Siju Kurian vs State of Karnataka

Evidence Act, 1827: s 27 – How much of information received from accused may be proved – Held: Section 27 permits the derivative use of custodial statement in the ordinary course of events – There is no automatic presumption that the custodial statements have been extracted through compulsion – In pursuance to a voluntary statement made by the accused, a fact must be discovered which was in the exclusive knowledge of the accused alone – In such circumstances, that part of the voluntary statement which leads to the discovery of a new fact which was only in the knowledge of the accused would become admissible u/s.27 – Such statement should have been voluntarily made and the facts stated therein should not have been in the knowhow of others.

Code of Criminal Procedure, 1973: s. 378 – Appeal against acquittal – Powers of appellate court – General principles – Stated. Dismissing the appeal, the Court

HELD: 1.1 It would be open for the High Court to re-apprise the evidence and conclusions drawn by the trial court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the trial court and/or reversing the finding of the trial court. The appellate court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having placed on the High Court in exercise of its power as an appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on exercise of the power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. [Para 13][411-F; 412-B-D]

1.2. The circumstantial evidence relied upon by the State to prove the circumstances which points to the guilt of the accused alone for having committed the offence as summarized by the High Court cannot be found fault with. [Para 15][413-H; 414-A]

1.3. The death of the victim being homicide stands proved by virtue of the Post Mortem report. The said report would indicate the death would have occurred 45-60 days prior to the post-mortem examination. PW-22, doctor opined that the victim had died due to brain hemorrhage that occurred because of commuted fracture on the forehead. The irresistible conclusion drawn by the High Court, death of the victim was homicidal cannot be found fault with. [Para 16][414-B, D-E]

1.4. The submission for the accused that it is not possible to state conclusively as to what had exactly happened, due to lack of eye-witnesses and therefore the possibility of the deceased having fallen and suffered an injury cannot be ruled out is an argument which cannot be accepted and finding recorded by the High Court deserves to be affirmed. [Para 16.1][414-E-F]

1.5. The fact that accused was last seen in the company of the deceased is testified by PW-10 and PW-14. Apart from two prime witnesses, PW-5, PW-7, PW-9, PW10, PW-11 and PW-15 also clearly and in unequivocal terms deposed that accused was last seen in the house of the deceased after his death. Even if one witness amongst these is to be believed as to what has been deposed is the truth, necessarily the onus is on the accused to provide a satisfactory explanation either in his statement recorded under Section 313 Cr.P.C. or from the admissions elicited from these witnesses, the circumstances in which he was in the company of deceased. When PW-10 and PW-14 have clearly stated that they had seen the accused in the company of the deceased, and there being no satisfactory explanation offered by the accused to the contrary, it has to be necessarily held that accused had failed to discharge the burden cast upon him. When PW-10 and PW-14 have in clear terms deposed to have last seen the accused with the deceased, necessarily accused must offer an explanation as to how and when he started living separately and there being no explanation offered necessarily in the chain of circumstances, the last seen theory propounded by the prosecution to drive home the guilt of the accused requires to be accepted. [Para 16.5 and 16.6][416-G-H; 417-A; 418-B-C]

1.6. The prosecution relied upon is the recovery of dead body at the instance of the accused, based on voluntary statement, which statement has been disowned by the accused and the same not having been proved by the prosecution according to the accused. The said statement of the accused has been marked as Ex.P-2 through PW-25. The said statement was recorded in the presence of PW-1, CW-3 and interpreter – PW-10. [Para 17][418D-E]

1.7. Section 27 permits the derivative use of custodial statement in the ordinary course of events. There is no automatic presumption that the custodial statements have been extracted through compulsion. A fact discovered is an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered at the instance of the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. The statement of an accused recorded while being in police custody can be split into its components and can be separated from the admissible portions. Such of those components or portions which were the immediate cause of the discovery would be the legal evidence and the rest can be rejected The submission by the accused that the confession statement is to be discarded in its entirety cannot be accepted for reasons more than one. Firstly, the conduct of the accused would also be a relevant fact as indicated in Section 8. [Para 18][419-A-D]

