The Court held that the statement given by the appellant under Section 27 of the Evidence Act was admissible in evidence, even though it was made in police custody, because it was made in the presence of two witnesses and was corroborated by the recovery of the murder weapon from the place disclosed by the appellant.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The appellant was convicted of the offence under Section 302 of the Indian Penal Code, 1860 (for short, “the IPC”) by the impugned Judgment dated 31-07-2017, in Sessions Trial Case No.01 of 2015. By an Order on Sentence of the same date, he was to undergo imprisonment for life and to pay a fine of Rs.25,000/- (Rupees twenty-five thousand) only, with a default clause of imprisonment. The period of imprisonment already undergone by him was set off against the ordered imprisonment. Aggrieved, the appellant is before this Court.

2(i). We may briefly advert to the facts of the case. On 05-12-2014, one Shiv Prakash Gupta (P.W.1) of Naya Bazar, West Sikkim, lodged a written report (Exhibit 1), before the Namchi Police Station, South Sikkim, informing therein that on 02-12-2014, Bimal Subba (the appellant), along with two of his friends (one male and one female) had hired the taxi of one Rohit Shah (the victim) of Naya Bazar. Thereafter, the victim went missing from his home. That, on receiving information from the Namchi District Hospital on 05-12-2014 around 3 p.m. that an unidentified body was lying therein, he reached the Hospital and identified the body as that of the victim. Suspecting that the appellant and his two friends had murdered the victim, he lodged the FIR, Exhibit 1.

(ii) Based on such information, Namchi Police Station Case No.149/14, dated 05-12-2014, under Sections 302/34 of the IPC was registered and investigation taken up. Investigation led to the discovery that the appellant after hiring the Alto vehicle went with the victim to South Sikkim to enable the appellant elope with P.W.13. En route to her house he did away with the victim with the help of M.O.XX. On completion of investigation, Charge-Sheet came to be submitted against the appellant under Sections 302/382 of the IPC. The learned trial Court framed Charge against the appellant under Section 302 of the IPC to which he entered a plea of “not guilty”. To bring home the charge against the appellant, the Prosecution examined 49 witnesses including the Investigating Officer (I.O.), P.W.49 of the case. On closure of evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.), his responses recorded, arguments heard and thereafter, the impugned Judgment and Order on Sentence pronounced.

3(i). Advancing a multipronged argument for the appellant before this Court, learned Senior Counsel contended that the alleged FIR, Exhibit 1, dated 05-12-2014, contains overwriting on various dates mentioned therein, rendering the document suspicious. That, Exhibit 1 makes a mention of a report having been lodged at the Naya Bazar Police Station informing of the missing victim, which however finds no place in the documents filed by the Prosecution, thereby raising doubts of its very existence. That, as Exhibit 46, report lodged by one Indra Lall Gurung on 03-12-2014, pertaining to the incident was first in point of time, hence Exhibit 1 lodged by P.W.1 is the second FIR and is thus hit by the provisions of Section 162 of the Cr.P.C. Exhibit 1 indicates that there were two other people along with the appellant and the victim in the vehicle when they left Jorethang, but no investigation transpired into the role of the other occupants.

(ii) That, the disclosure statement of the appellant (Exhibit 15) under Section 27 of the Indian Evidence Act, 1872 (for short, Evidence Act) on which the Prosecution is relying on is rife with defects, besides being inculpatory and involuntary rendering it inadmissible in evidence. That, P.W.14, the alleged witness to Exhibit 15, under cross-examination has admitted that he only heard the appellant answering questions put to him, during which, he stated that he had killed the victim and could show the place where he had killed him, establishing the involuntary nature of the statement which ought to be rejected. On this aspect reliance was placed on Meghaji Godad