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2011 DIGILAW 1193 (KER)

Saifudhin v. State

2011-12-14

R.BASANT, V.CHITAMBARESH

body2011
JUDGMENT : (i) Does the evidence of recovery of M.Os.2 and 3 (of gold ornaments allegedly of the deceased) under Section 27 of the Evidence Act inspire confidence? (ii) Is it safe to found a verdict of guilty, conviction and sentence under Section 302 I.P.C. on such evidence of recovery alone? (iii) Are the accused entitled for the benefit of doubt in the facts and circumstances of the case? These questions are raised before us by Advocates E.D. George and M.R. Jayaprasad, whose services have been made available to the appellants as legal aid counsel to argue their appeals. 2. The appellants have been found guilty, convicted and sentenced under Sections 302 and 392 I.P.C. They face a sentence of imprisonment for life and Rigorous Imprisonment for a period of 7 years under those sections respectively. Sentences of fine and default sentences have also been imposed. 3. The prosecution alleged that on the night of 03/11/2001, the appellants had gained access into the house of the deceased, a housemaid, aged above 80 years, when no other person was available in the house. She was smothered and strangulated. She died and the appellants decamped with M.Os 2 and 3 gold ornaments, which the deceased was allegedly wearing at the time when she was killed. The prosecution alleged that the appellants have thereby committed the offences punishable under Sections 392 and 302 r/w 34 I.P.C. 4. Investigation commenced with Ext.P1 F.I statement lodged by PW1, a neighbour. He found the deceased lying dead inside her house on the morning of 04.11.2001. In fact, Manoj a relative of the daughter in law of the deceased had come to the house of the deceased on that morning and it was he, who allegedly perceived that the deceased was dead. Investigation was initially conducted by PW14. The same was completed by C.W.35 by filing a final report/charge sheet before court. The learned Magistrate after observing all legal formalities committed the case to the Court of Session and the Court of Session took cognizance of the offences. The appellants/accused denied the charges framed against them and thereupon the prosecution was directed to adduce evidence in support of its case. The prosecution examined PWs.1 to 16 and proved Exts.P1 to P15. M.Os.1 to 5 were also marked. 5. The appellants/accused denied the charges framed against them and thereupon the prosecution was directed to adduce evidence in support of its case. The prosecution examined PWs.1 to 16 and proved Exts.P1 to P15. M.Os.1 to 5 were also marked. 5. The accused, in the course of cross examination and when examined under Section 313 Cr.P.C. denied all circumstances which appeared in evidence against them and which were put to them. They took up a defence of total denial. According to them, they have nothing to do with the death of the deceased. They did not examine any defence witnesses. Ext.D1 case diary contradiction was marked when PW10 was in the witness stand. 6. The learned Sessions Judge, on an anxious evaluation of all the relevant inputs, came to the conclusion that the appellants, who allegedly had sold M.Os.2 and 3 to PW9/PW12 shortly after the occurrence, can safely be assumed and presumed to have committed the offence punishable under Sections 392 and 302 I.P.C. Accordingly the learned Sessions judge proceeded to pass the impugned judgment. 7. Before us, the learned counsel for the appellants and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellants contend that the prosecution has not succeeded in proving any circumstance to connect the appellants with the crime. At any rate, the circumstances relied on by the prosecution are insufficient to justify a safe inference of guilt against the appellants under Sections 302 or 392 I.P.C. it is contended. 8. An appellate judgment is and must essentially be read as a continuation of the judgment of the trial court. In that view of the matter, we deem it unnecessary to re-narrate the oral and documentary evidence relied on by both sides. Suffice it to say that we have been taken in detail through the evidence of PWs.1 to 16 and the contents of Exts.P1 to P15. We have also been taken through the charges framed by the learned Sessions Judge and the answers given by the accused in the course of their examination under Section 313 Cr.P.C. We shall refer to specific materials wherever necessary in the course of the discussions that follow. 9. The case rests entirely on circumstantial evidence. About the law relating to the burden of proof in a case resting entirely on circumstantial evidence, it is unnecessary for us to advert to precedents. 9. The case rests entirely on circumstantial evidence. About the law relating to the burden of proof in a case resting entirely on circumstantial evidence, it is unnecessary for us to advert to precedents. The law on the point is too well settled to justify or warrant reference to any specific precedents. We need only remind ourselves about the law. 10. The burden rests entirely on the prosecution to prove all circumstances relied on by it to establish the charge against the indictee. Such circumstances have to be established firmly and satisfactorily. The circumstances must constitute strong links in a chain of circumstances and the chain must point unclinchingly and unerringly to the guilt of the accused - to the exclusion of every reasonable hypothesis of innocence of the indictees. 