Holding

The Supreme Court quashed all convictions, holding that the prosecution’s case was built on inadmissible hearsay, unauthenticated statements and an illegal joint trial, and that the required sanction under the Arms Act was absent.

Summary

The appellants were convicted for kidnapping, murder and illegal possession of a firearm under the Arms Act and TADA. The prosecution’s case relied on the victim’s father’s testimony about a witness’s statement, statements recorded by police before investigation, the accused’s own statements about the location of the body, and a carbon‑copy post‑mortem report. The Supreme Court held that the father’s testimony was hearsay and inadmissible, that statements made to police under Section 162 CrPC cannot be used except under Sections 27 or 32 of the Evidence Act, that a statement leading to a fact already discovered is not admissible under Section 27, and that a carbon copy of a post‑mortem report without the original or doctor’s testimony violates the best‑evidence rule. The Court also ruled that the joint trial of kidnapping, murder and the Arms Act offence was illegal without a proper charge under Section 27 of the Arms Act and without prior sanction under Section 39 of the Arms Act. Consequently, the convictions under Sections 364, 302 IPC and Section 25 Arms Act were set aside and the appellants were released.

Issues considered

The admissibility of the victim’s father’s testimony about a witness’s statement (hearsay under Section 60 Evidence Act).
The permissibility of statements recorded by police before investigation (Section 162 CrPC).
The admissibility of an accused’s statement leading to discovery of a fact already known (Section 27 Evidence Act).
The validity of a carbon‑copy post‑mortem report without the original or doctor’s testimony (Sections 64, 65, 60 Evidence Act).
The propriety of basing a conviction on the result of investigation rather than trial evidence (Sections 173, 190(1)(b) CrPC).
The legality of a joint trial of kidnapping, murder and Arms Act/TADA offences (Section 218 CrPC).
The requirement of prior sanction under Section 39 Arms Act for prosecution of illegal possession.
The relevance of circumstantial evidence such as abscondence and motive.

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 39
Code of Criminal Procedure, 1973s. 162, s. 173, s. 190(1)(b), s. 218, s. 313
Indian Evidence Act, 1872s. 145, s. 157, s. 159, s. 27, s. 32(1), s. 6, s. 60, s. 64, s. 65
Indian Penal Code, 1860s. 302, s. 34, s. 364
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 5

Subjects

Hearsay evidenceSection 162 CrPCSection 27 Evidence ActBest evidence rulePost‑mortem report admissibilityJoint trialArms Act sanctionCircumstantial evidenceKidnappingMurderTADA

Judgment

VUENDER A
v.
THE STATE OF DELHI

FEBRUARY 12, 1997

[M.K. MUKHERJEE AND B.N. KIRPAL] B

Criminal Law :

Evidence Act, 1872 : Sections 6, 60 and 157.

Hearsay evidence-Offence of kidnapping-Father of victim deposed
c
that witness gave him the vehicle number in which his son was kidnapped
and names of accused as kidnappers-However, such witness did not depose
that he saw the accused kidnapping the victim nor did he give the vehicle
number in which the victim was kidnapped-Held : Evidence of victim's
father was hearsay and not admissible-But his testimony that witness told D
him that his son was kidnapped would be admissible as co"oborative
evidence under S.157-S.6 not applicable.

Section 27-Dead body already recovered by police-Accused stated the
place where dead body was thrown-Held : such a statement not admissible.
E
Sections 64, 65 and 32-Best Evidence Rule-Murder-Homicidal
death--Proof of-Post-mortem report (carbon copy) produced by record clerk
of hospital-Doctor who conducted post-mortem not examined-Held : ln
such circumstances post-mortem report not admissible-Moreover, only
original report and not a carbon copy thereof admissible. F
Section 3--Result of investigation-Held : finding of guilt could not be
based 011 result of investigation-It should be based solely on evidence
produced during trial-Criminal Procedure Code, 1973-Ss. 173 and
190(1)(b ).
G
Criminal Procedure Code, 1973: Section 162.

Statement-Before police officer during investigation-Use of-Held :
such a statement could not be used for any purpose except when it attracted
Ss. 27 or 32(1) of the Evidence Act-However, it could be used to contradict
maker thereof in accordance with S.145 of Evidence Act-Evidence Act, H
1181
. )-

1182 SUPREME COURT REPORTS [1997) 1 S.C.R.
A 1872,-Ss. 27, 32( I) and 145.

Section 218--Joint Trial-Offences of kidnapping and murder under
Penal Code along with offence under S.25 of Amis Act read with S.5 of ...
TADA for illegal possession of count1y-111ade pistol and canridge-No change
that accused used the pistol for committing the said offence,~Held : Joint
B t1ial was illegal and caused prejudice to accused-Hence, conviction for
offence under S.25 of Anns Act read with S.5 of TADA set aside-Further,
conviction under S.25 of Anns.Act must also fail as there was no prior
sanction under S.39 of Anns Act-Amis Aci, 1959, Ss. 25,27 and 39-Ter-
rorist and Dismptive Activities (Prevention) Act, 1987, S.5.
c Criminal Tria/ :

Circumstantial evidence-Abscondance-Held a weak link in the
chain of circumstantial evidence.

Circumstantial evidence-Motive-Held : Jn absence of any other in-.
D criminating circumstances, it is of no moment.

Appreciation of evidence-Offences of kidnapping and mur-
der-Prosecution proved that victim was kidnapped in a Mamti car-It failed
to prove that accused were the kidnappers or t/zat they were responsible for
E the death of tiie victim:--Held : judgment of trial cowt convicting the accused
was a prese1ve one for it was nut only based on conclusions drawn from
i11admissihle evidence but .wjfercd from the vice of no11-co11sidcration of
evidence, which matc1ially impaired the prosecution case-Accordingly, con-
...,
viction set aside-Penal Corle, 1860, Ss. 302 and 364.

