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2024 DIGILAW 1163 (ALL)

Irfan Ahmed alias Guddu v. State of Uttar Pradesh

2024-04-30

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : ASHWANI KUMAR MISHRA, J. 1. This appeal is by the accused Irfan Ahmed Alias Guddu challenging his conviction and sentence vide judgment and order dated 13.01.2023, passed by the Additional Sessions Judge, Court No. 1, Fatehpur in Sessions Trial No. 06 of 2012 arising out of Case Crime No. 383 of 2011, under Sections 364, 302, 201 IPC and in Sessions Trial No. 07 of 2012, arising out of Case Crime No. 385 of 2011, under Section 4/25 Arms Act, Police Station Kotwali, District Fatehpur; whereby he has been sentenced to ten years rigorous imprisonment alongwith fine of Rs.5000/- coupled with a default sentence of six months imprisonment under Section 364 IPC; life imprisonment alongwith fine of Rs. 25000/-coupled with a default sentence of one year imprisonment under Section 302 IPC; three years imprisonment alongwith fine of Rs. 2000/-coupled with a default sentence of three months under Section 201 IPC and four months imprisonment alongwith fine of Rs. 400/-coupled with a default sentence of one month imprisonment under Section 4/25 Arms Act. All the sentences are directed to run concurrently. 2. This is a case where a young lady had gone missing and later her decomposed body, cut in pieces, was allegedly recovered on the pointing out of the accused appellant Irfan. The deceased was the cousin of accused. The prosecution case is based on circumstantial evidence and the question for consideration in this appeal is as to whether the prosecution has successfully connected the chain of events so as to establish the hypothesis of guilt attributed to the accused appellant and that no alternative hypothesis, consistent with the innocence of accused, exists. The correctness of conclusions drawn by the trial court, on this aspect, is under challenge. 3. Basis of prosecution case in the present case is a written report of the father of the deceased (informant) Kamrulhuda, wherein he informed that he is resident of 517 Maswani, District Fatehpur. His daughter Km. Farhat Fatima @ Jeenat (deceased), aged 28 years had completed her M.A., B.Ed. and was preparing for PCS Examination. On 29.8.2011 at about 12.30 in the afternoon, she had gone to get medicines for herself, but did not return. While going to the market she had taken her mobile No. 08957088397. Despite frantic efforts she could not be traced. Farhat Fatima @ Jeenat (deceased), aged 28 years had completed her M.A., B.Ed. and was preparing for PCS Examination. On 29.8.2011 at about 12.30 in the afternoon, she had gone to get medicines for herself, but did not return. While going to the market she had taken her mobile No. 08957088397. Despite frantic efforts she could not be traced. Informant apprehended that as accused Irfan Ahmad @ Guddu was after her, as such, he was responsible for the disappearance of his daughter. Although efforts were made by the informant as well as family members Zafar Alam and Mohammad Ahmad to counsel accused Irfan but it yielded no result. The informant apprehended that his missing daughter has been taken by the accused somewhere. Prayer was accordingly made to investigate the matter and trace out informant’s daughter Farhat Fatima @ Jeenat. 4. On the basis of the above written report a first information report came to be lodged on 8.9.2011 at 7.05 am as Case Crime No. 383 of 2011, under Section 364 IPC. Investigation proceeded in the matter and based upon the FIR allegations as well as the statement of informant recorded under Section 161 Cr.P.C. the Investigating Officer proceeded in the matter. The I.O. could find the accused appellant near Bakarganj Tiraha upon the pointing out of the informant. The accused was moving from Bakarganj to Jwalaganj. The accused was intercepted and taken to the side for questioning by the I.O. at about 13.10 hours on 8.9.2011. The accused was confronted with the fact that he had used his SIM in the mobile phone of missing girl to send SMS to her father between 4.9.2011 to 7.9.2011 and had also called Farhat Fatima twice on 29.8.2011 from his mobile whereafter she has gone missing. On hearing it and seeing the call detail record the accused broke and confessed that Farhat Fatima is no longer alive. The confessional statement of accused was allegedly recorded whereafter he (accused) offered to provide the dead body of Farhat Fatima. He also informed the I.O. that he has thrown the clothes of deceased near the Mazar of Sayyad Bada and had concealed knife used in the offence at his house. Believing upon the statement of the accused the I.O. alongwith the informant, Sagir Ahmad and other family members and police personnels proceeded towards the culvert on the drain near the pakka pond. Believing upon the statement of the accused the I.O. alongwith the informant, Sagir Ahmad and other family members and police personnels proceeded towards the culvert on the drain near the pakka pond. The accused entered the drain and took out a tied plastic sack and informed that it contains the pieces of the dead body of deceased. From the same plastic sack a yellow plastic bag was also taken out which had a pair of slippers and a purple ladies bag. Accused informed that the bag and slippers are of Farhat Fatima. The ladies bag recovered was also opened in the presence of family members. It contained many papers most of which were soaked with water and not readable. However, a domicile certificate issued by SDM Sadar on 19.7.2010 issued to Farhat Fatima was readable. The recovered body parts and other articles were taken in custody vide recovery memo (Exhibit Ka.3). The accused appellant was thereafter taken in custody for offence under Section 302, 201 IPC at 14.10 pm. Inquest was thereafter conducted on 8.9.2011 at 16.20 hours. As per the inquest report (Ex.Ka.4) the decomposed body had been cut in four pieces. Dead body was sealed and thereafter sent for postmortem in which the cause of death is shown as shock and hemorrhage due to following ante-mortem injuries: “1. Incised wound of 7x5 cm right elbow joint through & through 2. Incised wound of 18x13 at right hip joint through & through 3. Incised wound of 10x8 cm at right knee joint through & through 4. Incised wound of 7x5 cm left elbow joint through & through 5. Incised wound of 10x13 cm in left hip joint through & through 6. Incised wound of 10x8 cm in left knee joint through & through” 5. In the opinion of the doctor there was also an incised wound of the size 12x10 cm through and through around the neck which was the ante-mortem injury. 6. In the opinion of the autopsy surgeon the death had occurred a week prior to holding of postmortem on 8.9.2011 at 5.15 pm. The recovered articles were sent for scientific investigation by the forensic science laboratory. On the recovered slippers, bag and knife no blood, etc., were found. 