11. Having thus reminded ourselves about the law, we shall now attempt to enumerate the various circumstances relied on by the prosecution. They are: (1) The deceased met with a homicidal death. (2) No other person is shown to have come to the house of the deceased on the crucial night (night of 03.11.2001). (3) M.Os. 2 and 3 ornaments belong to her and they were found missing from the dead body. (4) The appellants while in custody furnished information to PW16 in September, 2002 on the basis of which PW16 recovered M.Os 2 and 3 from PWs.9 and 12. (5) The evidence of PWs.8, 9 and 12 that M.Os.2 and 3 were sold by the appellants to them some time in November, 2001. (6) The absence of any explanation coming forth from the appellants about the recovery of the ornaments and the evidence of PWs.8, 9 and 12. 12. Circumstance No.1 is proved and there virtually is no dispute about that circumstance. Coming to circumstance No.2, there is absolutely no evidence to indicate that any particular (specific) person had gained access into the house of the deceased on that night. However, evidence indicates that some (unknown) person/persons may have gained access into the house on that night. There is absolutely nothing to indicate whether the ones who gained access into the house were the accused or any other person. However, evidence indicates that some (unknown) person/persons may have gained access into the house on that night. There is absolutely nothing to indicate whether the ones who gained access into the house were the accused or any other person. To this extent, it has to be held that while it is indicated that some one has gained access into the house, there is no specific other circumstance in evidence to indicate that it was the accused, who gained access into the house. 13. Circumstance No.1 is thus proved. Circumstance No.2 is not satisfactorily established, though it is indicated that some unspecified person must have gained access into the house on that night. 14. Circumstance Nos.2 to 6 deserve to be considered together as they are integrally connected to each other. We shall hence undertake a common discussion so far as circumstances 2 to 6 are concerned. 15. The learned counsel for the appellants submit that the appellants come from the economically weaker sections of society. They are illiterate and uneducated. They have not been able to engage a counsel of their own. Services of legal aid counsel were made available to the appellants before the court below and before this Court. The counsel relied on these inputs to contend that crucial significance cannot be attached to inadequacies in the conduct of the trial on the side of the appellants. Many questions which ought to have been asked have not been asked to the witnesses. The defence has not been properly moulded. But these cannot persuade the Court not to anxiously consider whether these circumstances have been proved and if proved, they constitute sufficient material to infer guilt of the appellants, contend counsel anxiously. We have no hesitation to agree with the learned counsel. We have gone through the entire evidence in this case. That the appellants were not blessed with highly competent legal assistance is evident from the manner in which the case has been conducted. But, that cannot certainly deliver any undeserved advantage to the appellants. Whether defended or not, whether the defence is properly conducted or not, the burden rests on the court to ensure that a fair trial takes place and the court must consider all the relevant materials to come to appropriate conclusions about the complicity of the appellants. But, that cannot certainly deliver any undeserved advantage to the appellants. Whether defended or not, whether the defence is properly conducted or not, the burden rests on the court to ensure that a fair trial takes place and the court must consider all the relevant materials to come to appropriate conclusions about the complicity of the appellants. The appellants need not hence worry at all about the alleged inadequacies in the conduct of the trial provided, the appellants are now able to show before Court that the circumstances have not been proved satisfactorily and the proved circumstances cannot lead to the guilt of the appellants. 16. Secondly by way of opening remarks the learned counsel for the appellants want to highlight the inherent risk involved in accepting evidence of information furnished under Section 27 of the Evidence Act, which allegedly led to discovery of facts. The learned counsel for the appellants contend that in this case absolutely no other evidence has been adduced by the prosecution to establish the alleged complicity of the appellants except the evidence of recovery under Section 27 of the Evidence Act. The evidence of recovery is inherently a weak piece of evidence; considerable care and caution is necessary before the court accepts the evidence of recovery under Section 27 of the Evidence Act; given the unsatisfactory track record of the Indian police, no court would be justified in placing implicit reliance on such evidence of recovery under Section 27, contend the learned counsel for the appellants. They complete arguments on this aspect by asserting that the meagre evidence about recovery under Section 27 cannot, at any rate, be used to found any crucial finding of fact against an indictee facing prosecution for such serious offences like the ones in this case. 17. The learned Public Prosecutor on the other hand contends that the importance of evidence under Section 27 of the Evidence Act cannot be lightly wished away by pressing into service such theories of earlier misuse of the provisions of Section 27 by