F TI1e appellants-accused were convicted by the Designated Court
under Sections 364 and 302 read. with Section 34 of the Indian Penal Code,
1860 and Section 25 of the Arms Act, 1959 read with Section 5 of the
Terrorist and Disruptive Activities (Prev~nlion) Act, 19!!7. Aggrievli!d
thereby the appellants-accused preferred the present appeal,
G According to the prosecution, PW-4 went to the house of PW-5 and
informed him that he had seen the accused kidnapping his son in a Maniti
car, PW-5 reportecl to the police that his son was kidnapped, In the meantime
some Police officers found the dead body of a young boy lying by the side of
Railway Lines, The dead bo!ly was identified by PW-6 as that of her son. A
H country-made pistol with a cartridge was recovered from the ai:cused pel'· I
1
VUENDER v. STATE 1183
sons. The information about the place where the dead body was thrown A
was obtained from the accused. The appellant absconded after commission
ol" the crime. A First Information Report was lodged and a post-mortem
was held.

On behalf of the appellants, it was contended that the father of the
victim deposed that the witness gave him the number of the Maruti car in B
which his son was kidnapped and the names of the appellants as the
kidnappers; however, the witness did not depose to these facts in the trial
and hence the evidence of the father was inadmissible being hearsay; that
the statement made by the witnesses before the police officer during inves-
tigation under Section 162 of the Criminal Procedure Code, 1973 could not c
be used for an)' purpose; that the statement of the appellants as to where
they had thrmm the dead body was uot admissible under Section 27 of the
Evidence Act, 1872; that the doctor who conducted the post-mortem was not
examined and that the record clerk of the hospital produced a carbon copy
and not the original post-mortem report; that the finding was based on the
result of investigation by the police; that no charge under Section 27 of the D
Arms Act was framed against the appellant on the allegation that he used
the pistol for committing the offences of kidnapping and murder, that the
joint trial of the appellants for the offences of kidnapping and murder·
along with offences unde; Section 25 of the Arms Act read with Section 5
of TADA seriously preJudiced the appellant in his defence inasmuch as the
E
trial Judge relied upon the evidence adduced by the prosecution for the
offences; that the prosecution failed to establish that the appellants were
the kidnappers; that there was no previous sam:tion under Section 39 of the
Arms Act for the prosecution of the appellant; and that the judgment of the
trial court convicting the appellants was a perverse one for it was based on
inadmissible evidence. F

Allowing the appeal, this Court

HELD : 1. The evidence of PW-5, the father of the victim, that
PW-4 gave him the vehicle n11mber and the names of the three appel-
lants as the miscreants was not legally admissible for P\Y-4 did not G
state that he had seen the three appellants kidnapping the victim nor
did he give the vehicle number in which the victim was taken away. In
~f absence of such direct evidence of PW-4, the testimony of PW-5 to that
extent would be hit by Section 60 of the Evidence Act, 1872. In the facts"
of the present case Section 6 of the Evidence Act also does not come in H
\-
1184 SUPREME COURT REPORTS (1997] 1 S.C.R.
A aid of the prosecution. (1190-H, 1191-C]
~
2. The trial Judge permitted the prosecution to let in statements
made by a witness to the police officer in utter disregard of the provisions
of Section 162 of the Criminal Procedure Code, 1973, which lays down an
....
elementary but fundamental principle to be followed in criminal trial that
B a statement made before the police officer during investigation cannot be
used for any purpose whatsoever; except when it attracts the provisions of
Section 27 or Section 32(1) of the Evidence Act. If, however, such a
statement is made by a witness examined by the prosecution it may be used
by the accused to contradict such a witness, and with the permission of the
c Court, by the prosecution in accordance with Section 145 of the Evidence
Act. (1192-F-G]

3. Since the dead body of the victim was already recovered by the
police the question of discovery of the place where it was thrown thereafter
could not arise. Under Section 27 of the Evidence Act if an information
D given by the accused leads to the discovery of a fact which is the direct
outcome of such information then only it would be evidence but when the ....
fact has already been discovered, as in the instant case, evidence could not
'
be led in respect thereof. (1193-D-E]

4. In view of Section 60 of the Evidence Act, 1872 the prosecution is
E bound. to lead the best evidence available to prove a certain fact, and in
the instant case, needless to say,· it was that of the doctor who held that
post-mortem examination, but who was not examined. The other reason
for which the trial Judge ought not to have allowed the prosecution to
prove the post- mortem report is that it was not the original report but
F only a carbon copy thereof, and that too not certified. Under Section 64 of """
the Evidence Act document must be proved by primary evidence, that is to
say, by producing the document itself except in the cases mentioned in
Section 65 thereof. Since the copy of the post-mortem report did not come
within the purview of any of the clauses of Section 65 it was not admissible
on this score also. [1194-D-F]
G
5. The reliance of the trial Judge on the result of investigation to
base his findings is again patently wrong. If the observation of the trial
Judge in this regard is taken to its logical conclusion it would mean that f
a finding of guilt can be recorded against an accused without a trial,
H relying solely upon the police report submitted under Sectiop.1'73 Cr.P.C.
VLTENDER v. STAIB 1185
which is the outcome of an investigation. [1199-B] A
6. Abscondance is a weak I.ink in the chain of circumstantial evidence.
Lastly, the question whether the motive stands proved or not in absence of
any other incriminating circumstance, is of no moment. [1200-D]

7. No charge was framed against the appellant under Section 27 of B
the Arms Act, 1959 on an allegation that he used the pistol for committing
the offences of kidnapping or murder nor for illegal possession of country·
made pistol and cartridge under Section 25 of the Arms Act read with
Section 27 of the Terrorist and Disruptive Activities (Prevention) Act,
1987. In the absence of such accusation, the appellant could not have been C
jointly tried for illegal possession of a firearm and ammunition with the
offences of kidnapping and murder in view of Section 218(1) Cr.P.C. and
in view of non-applicability of the sub- section thereof. The evidence led by
the prosecution relating to kidnapping and murder has been utilised for
convicting the appellant for unauthorised possession of firearm. Hence,
joint tri.al of the appellant was illegal and caused prejudice to him. The D
conviction under Section 25 of the Arms Act must also fail for the reason
that no previous sanction for such prosecution as required under S.ection
39 of the Arms Act was produced during the trial. [1200-F-G, 1201-A]

