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Moirangthem Tomba Singh Vs. State of Manipur - Court Judgment

LegalCrystal Citation
CourtGuwahati High Court
Decided On
AppellantMoirangthem Tomba Singh
RespondentState of Manipur
- - 1. law cannot create life but it can promote peace harmony and orderliness in society by discouraging effectively delinquent misadventures which sometime result in loss of life. when it destroys or demotes one life it does so to make living safe and peaceful for thousand others: equally important is the rule that it is unsafe to convict a person solely on circumstantial evidence especially in a case where he is charged with an offence which exposes him to the extreme penalty. if circumstances proved in the case establish a chain of strong links which dispel effectively any doubt arising in any case due to lack of direct evidence and if the circumstances proved are consistent with the guilt of the accused the court will be failing in its duty if it hesitates to visit the offender..... t.n. singh, j.1. law cannot create life but it can promote peace harmony and orderliness in society by discouraging effectively delinquent misadventures which sometime result in loss of life. the goal of penal law is to punish crime to maintain social equilibrium. when it destroys or demotes one life it does so to make living safe and peaceful for thousand others: it does so for 'social defence'. for checking devient behaviour and promoting wholesome social norms. but those who wield the lethal power of law are by law denied a free will and a free voice. decree they cannot as they please to tinker with precious human lives. our rules of criminal justice remind the courts of the solemn duty on the one hand to punish a crime and on the other hand to find and punish the real offender so.....

T.N. Singh, J.

1. Law cannot create life but it can promote peace harmony and orderliness in society by discouraging effectively delinquent misadventures which sometime result in loss of life. The goal of penal law is to punish crime to maintain social equilibrium. When it destroys or demotes one life it does so to make living safe and peaceful for thousand others: it does so for 'social defence'. for checking devient behaviour and promoting wholesome social norms. But those who wield the lethal power of law are by law denied a free will and a free voice. Decree they cannot as they please to tinker with precious human lives. Our rules of criminal justice remind the courts of the solemn duty on the one hand to punish a crime and on the other hand to find and punish the real offender so that no innocent life is extinguished or impaired. An accused is entitled to the benefit of doubt - but such doubt on the facts proved in the case must be doubt entertained by not a timid but a rational mind. Equally important is the rule that it is unsafe to convict a person solely on circumstantial evidence especially in a case where he is charged with an offence which exposes him to the extreme penalty. This rule is also qualified. If circumstances proved in the case establish a chain of strong links which dispel effectively any doubt arising in any case due to lack of direct evidence and if the circumstances proved are consistent with the guilt of the accused the court will be failing in its duty if it hesitates to visit the offender with the penalty prescribed by law. These beacons have charted our course so we move on to the facts of the case in hand.

2. This appeal is from jail but before us in this Court Mr. Y. Imo Singh, the learned Counsel has argued the case of the appellant with clarity and precision highlighting the salient aspects. With his assistance which was augmented by the learned Public Prosecutor we endeavoured to consider all aspects of the case in detail by subjecting the evidence adduced by the prosecution to minute scrutiny.

3. The prosecution case unfolds with a tragic scene of a weird pattern. On 19-6-75 at 2-30 P.M. the appellant appeared at the police station and surrendered himself saying that he had cut his uterine brother. His statement was recorded which was treated as the First Information Report (Ext. P-7) to initiate the investigation in the case. The FIR is to the effect that he lived with his wife Manglempi Devi as husband and wife for about 11 years and through her he had two sons and two daughters. His brother Ibochoubi Singh whom he had killed lived with their parents in a separate house. He was unmarried and the appellant suspected him to have developed illicit relation with his wife. On 6-6-75 he gave her a slap on her face for which she left him for her paternal house. He persuaded her to come back but as she refused his doubt about her infidelity increased and he then decided to kill his brother. On 19-6-75 at about 2 P.M. he saw Ibochoubi sleeping in his room in a bed with his 3 year old daughter Premdhani. He gave two blows on his throat with 'Thangiou Maton Kakpa' (a sharp cutting instrument. hereinafter 'dao') as a result of which the neck was almost cut off. His elder brother Kondumba Singh (P.W. 1) chased him but he ran straight for the police station throwing on his way the dao into the canal named Ithei.