6. In the opinion of the autopsy surgeon the death had occurred a week prior to holding of postmortem on 8.9.2011 at 5.15 pm. The recovered articles were sent for scientific investigation by the forensic science laboratory. On the recovered slippers, bag and knife no blood, etc., were found. In order to ascertain the identity of the dead body as that of the deceased the DNA profile was also generated and matched with the parents of the deceased. As per FSL Report dated 26.9.2019, exhibited as Ex.Ka.23, no definite opinion could be expressed in that regard as the profiles had not matched. The identity of the deceased on the basis of DNA report has not been established. 7. The accused thereafter took the police party to his house and took out a knife in respect of which a subsequent FIR came to be lodged as Case Crime No. 385 of 2011, under Section 4/25 Arms Act. The recovery memo of knife has been handed over to accused. Yet another recovery memo was prepared on the next day of a cycle, which is exhibited as Ex.Ka-12. 8. On the basis of statement of witnesses recorded by the Investigating Officer chargesheet came to be submitted against the accused appellant under Sections 364, 302 and 201 IPC in Case Crime N. 383 of 2011. Chargesheet was also submitted under Section 4/24 Arms Act in Case Crime No. 385 of 2011. The concerned magistrate took cognizance of both the chargesheets and committed the case to court of sessions wherein it got registered as Sessions Trial Nos. 6 of 2012 and 7 of 2012, respectively. The charges under the aforesaid sections were read out to the accused appellant who pleaded not guilty and demanded trial. The trial accordingly commenced in which prosecution has adduced following documentary evidence: “1. FIR dated 8.9.2011 Ex.Ka.18 2. FIR dated 8.9.2011 Ex.Ka.20 3. Written Report dated 8.9.2011 Ex.Ka.1 4. Recovery memo of pair of slippers & a bag dt. 8.9.2011 Ex.Ka.3 5. Recovery memo of murder weapon a knife dt. 8.9.2011 Ex.Ka.9 6. Recovery memo of a cycle & handover dated 9.9.2011 Ex.Ka.12 7. P.M. Report dated 8.9.2011 Ex.Ka.11 8. Report of Forensic Science Laboratory dated 12.12.2012 Ex.Ka.22 9. Report of Forensic Science Laboratory dated 26.9.2019 Ex.Ka.23 10. Panchayatnama dated 8.9.2011 Ex.Ka.4 11. Charge Sheet dated 25.9.2011 Ex.Ka.15 12. Charge Sheet dated 9.9.2011 Ex.Ka.17” 9. 8.9.2011 Ex.Ka.9 6. Recovery memo of a cycle & handover dated 9.9.2011 Ex.Ka.12 7. P.M. Report dated 8.9.2011 Ex.Ka.11 8. Report of Forensic Science Laboratory dated 12.12.2012 Ex.Ka.22 9. Report of Forensic Science Laboratory dated 26.9.2019 Ex.Ka.23 10. Panchayatnama dated 8.9.2011 Ex.Ka.4 11. Charge Sheet dated 25.9.2011 Ex.Ka.15 12. Charge Sheet dated 9.9.2011 Ex.Ka.17” 9. In addition to the documentary evidence, the prosecution has produced the testimony of Kamrulhuda, who happens to be the first informant, as PW-1. Sagir Ahmad has been produced as PW-2, who happens to be the co-brother of PW-1. Raj Kishor Pandey is PW-3, who at the relevant point of time was posted at the police station concerned and was the first investigating officer. Ashok Kumar Singh has been produced as PW-4, who had conducted the postmortem of the deceased. PW-5 is Rajesh Kumar Singh, who was the second investigating officer in the case. J.P. Yadav has been produced as PW-6, who is the investigating officer in the FIR lodged under the Arms Act. Yashwant Singh is PW-7, who has proved the G.D. Entry and Chik FIR. Etc. PW-8 is Farukh Ahmad, who is brother of PW-2 and has alleged that he saw the accused carrying a sack of flesh at about 6.15 am on 30th August, 2011 on a bicycle. PW-8 is also a witness of inquest. 10. Above evidence produced by the prosecution has been confronted to the accused for recording his statement under Section 313 Cr.P.C. The accused has denied his implication and has stated that he has been falsely implicated in the matter. In reply to Question No. 24, the accused has stated that deceased Farhat Fatima was in love with one Sandeep and she has eloped with him. He has denied that the recovered dead body is of Farhat Fatima. Moreover, the accused has alleged that on account of dispute of house with the informant he has been falsely implicated. The accused further stated that his father is sick and his brother is mentally retarded. The accused has also alleged that informant is in possession of his house and is not letting him in his own house. He has alleged that he lives with his family in Kanpur and is innocent. 11. It is on the basis of above evidence and the statement of accused under Section 313 Cr.P.C. that the Court of Sessions has convicted the accused as per above. He has alleged that he lives with his family in Kanpur and is innocent. 11. It is on the basis of above evidence and the statement of accused under Section 313 Cr.P.C. that the Court of Sessions has convicted the accused as per above. The testimony of witnesses as well as recoveries allegedly made on the pointing out of accused appellant has been made the basis for conviction of the accused. Aggrieved by the judgment of conviction and sentence the accused appellant is before this Court. 12. On behalf of appellant it is argued by Sri Kamal Krishna, learned Senior Advocate that this is a case of circumstantial evidence in which the chain of event is not complete; neither appellant had any motive to commit the offence nor any credible and reliable evidence has been produced by the prosecution to implicate him; the witnesses are related to the informant and their testimony is inherently improbable; the statement of autopsy surgeon clearly discredits the prosecution version as per which the death occurred on 1st or 2nd September, 2011 whereas the entire prosecution case is that incident occurred on 29th August, 2011; prosecution has not been able to establish the identity of the deceased; alleged recovery cannot be read in evidence in the absence of any disclosure statement or panchnama drawn in the presence of independent witnesses and that without any reliable evidence the accused appellant has been kept in custody for more than 12 years. 13. 13. Sri S.F.A. Naqvi appearing for the informant and Sri Vikas Goswami, learned AGA have strongly opposed the appellant’s contention and submit that this is a case of gruesome murder; the deceased was being harassed by the accused and after she rejected his advances the accused has brutally murdered her; the accused was previously implicated for harassing another cousin in respect of which a previous FIR was also lodged against him; the plea that house of the accused is in possession of informant is false and that the mother of accused has later sold the house to someone else; accused sent hundreds of messages to the deceased and also made various phone calls to her; recovery of dead body and knife is reliable and has rightly been read in evidence under Section 27 of the Indian Evidence Act, 1872; PW-2 and PW-8 have truthfully deposed against the accused; there is no reason of false implication of accused appellant; the appeal lacks merit and deserves rejection. 