful night. (iii) Suspicious - Conduct of the Appel­lant anfi the Circumstances 69. Sri Ram Kishor Pandey (PW-10) reached the spot after the incident. He de­posed that: * The Appellant was not there at that time but came after some time from the northern side. The fact that Appellant came after neighbours had reached the spot is also stated by Sri Vinod Kumar Pandey (PW- 1). * The Appellant without look­ing/inspecting the house said that the miscreants have looted jewel­lery and money. * The appellant entered into north­ern side where a box was kept and said that only some things have been taken from this box otherwise everything is alright. 70. The Appellant could not make the aforesaid statements (mentioned in the pre­ceding paragraphs) without inspecting the entire house. How could he made those statements without inspecting the house? * The appellant entered into north­ern side where a box was kept and said that only some things have been taken from this box otherwise everything is alright. 70. The Appellant could not make the aforesaid statements (mentioned in the pre­ceding paragraphs) without inspecting the entire house. How could he made those statements without inspecting the house? In the cross-examination, no suggestion has been given to PW-10 that: * The statement attributed to the Appellant was incorrect or he is falsely attributing some statement to the Appellant; * There is nothing in the cross-examination to discredit PW-10. This shows suspicious conduct of the Appellant: he knew before hand what had been looted. 71. Crackers were plated in the eucalyptus wooden stack at one side and the fire was lit from the other side. The crackers started exploding only when fire reached them. This might have been done so that the miscreant might have time to remove himself safely from the spot. One unused cracker was found at the place of the incident. A similar cracker was found at the residence of the Appellant. The fact that both of them are crackers is fortified by the report of Vidhi Vigyan Prayogshala (Ext. Ka-41). Diwali was already over. There was no justification for the Appellant to keep cracker in his house in the month of De­cember. 72. It is in the light of the aforesaid peculiar aspect of this case that the state­ment of Km. Pooja is to be considered. Km. Pooja - Statement Partly Reliable 73. In the cases cited by the Counsel for the Appellant, the Court did not believe the evidence of the child witness. The rea­sons are also indicated in the reports: (i) In the Zafar case, 2003 (46) ACC 376 (SC), the Court did not accept the statement of the child witness for the reasons that: * Police was trying to present as if the child witness was examined on the day of incident whereas this was not correct; * There were doubting features and other infirmities. (ii) In the Indal case, 2005 (53) ACC 821, the Court refuse to accept the evidence of the child witness for the reasons that: * The child witness had earlier given statement under section 164 Cr.P.C. In the trial, he denied making such statement; * It arose out of Government appeal. The Trial Court had acquitted the accused. (ii) In the Indal case, 2005 (53) ACC 821, the Court refuse to accept the evidence of the child witness for the reasons that: * The child witness had earlier given statement under section 164 Cr.P.C. In the trial, he denied making such statement; * It arose out of Government appeal. The Trial Court had acquitted the accused. These decisions are not applicable to the facts of this case. 74. It is correct that: * Km. Pooja was about four to four and half years at the time of the incident; and * She gave evidence after about 12 years of the incident; and * She never told anyone about it; and * She could be tutored as her father was also accused in the case. These are valid submissions. But can any part of her statement be be­lieved? Is her entire statement un­believable? 75. In the case here: (i) Km. Pooja was four - four and half years old. Even then the entire ex­perience must have beer traumatic for her. Her mother, grandfather, elder sister were killed and the house looted. Her mother and grandfather were burnt inside the house; elder sister dumped in a well. No one can forget such an incident; it would be implanted-in the memory forever, (ii) Km. Pooja never told anyone about this incident. Perhaps, (a) Because his father was also ac­cused; or (b) She might have a feeling that her father was also involved; or (c) It could be the fear instilled in her mind that night. (iii) She does not appear to be tutored witness. If she was tutored then it was very easy for her to depose that the Appellant killed her grandfather and took away her el­der sister. She. did not depose about it. (iv) It is not material if