Umesh Sajwan Bablu v. State of Uttarakhand

firearm injury. The police conducted investigation, prepared site plans, took into custody the cartridge cases from the place of incident. According to the prosecution case, on 05.09.2010, PW13, Sanjay Kumar Pandey, who is the Investigating Officer (“IO”) got an information that the killer of the deceased Uday Prakash Agarwal are spotted at a place. The police intercepted three persons. They were the appellants and the accused Chaman Lohari. According to the prosecution, from the custody of all these three persons, country made pistols and cartridges were recovered, and at that spot, the accused Chaman Lohari confessed that in the month of April, accused Suraj Verma and Ghananand Joshi met him and told him that they want to kill the deceased Uday Prakash Agarwal, and in lieu of the killing, Rs. 1.5 Lakhs would be given. Thereafter, he contacted the appellants and one Lakshman Thapa. Accordingly, they killed the deceased on

18.04.2010. PW13, Sanjay Kumar Pandey prepared the recovery memo at the spot, which is Ex.A-22; and recorded the confession of accused Chaman Lohari in the recovery memo; and, thereafter, after conducting investigation, chargesheet was submitted against 4 the appellants, accused and one Laxman Thapa under Section 302 read with 120 B IPC and Section 25 of the Act. On 31.03.2019, the charges under Section 302 read with 34 IPC and Section 25 of the Act were framed against the appellants and the accused Chaman Lahori and against one Laxman Thapa, to which they denied and claimed trial. On the same date, charge under Section 302 read with 120 B IPC was framed against the accused Ghananand Joshi and Suraj Verma, to which he denied and claimed trial.

5. In order to prove its case, the prosecution examined 18 witnesses namely:-PW1, Smt. Poonam Agarwal; PW2, Satish Kumar Agarwal; PW3, Constable Keshwev Ram; PW4, Dr. Brijesh Bisht; PW5, Bhupa; Singh; PW6, Dipendra Singh; PW7, Sri Mohan Singh Negi; PW8, Sri. Ramesh Chandra Pant; PW9, Sri. Prahalad Swaroop; PW10, Tarun Bhatt; PW11, Yogesh Agarwal; PW12, Chandra Kant Agarwal; PW13, S.I. Sanjay Kumar Pandey; PW14, Balwant Singh Chuphal; PW15, Hem Joshi; PW16, Sri. Bhaskar Brajwasi; PW17, S.I. V.K. Mishra; PW18, Inspector Kuldeep Singh Aswal.

6. The appellants and the accused were examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to them, they have been falsely implicated in the case.

7. In their defense, the appellants examined DW1, Sri. Ram Singh Basera; DW2, Chandan Singh Adhikari and DW3, Sri. Kailash Joshi.

8. After hearing the parties, by the impugned judgment and order, the appellants have been convicted and sentenced as stated hereinbefore. The accused were acquitted. 5

9. It may be noted that during trial, Laxman Thapa died in a road accident on 28.07.2016, and the case abated against him. In GA No.12 of 2016, notices were personally served on the accused Chaman Lohari, but he did not appear. All the other accused are represented, therefore, the Court proceeded to hear the matter on merit.

10. Heard learned counsel for the appellants, learned counsel for the accused Ghananand Joshi and Suraj Verma, and learned State Counsel and perused the record.

11. Learned counsel for the appellants submits that the conviction is atrocious; it is a no evidence case; the conviction is based on a confession of accused Chaman Lohari allegedly given on 05.09.2010 before the police; there is no motive as such; the story of enmity of the deceased with accused Ghananand Joshi has also not been substantiated by the prosecution.

12. Learned Senior Counsel for the appellant, Umesh Sajwan @ Bablu, submits that even the motive has been alleged towards accused Ghananand Joshi, which is not established; and there is no evidence against the appellant Umesh Sajwan @ Bablu.

13. Learned counsel appearing for the appellant, Prakash Pandey @ Vikash Tyagi, adopts the arguments made on behalf of appellant-Umesh Sajwan @ Bablu by learned Senior Counsel.