14. We have heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Rahul Mishra and Sri Prakhar Saran Srivastava for the appellant; Sri S.F.A. Naqvi, learned Senior Advocate assisted by Sri Zaheer Asghar for the informant and Sri Vikas Goswami and Sri Umesh Dwivedi have been heard on behalf of State. We have also perused the trial court records. 15. This is a case of circumstantial evidence. As per prosecution the deceased is the cousin of the accused appellant and both were residing in adjoining houses. The deceased was being harassed by the accused appellant, as he wanted to marry her. The advances of the accused appellant was not liked by the deceased and she ultimately refused to marry her. It is thereafter that when the deceased was returning from the market having purchased some medicine the accused appellant intercepted her and took her to a room in his house. After the accused found that the deceased is not prepared to marry her, he forcibly pulled down the deceased on the bed (takhta) causing head injuries due to which she died. After the accused found that the deceased is not prepared to marry her, he forcibly pulled down the deceased on the bed (takhta) causing head injuries due to which she died. It is then stated by the prosecution that the accused appellant took the body of the deceased in the bathroom and cut it into pieces and thereafter stuffed the body parts in a plastic sack and dumped the dead body on the next morning i.e. 30th August, 2011 in the drain near the pakka pond. Ultimately, the dead body was recovered on the pointing out of the accused appellant. It is the prosecution case that slippers and ladies bag of the deceased were also recovered on the pointing out of the accused appellant. As per prosecution the weapon of offence i.e. the knife has also been recovered from the house of the accused appellant. The circumstances, which have been relied upon by the prosecution to implicate the accused appellant, are as under: Fact that the accused appellant desperately wanted to marry the deceased and started harassing her when she declined the advances; Phone call was received by the informant on his mobile from the mobile of the accused regarding kidnapping of the deceased; On 29.8.2011 the accused took the deceased to his room while she was returning from the market and when she refused to marry him the accused pulled her down on the takhta causing her death; whereafter the dead body was carried by the accused appellant in a plastic sack the next morning and dumped below the culvert near pakka pond; Recovery of dead body, slippers and ladies bag, knife used in the offence on the pointing out of the accused appellant. 16. At the outset, we may note the circumstance in which the incident allegedly occurred. According to prosecution, the deceased went missing on 29th August, 2011. No missing report was lodged by the informant in respect of disappearance of the deceased till 8th of September, 2011. It is only at 7.05 am on 8.9.2011 that the FIR has been lodged in respect of disappearance of the deceased 11 days later. The FIR is lodged under Section 364 IPC suspecting it to be a case of kidnapping. 17. Informant has appeared as PW-1 during trial. He has alleged that the Farhat had left for market to get medicines at 12.30 in the afternoon on 29.8.2011. The FIR is lodged under Section 364 IPC suspecting it to be a case of kidnapping. 17. Informant has appeared as PW-1 during trial. He has alleged that the Farhat had left for market to get medicines at 12.30 in the afternoon on 29.8.2011. She was carrying a mobile and purple colour ladies purse. As she did not return for 4-5 hours the informant started searching her. He doubted the accused as he often harassed Farhat. In the past also when he came to know that accused was harassing Farhat he alongwith his son Mohammad Ahmad, Zafar Alam persuaded the accused not to harass her but such persuasion had no effect on the accused. PW-1 informed the I.O. that accused carried two mobile phones no. 8687040604 and 9598441220. In his examination in chief PW-1 has alleged that he received call from Mobile No. 9598441220 of accused, on his Mobile No. 9305696253, regarding kidnapping of Farhat. 18. In his cross-examination PW-1 has stated that mobile number of his daughter Farhat Fatima was 8957088397. PW-1 has proved the written report, recovery of dead-body, purse, knife etc. He has also supported the prosecution case of confession by the accused and the manner in which the offence has been committed by him. He has also stated that a complaint was earlier lodged against accused on 1.9.2008 regarding harassment meted out to another cousin. The accused had threatened her of throwing acid and eliminating her. The FIR in that regard has also been filed during cross-examination on which an objection was raised by the defence. PW-1 has admitted that PW-2 and PW-8 are his close relatives i.e. co-brother and his brother. He has stated that even prior to this incident accused Irfan had bad character. He has however stated categorically that in the event any marriage proposal was received from the parents of accused then he would have no objection to it. 19. PW-1 has admitted that parents of accused live at Kanpur city and that the keys of the house of accused’s father was with accused Irfan. All witnesses in this case are from the side of his in-laws and none from his family or any neighbour has come forward to support the prosecution case as a witness. Dead-body had been cut in eight pieces. Head was also cut. Dead-body was decomposed and there was swelling on the face. He could identify the dead-body. All witnesses in this case are from the side of his in-laws and none from his family or any neighbour has come forward to support the prosecution case as a witness. Dead-body had been cut in eight pieces. Head was also cut. Dead-body was decomposed and there was swelling on the face. He could identify the dead-body. The pond at Ramganj from where dead-body was recovered stretched upto Bithaura Ganga Ghat where Hindus cremate their dead. He has been confronted with the fact that the mobile numbers disclosed by him were put on surveillance and it was found that between 11.8.2011 to 29.8.2011 two telephone calls and 751 SMS were made on which he feigned his ignorance. List of calls made from the mobile number of Farhat 8687042604 has also been confronted to the witness on which also he came with similar response. PW-1 has said nothing about the calls made from the number of Farhat on the alleged mobile of accused number 9598441220. He made no inquiries as to in whose name these numbers exist. He has specifically stated that he got message regarding kidnap of Farhat on his mobile. PW-1 has also stated as under: 20. There is no explanation furnished by the prosecution with regard to non-reporting of the missing girl for eleven days. The fact that messages and calls were received on the mobile phone of PW-1 regarding kidnapping of Farhat is specifically acknowledged by PW-1. Evidence of PW-1 clearly suggests that large number of messages and phone calls were exchanged between mobile numbers allegedly owned by the accused and the deceased. It is also reflected from records that call detail records were collected by the Investigating Officer. This was a crucial piece of evidence. 