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2012 DIGILAW 462 (GAU)

Nakul Kumar Nath @ Maina v. State of Tripura

2012-04-10

SUBHASIS TALAPATRA, UTPALENDU BIKAS SAHA

body2012
JUDGMENT S. Talapatra, J. 1. This appeal is directed against the judgment and order dated 29.07.2006 passed by the learned Addl. Sessions Judge, North Tripura, Dhar-managar, in Case No. S.T. 08(NT/D)/2006, whereby the appellant was convicted under Sections 302 and 380 of the Indian Penal Code and sentenced him to suffer imprisonment for life with fine of Rs. 5,000/-, under Section 302, IPC and also to suffer one year rigorous imprisonment under Section 380, IPC. Briefly stated, the prosecution case is that on 23.08.2005 the victim Babata Nath @ Abu was sleeping alone in the western viti dwelling hut. On the following morning i.e. 24.08.2005 at about 6.30 am, his father found that the victim was not rising. Then his father called him but, hearing no response, broke open the door of the dwelling hut and found that the window of the western viti was open and the dead body of Babata Nath was lying on the bed having a deep cut injury on his neck. He raised alarm and people from the neighbourhood gathered. The cousin of the deceased, namely, Sri Apu Kumar Nath lodged the First Information Report to the Officer In-charge, Kadamtala Out Post, stating that fact as stated. The said FIR was received by the Kadamtala Out Post at 0745 hours on 24.08.2005 and that information was entered into the G.D. Thereafter, the FIR was transmitted to the Officer In-charge of Churaibari Police Station, which received the said FIR at 09.30 hours and registered CRB P.S. Case No. 44/2005 under Section 302, IPC. The police took up the investigation immediately thereafter. On completion of investigation, police submitted charge sheet against the present appellant under Sections 302/380 of the Indian Penal Code. After taking cognizance, the case was committed to the Court of the Addl. Sessions Judge, Dharmanagar, North Tripura. The said Court framed the charges against the present appellant, to which the appellant pleaded not guilty and prayed to be tried. Usefully the charges are extracted hereunder :-- Istly, That you on or about any time in between 22.30 hrs. on 23-6-05 and 6-30 hrs. on 24.8.05 at Jolaibasa; under Churaibari Police Station did commit murder by intentionally causing the death of one Babata Nath @ Abu and you thereby committed an offence punishable under Section 302 of IPC and within cognizance of this Court of Session. on 23-6-05 and 6-30 hrs. on 24.8.05 at Jolaibasa; under Churaibari Police Station did commit murder by intentionally causing the death of one Babata Nath @ Abu and you thereby committed an offence punishable under Section 302 of IPC and within cognizance of this Court of Session. 2ndly, that you on the aforesaid time and place in the dwelling house of one Kulendra Nath which house generally used as a human dwelling and for the custody of the property committed theft of 1). Electric Press, 2). printed shirt, 3). one white colour pant, 4), one petticoat, 5). long pant, 6). woollen chadar, 7). Half shirt, 8). Saris etc. and you thereby committed an offence punishable under Section 380 of I.P.C. and within the cognizance of this Court. 2. The prosecution examined as many as 12 witnesses to drive home the charge for securing conviction whereas the defence did not adduce any witness when the appellant was not discharged under Section 232, Cr PC. The prosecution also admitted documents and articles which were marked as Exbts. 1-10 and the materials marked as Exbts. I-III. 3. We have heard Mr. P. Saha, learned Legal Aid counsel, appearing for the appellant. Also heard Mr. D. Sarkar, learned Public Prosecutor, Tripura, as assisted by Mr. R.C. Debnath, learned Special Public Prosecutor, representing the State. Learned Counsel for the appellant has taken us to the entire evidence, both oral and documentary and submitted that the prosecution has failed to establish the charges beyond reasonable doubt. He further submitted that the appellant did not make any disclosure statement in the custody of the police and therefore there had been no 'discovery' as contemplated in Section 27 of the Evidence Act. Learned Counsel for the appellant further submitted that the statement at Exbt.-10 as a whole cannot used as evidence. 4. PW 1, Sri Kulendra Nath, stated that, in the night of 5th Bhadra of the previous year, his son namely, Babata Nath @ Abu was sleeping in the southern room of the western viti hut alone after taking dinner. On the following morning at about 6.30 am PW 1 and his wife noticed that their son was not leaving his bed and when they called out they did not find any response from him. On the following morning at about 6.30 am PW 1 and his wife noticed that their son was not leaving his bed and when they called out they did not find any response from him. So they went to the back-side of the room and found that the window was open and a part of the mud wall was cut down so that the window may be opened unlocking the closure putting hand from outside through the said hole of the mud wall. PW 1 further stated that he entered into the room through the window and found his son dead and his neck was split but not separated from his body. Then he raised alarm and opened the door. People gathered on hearing his cry. He stated further that somebody informed the Kadamtala Out Post and the police officer arrived and examined the dead body of his son and prepared the inquest report, which was marked as Exbt.1 and his Signature thereon was marked as Exbt.1/1. PW 1 stated that the appellant Nakul was working under him as the helper to him and he was a Carpenter. He revealed that in the last part of Falqun at the relevant time his son Abu i.e. the deceased told him that the appellant had committed unnatural sexual act with him. The appellant also threatened to kill his son if he disclosed the said incident. The father of the deceased further stated that on paying the arrear wages he retrenched the appellant as the helper, as advised by his brother. The appellant was identified by him on the dock. He stated that on the relevant night of occurrence one iron, one table fan, one blanket and wearing apparels of his son were also stolen away. Even though PW 1 was confronted by the defence, but he stood by the test. In the cross- examination, PW 1 stated that on hearing his alarm, the appellant Nakul also came to his house. 