- (1.) AMAR Saran, Shyam Shankar Tiwari, J. Heard learned Counsel for the appellants, learned Counsel for the complainant and learned Additional Government Advocate and perused the judgment and record of the case. Since both the aforementioned criminal appeals have been filed against the judge­ment and order dated 3.7.2009 passed by the Special Judge (DAA), Kanpur Dehat convicting and sentencing the appellants to life imprisonment under section 302/364-A/201IPC, the prayers for bail in both the appeals are being considered and disposed of by this common order.
(2.) THE informant Anil Kumar lodged a report on 20.12.2005 alleging that his son Gaurav Singh alias Bachcha Singh, a student of Class-X, aged about 16 years, had left his home on 8.12.2005 for his school in Prayag-ptir. He was seen along with the appellant Lal Singh by Arun Pal, P.W. 2 and Babulal, P.W. 3. Jitendra Kumar also saw the de­ceased going along with Lal Singh at the railway station. He met the appellant Aslam Khan and his other companions. Lal Singh gave his cycle to Aslam Khan and asked him to take it to his home. Aslam Khan narrated these facts to the informant, who became suspicious. The informant also received a ransom letter on 15.12.2005 purportedly written by one Arjun Singh Gurjar demand­ing Rs. 8 lakhs as ransom for the release of his son. On 4.1.2006, the accused were ar­rested and on their pointing out the dead body of Gaurav was recovered from the grove of Chet Ram in the presence of Ram Yash Gautam, SDM, P.W. 4. It is argued by the learned Counsel for the appellants that after the disappearance of the deceased on 8.12.2005, initially a re­port of his Gwmshwdgi was lodged on 12.12.2005 and very belatedly the FIR was lodged on 20.12.2005, which expressed suspicion against Lal Singh and Aslam Khan for this crime. In this connection, it was submitted that Arun Pal, P.W. 2 and Babu Lal, P.W. 3 gave statements to the police under section 161 Cr.P.C, after 21 days, and hence no reliance ought to have been placed on their testimonies. It was,also submitted that SDM Ram Yash Gautam, P.W. 4 admits that by the time he arrived, the dead body has al­ready been exhumed by the appellants. It was an open place and the dead body could easily be recovered and the case foisted on the appellants. Learned Counsel has also challenged the recovery memo because it did not bear the signatures of the accused persons. In support of his contention, learned Counsel has placed reliance on the decision of the Apex Court in Jackaran Singh v. State of Punjab AIR 1995 SC 235. Learned Counsel for the appellants contends that the weapons which were re­covered at the instance of the appellants were valueless as the cause of death of the deceased was strangulation and there were only contusions and abraded contusions on the deceased and the weapons did not contain any blood etc. The time of death was also not established as P.W. 5 Dr. K.P. Gupta, who conducted the post mortem on the deceased on 5.1.2006 opined that the deceased could have died 2 or 3 weeks ear­lier. No public witness has come forward to support the recovery of the dead body and the weapons from the deceased. The appel­lants were on bail during trial. Learned AGA, however, submitted that the belated disclosure by the witnesses P.W. 2 Arun Pal and P.W. 3 Babu Lal were not fatal because consequent to the infor­mation given by these witnesses the ac­cused persons were arrested and that the dead body was dug out by the accused persons from under the ground and that this was a clinching circumstance for estab­lishing the complicity of the accused in this offence. Moreover, P.W. 2, Arun Pal gives a satisfactory explanation for his delayed statement to the police by deposing that he had gone away to Delhi after the incident.
(3.) IT was argued by the learned Coun­sel for the complainant that if the complain­ant was interested in falsely implicating the appellants, he would have named them straight away after the boy's disappearance on 8.12.2005 and their names would not have been disclosed only in the report, which was lodged on 20.12.2005. It was not very material whether the SDM had come exactly before the dead body was exhumed or a little after that. In any case, not much advantage could be derived from such minor inconsistencies. The Apex Court has itself reviewed the view taken in ]ackaran Singh (supra) that the accused need to affix their signatures on the recovery memo. In this context, it was pointed out in the Division Bench de­cision of the Kerala High Court in the case of Saidu Mohammad v. State of Kerala, 2006 Cr. L.J. that in 1998 JV(.l) Kerala 1 to 5, the Apex Court has deleted the paragraph about the need of the signature of the ac­cused in the recovery memo. Paragraph 48 of Saidu Mohammad (supra) reads as fol­lows: 48. We shall now consider whether there is any merit in the argument that the Investigating Officer must obtain the signature of the accused in the recovery mahazar to make it admissible. In Jackaran Singh v. State of Punjab, 1997 SCC (Cri) 651 = 1995 Cri LJ 3992 = AIR 1995 SC 2345 originally there was an observation by the Apex Court to the effect that the failure to ob­tain the signature in the disclosure statement affects the reliability of the same. The said case was de­cided on April 20, 1995. The Su­preme Court subsequently held that the observation contained to that effect in that decision was to be reviewed. Therefore, the regis­try was directed to post the case before the same Bench for suo motu review. It was heard on 25-4-1996. The Supreme Court issued a corri­gendum, which is reported in Jackaran Singh v. The State of Pun­jab 1998 J.V. (1) (Ker) pp 1 to 5. It reads as follows: - Page Instead of Read Page 6, Line 8 to 17 "does not bear the signatures or thumb im­pression of the appellant. Even, the recov­ery memo of the revolver and the car­tridges, Ex. P-9/A, which is also attested by Yash Pal and Sukhdev Singh, ASI does not bear either the signatures or the thumb im­pression of the accused. The absence of the signatures or the thumb impression of an accused on the disclosure statement re­corded under S. 27 of the Evidence Act de­tracts materially from the authenticity and the reliability of the disclosure statement. "was made long time after the appellant was taken into custody by the investigating agency and it is doubtful whether the same was voluntarily made by the appellant." So, the legal effect is that there is no dictum laid down in Jackaran Singh's case 1995 Cri LJ 3992 to the effect that the statement made by an accused to be admissi­ble under section 27 must contain his signature or thump impression. These aspects were elaborately con­sidered by a Division Bench of the Madras High Court in Natarajan v. Union Territory of Pondicherry 2003 Cri LJ 2372. Fur­ther, in State of Rajasthan v. Teja Ram, 1999 (38) ACC 627 (SC) the Apex Court held that the Investigating Officer is not obliged to obtain the signature of an ac­cused. Since the Apex Court had suo motu reviewed the observations contained in Jackaran Singh's case (supra), that decision is not an authority to hold that to accept a statement under section 27, it must contain the signature or thump im­pression of the accused. Moreover, it is relevant to note that the words "any person supposed to be ac­quainted with the facts and circum­stances of the case" occurring in sub-section (1) of section 161 of the Code of Criminal Procedure are comprehensive enough to include an accused person and sub-section (1) of section 162 of the Code of Criminal Procedure enjoins that such statement, if reduced to writ­ing, shall not be signed by the maker. Section 27 of the Indian Evi­dence Act only makes that part of such statement relevant and admis- 3. sible in evidence as would rai within the ambit of that section." ;