4. The Officer-in-charge of the police Station who recorded the FIR saw some blood stains on the trousers worn by the appellant which he seized and he put him under arrest. After keeping him in the lockup the police officer proceeded to the place of occurrence which was only 1 K.M. away. There he found the dead body of Ibochoubi lying in a Pool of blood. He held inquest on the dead body and also prepared the site plan. He also seized a bed cover which was stained with blood. He brought the dead body to the police station from where it was sent for Postmortem examination. Then he took out the appellant from the lockup and asked him to lead him to the place where the dao was thrown away by him. The dao was recovered from the canal and duly seized. During the course of investigation, one small girl Premlata aged about 5 years whom he had found on the spot with some injuries was got examined by a doctor. The trousers and the bed-cover seized by him were sent for examination to the Central Forensic Science Laboratory at Calcutta. On 26-6-75 the statement of Kondumba Singh. appellant's brother, was recorded by the Judicial Magistrate. 1st Class. Imphal East. under Section 164. Cr. P. C. On completion of the investigation the appellant was charge sheeted to stand his trial under Section 302. I.P.C.

5. The prosecution examined as many as 10 witnesses including the appellant's father Ibomcha Singh (P.W. 2). his brother Kondumba Singh (P.W. 1) and his wife Manglembi (P.W. 6). The seizure lists. the sketch map. the post-mortem report as well as the injury report; in respect of the girl and the report of the Serologist were exhibited in the case. The material exhibits- the dao the trousers and the bed-cover were also brought on record.

6. The appellant was examined under Section 313. Cr. P. C. and the circumstances appearing against him in the evidence were put to him in detail for his explanation. His version of the case was that he was working with his brother Kondumba Singh (P.W. 1) on the date of occurrence up to 11 A.M. Thereafter having finished his meal he went out for a stroll when the police arrested him on the road at about 4-30 P. M. He denied that he made any report at the police station on that date and it was his case that he was forced to give his signature on the FIR by the police after his arrest. The learned Sessions Judge discussed the evidence in detail and accepted the prosecution case. He accepted the evidence of discovery of the dao and also listed the various incriminating circumstances disclosed by the evidence against the appellant and after taking into account the motive for the crime also established by the evidence of the wife came to the conclusion that the prosecution case against the appellant was fully established beyond reasonable doubt. Accordingly he convicted the appellant under Section 302. I.P.C, and sentenced him to imprisonment for life.

7. The admitted position is that there is no eve-witness of the occurrence and the evidence in the case is entirely circumstantial. In this view of the matter we made a reappraisal of the evidence on record ourselves to decide whether the evidence adduced in the case leads to the irresistible conclusion that the appellant was guilty of the offence charged. From the evidence of P.W. 1 who is appellant's own brother with whom he was admittedly working just before the occurrence the following facts emerge which, in our opinion establish a strong chain of circumstances to implicate the appellant in the crime inasmuch as the preparation for the crime as well as the previous and subsequent conduct, in relation to the crime of the appellant have been proved by impeccable evidence.

(1) The appellant had his meal with him a few hours before the occurrence but he finished his meal earlier and instead of joining the witness in carpentry work in which he was engaged with him just before taking meal he went into his room and from there he came out dressed up when he was called by the witness to join him in the work. The witness resumed the work alone at about 12 noon as the appellant did not join him.

(2) At about 2 P.M. on that day he saw the appellant standing on the plinth which faced on the west of the house in which Ibochoubi was found lying dead and on the east of the house in which the witness was working. He had a dao in his hand and he was calling his son, Ningthem. The witness also noticed that he was in an unsteady mood.

(3) When his son did not respond he ran out holding the dao in his hand. He was accosted by the witness but he gave no answer. The witness pursued him to a distance of about 100 ft. after which he came back on hearing cries coming from inside their house.

(4) When the witness? came back he found his daughter Premlata standing on the plinth crying. with her face and body smeared with blood. She had a small cut injury on her eye-brow. The witness immediately entered the room of Ibochoubi from where his daughter was coming out and found him lying on the bed in a pool of blood with injuries on his neck.

(5) His daughter Premlata used to sleep with the deceased as he was very fond of her.