8. The prosecution had. only proved the fact that the victim was E
kidnapped in a Maruti car•. The prosecution also failed to prove that the
appellants were the kidnappers or that they were responsible for the death
of the victim. The judgment of the trial court for convicting the appellants
is a perverse one for it is not only based on conclusions drawn from
inadmissible evidence but also suffers from the vice of non-consideration
of evidence, which materially impaired the prosecution case. Accordingly, F
conviction of the appellants under Section 364 and 302 read with Section
34 of the Indian Penal Code, 1860 is set aside. [1197 -F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
769 of 1996 etc.
G
From the Judgment and Order dated 22/24.5.96 of the Designated
· Court No. Ill Karkardooma Courts, Delhi in F.I.R. No. 218 of 1992.

Shrinath Singh, B.M. Sharma and T.N.<Singh for the Appellant in
Cr!. A.No. 769/96. H
I
']-
1186 SUPREME COURT REPORTS [1997] 1 S.C.R.

A K.R. Nagaraja and K.K. Tyagi for the Appellant In Cr!. A No. 2017
&.2022/96.

V.V. Vaze, Suvira Lal, D.S. Mehra and B.K. Prasad for the Respon- ·
dent.

B The Judgment of the Court was delivered by

M. K. MUKHERJEE, J. Vijender, Devinder @ Bhinder and Mukesh
Kumar, the appellants in these three appeals, were placed on trial before
the Judge, Designated Court No. 111 (Karkardooma Courts), Delhi to 1<

C answer common charges under Sections 364/34, 302/34 and 201/34 IPC.
The charges were based on the allegations that on June 26, 1992, at or
about 11 AM. they, in furtherance of their common intention, kidnapped
Khurshid Ali from village Johripur, within the jurisdiction of Gokalpuri
police station, in a Maruti car bearing registration No. DDB 5067 in order.
to put him in danger of being murdered; and after committing his murder
D in the same night they concealed his dead body in village Banthala, within
the jurisdiction of Loni police station, to escape from legal punishment.
Against Vijender and Devinder separate charges under Section 25 of the
Arms Act, 1959 read with Section 5 of the Terrorist and Disruptive
Activities {Prevention) Act, 1987 ('Tada') were also framed for illegal
E possession of country made pistols and cartridges. The trial ended with an
order. of conviction and sentence recorded against all the appellants under
Section 364 and 302 IPC and also under Section 25 of the Arms Act, 1959
read with Section 5 of Tada against appellant Vijender. Aggrieved thereby
the three convicts have filed these appeals under Section 19 of TADA
which have been heard together and this judgment will dispose of them.
F
2. Shorn of details, the prosecution case is as under :

(a) On June 26, 1992 at or about 11 AM. Raj Kumar (P.W.4), a
resident of Johripur, went to the house of Shaikh Rafuj Hassan (P.W.5) of
their locality and informed him that he had just seen Vijender, Mukesh and
G Devinder (the three appellants) taking away his son Khurshid in Maruti
car No. DDB 5067. On getting that information P.W.5 called the police
control room over telephone and reported the kidnapping of his son. Lady
Const. Urmila, who was then on duty in the police control room, received
that message and comm'l'lnicated it to Gokalpuri police station as village
H Johripur fell under its jurisdiction. On receipt of that communieation SJ.
VIJENDER v. STATE [M.K. MUKHERJEE, J.] 1187

Shivraj Singh, (P.W.8) recorded the same in the daily diary book under A
Entry No. 18-A (Ext. PW8/A) and proceeded to Johripur. There he met
P.W.5 and assured him that his son would be traced out soon. Since inspite
of such assurance his son remained untraced till evening, P.W.5 went to
the Police Vigilance Cell and lodged a report there (Ext. PW.TS/A). On the
following morning P.W.5 went to Gokalpuri police station and lodged
B
another report which was recorded by P.W.8 (Ext. PW5/A). Treating this
report as the F.I.R. P.W.8 Jegistered a case· and Shri R.S. Chauhan
(P.W.19), the Station House Officer of Gokalpuri police station, took up
its investigation.

(b) In the meantime some officers of Loni police station in the C
District of Ghaziabad (U.P.), while on patrol duty in the afternoon of June
27, 1992, found the dead body of a young boy aged about 17/18 years lying
by the side of Railway Lines in village Banthala. Sub-Inspector Santosh
Kumar (P.W.20) got photographs of the dead body taken (Ext. PW20/B)
and, after holding inquest thereupon, sent it to Ghaziabad mortuary for D
post mortem examination; '

(c) On getting that information Saddiqan, (P.W.6), mother of Khur-
shid, went to the mortuary on June 20, 1992 and identified the dead body
as that of her son from the wearing apparels and an injury on his finger
which he had sustained earlier; E
(d) On the same day, i.e. June 28, 1992, Const. Meghraj Singh
(P.W.17) of police station Khekhra in the District of Meerut (U.P.) found,
while coming from patrol duty, a red colour Maruti car bearing No. DDB
5067 lying abandoned near a field in village Ahmadnagar with its front door
glass broken and blood stains inside the car. He made necessary arrange- F
ment to take the car to the police station and deposited it there as
unclaimed property;

(e) On getting information that car No. DDB 5067 was lying in
Khekhra police station P.W.19 went there on June 29, 1992 along with a G
finger print expert and a photographer. The expert took impressions of the
finger prints found on the car and P.W.19 seized sample of blood stains
found inside the car after scratching.