the Indian police in different circumstances. The learned Public Prosecutor contends that this Court has to anxiously consider whether the information furnished under Section 27 which had led to discovery of facts can safely be accepted. The evidence of the police officials also requires a fair, reasonable and natural appreciation. The learned Public Prosecutor contends that this Court has to anxiously consider whether the information furnished under Section 27 which had led to discovery of facts can safely be accepted. The evidence of the police officials also requires a fair, reasonable and natural appreciation. The system will not be justified in approaching of testimony of all Investigating Officers with undeserved doubt, suspicion and distrust. If the evidence of PW16 in this case is appreciated fairly, naturally and reasonably, there is no reason intrinsically or on broad probabilities to adopt such an attitude of doubt, suspicion and distrust against the evidence of recovery. This court must come to a conclusion on the basis of the totality of inputs that the evidence of recovery can safely be relied on, argues the learned Prosecutor. 18. The learned Public Prosecutor further contends that it is not the law at all that a verdict of guilty cannot be founded on a satisfactory piece of evidence admitted under Section 27 of the Evidence Act, which inspires the confidence of the court. If the evidence on record is sufficiently inspiring, the mere fact that such evidence has entered the court records through the door of Section 27 of the Evidence Act is by itself no reason to discard such testimony or not to use it to found any verdict of guilty for serious offences. 19. On these aspects we find absolutely no difficulty. Sections 24 to 26 of the Indian Evidence Act mandate that an approach with care and caution must be adopted by the court while considering evidence of statements made by accused persons in custody to police officials. There can be a lot of discussions as to whether such inherent distrust of the police force by the system is justified or not. It can certainly be argued that it is anachronistic that in the independent Indian republic such an attitude of distrust must pervade among all other members of the system of administration of justice against the police force. 20. The position under law is indisputable. Law does not approve admission of confessions made before police officers by persons in custody. Law's attitude on this aspect is evident from Sections 24 to 26 of the Evidence Act. Section 27 of the Evidence Act, which starts with the words "Provided that" is an exception to Section 24 to 26 of the Evidence Act. Law does not approve admission of confessions made before police officers by persons in custody. Law's attitude on this aspect is evident from Sections 24 to 26 of the Evidence Act. Section 27 of the Evidence Act, which starts with the words "Provided that" is an exception to Section 24 to 26 of the Evidence Act. It accepts the principle of "confirmation by subsequent event" and makes such information given by a person accused of an offence in the custody of the police officer admissible if a fact is discovered in consequence of the information, provided, the information relates distinctly to the fact thereby discovered. It is unnecessary to advert to precedents: It must be shown by the prosecution that the information distinctly relates to the fact discovered in order to claim admissibility under Section 27. 21. The evidence of such information and discovery in consequence of the information will certainly have to be approached with great care and caution. Such is the gross misuse of this safety valve provision under the Indian Evidence Act by the police that a trained and experienced adjudicator is always very cautious and careful before such information admitted in evidence is accepted. There is a long distance between admissibility and acceptability and that entire distance will have to be traversed by an adjudicator armed with the wealth of his prudence, knowledge, experience and sagacity. If evidence of recovery under Section 27 is inspiring, that can certainly go a long way to help the Court in the adjudication of guilt. The question is whether such discovery inspires confidence; to decide which, a Court will have to take note of all the attendant circumstances. 22. We shall now try to approach the evidence of information allegedly furnished by the accused, the acceptability of such information and the extent to which such consequent discovery can be made use of by the Court in coming to appropriate conclusion about the culpability of the appellants. 23. It is first of all argued by the prosecution that M.Os.2 and 3 are ornaments that belonged to the deceased. This aspect is seriously contested by the accused. According to the appellants/accused, there is no satisfactory evidence to indicate that M.Os.2 and 3 are ornaments belonging to the deceased. 23. It is first of all argued by the prosecution that M.Os.2 and 3 are ornaments that belonged to the deceased. This aspect is seriously contested by the accused. According to the appellants/accused, there is no satisfactory evidence to indicate that M.Os.2 and 3 are ornaments belonging to the deceased. There is nothing to show that such ornaments were missing at the time when the dead body was found in her house on 04.11.2001, contend counsel. 24. M.O.2 series consists of one gold chain weighing 13 grams. It also includes two gold bangles each weighing 8 grams. M.03 series is two ear rings weighing in all 3.500 grams. According to the prosecution, these ornaments belonged to the deceased and she was using the same. It is their further case that these were found missing when the dead body of the deceased was found on 04.11.2001 at her house. 