NAHEED ARA MOONIS,J. - (1.) Heard Sri V.P.Srivastava, learned Senior Advocate asissted by Sri Onkar Singh, learned counsel appearing on behalf of the appellant and the learned AGA and have been taken through the materials on record.
(2.) An application supported by affidavit has been filed on behalf of the appellant seeking bai lduring the pendency of appeal against the judgment and order dated 13.1.2011 passed by the learned Additional District & Sessions Judge Court No.13 Muzaffar Nagar whereby the appellant has been convicted and sentenced to undergo life imprisonment with fine of Rs. 5000/- in default of payment of fine, the appellant has to undergo additional sentence of six months for the offence punishable under sections 302/34 IPC in Sessions Trial No. 592 of 2005 arising out of Case Crime No. 107 of 2005 Police Station Budhana District Muzaffar Nagar
(3.) It is submitted by the learned counsel for the appellant that it is a case of circumstantial evidence . Three persons were named in the first information report. The trial proceeded against Mobin & Aas Mohammad @ Asu and the trial of Meharban was separated as he was declared juvenile. There is no eye witness to connect the complicity of the appellant for the commission of said offence as such the prosecution cannot be said to have proved the guilt of the accused appellant beyond all reasonable doubt. The conviction of the appellant cannot be sustained solely upon his disclosure before the complainant and some other persons which had led to the discovery of the dead body of deceased Irshad. All the incriminating articles like clothes and the weapons i.e. knife and sword as well as recovery of the dead body of deceased Irshad at the pointing of the appellant and co-accused in police custody is hit by section 27 of the Evidence Act. Such recovery is not admissible in view of the disclosure already made by the appellant before the villagers then again made disclosure before the police. The object of sections 25 & 26 of the Evidence Act is to prevent the abuse of powers by the police, and hence confessions made by accused person before the independent person cannot be proved against him unless made in presence of a magistrate. The custody of a police officer provides easy opportunity of coercion for extorting confession obtained from accused appellant through any undue influence exerted upon him. The conviction of the appellant Mobin being based on such recovery on the basis of confessional evidence cannot be said to have proved all the links to hold him guilty for the alleged offence. The discovery must be on some fact which was not known previously from other sources and knowledge of the fact was first derived from information given by the accused to the police. Two conditions are prerequisite under section 27 of the Evidence Act, firstly information must be such as has caused discovery of the fact and secondly the information must relate distinctly to the fact discovered. The learned counsel for the appellant stressed that in the present case, it has already been mentioned in the first information report that the accused appellant had disclosed to the complainant and other persons that the corpse of Irshad had been concealed in the field of Shiv Charan Gujar, therefore, alleged discovery/recovery by the appellant is inadmissible.The appellant has been incarcerating in jail since 2005 hence deserves to be enlarged on bail taking into account the longevity of fourteen years inside the bar.;