(f) On the following day i.e. June 30, 1992 P.W.19 went in search of
the accused persons and ultimately apprehended them from a house in H·
'r
1188 SUPREME COURT REPORTS [1997] 1 S.C.R.
A Khajani Nagar behind .Tohripur. On search of their persons, a 315 bore
country made pistol with a cartridge inside was recovered from the
trousers' pocket of Vijender and b.12 bore broken country made pistol and
a cartridge from underneath the bed of Devinder. Besides, a key of Maruti
car was also recovered from Vijender. P.W.19 seized all those articles and
B sealed them. The seized arms and ammunitions as also the wearing ap- -
parels of Khurshid earlier seized were sent for examination by Ballistic
Expert and the blood stained articles to tbe Forensic Science Laboratory, .
After receipt of the reports of the post mortem examination (Ext. PW
21/A) and of the Experts (Ext. PW 19/J.KL) and completion of investiga-
tion P.W.19 submitted charge sheet against the appellants.
c
3. The motive that was ascribed by the prosecution for the kidnap-
ping and murder of Khurshid was that he used to send love letters to the
sister of Vijender who was the driver of the Maruti car in question and
lived in the same locality. When Vijender learnt about the same he warned
P.W.5 that if his son did not stop such undesirable activity he would be
D compelled to take dire steps.
•
4. The appellants pleaded not guilty to the charges levelled against
them and contended that they had been falsely implicated. Vijender took
a plea of alibi also.
E 5. To prove its case the prosecution examined twenty two witnesses
and the defence four.

6. The learned counsel for the appellants submitted that having
discarded the testimony of Mirja Ali (P.W.9), who was examined by the
p prosecution to prove the kidnapping of Khurshid by the three appellants,
as wholly untrustworthy the trial Judge could not have held the three
appellants guilty of the offences of kidnapping and murder as there was no
other legal evidence on record to connect them with the above offences.
In elaborating this contention the learned counsel submitted that in his
anxiety to convict the appellants, the trial Judge permitted the prosecution
G to adduce evidence which was not legally admissible and based his judg-
ment primarily on such evidence. Once the inadmissible evidence was left
out of consideration there was not an iota of evidence to connect the
appellants with the alleged kidnapping and murder of Khurshid, argued ~
the learned counsel. Besides, the learned counsel submitted that the trial
H Judge failed to notice that there was no legal evidence to even prove that
--r
WENDER v. STATE (M.K. MUKHERJEE, J.] 1189
Khurshid was murdered. As regards the conviction of Vijender for unlaw- A
ful possession of country-made pistol and cartridge the submission of the
learned counsel was that Vijender could not have been jointly tried for that
offence along with the offences kidnapping and murder of Khurshid for,
on the own showing of prosecution, the latter offence was not part of the
former transaction. Accordingfto the learned counsel the joint trial serious-
B
ly prejudiced Vijender in his defence inasmuch as the trial Judge relied
upon the evidence adduced by the prosecution for the offences of kidnap-
ping and murder to convict him for the other offences. It was lastly
submitted that the evidence of the prosecution witnesses to prove the
recovery of the pistol and cartridge from Vijender was unworthy of credit.
The learned counsel for the State however fully supported the impugned c
judgment.

7. To appreciate the contentions raised before us we have carefully
gone through the entire materials on record and the impugned judgment.
Our such exercise persuades us to unhesitatingly hold that the trial Judge D
permitted the prosecution to lead evidence on some vital issues in utter
breach of the rudimentary and fundamental principles of criminal
jillisprudence and that the impugned judgment is a perversed one for it is
not only based on conclusions drawn from such inadmissible evidence but
suffers from the vice of non consideration of evidence which materially
impaired the prosecution case. The impugned judgn1ent cannot be sus- E
tained for other reasons also to which we will advert at the appropriate
stage. Before, however, we proceed to consider the judgment it will be
apposite to detail and di~cuss the evidence adduced during trial and point
ollt the legal infirmities in reception of material parts of it.
F
8. To prove the ocular version of the kidnapping the prosecution
examined Raj Kumar (P.W.4) and Mirza Ali (P.W.9). As earlier stated the
trial Judge held - in our view rightly - that P.W.9 could not at all be
believed. So far as P.W.4 is concerned we find that he was declared hostile
by the prosecution as he did not fully support its case and was permitted G
to be cross examined with reference to his purported statement recorded
under Section 161 Cr.P.C. wherein he detailed and described the manner
in which Khurshid was kidnapped by the appellants in a red colour Maruti
car. He however denied to have made any such statement to the police.
Scanning the entire testimony of P.W.4 we gather that the only substantial ·
piece of his evidence which the prosecution can fall back upon is that he ' H
1190 SUPREME COURT REPORTS [1997) l S.C.R.
A saw Khurshid being pulled into a van of red colour and that he gave that
information to liis parents. On being questioned by the Public Prosecutor
whether he knew the three accused persons present in Court (the appel-
lants) he answered in the negative. In answer to another question as to
whether he could note the number of the vehicle he stated that being
B illiterate he could not do so. There being no other eye witness to ,the
kidnapping and murder we may now advert our attention to the cir-
cumstantial evidence led by the prosecution in proof thereof.

9. To prove that Vijender was the driver of the car in question an.d
it was in his custody at the material time the prosecution examined its
C owner Bhim Singh (P.W.1). He however categorically stated that the
appellant Vijender was not his driver and that his driver was living in
Dayalpur in a rented house of Om Prakash. In view of his such assertion
he was declared hostile and contradicted with reference to his statement
recorded under Section 161 Cr.P.C. The other two witnesses examined by
D the prosecution to prove the above circumstance namely, Jitender (P.W.2)
and Om Pal (P.W.3) also turned hostile.

