Important point
Where accused got the fire arm recovered from underneath sand by river bank, recovery could not be disbelieved on ground that place was frequented by public.

Headnote:Indian Penal Code, 1860—Sections 149, 302/149, 148—Five appellants convicted under—Accused armed with fire-arms came in a Car to office of deceased persons and killed five persons by firing shots—PW1, 2 and 4 were eye witness of incident—Non-recovery of Car will be no ground to disbelieve otherwise creditworthy evidence—Accused got recovered arms pursuant to disclosure which were recovered from river bank, hidden under sand and covered by stones—High Court erred in disbelieving recovery on ground that place of recovery was frequented by public—PW1 and 2 supported prosecution case but were got recalled for reexamination by defence after one year and in that re-examination they turned hostile—It appeared they were won over by threat or intimidation and they resiled with regard to identity of accused though they consistently supported prosecution story with regard to date and place of incident—Deceased had died of gun shot injury but they having suffered incised wound could by furniture, table or other article lying in office and point was clarified by doctor—Conviction called for no interference. (Paras 5 to 10)

Judgment

Sema, J.—These two appeals are directed against a common judgment of the High Court of Uttaranchal at Nainital dated 5.8.2004 confirming the order of the trial court convicting the five appellants under Sections 149, 302/149 IPC and a fine of Rs. 10,000/-; in default two years’ RI. They were further convicted under Section 25 of the Arms Act and Section 148 IPC and sentenced to three years’ RI respectively and a fine amounting to Rs. 1,000/-; in default one year’s RI. It was further directed that all the sentences would run concurrently.

2. Criminal Appeal No. 137 of 2005 has been preferred by three accused, A1-Nisar Khan alias Guddu, A2-Gulzar Khan alias Pappu and A3-Bhura alias Shakil. Criminal Appeal No. 138 of 2005 has been preferred by two accused, A4-Rajesh Sharma and A5-Navin Sharma. The trial court convicted A4-Rajesh Sharma and A5-Navin Sharma under Section 302/149 IPC and sentenced them to death. However, on appeal the High Court set aside the death sentence imposed upon A4 and A5 and converted the death sentence into life imprisonment.

3. No appeal has been preferred by the State of Uttaranchal against the order of the High Court converting the death sentence of A4 and A5 into life imprisonment. The High Court has also acquitted all the accused of the charge under Section 25 of the Arms Act. Aggrieved thereby by the order of the High Court confirming conviction recorded by the trial court the two appeals have been preferred by the five convicted accused by special leave.

4. We have heard the parties. It is contended by Mr. Jaspal, Singh, learned senior counsel that no link has been established with regard to the owner of the offending Car bearing No.DL 3C B 0888 (Fiat N.E.Car) connecting the accused with the offence. He further contended that the recovery of the arms said to have been used by the accused has not been proved by the prosecution. All the three eye-witnesses who have said to have been direct witnesses of the scene of occurrence have been turned hostile.

5. With regard to the Car bearing registration No. DL 3C B 0888 which was used by the accused in the course of the offence committed it has been established by the evidence of PW.2 Mohd. Arif. He has categorically stated that all the accused named in the FIR had come to the office of the deceased Juned Alam armed with pistols/Katas entered inside and started firing indiscriminately. This statement has been corroborated by the evidence of PW.1-Shoeb Alam and PW.4-Naeem Babu. Therefore, there is a direct evidence by the eye-witnesses. Non-recovery of the offending Car said to have been used by the accused will be no ground to disbelieve otherwise the creditworthy evidence of the prosecution witnesses.

6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17.12.1999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these have been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee alias Dhana vs. State of West Bengal, 1994 (2) SCC 220, it is held that entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statem

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2006 Supreme(SC) 67

Important pointWhere accused got the fire arm recovered from underneath sand by river bank, recovery could not be disbelieved on ground that place was frequented by public.

Cases Referred (3)

Important point
Where accused got the fire arm recovered from underneath sand by river bank, recovery could not be disbelieved on ground that place was frequented by public.