Km. Pooja was not summoned by the Court. It was trial for, (a) Murder of her grandfather, mother, and elder sister; and (b) Her father and his close acquain­tance, well known to the family, were on trial. It was natural for her to be present in the Court. (c) The record shows that: * In the Court, she was called as Court witness. This is recorded be­fore her statement. It was natural for her to be present in the Court. (c) The record shows that: * In the Court, she was called as Court witness. This is recorded be­fore her statement. She gave evi­dence at the instance of the Court; * The Court was satisfied that the witness is able to understand the questions and also able to give ra­tional answers to them; and * The witness recognised the Appel­lant as Pappu uncle (Pappu was pet name of the Appellant); * Nothing turns upon the fact that Km. Pooja came on her own ac­cord. 76. Km. Pooja stated that she saw her mother being killed. However, PW-1 and PW-10 have stated that children were sleeping and they brought them out. If Pooja saw her mother being killed then it is difficult for her to go off to sleep. Perhaps she never saw her mother being killed. This part of her statement does not appear to be correct. Does it mean her entire statement is to be rejected? 77. We don't think that her entire statement can be rejected. She did say that the Appellant came to the house in the night. He was well known to family. A child of four-four and half years can easily rscognise such a person. There is neither any circumstances nor anything in the cross-examination to disbelieve this part of her statement: no suggestion in this regard has been given to her. 78. The part of the statement of Km. Pooja that is believed by us is consistent with the circumstances and other evidence of the case: * The Appellant was known to eve­ryone in the family. He could not have started killing the person as soon as he entered the house. * Km. Arti and Km. Pooja may be awake at the time when the Appel­lant came in then went off to sleep as his presence could not be a matter of alarm, * Km. Arti got up later and paid the price with her life. * It is also consistent with the state­ment of PW-1 and PW-10. 4th POINT: THE APPELLANT IS GUILTY 79. Section 114 of the Evidence Act provides that a Court may presume exis­tence of certain facts. Its Illustration (a) states that a Court may presumes a person in possession of stolen goods soon after the theft is a thief unless he can account for his possession. 4th POINT: THE APPELLANT IS GUILTY 79. Section 114 of the Evidence Act provides that a Court may presume exis­tence of certain facts. Its Illustration (a) states that a Court may presumes a person in possession of stolen goods soon after the theft is a thief unless he can account for his possession. The Appellant was in posses­sion of stolen goods soon after the theft but has he accounted for his possession? 80. Large quantity of jewellery has been recovered at the instance of the Ap­pellant. He was in possession of the same. He has claimed the old silver jewellery to be his in his statement under section 313 on 4.7.2007 but there is no explanation so far as gold, and new silver jewellery is con­cerned. 81. The statement given by the Appel­lant on 4.7.2007 does not inspire confidence as: * There is neither any evidence that he had means to own the old silver jewellery, nor any such suggestion has been put to anyone; * In his earlier statement under sec­tion 313 on 18.4.2005 he has men­tioned that neither he had the arti­cles nor they had been recovered from him; * In case it was his jewellery then why he took 12 years to complain. He could have said it at the same time i.e., on 17.12.1994. He could have given this suggestion to the witness. 82. In our opinion, the Appellant is not able to account for the possession of the goods. In view of Illustration (a) of section 114 of the Evidence Act, a presumption of theft and dishonestly keeping stolen prop­erty (section 411 IPC) can be raised against him. Should the presumption of commit­ting the crime of looting, (voluntarily causing hurt in committing robbery), mur­der, kidnapping and destroying evidence be also raised? 