(6) At the time of occurrence only the father (P.W. 2). besides him the child and the deceased were present in the house and he left P.W. 2 with the injured before going out to arrange transport for removing the injured to the hospital.

8. His evidence to the above effect is substantially corroborated by his earlier statement made under Section 164. Cr. P. C. which lends credence and reassurance to his testimony in court. In his earlier statement also he had said that he saw the appellant on the plinth in an excited mood holding a dao in his hand and from there he saw him calling his son Ningthem and as Ningthem did not respond he ran away holding the dao in his hand and the witness pursued him. He came back hearing cries and saw his daughter Premlata crying in the verandah with a small cut injury on her eyebrow and body smeared with blood. He rushed to the room of Ibochoubi and found him lying on the bed in a pool of blood with his rock cut. The evidence of this witness. according to the learned Counsel for the appellant, should be discarded mainly for the following reasons:

(1) The witness has deposed that the appellant was wearing a white trouser, whereas the trouser seized was of brown colour.

(2) In his evidence the witness had deposed that the dao which he saw in the hand of the appellant on the date of the occurrence was seen by him in the use of the appellant on many previous occasions, whereas in his statement under Section 164. Cr. P. C. he said that he never saw the weapon prior to the occurrence and he did not know to whom it belonged.

3. He has not deposed about blood slains either on the dao or on the appellant's garments which he should have noticed if his version was true.

9. We do not consider these discrepancies to be so material as to discredit this witness to whom both the appellant and the deceased were equally dear as brothers. Whether we call it an embellishment or a slip resulting from loss of memory the contradiction in his evidence on the first two points and the omission in respect of the third point cannot be viewed in isolation but the evidence of the witness has to be appreciated from the view-point of the case of his testimony ignoring the variances on fringes following the test laid down by the apex court in Shivaii's case AIR 1973 SC 2622 : 1973 Cri LJ 1783. It is also to be noted that the evidence of this witness receives corroboration also from the testimony of his father and there is no suggestion in his case also as in the case of this witness, that he was inimically disposed to his other son the appellant. P.W. 2 has deposed that after finishing his morning meal around 12 noon he was sleeping in his room when he was awakened by the call of P.W. 1. He was told by P.W. 1 that the appellant had gone away after inflicting the cut injury on Ibochoubi and asked him to look after the injured so that he could fetch a vehicle for carrying the injured to the hospital. He has further deposed that soon after the re- turn of P.W, 1 the police party also came and he learned that the appellant had already surrendered of the police station. He has further deposed that he saw Premlata having an injury on her eyebrow and blood smeared all over her body.

10. This witness (P.W. 2) has further deposed in his cross-examination that there was a gate to the west of his house about 120 ft. away which was not visible from the pastern outhouse. But he has further deposed that there were two approach roads to the said gate one from the east and the other from the west. Relying on this evidence it is submitted before us that P.W. 1 could not have seen the appellant going out of the gate as he was working in the eastern outhouse. It is also submitted before us that the plinth about which P.W. 1 has spoken in his evidence is not shown in the sketch map (Ext. P-8) but it is 1o be noted that this witness has also spoken about the plinth and he has corroborated P.W. 1 to fix its site as lying to the east of the house in which he and Ibochoubi lived. On a perusal of the sketch map. Ext. P-8 we have no manner of doubt that P.W. 1 could see the appellant leaving the place of occurrence after coming out from the house in which P.W. 2 and Ibochoubi lived although the plinth is not shown in it. Indeed, it was not suggested to the I. O. (P.W. 10) who prepared the sketch map that no such plinth existed.

11. The wife of the appellant. P.W. 6. has stated in her evidence that a few months prior to the occurrence, the appellant with his wife and children moved to another village to work there for their livelihood and that they lived there for about 3 months. When they were staying there the husband quarrelled with her and imputed her illicit intimacy with Ibochoubi. She was also assaulted during those quarrels. One day-while they were staying in the house her mother and aunt came there and she went away with them with the children to her paternal house. At the latter place she learnt after 14/15 days that her husband had killed his brother Ibochoubi. Before that her husband had come to see her there once or twice and also requested her to come back to him but she refused. Relying on her statement the evidence of P.Ws. 1 and 2 is assailed on the ground that those two witnesses had given a different version about the place from where the appellant's wife left for her paternal house but we think that there is no substance in this contention inasmuch as neither P.W. 1 nor P.W. 2 in categorical term named the place from where P.W. 6 left for her paternal house after quarrelling with the appellant. There is no doubt about the fact that the wife and the husband were living separately at different places on the date of the occurrence and that the appellant and his wife used to quarrel. as deposed to by P.W. 2. We sec no reason to disbelieve P.W. 6 and her categorical statement that the appellant suspected her illicit relationship with his brother Ibochoubi. The evidence of this witness supplies the motive for the crime and we accent the finding of the learned trial court that in this case motive has been duly established to lend weight to the prosecution case.