5. PW 2 Md. Abdul Rouf is a neighbour of PW 1, who appeared in the place of occurrence on hearing the alarm of PW 1. He stated that he saw the dead body of Babata Nath lying on the bed with a deep cut on his neck but not separated from the body. 5. PW 2 Md. Abdul Rouf is a neighbour of PW 1, who appeared in the place of occurrence on hearing the alarm of PW 1. He stated that he saw the dead body of Babata Nath lying on the bed with a deep cut on his neck but not separated from the body. One and half hour after his arrival, the appellant was detained by the police and on interrogation the appellant admitted that he committed the murder of Babata Nath by a dao (takkal) and also took away a small size table fan and an iron and some wearing apparels putting in a gunny bag. The appellant further stated that he kept the same hidden and would be able to show the same. PW 2 further stated that Nakul, the appellant had led to his house and shown the dao and the police seized the same in his presence by preparing a seizure list and he signed over the same. On his identification, seizure list was marked as Exbt.2 whereas his signature as marked as Exbt.2/1. He further stated that subsequent to the discovery of the said weapon, Nakul, the appellant had led towards the west from his house and brought out the gunny bag containing the table fan, iron and various clothes. The same was also seized in his presence and he was cited as a witness in the seizure list and he signed over the seizure list. PW 2 identified the seizure list, which was marked as Exbt.3 and his signature was marked as Exbt.3/1. He also identified Nakul, the appellant in the dock. In the cross, PW 2 stated that before the arrest of Nakul he did not know that he was the culprit. He further stated in the cross that before arrival of the police he appeared in the house of PW 1 but, he could not say how Nakul was detained but, he confirmed that Nakul was interrogated in his presence and he heard him saying the said version. After arrest, he was shifted to the police station seeing the local condition against him and subsequently police brought him again to recover the weapons and articles. When the appellant was brought again, hand-cuff was put on his hands but he categorically stated that he had not seen Darogababu writing any statement beyond the seizure list (Exbts. 2 and 3). After arrest, he was shifted to the police station seeing the local condition against him and subsequently police brought him again to recover the weapons and articles. When the appellant was brought again, hand-cuff was put on his hands but he categorically stated that he had not seen Darogababu writing any statement beyond the seizure list (Exbts. 2 and 3). PW 2 confirmed that there was no blood stain on the seized dao as it was washed out as stated by Nakul, the appellant. He also asserted that there was no special mark on the dao as seized and similar dao (takkal) was available in the houses of the villages. 6. PW 3 Sri Apu Kr. Nath is the informant, who did not disclose in the First Information Report anything as to suspicion or identity of the assailant. Coming to the Court, he only identified the FIR and his signature marked as Exbt.4 and Exbt.4/1 respectively. He categorically stated that at the time of his appearance in the house of PW 1, none stated him that any person was suspected of committing the crime. 7. PW 4 Sri Kanti Bhusan is a neighbour and on hearing the alarm he also gathered in the house of PW 1 and found the deep cut injury on the neck of the deceased. At his presence Nakul was detained by the police. PW 4 stated in the Court that, Nakul admitted that he had killed Babata Nath by a takkal and that he had taken away one iron, one small table fan and some clothes etc. from the house where Babata was sleeping and he had kept those articles in a jungle and the takkal had been kept in his house. Accordingly, the accused led the police and other persons. PW 4 further stated that he also followed them to that place along with one Abdul Rouf. Arriving his house, Nakul had shown the takkal under the 'machang' and police seized the same at their presence. PW 4 Signed the seizure list in 7SI.No. 2 and his signature having been identified, has been marked as Exbt.2/2. PW 4 also identified the seized articles and those were marked as Exbt.I. After that, Nakul led them to a jungle belonged to one Dhirendra Nath at a distance of half km. from his house. PW 4 Signed the seizure list in 7SI.No. 2 and his signature having been identified, has been marked as Exbt.2/2. PW 4 also identified the seized articles and those were marked as Exbt.I. After that, Nakul led them to a jungle belonged to one Dhirendra Nath at a distance of half km. from his house. Arriving there, Nakul had shown a gunny bag stating that all the stolen articles were lying inside the bag. The bag was opened and found containing a table fan, electric iron and some wearing apparels etc., which were seized by the police in their presence. PW 4 stated to have Signed the seizure list in Sl.No. 1, when one Abdul Rouf signed in Sl.No. 2. PW 4 identified the seizure list as Exbt.