14. In support of his contention, learned Senior Counsel for the appellants has placed reliance on the principles of law, as laid down by the Hon’ble Supreme Court in the cases of 6 Haricharan Kurmi and Another Vs. State of Bihar, 1964 SCC OnLine SC 28; Mohd. Naushad Vs. State (Government of NCT of Delhi), (2024) 12 SCC 494; P. Krishna Mohan Reddy Vs. State of Andhra Pradesh, 2025 SCC OnLine 1157; Dagdu and Others Vs. State of Maharashtra, (1977) 3 SCC 68.

15. In the case of Haricharan Kurmi (supra), the Hon’ble Supreme Court has discussed the scope of Section 30 and 133 of the Indian Evidence Act, 1872 (“Evidence Act”). In Paragraphs 11 and 14, the Hon’ble Supreme Court observed as follows:- “11. The question about the part which a confession made by a co-accused person can play in a criminal trial, has to be determined in the light of the provisions of Section 30 of the Act. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. …………………………………. ………………………………………………………………………………… …………………………………………………………………………………

14. In appreciating the full effect of the provisions contained in Section 30, it may be useful to refer to the position of the evidence given by an accomplice under Section 133 of the Act. Section 133 provides that an accomplice shall be a competent witness against an accused person; and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the Act brings out the legal position that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two provisions together, it follows that though an accomplice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The point of significance is that when the court deals with the evidence by an accomplice, the court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under Section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars.” (emphasis supplied) 7

16. In the case of Mohd. Naushad (supra), the Hon’ble Supreme Court discussed the scope of Section 164 of the Code as well as Sections 24 to 30 of the Evidence Act, and observed that, “A conjoint reading of Section 164CrPC and Sections 24 to 30 of the Evidence Act, makes the confession made by A-9 to be entirely admissible in evidence and by virtue of Section 10 of the Evidence Act, in a given case also against a co-accused. The Magistrate was duly empowered to record the confession, though, it would not matter whether he had the jurisdiction in the case or not.”

17. In the case of P. Krishna Mohan Reddy (supra), the Hon’ble Supreme Court, in fact, discussed the scope of Section(s) 25 or 26 of the Evidence Act as well as the statement recorded under Sections 161 and 162 of the Code. In Paragraphs 40 and 43 of the judgment, the Hon’ble Supreme Court observed as follows:- virtue inadmissible “40. Where a confessional statement is otherwise excluded of Section(s) 25 or 26 of the Evidence Act, respectively, there can be no question of such confessional statements being made admissible against another co-accused by stretching it with the help of Section 30 of the Evidence Act. Section 25 places a complete ban on the making of such confession by that person whether he is in custody or not. Section 26 lays down that a confession made by a person while he is in the custody of a police officer shall not be proved against him unless it is made in the immediate presence of a Magistrate. See : Sahib Singh v. State of Haryana, (1997) statement contemplated under Section 30 of the Evidence Act, must be both relevant and admissible in terms of the Evidence Act. 231 Confessional SCC 7

43. A statement given by an accused to the police under Section 161 of the Cr. P.C. may be either in the form of a in Pakala confession or an admission. The Privy Council Narayana Swami v. Emperor, AIR 1939 PC 47 explained that a confession is a statement admitting the offence or at any rate substantially all the facts which constitute the offence, whereas an admission is only in respect of a gravely incriminating fact. Even a conclusively incriminating fact is not of itself a confession. Where such statement is a confessional statement, the rigour of Section(s) 25 and 26 will apply in full force, and the said confession would be completely 8 inadmissible as held in Sahib Singh (supra) and a catena of other decisions of this Court. Where, however, such statement amounts to an admission, the statement being one under Section 161, would immediately attract the bar under Section 162 of the Cr. P.C., and the same may be used only for the very limited purpose provided in Mahabir Mandal (supra).” the Proviso as held (emphasis supplied)

