SUBRAMANYA versus STATE OF KARNATAKA

[2022] 14 S.C.R. 828

[2022] 14 S.C.R.

SUBRAMANYA

STATE OF KARNATAKA

(Criminal Appeal No. 242 of 2022)

BOCTOBER 13, 2022

[UDAY UMESH LALIT, CJI AND J.B. PARDIWALA, J.]

Penal Code, 1860 – s.302 – Evidence Act – ss. 8, 27 & 30 –Motive – Discovery Statement – Extra Judicial Confession – Appellant(A-1) and A-2 conspired to do away with the victim-deceased – BothCare alleged to have entered her house and somewhere near the cattleshed, the deceased was hit on her head and neck with hard objectlike club – Later, they alleged to have removed the gold chain, apair of ear studs and one gold ring from the body of the deceased– Later, A-3 is alleged to have helped the appellant and A-2 inDwrapping the dead body of the deceased in sari and thereafterdumping it on the land of one ‘D’ – All three Accused were triedtogether – Prosecution relied upon the facts of motive as appellanthad illicit relation with original A-2 and deceased was coming intheir way, the extra judicial confession alleged to have been madeby A-3 before PW- 7 (son-in-law of the deceased), discovery of theEdead body, recovery of the ornaments and discovery of the weaponof offence – Trial Court acquitted the appellant and the other twoco-accused of all the charges – Appeal filed before High Courtagainst acquittal order – High Court dismissed the appeal so far asA-2 is concerned and convicted A-1 u/s 302 of the IPC and A-3 u/sF201 r/w s.34 of the IPC – Appeal filed by A-1 before Supreme Court– Held: The High Court should not have disturbed the acquittalrecorded by the trial court – The Court doesn’t find any satisfactionrecorded by High Court for treating the findings of the trial courtpalpably wrong,manifestly errorneous or demonstrablyunsustainable – The circumstances relating to the making of anGextra judicial confession and the discovery of the weapon of offenceetc. have not been established , the chain of circumstantial evidencesnaps so badly that to consider any other circumstance, even likemotive, would not be necessary – It is concluded that the evidenceof discovery of the weapon, clothes and dead body of the deceasedHat the instance of the appellant convict herein can hardly be treated

as legal evidence, more particularly, considering the various legalinfirmities in the same – Therefore, the High Court committed errorin holding the appellant convict herein guilty of murder – Theappellant convict is set at liberty.

Extra Judicial Confession – s.30 – Evidentiary value of –Extra judicial confession is weak piece of evidence and the courtmust ensure that the same inspires confidence and is corroboratedby other prosecution evidence – After subjecting the evidence ofthe witness to rigorous test on the touchstone of credibility, theextra judicial confession can be accepted and can be the basis of aconviction if it passes the test of credibility – Where an extra judicialconfession is surrounded by suspicious circumstances, its credibilitybecomes doubtful and it loses its importance like in the present case.

Discovery Statement – s.27 – Mere discovery cannot beinterpreted as sufficient to infer authorship of concealment by theperson who discovered the weapon – He could have derivedknowledge of the existence of that weapon at the place throughsome other source also – Therefore, it cannot be presumed or inferredthat because person discovered the weapon, he was the personwho had concealed it, least it can be presumed that he used it.

Motive – s.8 – Evidentiary value – The presence of motive inthe facts and circumstances of the case creates strong suspicionagainst the accused appellant but suspicion, howsoever strong,cannot be substitute for proof of the guilt of the accused beyondreasonable doubt.

Circumstantial Evidence – The Court has to draw an inferencewith respect to whether the chain of circumstances is complete, andwhen the circumstances therein are collectively considered, the samemust lead only to the irresistible conclusion that the accused aloneis perpetrator of crime.

Allowing the appeal, the Court

Held: 1. The Court in Chandrappa and Others v. State ofKarnataka highlighted that there is one significant difference inexercising power while hearing an appeal against acquittal by theappellate court. The appellate court would not interfere where

Athe judgment impugned is based on evidence and the view takenwas reasonable and plausible. This is because the appellate courtwill determine the fact that there is presumption in favour of theaccused and the accused is entitled to get the benefit of doubtbut if it decides to interfere it should assign reasons for differingwith the decision of acquittal. [Para 43][855-H; 856-A-B]

2. The date of the alleged crime is 23.08.2010. The so calledextra judicial confession, said to have been made by SeetharamBhat (accused No. 3) is dated 09.12.2010. The Court fail tounderstand why all of sudden Seetharam (accused No. 3) after aperiod of almost four months, thought fit to make an extra judicialCconfession before the PW 7 H.T. Yogesh involving himself andthe appellant herein in the alleged crime. An extra judicialconfession, if voluntary and true and made in fit state of mind,can be relied upon by the Court. The confession will have to beproved like any other fact. The value of the evidence as toDconfession, like any other evidence, depends upon the veracityof the witness to whom it has been made. The value of theevidence as to the confession depends on the reliability of thewitness who gives the evidence. It is not open to any court tostart with presumption that extra judicial confession is weaktype of evidence. It would depend on the nature of theEcircumstances, the time when the confession was made and thecredibility of the witnesses who speak to such confession. Sucha confession can be relied upon and conviction can be foundedthereon if the evidence about the confession comes from themouth of witnesses who appear to be unbiased, not even remotely