25. First of all reliance is placed on Ext.P1 to contend that it was not promptly reported to the police in Ext.P1 by PW1 that there was any conspicuous absence of ornaments worn by the deceased when her dead body was found. PW1 is of course not a police official. He may not have the acumen to perceive and look for the importance of availability of ornaments on a deceased person. But all the same, one cannot lose sight of the fact that in Ext.P1, PW1 had not stated that deceased used to wear any ornaments or that such ornaments were found missing when her dead body was found. 26. We have the evidence of PWs.5 and 7 on the question as to whether M.Os.2 and 3 were ornaments of the deceased. PW5 is the lady at whose house the deceased was employed as a maidservant. She identified M.02 as the gold chain and two bangles worn by the deceased. Evidence of PW5 suggests that the gold chain used to be worn by her for a period of about 10 years; whereas the gold bangles used to be worn by her for the past about two years. PW7 is the daughter in law of the deceased. Her husband (the son of the deceased) had expired earlier and the deceased was residing with PW7 and her two children. According to PW7, M.O.2 series gold chain and the bangles used to be worn by the deceased. PW7 is the daughter in law of the deceased. Her husband (the son of the deceased) had expired earlier and the deceased was residing with PW7 and her two children. According to PW7, M.O.2 series gold chain and the bangles used to be worn by the deceased. However, according to her, the two gold bangles were purchased only about two weeks prior to the date of her death. The learned counsel for the appellants bring to the notice of the court that it would, in these circumstances, not be safe to attach crucial significance and importance to the evidence of PWs.5 and 7 about the gold ornaments worn by the deceased. Particular reliance is placed on the incongruity about the age of the gold bangles which the deceased was wearing. So far as M.O.3 series ear studs are concerned, PW5 did not identify them at all, whereas PW7 stated that, that gold ear ring belongs to her daughter and the deceased used to wear the same. Thus though the evidence of PWs.5 and 7 is unanimous about the gold chain in M.02 series being used by the deceased for a long period of time, there is no unanimity about the identity of the gold bangles (part of M.02 series) or ear rings (M.O3 series). 27. In a case like the instant one, it is important that the Investigating Officer ascertains the nature of the gold ornaments if any lost/thieved from the possession of the deceased. We note that there is nothing to indicate that either PW5 or PW7 was questioned by the Investigating Officer immediately after the crime to ascertain the precise nature of the ornaments that were lost/thieved from the possession of the deceased. We are looking for inspiration for the evidence of recovery and we have no hesitation to agree that PWs 5 and 7, before the recovery of the ornaments, had explained to the Investigating Officer the details of the ornaments lost/thieved. Such evidence would have considerably enhanced the worth and value of evidence of recovery effected under Section 27 long after the date of the alleged offence. 28. It will not be inapposite straightaway to note that PW1 or PW3, the local neighbours, were not even asked to identify M.Os.2 and 3 even at the stage of trial. Such evidence would have considerably enhanced the worth and value of evidence of recovery effected under Section 27 long after the date of the alleged offence. 28. It will not be inapposite straightaway to note that PW1 or PW3, the local neighbours, were not even asked to identify M.Os.2 and 3 even at the stage of trial. PWs.1 and 3 normally should be persons who have acquaintance with the deceased and the want of inquisitiveness to ascertain from them the details of the ornaments lost/thieved or the want of any attempt to get recovered articles identified by PWs.1 and 3 is certainly unsatisfactory. We do note that PWs.1, 3, 5 or 7 were not questioned specifically about the nature of the ornaments lost and a description of the articles lost/thieved was not ascertained from any of these witnesses prior to the recovery of the gold ornaments. A discerning mind cannot omit to note the significance or importance of want of serious efforts in that direction by the Investigating Officer. 29. The theft/murder occurred on the night of 03.11.2001. Investigation continued with no clue about the persons who could have committed the crime. It is at this juncture that the prosecution was able to accidentally tread on accused 1 and 2. It is the case of the prosecution that accused 1 and 2, one of whom (AT) was involved in a theft offence and another (A2), who was arrested under suspicious circumstances, happened to come into custody of PW.16. PW.16 was not investigating into this crime. He is a police officer of a police station in the neighbouring district. In the course of investigation of different other crimes, he allegedly had accused 1 and 2 in his custody and when he questioned them, they came out with a confession statement totally unconnected with the cases which he was investigating. The learned counsel for the appellants contend that this theory of confession inherently deserves to be approached with great amount of care and caution. If the Investigating Officer had any clues