10. Rafuj Hassan (P.W.5), father of Khurshid, firstly stated that on
June 25, 1992 Vijender came to their house in a red Maruti car and asked
him why his. son Khurshid was sending letters to his sister. He replied that
E all his children were illiterate and his allegation was untrue. Vijender then
went away threatening that if Khurshid did not stop such practice, he would
have to suffer the consequence. He next stated that on June 26, 1992 at 11
AM. Raju (P.W.4) came to his house and told him that Khurshid had been
forcibly taken aw;;:; by Vijender, Mukesh and Devinder (the three appel-
F !ants) in car No. DDB 5067. He lastly testified about his having given three
reports to the police; one to the police control room immediately thereafter
(Ext. PWS/A), to the police Vigilance Cell (Ext. PW15A) in the same night
and to the Station House Officer, Gokalpuri Police Station (EJ..i. PW5/A)
next morning.

G 11. The evidence of P.W.5 that Raju gave him the number of the
vehicle and the names of the three appellants as the miscreants was not
legally admissible for Raju (P.W.4) did not state that he had seen the three
appellants to kidnap Khurshid nor did he give the vehicle number in which
Khurshid was taken away. In absence of such direct evidence of Raju
H (P.W.4), the testimony of P.W.5 to that extent would be hit by Section 60
f
..
VUENDER v. STATE [M.K MUKHERJEE, J.] 1191
>
of the Evidence Act. The said Section, so far as it is relevant for our present A
purpose lays down that oral evidence must, in all cases whatever, be direct;
that is to say if it refers to a fact which could be seen it must be the evidence
of a witness who says he saw it (emphasis supplied). In the instant case the
facts which could be seen were that Khurshid was kidnapped, that the
appellants kidnapped him and that he was kidnapped in Car No. DDB
5067 and therefore P.W.4 was the only person (in absence of any other eye-
B
witnes&) who was legally competent to testify about these facts. Since P.W.4
,,. did not testify to two of the above facts, namely the car number and the
persons who kidnapped him, the statement of P .W .5 that he was also told
about the above two facts would not be admissible being, ··hearsay', but his
testimony that P.W.4 told him that Khurshid was kidnapped would be c
admissible as corroborative evidence under Section 159 of the Evidence
Act. While on this point it need be mentioned that in the facts of the
present case Section 6 of the Evidence Act also does not come in aid of
the prosecution.
,.
D
12. Smt. SadJiqan (P.W.6), mother of Khurshid corroborated P.W.5
regarding the threat meted out by Vijender on June 25, 1994 and the
information that Raju (P.W. 4) gave to them on June 26, 1992 regarding
kidnapping of their son Khurshid by the appellants. It is her further
evidence that three days after her son was kidnapped she was taken to the
mortuary of Ghaziabad in order to identify a dead body and she identified E
it as that of her son from the wearing apparels and a scar he had on his
finger owing to an injury he sustained earlier. On being shown a shirt and
a pair of trousers, which were seized by the police during investigation from
the person of the deceased, she identified them to be those o( her sen. To
the extent she testified that Raju had told them that the three appellants
F
kidnapped her son must be said to be inadmissible in vic\fof our foregoing
discussion. So far as the probative value of her evidence o"'n the other points
we will advert to the same at the appropriate stage.

13. Sequentially stated, the next circumstance related to the recovery
of a dead body which was later on identified by P.W. 6 as that of her son G
Khurshid. Evidence on this point was furnished by S.l. Santosh Kumar
. ).
(P.W.20), Constable Suresh Kumar (P.W. 18) and Ravinder Singh (P.W .
11), all of Loni Police Station. Their evidence proves that on June 27, 1992
they found the dead body of a young boy aged about 17/18 years l}ing near
the Railway lines in village Banlhala. There P.W. 20 got photograph of the H
,
1192 SUPREME COURT REPORTS [1997] 1 S.C.R.

A dead body taken (Ext. PW20/B), held inquest thereupon and then sent it
to Ghaziabad mortuary for post-mortem examination, through PW. 11 and
P.W. 18. It is further evidence of PW.s 11 and 18 that oil-the following day,
i.e. June 28, 1992, the relatives of the deceased reached the mortuary and
identified the dead body.

B 14. As regards the recovery of the car No. DDB 5067 tile prosecution
relied upon the evidence of Const. Megh Raj Singh (P.W. 17) of Khekhra
police station in the District of Meerut (U.P.). He stated that on June 28, "'
1992 when after his patrol duty he was returning from village Ahmadnagar
he found a Maruti car bearing No. DDB 5067 lying abandoned. He found
c the left side front door glass and rear right side triangular glass of the car
broken and blood stains inside it. He brought the car to the police station ·
and deposited it there. The next piece of evidence on this point is that of
Ram Singh (P.W. 19), the Investigating Officer. He stated that on getting
information that' car No. DDB 5067 was lying at Khekhra police station he
went there on June 29, 1992 along with finger print expert and photog- 4(
D
rapher and got finger print impressions found on the car photographed.
Besides, he claimed to have seized the blood stains found on the body of
the car after scratching and the seat covers which were also blood stained.

15. The next circumstance on which the prosecution relied to estab-
E lish the complicity of three appellants relates to their arrest and their
subsequent conduct. The witnesses to prove this circumstance were Inspec-
tor Ram Chander (P.W. 14) and S.H.O. Ram Singh (P.W.19). On perusal
of their testimonies we are surprised to find that the trial Judge permitted
the prosecution to let in statements made by Jitendra (P.W. 2) to them in
F utter disregard of the provisions of Section 162 Cr.P.C., which lays down
an elementary but fundamental principle to be followed in criminal trial
that a statement made before a police officer during investigation cannot
be used for any purpose whatsoever; except when it attracts the provisions
of Section 27 of Section 32(i) of the Evidence Act. If, however, such a
statement is made by a witness examined by the prosecution it may be used
G by the accused to contradict such a witness, and with the permission of the
Court, by the prosecution in accordance with Section 145 of the Evidence --.(
Act. To eschew prolixity, we quote below only the relative portion of the ·•
evidence of P.W. 13 in this regard :

H "One boy named Jeetu @ Jitender met us at Johri Pur and told that
-{
I

VUENDER v. STATE [M.K. MUKHERJEE, J.) 1193

Gyanender was having one house at Khajani Nagar which was less A
known to the people. We then went to Khajani Nagar and reached
there at 4.45 p.m. along with Jeetu. Jeetu pointed out to the house
and then he went inside the premises and peeped into the room. After
peeping inside the room he told the police party that Vijender.
Davinder and Mukesh, the three boys, were present inside the room B
and they were the same persons who had kidnapped and killed the
deceased."