Finimical to the accused, and in respect of whom nothing is broughtout which may tend to indicate that he may have motive forattributing an untruthful statement to the accused, the wordsspoken to by the witness are clear, unambiguous and unmistakablyconvey that the accused is the perpetrator of the crime andnothing is omitted by the witness which may militate against it.GAfter subjecting the evidence of the witness to rigorous test onthe touchstone of credibility, the extra judicial confession can beaccepted and can be the basis of conviction if it passes the testof credibility. Extra judicial confession is weak piece of evidence

and the court must ensure that the same inspires confidence andis corroborated by other prosecution evidence. [Paras 52, 53 &54][864-G-H; 865-A-E]

3. It is well settled that conviction can be based on avoluntarily confession but the rule of prudence requires thatwherever possible it should be corroborated by independentevidence. Extra judicial confession of accused need not in all casesbe corroborated. In Madan Gopal Kakkad v. Naval Dubey andAnother, the Court after referring to Piara Singh and Others v.State of Punjab, held that the law does not require that the evidenceof an extra judicial confession should in all cases be corroborated.The rule of prudence does not require that each and everycircumstance mentioned in the confession must be separatelyand independently corroborated. [Para 56][867-C-D]Madan Gopal Kakkad v. Naval Dubey and Another(1992) 3 SCC 204 : [1992] 2 SCR 921; Piara Singhand Others v. State of Punjab(1977) 4 SCC 452 : [1978]1 SCR 597 - referred to.

4. In the case on hand, the High Court committed seriouserror in making the confessional statement as the basis andthereafter going in search for corroboration. The High Courtconcluded that the confessional statement is corroborated inmaterial particulars without first considering and marshalling theevidence against the appellant convict herein excluding theconviction altogether from consideration. As held in the decision,cited, only if on such consideration on the evidence available,other than the confession conviction can safely be based thenonly the confession could be used to support that belief orconclusion. [Para 59][868-B-C]

5. The first and the basic infirmity in the evidence of all theaforesaid prosecution witnesses is that none of them havedeposed the exact statement said to have been made by theappellant herein which ultimately led to the discovery of factrelevant under Section 27 of the Evidence Act. [Para 77][879-E-F]

6. If, it is say of the investigating officer that the accusedappellant while in custody on his own free will and volition made

Aa statement that he would lead to the place where he had hiddenthe weapon of offence, the site of burial of the dead body, clothesetc., then the first thing that the investigating officer should havedone was to call for two independent witnesses at the police stationitself. Once the two independent witnesses would arrive at thepolice station thereafter in their presence the accused should beBasked to make an appropriate statement as he may desire in regardto pointing out the place where he is said to have hidden theweapon of offence etc. When the accused while in custody makessuch statement before the two independent witnesses(panch-witnesses) the exact statement or rather the exact wordsCuttered by the accused should be incorporated in the first part ofthe panchnama that the investigating officer may draw inaccordance with law. This first part of the panchnama for thepurpose of Section 27 of the Evidence Act is always drawn at thepolice station in the presence of the independent witnesses soas to lend credence that particular statement was made by theDaccused expressing his willingness on his own free will andvolition to point out the place where the weapon of offence or anyother article used in the commission of the offence had beenhidden. Once the first part of the panchnama is completedthereafter the police party along with the accused and the twoEindependent witnesses (panch-witnesses) would proceed to theparticular place as may be led by the accused. If from that particularplace anything like the weapon of offence or blood stained clothesor any other article is discovered then that part of the entireprocess would form the second part of the panchnama. This ishow the law expects the investigating officer to draw the discoveryFpanchnama as contemplated under Section 27 of the EvidenceAct. If the entire oral evidence of the investigating officer isread then it is clear that the same is deficient in all the aforesaidrelevant aspects of the matter. [Para 78][879-F-H; 880-A-D]

7. In Dudh Nath Pandey v. State of U.P., the Court observedGthat the evidence of discovery of pistol at the instance of theappellant cannot, by itself, prove that he who pointed out theweapon wielded it in the offence. The statement accompanyingthe discovery was found to be vague to identify the authorship ofconcealment and it was held that pointing out of the weapon may,Hat the best, prove the appellant’s knowledge as to where the

weapon was kept. Thus, in the absence of exact words, attributedto an accused person, as statement made by him being deposedby the investigating officer in his evidence, and also withoutproving the contents of the panchnama, the High Court was notjustified in placing reliance upon the circumstance of discoveryof weapon. [Paras 85 & 86][883-A-C]

Dudh Nath Pandey v. State of U.P.AIR (1981) SC 911- relied on.