-II series and his signature as Exbt.3/2. In the cross, he denied the defence suggestion that Nakul, the appellant, did not make any statement confessing guilt of killing Babata Nath and no weapon or articles were recovered at his instance and in his presence. 8. PW 5 Sri Arijit Nath is another neighbour who appeared in the house of PW 1 on hearing the alarm and found that the appellant was already detained by the police. According to him, the appellant confessed in his presence that he killed Babata Nath by a takkal when he was sleeping in his bed and after that he had kept the takkal in his house and also kept the other articles taken away by him from the dwelling hut where Babata Nath was sleeping, inside the jungle. Nakul, the appellant had stated that he would be able to show and point out those articles. Being led by Nakul, police went to his house. PW 5 also followed them. Nakul had shown the takkal, kept inside his dwelling hut and subsequently other articles as stolen by him in the jungle. PW 5 further stated that he did not go there. PW 5 however identified the said takkal as Exbt.I. He denied all suggestions of the defence that Nakul did not make any inculpatory statement in his presence to the police nor had he showed the articles including weapon of offence for discovery. 9. PW 6 Sri Dhirendra Kr. Nath was the owner of the part of the jungle from where the stolen articles were recovered. 9. PW 6 Sri Dhirendra Kr. Nath was the owner of the part of the jungle from where the stolen articles were recovered. He asserted that when Nakul showed the articles recovered, he was present and accordingly he identified the seized articles as Exbt. II series. 10. PW 7 Sri Jayanta Nath took the photographs of the dead body in the place of occurrence and those articles were identified by him and of marked as Exbt.5. 11. PW 8 Sri Sailen Nath is the brother of PW 1 and the deceased well his nephew. On getting the information of killing of his nephew Babata Nath, he rushed but, he could only see the dead-body after it was discharged from the hospital on conducting the autopsy. PW 8 stated that his brother PW 1 conveyed to him of the sexual act as committed by the appellant Nakul with Babata and he in turn advised his elder brother PW 1 to retrench him immediately after making all payments. Accordingly, Nakul was retrenched. PW 8 admitted in the cross that neither he nor his brother informed the matter to the police previously. 12. PW 9, Sri Ashutosh Nath, a neighbour, stated that, on hearing the hue and cry he rushed at the house of PW 1. He saw the police had detained Nakul and on interrogation Nakul confessed that he had killed Babata Nath by cutting his throat with a dao and took away some articles from the said hut. Nakul further stated to the police officer that he kept the dao in his house and other articles in the bush of the old house of one Dhirendra Nath. Later on, Nakul had shown the dao and other articles one after another and the police recovered the same, which were identified and marked as Exbt.I and Exbt.II series respectively. 13. PW 10, Sri Prabir Ch. Dutta, the doctor, who had conducted the post mortem examination and prepared the post mortem report, stated that, in his opinion the cause of death was shock due to profuse haemorrhage caused by injury on the vital parts of the body, which was anti-mortem and homicidal in nature. 13. PW 10, Sri Prabir Ch. Dutta, the doctor, who had conducted the post mortem examination and prepared the post mortem report, stated that, in his opinion the cause of death was shock due to profuse haemorrhage caused by injury on the vital parts of the body, which was anti-mortem and homicidal in nature. He conducted the autopsy on the dead body of Babata Nath on 24.08.2005 at about 1.30 pm and found the injuries such as incised wound measuring 5" x 5" x 1/2", on the back of the neck below the thyroid cartilage extending 1" left from the mid line upto right shoulder joint cutting muscles and vessels of the right side of the neck and (2) abulsion of skin from the top of the right shoulder joint. PW 10 categorically opined that the injury No. 1 as stated was caused by sharp and heavy weapon like dao. When he was shown the seized dao (takkal), marked as Exbt.-1, he stated that the injury No. 1 along with injury No. 2 might be caused by the same weapon. He brought the post mortem report to his evidence as Exbt.-6. 14. PW 11 did not state anything of relevance whereas PW 12, the Investigating officer revealed in the trial Court, on the investigation the vital part of his statements are required to be extracted below : In the meantime, I arrested the suspect Nakul Nath. On interrogation he admitted that he has committed the murder by a takkal dao by entering into the dwelling hut where Babata Nath was sleeping at mid-night at about 1/2 a.m. He entered into the dwelling hut making a hole in the mud wall of the hut under the window and by putting the hand through the hole he removed the stiker of the window and unlocked the same and then he entered into the hut through the window. The said hole was found in the mud-wall during my visit. Entering into the hut he made on the switch of the electric light and gave blow by said takkal dao on his neck when the deceased Babata was sleeping. The said hole was found in the mud-wall during