about the involvement of the accused in this crime and they were grilled about their role in the commission of such crime, probably a voluntary confession by an accused unable to respond to the various questions posed might appear to be probable and natural. If the Investigating Officer had any clues about the involvement of the accused in this crime and they were grilled about their role in the commission of such crime, probably a voluntary confession by an accused unable to respond to the various questions posed might appear to be probable and natural. But here was a case where PW16 had no clue at all even about the registration of the crime in the instant case. He wants the court to believe that when he questioned both the accused unconnected with the investigation in this case they came out with confession statements about their involvement in the instant crime. Truth can be stranger than fiction. But that certainly is not the yardstick with which a court would assess the probabilities in a case like the instant one. 30. When and how did accused 1 and 2 come into the custody of PW16? We shall advert to this aspect next. According to PW16, the 1st accused was arrested in another crime. He was in judicial custody. Then PW16 applied and got custody of the 1st accused for investigation in this case. We are unable to understand how PW16 could have got the 1st accused into his custody on 10.09.2002 for investigation in connection with "this case". He was not investigating this case and therefore that version must have been explained. We find no such explanation coming forth from PW16. It is, of course, true that the accused did not also pointedly cross examine PW16 on this aspect. That inadequacy notwithstanding, we do not get a satisfactory explanation as to why and how PW16 obtained the custody of the 1st accused on 10.09.2002 for investigation into this case. The order granting custody by the court is not produced. 31. The learned counsel for the appellants further point out that accused 1 and 2 have been in the custody of PW16 admittedly from 10.09.2002 to 17.09.2002. The orders by which the court gave custody to PW16 is not produced. Counsel argue that this long period of custody from 10.09.2001 to 17.09.2001 before recovery was effected, must inherently generate doubts about the voluntariness of the confession and the alleged recovery of M.Os.2 and 3 from PWs.9 and 12. We do note that the appellants even admittedly had remained for long in the custody of PW16 - from 10.09.2002, before the recovery was effected on 17.09.2002. We do note that the appellants even admittedly had remained for long in the custody of PW16 - from 10.09.2002, before the recovery was effected on 17.09.2002. Pointed questions thrown at PW16 about the date on which the confession statement was recorded significantly did not lead to any productive or firm answers, point out counsel. We take note of that circumstance also. 32. Stranger is the circumstance so far as the 2nd accused is concerned. The 2nd accused was arrested in a crime registered in respect of suspicious arrest. He was also handed over to the custody of PW.16 for investigation "in this case", it is asserted. We are at a loss to understand the specific circumstances under which PW.16 got the 1st and 2nd accused into custody. The order granting custody is not produced. We pointedly directed the Prosecutor to get explanation for this. No explanation has been offered, except that PW.16, while he was questioning the accused in connection with some other case, got information in respect of this crime also. Suffice it to say that we are not too convinced about the circumstances under which PW.16 obtained custody of both the accused for interrogation in connection with this crime. Did PW16 get information about this crime after he obtained accused 1 and 2 into custody from court? Or did have any information earlier which persuaded him to apply for and get custody of the accused for investigation in this case? On these aspects, we find no convincing answers forthcoming. 33. The learned counsel for the appellants contend that a perusal of Exts.P4(a), P7(a) and P8(a) information allegedly obtained from the accused (Exts.P4(a) and P7(a) from the 1st accused and Exts.P8(a) from the 2nd accused) must convince the court that all the safeguards under Section 27 of the Evidence Act have been thrown to the winds by the Investigating Officer. Exts.P4(a), P7(a) and P8(a) contain (include) information which is clearly inadmissible under Section 27 as the information do not relate distinctly to the fact discovered. Omnibus confession is attempted to be imported into evidence unjustifiably by inclusion of Exts.P4(a), P7(a) and P8(a) in Exts.P4, P7 and P8 seizure mahazars. Exts.P4(a), P7(a) and P8(a) contain (include) information which is clearly inadmissible under Section 27 as the information do not relate distinctly to the fact discovered. Omnibus confession is attempted to be imported into evidence unjustifiably by inclusion of Exts.P4(a), P7(a) and P8(a) in Exts.P4, P7 and P8 seizure mahazars. We are disappointed to note that PW16 was permitted by the court also to reproduce Exts.P4(a), P7(a) and P8(a) in substantive evidence on oath before court grossly disregarding the well established rules regarding admission of information under Section 27 of the Evidence Act. 34. What we intend to note is that from Exts.P4(a), P7(a) and P8(a), a substantial portion has to be excluded and only the truncated information which falls within the contours of Section 27 of the Evidence Act, alone can be looked into by the court. The omnibus introduction of inadmissible portions into evidence, is of course objectionable. We make no secret of our dissatisfaction against such omnibus introduction of the confession statements. We find merit in the apprehension that the learned Sessions Judge may have been influenced by such material illegally admitted into evidence. We are satisfied that the inadmissible portion has to be excluded carefully and only the balance can be considered as lawful material against the accused. 