8. In the context of judgments, the Court took note ofcaution. Although the conduct of an accused may be relevantfact under Section 8 of the Evidence Act, yet the same, by itself,cannot be ground to convict him or hold him guilty and that too,for serious offence like murder. Like any other piece of evidence,the conduct of an accused is also one of the circumstances whichthe court may take into consideration along with the other evidenceon record, direct or indirect. What is being tried to convey is thatthe conduct of the accused alone, though may be relevant underSection 8 of the Evidence Act, cannot form the basis of conviction.[Para 89][885-E-G]

9. Thus, even if it is believed that the accused appellanthad motive to commit the crime, the same may be an importantcircumstance in case based on circumstantial evidence butcannot take the place as conclusive proof that the personconcerned was the author of the crime. One could even say thatthe presence of motive in the facts and circumstances of the casecreates strong suspicion against the accused appellant butsuspicion, howsoever strong, cannot be substitute for proof ofthe guilt of the accused beyond reasonable doubt. The trial courtrightly disbelieved motive to commit the crime as the evidencein this regard is absolutely hearsay in nature.[Para 92][887-D-E]

10. The fact that Court has ruled out the circumstancesrelating to the making of an extra judicial confession and thediscovery of the weapon of offence etc. as not having beenestablished, the chain of circumstantial evidence snaps so badlythat to consider any other circumstance, even like motive, wouldnot be necessary. [Para 93][887-F]

A11. Thus, in view of the discussion, The Court has reachedto the conclusion that the evidence of discovery of the weapon,clothes and dead body of the deceased at the instance of theappellant convict herein can hardly be treated as legal evidence,more particularly, considering the various legal infirmities in thesame. Therefore, It is concluded that the High Court committedBerror in holding the appellant convict herein guilty of the offenceof murder. The appeal succeeds and allowed. The impugnedjudgment and order of conviction passed by the High Court isset aside. [Paras 94, 95 & 96][887-G-H; 888-A]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88- relied on.

Sheo Swarup v. King Emperor (1934) SCC OnLine PC42 : AIR 1934 PC 227; Chandrappaand Others v. Stateof Karnataka(2007) 4 SCC 415 : [2007] 2 SCR 630;Atley v. State of UttarPradeshAIR 1955 SC 807; SanwatSingh and Others v. State of RajasthanAIR 1961 SC715 : [1961] 3 SCR 120; Aher Raja Khima v. State ofSaurashtra, AIR 1956 SC 217 : [1955] 2 SCR 1285;M.G. Agarwal v. State of MaharashtraAIR 1963 SC200 : [1963] 2 SCR 405; Shivaji Sahabrao Bobadeand Another v. State of Maharashtra(1973) 2 SCC 793: [1974] 1 SCR 489; Ramesh Babulal Doshi v. State ofGujarat(1996) 9SCC225 : [1996] 2 Suppl. SCR 265;Ajit Savant Majagvai v. State of Karnataka(1997) 7SCC 110 : [1997] 3 Suppl. SCR 444; Nepal Singh v.State of Haryana(2009) 12 SCC 351 : [2009] 6SCR 982; State of Haryana v. Nepal SinghCRA-D No.99 DBA of 1993 order dated 21-7-1997 (P&H); Stateof Uttar Pradesh v. Sahai and Others(1982) 1 SCC352; Arunachalam v. P.S.R. Sadhanantham and Another,(1979) 2 SCC 297 : [1979] 3 SCR 482; State ofHaryana v. Lakhbir Singh and Another(1991) Supp(1) SCC 35;State of Rajasthan v. Sukhpal Singh andOthers(1983) 1 SCC 393 : [1983] 2 SCR 53;State ofU.P. v. Shanker, (1980) Supp SCC 489;State of U.P. v.Hakim Singh and Others (1980) 3 SCC 55;Arunachalamv. P.S.R. Sadhanantham and Another(1979) 2 SCC 297

: [1979] 3 SCR 482; State of Uttar Pradesh v. RanjhaRam and Others (1986) 4 SCC 99; State of Maharashtrav. Champalal Punjaji Shah(1981) 3 SCC 610 : [1982]1 SCR 299; Gurbachan Singh v. Satpal Singh andOthers (1990) 1 SCC 445 : [1989] 1 Suppl. SCR 292;State of Andhra Pradesh v. Bogam Chandraiah andAnother (1986) 3 SCC 637; State of U.P. v. Pheru Singhand Others,1989 Supp(1) SCC 288; State of UttarPradesh v. Pussu alias Ram Kishore (1983) 3 SCC 502: [1983] 3 SCR 294; Sahadevan and Another v. Stateof Tamil Nadu(2012) 6 SCC 403 : [2012] 4 SCR 366;Kashmira Singh v. The State of Madhya Pradesh AIR1952 SC 159 : [1952] SCR 526; Haricharan Kurmi &Jogia Hajam v. State of Bihar, AIR 1964 SC 1184 :[1964] 6 SCR 623; RamChandra and Another v. Stateof Uttar PradeshAIR 1957 SC381; Bhuboni Sahu v.The KingAIR 1949 PC 257; Murli and Another v. Stateof Rajasthan (2009) 9 SCC 417 : [2009] 13 SCR 378 ;Mohmed Inayatullah v. The State of Maharashtra AIR(1976) SC 483 : [1976] 1 SCR 715; Earabhadrappa v.State of KarnatakaAIR (1983) SC 446 : [1983] 2 SCR552 ; State of Uttar Pradesh v. Deoman Upadhyaya AIR(1960) SC 1125; Pulukuri Kottaya and Others v.EmperorAIR 1947 PC 67; Dudh Nath Pandey v. Stateof U.P.AIR (1981) SC 911 : [1981] 2 SCR 771;Bodhraj alias Bodha and Others v. State of Jammu andKashmir (2002) 8 SCC 45 : [2002] 2 Suppl. SCR 67;A. N. Venkatesh and Another v. State of Karnataka(2005) 7 SCC 714; Sampath Kumar v. Inspector ofPolice, Krishnagiri (2012) 4 SCC 124 : [2012]2 SCR 289– referred to.

