2009 Supreme(All) 3145

[2009(8) ADJ 251 (DB)]
ALLAHABAD HIGH COURT
BEFORE : IMTIYAZ MURTAZA AND K.N. PANDEY, JJ.
MOHINDER SINGH PANDHER AND ANOTHER ....Appellants
Versus
STATE OF U.P. ....Respondent
(Criminal (Capital) Appeal No. 1475 of 2009 and Reference No. 3 of 2009, decided on 11th September, 2009)

Headnote:(A) (Indian) Penal Code, 1860—Sections 302, 120-B, 364, 363, 366, 376, 511 and 201—Evidence Act, 1872—Sections 24, 25, 26, 27, 28, 29, 30, 8 and 138—Criminal Procedure Code, 1973—Sections 319, 161, 162, 164, 313, 273, 386 and 173—Murder—Offence of rape—Death sentence—Reference for—Appeal against conviction and sentence—Conviction based on circumstantial evidence—Co-appellant led to discovery of bodies parts and other articles—Admissible in evidence under Section 27 of Act—Incriminating circumstances is a pivotal link in chain of circumstances—No enmity suggested against prosecution witnesses—Voluntarily confessional statement of accused recorded while complying provisions of Section 164 of Cr.P.C.—Confessional statement corroborated in material particulars by other reliable evidence—Prosecution proved all incriminating circumstances against co-appellant—Chain of circumstances is complete to prove guilt of co-appellant—However, during period of incident appellant was in Australia along with his wife—Summoning of appellant while exercising power under Section 319 of Cr.P.C.—Appellant was not named in FIR nor charge-sheeted—No logical/substantive evidence against appellant—Trial of appellant was vitiated—No scope for retrial—No witness on record who had spoken about presence of appellant—Confession of co-accused/co-appellant not admissible in absence of cogent evidence—Moral conviction cannot take place of legal conviction—Memo of recovery withheld by C.B.I.—Trial Court rightly impeached impartiality of C.B.I.—Co-appellant committed murders in so gruesome, diabolical and revolting manner—Death sentence against co-appellant confirmed—However, appellant acquitted. [Paras 59, 69, 71, 93, 132, 157, 178, 190, 191 and 192]

       (B) Criminal trial—Circumstantial evidence—When conviction based thereon—There must be chain of evidence so complete—Such as to show that within all human probability—Act must have been done by accused. [Para 59]

       (C) Evidence Act, 1872—Sections 27 and 26—Confessional statement—Proving of—Confessions made to police officer while in police custody—Cannot be proved against that person accused of an offence—Of course, confession made in immediate presence of a Magistrate can be proved against him. [Para 69]

       (D) Criminal Procedure Code, 1973—Section 162—Statement thereunder—Admissibility—Bar of—Section 162 of Cr.P.C. bars reception of any statement made to a police officer—In course of an investigation as evidence against accused person at any enquiry or trial—Except to extent that such statements can be made use of by accused to contradict witnesses. [Para 69]

       (E) Evidence Act, 1872—Section 27, Proviso—Confessional statement—Admissibility of—Proviso, lifts ban against admissibility of confession/statement made to police to a limited extent by allowing proof of information of a specified nature furnished by accused in police custody—In that sense Section 27 is considered to be an exception to rules embodied in Sections 25 and 26 of Act. [Para 69]

       (F) Evidence Act, 1872—Section 27—Discovery of fact—What amount to—Where information furnished by person in custody is verified by police officer by going to spot mentioned by informant—Find it to be correct—That amounts to discovery of fact within meaning of Section 27 of Act. [Para 71]

       (G) Words and phrases—Word “distinctly”—Meaning of—It means directly, indubitably, strictly and unmistakably. [Para 74]

       (H) Criminal trial—Expression “Fact discovered”—Connotation of—It includes not only physical object produced—But, also a place from which it is produced—And knowledge of accused as to this. [Para 71]

       (I) Evidence Act, 1872—Section 8—Conduct—Admissibility of—In present case demonstration of accused person was in response to a question as to how he used to cut dead body—Is not admissible under Section 8 of Act. [Para 92]

       (J) Information and Technology Act, 2000—Section 4—Information—Admissibility of—If such information or matter is—Rendered as made available in an electronic form—And accessible so as to be useful for subsequent reference. [Para 129]

       (K) Evidence Act, 1872—Section 30—Confessional statement—Co-accused—Can be taken into consideration as against such person—As well as against person who makes such confession. [Para 170]

       (L) Criminal trial—Moral conviction—Whether conviction can be based thereon—A moral conviction however, strong or genuine cannot amount to a legal conviction supportable in law. [Para 176]

       (M) Criminal Procedure Code, 1973—Section 319—Summoning—When can be—There must be substantive evidence against a person—In order to summon him for trial. [Para 145]