35. On the basis of such information furnished by the appellants, PW16 allegedly proceeded to PWs 9 and 12 along with both the accused persons. He allegedly recovered the gold chain in M.O2 series and the earrings (M.03 series) from the jewellery of PW9. The evidence clearly shows that identical information was furnished by accused 1 and 2. This is evident from a perusal of Exts.P4(a), P7(a) and P8(a). The information therein is not complete. Further conduct of the accused is necessary for the Investigating Officer to locate PWs 9 and 12. We do not have satisfactory material to specifically indicate which of the two appellants had furnished relevant further information that led PW16 to PW9 and PW12. If both the accused had together done the same, that cannot obviously be reckoned as relevant under Section 27, nor can it be reckoned as relevant against either accused even under Section 8 of the Evidence Act. The omnibus evidence of PW16 that he went to PW9 and PW12 along with both the accused persons militates against the value and worth of such evidence against both the accused persons. The omnibus evidence of PW16 that he went to PW9 and PW12 along with both the accused persons militates against the value and worth of such evidence against both the accused persons. The evidence of PW16 is found to be inadequate on this specific aspect. There is significant absence of any specific evidence to suggest that PW8 was located on the basis of any information furnished by either or both accused. No attempt even was made by the prosecution to link the tracing of PW8 by the Investigating Officer to the interrogation of the appellants. Nothing was recovered from PW8 also. 36. We now come to PWs.8, 9 and 12. They belong to the same tribe - jewellers, who are prepared to buy old ornaments. The appellants are alleged to have gone to PWs 8, 9 and 12 and attempted to sell the gold ornaments of the deceased to them. PW8, claiming to be righteous, suspected foul play and did not purchase the gold ornaments. PWs 9 and 12 allegedly purchased the ornaments. PW9 purchased the gold chain in M.O2 and the gold ear studs in M.O.3 from the 1st accused. PW12 purchased one bangle each (of the two bangles included in M.O2 series) from the 1st and 2nd accused - separately, it would appear. The theory rebels against logic and commonsense. Both the accused together had gone and it is claimed that they had sold one gold bangle separately to PW12. The broad probabilities are not too inspiring, it is urged. We find substance in that submission. 37. The learned counsel for the appellants argue that evidence of persons like PWs 8, 9 and 12 must be approached with great care. People who purchase stolen gold ornaments from miscreants have a lot to worry about the police. They are always primarily interested in saving their skin. They don't want to get involved with the police for the wrong reasons. Their willingness to oblige the police must be viewed carefully and cautiously, contend the learned counsel for the appellants. We find merit in this contention though however, it would not be prudent or expedient to discard the evidence of such witnesses on that reason alone. They don't want to get involved with the police for the wrong reasons. Their willingness to oblige the police must be viewed carefully and cautiously, contend the learned counsel for the appellants. We find merit in this contention though however, it would not be prudent or expedient to discard the evidence of such witnesses on that reason alone. We agree with the learned counsel for the appellants that the evidence of PWs.8, 9 and 12 deserves to be approached with caution and care even accepting that unjustified doubt that suspicion and distrust is not necessary. 38. PWs 8, 9 and 12 assert that the appellants had gone to them some time in November, 2001 to sell M.Os.2 and 3. They were traced/contacted by the police only in September, 2002. How is it that they correctly remember that the appellants had gone to them in November, 2001? Significantly no specific explanation is offered. No records are maintained. There is not a scrap of paper from which they can recall and remember the dates of the sale concerned. But they parrot like repeat that the 1st and 2nd accused had gone to them in early November, 2001. The learned counsel for the appellants argue that this statement of the date by the witnesses cannot inspire confidence of the Court and must be approached with great care and caution considering the identical background of PWs 8, 9 and 12. 39. The learned counsel for the appellants further submit that going by the materials available, M.Os 2 and 3 are old gold ornaments. Any one who purchased the same would normally be interested in melting the gold ornament and using it to make new ornaments. However, in the instant case, PWs9 and 12 want the court to believe that though they purchased old gold ornaments, they did not melt the same. Instead, they kept the same in their shops for resale after polishing. Inherently this must generate dissatisfation and suspicion in the mind of the Court argue the learned counsel. 