836SUPREME COURT REPORTS

[2022] 14 S.C.R.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.242 of 2022.

From the Judgment and Orders dated 02.07.2019 of the HighCourt of Karnataka at Bengaluru in Criminal Appeal No.473 of 2013.

Krishna Pal Singh, Seemab Qayyum, Mrs. Anvita Aparjita,Madhavendra Singh, Mohan Singh Bais, Advs. for the Appellant.

V. N. Raghupathy, Adv. for the Respondent.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. This statutory criminal appeal is at the instance of convictaccused charged with the offence of murder of one Kamalamma(deceased) and is directed against the judgment and order of convictionpassed by the High Court of Karnataka dated 02.07.2019 in the CriminalAppeal No. 473 of 2013 by which the High Court allowed the acquittalappeal filed by the State of Karnataka against the judgment and order ofacquittal passed by the Principal Sessions Judge, Chikmagalur dated20.12.2012 in the Sessions Case No. 59 of 2011 and held the appellantherein guilty of the offence of murder punishable under Section 302 ofthe Indian Penal Code, 1860 (for short, ‘the IPC’). The High Courtsentenced the appellant herein to undergo life imprisonment with fine ofRs. 25,000/- and in the event of default of payment of fine to undergofurther simple imprisonment for period of six months.

CASE OF PROSECUTION

2. The appellant herein along with two other co-accused, namely,Gowri alias Gowramma wife of late Nagaraj and Seetharam Bhat sonof late Nagabhatt were put to trial in the Sessions Case No. 59 of 2011for the offences punishable under Sections 120-B, 302, 379 and 201read with Section 34 of the IPC. All the three accused were put to trialin the court of Principal Sessions Judge, Chikmagalur. The original

Aaccused No. 2, namely, Gowri (acquitted) was born in the wedlock ofone Manjappanaika and his first wife. The deceased, namely,Kamalamma was the second wife of the Manjappanaika. Gowri (originalaccused No. 2) happens to be the step daughter of the deceasedKamalamma. After the demise of Manjappanaika his immovableproperties were divided between the deceased Kamalamma and GowriB(A-2). In the wedlock of Manjappanaika and the deceased two daughterswere born, namely, Sugandha (PW 1) and Sujatha. The deceasedKamalamma used to reside all alone at the village Horabylu adjacent tothe house of the original accused No. 2 Gowri. Gowri is widow and atthe relevant point of time was staying along with her two children. It isCthe case of the prosecution that Gowri (A-2) had an illicit relationshipwith the appellant herein. The deceased Kamalamma was highly opposedto such illicit relationship and used to reprimand both, the appellant andGowri.

3. According to the case of the prosecution, the appellant hereinDand Gowri conspired on 23.08.2010 to do away with the deceasedKamalamma. Both are alleged to have entered her house and somewherenear the cattle shed, the deceased was hit on her head and neck with ahard object like club. Later, the appellant and Gowri are alleged tohave removed the gold chain, pair of ear studs and one gold ring fromthe body of the deceased Kamalamma. They took away her mobileEalso.

4. It is the case of the prosecution that after the deceasedKamalamma was done to death, the original accused No. 3, namely,Seetharam Bhat came into picture. Seetharam Bhat (A-3) is alleged tohave helped the appellant and Gowri in wrapping the dead body of theFdeceased in sari and thereafter dumping it on the land of one Dinamani.The land of Dinamani is situated besides water channel. It is allegedthat with the aid of crowbar, pit was dug and the dead body of thedeceased was buried with the intention to destroy the evidence.5. According to the case of the prosecution, the appellant sold theGgold ornaments to jeweller, namely, Somashekhara Shetty (PW 9).PW 9 Somashekhara Shetty at the relevant point of time was running ajewellery shop at Rippanpet. So far as the mobile is concerned, the sameis said to have been sold by the appellant herein to one Ashok aliasMeeranath (PW 16). Ashok alias Meeranath (PW 16) is resident of aHplace called Surathkal.

