JUDGMENT (Per : Hon’ble Servesh Kumar Gupta, J.) 1. Appellants Suresh Chandra Tiwari and Bhuwan Chandra Punetha have assailed the judgment and order dated 20.2.2003 rendered by the Sessions Judge, Pithoragarh in Sessions Trial No. 36/1997, State v. Suresh Chandra Tiwari & Anr., whereby both the appellants have been held guilty for the offences punishable under Section 302 read with Section 34 IPC and have been sentenced to undergo imprisonment for life and a fine of rupees five thousand each. Appellants have also been convicted under Section 201 read with Section 34 IPC and have been sentenced to undergo rigorous imprisonment for three years and a fine of rupees two thousand each. 2. Its a case of murder. There is no eyewitness account of the alleged incident and the entire case of the prosecution is based on circumstantial evidence. The prosecution story, in brief, is that deceased Suresh Chand Upreti was aged about 36 years and was resident of village & Patti Erakot. Accused appellant no. 1 Suresh Chandra Tiwari also hails from the same village, while appellant no. 2 Bhuwan Chandra Punetha, belongs to another nearby village Bhumlai, which falls in the same Patti Erakot. Thus, accused appellants and the deceased belonged to the same area and were known to each other. In the morning of 3.2.1997, Suresh Chandra Upreti was found dead, lying in the terrace of the shop of one Mohan Singh (PW3). It was alleged that the accused appellants murdered Suresh Chandra Upreti sometime in the evening of 2.2.1997. An FIR was lodged on 3.2.1997 by PW7 Harish Chandra Upreti, an Advocate practicing in the nearby city Lohaghat and brother of the deceased, with the averment that he was informed by some villagers on 3.2.1997 at 9.30 am that his brother was lying dead in the verandah of the shop of Mohan Singh and requested inquiry into the matter. FIR is Ex. Ka-2. 3. After lodging of the FIR, the police swung into action and inspected the spot. Inquest report Ex. Ka-8 was prepared on the same day i.e. on 3.2.1997 between 10 am to 11 am. Thereafter the dead body was sealed and sent for post-mortem. Witnesses of the inquest, namely, Harish Chandra Upreti, Basudev Upreti, Jagdish Chandra Tiwari, Tara Datt Tiwari & Mohan Upreti, opined that the deceased Suresh Chandra Upreti died of ante mortem injuries. Inquest report Ex. Ka-8 was prepared on the same day i.e. on 3.2.1997 between 10 am to 11 am. Thereafter the dead body was sealed and sent for post-mortem. Witnesses of the inquest, namely, Harish Chandra Upreti, Basudev Upreti, Jagdish Chandra Tiwari, Tara Datt Tiwari & Mohan Upreti, opined that the deceased Suresh Chandra Upreti died of ante mortem injuries. Post-mortem of the dead body was conducted by PW1 Dr. U.S. Adhikari, who also prepared the post-mortem report Ex. Ka-1, wherein following injuries were reported: (1) Incised wound on top of scalp in mid occipital area about 4 cm x 1 cm, margins smooth regular, bleeding present, direction oblique. (2) Incised wound on occipital area right side about 2.5 cm x 1 cm, bone deep, margins regular smooth, bleeding present, 6 cm poster to right ear, direction is oblique. (3) Contusion on left forearm about 1.5 cm x 1 cm, irregular, brown colour, 1 cm above left eyebrow. (4) Contused abrasion on right arm shoulder & elbow joint, about 15 cm x 3 cm, brown colour. (5) Contusion on both wrist joint about 6 cm x 1.5 cm, brown in colour. (6) Contused abrasion on right knee about 4 cm x 1.5 cm, brown colour, irregular shape. (7) Contused abrasion on left knee about 3 cm x 1 cm, brown colour, irregular shape. (8) Abrasion on left leg about 2 cm x 1 cm, irregular shape, 10 cm below left knee joint. (9) Abrasion on right hip about 3 cm x 2 cm, irregular, brown colour. (10) Abrasion on left hip about 4 cm x 1.5 cm, irregular, brown colour. 4. On internal examination, it was revealed that occipital bone of the deceased was broken and his brain was blood soaked. In the opinion of the Doctor, the death occurred around one day back, possibly on 2.2.1997 at about 5.30 pm, and this was the time of incident which is revealed from the evidence also. The Doctor has further stated that injury no. (1) to (5) could only be possible on account of blow given by sharp edged stone, while rest of the injuries could be caused by blunt object. 5. The case of prosecution is that Suresh Chandra Tiwari along with co-accused Bhuwan Chandra Punetha assassinated Suresh Chandra Upreti by giving him blows of sharp edged stone. (1) to (5) could only be possible on account of blow given by sharp edged stone, while rest of the injuries could be caused by blunt object. 5. The case of prosecution is that Suresh Chandra Tiwari along with co-accused Bhuwan Chandra Punetha assassinated Suresh Chandra Upreti by giving him blows of sharp edged stone. The allegation of the prosecution is also corroborated by the medical evidence referred to above. 6. As regards evidence in the form of the chain of circumstantial evidence, PW4 Shankar Datt Upreti was the first person, who had seen the deceased Suresh Chandra Upreti between 4.30 to 4.45 pm on 2.2.1997 in the company of the accused persons. He was going towards Lohaghat, which has been shown in the west in the map Ex. Ka-17. Suresh Chandra Upreti was moving along with Suresh Chandra Tiwari, while co-accused Bhuwan Chandra Puneth was about 50-60 paces behind them. They were coming from the side of Lohaghat towards Erakot, which has been shown in the east in map Ex. Ka-17. This witness also hails from the same Patti Erakot. He also stated that the deceased and the accused persons also greeted him when they crossed each other. On the next day, he came to know that Suresh Chandra Upreti had died. He also stated that when he met them in the aforesaid manner, the weather was not good as there were sporadic drizzling. However, it was not raining, though it appeared that rain might come anytime soon. This witness has also stated that the shop of Mohan Singh falls on the way from Lohaghat to Erakot. 7. Next important witness is PW3 Mohan Singh, on whose shop the dead body of Suresh Chandra Upreti was found lying in the verandah. He has stated that on 2.2.1997 at about 6 pm, the accused persons came at his shop and asked him to prepare the milk. Since it was acute winter when the sun sets early between 5.30 to 6 pm and his shop being located at a desolate place in hills, it was the time of winding up his shop. Not much milk was left in his shop. Therefore, he told the accused appellants that he did not have sufficient milk to serve the two persons, and the quantity left was meant for one person only. Not much milk was left in his shop. Therefore, he told the accused appellants that he did not have sufficient milk to serve the two persons, and the quantity left was meant for one person only. On this, Bhuwan Chandra Punetha told him to divide, whatever milk was left, in two parts and serve it to them. This witness has also stated that in between one Ganesh came at his shop to whom Bhuwan Chandra Punetha told how his face was looking. On this, Mohan Singh told Bhuwan that it was he whose face was actually looking shabby. Bhuwan questioned this witness as to how it was looking so. Mohan Singh replied him that the weather was cold, but he (Bhuwan Punetha) was wearing dark glasses. The accused persons remained in the shop of this witness for a good 20-25 minutes. During this period, accused persons chatted with each other regarding the whereabouts of Suresh Chandra Upreti. Both left the shop on the pretext of searching Suresh Chandra Upreti, but in vain. On their return, when Mohan Singh asked the accused persons about the whereabouts of Suresh Chandra Upreti, they replied in an evasive manner. Thereafter these accused persons left his shop along with one Jagdish Punetha, who was already present at the shop of this witness. After their departure, Mohan Singh closed his shop and went to his home. On the next morning, when he came to his shop to open it at about 8.30 am, he found the dead body of Suresh Chandra Upreti lying in the terrace of his shop. This witness has also stated that before arrival of the accused persons at his shop, he had seen Shankar Datt Upreti (PW4) going towards the market of Lohaghat along with his son Bhagwant Chand. Statement of Mohan Singh stood corroborated by the testimony of PW4 Shankar Datt Upreti, who has stated that on 2.2.1997 at about 4.30 to 4.45 pm, he was going along with his son to Lohaghat, when he was on his way to Lohaghat, the deceased accompanied by accused persons crossed him. 8. Statement of Mohan Singh stood corroborated by the testimony of PW4 Shankar Datt Upreti, who has stated that on 2.2.1997 at about 4.30 to 4.45 pm, he was going along with his son to Lohaghat, when he was on his way to Lohaghat, the deceased accompanied by accused persons crossed him. 8. It is clear from the statements of the aforesaid two witnesses PW3 & PW4 that when Shankar Datt Upreti came across the accused persons, the deceased Suresh Chandra Upreti was going along with them, but when the accused returned and came at the shop of Mohan Singh, the deceased was not with them, rather they went to some other place pretending to search the deceased. All these activities/happenings only indicate the complicity of the accused appellants in the crime as the deceased was last seen with them, which is an important link in the chain of circumstantial evidence. 9. Another important witness, whose testimony is yet another link in completing the chain of circumstantial evidence, is PW2 Hayat Singh. Shop of this witness also falls in the thoroughfare, which connects the village Bhumlai/Erakot to Lohaghat market and is located at some distance on the eastern side from the shop of Mohan Singh, as is exhibited in site plan Ex. Ka-17. This witness also hails from the same “Patti” Erakot and had acquaintance with the accused persons as well as the deceased. This witness has stated that on 2.2.1997 at about 7 pm, when they were keeping themselves warm by lighting wood, the accused persons along with Jagdish Punetha came from the direction of the shop of Mohan Singh and when they were crossing his shop, one Raghuwar Ram called Suresh Chandra Tiwari. Other two persons went but Suresh Tiwari came to Raghuwar Ram, who asked him to provide some liquor as it was too cold. On this, Suresh Chandra Tiwari replied that he was not in good mood as “Danda” (deceased Suresh Chandra Upreti) had not come. One Ganesh Ram also asked for a pouch (country made liquor). On this, he took out a pouch from his bag and gave it to them, and thereafter went towards his house. After half an hour, this witness also returned to his home. After finishing his meal, Hayat Singh realized that he had left his purse at the shop itself, which contained fifteen hundred rupees. On this, he took out a pouch from his bag and gave it to them, and thereafter went towards his house. After half an hour, this witness also returned to his home. After finishing his meal, Hayat Singh realized that he had left his purse at the shop itself, which contained fifteen hundred rupees. He came back to his shop and after taking his purse, when he was returning to his home, he saw in the torchlight two persons coming from the direction of village Bhumlai/Erakot, which has been shown towards east in the site plan Ex. Ka-17 and Ka-20. It was about 10-11 pm in the night. As those persons were coming at such odd hours, therefore, in order to ascertain their identity, Hayat Singh hid near a bush and recognized them as the accused appellants, who were going towards Markhetla, the place where the accused appellants committed the crime and which is situated towards north of the said thoroughfare after the shop of PW3 Mohan Singh, as has been shown in the site plan Ex. Ka-16. 10. PW2 Hayat Singh further stated that after recognizing the accused persons, he came out from the bush, but after walking some distance, he again sat down for answering the call of nature. During this time, he noticed that two persons having torch in their hands were coming from the direction of Markhetla. He felt that something was fishy. Thereafter he saw that both of them sat near the shop of Munshi and switched off the torchlight (it appears that Munshi is pet name of one Gopal Singh whose shop has been shown towards eastern side from the shop of this witness in the site plan Ex. Ka-17). He identified those persons as the accused appellants, who went from that place towards Bhumlai. Next day, when he came back to his shop, he saw the dead body of Suresh Chandra Upreti lying in the verandah of the shop of Mohan Singh. 11. Thus, from the statements of aforesaid three witnesses, the chain of circumstantial evidence stood complete which leads to an irresistible conclusion that it was the accused appellants who, in furtherance of their common intention, committed the murder of the deceased Suresh Chandra Upreti at some time in the evening of 2.2.1997. 11. Thus, from the statements of aforesaid three witnesses, the chain of circumstantial evidence stood complete which leads to an irresistible conclusion that it was the accused appellants who, in furtherance of their common intention, committed the murder of the deceased Suresh Chandra Upreti at some time in the evening of 2.2.1997. This fact is also corroborated by the recovery of bloodstained stone and soil, which were recovered at the behest of accused appellants, who were also present at the time of recovery. Recovery memo is Ex. Ka-6. Although the accused persons refused to sign on this recovery memo, but the same as well as other recovery memos Ex. Ka-4 & Ka-5 have been proved on record by the witnesses of recovery, who are Mohan Upreti and Jeewan Chandra Upreti (PW8), both residents of Patti Erakot. 12. We find no substance in the contention of the learned Senior Counsel for the appellants that since the witnesses were having enmity with the accused appellants on account of their political rivalry, therefore, they falsely named and implicated them in the alleged manner, firstly, because there was no such political rivalry between the accused persons and the witnesses or between the deceased and the witnesses inter se, and secondly, because the elections of local Panchayat was held in the year 1996 which was not fought directly by the accused appellants and the deceased. 13. Ex. Ka-19 is yet another significant and corroborative evidence which contains the confessional statement of the accused Bhuwan Punetha made during investigation, wherein entire sequence of the incident have been categorically narrated. Although Section 25 and 26 of the Indian Evidence Act specifically bars the admissibility of such confessional statement in the evidence unless it is made in the immediate presence of the Magistrate, but at the same time, Section 27 thereof envisages an exception of the above provision. It reads as under: “27. How much of information received from accused may be proved. — Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 14. — Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 14. The aforesaid provision of law makes it clear that if on account of disclosure of certain facts by an accused person, the recovery is made during investigation, then his confessional statement vis-à-vis the recovery is admissible in evidence. Although recovery memo of certain articles Ex. Ka-4 and Ka-5 were prepared before the arrest of the accused persons, but after their arrest when the police brought them to the place of incident, further recovery was made, indicating that it is the accused appellants who are the real culprits. 15. The Hon’ble Apex Court in case of Madhu v. State of Kerala, reported in (2012) 1 SCC (Cri) 892, has held that Section 27 has incorporated an exception to the mandate contained under Section 25 and 26 of the Indian Evidence Act. As such, in the instant case, recovery made by the police i.e. Ex. Ka-6 is an additional corroborative piece of evidence. 16. Learned Senior Counsel for the appellants cited a judgment of Hon’ble Apex Court rendered in case of Paramjeet Singh @ Pamma v. State of Uttarakhand reported in (2010) 10 SCC 439, which, in fact, goes against the accused appellants. It was also a case of circumstantial evidence wherein the witnesses turned hostile and the motive could not be ascertained. Even in this case, the Hon’ble Apex Court affirmed the conviction recorded by the trial court and held that that the absence of motive cannot be a ground to reject the prosecution case if the entire chain of the circumstantial evidence is complete clearly pointing out towards the guilt of the accused. 17. Although it is a case of circumstantial evidence and as already referred above, it is proved beyond reasonable doubt that deceased Suresh Chand Upreti was ultimately killed at the hands of the present accused/appellants Suresh Chandra Tiwari and Bhuwan Chandra Punetha. The chain of evidence is also complete. All the same, what remains to be seen is whether it is a case of murder or of a culpable homicide not amounting to murder. The chain of evidence is also complete. All the same, what remains to be seen is whether it is a case of murder or of a culpable homicide not amounting to murder. This homicide, on the basis of evidence produced, the circumstances under which it is committed, the accused appellants having no previous criminal record, at least none presented by the prosecution and more particularly the nature of ante-mortem injuries on the body of the deceased reveal that ultimately it is a case of culpable homicide not amounting to murder and not one of murder. The reasons why this Court holds this view are as follows :- 18. It is a case of circumstantial evidence and in a case of circumstantial evidence, motive has a relevance. Prosecution could show no motive for accused/appellants for killing the deceased Suresh Chand Upreti. Even if we rely upon the statement of the case diary (Exb. Ka-18), it is clear that though the deceased Suresh Chand Upreti was killed by Suresh Chandra Tiwari and Bhuwan Chandra Punetha and all the three persons i.e. the deceased and the accused/appellants were known to each other. They had no past enmity. The accused/appellants killed the deceased not in a cold blooded manner but in that moment under influence of liquor. There is no weapon discovered in the present case and as per the prosecution/respondent the deceased was killed by stone. We have also studied the ante-mortem injuries on the body of the deceased. Out of total 10 ante-mortem injuries, only injury nos. 1 and 2 were such which could have caused the death of the deceased and were on the vital part. The remaining injuries are merely contusion, abrasions either in the left forearm, shoulder, wrist, knee, etc. In other words, save injury nos. 1 and 2, none are on the vital parts. It is also possible that both the injury nos. 1 and 2 which are both on the occipital region could have been caused by a one single blow. 19. Considering all these aspects, as discussed above, we hold that this is not a case of murder but of culpable homicide not amounting to murder and consequently we alter the findings of the trial court and convert them from murder to culpable homicide not amounting to murder. 19. Considering all these aspects, as discussed above, we hold that this is not a case of murder but of culpable homicide not amounting to murder and consequently we alter the findings of the trial court and convert them from murder to culpable homicide not amounting to murder. In fact we hold that both the accused/appellants caused such bodily injuries to the deceased with the intention as was likely to cause death. We, therefore, alter the findings of the trial court and convict the accused not under Section 302 IPC but under Section 304 Part I IPC and sentence them for seven years of rigorous imprisonment and a fine of ‘ 5000/- each. In default of payment of fine, the accused/appellants shall undergo one year’s further rigorous imprisonment. 20. With the above modification in the conviction and sentence, this appeal is partly allowed. Appellants are on bail. Their bail is cancelled. Let a copy of this judgment be sent to the trial court to make appellant Suresh Chandra Tiwari and Bhuwan Chandra Punetha serve out the sentence as modified by this Court. Lower Court record be sent back.