12. We may now refer to the other circumstances proved in this case of which the most important is the one relating to discovery. It is settled law that the FIR is not a substantive evidence and in this case it is tainted further being hit by Section 25 of the Evidence Act but it cannot also be equally disputed that such information as is contemplated under Section 27 of the Act which led to the discovery of the dao in this case is admissible even though it formed part of the F.I.R. In this case however the information is proved aliunde by P.W. 8 in whose presence the appellant made the statement that he had dropped the dao inside the water of Ithei canal and that he would be able to pick up and| hand over the same to the police. P.W. 10 (I.O.) has also deposed that the appellant led the police party and the witnesses to the place from where the dao was recovered. It is his further evidence that the appellant on arrival at the place entered into the canal and picked up the dao which he handed over to him in presence of other witnesses. That dao. Mat. Ext. 1 was produced in the court, The seizure made in respect thereof vide Ext. P-4 has also been proved bv P.Ws. 7 and 8. Our attention was drawn by the learned Counsel of the appellant to the fact that at one place in his evidence P.W. 7 has spoken about Leima canal. It is however to be noted that it is his evidence that the appellant led the police party to the Ithei canal and there he made a search in the water for the dao and picked up the same which he handed over to the I.O. in his presence. In our opinion the evidence of discovery is a very important incriminating circumstance against the appellant which has been duly proved in this case. The other evidence in the case relates to the seizure of trousers from the wearing of the appellant and the bed-cover from the house? of the appellant. However. on a perusal of the report of the Seriologist (Ext. 5) we find that it could not be established in this case that although the articles examined were said to contain human blood the fact that the same blood soiled both could not be established inasmuch as the blood group could not be determined according to the Seriologist. Therefore. the prosecution cannot rely on the evidence of seizure in this case against the appellant and for this reason we also hold that the fact P.W. 1 could not Hive the correct colour of the trousers cannot taint his evidence.

13. Grievance is also made before us against non-examination by the prosecution of the child witness, Premlata who according to the learned Counsel for the appellant, would have been a material witness to depose as an eve-witness in this case. We do not however think that this submission has any merit as it is difficult to conclude from the evidence on record that this witness was in a position to witness the occurrence. The only evidence in the case is that she could be sleeping with the deceased at the time of occurrence as appears from the evidence of P.Ws. 1. 2 and the injury report. That apart, as submitted by the learned public prosecutor. relying on the decision in Darya Singh v. State of Punjab AIR 1965 SC 323 : 1965(1) Cri LJ 350 the duty of the prosecution is normally to examine all eye-witnesses but if the selection was made fairly and honestly and not with a view to suppress inconvenient witness from the witness box no adverse inference could be drawn against the prosecution. We accept the submission of the learned Public Prosecutor that in the facts and circumstances of the instant case it cannot be said that the child witness has been deliberately kept. back. Indeed. as pointed out by their Lordships in : [1964]8SCR133 (Masalti v. State of U. P.) a general rule cannot be laid down that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised. In such a case as pointed out by their Lordships, it is open to the defence to examine such witnesses and court can also call such witnesses if it finds the evidence of such witnesses is necessary for the ends of justice.