83. The loot, murder, burning of dead bodies, destroying evidence, taking away Arti and then killing her are committed in the same transaction; they are part of the same act. In these circumstances, it would be proper to draw the inference that the Appel­lant committed these other offences too. 83. The loot, murder, burning of dead bodies, destroying evidence, taking away Arti and then killing her are committed in the same transaction; they are part of the same act. In these circumstances, it would be proper to draw the inference that the Appel­lant committed these other offences too. It has been held (see below for the citation) Erabhadrappa v. State of Karnataka, AIR 1983 SC 446 (Para 13) = 1983 (20) ACC 40 (Sum.); Gulab Chandra v. State ofMP, 1995 SCC (Cri) 552 (Para 4), Mukund v. State of MP, 1997 SCC (Cri) 799 (para 9) = 1997 (34) ACC 20 (SC); Ronny v. State of Maliarashtm, 1998 CrLJ 1638 (Para 31) = 1997 (Soppl.) ACC 312 (SC); Geeja Canda Samaia v. State of Karna­taka, (2007) 3 SCC (Cri) 135 (Para 28) = 2007 (54) AIC 217 (SC) and Sanjay alias Kaka v. NCT of Delhi, 2001 (42) ACC 533 (SC)' that such presumption can be drawn. 84. In our opinion, the Appellant is guilty of: * Looting as well as keeping the sto­len property; * Killing Shri Krishna and Smt. Chaina Devi; * Taking away Km. Arti from the house then killing her near the well where her dead body was found; and Destroying the evidence by burn­ing the dead bodies. 85. Our conclusion regarding guilt of the Appellant is fortified by the part of the statement of Km. Pooja accepted by us that the Appellant had come to their house on the fateful night. We would like to add here that our finding regarding guilt of the Ap­pellant is independent of Km. Pooja's statement. Even if her statement is disre­garded in totality, case against the Appel­lant is proved beyond reasonable doubt. 5th POINT: TRIAL NOT VITIATED. 86. The Counsel for the Appellant cited the decisions (see below), Shaikh Maqsood v. State of Maharastra, 2009-TLPRE-0-627, 2009 (TLS) 48881; Asarfi lal v. State of Assam, 2008 AIOL 839 = 2008 (3) Crimes (SC) 112 ; Ranvir Yadav v. State of Bi­har, 2009 AIOL 655 = 2009 AIR (SCW) 3475 and submit­ted that the trial is vitiated as section 313 CrPC has been violated. According to him, Atar Singh was the man, who had conducted the investigation and prepared the recovery memo. Only that part of his statement, which re­ferred to the disclosure and recov­ery at the instance of the Appellant, ought to have been put to the Ap­pellant. According to him, Atar Singh was the man, who had conducted the investigation and prepared the recovery memo. Only that part of his statement, which re­ferred to the disclosure and recov­ery at the instance of the Appellant, ought to have been put to the Ap­pellant. And The entire evidence should not have put under section 313 Cr.P.C.: * The circumstances that dead body of Km. Pooja was recovered at the instance of the Appellant was never put to the Appellant; * Prejudice has been caused to the Appellant. 87. It has been held (see below for the citations), Harendra Nath Chakraborthy v. State of West Bengal, (2009) 1 SCC (Crl)865 (Para 20 and 21) = 2009 (76) AIC 153 (SC) = 2009 (65) ACC 152 (SC); State of Punjab v. Swama Singh, (2005) 6 SCC 101 (Para-15) that even if there is violation of section 313 Cr.P.C., then the trial is not viti­ated unless prejudice is caused to the ac­cused. Let's consider if there is any violation of section 313 Cr.P.C. or not. And if is there, then whether any prejudice has been caused. Circumstances Put - No Prejudice 88. Before statement of Sri Atar Singh, the recovery memo had already been proved and exhibited. The evidence regard­ing recovery at the instance of the Appel­lant had come. The statement of the Appel­lant under section 313 Cr.P.C. was recorded three different times. It was firstly recorded on 18.4.2006. At this time, question no. 7 was specific to this effect that in the evi­dence it has come that recovery of articles have been made at the instance of the Ap­pellant. So the circumstance relating to re­covery of articles at the instance of the Ap­pellant has been put. He has given his an­swer to it. No objection can be taken on this account, 89. In any event, after the statement of Sri Atar Singh, the statement of the Appel­lant, under section 313 Cr.P.C., was again recorded on 4.7.2007. He was questioned about the entire evidence of Sri Atar Singh. In answer to this, he mentioned regarding a part of recovery relating to old silver jewel­lery. The statement of Sri Atar Singh was so recorded in front of Appellant. He was aware about recovery part in the statement of Sri Atar Singh. The Appellant under­stood that he has to answer regarding re­covery. In fact, he did answer about part of the Articles. The statement of Sri Atar Singh was so recorded in front of Appellant. He was aware about recovery part in the statement of Sri Atar Singh. The Appellant under­stood that he has to answer regarding re­covery. In fact, he did answer about part of the Articles. Section 313 Cr.P.C. is not vio­lated. In any case, no prejudice has been caused to him. 90. There is no direct question asking the Appellant about the recovery of dead body of Km. Arti being recovered at his instance. Nevertheless: * The circumstances - that the Ap­pellant had