6. On 24.08.2010, Alok (son of Gowri) informed the son-in-law ofthe deceased, namely, H.T. Yogesh (PW 7) that his mother-in-law(deceased) had been missing since 23.08.2010. In such circumstances,H.T. Yogesh went (PW 7) to the Koppa, Police Station (P.S.) and filed amissing complaint.

7. On 09.12.2010 at 21:30 hours, Seetharam Bhat (A-3) is said tohave met H.T. Yogesh (PW7) and made an extra judicial confessionbefore him stating that about four months back the appellant herein andGowri had lured him with bottle of brandy and saying so had asked himto accompany them as they had some work. Thereafter, the appellantand Gowri are said to have revealed or rather made an extra judicialconfession before Seetharam Bhat (A-3) that they had committed murderof the deceased Kamalamma and had kept the body in cattle shed.

8. The appellant and Gowri asked Seetharam Bhat (A-3) to helpthem in disposing of the dead body. When Seetharam (A-3) declined tohelp them, he was threatened by the appellant and Gowri. Accordingly,Seetharam Bhat (A-3) accompanied them and helped in removing thegold ornaments from the body of the deceased and burying the body atthe field of one Dinamani.

9. On 10.12.2010, H.T. Yogesh (PW 7) went to the Police Stationand lodged First Information Report for the offence of murder.

10. Upon registration of the First Information Report, theinvestigation had commenced. All the three accused persons came to bearrested. While the appellant herein and Gowri (A-2) were in custody ofthe Police they are said to have made statements that they would showthe place where the dead body had been buried and also the place wherethe weapon of offence (club) had been concealed. The appellant is alsosaid to have made statement that he would also show the place wherehe had sold of the ornaments of the deceased.

11. Accordingly, discovery panchnama Ex. P.3 was drawn underSection 27 of the Indian Evidence Act, 1872. The photographs of theexhumation of the body were also taken and admitted as Ex. P.4. TheInquest panchnama of the body of the deceased, Ex. P.14 was alsodrawn.

12. The ornaments said to have been sold by the appellant hereinto jeweller, Somashekhara Shetty (PW 9), were collected from hisshop by drawing panchnama Ex. P.1.

A13. The clothes of the appellant herein are said to have beendiscovered at his instance from the place nearby the house of the deceasedby drawing panchnama Ex. P.6. The weapon of offence (club) wasalso discovered at the instance of the appellant herein by drawing apanchnama Ex. P.8. It appears that one more weapon in the form of aspade was discovered at the instance of the original accused No. 3BSeetharam by drawing panchnama Ex. P.8.

14. The dead body of the deceased was sent for post-mortem atthe General Hospital, Koppa.

15. The post-mortem report Ex. P.17 reveals that the cause ofCdeath was due to head injuries in the form of fractures.

16. At the end of the investigation, the Investigating Officer filedchargesheet against the appellant and the two co-accused for the offencesenumerated above. Upon filing of the chargesheet, the case wascommitted by the Magistrate under Section 209 of the Cr.P.C. to theDSessions Court which came to be registered as the Sessions Case No.59 of 2011 in the court of Principal Sessions Judge, Chikmagalur.

17. The trial court framed charge against all the accused personsvide order dated 20.12.2012. Appellant herein andthe other two co-accused pleaded not guilty to the charge.

E18. The prosecution adduced the following oral evidence in supportof its case:

(1)PW 1 Sugandha, CW 7, daughter of the deceased.

(2)PW 2 Vishwa K. K., CW 9, panch-witness to the discoveryof the ornaments from the shop of the jewellery and alsoFthe discovery of the dead body.

(3)PW 3 Nandi Purela, CW 11, panch-witness.

(4)PW 4 H.S. Sathyamurthi, CW 13, panch-witness.

(5)PW 5 T. Somaiah, CW18, panch-witness.

(6)PW 6 Sridhar Shetty, CW 20, panch-witness.

(7)PW 7 H. T. Yogesh, CW 1, son-in-law of the deceasedbefore whom original accused No. 3 is said to have beenmade extra judicial confession.

H(8)PW 8 H. M. Ravikanth, CW 4, panch-witness.

[J. B. PARDIWALA, J.]

(9)PW 9 I. Somashekhara Shetty, CW 14, jeweler to whomAthe ornaments were sold.

(10)PW 10 Ravi Shetty, CW 22, panch-witness to the discoveryof the mobile.

(11)PW 11 Dr. J. Neelakantappa Gowda, CW 29, panch-Bwitness.

(12)PW 12 C.V. Harish, CW 26 panch-witness.

(13)PW 13 Thousif Ahmed, CW 32, panch-witness to the placeof incident.

(14)PW 14 J.K. Shivakumar, CW 37, Revenue Officer.

(15)PW15 Dayanand Gowda, CW 28, Assistant Commissioner.

(16)PW 16 Meeranath Gowda, CW 24, Cook at Sharath Barand Restaurant. The appellant used to assist the PW 16 atthe restaurant.

