Section 27 recovery is admissible without a disclosure memorandum when witnesses prove the accused’s pointing out.

The appeal challenged the judgment of conviction dated November 28, 2024 and order of sentence dated November 29, 2024, passed by the Sessions Judge, Bankura, in Sessions Trial No. 1 of 2019 arising from Sessions Case No. 308 of 2018.

The appellants, Somnath Mondal and Raghunath Mondal, were convicted under Sections 302 and 341 read with Section 34 of the IPC and sentenced to life imprisonment for murder, with concurrent sentences for wrongful restraint.

The prosecution alleged that on July 2, 2018, the appellants, along with Gopal Mondal, intercepted and assaulted Rabindranath Mondal in an agricultural field using a spade, katari/scythe, bamboo stick and other agricultural implements.

The victim was taken to Onda Super Speciality Hospital and died at approximately 12:40 p.m.

The prosecution relied principally on the eyewitness testimony of PWs 2, 3 and 4, the oral dying declaration allegedly made to PW 9, medical evidence, and recovery of weapons pursuant to the appellants’ disclosures.

The defence questioned the place of occurrence, discrepancies in the General Diary and FIR, the effect of prior enmity, omissions in statements under Section 164 Cr.P.C., the authenticity of the dying declaration and weapon recoveries, and inconsistencies between the ocular and medical evidence.

1. Whether the prosecution substantially established the place of occurrence despite inconsistencies concerning the precise agricultural field and the reference to Telipukur.

2. Whether the discrepancy between the timing of General Diary Entry No. 61 and the time mentioned in the FIR undermined the validity of the FIR or suggested manipulation of police records.

3. Whether the alleged prior enmity and village-road dispute rendered the prosecution mala fide or created a reasonable possibility of false implication.

4. Whether the eyewitness testimony of PWs 2, 3 and 4 remained reliable despite omissions or variations in their statements under Section 164 Cr.P.C.

5. Whether the oral statement made by the deceased to PW 9, naming the assailants, was admissible and could be relied upon as a dying declaration under Section 32 of the Evidence Act, 1872.

6. Whether the recovery of the alleged weapons from Kumarpukur pond pursuant to the appellants’ conduct or disclosures was legally admissible under Section 27 of the Evidence Act despite the absence of a formal memorandum and the inconsistent evidence of PW 11.

7. Whether the medical evidence, which primarily described lacerations, abrasions and blunt-force injuries, contradicted the eyewitness account regarding the use of agricultural weapons.

8. Whether the prosecution proved the common intention required under Section 34 IPC and the appellants’ guilt for murder beyond reasonable doubt.

The Court applied Sections 302, 341 and 34 of the IPC, holding that a conjoint assault by several armed accused pursuant to a shared intention may make each participant liable for the resulting murder.

It applied Section 32 of the Evidence Act, under which a statement by a deceased person concerning the circumstances of his death is admissible as a dying declaration; such a declaration may be oral and need not follow a prescribed format or be recorded by a Magistrate where the evidence of the person who heard it is reliable, as recognised in Sudhakar v. State of Maharashtra, (2000) 6 SCC 671, and Arvind Singh v. State of Bihar, (2001) 6 SCC 407.

Section 27 of the Evidence Act was applied to the recovery evidence, with reliance on Boby v. State of Kerala, (2023) 15 SCC 760, and Perumal Raja @ Perumal v. State, 2024 INSC 13, for the proposition that the evidentiary value of recoveries depends on the facts and need not invariably be rejected merely because a formal memorandum is absent.

The Court held that Section 164 Cr.P.C. statements are not substantive evidence but may be used for corroboration or contradiction, and that minor omissions or variations do not necessarily discredit otherwise consistent eyewitness testimony.

It further applied the principle that medical evidence ordinarily does not override credible ocular evidence unless it makes the alleged occurrence physically impossible.

Personal enmity was treated as a double-edged circumstance, capable both of furnishing motive and of suggesting false implication, but insufficient by itself to displace reliable substantive evidence.

The Court also relied on Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, regarding the administrative nature of General Diary entries and held that clerical discrepancies in such entries do not invalidate an FIR absent demonstrated prejudice or deliberate manipulation.

The Court held that the exact ownership or description of the agricultural field did not create a material doubt because the witnesses consistently placed the assault in an open agricultural area, while the complaint’s reference to Telipukur was compatible with the victim having been intercepted near the pond and dragged into a nearby field.

The discrepancy regarding General Diary Entry No. 61 was found immaterial because the FIR was registered on the basis of the subsequent GD Entry No. 64 after the victim’s death; consequently, the earlier time discrepancy did not affect the FIR’s genesis.

Although prior hostility existed, the Court treated it as corroborative of motive rather than proof of fabrication, particularly in light of the independent eyewitness accounts.

PWs 2, 3 and 4 gave substantially consistent accounts identifying the appellants as active participants in the assault; their failure to intervene was considered natural because the assailants were armed, and omissions regarding precise weapons or timing were treated as minor variations under the principles governing Section 164 Cr.P.C. statements.

PW 9’s evidence that the injured victim immediately named the assailants was accepted as a reliable oral dying declaration and spontaneous evidence forming part of the same transaction.

The recovery evidence of PWs 5, 7 and 22 was preferred over PW 11’s inability to identify the weapons at trial, and the Court considered the appellants’ pointing out of the specific submerged location sufficiently probative in the context of the direct eyewitness evidence.

Finally, the Court found that the multiple lacerations, abrasions and intracranial haemorrhage were compatible with a forceful assault using heavy agricultural implements and did not render the eyewitness account impossible.

The appellants’ joint arrival, armed assault, participation and flight established common intention under Section 34 IPC.

The appeal and connected application were dismissed, and the conviction under Sections 302 and 341 read with Section 34 IPC, together with the sentences imposed by the Sessions Judge, Bankura, was affirmed.

If on bail, the appellants were directed to surrender forthwith before the trial court to serve the remaining sentences.