40. It would be relevant to note that PW9 who in court asserted that the sale by the accused was in November, 2001 was not able to remember the date on which the police came to him and recovered the ornaments in his possession. He makes a mistake and states that they came in 2003. 40. It would be relevant to note that PW9 who in court asserted that the sale by the accused was in November, 2001 was not able to remember the date on which the police came to him and recovered the ornaments in his possession. He makes a mistake and states that they came in 2003. Counsel argues that it would be very unsafe in these circumstances to rely on the memory of PWs 9 and 12 to ascertain the date on which the appellants allegedly sold the ornaments to them Their assertion that the alleged sales took place in November, 2001 is with the transparent intention to oblige the prosecution, it is urged. 41. What is more strange, contend counsel, is that such ornaments have a long shelf life in the jewellery of PWs 9 and 12. Even though the same is said to be purchased in November, 2001, they are readily available on 17.09.2002 when PW16 allegedly went to PWs 9 and 12 along with the appellants. This theory also rebels against reasons, logic and commonsense, contend the learned counsel. The court must approach the testimony with great amount of care and caution - nay bordering on suspicion and distrust, argue the learned counsel. 42. The learned counsel for the appellants then point out that after recovery of M.Os.2 and 3, by PW16, who was not investigating this crime steps for investigation in this crime, did not proceed in the right direction. The ornaments recovered must have been handed over to the Investigating Officer in this case. The Investigating Officer must have got those ornaments identified by PWs.5, 7 or any other who was competent to identify. We have the evidence of PW5 that she was never shown the ornaments before she came to tender evidence in court. Ext.P3 contradiction was proved. According to PW16, he had sent the recovered gold ornaments to the Magistrate having jurisdiction under property list - Ext.P13. If that be so, the subsequent Investigating Officer must take the property from court and show it to witnesses like PWs.5 and 7. Such an exercise appears to have been not performed at all by the Investigating Officer who continued the investigation. However interestingly we have the claim of PW16 that he had questioned PW5 and got the ornaments identified by her. This is specifically denied by PW5. Such an exercise appears to have been not performed at all by the Investigating Officer who continued the investigation. However interestingly we have the claim of PW16 that he had questioned PW5 and got the ornaments identified by her. This is specifically denied by PW5. The want of inquisitiveness on the part of the Investigating Officer to cross check and verify whether the ornaments that he allegedly recovered were that of the deceased is, in the circumstances of the case, to put it modestly and moderately, not satisfactory. We fail to understand how PW16 could trace PW5 to question her. He was not investigating into this crime. The case diary of this crime was not available with PW16. There is no statement by PW16 that he located the house from where the crime was committed on the basis of any information furnished by the accused. We have no evidence to show that PW7 was questioned by PW16. In these circumstances, the statement of PW16 that he, who was not investigating into this crime, went to PW5 and got the ornaments identified by her cannot be accepted, contend the learned counsel. We find merit in that contention. 43. The recovery of M.Os 2 and 3 from PWs 9 and 12 under Exts.P4, P7 and P8 seizure mahazars is sought to be further supported by the evidence of PW10, who is an attestor to Ext.P4. So far as Exts.P7 and P8 mahazars are concerned, the prosecution has not chosen to examine any other witness to prove the seizure mahazars Exts.P7 and P8. The evidence of PW10 must generate very serious doubts in our mind. Before the investigator, he claimed to be a coolie worker, who happened to be present at the time when the recovery was effected under Ext.P4. But when it came to court, he transformed his role and claimed to be a worker under PW9 in the jewellery of his. As PW10 did not support the case of the prosecution fully, an inconsequential contradiction Ext.P5 was marked by the Prosecutor himself. The evidence of PW10 does not inspire confidence at all. His evidence cannot help the prosecution in any way to advance its version about recovery under Ext.P4. If at all, his evidence only creates further dissatisfaction. For obscure reasons, no attestor to Exts.P7 and P8 have been examined by the prosecution also. 44. The evidence of PW10 does not inspire confidence at all. His evidence cannot help the prosecution in any way to advance its version about recovery under Ext.P4. If at all, his evidence only creates further dissatisfaction. For obscure reasons, no attestor to Exts.P7 and P8 have been examined by the prosecution also. 44. As against all these unsatisfactory circumstances relied on by the learned counsel for the appellants, the learned Public Prosecutor contends that there is no reason for PW16 to foist a false case against the appellant. He was not even in charge of the investigation in this crime. He had no reason or responsibility to somehow resolve the mystery of the instant crime. There was no compulsion on him to somehow place the blame for this crime at the doors of anyone. That must impress upon the court the disinterestedness of PW16 and approach the testimony of PW16 in a natural and reasonable manner, contends the learned Prosecutor. The learned Prosecutor further contends that M.Os.2 and 3 are costly articles. In all, they weigh about 32.5 grams of gold. Is it likely or probable that PW16 would have invested such gold ornaments to put up a false case against the appellants? What, on the basis of the evidence and even suggestions, is his motive to resort to such false implication? All these queries are thrown at us by the learned Public Prosecutor. 