(17)PW 17 Mahesh E.S., CW 41, Police Officer.

(18)PW 18 Manjeshwara Kalappa, CW 40, Police Officer.

(19)PW 19 T. Sanjeeva Naik, CW 42, Police Officer.

19. The prosecution also adduced documentary evidence in theform of FIR, Inquest panchnama, discovery panchnamas etc.

20. The trial court framed the following points of determination inits judgment:

“1) Whether the prosecution proves that Kamalamma, w/o lateManjappanaika died homicidal death?

2) Whether the prosecution proves that on or about 23.8.2010,in Hirekudige village in Koppa Taluk, accused Nos. 1 and 2,in furtherance of their common intention or otherwise, agreed

and conspired with each other to murder Kamalamma, w/olate Manjappanaika, and thereby committed an offence ofGcriminal conspiracy, punishable under Section 120-B readwith Section 34 of I.P.C?

3) Whether the prosecution proves that on the aforesaid dateat about 9.00 PM, in the house of Kamalamma at Hirekudigevillage in Koppa Taluk, accused Nos.1 and 2, in furtherance

of common intention, did commit murder by intentionally andknowingly causing the death of Kamalamma, by assaultingon her head and neck by means of club, and thereby committedan offence punishable under Section 302 read with Section34 of I.P.C?

4) Whether the prosecution proves that on the aforesaid date,time and place, accused No.1, committed theft of gold chain,a pair of earstuds, one gold ring and mobile handsetbelonging to deceased Kamalamma and thereby committedan offence punishable under Section 379 of I.P.C?

C5) Whether the prosecution proves that on or about theaforesaid date, in furtherance of common intention, accusedNos.1 and 3, knowing that the offence of murder, punishablewith death or imprisonment for life, has been committed byaccused Nos. 1 and 2, caused certain evidence to disappear,to wit, buried the dead body of Kamalamma, by the side ofDthe Government channel at Horabylu, with an intention toscreen the offenders (accused Nos.1 and 2) from legalpunishment, and thereby committed an offence punishableunder Section 201 read with Section 34 of I.P.C?

6) What order?”E

21. The aforesaid points of determination came to be answeredby the trial court as under:

“POINT No. 1: - In the affirmative;

POINT No.2: - In the negative;

POINT No.3: - In the negative;

POINT No.4: - In the negative;

POINT No.5: - In the negative;

POINT No.6: - As per final order, for the following:”

22. The prosecution in the course of the trial relied upon thefollowing circumstances to prove its case against the accused persons:

(1) Motive to commit the crime. According to the prosecution, theappellant herein had illicit relationship with original accused No.2, namely, Gowri and the deceased was coming in their way. In

such circumstances, the appellant herein and the original accusedNo. 2 had the motive to commit the crime.

(2) Extra judicial confession alleged to have been made by theaccused No. 3 Seetharam Bhat before the PW 7 Yogesh (son-in-law of the deceased) after four months of the date of incident.

(3) Discovery of the dead body at the instance of the appellantherein by drawing panchnama under Section 27 of the EvidenceAct.

(4) Recovery of the ornaments from the shop of the Jeweller(PW 9) at the instance of the appellant herein by drawing apanchnama.

(5) The discovery of the weapon of offence, mobile of thedeceased and the clothes of the appellant accused at the instanceof the appellant herein under Section 27 of the Evidence Act.

23. We shall now look into the reasonings assigned by the trialcourt while not accepting any of the aforesaid circumstances, asincriminating circumstances, establishing the guilt of the accused persons.We quote as under:

“34. The first circumstance which the prosecution is intendingto rely upon is motive that A-1 was having illicit relation withA-2 and in that context, deceased Kamalamma used to abusethem and she was also making propaganda about the sameand the accused persons were enraged by that and thinkingthat she is an obstacle for their relation, they conspired to getrid of her and murdered the deceased. In circumstantialevidence, motive plays important role and it must be strongand reliable. If prosecution fails to prove the motive, it will bebeneficial to the accused. Even though P.Ws.1, 2 and 7 havedeposed that the mother of P.W.1, the deceased used to tellher that A-1 and A-2 are having illicit relation and she usedto scold them for having such illicit relation, but if we see thecross-examination of P.W. 1, it discloses that A-1 is distantbrother to A-2 and that there was panchayath before thedivision of the properties between the deceased and A-2. Evenin the case of the prosecution, the prosecution has not provedby examining any witness to substantiate the said fact of illicitrelation between A-1 and A-2, who have either seen them

together or that they have advised them to give up the same.Even though P.W.1, the daughter and P.W.7, the son-in-lawof the deceased have deposed about the illicit relation betweenA-1 and A-2, but they have deposed that the deceased usedto tell about the illicit relations and they are not the directwitnesses to substantiate the said fact. Their evidence is onlyhearsay in nature. As such, the evidence regarding the illicitrelation is not acceptable and reliable in law.

