NAGIN SOMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The next piece of evidence relates to the discovery said to have been made in respect of the articles Nos. 5 to 8 in the case. The evidence in that direction is that of panch witness Himatram Ex. 18 and the Inspector of Police Shri Sandhu Ex. 7 read with the panchnamas Exs. 20 and 21 in the case At about 3 p. m. on 23-9-64 the Inspector of Police Shri Sandhu had asked the Head Constable to find out and produce the accused before him. Thereupon he had gone to his house and even made a search thereof. No incriminating articles were found at that time and a nil panchnama was made. On the next morning the accused produced himself before the Inspector of Police at about 8 a. m. and a panchnama Ex. 19 was made in respect of an injury found on his left phalanx finger. He was then sent for examination to the Medical Officer and a certificate in respect of that injury was issued by Dr. Thakker. That injury according to the accused was caused to him by its coming in contact with the yoke. Any way no point was attempted to be made in respect of that injury so as to connect him with the commission of this crime. After he returned from the hospital at about 11 a. m. as he showed his willingness to make some statement regarding the clothes put on by him at the time of the incident and the instrument said to have been used in the crime in question the panchas were called and the first part of the panchnama Ex. 20A Was made. Then they all proceeded to the house of the accused and from the north-east corner of the front room a spear article No. 5 was found The dhoti and the shirt articles Nos. 6 and 7 respectively were found hanging on the peg in that room. Since there appeared stains of blood on those articles they came to be attached by making the second part of the panchnama which is marked as Ex. 20B in the case. Out of these articles in the opinion of the Serologist the spear alone is found to have been stained with human blood. Then at about 5 p. m. again those two very panchas were called and on the accused making a similar statement the panchas and the police were led to a certain place somewhere on the Station side by the side of the trees and a dagger article No. 8 was found. Since it had stains of blood it was also attached. This article was sent to the Serologist and the Chemical Analyser Junagadh but the stains were so disintegrated that it was not possible to ascertain the nature of the blood. So far as that dagger is concerned no point has been made out in the case and having regard to the fact that there is no evidence to suggest or say that the dagger had come to be used in causing injuries to the deceased that therefore does not help the prosecution in connecting the accused with his having led the police and panchas and discovered the dagger. Thus there survives only the spear which is found to have stains of human blood. It was urged that the spear found from the house of the accused on the basis of a statement made by him before the panchas and when it is identified by the eye-witness Manu not only before the Court but also before the Taluka Magistrate Amjibhai Ex. 36 as per the panchnama Ex. 38 it can be held in absence of any explanation by the accused regarding stains of human blood thereon and in view of his having not been found at home on 23-9-64 by the police the accused can well be said to have been connected with the commission of this crime. Such a piece of evidence may no doubt help the prosecution if it were able to establish beyond any reasonable doubt the spear having been recognised as belonging to the accused and as one used by him in causing injuries to Bai Nandan on the morning of 23-9-64 Apart from the fact that once the eye-witness Manu is disbelieved as a person having seen the accused causing injuries to Bai Nandan with a spear as even fairly conceded by Mr. Choksi the learned Govt. learned the accused cannot be held guilty on that piece of evidence by itself in our opinion we are not satisfied with that piece of evidence in the case as well. Two facts have to be shown the first is that the spear article No. 5 having stains of human blood is proved to be of the accused and secondly that it is the same which was seen by Manu and as one used in causing injuries to Bai Nandan on the morning of 23-9-64.