14. Mr. Imo Sinsh the learned Counsel for' the appellant has placed .implicit reliance on the decision in Aghnoo Nagesia v. State of Bihar : 1966CriLJ100 submitting that the facts thereof are on all fours with those of the case in hand and on the basis of the evidence produced by the prosecution in this case the conviction of the appellant cannot be sustained in law. It is true that the factual position in this case is to a great extent similar in that in both cases the same type of material is produced by the prosecution to press the conviction, namley. (1) the F.I.R. lodged by the appellant, himself and (21 discovery of incriminating article at the instance of the appellant It was held in Nagesia's case 1966 Cri LJ 100 (SC) that the evidence produced was. therefore not sufficient for conviction of the appellant under Section 302. I.P.C. However it is to be noted in this connection that in this case the chain of circumstances does not consist merely of these two links. There are other tell-tale circumstance as deposed to by P.W. 1 and other witnesses which we have enumerated above showing the preparation for the crime and the conduct of the appellant before and after the crime. On the other hand we accept the submission of the learned Public Prosecutor that the facts of the present case bear a greater resemblance to those of Karan Singh's case : 1973CriLJ1136 wherein the conviction of the appellant under Section 302. I.P.C. was upheld mainly on the basis of the evidence of discovery under Section 27 of the Evidence Act for which support was found in the motive of the crime which was also proved in that case besides the previous and subsequent conduct of the accused. The ratio, in each case dehors the facts, emphasizes the same cardinal rules according to us which we have referred in our prefatory remark and which we have applied to the facts of the instant case.

15. There is no doubt about the fact that Ibochoubi died as a result of the injuries proved by the witnesses and the doctor who conducted the autopsy on his dead body. P.W. 4 has given the details of the injuries stating that 'All the structure of the neck had been cut with sharp weapon in two strikes excitations a few muscles on the, left side of the neck' and that the injuries which were ante mortem were sufficient to cause instantaneous death. He has also opined that the injuries might be caused by the dao. Mat. Ext. 1. We find no reason to disbelieve the father P.W. 2 and brother P.W. 1 and also the wife. P.W. 6 who have proved the important incriminating circumstances and also the motive for the crime. Further, although the contents of the F.I.R. as respects the confession is not admissible. P.W. 10 (I.0.) and also P.Ws. 3 and 8 prove the presence of the appellant at the, police station lust after the occurrence. We also find in this case that the evidence of discovery which is an important circumstance against the appellant does not suffer from any infirmity and must be accepted as completing the chain of which the first link is provided by the evidence of motive and preparation and the last by the detection of the crime with the appearance of the appellant at the police station and his giving information leading to the discovery.

16. After examining the evidence on record meticulously and finding that a complete chain of circumstances with steely links having been fully established in this case suggesting the only conclusion that it was none else that the appellant who inflicted the injuries on the person of Ibochoubi with the dao Mat. Ext. 1 resulting in his death, we have no hesitation to uphold the conviction of the appellant under Section 302 LP.C. Accordingly, the conviction and sentence passed by the learned trial court are upheld and the appeal is dismissed.

B.L. Hansaria, J.

17. The key-note thought of my learned brother with which he has opened the judgment has certain other reflections in my mind. The duty to be discharged by a criminal court is indeed difficult especially when it is confronted with a case like the one at hand. It has to see to the conflicting claims and strike a just balance which will, on the one hand, take care that no innocent person is punished. but at the same time would see that people do not lose their faith in the rule of law due to blind adherence to the dictum that 'let hundred guilty men escape'. To speak with Viscount Simon 'Miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent'. If acquittals become general the same tends to lead to a cynical disregard of the law as pointed out in Shivaii v. State of Maharashtra : 1973CriLJ1783

18. Closely connected with the aforesaid aspect is the need to understand the real purport of what is meant by proof 'beyond reasonable doubt'. This can be brought out in no better words than the following finding place in Himnchal Pradesh Administration v. Omprakash : 1972CriLJ606 .The benefit of doubt to which the accused is entitled is reasonable doubt-the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy-though unwittingly it may be - or is afraid of the logical consequences. if that benefit wan not given or as one great Judge said it is 'not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism'. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether....

19. As stated in Inder Singh v. State : 1978CriLJ766 the standard of proof beyond reasonable doubt is a guideline and not, a fetish, and guilty men cannot get away with it because truth suffers from infirmity when projected through human processes, What is stated below is more Pertinent :

Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No. we must be realistic.

20. A word is also needed to be said about the approach to be adopted in appreciating the evidence of witnesses examined before a criminal court. As is often said, the difficult task of the court in this regard is to separate grain from the chaff. Question is how is this to be done? The method to be adopted in this regard was explained by Beg. J. as he then was in Chet Ram v. State 1971 Cri LJ 1246 Him. Pra. as below at page 1248 : (This was cited with approval in Garib Singh c State of Punjab : 1972CriLJ1286 .