(emphasis supplied)

16. Incidentally, it may be mentioned - though not relevant for our C
present purpose that P.W. 2 did not at all support the prosecution case
and he was declared hostile.

17. Another elementary statutory breach which we notice in record-
~ ing the evidence of the above witnesses is that of Section 27 of the Evidence
Act. Evidence was led through the above three police w:itnes~es that in D
... consequence of information received from the three appellants on June 30,'
1992 they discovered the place where the dead body of Khurshid was
thrown. As already noticed, the dead body of Khurshid was recovered on
June 27, 1992 and therefore the question of discovery of the place where
it was thrown thereafter could not arise. Under Section 27 of the Evidence E
Act if an information given by the accused leads to the discovery of a fact
which is the direct outcome of such information then only it would be
evidence but when the fact has already been discovered as in the instant
case the evidence could not be led in respect thereof.
F
18. However, the most glaring infirmity appearing on the record
relates to the evidence led by the prosecution to prove the homicidal death
of Khurshid. The only witness examined by the prosecution in this regard
was Satish Kumar (P.W. 21), a record clerk of the District Hospital,
Ghaziabad. His testimony reads as follows :
G
:..- "I have brought the post mortem report of an unknown male sent
by PS Loni Ghaziabad on 28.6.1992. Post mortem was conducted
on 28.6.92 by Dr. U.C. Gupta. The date of sending is not known
to me and is not given on record. Dr. U.C. Gupta was transferred
from Distt. Hospital earlier. He has been now transferred back. I H
1194 SUPREME COURT REPORTS [1997] 1 S.C.R.

A identify his signature and handwriting, at Post Mortem Report.
The copy of PIM report is Ex.21/A (objected to). I have seen Dr.
U.C. Gupta writing and signing Cross Examination.

Original copy is not on record. The original copy is sent to SSP
Ghaziabad. Second copy is sent to PS and third copy is maintained
B in the record."

19. It passes our comprehension how the trial Judge entertained the
post mortem report as a piece of documentary evidence on the basis of the
above testimony of a clerk in spite of legitimate objection raised by the
C defence. In view of Section 60 of the Evidence Act, referred to earlier, the
prosecution is bound to lead the best evidem:e available to prove a certain
fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta,
who held the post mortem examination. It is of course true that in an
exceptional case where any of the pre-requisites of Section 32 of the
D Evidence Act is fulfilled a post mortem report can be admitted in evidence
as a relevant fact under sub- section(2) thereof by proving the same
through some other competent witness but this Section had no manner of
application here for the evidence of P.W.21 clearly reveals that on the day
he was deposing Dr. Gupta was in that hospital. The other reason for which
E the trial Judge ought not to have allowed the prosecution to prove the
post-mortem report is that it was not the original report but only a carbon
copy thereof, and that too not certified. Under Section 64 of the Evidence
Act document must be proved by primary evidence, that is to say, by
producing the document itself except in the cases mentioned in Section 65
thereof. Since the copy of the post mortem report did not come within the
F purview of any of the clauses of Section 65 it was not admissible on this
score also.

20. After excluding the prosecution evidence, oral and documentary,
to the extent its reception was legally impermissible, and culling the rest
G we find that the prosecution has led evidence to prove the following facts
and circumstances.

(i) On June 26, 1992 at or about 11 A.M. P.W.4 saw Khurshid being
dragged into a red colour Maruti car and he gave that information to his
H parents (P.Ws. 5 and 6);.
VUENDER v. STATE [M.K MUKHERJEE, J.] 1195
~
(ii) Over the kidnapping of his son P .W .5 lodged three reports before A
the police: first on telephone to the Police Control Room (Ext. PW8/A) at
or about 1.40 P.M., next in the same night in the Police Vigilance Cell (Ext.
,,.
PW15/A), and lastly on the following morning at Gokalpuri Police Station
(Ext. PW5/A) which was treated as the F.I.R.;
B
(iii) On June 27, 1992 the dead body of a young boy was found lying
by the side of Railway lines in village Banthala within the jurisdiction of
Loni Police station in district of Ghaziabad (U.P.) which was photographed
and later on identified by P.W. 6 at the mortuary as the dead body of her
sun Khurshid;
c
.-(iv) On June 28, 1992 officers of Khekhra Police Station in the district
'

of Meerut (U.P.) found a red colour Maruti car bearing No. DDB 5067
lying abandoned near a field with window glasses broken and blood stains
inside the car;
D
(v) After the car was brought to the Khekhra Police Station finger
print impressions found on it were photographed and samples of blood
stains found inside were seized after scratching;

,- (vi) On June 30, 1992 the appellants were arrested from a house in
Khajani Nagar behind Johripur and on search of the persons of Vijender E
and Davinder country made pistols were recovered. A key of a Maruti car
was also recovered from Vijender and constable Suresh Chand (P.W. 22)
found that the key could be used for ignition of the engine of the car
bearing No. DDB 5067;
F
(vii) The pistol and cartridge seized from Vijender were in working
order and live respectively;