my visit. Entering into the hut he made on the switch of the electric light and gave blow by said takkal dao on his neck when the deceased Babata was sleeping. He further stated that at the time of leaving the room of the committing offence he took away said takkal dao and also electric fan, electric iron and some other clothings so that police and other persons may be misguided to have clue of the occurrence. He washed out the takkal-dao to remove the blood-stain and then he gave blow on agar tree to disappear the blood stain permanently and then kept the same in his dwelling hut and remaining articles took away by him are kept in the bush of deserted house of Dhirendra Nath keeping all other articles in a jute-bag and he shall be able to show/identify the said articles. He also stated that he killed Babata as because he committed camel intercourse with him i.e. unnatural offence and disclosed it to his parents. He has done the said sexual intercourse when he would reside and would sleep with Babata Nath in the same day when he would work as helper of carpenter of his father who was a carpenter and it has happened in the month of Falgun prior to the committing of offence. At the time of committing sexual offence by the accd. with Babata he threatened him not to disclose to any body else otherwise he shall kill him. He killed him as he disclosed the same to his parents. His father after learning the same consulted with his uncle and then retrenched him to save his son. As such due to the said grudge he committed the murder of Babata. When he made his confessional statement at that time so many local people were present. Accordingly; I recorded the statement of the accused and then proceeded to his house along with him and public witnesses. On arrival in his house he pointed out and shown the dao kept in his house. At that time the witness Jayanta Nath obtained the photographs of that moment. According, I seized the said dao in presence of the witnesses. The witness had identified the seizure list (Exbt.2) and the seized takkal-dao namely Exbt. 1. On arrival in his house he pointed out and shown the dao kept in his house. At that time the witness Jayanta Nath obtained the photographs of that moment. According, I seized the said dao in presence of the witnesses. The witness had identified the seizure list (Exbt.2) and the seized takkal-dao namely Exbt. 1. Then he led us to the bush where he kept other articles stolen away from the house of occurrence and kept in a jute bag. He also shown the said jute bag in the bush. At that moment of showing the bag the photographs were also taken. Opening the bag found the articles and I have seized the same preparing seizure list in presence of the witnesses. The witness had identified the seizure list Exbt.3 and seized articles (Exbt. II series). I recorded the statement of the accused confessing his guilt and about leading to discovery of weapon of offence and stolen article in my hand writing and I signed it. The accd. also signed the same. The same is marked Exbt.10 and the signature of the accd. is marked Exbt.10/1." 15. PW 12 further submitted that after completion of the investigation/ he submitted the charge sheet against the appellant for committing the offence punishable under Sections 457/380/302 of IPC. In the cross-examination of PW 12 revealed that "The window was closed from inside. No rod, grill etc. was placed on the frame of the window. I do not find any hole on the floor of the room. The accused was found with the crowd gathered in the house of occurrence. At the time of detention he tried to leave the house. Then I arrested him as suspect. I interrogated him for about two hours. Admitting his guilt etc. I made in the G.D. Entry vide No. 592, dt. 24.08.05.I did not prepare hand-sketch map and index thereof of the two places of recovery. I did not arrange for chemical test of the seized takkal-dao. The witness volunteered 'he washed out the same and also gave blow on agar tree to disappear the mark of blood stain'. So I did not arrange for the same." The said PW 12 however denied that from the accused no weapon of offence or other articles as seized was recovered. 16. The witness volunteered 'he washed out the same and also gave blow on agar tree to disappear the mark of blood stain'. So I did not arrange for the same." The said PW 12 however denied that from the accused no weapon of offence or other articles as seized was recovered. 16. It is pertinent to emphasise that Exbt.10 is an interrogation report which has been used as the statement of the accused for recovery of the weapon of offence and also for stolen articles. But from the statement of PW 12 it has unequivocally been established that the accused did not make any statement rather the prosecution, story as stands is that during interrogation the appellant disclosed some information that after killing the deceased, the takkal was washed off and some strokes were given on the Agar tree so that no stain of blood remain and kept the takkal-dao in his house and the stolen articles in the abandoned forest. On the basis of that, the purported recovery was made. The entire prosecution case is based on the said recovery from the purported information that was made available to the Investigation Officer. 