1.8. It is a trite law that in pursuance to a voluntary statement made by the accused, a fact must be discovered which was in the exclusive knowledge of the accused alone. In such circumstances, that part of the voluntary statement which leads to the discovery of a new fact which was only in the knowledge of the accused would become admissible under Section 27. Such statement should have been voluntarily made and the facts stated therein should not have been in the knowhow of others. When the deposition of PW-10 is perused it would leave no manner of doubt that statement of the accused having been recorded being voluntary and when the statement is being recorded in the language not known to the accused, the assistance of interpreter if taken by the police cannot be found fault with. The ultimate test of the said statement made by the accused having been noted down as told by the accused or not would be of paramount consideration. If the answer is in the affirmative then necessarily said statement will have to be held as passing the test of law as otherwise not. Merely because the translation was made from Malayalam to Tamil and written down in Kannada would not suggest that such statement be held to be either not being voluntary or the said statement having been recorded improperly. Merely because PW-10 did not know how to read and write Malayalam does not ipso facto make the contents of the statement to be disbelieved. On the other hand, he states that he is from Kerala and he knows how to speak Malayalam. What was required to be performed by him was to pose the question as stated by the witness to the accused and the answers given to such questions are to be stated to the police for being recorded as stated by the accused. In fact, there is not even a suggestion made to PW-10 about the contents of the statement being incorrect. [Para 19][420B-H; 421-A]

1.9. It is no doubt true that confession of PW-25 in its entirety is not admissible in view of Section 25 of the Evidence Act. However, in the teeth of Section 8 read with Section 27 of the Evidence Act, that part of the confession which led to the recovery of the dead body of the victim would become admissible, apart from other articles of the deceased recovered at the instance of the accused has been identified by several witnesses independently. This has also persuaded the High Court to accept the statement recorded under Ex.P-2 as being admissible which cannot be construed as highly improbable. Certain articles were recovered on the strength of confession statement made by the accused and in order to prove such recovery the witnesses have been examined by the prosecution and this has also persuaded the Court to accept the findings of the High Court. [Para 20][422G-H; 423-A-B]

1.10. The other surrounding circumstances which prove the accused being guilty of the offence beyond reasonable doubt are the recovery of the articles belonging to the deceased and sold by the accused which were recovered on the strength of the voluntary statement of accused. PW-5 clearly stated as to how the accused intended to sell the immoveable property belonging to the deceased. PW 5 has clearly deposed as to how the accused was apprehended by the police when he was attempting to sell the property of the deceased. That apart the statements made by the accused that deceased had gone to Kerala or the deceased had suffered a paralytic stroke or deceased had proceeded to America and expired there are all incorrect and conflicting statements as has been deposed by PW-5. The conclusion arrived at by the High Court is based on sound appreciation of evidence and proper application of law. On account of evidence available on record having been ignored and there being patent perversity in appreciation of evidence by the Sessions Judge it resulted in interference by the High Court. No material irregularity has crept in the judgment of the High Court calling for interference. On re-appreciation of entire evidence by the High Court in proper perspective it has resulted in arriving at a right conclusion viz. that accused alone committed the murder of the deceased and there being no other possible view which could be considered as missing in the link of chain of circumstances, the appeal is devoid of merits. The judgment passed by the High Court is upheld. [Paras 21-23][428-G-H; 429-A-B, C-E]

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Sheo Swarup v. King Emperor AIR 1934 PC 227; Naresh Chandra Das v. Emperor AIR 1942 (Cal) 593; Pohalya Motya Valvi v. State of Maharashtra (1980) 1 SCC 530; Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1; State of Karnataka v. Suvarnamma (2015) 1 SCC

323 : [2014] 10 SCR 778; Pattu Rajan v State of Tamil Nadu (2019) 4 SCC 771 : [2019] 5 SCR 535; State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl. SCR 501; A.N. Venkatesh & Ors. v. State of Karnataka (2005) 7 SCC 714; Gamini Bala Koteswara Rao v. State of Andhra Pradesh AIR 2010 SC 589 : [2009] 14 SCR 1 – referred to.

Chandrappa and Others v. State of Karnataka (2007)

4 SCC 415 : [2007] 2 SCR 630; Murugesan v. State through the Inspector of Police (2012) 10 SCC 383 : [2012] 13 SCR 1; Mohmed Inayatullah v. State of Maharashtra AIR 1976 SC 483 : [1976] 1 SCR 715 – relied on.