(viii) The shirt, that the deceased was wearing had a hole/tear mark
·~
on it and it was caused by a fire-arm which was fired from a close range;
G
(ix) The stains found in the seat covers of the car were of human
}..
blood; and
;
(x) Vijender was annoyed with Khurshid as he wrote love letters to
his sister. H
1196 SUPREME COURT REPORTS [1997] 1 S.C.R.
A 21. Without going into the probative value of the evidence ad-
duced by the prosecution witnesses and fully replying upon the same if
we proceed on the assumption that the above facts and circumstances
stand established, it can be said that the prosecution has succeeded in
only proving that khurshid was kidnapped. As regards the proof of his
B murder, the evidence relied upon by the prosecution is that of P.W. 6,
who identified the dead body, found by the officers of Loni Police
Station near the Railway lines and later on brought to the Ghaziabad
mortuary, as that of his son and the report of the post mortem examina-
tion, (Ext. PW 21/A) which we have found to be legally inadmissible for
C non-examination of the doctor who held the autopsy. Even if we accept
the post mortem report as a valid piece of documentary evidence, we
notice therefrom that it relates to an unknown male aged about 25/30
years, and not to a boy aged 17/18 years. We next get that on the person
1
of the dead body the doctor found three external injuries : one large
swelling on the right side of the head, another large swelling over the
D right F.ide of the jaw and fracture of right pariotal bone. The opinion
given by the doctor therein is that death was caused by shock and
haemorrhage as a result of the injuries. In absence of any medical
opinion that the injuries were homicidal, accidental death of the victim
cannot therefore be ruled out.
E \
22. However, to.prove that the death was homicidal the prosecu-
tion relied - and the trial Judge gave much emphasis upon the presence
of a hole/tear mark upon the back of the shirt round on the dead body
F and the opinion of the Ballistic expert that it (hole/tear) was caused by
a firearm which was ·fired from a close range. The above opinion of the
Ballistic expert shows that the post mortem report could not be related
to Khurshid for there is no reference to any injury on the back, much
less with blackening or charring which was expected in case of close
range firing. The fact that the report relates to a person aged 25/30 years
G and not a boy aged 17/18 years lends further assurance to our above
inference. The only other inference that can be legitimately drawn from
the preceding facts and circumstances is that the identification of the
dead body by P.W. 6 as that of his son is incorrect. Even though
photographs of the dead body were taken, she did not identify her son
H from the photographs but from the wearing apparels, which included
.(

VIJENDER v. STATE [M.K. MUKHERJEE, J.] 1197

the shirt referred to above. Since the injuries found on the dead body did A
not fit in with the hole/tear found on the shirt which could be caused by
firing the shirt could not be that of her son. As, according to her, she saw
the dead body after the post mortem examination which necessarily needed
dissection, her identification on the basis of a cut mark on the finger also
loses its importance. In any view of the evidence, therefore, it must be said B
that the prosecution failed to prove that Khurshid met with a homicidal
death. Surprisingly enough, this aspect of«he matter was completely over-
looked by the trial Judge.

23. Another circumstance that was pressed into service by the
prosecution to prove the murder - and found favour with.the trial Judge c
was thatthe seat covers of the Maruti car bearing No. DOB 5067 were
stained with human blood. In absence of any evidence that Khurshid
was kidnapped in that car ·it does not come in aid of the prosecution
case. It is pertinent to point out here that though prosecution led
evidence to prove that photographs of finger prints found on the above D
car were taken by an expert, no attempt was made by the prosecution -
as the record indicates - to prove that those finger prints were of the
appellants before us. Needless to say, evidence of the finger print expert

- in proof thereof would have gone a long way to sustain the prosecution
case.

24. For the foregoing discussions, and in absence of any reason to
E

disbelieve P .W. 4, it can be said that the prosecution has been able to
only prove the fact that Khurshid was kidnapped in a Maruti car. The
next question is whether the prosecution has succeeded in proving that
F
the appellants were the kidnappers. So far as appellants Mukesh and
Devinder are concerned we find that there is not an iota of evidence to
connect them with the above offence. Since, inspite thereof, the trial
Judge convicted them we may now refer to the relevant portion of the
impugned judgment wherein he has dealt with this aspect of the matter,
while rejecting the contention of their learned counsel that there was G
no evidence to convict them. It reads as under :

"In the statement recorded by Vigilance Cell which is Ex. PW 20/A
it is stated by the father of the deceased that in the Maruti Van
there were at least two more persons, one Jeetu and other ~appu. H
1198 SUPREME COURT REPORTS (1997] 1 S.C.R.

A The very first information sent to the police also shows that there
were four persons in the car. The identity of the three had come
to the knowledge of the father of the deceased. They were namely
Vijender, Jeetu and Pappu. From the investigation it is revealed
that Jeetu was made to get down of the car before the boy was
B kidnapped. Jeetu & Jitender has been examined in the court. He
has turned hostile. He has admitted that he knew accused
Vijender. He also stated tlfat he was apprehended by the police
of PS Gokal Puri and he was detained at the PS for about one
week and he was interrogated by the police about the murder of
C Khurshid. This testimony of Jitender shows that Jitender was first
person to be caught by the police and it was only through Jitender
that police could lay hand on the other accused persons. It has come
in the testimony of PW. 14 that it was Jeetu who had disclosed the
place where the other accused persons were hiding themselves and
he lead the police party to the hiding place of Vijender, Mukesh and
D Devinder. Similar is the statement of P.W. 19 Inspector Ram Singh,
who stated that after he took up the investigation he recorded the
statements of Raful Hasan Mirza, Miraz Ali and other witness~s,
and .he conducted raids at different places in Johri Pur and Dayal
Put.' He learned about an unidentified deadbody having been
E recovered in Ghaziabad and lying at Hindon Mortuary. He stated
t~iat it was Jeetu who had disclosed hiding place of accused Vijender,
Mukesh and Davinder, who were involved in the kidnapping."