kidnapped, killed and threw her dead body in the well; and recovery memo (Ex Ka-3) re­garding dead body of Km. Arti - were mentioned in questions 4, 5, 9, and 10 while recording his statement under section 311 on 18.4.2006. He has answered it. He said that they were either incorrect or he has no knowledge; * The entire statement of Sri Atar Singh was also put to him under section 313 Cr.P.C. on 4.7.2007; * He was also asked if he has to say anything. If he wanted to say anything about re­covery of dead body of Km. Arti, he could have said it while answering any of the aforesaid questions. No prejudice has been caused to him. 91. In any event, the presumption of guilt is being raised as stolen articles were found in his possession soon after the inci­dent and he has not been able to account for them. The presumption is not raised because the dead body of Km. Arti was recovered at his instance. Nothing turns upon this fact even if it is ignored. 92. In our opinion there is no violation of section 313. In any case, the trial is not vitiated as no prejudice has been caused to him. 6th POINT: DEATH PENALTY - NOT APPROPRIATE. 93. The Informant - three members of whose family have been killed - was also charged with conspiracy to commit the crime alongwith the Appellant. It has not been proved. He has been acquitted. 94. The circumstances of the case in­dicate that some more persons might have been involved in the crime but it has re­mained hidden in the chest. There is much more in the case than what has come in the light: it has many secrets that are not dis­closed. And except for a few, they will al­ways remain hidden. 95. 94. The circumstances of the case in­dicate that some more persons might have been involved in the crime but it has re­mained hidden in the chest. There is much more in the case than what has come in the light: it has many secrets that are not dis­closed. And except for a few, they will al­ways remain hidden. 95. Considering all aspects of the case, we do not think that it is a appropriate case in which death penalty should be awarded or any fine should be imposed. The details of the sentence are mentioned in the last paragraph. CONCLUSIONS 96. Our conclusions are as follows: (a) Recovery memo, under section 27 of the Evidence Act, is not required to be signed by the accused though a copy of the same should be supplied to him. Failure to do so, may - depending on the circum­stances - raise an inference against it. (b) It is not mandatory to prepare dis­closure memo under section 27 of the Evidence Act though it is better to do so. (c) The evidence of a prosecution wit­ness cannot be rejected in totality merely because he has turned hostile or the prosecution has cho­sen to treat him as hostile and cross-examined him. His evidence is neither effaced nor washed off from the record. It can be accepted to the extent his version is found dependable. (d) Neither the recovery memos. nor the recovery is illegal: * The dead body of Km, Arti and the articles were recovered at the in­stance of the Appellant; * The aforesaid information/fact is admissible under section 27 of the Evidence Act; * The recovered articles were looted from the Informant's house on the date of the incident. (e) The Appellant is not able to ac­count for the possession of the goods. In view of Illustration (a) of section 114 of the Evidence Act, there is presumption of theft and receiving stolen property against him. (f) The loot, murder, burning of dead bodies, destroying evidence, taking away Arti and then killing her are committed in the same transaction; they are part of the same act. In these circumstances, it would be proper to draw presumption that the Appellant committed the other offences too. (g) There is no violation of section 313. In any case the trial is not vitiated as no prejudice has been caused to him. In these circumstances, it would be proper to draw presumption that the Appellant committed the other offences too. (g) There is no violation of section 313. In any case the trial is not vitiated as no prejudice has been caused to him. (h) The Appellant is guilty of the of­fences charged with. 97. In view of our conclusions, the conviction in ST No. 596 of 1996 decided on 28.9.2007 is upheld. However, reference is not accepted and the sentences awarded to the Appellant are modified as follows: (i) Life imprisonment under section 302 IPC; (ii) Ten years rigorous imprisonment under section 364 IPC; (iii) Three years rigorous imprisonment under section 201IFC. (iv) One year rigorous imprisonment under section 394 IPC; (v) One year rigorous imprisonment under section 411 IPC. All the sentences will run concurrently. The Appellant is already in custody. He shall be detained to serve out the sentence.