18. In the case of Dagdu (supra), the Hon’ble Supreme Court observed the scope of the statement of accomplice and its interplay with the illustration (b) to Section 114 of the Evidence Act. In Paragraph 21, the Hon’ble Supreme Court observed as follows:- “21. There is no antithesis between Section 133 and Illustration (b) to Section 114 of the Evidence Act, because the illustration only says that the Court “may” presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self- confessed criminal, who, insofar as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it.” (emphasis supplied)

19. Learned counsel for the accused-Ghananand Joshi and Suraj Verma submits that against acquittal, the appellate court should not make any interference, if the view taken by the trial court is a possible view. In fact, in the case of Jafarudheen 9 and Others Vs. State of Kerala, (2022) 8 SCC 440, the Hon’ble Supreme Court observed that, “While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

20. On the other hand, learned State counsel submits that the principles of law, as have been cited on behalf of the appellants are not applicable in the case because the confession under Section 30 of the Evidence Act is the confession recorded before the Magistrate or an extra judicial confession. He submits that in the instant case, the arrest was made on 05.09.2010, and the appellants and Chaman Lohari were arrested, at that time, accused Chaman Lohari had admitted his guilt and stated as to how at the behest of accused Ghananand Joshi and Suraj Verma, they executed the killing, and from their possession, firearms were also recovered, which, according to the learned State counsel, is admissible evidence under Section 27 of the Evidence Act. He admits that there is no Forensic Science Laboratory Report. 10

21. In the Government Appeal against accused Ghananand Joshi, Suraj Verma and Chaman Lohari, learned State counsel submits that the killing was done at the behest of the accused Ghananand Joshi and Suraj Verma, and it was executed by the accused Chaman Lohari and the appellants. He also submits that PW1, Smt. Poonam Agarwal, the wife of the deceased has categorically stated as to what was the strong motive for accused Ghananand Joshi to execute the gruesome killing of her husband.

22. Before the arguments are appreciated, it would be apt to examine as to what the witnesses have stated during trial.

23. PW1 Smt. Poonam Agarwal is the wife of the deceased. She is not the eyewitness. According to her, her father- in-law had sold a plot to accused Ghananand Joshi. Half of the plot abutting the road was of her husband. But, the accused Ghananand Joshi wanted to grab the entire plot. He would threaten the deceased. This witness has proved multiple documents with regard to the complaints made by the parties. She admits that accused Ghananand Joshi and her husband, the deceased Uday Prakash Agarwal, had entered into a compromise. But, she submits that it was done by force. She has stated so in paragraphs 44 and 46 of her statement. PW1, Smt. Poonam Agarwal, is a witness, who has tried to attribute motive to accused Ghananand Joshi that there was some enmity between her deceased husband, Udhay Prakash Agarwal, and the accused Ghananand Joshi. In Para 9 of her statement, she has suspected that her husband was killed by the accused Ghananand Joshi, her father-in-law, mother-in-law and brother-in-law. 11

24. PW2 Satish Kumar Agarwal is the brother of the deceased. He has proved the FIR. He is also not the eyewitness of the incident. According to him, he did not tell it to the Investigating Officer as to whether the deceased had any enmity with the accused Ghananand Joshi or not. Though, according to him, there was a dispute between the deceased and the accused Ghananand Joshi with regard to a plot. This witness also speaks of motive alone. He has also been extensively cross examined.

25. PW3 Constable Keshwev Ram, has written chik FIR and made entry into the general diary of the concerned police station. He has stated accordingly.

26. PW4 Dr. Brijesh Bisht, has conducted post mortem of the deceased on 19.04.2010 at Women Hospital, Haldwani. He has proved the post mortem report.

27. PW5, Bhupal Singh, is the person in front of whose shop, the killing was done. He has not stated anything as to who killed the deceased. But, according to him, as soon as the fire shot was opened, he came out and he saw that a person was lying on the ground in a pool of blood. He did know the deceased Uday Prakash Agarwal at that time. He has categorically stated that he did not see the assailants.