(2.) Now with regard to the evidence of panch witness Himatram read with the recitals contained in the panchnama Ex. 20A it was urged by Mr. D. K. Shah the learned advocate for the accused-appellant that the same two persons Himatram and Mahomedbhai figure in all the three panchnamas made by the police on that day. The first related to the injury found on the person of the accused and that panchnama E3x. 19 was made at 8-30 a. m. at the police station. The accused was then sent to the hospital for his examination and after he came back at 11 a. m. again the panchas were called and the same panchas were brought by the police. That panchnama Ex.20A and 20B relates to the statement made by the accused regarding the discovery made of the spear and his clothes. Again when similar panchnama Ex. 21A and Ex. 21B was made at 5-30 p.m. the same panchas were called. That related to the finding of a dagger-article No. 8. It is clear from the evidence of panch witness Himatlal that different constables had been to him for taking him to the police station as panchnama were to be made and yet curiously enough none else but those two very panchas who figured at 8 a. m. again came up at 11 a. m. and then again at 5. p. m. Even if such a situation had arisen out of a curious coincidence the investigating officer who was a Circle Inspector of Police could have used his discretion and have some other persons as panchas and not allowed to have the same persons on all the three different occasions. What is necessary and in fact extremely desirable is not to have such panchnamas affecting the accused vitally in a case made in such a manner as happened in this case but have got to be made so as to inspire confidence in the mind of the accused himself and again in the mind of the Court who had to judge the correctness and reliability in respect thereof. His evidence is that the accused told them at 11 a.m. at the police station on 24-9-64 that he had concealed his spear dhoti and shirt in his house and he will give discovery of the same from his house. To the same effect his evidence relates to the discovery of a dagger article No. 8. Now in the panchnama Ex. 20-A the recitals in that respect are On being questioned as to muddamal spear and clothes the said person states before us the panchas spear used by me in above offence and clothes put on by me at that time which are shirt and Dhoti are placed by me in the right corner in the front room while entering in my house and I voluntarily show them going ahead. So saying he started to go to his house before us. Then in the second part of the panchnama Ex. 20-B the recitals are that he went into his house and from north-east corner of first room while entering the house produced one super.....From that very room he produced a shirt and dhoti from over the peg in the northern wall. Similarly in the panchnama Ex. 21-A it has been stated that On inquiring from him as to the Muddamal dagger he says in the presence of the panchas that I have hidden the dagger used in the commission of the above offence in the middle of the bunch of Ekhra plants which are in the middle of the road leading to the Nali from the City Station and the rails on the Western side near the City Station which I show willingly walking ahead. Thereafter they went there and brought out the dagger from the bunches of the Ekhra plants and produced the some. Now it is obvious that the incriminating statements made by the accused before the Police Officer are hit by sections 25 and 26 of the Indian Evidence Act. The statement made by him viz. relating to the spear used by him in above offence and clothes put on by him at that time which are shirt and dhoti are incriminating statements suggestive of his showing that spear which he used in committing the offence and also relating to the clothes put on by him at that time i.e. while committing the offence. They were made before the panchas in the presence of the Circle Police Inspector at the police station and they are certainly not statements leading to discovery thereof so as to come within the purview of section 27 of the Indian Evidence Act. Sec. 27 of the I.E. Act serves as a proviso to secs. 25 & 26 of I.E. Act and that removes the bar laid down in those provisions by making that much part of the statement admissible in evidence as the articles are discovered in consequence of information received from a person accused of any offence in the custody of a police officer. So much of such information whether it amounts to confession or not as relates distinctly to the fact thereby discovered would only be admissible in evidence. Now the statement that the spear he was showing was one used by him in the said offence cannot be said to be a statement which leads to any discovery; nor does the statement relating to the clothes-shirt and dhoti-put on by him while committing the offence lead to any discovery. They are in themselves incriminating statements and are obviously not admissible in evidence. In a case of Prabhoo v. State of Uttar Pradesh A.I.R. 1963 Supreme Court 113 such statements relating to the discovery of an axe and the shirt were held inadmissible in evidence. The observations in that respect made by the Supreme Court run as under:-

(3.) Now out of the five spears which were shown to witness Manu the spear-article No. 5 before the Court came to be identified as one which he had seen with the accused and with which he was said to have caused injuries to Bai Nandan though four other witnesses had chosen to refer about their having seen the accused running away with a spear none of them was asked to identify the same. The spear before the Court is a very normal type of a spear and which can be found with such agriculturists 8 working in fields. Though Manu has referred to the accused having given two blows with a spear in his first complaint he has not chosen to say that he can identify the same if shown to him by reason of any particular mark which in evidence he has tried to introduce. He has stated while giving evidence before the Court that he remembered the spear because it is in a curved stick. He had then stated that this is the only reason why he identified the spear. Then he has admitted that he had not stated before the police that he can identify the spear because he remembered its characteristic style. Apart from that when the spear was examined by the learned Government Pleader as also by us during the course of the hearing of this matter we found that it was not in a curved stick and it appeared to be perfectly straight. It is also very difficult for anyone placed in the circumstances in which Manu was at the time when the injuries were caused with a spear to see it so very minutely and that too from a distance and remember the nature of that instrument so well as to have an impression left in his mind to enable him to identify the same on 25-9-64. That part of the evidence can hardly be believed in the case. We need not consider whether the seal of the police put on it when it was attached had remained or not at the time when it was identified. Appeal allowed.