17. Section 27 of the Evidence Act is an exception to Sections 25 and 26 of the Evidence Act. By those provisions no confession made to a police officer shall be proved as against a person accused of any offence or no confession made by a person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. But the provision of Section 27 provides as an exception 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 information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. But the provision of Section 27 provides as an exception 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 information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The general principle as provided in Section 26 has been laid down by the Apex Court in Anter Singh v. State of Rajasthan, as reported in (2004) 10 SCC 657 that the reason behind partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. For that purpose in Suresh Chandra Bahri v. State of Bihar, as reported in AIR 1994 SC 2420 and in State of Rajasthan v. Bhup Singh, as reported in (1997) 10 SCC 675 , the Apex Court delineated two essential requirements for the application of the Section which are (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. In State v. Damu, as reported in (2000) 6 SCC 269 , the Apex Court further delineated that the basic idea embedded in Section 27 is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. In this regard Sanjay v. State, as reported in (2001) 3 SCC 190 ; Delhi Administration v. Bal Krishan, as reported in (1972) 4 SCC 659 ; Mohmed Inayatullah v. State of Maharashtra, as reported in (1976) 1 SCC 828 ; Bodhraj v. State of Jammu & Kashmir, as reported in (2002) 8 SCC 45 and Pandurang Kalu Patil & Anr. v. State of Maharashtra, as reported in (2002) 2 SCC 490 are also relatable for the said doctrine. v. State of Maharashtra, as reported in (2002) 2 SCC 490 are also relatable for the said doctrine. Thereafter, the Supreme Court in Anter Singh (supra) has also dwelled upon the question of how much of the information would go in evidence under Section 27 of the Evidence Act, despite the fact that the information is given by the accused to the police while he is in police custody. The word "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. Only that part of the information supplied by the accused which is the direct and immediate cause of discovery will go in evidence. The rest of the information/statement which may be indirectly or remotely related to the fact discovered will not go. 18. In the instant case, from Exbt.10, the information that "After the killing I washed the takkal properly and gave some strokes on the Agar tree so that no stain of blood remained. I kept the takkal dao in my house and the stolen articles in the abandoned forest. If I am taken, I can bring them out" may appear relevant but this part of information will not enter/go into the evidence under Section 27 of the Evidence Act. What has been stated in Suresh (supra), this information that "If I am taken I can bring out" shall go into the evidence only when the person giving such information is an accused of the offence and he must also be in police custody. Now, we would see whether at the time of making the statement the appellant was an accused in the case or not. 19. The ejahar that has been filed on 24.08.2005 by Sri Apu Kumar Nath (PW 3) does not name the appellant. PW I being the father of the deceased, in his statement as recorded under Section 161 of Cr PC did not suspect the appellant killed his son though stated that there had been a bad blood with the appellant for some unnatural sexual relation with his son and the appellant was terminated from his service as Helper of PW 1. PW 2, one neighbour of PW 1, namely Md. Abdul Rouf had shown light how the appellant was entangled with the entire matter. PW 2, one neighbour of PW 1, namely Md. Abdul Rouf had shown light how the appellant was entangled with the entire matter. On that day, after about one and half hour later, the accused Nakul Nath was detained by the police and on interrogation he admitted that he committed the murder of Babata Nath by a dao and also took away a small size table fan and an iron and some wearing apparels putting in a gunny bag. The accused also stated that he had kept the same hidden and can able to show the same. Along with this statement, the statement of PW 4 is required to be read together. PW 4 stated that in the meantime police also arrived and the suspect Nakul Nath was detained. The accused admitted that he had killed Babata Nath by a takkal and he had taken away one iron, one small table fan and some clothes etc. from the house where Babata was sleeping and he had kept the articles in the jungle and the takkal was kept in the house. Accordingly, as by the accused, PW 4 along with the police personnel went to the place and the witness Abdul Rouf was also with them. Arriving in his house, the accused had shown the takkal (dao) under the machang and the police said the same in their presence and the PW 4 had signed the seizure list at Sl. No. 2. PW 4 further stated that thereafter the accused led them in the jungle owned by one Dhirendra Nath at a distance of 1 /2 km from his house and arriving there he had shown a gunny bag stating that all the stolen articles were lying inside the said bag. However, PW 2 in cross-examination stated a different story that after arrest the appellant was shifted to the police station seeing the local condition against him and subsequently police brought him again to recover the weapon and articles. When he was brought back again, hand-cup was put in his hands. 20. The statement of PW 5 is even curious enough. According to him, he went the house of PW 1 at about 8.30 am and found that the accused Nakul Nath, the appellant was already detained by the police. When he was brought back again, hand-cup was put in his hands. 20. The statement of PW 5 is even curious enough. According to him, he went the house of PW 1 at about 8.30 am and found that the accused Nakul Nath, the appellant was already detained by the police. He confessed in his presence that he killed Babata Nath by a takkal when he was sleeping in his bed and after that he had kept the takkal in his house and also kept some other articles from the dwelling hut where Babata Nath was sleeping, inside the jungle and he would able to point out those things. Then police went to the house of Nakul Nath. PW 5 also accompanied them and the accused had shown the takkal kept inside his dwelling hut and subsequently other articles stolen by him, from the jungle though PW 5 did not go there. The statement of PW 9 shows how the witnesses were banned, to secure the punishment of the appellant. On examination, PW 9 stated that on interrogation, the accused confessed that he had killed Babata Nath by cutting throat by a dao and took away some articles from the said hut and he kept the dao in his house and other articles in the bush of abandoned house of one Dhirendra Nath. Accordingly, the accused had shown the dao and the other articles, one after another and the police recovered the same. The witness has identified the Exbt.I and Exbt.II series. Later on, by further cross-examination, PW 9 categorically admitted that he did not sign the seizure list as witness. 21. The very vital witness i.e. PW 12, the Investigating Officer, who stated the basis of arrest of the appellant that "In the meantime, I arrested the suspect Nakul Nath. On interrogation he admitted that he has committed the murder by a takkal dao by entering into the dwelling hut where Babata Nath was sleeping at mid-night at about 1 /2 a.m. He entered into the dwelling hut making a hole in the mud wall of the hut under the window and by putting the hand through the hole he removed the stiker of the window and unlocked the same and then he entered into the hut through the window. The said hole was found in the mud-wall during my visit. The said hole was found in the mud-wall during my visit. Entering into the hut he made on the switch of the electric light and gave blow by said takkal dao on his neck when the deceased Babata was sleeping. In examination in chief, PW 12 however stated that The crowd gathered in the house of occurrence. At the time of detention he tried to leave the house. Then I arrested him as suspect. Interrogated him for about two hours. Admitting his guilt etc., I made in the G.D. Entry vide No. 592, dated 24.08.2005." If this particular statement is believed then the statements of PWs 2 and 4 are to be disbelieved by this Court and their credibility would immediately cave in. 22. Moreover the PW 2 and PW 4 categorically stated that when the accused person was detailed by the police officer he made the confessional statement as referred herein but the Investigating Officer (PW 12) states a different story that after two hours of interrogation the said statement made. Therefore, there are irreconcilable contradiction in the statement of PWs 2 and 4 and PW 12 and as such it is hardly believable that there was any such statement or discovery in presence of the witnesses as stated by PW 12. On the other hand, when the appellant was arrested as the suspect, crowd gathered in the yard of the PW 1 turned extremely hostile to the appellant and the police, taking the advantage of such hostile situation had extracted some information from him and thereafter had shown the recovery of one takkal from his house which is a commonly used tool for cutting, retained in any house. Apart that, the story of stolen articles was not even mentioned in the first information report and it appeared later on and that had been implanted for entangling the appellant. More vital thing is that after recovery of the weapon (takkal), the said takkal was not sent for an chemical or serological test to determine as to whether it carries any blood stain of the deceased or whether the story as narrated by the appellant that he washed the takkal and thereafter gave stroke in the Agar tree was true or not. The heavy cloud hangs over the story of the prosecution on this part of the fact and that has not been cleansed by any corroborative evidence by the prosecution. 23. It is not clear from the evidence whether the gunny bag purportedly containing the stolen articles was hidden in such a way so as to making it difficult to be noticed. So far the takkal is concerned nowhere in his statement the accused has mentioned that the said weapon was used in the offence. What the PW 10 Dr. Prabir Chandra Dutta has stated in the Court that such weapon might cause the injury as was inflicted on the deceased. Non- examination as to this aspect of the matter is a vital discrepancy shortcoming while considered as corollary of the prosecution version. 24. In Anter Singh (supra), the Supreme Court has explained such a similar situation and held : The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67 in the following words, which have become locus classicus : It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife/ knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which stabbed; these words are inadmissible since they do not related to the discovery of the knife in the house of the informant. (emphasis supplied) Therefore, the purported statement of the appellant that he used that particular (sic) killing the deceased will not go into the (evidence unless it is proved by other witnesses. (emphasis supplied) Therefore, the purported statement of the appellant that he used that particular (sic) killing the deceased will not go into the (evidence unless it is proved by other witnesses. 