Summary
The Supreme Court acquitted the appellant, who had been convicted of murder and an Arms Act offence on the strength of a pistol recovered on his disclosure and an FSL report. The eyewitnesses turned hostile and there was no last-seen evidence. The recovery came from an unlocked box in a room accessible to family members, without independent witnesses, the chain of custody to the FSL was incomplete, and nothing showed the recovered pistol was the murder weapon. The motive alleged was speculative and related mainly to co-accused who were acquitted or not chargesheeted.
Issues
- Whether a conviction under Section 302 IPC and Section 25 of the Arms Act could rest on the recovery of a pistol and cartridges at the accused's instance and a matching FSL report, when the eyewitnesses had turned hostile and motive was unproved.
- What part of a disclosure statement made in police custody is admissible under Section 27 of the Evidence Act.
- What weight attaches to a recovery made from a place accessible to others, without independent witnesses and with gaps in the chain of custody.
Provisions considered
- Section 27, Indian Evidence Act, 1872Read as a proviso and exception to Sections 25 and 26, with emphasis on the word 'distinctly': only so much of the custodial information as is clearly connected with the fact discovered is provable. The appellant's disclosure did not say that the concealed pistol was the one used in the murder. (¶¶ 14, 15, 22)
- Section 25, Indian Evidence Act, 1872A confession to the police cannot be proved against the accused, so the parts of the appellant's custodial disclosure narrating the commission of the offence could not be used against him. (¶¶ 14, 15)
- Section 302, Indian Penal Code, 1860Conviction and life sentence set aside because the prosecution failed to prove guilt beyond reasonable doubt. (¶¶ 11, 24, 25)
- Section 25, Arms Act, 1959Conviction set aside along with the murder conviction, the recovery not having been satisfactorily proved. (¶¶ 11, 25)
Held
- Where the alleged eyewitness, who was the complainant, and the first responder both turned hostile, the accused was not named in the FIR but only in a supplementary statement five days later based on the complainant's unexplained 'own investigation', and no test identification parade was held, the appellant's presence and complicity were not proved. (¶¶ 13, 22)
- Section 27 of the Evidence Act is an exception to Sections 25 and 26. The word 'distinctly' confines the provable part of custodial information to what is clearly connected with the fact discovered; statements in a disclosure narrating the commission of the offence cannot be used against the accused. (¶¶ 14, 15)
- A recovery from an unlocked iron box in a room of a family dwelling accessible to other members, made without any independent witness, requires careful scrutiny and is of little value on its own. Following Jaikam Khan, Manjunath and Nikhil Chandra Mondal, recoveries from places accessible to others do not by themselves connect the accused with the offence. Jeet Singh, Bharat Fakira Dhiwar and Lochan Srivas were distinguished because there the recoveries were supported by other connecting evidence. (¶¶ 16, 17, 18, 19, 20, 21, 22)
- Where the record does not show when the sealed articles left the malkhana for the FSL, the chain linking seizure, storage and deposit is incomplete. An FSL report matching the cartridges with the bullets in the body does not by itself prove guilt without proof that the recovered pistol was in fact used in the offence. (¶¶ 16, 23)
- A motive that relates mainly to co-accused who were not chargesheeted or were acquitted, and that is attributed to the appellant only through a speculative and unproved quid pro quo with an acquitted co-accused, cannot support the conviction. (¶¶ 14, 23)
- With the eyewitnesses hostile, no last-seen evidence, motive unproved and the recovery unreliable, the prosecution failed to prove guilt beyond reasonable doubt, and the concurrent conviction could not be sustained. (¶¶ 16, 24, 25)
Result
Appeal allowed; conviction and sentence under Section 302 IPC and Section 25 of the Arms Act set aside; appellant acquitted and directed to be released forthwith unless required in any other case.