(emphasis supplied)
F
25. We are constrained to say that the.above observations have been
made by the trial Judge casting away the basic principles regarding recep-
tion and appreciation of evidence, misreading the evidence. So far as the
report of P.W. 5 before the Vigilance Cell is concerned the trial Judge
G failed to notice that it did not contain the names of the above two
appellants, namely, Mukesh and Devinder & Bhinder; and on the contrary
therein the names of two other persons, namely, Jeetu and Pappu find
place as the miscreants. Indeed, in none of the three reports that P.W. 5
lodged with the police he mentioned the names of the above two appel-
H lants. We hasten to add that even if he had so named it could not have
_/

VUENDER v. STATE [M.K. MUKHERJEE, J.] 1199
been treated as legal evidence for reasons earlier mentioned. Then again, A
the trial Judge could not have relied upon the knowledge of P.W. 5 that
the appellants were the miscreants as he was not a witness to the kidnap-
ping and P.W. 4 did not state that he saw the miscreants and, for that
matter, that the appellants were the miscreants. The reliance of the trial
Judge on the result of investigation to base his findings is again patently B
wrong. If the observation of the trial Judge in this regard is taken to its
logical conclusion it wouk\ mean that a finding of guilt can be recorded
against an accused without a trial, relying solely upon the police report
submitted under Section 173 Cr.P.C, which is the outcome of an investiga-
tion. The result of investigation under Chapter XII of the Criminal Proce-
dure Code is a conclusion that an investigating Officer draws on the
c
basis of materials collected during investigation and such conclusion can
only form the basis of a competent Court to take cognizance thereupon
under Section 190(1)(b) Cr.P.C. and to proceed with the case for trial,
where the materials collected during investigation are to be translated
into legal evidence. The trial Court is then required to base its con- D
clusion solely on the evidence adduced during the trial; and it cannot
. rely on the investigation or the result thereof. Since this is an elementary
principle of criminal law, we need not dilate on this point any further.
Equally unsustainable is the trial Judge's reliance upon the statement
made by Jeetu (P.W. 2) before the police in view of the express bar of E
Section 162 Cr.P.C., which we have discussed earlier. Indeed, we find,
the trial Judge placed strong reliance on the purported statement made
by Jitender before the police that they (the appellants) were hiding and that
they were involved in kidnapping and murder of Klzurshid to convict them
(emphasis supplied). F
26. As regards the complicity of Vijender in the kidnapping the
two circumstances on which the prosecution case now rests after the
inadmissible part of the evidence is excluded are, that a key of a Maruti

- car which could be used for ignition of the engine of the seized car G
bearing No. DDB 5067 was recovered and he had a motive for the
crime. These two circumstances, even taken together, do not prove the
involvement of the appellant Vijender in absence of any evidence that
Khurshid was kidnapped in the above car. In convicting Vijender the
trial Judge however relied upon, apart from the evidence which we have
found to be_ inadmissible, on the presence of hole/tear mark in the shirt H
\

1200 SUPREME COURT REPORTS [1997] 1 S.C.R.

A of Khurshid and opinion of the expert that it could be caused by fire arms,
the recovery of a pistol from him, the purported statement of Bhim Singh
(P.W. 1), the owner of car No. DDB 5067 that Vijender (the appellant)
was the driver of the car and that he was absconding till June 30, 1992 when
he was arrested. So far the hole/tear mark is concerned, we have already
B found that it could not relate to the shirt of Khurshid; and as regards the
testimony of P.W. 1 the trial Judge has misread the same for he categori-
cally stated that appellant Vijender was not his driver. As regards his
abscondance, we find that in his examination under Section 313 Cr.P.C. the
only question the trial Judge asked him in this regard (question No. 13)
was that on June 27, 1992 P.W. 19 did not find him in his house. Even if
C we accept the evidence of P.W. 19 to be true still from the absence on a
day from the house the trial Judge was not justified in concluding that he
had absconded. In any case, abscondance is a weak link in the chain of
circumstantial evidence. Lastly, the question whether the motive stands
proved or not need not detain us for in absence of any other incriminating
D circumstance, it is of no moment.

27. That bring us to the conviction of Vijender under Section 25
of the Arms Act and Section 5 of TADA for illegal possession of the
country made pistol and a cartridge. The charge that was framed against
Vijender in this regard was to the effect that on June 30, 1992 he was
E found in unlawful possession of a country made pistol and a live
cartridge in his house in village J ohripur - and not that he used that
country made pistol for kidnapping and/or murder of Khurshid. In other
words, no charge was framed against him under Section 27 of the Arms
Act on an allegation that he used tel for the above offences. If such an
F allegation was made Vijender could have been tried for kidnapping and
murder for using the fire arm under Section 27 of the Arms Act in the
same trial as all the. offences were part of the same transaction. In
absence of such an accusation, he could not have been jointly tried for
illegal possession of a fire-arm and ammunition on June 30, 1992 with
the offences of kidnapping and murder that took place on June 26, 1992,
G in view of sub-section (1) of Section 218 Cr.P.C. and non-applicability
of sub-section (2) thereof. The question then arises is whether such
procedural irregularity caused any failure of justice. In the facts of the
instant case this question must be answered in the affirmative for the
statement made by P.W. 2 before the Investigating Officer has also been
H taken into consideration for this conviction also. To put it differently,
VIJENDER v. STATE [M.K. MUKHERJEE, J.] 1201
)
the evidence led by prosecution relating to kidnapping and murder has A
been utilised for convicting the appellant for unauthorised possession of
frre-arm. The conviction under Section 25 of the Arms Act must also fail
for the simple reason that no previous sanction for such prosecution as
required under Section 39 of the Arms Act was produced during trial. This
appeal was also totally overlooked by the trial Judge. Since the convictions
B
of Vijender for illegal possession of pistol and cartridge cannot be sus-
tained on the above grounds we need not go into the question whether on
facts it can be sustained.

28. On the conclusions as above we allow these appeals and set
aside the impugned judgment. The appellants, who are in jail, be c
released forthwith, unless wanted in any other case.

v.s.s. Appeals allowed.