28. PW6, Dipendra Singh, has denied of having enmity between the deceased and the accused Ghananand Joshi. In fact, he has stated nothing except giving a statement that on 18.04.2010, the deceased was killed in front of Bhura General Store.

29. PW7, Mohan Singh Negi, has stated that many village Pradhans had given representations that the investigation in this matter may be conducted by the CID. He has also 12 expressed ignorance about any enmity between the deceased and the accused Ghananand Joshi.

30. PW8, Ramesh Chandra Pant, is the IO in the case of accident, in which the accused Ghananand Joshi was injured. He has categorically stated that the accused Ghananand Joshi had never told him to implicate deceased in the case and he was never pressurised for it.

31. PW9, Prahalad Swaroop, is the father of the deceased. According to him, he was not in good terms with the deceased. He also speaks about the dispute the deceased and the accused Ghananand Joshi with regard to a plot. But, also in para 2 of his statement, he admits that, subsequently, they had entered into a compromise.

32. PW10, Tarun Bhatt, has not supported the prosecution case. He has been declared hostile.

33. PW11, Yogesh Agarwal is brother of the deceased. He has also stated about the incident that his brother was killed on the date of incident. He also speaks of dispute between the deceased and the accused Ghananand Joshi; and has also stated about a civil suit between them.

34. PW12, Chandra Kant Agarwal, is the brother-in- law of the deceased. He has stated that after the killing of the deceased, he came to know that there was some dispute between the deceased and the accused Ghananand Joshi.

35. PW13, Sanjay Kumar Pandey is the person, who was investigating the case. He has proved the Inquest Report Ex. A13 and has also stated about the steps that were taken by him during investigation. According to him, on 05.09.2010, he was on patrolling duty alongwith police personnel, when he got an 13 information that the killers of the deceased, Udhay Prakash Agarwal, are standing near roadways bus station. There, they spotted three persons, who were the appellants and the accused Chaman Lohari. According to him, from the possession of the appellant Prakash Pandey @ Vikash Tyagi, a country-made pistol of 315 bore and three cartridges; from the possession of the appellant Umesh Sajwan @ Bablu, a country-made pistol 12 bore and two cartridges; and from the possession of the accused Chaman Lohari, a country-made pistol of 315 bore and two cartridges were recovered. He also submits that on enquiry having been made, accused Chaman Lohari then revealed that he met accused Suraj Verma and Ghananand Joshi, who asked him to kill the deceased Udya Prakash Agarwal, and promised to pay Rs.

1.5 Lakhs. Thereafter, the accused Chaman Lohari contacted the appellants and Laxman Thapa, and on 18.04.2010, they killed the deceased. He has proved those articles allegedly recovered from the appellants and the accused Chaman Lohari, and proved the recovery memo, Ex.A-22.

36. PW14, Balwant Singh Chuphal, speaks that after killing of the deceased, the father and the brother of the deceased came to him and asked him that he should help them to get the matter investigated properly. According to him, the father of the deceased had then revealed that earlier he was against his son Uday Prakash Agarwal, but not now. This witness also tells that one Ram Singh Basera, who is DW1, also came to meet him and told that since the killing was done by the accused Ghananand Joshi, therefore he should not agitate the matter further. He denied saying that he will take the side of truth. 14

37. PW15, Hem Joshi, has not supported prosecution case.

38. PW16, Bhaskar Brajwasi, gives the eye-witness account of the incident. According to him, on 18.04.2010, he was in the market. At about 7:45 PM, he saw a crowd on the ITI road. The road was blocked due to crowd, and people were discussing that some persons had surrounded a person on gunpoint. He parked his vehicle and proceeded towards Bora General Store, when suddenly he heard a fire shot. When he reached there, he found the deceased, Uday Prakash Agarwal, lying on the ground, and he also noticed that accused Ghananand Joshi having a pistol in his hand along with three persons running towards Deheria road. He has identified all those persons in the court. He tells that he was threatened that he should not speak about the incident to anyone or should not give any evidence of the matter, or else he will have to face consequences. Thereafter, he went to his house. Subsequently, he contacted PW14, Balwant Singh Chuphal. This witness has stated multiple things about accused Ghananand Joshi that he has a criminal antecedents and he is involved in multiple litigations.

