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TMI Blog1988 (10) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution had to face because of absence of any direct evidence of the occurrence. The investigation, it seems, started on a report being lodged at Dimni Police Station by P.W. 5 Mahesh Singh Bhadoriya that around noon, he came to notice two dead bodies lying near the river with heads cut off when he had gone to the field. Ex. P/9 is the FIR which he had lodged on 9-11-1984 at about 6.20 in the evening at Dimni Police Station. The appellants, it is not disputed, hailed from different villages and none of them, it is also not disputed, resided either where the dead bodies were found or in the village from which the two deceased persons hailed. Appellants Ramprakash, Mansaram, Sultansingh and Munnilal are said to be residents of village-Raghunathpur, Ramnagar, Umrao Ka Pura and Tutt Ka Pura respectively, albeit all under Police Station, Dimni. On the other hand, deceased Rameshwar and Gabbar hailed from village Dhanela under Police Station, Noorabad. Except that the two dead bodies which P.W. 5 had seen were headless, nothing else has to be read in his deposition or even in Ex. P/9. In cross-examination though, P.W. 5 had to admit importantly that near the dead bodies, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arrested appellants Sultansingh, Ramprakash and Mansaram, on 7-12-1984. His evidence is that when they disclosed to him that they had kept concealed certain articles at different places, he recorded their statements under Section 27, Evidence Act, and proceeded in an official vehicle, with two witnesses, to seize the same. At Mansaram's behest one Phulsingh produced at village Kadman-Ka-pura some articles. That village was 25/30 kms. from Dimni P. S. At Raghunathpura, 20 Kms from that place, he is said to have seized from Ramprakash's house some more articles and then at a distance of 3 kms. from that place he seized some more articles from appellant Sultansingh's house at Umrao-ka-Pura. Though he denied the suggestion that the seizures were spurious as those articles had been taken away earlier by the Police from the river bank and were with them, we find much merit in the suggestion. It has to be appreciated in the light of the other circumstances too. It is difficult to accept hop and jump seizures portrayed in evidence; three accused and two witnesses accompanying the I.O. in police vehicle from place to place and within four hours all seizures being made, albeit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution did not care to explain why those articles were not formally seized. Indeed, the I.O. has not made any positive statement that those articles to which P.W. 5 referred in his deposition were not found at the place of occurrence. The evidence of P.W. 5, thus, stood unrebutted indenting seriously the credibility of prosecution's case that those articles were seized at different places other than the place of occurrence and at the instance of the appellants. The next question is of identification of the articles and indeed first of the towel by which appellant Munnilal is bought to be connected with the crime. On that, the important fact to be noted is the inordinate delay of 18 days which occurred between the alleged seizure of the towel and the same being put up to test identification. P.W. 10, A. K. Bandil, Naib Tahsildar, Sabalgarh, held test identification of the seized articles. He proved identification memo, Ex. P/12 which he had prepared. Two persons, Hakim Singh and Raj Bahadur are said to have identified the towel, but they have not been examined. That apart, P.W. 10 categorically stated that none of the witnesses could give any reason or ground in establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed that he met deceased Gabbar and Rameshwar coming together, he did not still depose that Gabbar had on his person the towel which the Police had seized as per Ex. P/8.. There is apparently no evidence worth a scratch even, against appellant Munnilal; and his conviction under Section 302, I.P.C. must be set aside. In so far as the other three appellants are concerned, we may deal first with the case of appellants Ramprakash and Dr. Sultansingh as against them also, the only evidence is of recovery and seizure of certain incriminating articles. Their case is of the same nature as that of the appellant Munnilal. As per Ex. P/40, these two appellants were arrested along with appellant Mansaram, but the time, date and place of their arrest is not mentioned in the memo of arrest. P.W. 13, Ramniwas, had witnessed Ex.P/40, but in his evidence, it is only disclosed that he found the three accused appellants at Police Station, Dimni; and there he had affixed his signature to Ex. P/40. In his deposition, the I.O. (P.W. 21) has not explained on what information or basis arrest of the said three appellants was made and indeed, how and where they were apprehended has been totally lef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that necessity of saddling the prosecution with the burden to justify the breach of the salutary provision of Section 100(4), Cr. P.C. flowed from the Constitutional requirement of reasonable procedure inscribed in Article 21 of the Constitution which enjoined a positive duty on the Court to carefully and judicially : screen the evidence of search and seizure in the light of the relevant legal provisions in a case where on the evidence of articles seized, the accused was liable to be convicted for any offence. On our own, we would like to add further that rigour of the requirement contemplated under Sub-section (4) of Section 100, Cr. P.C. is buttressed by that of Sub-section (8). While Sub-section (4) casts a duty on the Officer to make search in the manner provided therein, under Sub-section (8), any person who refuses when he is called to witness a search is made liable to conviction under Section 187, I.P.C. Therefore, the duty of the Officer making the search to call two or more independent and respectable inhabitants of the locality has to be deemed inexorable and failure to perform the duty must be deemed to vitiate the search made in violation thereof unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady held in Niran's case (1988 J LJ 505) (supra) that the fact of recovery at the instance of an accused under Section 27, Evidence Act has to be proved beyond reasonable doubt like any other fact by reliable witnesses. Indeed, if the seizure of articles said to be recovered from appellants Sultansingh and Ramprakash as per Ex. P/42 and P/43-A failed, the statements attributed to them as per Exs. P/42 and P/43 would not avail the prosecution on the holding in Prabhoo's (1963 (2) Cri LJ 182) (supra) itself as to the settled law that unless in fact any lawful seizure of any object is made, the mere statement under Section 27, Evidence Act can prove nothing. (See e.g., Jageshwar 1983CriLJ686 etc.). The only distinguishing feature of the case against appellant Dr. Sultansingh is that witnesses have given evidence that the appellant and deceased Gabbar were not on good terms. P.W. 7 Vaijanti, wife of deceased Rameshwar even went so far as attributing to appellant Sultansingh malice against her husband as well. In her evidence, she stated that she suspected Sultansingh to be the culprit as there was some dispute between him and her uncle-in- law. She also gave evidence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his evidence because of what he stated in his evidence. Although he deposed that he had seen appellant Mansaram in the company of deceased Gabbar and Rameshwar, he was caught in the wrong foot in the cross-examination. He gave the date as full-moon night in the month of Afghan, while the prosecution's case is that on or about 8-11-1984, deceased Gabbar and Rameshwar had left together for Ramsingh Garhi in the company of appellant Mansaram and that was the month of Kartik according to Indian calendar, not Afghan. Indeed, it could not be the prosecution's case that any of the witnesses had known from before appellant Mansaram as the test identification parade was held for the purpose of his identification. Reading the evidence of the other two witnesses P.W. 7 Vaijanti and P.W. 12 Ajab Singh, it appears clear that they had not known Mansaram and they had not seen Mansaram accompanying deceased Gabbar and Rameshwar. If identification of appellant Mansaram is held doubtful, then there can be no evidence against him of his being seen last in the company of the two deceased persons. As against appellant Mansaram, Ex. P/44 is proved as his statement under Section 27, Evid ..... 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