45. The basic question is whether the evidence inspires confidence. If the alleged information in the confession statements given by the appellants to the Investigating Officer and the consequent recovery of M.Os 2 and 3 and the evidence of PWs 9 and 12 do not inspire us, it will be putting the cart before the horse to attempt to answer the questions raised by the learned Public Prosecutor. We must take note of all the broad probabilities including the ones urged by the learned Public Prosecutor. But the question is whether all these circumstances when considered can give the Court the assurance that evidence of recovery can be safely believed and acted upon. 46. Having rendered our anxious consideration to all the relevant inputs, we are of the opinion that it would be unsafe to place implicit reliance on the oral evidence of PW16, PW9 and PW12 about the recovery of M.Os 2 and 3. 46. Having rendered our anxious consideration to all the relevant inputs, we are of the opinion that it would be unsafe to place implicit reliance on the oral evidence of PW16, PW9 and PW12 about the recovery of M.Os 2 and 3. This Court is unable to draw inspiration for the oral evidence of PWs 9 and 12 about the sale of M.Os. 2 and 3 by the appellant to them. Less said about the evidence of PW8 about the attempt of the appellants to sell blood stained ornaments to him, the better. That evidence does not also inspire confidence at all. Why PW16 should foist a case against the appellants cannot of course be authentically answered on the basis of the materials available. But inasmuch as the evidence does not inspire confidence, we do not feel obliged to delve deeper into that aspect as to why there should be an attempt on the part of PW16 to foist a case on the appellants. 47. The learned counsel for the appellants submit that at any rate the evidence of recovery under Section 27 cannot form the foundation for a conviction in a serious indictment like the instant one. We are unable to accept this contention. The learned Public Prosecutor promptly relies on the decision in State of Karnataka v. David Rozario and another ( (2002) 7 SCC 728 ) to contend that evidence of recovery can form the basis of conviction. In David Rozario also, the evidence was not of recovery under Section 27 alone. In the instant case also, it cannot be said that the evidence is of recovery alone. The prosecution has relied on the evidence of PWs 8, 9 and 12 also in addition to information admissible under Section 27. It may not be impossible to conceive a situation where an inspiring evidence of discovery of fact under Section 27 can very well form the foundation for conviction. We are unable to accept any proposition of law so broadly and rigidly stated that no conviction can ever be based on evidence of recovery under Section 27 alone. It depends on the facts and circumstances of each case and the amount of inspiration/assurance which a Court is able to draw for the evidence of recovery under Section 27. The nature of information, the nature of the fact discovered, the nature of evidence of recovery etc. are all important. It depends on the facts and circumstances of each case and the amount of inspiration/assurance which a Court is able to draw for the evidence of recovery under Section 27. The nature of information, the nature of the fact discovered, the nature of evidence of recovery etc. are all important. 48. In the instant case inasmuch as the evidence of recovery under Section 27 read along with the evidence of PWs 8 to 10, 12 and 16 does not inspire our confidence, the conclusion appears to be inevitable that the appellants cannot be found guilty of the serious allegations raised against them. We unhesitatingly concede to them the benefit of doubt arising from the totality of unsatisfactory circumstances on which reliance is placed by the prosecution. 49. The allegations against the accused are very serious. Satisfactory evidence must be produced in support of the allegations. Seriousness of the crime will not in any way persuade a Court to water down the standards of proof expected. Fouler the crime, better must be the evidence; this doctrine need not be accepted as a fetish, but at any rate satisfactory evidence must be made available in any crime. 50. We come to the conclusion, in these circumstances, that the challenge against the verdict of guilty and conviction is justified and the appellants are entitled to succeed. 51. In the result: (a) These Criminal Appeals are allowed; (b) The impugned verdict of guilty, conviction and sentences imposed on the appellants under Sections 302 and 392 I.P.C. are set aside; (c) The appellants/accused are found entitled to the benefit of doubt. They are consequently found not guilty and acquitted of the charges levelled against them; 52. The Registry shall forthwith communicate this judgment to the appellants through the prison authorities as they are defended by legal aid counsel. 53. If the continued detention of the appellants is not necessary in connection with any other case, they shall forthwith be released from custody.