39. PW17, S.I. V.K. Mishra, is the IO. He has prepared the site plan and submitted chargesheet.

40. PW18, Kuldeep Singh Aswal, is the IO. He has stated about the steps taken by him during investigation. He is the person, in whose presence on 05.09.2010, the appellants and accused Chaman Lohari were arrested and they allegedly confessed their guilt, and articles were recovered from them. This witness has not proved any article allegedly recovered from the appellants and accused Chaman Lohari, although, he identified 15 his signature on recovery memo, recorded by PW13, S.I. Sanjay Kumar Pandey, which is Ex.A-22.

41. DW1, Ram Singh Basera, has stated that in the year 2010, he was the president of Bar Association, Haldwani. According to him, he never met PW14, Balwant Singh Chuphal, with regard to the killing of the deceased, Uday Prakash Agarwal. He has proved the affidavit given by him during investigation.

42. DW2, Chandan Singh Adhikari, is the person who speaks that on 29.07.2008, he had executed a deed of compromise between the deceased Uday Prakash Agarwal and the wife of accused Ghananand Joshi. He has proved the deed of compromise.

43. DW3, Sri. Kailash Joshi, is the person who had notorised the compromise entered in between the deceased and the wife of accused Ghananand Joshi on 29.07.2008.

44. This is the entire evidence. The evidence of the prosecution may be clubbed under different heads. One, with regard to the motives. PW1, Smt. Poonam Agarwal, has stated about the motive and enmity between the deceased and accused Ghananand Joshi. Although, she admits that, subsequently, a compromise was entered in between the deceased and the accused Ghananand Joshi. PW2, Satish Kumar, says that there was a dispute between the accused Ghananand Joshi and the deceased. PW6, Dipendra Singh, has not stated about any enmity between the deceased and the accused Ghananand Joshi. Similarly PW7, Sri Mohan Singh Negi, PW8, Sri Ramesh Chandra Pant, and PW9, Sri. Prahalad Swaroop, have stated that they do not know about any enmity between the deceased and the accused Ghananand Joshi. PW11, 16 Yogesh Agarwal, also speaks of enmity between the deceased and the accused Ghananand Joshi.

45. In the cases of direct evidence, perhaps, the motive loses its significance. But in case of circumstantial evidence, motive gains importance. But it also settled law that motive alone cannot be a basis for conviction.

46. In the instant case, evidence of PW16, Bhaskar Brajwasi, has not been found reliable by the court below. In Paragraph 61 of the impugned judgment, the court below has discussed the testimony of PW16, Bhaskar Brajwasi, and observed that the testimony of PW16, Bhaskar Brajwasi, is unworthy of credit and no inference can be drawn from it. A close scrutiny of this witness’s testimony reveals that according to him, he witnessed the killing of the deceased, Uday Prakash Agarwal, by accused Ghananand Joshi and others on 18.04.2010, at 7:45 PM. He gives a rare kind of testimony. According to him, he was approaching the Bora General Store. The road was blocked, as there was a lot of crowd and noticed that some persons had surrounded a person on gunpoint, and, suddenly he heard a gunshot, and when he reached there, he saw the deceased lying on the ground, and the accused Ghananand Joshi, holding a pistol in his hand, along with the appellants and the other accused running away from the place of incident. He has admitted that the accused Ghananand Joshi has lodged multiple cases against him. He has stated so in Page 10, last paragraph of his evidence. He also adds that at the time of incident, it was weekly market and the place of incident was crowded. In the statement of PW16, Bhaskar Brajwasi, Page 8, bottom paragraph, he admits that after incident, neither he touched the deceased nor he extended any 17 medical help to him nor did he take the deceased at any place, and the reason he assigned is that he had threat to his life. Therefore, he straightway returned to his house.