35. The second circumstance which the prosecution isintending to rely upon is the confession made by A-3 beforeP.W.7, the son-in-law of the deceased. It is the specific caseof the prosecution that on 9.12.2010 he had been to Gadikalluand at about 9.30 PM, near the Circle, A-3 met him and therehe told that about 3 or 3 1/2 months back he had been calledby A-1 and told that he had murdered Kamalamma and inorder to bury the dead body, asked his help by providing twobottles of brandy and he also told that if he is not going toobey, he will also kill him as done to his brother-in-lawSrinivase Gowda. He also told that he helped him in carryingthe dead body to the mound near the land of Dinamani andburied it. During the course of crossexamination, he hasadmitted that he is not going to ask any personal matters ofA-3 nor he will tell his personal matters to him. He has furtheradmitted that he is not having any confidence in him and viceversa, A-3 is also not having any confidence in him. A-3 isalso not friend or relative of P.W.7. In order to establishthat A-3 made confession before P.W.7, A-3 must havereposed confidence in him and he must have some faith withthe person to whom he is making such confession. WhenP.W.7 is neither relative nor friend, why A-3 is going tomake such confession before P.W.7 who is close relativeof the deceased, is mystery. Under the facts andcircumstances of the present case on hand, it is very difficultto believe that A-3 would make such confession before P.W.7about the crime committed by them. While considering theevidence of extra judicial confession, the Court must alsoverify whether the accused could repose confidence in sucha person so as to disclose secret aspect of his life. For thisproposition of law, I want to rely upon the decision reported

in AIR 1975 SUPREME COURT 258, [THE STATE OFPUNJAB v/s BHAJAN SINGH & OTHERS] wherein it is heldas under: -

“(C) Evidence Act (1872), S.24 - Extra judicial confession –Value of the evidence of extra judicial confession in the verynature of things is weak piece of evidence. (The evidenceadduced in this respect in the instant case, held, lackedplausibility and did not inspire confidence.) Para 15”

36. In another decision reported in [2011] ACR 704 in thecase of SK. YUSUF v/s STATE OF WEST BENGAL, theHon’ble Supreme Court of India has again held as under: -

“C. Evidence Act, 1872 - S.25 - Extra judicial confession –Extra judicial confession must be established to be true andmade voluntarily and in fit state of mind - Extra judicialconfession can be accepted and can be the basis of aconviction if it passes the test of credibility. Para 22”

37. Leave apart this, as per the evidence of P.W.7, A-3 methim 3 1/2 months or 4 months after the incident. Usually, if atall, confession is going to be made by the offenders inrespect of the commission of the offence, it will be madeimmediately after the incident which they have committed andnot after long gap and the confession is going to be madeimmediately before the person who come across with him andwith whom he is having full faith. In this behalf also theevidence which has been produced before the court is notcogent and reliable and the prosecution has utterly failed toprove the said circumstance which it is intending to rely upon.

38. The third circumstance which the prosecution is intendingto rely upon is that of accused showing the place ofcommission of offence and the place of burial of the deadbody. As per the evidence of P.W.19, the Investigating Officer,on 10.12.2010, C.Ws.36 and 37 produced accused No.1 atabout 9.00 PM; C.Ws.34 and 35 produced accused No.2 atthe same time; and P.Ws.17 and C.W.38 produced accusedNo.3 at the same time. He has further deposed that thereafterhe recorded their voluntary statements and on the basis ofthat, he traced the place of burial. If we see the voluntary

statement of A-1 as per Ex.P.28, he has stated that he willshow the place of burial. He has also volunteered that he hascommitted the murder of deceased Kamalamma and he willproduce the club, mobile, spade and another club which hasbeen used for the purpose of transportation of the dead bodyand he will also produce the ornaments which he has takenfrom the body and the same has been marked as Ex.P.28.Accused nos.2 and 3 have volunteered to show the place wherethey have buried the dead body. If we see the evidence of thiswitness with the evidence of the other witnesses, it is notaccused nos.2 and 3 who took the IO and the panch witnessesand showed the place of burial. P.Ws.2 and 8 have deposedthat about one year back, he saw the dead body of deceasednear halla situated at Dinamani land at mound and there,the Dy.S.P. and the A.C., were also present. A-1 and A-3showed the place of burial of the dead body. But, nowherethese witnesses have spoken that A-1 and A-3 led them andshowed the place of burial. If already the said burial spotwas known to the Dy.S.P, and the A.C., then under suchcircumstances, it cannot be held that it is at the instance ofthe accused that the said place has been discovered. If wesee the evidence of P.W.8, he has deposed that the said bodywas fully decomposed and one blouse and one petticoat werefound on the dead body and if we see the evidence of P. W.15,he has deposed that accused nos.1 and 3 led them to moundin survey No.121 and showed the place where they had buriedthe dead body of deceased Kamalamma and he got it exhumedthrough A-1, A-3 and P.W.3. The said body was highlydecomposed and an old type blouse and petticoat were thereover the said body. But if we see the cross-examination of thiswitness, he received the requisition on 10.12.2010 andthereafter on 11.12.2010 he fixed the timing to exhume thebody and he went there at about 10.30 AM and when he wasabout to enter the village, police were also there along withA-1 and A-3 and other witnesses, Doctor and Videographerwere also present. Then, under such circumstances, theevidence of P.W.15 that A-1 and A-3 led them and showed theplace where they had buried the dead body is also notbelievable and reliable. It is not for the first time that he came

to know about the dead body in that place. He hascategorically deposed that the body was highly decomposed.But if we see the evidence of P.W.11, the Doctor, he found asemi decomposed, legs little semi flexed in position, head wascovered with black and gray hairs measuring 12 inches inlength, 2/3rd of the body was decomposed and breast wasalso semi-decomposed. If the alleged murder has taken placeon 23.8.2010, with the above condition of the body, theexhumation of the body must have been done earlier to11.12.2010 and not on 11.12.2010, 3 1/2 months later ascontended by the prosecution, or else, the death must havetaken place at later date which is closer to the date ofexhumation and examination. According to P.W.19, accusednos.2 and 3 volunteered to show the place where they haveburied the dead body, but as per the case of the prosecution,accused nos.1 and 3 have showed the place. That also createsa doubt. In that behalf, there is no consistency in the evidenceto show that it is at the instance of A-1 and A-3 by theirvoluntary statement, the fact about the place of burial hasbeen discovered. Under such circumstances, this circumstancewhich the prosecution is intending to rely upon, cannot besaid to be proved beyond reasonable doubt.39. The next circumstance which the prosecution is intendingto rely upon is that of recovery of the ornaments at theinstance of accused No. 1. In this behalf, the prosecution isintending to rely upon the evidence of P.W.2 and P.W.9. P.W.2in his evidence has deposed that after 2 or 3 days again policecalled him and along with C.W.13, A-1 was also present andthat himself, C.W.13 and thePI were led by A-1 to Rippanpet.There, A-1 took them to Someshwara Jewellers shop and thereA-1 asked to give the gold ornaments given by him and C.W.14returned the said gold ornaments and the same were seizedby drawing Mahazar as per Ex.P.1. Admittedly, this witnessis the nephew of the deceased and even though by the side ofthe Police Station and the jewellery shop there are so manyshops and other persons were available, but why thisparticular person has been chosen as witness is also notforthcoming.

ABC

40. P.W.9 is the owner of the jewellery shop. He has deposedthat A-1 came and sold the gold articles prior to 3 1/2 monthsback by coming to his shop and he returned the said articlesand they were seized by drawing Mahazar as per Ex.P.1.During the course of cross-examination, he has deposed thatthey will not maintain any receipt book for having purchasedthe gold and he has also further deposed that when hepurchased the gold articles, they were just like new and therewill be wear and tear found on the gold articles even thoughthey have been renewed with new coatings. When the saidarticles appear to be new one and even after 3 1/2 months oftheir purchase by P.W.9 who is jeweller, they were in thesame condition in which they have been recovered at theinstance of A-1 is hard to believe and in this behalf also, thecase of the prosecution is not worthy of acceptance.

41. The next circumstance which the prosecution is intendingto rely upon is the recovery of the club, umbrella, mobile andspade and the seizure of the clothes of A-1 and A-3. Eventhough the recovery evidence has been given by P.Ws.8, 10,16and P.Ws.4 and 5, but if we closely scrutinise their evidence,the club which has been recovered is also not having stainsand it is new one. Even it is not believable that the saidclubs which have been thrown by the accused persons in thatparticular area will be available in the condition in whichthey have been thrown even after 3 1/2 months. By barelooking by this court, M.Os. 9 and 14 are just like new clubs.If they are exposed to rain, water and sun, definitely theywould have changed their colour and shape. So also, therecovery of the clothes of the accused persons. In this behalfalso, the recovery evidence of all these articles has not beenproved by the prosecution beyond all reasonable doubt.

42. Even though the learned Public Prosecutor vehementlyargued and contended that at the instance of the accused,the body has been exhumed and the recovery has been doneand A-3 has also confessed before P.W.7 and the prosecutionhas also proved the motive that A-1 and A-2 were having illicitrelation, the same is not acceptable under the above saidcircumstances.

43. The material witnesses in this case have not been examinedby the prosecution for the reasons best known to it. It is thespecific case of the prosecution that one Alok, son of accusedNo.2 informed P.W.7 about the missing of the deceased. Butthe said Alok has not been examined. The body of deceasedis found buried in Survey No.121 of Dinamani andNarayanaswamy, and when the said body was found there inthe said land belonging to them, then, under suchcircumstances, they are considered to be material witnesses.Non-examination of these material witnesses will also not fillup the gap which the prosecution has to fill up to prove itscase beyond all reasonable doubt. From what date that thedeceased was missing and how nobody noticed about themissing of the deceased is also not brought on record by theprosecution, for the reasons best known to it. This particulardoubt also goes to the benefit of the accused. