JUDGMENT : Alok Singh, J. Present appeal is preferred assailing the judgment and order dated 4.6.2011 passed by the Ist Additional Sessions Judge, Haldwani, District Nainital in Sessions Trial No.149 of 2009, arising out of case crime No.341 of 2009 u/s 302 IPC, P.S. Haldwani, District Nainital, whereby appellant was held guilty for the offence punishable u/s 302 IPC and was sentenced to serve life imprisonment and to pay fine of Rs.1,000/-. 2. Brief facts of the case, inter alia, are that PW1 Nagendra Singh has handed over one report Ex.Ka-1 to the P.S. Haldwani in the evening at about 6:30 PM on 27.7.2009 whereupon the Chick FIR was got registered as FIR No.341 of 2009 u/s 302 IPC at 6:45 PM of 27.7.2009 itself. It was stated in the written report by Nagendra Singh that Mool Chand S/o Ram Kishore was staying in his house along with his wife and family as tenant; about 3-4 months back, daughter of Rameshwar Dayal S/o Pritam R/o Mali Nagra, P.S. Musa Jhag, District Badayun, who was staying in a hut near Khariya Factory, went missing from the house; accused Rameshwar Dayal was having suspicion that his daughter was enticed away by Mr. Ravi S/o Mool Chand; after some time, daughter of accused came back and thereafter, she was got married by the accused somewhere else; however, the accused was having enmity with Mool Chand, deceased; on 27.7.2009 at about 6 PM, when Mool Chand (deceased) was going towards the market from his house and the moment he reached near the hut of accused, the accused started assaulting Mool Chand with a Kanta (sharp edged weapon), whereby Mool Chand fell on the ground and died on the spot; having heard the noise, wife of Mool Chand rushed and came on the spot; meanwhile the accused run away from the spot brandishing the weapon Kanta (sharp edged weapon); dead body of Mool Chand was lying on the spot; therefore, after registering the FIR, the appropriate action may be taken. 3. Post-mortem on the dead body was conducted by PW5 Dr. Vipin Chand on 28.7.2009. During the post-mortem, the following ante-mortem injuries were observed on the body of deceased Mool Chand: - 1. “Incised wound seen over right of skull on frontal” temporal region. 3. Post-mortem on the dead body was conducted by PW5 Dr. Vipin Chand on 28.7.2009. During the post-mortem, the following ante-mortem injuries were observed on the body of deceased Mool Chand: - 1. “Incised wound seen over right of skull on frontal” temporal region. Size 0.5 x 5 cm, 0.5 x 7 cm, 0.5 x 7 cm, margins of wound are clean cut, everted, wound is bony deep. 2. Incised wound of size 1 x 4 cm with clean cut margins, everted, bony deep seen over and above right eye brow, margins everted. Bleeding present. 3. Multiple fractures of right maxillary bone seen. 4. Bruise reddish to bluish colour seen over fracture of nasal bone seen.” 4. On 29.7.2009 at about 7:10 AM, PW4 H.C.P. Amar Singh Negi along with SSI H.B. Sen, S.I. N.P. Singh and Constable Prakash Khetwal, left the police station in search of the accused; meanwhile, PW4 and other police personnel received secret information that accused was seen going towards Teen Pani Bypass Road, therefore he could be apprehended; meanwhile, PW4 found that PW1 Nagendra Singh and Rajendra Singh Bora were coming on the motorcycle; both of them were requested that they should accompany the police party since the police party had received secret information about the presence of the accused; accused was arrested at about 9:15 AM; PW1 has told the police party that the accused is a person who has committed the murder of Mool Chand. On being asked, the accused confessed his guilt before the police personnel and stated that he could facilitate the recovery of weapon whereby he has murdered Mool Chand. Believing the accused, the police party took the accused near the railway line; on the pointing out of accused, Kanta (sharp edges weapon) was recovered which was found to be filled of bloodstains; Kanta so recovered was kept in a sealed cover; recovery memo was prepared on the spot; copy of the recovery memo was handed over to the accused and the accused has put his thumb impression thereon. 5. After investigation, chargesheet was submitted against the accused for the offence punishable u/s 302 IPC. After committal of trial to the Court of Sessions, Charge was framed against the accused for the offence punishable u/s 302 IPC. Accused denied the charge and claimed trial. 6. 5. After investigation, chargesheet was submitted against the accused for the offence punishable u/s 302 IPC. After committal of trial to the Court of Sessions, Charge was framed against the accused for the offence punishable u/s 302 IPC. Accused denied the charge and claimed trial. 6. To prove the case, prosecution has examined PW1 Nagendra Singh, PW2 Smt. Munni Devi (wife of deceased), PW3 Ashu Yadav (eldest son of deceased), PW4 HCP Amar Singh Negi, PW5 Dr. Vipin Chand, PW6 Constable 672 Shankar Negi, PW7 Inspector Harish Bahadur and PW8 S.I. Arun Kumar Verma. 7. Thereafter, the statement of the accused u/s 313 of the Code of Criminal Procedure was recorded. 8. Having heard the rival contentions of the parties and perusal of record, learned Trial Court was pleased to hold the accused/appellant guilty for the offence punishable u/s 302 IPC and he was sentenced as narrated hereinbefore. 9. Feeling aggrieved, accused/appellant has preferred the present appeal. 10. We have heard Mr. T.A. Khan, learned Senior Advocate assisted by Mr. A.K. Arya, Advocate for the appellant and Mr. Hari Om Bhakuni, learned AGA for the State and have carefully perused the record. 11. Mr. T.A. Khan, learned Senior Counsel appearing for the appellant, has vehemently argued that although, as per the prosecution story, the written report Ex.A-1 was submitted by PW1 Nagendra Singh, however, while appearing in the witness box, PW1 has stated that he has not seen the incident and whatever he has written in the FIR, that was written on the dictation given by Daroga Ji. Further contended that PW2 Smt. Munni Devi is the widow of deceased while PW3 Ashu Yadav is the son of deceased and both are the near and close family members of deceased and thus, are interested witnesses, therefore, it would not be safe to convict the appellant/accused on the sole testimony of PW2 and PW3. 12. Mr. Khan further contended that recovery of weapon (Kanta) is highly doubtful. Further contends that since, the appellant was apprehended just before the alleged recovery and was not formally arrested, therefore, he cannot be said to be in police custody, hence the alleged recovery of the weapon cannot be read in evidence u/s 27 of the Indian Evidence Act. 13. Mr. Khan further contended that recovery of weapon (Kanta) is highly doubtful. Further contends that since, the appellant was apprehended just before the alleged recovery and was not formally arrested, therefore, he cannot be said to be in police custody, hence the alleged recovery of the weapon cannot be read in evidence u/s 27 of the Indian Evidence Act. 13. Although, as per prosecution story, PW1 Nagendra Singh has handed over the written report to P.S. Kotwali Haldwani on 27.7.2009 at about 6:30 PM whereon the Chick FIR was got registered at 6:45 PM of the same day. However, PW1, while appearing in the witness box, has stated that since he was the landlord of the deceased, therefore, Daroga Ji has asked him to lodge the FIR and whatever he has written in the FIR, that was written on the dictation given by Daroga Ji. He further stated that he has not seen the incident. 14. On the other hand, PW2 and PW3 (widow and son of the deceased) have stated that since PW1 Nagendra Singh, their landlord, was present on the spot, therefore, he was requested to submit the report to the police, whereupon PW1 Nagendra Singh has written the report and thereafter, went to the police station to hand it over to the police; thereafter, after about 15-20 minutes, police came on the spot and on the pointing out of PW1 as well as PW2 and PW3, spot map was prepared by the police. 15. PW4 HCP Amar Singh Negi and PW7 Inspector Harish Bahadur have also stated that PW1 came to the Police Station at about 6:30 PM along with a report which he has handed over to the police, whereupon the Chick FIR was got registered. 16. It is not in dispute that Tej Pal, the real brother of the accused/appellant, is having agricultural land of PW1 on Batai. It is also not in dispute that the accused was residing in a hut made on the property of PW1 Nagendra Singh. Therefore, the possibility cannot be ruled out that under the influence of Tej Pal and the appellant, PW1 Nagendra Singh, while appearing in the witness box, might have tried to save the real culprit. 17. There is another important aspect of the matter that in his statement recorded u/s 161 Cr.P.C., PW1 Nagendra Singh has stated that he has witnessed the incident. 17. There is another important aspect of the matter that in his statement recorded u/s 161 Cr.P.C., PW1 Nagendra Singh has stated that he has witnessed the incident. He has written the report and has handed it over to the police in the Thana. Further stated that accused was apprehended in his presence and on the pointing out of accused, weapon was recovered in his presence and he has signed on the recovery memo. 18. Be as the case may, let us now examine each and every evidence available on record against the appellant/accused. 19. PW2 Smt. Munni Devi, widow of deceased, while appearing in the witness box, has stated that on the date of incident at about 6 in the evening, Mool Chand was going towards the market. The moment he reached near the hut of accused, accused came out armed with a Kanta (sharp edged weapon) and started assaulting the deceased; at that time, she was present in her house which is about 30-40 steps towards the east of the place of occurrence. Having heard the noise, she rushed towards the place of occurrence and found the accused assaulting the deceased with Kanta. She has further stated that her son PW3 Ashu Yadav was also present near the house and having heard the noise, he also came on the spot and witnessed the incident and both of them tried to catch the accused; however, since he was armed with Kanta (sharp edged weapon), therefore, he was able to run towards the railway line. 20. PW3 Ashu Yadav, while appearing in the witness box, has stated that at the time of incident, he had gone to take water from the water post; it was about 10 steps towards the west side of his house; the moment he heard the noise, he rushed towards the spot and saw the appellant assaulting his father with Kanta (sharp edged weapon). 21. PW5 Dr. Vipin Chandra, while appearing in the witness box, has proved the post-mortem report and has further stated that the injuries on the dead body of Mool Chand were possible by the sharp edged weapon. 22. In our considered opinion, the statements of PW2 and PW3 stand corroborated by the medical evidence. 23. 21. PW5 Dr. Vipin Chandra, while appearing in the witness box, has proved the post-mortem report and has further stated that the injuries on the dead body of Mool Chand were possible by the sharp edged weapon. 22. In our considered opinion, the statements of PW2 and PW3 stand corroborated by the medical evidence. 23. Let us now examine as to whether the testimony of PW2 and PW3 should be discarded solely on the basis that they are the near relatives of the deceased. 24. The Hon’ble Apex Court, in the case of ‘Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P., (2007) 1 SCC (Cri) 500, has held in paragraph no.16 as under: - “In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. (Vide Hari Obula Reddy Vs. State of A.P., Ashok Kumar Pandey, Vs. State of Delhi, and Bijoy Singh Vs. State of Bihar). Nothing had been elicited in the cross-examination of PW1 and PW2 to discredit their evidence. Their evidence finds corroboration in Ex.P-1 and the evidence of the doctors (PW11 and PW12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PWs1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by re-appreciating the evidence and reaching independent conclusions.” 25. The Apex Court in the case of Dharnidhar Vs. There is no infirmity in the decision of the High Court by re-appreciating the evidence and reaching independent conclusions.” 25. The Apex Court in the case of Dharnidhar Vs. State of Uttar Pradesh and others reported in (2010), 7 SCC, Page No.759, in paragraph nos.12 to 14, has held as under:- “12. There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [ (2010)1 SCC 199 ], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: " 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint." 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [ AIR 2010 SC 917 ], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same. 14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court.” 26. As per the dictum of the Apex Court, it is now a settled position of law that the statements of the alleged interested witnesses can be safely relied upon by the court in support of the prosecution’s story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called ‘interested witnesses’ cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons. 27. We have already discussed the statements of PW2 and PW3 which find support from the medical evidence. Therefore, we find no reason to discard the testimony of PW2 and PW3 simply for the reason that they are the close relatives of deceased. 28. PW4 HCP Amar Singh Negi, while appearing in the witness box, has stated that on 29.7.2009, he along with other police personnel, left the police station in search of the accused and when they received secret information that the accused was seen going towards Teen Pani Bypass Road, they along with PW1 and one other Raghvendra Singh Bora, rushed towards the place told by the secret informant and they found the accused there. Accused was arrested in presence of PW1 Nagendra Singh who has told the police party that he was the person who has murdered Mool Chand. Accused has confessed his guilt before the police party and has told the police party that he can facilitate the police party to recover the weapon of offence whereby he has murdered Mool Chand, which was thrown by him near the railway line. He took the police party near the railway line and on his pointing out, bloodstained Kanta was recovered. It is further stated that the recovery memo was prepared on the spot whereupon PW1 and other police personnel put their signatures and accused put his thumb impression. 29. The weapon Kanta, so recovered, was produced before the PW4 during his examination and he has identified that this is the weapon which was recovered on the pointing out of the accused. 29. The weapon Kanta, so recovered, was produced before the PW4 during his examination and he has identified that this is the weapon which was recovered on the pointing out of the accused. Disclosure statement of the accused and recovery of weapon on the pointing out of this accused is admissible u/s 27 of the Evidence Act. In his statement u/s 313 Cr.P.C. also, the accused has not explained as to why his thumb impression is available on the recovery memo. 30. Since the accused was apprehended at about 9:15 AM of 29.7.2009 and he was in police custody, therefore, the disclosure statement made by him during the police custody and recovery pursuant thereto, is admissible u/s 27 of the Evidence Act. 31. The Hon’ble Apex Court in the case of Vikram Singh and others Vs. State of Punjab, reported in (2010) 3 SCC Page No.56, in paragraph nos.40, 41 and 42, has held as under:- “40. AIR 1960 SC 1125 this is what a Constitution Bench had to say while examining the scope and applicability of . The Bench relying on the observations made by the Privy Council in ( AIR 1939 PC 47 ) observed as under: "7 Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Section 24 to 30 of the Act deal with admissibility of confessions i.e. of statements made by a person stating or suggesting that he has committed a crime. By Section 24 in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By Section 25 there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under Section 24 and complete under Section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" Section 24 in and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swami v. Emperor by the Judicial Committee of the Privy Council, “…………… Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation". The adjectival clause "accused of any offence" "is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides. "26. Confession by accused while in custody of police not to be proved against him- No confession made by any 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 ". By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas Section 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, Section 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. Section 27 which is in the form of a proviso states "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". The expression, "accused of any offence" in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 26, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety." 41. Mr. Sharan has, however, referred us to Section 46(1) of the Code of Criminal Procedure to argue that till the appellants had been arrested in accordance with the aforesaid provision they could not be said to be in police custody. We see that Section 46 deals with `Arrest how made'. We are of the opinion that word "arrest" used in Section 46 relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence. In the present case the appellants were undoubtedly put under formal arrest on the 15.02.2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an offence at the time of their apprehension on the 14.02.2005. 42. In the present case the appellants were undoubtedly put under formal arrest on the 15.02.2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an offence at the time of their apprehension on the 14.02.2005. 42. Moreover in the light of the judgment in Deoman Upadhyaya case and the observation that the words in Section 27 " accused of any offence" are descriptive of the person making the statement, the submission that this Section would be operable only after formal arrest under Section 46(1) of the Code, cannot be accepted. This argument does not merit any further discussion.” 32. In view of the dictum of the Apex Court, formal arrest of the accused is not necessary; if a person is accused of an offence and is in police custody and on his disclosure, any recovery is made, then the same shall be admissible in evidence u/s 27 of the Evidence Act 33. Therefore, we are unable to accept the argument put forth by learned Senior Counsel that the recovery of weapon is not proved as required u/s 27 of the Evidence Act. 34. It was further contended by Mr. T.A. Khan, learned Senior Advocate for the appellant, that Mr. Sita Ram Saxena and Mr. Om Prakash, although were cited as witnesses in the chargesheet, but they have not been produced as witness by the prosecution, therefore, the prosecution story becomes highly doubtful. 35. It is now a well settled position of law that the quantity of witnesses is immaterial. The Court is required to see the quality of evidence produced before it. This is for the prosecution to produce or not to produce any witness cited in the chargesheet. However, in the present case, application was moved before the Trial Court by learned prosecutor that since both the afore-named witnesses are now under the influence of accused, therefore, they may turn hostile, and consequently, the prosecution does not wish to produce them. Therefore, they should be discharged and on their request, the Trial Court was pleased to discharge them. Sufficient reason has been given by the prosecution seeking discharge of both these witnesses, which we do not find it to be illegal. 36. Therefore, they should be discharged and on their request, the Trial Court was pleased to discharge them. Sufficient reason has been given by the prosecution seeking discharge of both these witnesses, which we do not find it to be illegal. 36. In view of what has been discussed hereinbefore, we do not find any reason or justification to take a view contrary to the view taken by the learned Trial Judge. The appeal fails and is thus, dismissed. 37. Appellant is in jail. He shall serve out the sentence as awarded by learned Trial Court. 38. Let a copy of this judgment along with LCR be sent to the lower court for information and record.u