47. The incident took place on 18.04.2010, and, thereafter, for the first time, the testimony of this witness was recorded in the court on 24.09.2013. He was never interrogated by the police. He speaks so in the beginning line of his statement. In fact, the court below has rightly rejected the testimony of PW16, Bhaskar Brajwasi. He has admitted that he along with the deceased has filed multiple complaints against the accused Ghananand Joshi. Did not this witness fear for his life when he filed complaints against the accused Ghananand Joshi? Moreover, according to this witness, when he saw the deceased lying on the ground and accused Ghananand Joshi and others running from the place of incident. What was fear to him? The assailants were running away. That was a crowded place. He could have called the police. He could have called any other government agency so that any medical assistance could have been provided to the deceased, Uday Prakash Agarwal, if he was not in a position to help him, though he had relations with him. Therefore, this witness’s testimony is totally unreliable and no credence can be placed on it.

48. There are two witnesses of alleged recovery from the appellants and the accused Chaman Lohari on 05.09.2010. One is PW13, S.I. Sanjay Kumar Pandey, who has proved those articles, which were allegedly recovered from these persons; and another one is PW18, Inspector Kuldeep Singh Aswal, but he has not stated about the articles, as such, as to which weapon was recovered from whom. The alleged recovery and the articles have 18 only been stated by PW13, S.I. Sanjay Kumar Pandey. The incident of the alleged recovery took place near roadways bus station, but there is no independent witness to it. Therefore, this Court is of the view that insofar as the recovery from the appellants and the accused Chaman Lohari is concerned, the prosecution case is not reliable.

49. Undoubtedly, the deceased was killed in a busy market on 18.04.2010, at 7:45 PM, but what is the evidence? The impugned judgment relies on the confession recorded in Ex.A-22, the recovery memo, prepared on 05.09.2010, by PW13, Sanjay Kumar Pandey, in the presence of PW18, Inspector Kuldeep Singh, and the court below has termed it as a recovery under Section 27 of the Evidence Act.

50. To the utter shock of this Court, the court below has recorded the alleged confessional statements, which were recorded in the case diary. The case diary statement cannot be taken into consideration in assessing the guilt or otherwise of an accused. Is it a case of recovery of article under Section 27 of the Evidence Act?

51. Section 27 of the Evidence Act reads as follows:- “27. How much of information received from accused may be proved.––Provided that, when any fact is deposed to as discovered inconsequence 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 a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

52. In fact, it is not a mere confession, which is admissible under Section 27 of the Evidence Act. It is that part of the confession, which leads to recovery of any article, which is admissible. It is, in fact, an exception to the general rule incorporated under Section 25 of the Evidence Act, which speaks that, “–No confession made to a police-officer , shall be proved 19 as against a person accused of any offence.” A part of information may be proved, which leads to some recovery.

53. In the case of Bodhraj alias Bodha and Others Vs. State of Jammu and Kashmir, (2002) 8 SCC 45, the Hon’ble Supreme Court has discussed the scope of Section 27 of the Evidence Act. In Paragraph 18 of the judgment, the Hon’ble Supreme Court observed as follows:- “18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal Krishan, (1972) 4 SCC 659. The words “so much of such fact thereby information” as relates distinctly to the discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate………………………................................... …………………………………………………………………………… …………………………………………………………………………… …………………………………………………………………………….. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section………………………………………………………..... …………………………………………………………………………… …………………………………………………………………………… ……………………………………………………………………………” (emphasis supplied)

54. In the case of P. Krishna Mohan Reddy (supra), in Para 40, the Hon’ble Supreme Court has categorically held that, 20 “Where a confessional statement is otherwise excluded or inadmissible by virtue of Section(s) 25 or 26 of the Evidence Act, respectively, there can be no question of such confessional statements being made admissible against another co-accused by stretching it with the help of Section 30 of the Evidence Act.” That is what exactly the prosecution wants to stretch in the instant case. The confession allegedly made on 05.09.2010, that was recorded in Ex.A-22 by PW 13, S.I. Sanjay Kumar Pandey, is a confession before the police. It is inadmissible. By no stretch of imagination it can be read under Section 30 of the Evidence Act to prove any case against the appellants. In fact, confession made before the police officer cannot be permitted to be proved, and in the instant case, it has not been proved. In fact, the perusal of Ex. A-22 reveals that once entire recovery was made, thereafter, allegedly the accused Chaman Lohari confessed before the police. Therefore, this Ex.A-22 cannot be read into evidence under Section 27 of the Evidence Act, insofar as confession of the accused Chaman Lohari is concerned.

55. In the instant case, even the confession has not been recorded before any Magistrate. It is confession before police officer. It cannot be read into evidence. The statement of accomplice or proved confession has a different sanctity. The statement, which is given before a Magistrate or a statement of accomplice recorded in the court, they have a different bearing.

56. Learned State Counsel has tried to argue that the confession recorded by the police may be admissible in view of illustration (b) to Section 114 of the Evidence Act. The illustration 21 (b) speaks that, “an accomplice is unworthy of credit, unless he is corroborated in material particulars.”

57. The statement of accomplice is recorded under Section 133 of the Evidence Act, but, it is that accomplice, who is a competent witness. Section 133 of the Evidence Act speaks that, “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

58. In the case of Haroon Haji Abdulla Vs. State of Maharashtra, 1967 SCC OnLine SC 94, the Hon’ble Supreme Court observed that, “Section 30 of the Evidence Act does not limit itself to confessions made to Magistrates, nor do the earlier sections do so, and hence there is no bar to its proper application to the statements such as we have here.” In fact, in the case of Haroon (supra), such observation was made by the Hon’ble Supreme Court when response was given to a notice under Section 171 A of the Sea Customs Act, 1878.

59. In the case of Bishnu Prasad Sinha and Another Vs. State of Assam, (2007) 11 SCC 467, the Hon’ble Supreme Court made reference to the judgment in the case of State of M.P. Vs. Paltan Mallah, (2005) 3 SCC 169, and observed that “Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence.”

60. In the instant case, there is no testimony of an accomplice. There is no confession recorded before a Magistrate. 22

61. In view of the foregoing discussion, this Court is of the view that the prosecution has failed to prove its case against appellants and the accused. The accused Ghananand Joshi, Surya Verma and Chaman Lohari have rightly been acquitted of the charges leveled against them. Accordingly, the Government Appeal deserves to be dismissed.

62. The Government Appeal No. 12 of 2016 dismissed.

63. Insofar as the appeals of the appellants Prakash Pandey @ Vikash Tyagi and Umesh Sajwan @ Bablu are concerned (Criminal Appeal No. 297 of 2015 and Criminal Appeal No. 326 of 2015) this Court is of the view that the prosecution has not been able to prove the charge under Sections 302 read with 34 IPC and Section 25 of the Act beyond reasonable doubt against the appellants. The appellants ought to have been acquitted of the charge. Therefore, both the appeals deserve to be allowed.

64. Criminal Appeal No. 297 of 2015 and Criminal Appeal No. 326 of 2015 are allowed.

65. The impugned judgment and order is set aside to the extent it convicted and sentenced the appellant Prakash Pandey @ Vikash Tyagi and Umesh Sajwan @ Bablu. The appellants Prakash Pandey @ Vikash Tyagi and Umesh Sajwan @ Bablu are acquitted of the charge under Sections 302 read with 34 IPC and Section 25 of the Act.

66. The appellant Umesh Sajwan @ Bablu is on bail. His bail bonds are cancelled and sureties discharged.

67. The appellants Prakash Pandey @ Vikash Tyagi and Umesh Sajwan @ Bablu shall furnish a personal bond and 23 two sureties, each of the like amount to the satisfaction of court concerned under Section 437A of the Code within one month.

68. The appellant Prakash Pandey @ Vikash Tyagi is in jail. Let he be set free forthwith, if not wanted in any other case.

69. Let a copy of this order be sent to the court concerned for intimation and compliance. (Alok Mahra, J.) (Ravindra Maithani, J.)

22.09.2025 Ravi Bisht