Courts in search of the core of truth have to beware of being misled by half truths or individually defective pieces of evidence. Firstly undeniable facts and circumstances should be examined. Secondly, the pattern of the case thus revealed in the context of a whole sequence of proved facts must be scrutinised to determine whether a natural, or probable. and therefore. a credible course of events is disclosed. Thirdly, the minutiae of evidence including established discrepancies should be put in the crucible of the whole context of an alleged crime or occurrence and tested particularly with reference to the proved circumstances which generally provide a more reliable indication of truth than the faulty human testimony so that the process of separating the grain from the chaff may take place. Fourthly in arriving at an assessment of credibility of individual witnesses regard must be had to the possible motives for either deliberate mendacity or subconscious bias. Lastly the demeanour and bearing of a witness in Court should be carefully noticed and an appellate court should remember that a trial court has had in this respect an advantage which it does not possess.

21. Another thing to be borne in mind in trying to reach the core of truth is that the court should not be misguided by embellishments or falsehoods on points which do not touch the core of the prosecution story. What has to be seen is whether there is trustworthy evidence supporting the substratum of the prosecution case. For this purpose. variations on the fringes, discrepancies in details and embellishments in unessential parts should not be allowed to militate against the veracity of the substantial fabric of testimony. See Dharam Das. v. State : 1973CriLJ1181 and Shivaii 1973 Cri LJ 1783(SC) (supra). Another yardstick which could be used in arriving at the conclusion about the guilt of the accused is to judge the evidence by the yardstick of probabilities its intrinsic worth and the animus of the witnesses, as stated in State of Puniab v. Jagir Singh : 1973CriLJ1589 . (See para 23).

22. If all these are kept in mind, there cannot reasonably be two opinions about the guilt of the accused in the present case. There are certain undeniable facts and circumstances. There are: (1) the presence of the accused at the place of occurrence at or about the time Ibochoubi was found lying in a pool of blood: (2) his surrender at the police station within half an hour of the occurrence: and (3) his motive in taking the life of a lover and defiler of his wife. Secondly. the evidence discloses a credible course of events inasmuch as the accused was seen going out in an unstable mood from the residential compound towards the thana and immediately thereafter Kondouba. P.W. 1 saw Ibochoubi lying dead. There was thus no hiatus between the two events. The discrepancies brought out are not such which can demolish the prosecution case if tested with reference to the proved circumstances. Fourthly. the prime prosecution witnesses being no less than the father and the brother of the accused their bias against the latter, in the absence of anything to show any ill-feeling between them can well be ruled out.

23. Then the established facts do satisfy the yardstick of probabilities. The accused being a next door neighbour of the deceased had all the advantages of committing the crime in an afternoon of a summer month when nearby people were Jikcly to be enjoying midday rest. The witnesses, as alreadv stated, have no animus against the accused. As to their intrinsic worth, my learned Brother has analysed the evidence with which I agree. I reiterate that some of the variations are absolutely on the fringe to wit whether the pants worn by the accused were white or brown in colour. The omission of P.W. 1 to say anything about the wearing apparel of the accused being bloodstained. can cause no dent to the core of the prosecution case because this witness could not have minutely observed the accused when he was leaving the house, as the former was totally unaware by that time if his brother had been done to death. Of course, the statement of P.W. 1 in the court that the dao in question had belonged to the accused is definitely a significant embellishment as he had earlier stated differently. One could even say that this showed some tendency on the part of P.W. 1 to falsely implicate the accused, Had it been that P.W. 1 was not the brother of the accused, I would have given sufficient importance to this development. But the relationship being what it is and there being nothing on record otherwise to show any bias against the accused this departure has not weighed with me in not relying on what has been deposed by this witness. particularly when P.W. 2 the father of the family, has -supported P.W, 1.

24. Shri Imo Singh pressed us much not to accept the evidence of P.W. 1 that he had seen the accused at about 2 P.M. after the midday meals on a plinth (described above) with a dao in his hand because of the following statement in cross-examination which according to the learned Counsel, shows that at that time the accused had come out from his own house with nothing in hand.