21. The basis for the prosecution to suspect the accused appellant is the alleged mobile calls made to Farhat from the mobile allegedly owned by accused Irfan. This aspect requires attention of the Court, at the outset. 22. PW-1 has stated that mobile numbers 9598441220 and 8687040604 belong to the accused appellant. The informant has admitted that he made no inquiries as to who owns these numbers. The basis for informant to claim that these numbers belong to the accused is the information furnished by deceased herself. On this aspect following statement of PW-1 is relevant and therefore, reproduced: 23. The informant has admitted that he made no inquiries as to who owns these numbers. The basis for informant to claim that these numbers belong to the accused is the information furnished by deceased herself. On this aspect following statement of PW-1 is relevant and therefore, reproduced: 23. Statement of PW-1 about receiving of messages and phone calls from the mobile of accused to the mobile of deceased is not authenticated. The fact that the two numbers i.e. 9598441220 and 8687040604 were owned by accused is not established from the testimony of PW-1. There is no specific disclosure in the statement of PW-1 that the aforesaid two numbers were issued in the name of accused. The relevance of CDR to establish these calls/messages can arise only if it is proved that these numbers belonged to the accused. No certificate under Section 65B of the Indian Evidence Act, 1872 has been placed on record in support of the CDR. 24. PW-2 has also stated that the aforesaid two numbers belonged to the accused appellant. His source of information on this aspect is the disclosure made by the deceased. However, this fact was not disclosed in his statement made to the I.O. under Section 161 Cr.P.C. and has been stated for the first time before the Court. He too has admitted that he made no inquiries to ascertain the person to whom these numbers were issued. He has denied the suggestion that mobile number 8687040604 belonged to his sister-in-law i.e. wife of Ayyub. 25. Since this aspect goes to the root of the matter we have carefully examined the evidence on record in this respect. The statement of Investigating Officer (PW-3) Raj Kishore Pandey is relevant on this aspect. He has stated as under: 26. PW-3 has further admitted that the mobile phones of deceased and accused have not been recovered and there is no reference of such facts in the case diary. Following passage from the statement of PW-3 is also relevant: 27. The evidence on record relating to making of phone calls by accused from his mobile to the deceased or the informant is therefore not proved. Neither it has been established that the two numbers allegedly owned by the accused belonged to him nor it has been demonstrated by the prosecution that calls/messages were received from the numbers of accused on the mobile of informant. Neither it has been established that the two numbers allegedly owned by the accused belonged to him nor it has been demonstrated by the prosecution that calls/messages were received from the numbers of accused on the mobile of informant. The prosecution has failed to prove the circumstance of accused harassing the deceased by making calls or sending messages. It has also not been proved that the accused sent messages/calls to the informant regarding kidnapping of Farhat. 28. It is in the above context that we are required to consider the circumstance that for eleven long days the informant did not report the disappearance of Farhat to the police. In the event informant suspected the role of accused in disappearance of Farhat on account of his previous acts of harassment then there was no reason as to why no action was initiated against the accused for eleven long days. 29. The only explanation furnished by Sri Naqvi at the time of hearing is that the family was trying to locate the deceased and due to family prestige such facts are generally suppressed. Though we find substance in the argument of Sri Naqvi that such incidents are not immediately reported to the police but where strong suspicion existed against the accused, as alleged by the prosecution, the non-reporting of incident for so long raises a concern. The fact that a young lady from the house had gone missing and no report was lodged 11 days, is thus a circumstance, to be kept in mind. 30. The prosecution has furnished motive for the offence in question. The motive is that the deceased was not agreeable to the advances/proposal of the appellant to marry him. On this aspect, we have perused the testimony of PW-1, who happens to be the father of the deceased. On this aspect the testimony of PW-1 is not consistent. At one stage he claimed that accused was harassing his daughter but later admitted that this fact was not disclosed to him by the deceased. He has clearly stated that the deceased never informed him that she was being harassed by the accused appellant. He was also not informed that the deceased had turned down the proposal of accused to marry him. This fact was told to him by his sons who were never produced in evidence. He has clearly stated that the deceased never informed him that she was being harassed by the accused appellant. He was also not informed that the deceased had turned down the proposal of accused to marry him. This fact was told to him by his sons who were never produced in evidence. PW-1 claimed that he informed his brother about it who had assured that he would scold accused Irfan and persuade him not to do such things. 31. In the cross-examination, PW-1 has stated that in the event any proposal was received from the family members of the accused appellant regarding marriage of deceased with the accused appellant, he had no objection and would have accepted such a proposal. In the testimony of PW-1, therefore, we do not find any specific reference to the harassment having been meted out to the deceased by the accused appellant. It is stated that facts in that regard have been disclosed to PW-1 by his son, but the son has not been produced and, therefore, the disclosure by PW-1 that accused was chasing the deceased or wanted to marry her is at best a hearsay evidence on part of PW-1, which cannot be given much importance. PW-2 has stated that the deceased informed him that accused was harassing her for the last about one and a half to two months. This statement has also been made for the first time in Court and no such disclosure was made to the I.O. by PW-2 in his statement under Section 161 Cr.P.C. 32. On the aspect of motive, we do not find that there is any complaint made either by PW-1 or PW-2 to the police or anyone else that deceased was being harassed by the accused appellant. The statement of PW-1 clearly suggests that he had no objection to any proposal of marriage coming from the accused family. The statement of PW-2 in that regard is also vague and general in nature and is made for the first time before the Court. No other close family member like mother or brother, etc., has been produced by the prosecution, who may have specifically disclosed about the harassment being meted out to the deceased by the accused or any proposal for marriage having come from the accused. 