25. In Delhi Administration (supra), the Apex Court held : The only evidence which remains is the evidence of the disclosure statement, made by the accused to the Police Officers in the presence of Punch witnesses and the alleged recovery of stolen property in consequence of the disclosure statements. Section 27 of the Evidence Act permits proof of so much of the information which is given by persons accused of an offence when in the custody of a Police Officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Under Sections 25 and 26 of the Evidence Act no confession made to a Police Officer whether in custody or not can be proved as against the accused. But Section 27 is by way of confession, which distinctly relates to the fact discovered is admissible as evidence against the accused in the circumstances stated in Section 27. Accused Hukam Singh is alleged to have made a disclosure statement while in police custody on 16-11-1965 as per Ext. PGG. In consequence of that information the police party and the panchas are supposed to have gone to village Dadri where Hukam Singh pointed a place in the hut of one Babulal which, when dug up, revealed a bundle containing a piece of gold, necklace, a pair of pajeb, a silver armlet and one gold ring; all of which have been identified as stolen property. These articles had been tied in a coloured handkerchief. So far as the recovery of these articles is concerned, the prosecution examined, besides members of the police force, two panchas Nathu Singh (PW 38) and Mohan Lal (PW 19). The evidence of both these panchas has been rejected by the learned Judge as unreliable. The evidence of Nathu Singh has been considered at some length by the learned Judge and we agree with him that he cannot be considered a reliable witness. The other panch Mohan Lal (PW 19) did not state that Hukam Singh pointed out the hut or the place in the hut or that he dug out the bundle from the place where it was buried. The other panch Mohan Lal (PW 19) did not state that Hukam Singh pointed out the hut or the place in the hut or that he dug out the bundle from the place where it was buried. The case is that the place from where the bundle was taken out was inside the hut close to the wall But constable Rameshwar Dayal (PW 34) who was a member of the party stated in his evidence that the handkerchief with the Article tied in it was recovered from a place two to three ft. behind the hut. In this state of the evidence the alleged recovery in consequence of information given by Hukam Singh becomes extremely suspicious and it cannot therefore, be said that the learned Judge was not justified in rejecting this evidence about the recovery. (emphasis supplied) 26. In the present case also the PW 2 did not categorically state wherefrom the dao was actually recovered. He generally stated that he led to the house and shown the dao(takkal) and the police seized the same in seizure list. Therefore, his statement becomes shaken by suspicion. Moreover, the materials those were purportedly recovered including the seized stolen articles were not identified by PW 1, the owner of the properties. The PW 2 and PW 4 though identified the articles the police seized, it has to be held that the articles were not established as stolen. 27. In Mohmed Inayatullah (supra), the Apex Court held : Having cleared the ground, we will now consider in the light of the principles clarified above, the application of Section 27 to this statement of the accused. The first step in the process was to pinpoint the fact discovered in consequence of this statement. Obviously, in the present case, the threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the musafirkhana, Crawford Market, wherein they lay deposited and (c) the accused's knowledge of such deposit. The next step would be to split up the statement into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. The next step would be to split up the statement into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Thus processed, in the instant case, only the first part of the statement, viz., "1 will tell the place of deposit of the three Chemical drums" was the immediate and direct cause of the fact discovered: therefore, this portion only was admissible under Section 27. The rest of the statement, namely, "which I took out from the Haji Bunder on fast August", constituted only the past history of the drums or their theft by the accused,' it was not the distinct and proximate cause of the discovery and had to be ruled out of evidence altogether. (emphasis supplied) 28. In view of this ratio as laid down by the Supreme Court, the part of the statement that in the evidence that "If I am taken, I can bring them out" can only be admitted. The other part of the evidence that "After the killing I washed the takkal properly and gave some strokes on the Aqar tree so that no, stain of blood remained. I kept the takkal dao in my house and the stolen articles in the abandoned forest" having no proximate relation to the discovery of those articles will not be admissible in the evidence. The later part. "I have taken revenge of the torment of my mind by way of murdering Bebat I knew that (Bebat's uncle (father's brother) Sailen was not there in the house yesterday, so Bebat was sleeping in his room alone" also cannot be admitted in the evidence for the purpose of establishing the charge. 29. The Supreme Court in Bodhraj alias Bodha & Ors. v. State of Jammu & Kashmir, as reported in (2002) 8 SCC 45 , examined the question whether the evidence relating to recovery is sufficient to fasten guilt on the accused. In Bodhraj (supra), the Apex Court held: Section 27 of the Evidence Act, 1872 (in short 'the Evidence Act') is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. In Bodhraj (supra), the Apex Court held: Section 27 of the Evidence Act, 1872 (in short 'the Evidence Act') is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Balakrishnan, (1972) 4 SCC 659 and Md. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828 . The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the seaton concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-exculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. (emphasis supplied) 30. The Apex Court making a reference to Palukuri Kottaya v. Emperor, as reported in AIR 1947 PC 67 has reiterated the position of law that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. 31. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. 31. In Pandurang Kalu Patil (supra), the Apex Court has further reiterated the position as relate to the "fact discovered" in terms of the said section. Profitably, paragraphs 4, 5 and 6 of Pandurang Kalu Patil (supra) are extracted hereunder. 4. The legal proposition adumbrated in Pulikuri Kottaya : AIR 1947 PC 67 has been considered and tested by this Court, time and again, and on all such occasions this Court has only reiterated the said principle with approval (vide Jaffar Hussain Dastagir v. State of Maharashtra, (1969) 2 SCC 872 , K. Chinnaswamy Reddy v. State of A.P., AIR 1962 SC 1788 , Earabhadrappa v. State of Karnataka, (1993) 2 SCC 330, Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392 , Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430 and State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675 and in the last cited decision this Court, while again re-affirming the ratioin Pulukuri Kottaya : AIR 1947 PC 67 has said thus :-- The ratiotherein (Kottaya) has become locus classicus and even the lapse of half-a-century after its pronouncement has not eroded its forensic worth 5. Even the recent decision in State of Maharashtra v. Damu, (2000) 6 SCC 269 , this Court followed Pulukuri Kottaya with approval. The fallacy committed by the Division Bench as per the impugned judgment is possibly on account of truncating the word "fact" in Section 27 of the Evidence Act from the adjoining word "discovered". The essence of Section 27 is that it was enacted as a proviso to the two preceding Sections (see Sections 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to anyone while the accused is in police custody. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non-confessional. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non-confessional. Nonetheless the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact. A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause. Recovery, or even production of object by itself need not necessarily result in discovery of a fact. That is why Sir John Beaumont said in Pulikuri Kottaya that "it is fallacious to treat the fact discovered in the section as equivalent to the object produced". The following sentence of the learned law lord in the said decision though terse, is etoquent in conveying the message highlighting the pith of the ratio. Information supplied by the person in custody that I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant. (emphasis supplied) 6. Learned Judges in the impugned judgment laboured to show that the word "fact" can envelop and object also, and tried to project that the said aspect has not been taken into account by their Lordships of the Privy Council. Here again we may repeat that the Division Bench had erred by not taking the import of the collocation of the words "discovery of a fact" as envisaged in Section 17. No doubt in a given case an object could also be a fact, but discovery of a fact cannot be equated with recovery of the object though the latter may help in the final shape of what exactly was the fact discovered pursuant to the information elicited from the accused Thus the labour made in the impugned judgment by giving emphasis to the word "fact" disjointed from the word "discovery" rendered the exercise in vain. Ratio in Pulikuri kottaya thus remains unscathed. (emphasis supplied) 32. The admitted position that there is no other evidence except the purported "information" as made available by the appellant to the police officer. From the analysis, it has been shown that the statements of PWs 2 and 4 are at variance to the statement of PW. 12. PWs 4 and 6 have been turned out to be interested witnesses by their conduct and as such credibility of their depositions have been substantially reduced. The statement of the police officer is also required to be placed under scanner as in his statement he nowhere stated why the appellant was suspected by him when no person made any statement before him involving the appellant in the crime. Therefore, even the question of arrest or custody remained clouded. Moreover, in absence of identification of the purported stolen articles of PW 1 those cannot be related to the offences as well. As such, 'discovery' cannot be related to the 'offence'. It has been already stated that use of weapon in commission of the offence was not established or corroborated by any other evidence. As such this information relating to the discovery though admissible in evidence that does not stand to prove the guilt of appellant. 33. In view of this, it can be safely said that the prosecution could not prove the charge against the appellant beyond the shred of reasonable doubt. As such, the appellant is entitled to be acquitted from the charge and he shall be set at liberty forthwith. Accordingly, the appeal is allowed. Send down the Lower Court Records forthwith. Appeal allowed