After having my meal. I called out the accused Tomba Singh to resume work but he came out dressed up when I asked where he was going. I saw him in the courtyard. I do not know where he was before he was seen going out of our compound with the dao in his hand.

If the first sentence of the above evidence is read in isolation it would bear the contention of Shri Imo Singh. But when it is read as a whole along with previous statements in examination-in-chief. it would be clear that the calling out to resume work was around noon when P.W, 1 had gone back to his work after midday meals at about 11 A.M. The accused then came dressed up. Thereafter he has not seen him for sometime. The witness again saw him going out of the compound with a dao. This was around 2 P.M. The above Quoted evidence thus does not run counter to anything deposed in examination-in-chief.

25. I would now deal with another aspect of the case which is related to the discovery of the dao. It was strenuously urged before us bv Sri Imo Singh that as the accused had not stated in his information to police that he would point out the place where he had thrown away the dao. the information relating to the throwing awav is not admissible under Section 27 of the Evidence Act. To bring home the real purport of Section 27. it would be enough if reference is made to two recent decisions of the Supreme Court along with Kottava AIR 1947 SC 67: ('1947-48 CM LJ 533); the leading case on the subject. It has been stated in State of U. P. v. Jogeshwar : 1983CriLJ686 that the discovery Under Section 27 is 'mostly and really' as regards the authorship of concealment. and not of the weapons used in the crime which were discovered Ions back. So. the conduct and concealment are the incriminating circumstances and their discovery becomes relevant and admissible under Section 27. As per Earabhadrappa . however. the word 'fact' in the section means some concrete or material fact to which the information in question directly relates. According to Kottaya (supra). the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information must relate, distinctly to this fact. II' all these pronouneements are read together. it will be evident that what is admissible under Section 27 is the information relating to the discovery of a concrete or material fact, which could not have been discovered but for the information. After such a recovery which lends credence to the information, what really comes to light is the concealment of the 'fact' and the accused being the author of the concealment. For this purpose, it cannot be held that the accused, apart from saving that he had concealed the object at a particular case, must also say in so many words that he shall point out the Place. Of course if the object is discovered not on being led by the accused but due to ore-knowledge on the part of the police'. Section 27 would not apply. But as has been pointed out in the leading judgment, the discovery in the instant case was at a behest of the accused.

26. Another point urged in this connection relates to the fact that no bloodstains were found on the dao. and as such, the recovery of the dao at the instance of the accuser) has no significance urged Sri Imo Singh, As the occurrence had taken place around 2 P.M. and the discovery was around 6 P.M. and as the dao had been thrown by the accused while going to thana where he had reached before 2-30 P.M. about four hours elapsed between the commission of the crime and the recovery of dao. As it was thrown in a canal we are satisfied that bloodstains on it might have got washed away. Though Sri Imo Singh submitted that this could not have happened as the blood must have firmly stuck on the blade of the dao having got dried no by the time it was thrown away, he has not placed any authority to satisfy us on this point for want of which we would accept that which accords with common sense.

27. Some other infirmities here and there were also brought to our notice. They are however not material. One of these was that though according to the F.I.R. lodged by the accused he had seen his 3 year old daughter Premadhani lying asleep with the deceased, whereas P.W. 1 speaks that his own daughter Premalata (5) was so sleeping. There are two answers to this. First the F.I.R. being not admissible except to the extent indicated by my learned brother, the statement in the inadmissible part has to be ignored. Secondly an F.I.R. can be used to contradict the maker of the same and not others. Of course if material difference is found in the fabric of the prosecution case as unfolded in the F.I.R. and as deposed by the witnesses, the matter would be different. That, however is not so because whether it was Premalata who was sleeping with the accused or it was Premadhani is not material because none has been examined, as both these girls were kids at the relevant time being aged about 5 years or 3 years. The finding of injuries on the person of Premalata by P.W. 9 would lend credence to the evidence of P.W. 1 in this regard. The 1' x 1' swelling on the left forehead of Premalata cannot however belie the prosecution case of the injury on the deceased being caused by a dao as submitted by the counsel, because the girl might have received this little swelling due 1o various reasons.

28. With these words, I agree with the conclusion reached by my learned brother.

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