33. No other close family member like mother or brother, etc., has been produced by the prosecution, who may have specifically disclosed about the harassment being meted out to the deceased by the accused or any proposal for marriage having come from the accused. 33. Though the prosecution has attempted to set up motive in this case based on circumstantial evidence, but the nature of evidence led in that regard does not appear to be very convincing. The statements of prosecution witnesses are not very inspiring in that regard. This has to be viewed in the context of the fact that no report was ever made either to the police nor relevant witnesses have been produced in that regard i.e the brother of the deceased. Statement of PW-2 in that regard is questioned on the ground that it is an improvement since such disclosure was not made by him in his statement under Section 161 Cr.P.C. 34. The other evidence produced by the prosecution is in the nature of disclosure statement made by the accused appellant leading to recovery of the dead body and other articles of the deceased. 35. Learned counsel for the parties have been at issue on the reliability of the evidence of recovery on the basis of disclosure statement made by the accused appellant. On this aspect, we have perused the original records and also the testimony of witnesses. It is undisputed that on the date when the FIR was lodged i.e. 8.9.2011, the investigating officer allegedly apprehended the accused at Bakarganj Tiraha at about 1.10 in the afternoon. There was no formal arrest of the accused by then. The investigating officer in his testimony has stated that the accused was taken in custody at 2.10 pm on 8.9.2011. Whether custody of the accused could be treated to have occurred at 1.10 pm is thus a matter of issue. 36. The case of the prosecution is that after the accused was apprehended he confessed the crime and appellant offered to provide the dead body and other missing articles. This statement, however, has been recorded only in the case diary and there is no separate disclosure statement of the accused on record. The case diary has been perused by the Court, which contains entire events occurred on 8.9.2011 and there is absolutely no contemporaneous recording of statement of accused when such disclosure was allegedly made by him. This statement, however, has been recorded only in the case diary and there is no separate disclosure statement of the accused on record. The case diary has been perused by the Court, which contains entire events occurred on 8.9.2011 and there is absolutely no contemporaneous recording of statement of accused when such disclosure was allegedly made by him. When, where and what exactly was disclosed by the accused has to be proved by the prosecution before any sanctity could be attached to the recovery allegedly made on the pointing out of accused appellant. 37. The recovery memo in respect of the dead-body, slippers and bag (Ex.Ka.3) does not specify the time when such recovery was made. PW-3 in his examination-in-chief has stated that he stopped the accused while he was going from Bakarganj to Jwalaganj and questioned him at about 13.10 hours on 8.9.2011. Following passage from his examination-in-chief is reproduced: However, in the cross-examination PW-3 has specified different time when the accused was questioned. This is clear from the following passage of cross-examination of PW-3: From the above statement of Investigating Officer it is clear that the time when confessional statement was given by the accused is not certain. Contradictory versions of I.O. on this aspect creates doubt on his testimony on this score. 38. It is not clear as to who noted the contents of the disclosure when it was being made by the accused. The place where alleged disclosure was made was a busy place but no independent person/witness has come forward to support the prosecution case. There is no memorandum/panchnama prepared or produced by the prosecution containing the disclosure of the accused appellant. Who had noted the disclosure statement is also not specified. The only material in that regard is the case diary on which there are no signatures of any independent witnesses. The case diary in which disclosure statement is noticed contains all particulars relating to investigation of the day. The entry in the case diary is made at the end of the day and contains all transactions of the day including the confession. It is, therefore, clear that the recording of alleged confession is not contemporaneous and there is no evidence to show that the confession was recorded at the time when it was allegedly made. The entry in the case diary is made at the end of the day and contains all transactions of the day including the confession. It is, therefore, clear that the recording of alleged confession is not contemporaneous and there is no evidence to show that the confession was recorded at the time when it was allegedly made. Thus, neither there is any reliable evidence of the time of confession or who recorded it; when it was recorded or what exactly were its contents. 39. Law with regard to recording of disclosure statement in terms of Section 27 of the Indian Evidence Act, 1872 is by now well settled. In order to ensure that any recovery is not converted into a discovery of fact on the pointing out of the accused certain reasonable precautions are required to be undertaken. The precautions must be such that it rules out manipulations, tricks and unfair dealings on part of the investigating officer and ensure that it contains truthful recording of disclosure made by the accused. 40. Law on the aspect of recovery has been settled since long. We may gainfully refer to the judgment of the Supreme Court in Rajesh & Anr. v. State of Madhya Pradesh, (2023) SCC Online SC 1202, wherein the law has been summarized as under: “27. More recently, in Boby v. State of Kerala, this Court referred to the decision of the Privy Council in Pulukuri Kotayya v. King Emperor, wherein Section 27 of the Evidence Act had been considered at length and it was noted that Section 27 provides an exception to the prohibition imposed by the preceding provisions and enables certain statements made by an ‘accused’ in ‘police custody’ to be proved. It was observed that the condition necessary to bring Section 27 into operation is that the discovery of a fact in consequence of information received from a person ‘accused of any offence’ in the ‘custody of a police officer’ must be deposed to, and thereupon so much of the information, as relates distinctly to the fact thereby discovered, may be proved. It was observed that normally, Section 27 is brought into operation when a person in ‘police custody’ produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime, of which the informant is accused. It was observed that normally, Section 27 is brought into operation when a person in ‘police custody’ produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime, of which the informant is accused. However, the Privy Council concluded that the exception to Section 26 added by Section 27 should not be held to nullify the substance of the provision and it would be fallacious to treat the ‘fact discovered’ 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. By way of example, it was elucidated that 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; as knives were discovered many years ago, but if 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. Noting this principle, this Court observed that Section 27 of the Evidence Act requires that 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 the said fact. 28. In the case on hand, though Rajesh Yadav was taken to the police station, be it on 29.03.2013 or even earlier, he could not be said to be in ‘police custody’ till he was arrested at 18 : 30 hours on 29.03.2013, as he did not figure as an ‘accused’ in the FIR and was not ‘accused of any offence’ till his arrest. Therefore, it was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact. In consequence, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not ‘accused of any offence’ and was not in ‘police custody’ at the point of time he allegedly made a confession. So too would be the case with Raja Yadav and Om Prakash Yadav, as they also were not named as the ‘accused’ in the FIR and were not ‘accused of any offence’ till they were arrested and taken into ‘police custody’, well after the recording of their confessions and the alleged seizures based thereon. Needless to state, this lapse on the part of the police is fatal to the prosecution's case, as it essentially turned upon the ‘recoveries’ made at the behest of the appellants, purportedly under Section 27 of the Evidence Act. 29. That apart, the manner in which the Investigating Officer (PW-16) went about drawing up the proceedings forms an important issue in itself and it is equally debilitative to the prosecution's case. In Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay, this Court noted that the primary intention behind the ‘panchnama’ is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. It was further noted that the legislative intent was to control and check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. It was pointed out that a panchnama can be used as corroborative evidence in the Court when the respectable person who is a witness thereto gives evidence in the Court of law under Section 157 of the Evidence Act. This Court noted that Section 100(4) to Section 100(8) Cr. P.C. stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Cr. This Court noted that Section 100(4) to Section 100(8) Cr. P.C. stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Cr. P.C. for the purposes of a valid panchnama: (a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real. (b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses. (c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama. (d) The I.O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the main I.O. (e) Place, Name of the police station, Officer rank (I.O.), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama. (f) The panchnama should be attested by the panch witnesses as well as by the concerned IO. (g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses. (h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued. 30. It was held that a panchnama would be inadmissible in a Court of law if it is recorded by the Investigating Officer in a manner violative of Section 162 Cr. P.C. as the procedure requires the Investigating Officer to record the search proceedings as if they were written by the panch witnesses themselves and it should not be recorded in the form of examining witnesses, as laid down in Section 161 Cr. P.C. as the procedure requires the Investigating Officer to record the search proceedings as if they were written by the panch witnesses themselves and it should not be recorded in the form of examining witnesses, as laid down in Section 161 Cr. P.C. This Court concluded, by stating that the entire panchnama would not be liable to be discarded in the event of deviation from the procedure and if the deviation occurred due to a practical impossibility, then the same should be recorded by the Investigating Officer so as to enable him to answer during the time of his examination as a witness in the Court of law. 31. Recently, in Ramanand @ Nandlal Bharti v. State of Uttar Pradesh13, a 3-Judge Bench of this Court observed that the requirement of law that needs to be fulfilled before accepting the evidence of discovery is by proving the contents of the panchnama and the Investigating Officer, in his deposition, is obliged in law to prove the contents of the panchnama. It was further observed that it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law that the prosecution would be justified in relying upon such evidence and the Trial Court may also accept the same. It was held that, in order to enable the Court to safely rely upon the evidence of the Investigating Officer, it is necessary that the exact words attributed to the accused, as the statement made by him, be brought on record and, for this purpose, the Investigating Officer is obliged to depose in his evidence the exact statement and not merely say that the discovery panchnama of the weapon of the offence was drawn up as the accused was willing to take it out from a particular place. 32. In Khet Singh v. Union of India, this Court held that even if there is a procedural illegality in conducting the search and seizure, the evidence collected thereby would not become inadmissible and the Court would consider all the circumstances to find out whether any serious prejudice has been caused to the accused. 32. In Khet Singh v. Union of India, this Court held that even if there is a procedural illegality in conducting the search and seizure, the evidence collected thereby would not become inadmissible and the Court would consider all the circumstances to find out whether any serious prejudice has been caused to the accused. However, this Court pointed out that if the search and seizure were in complete defiance of the law and procedure and there was any possibility of the evidence collected having been tampered with or interpolated during the course of such search and seizure, then that evidence could not be admitted. Though these observations were made in the context of a search and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985, they would have relevance generally. 33. Tested against this backdrop, the manner and method in which the panchnamas and memos were prepared in the case on hand leave the prosecution high and dry. For instance, the Naksha Panchnama (Ex. P3) dated 29.03.2013 records the names of five witnesses, including PW-2 and PW-8, and states that the witnesses inspected the body of deceased Ajit Pal @ Bobby; that there was a big wound on the right side of the neck of the deceased; that, in the opinion of the panch witnesses, the deceased was murdered by Rajesh Yadav and Raja Yadav by cutting his throat with a knife; that his body was stuffed in a sack; and that the sack was thrown in a well. It then goes on to record the opinion of the Investigating Officer (PW-16) wherein, after noting the factual aspects, he stated that Ajit Pal was murdered by Rajesh Yadav and Raja Yadav by cutting his throat with a knife. Notably, the narrative is not that of the panch witnesses but mostly of PW-16 himself and the panch witnesses merely signed the panchnama. Akin thereto, the Crime Details Form (Ex. Notably, the narrative is not that of the panch witnesses but mostly of PW-16 himself and the panch witnesses merely signed the panchnama. Akin thereto, the Crime Details Form (Ex. P13) notes that the scene of the crime was visited on 29.03.2013 at 15 : 15 hours and records that, 15 metres from the Khandari Canal, an old well is situated; that there are bushes growing around the well; that there was a body inside a white sack which was floating in the water in the well; that the width of the well was 2 metres 70 cms.; that the well was 6 metres deep; and that there was 1 metre water in the well and 5 metres was empty. Significantly, though the Crime Details Form notes that two panch witnesses were present, there is no narrative by them and they simply signed the form. The same is the position with the Crime Details Form (Ex. P14), relating to the finding of blood on the walls of the washing area and the floor; black plastic slippers; and an empty bottle of liquor. The same panch witnesses find mention in this Crime Detail Form and they affixed their signatures but again, it is not their narrative and there is no recording of how they went about finding these objects. Further, the form straightaway records the opinion that Rajesh Yadav and Raja Yadav had murdered Ajit Pal, put his body in a plastic sack and threw it into the well. 34. Property Seizure Memos (Ex. P18 and Ex. P23), relating to the seizure of the blood-stained clothes of Rajesh Yadav and Raja Yadav respectively, are drafted likewise wherein the witnesses, Bambam (PW-9) and Surjeet Singh, are named but there is no narrative on their part as to how they were led and assisted by someone to find these objects. On the same lines, Property Seizure Memo (Ex. P9), relating to the seizure of the blood-stained soil, controlled soil and the plastic slippers; Property Seizure Memo (Ex. P10), relating to seizure of the liquor bottle; Property Seizure Memo (Ex. P12), relating to seizure of the body of the deceased and his clothes along with the hair found in his right fist; Property Seizure Memo (Ex. P11), relating to seizure of the murder weapon; and Property Seizure Memo (Ex. P10), relating to seizure of the liquor bottle; Property Seizure Memo (Ex. P12), relating to seizure of the body of the deceased and his clothes along with the hair found in his right fist; Property Seizure Memo (Ex. P11), relating to seizure of the murder weapon; and Property Seizure Memo (Ex. P19) relating to seizure of the two mobile phones; also reflect the same style of recording. Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how. Ergo, no lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence.” 41. In the facts of the case, we find that there is neither any contemporaneous recording of the statement, nor the time when such statement was made is specified. There are no independent witnesses. Writing the disclosure statement in the case diary at the end of the day would not be reliable recording of statement in the facts of this case which could lead to any recovery in terms of Section 27 of the Indian Evidence Act, 1872, particularly when no panchnama has been prepared carrying narrative of the disclosure as per the two independent witnesses. 42. Even on the aspect of recovery, we find that the recovery memo, which is on record, merely states that on the pointing out of the accused appellant the dead body has been recovered from the plastic sack taken out from the drain next to the pond. This recovery memo has been proved by PW-1 and PW-2. There is nothing on record to show that this recovery memo has even been furnished to the accused. The recovery memo merely notes the date when the recovery was made without any specification with regard to the time when such recovery was made. There are no independent witness to this memo of recovery otherwise. Prosecution has alleged that there were 50 to 100 persons present at the time of recovery of the dead body but no independent person has come forward to testify such recovery. 43. Learned counsel for the appellant has laid much emphasis on the fact that the recovery memo does not mention that the accused was in custody at the time when the recovery allegedly was made at his pointing out. 43. Learned counsel for the appellant has laid much emphasis on the fact that the recovery memo does not mention that the accused was in custody at the time when the recovery allegedly was made at his pointing out. We find substance in such contention, inasmuch as the investigating officer in his testimony has specified the time when accused was taken in custody as 2.10 PM. We have already referred to the prosecution evidence which is inconsistent about the time when disclosure statement was made. The prosecution has therefore failed to prove that the accused was in custody when his alleged confessional statement was recorded. On this count also the recovery cannot be sustained under Section 27 of the Indian Evidence Act, 1872, inasmuch as the accused must be shown to be in custody at the time of making such statement. 44. Only other circumstance, which has been relied upon by the prosecution, is the statement of PW-8 that he saw the accused carrying flesh in a plastic sack on 30.8.2011 at about 6.15 in the morning. PW-8 is admittedly the real brother of PW2. Although in law testimony of a related can also be accepted, but while evaluating the reliability of such testimony the Court is expected to be cautious of the circumstances and the testimony must be evaluated with care and caution. 45. In the facts of the case, we find that the autopsy surgeon has opined that death of the deceased has occurred a week prior to conduct of postmortem on 8.9.2011. A week prior to it, approximately takes the date of death to be around 1.9.2011, whereas PW-8 saw the dead-body on 30.8.2011. The difference in time of two days raises a doubt upon the prosecution case. Even otherwise, we find that merely carrying flesh in a bag would not lead to an inference that the bag contained the dead body of the deceased only. We may also note the attending circumstance in which the statement came to be made by PW-8. PW-8 admittedly was present at the time when inquest was being conducted. At that stage, he did not divulge the information to the I.O. that he had seen the accused carrying bag of flesh on 30.8.2011. We may also note the attending circumstance in which the statement came to be made by PW-8. PW-8 admittedly was present at the time when inquest was being conducted. At that stage, he did not divulge the information to the I.O. that he had seen the accused carrying bag of flesh on 30.8.2011. It is after 12 days of the conduct of inquest and postmortem i.e. 20th September, 2011, that PW-8 for the first time disclosed the I.O. that he had seen the accused appellant carrying a bag full of flesh. PW-8 is a close relative and on 8th September, 2011 itself he came to know that the deceased has been done to death. The circumstance of his having seen the accused taking a bag full of flesh was an important fact and was expected to have been informed at the first instance. The fact that such fact was withheld for almost 12 days, therefore, also creates a doubt on the testimony of PW-8. 46. Sri S.F.A. Naqvi for the informant has laid much emphasis on the fact that FIR was lodged against the accused on 1.9.2008 at police station Chamanganj regarding threat and harassment meted out to another cousin. This is reflected from the evidence of PW-1. On its strength the character of accused is challenged on the premise that he is habitual of harassing ladies. 47. Sri Kamal Krishna, on the other hand, states that the aforesaid evidence has not been specifically confronted to the accused under Section 313 Cr.P.C. and, therefore, it cannot be looked into and relied upon against the accused appellant. 48. We find substance in the argument of Sri Krishna, inasmuch as it is by now settled that any evidence or circumstance not referred to the accused for recording his statement under Section 313 Cr.P.C. cannot be read or relied upon against the accused appellant. We have perused the statement of accused under Section 313 Cr.P.C. and find that the circumstance/evidence in respect of accused’s implication in the previous FIR lodged at police station Chamanganj has not been confronted to him. 49. It is also admitted to the informant side that the aforesaid FIR lodged at police station Chamanganj ultimately resulted in a closure report and, therefore, this aspect does not merit any consideration particularly when it has not been confronted to the accused under Section 313 Cr.P.C. 50. 49. It is also admitted to the informant side that the aforesaid FIR lodged at police station Chamanganj ultimately resulted in a closure report and, therefore, this aspect does not merit any consideration particularly when it has not been confronted to the accused under Section 313 Cr.P.C. 50. Before concluding we may also refer to the defence of the accused taken under Section 313 Cr.P.C. as per which the deceased was in love with one Sandeep and she has gone with him somewhere. Although no defence witness in this regard has been produced but we find that prosecution witnesses have been suggested that Farhat has actually gone with Sandeep. The I.O. has not made any inquiries on this line of defence put forth by the accused. Neither Sandeep who was studying B.Ed. with Farhat has been interrogated nor his call detail etc. have been examined. 51. The accused has also questioned the recovery of dead-body as being that of Farhat. The DNA report to connect dead-body with the parents of Farhat is not conclusive. Once the recovery of plastic sack containing dead-body and the ladies bag having domicile certificate of deceased is discarded by us, on the strength of evidence on record, even the identity of the dead-body as being of Farhat is not free from doubt. The place from where dead-body is recovered is close to the place of cremation for Hindus and availability of dead-body belonging to someone else may remain a distinct possibility. 52. We may also note that autopsy surgeon (PW-4) in his cross-examination has specifically stated that the dead body was not identifiable. The statement of PW-4 in the cross-examination regarding the condition of the dead body is reproduced hereinafter: On this aspect the testimony of PW-3 is also relevant. The investigating officer has also admitted that at the time when the dead body was retrieved from sack it was in highly decomposed condition. This fact is also mentioned in the inquest report. We, therefore, find substance in the appellant’s contention that the prosecution has failed to conclusively establish the identity of the dead body as being that of the deceased Farhat. This aspect of the matter has apparently escaped the attention of the trial Judge. 53. Though the death of young girl is a serious offence, but merely on the strength of suspicion an accused cannot be punished for it. This aspect of the matter has apparently escaped the attention of the trial Judge. 53. Though the death of young girl is a serious offence, but merely on the strength of suspicion an accused cannot be punished for it. It is for the prosecution to prove by adducing adequate evidence that the accused has committed the offence. In the facts of the case, we find that the prosecution has not succeeded in establishing the guilt of the accused appellant beyond reasonable doubt. In the facts of the case, we are inclined to grant benefit of doubt to the accused. Law is otherwise settled that suspicion, howsoever grave, cannot be a substitute for legally admissible evidence which alone can constitute the basis for conviction of accused. 54. We have perused the judgment and order passed by the trial court and we find that the evidence on record has not been carefully evaluated. On the aspect of recovery the law has not been correctly applied. The inherent contradictions in the testimony of witnesses have been overlooked. Serious lapses on part of the investigation in identifying the person in whose names SIM cards were issued; non-certification of CDR report in terms of Section 65B of the Indian Evidence Act, 1872 have not been factored in. In such circumstances, we cannot sustain the conclusions drawn by the court of Sessions to convict and sentence the accused who is in jail for over twelve years. 55. For the reasons and discussions held above, this appeal succeeds and is allowed. The judgment and order dated 13.01.2023, passed by the Additional Sessions Judge, Court No. 1, Fatehpur in Sessions Trial No. 06 of 2012 arising out of Case Crime No. 383 of 2011, under Sections 364, 302, 201 IPC and in Sessions Trial No. 07 of 2012 arising out of Case Crime No. 385 of 2011, under Section 4/25 Arms Act, Police Station Kotwali, District Fatehpur, is set aside. The appellant Irfan Ahmed Alias Guddu shall be set to liberty, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C.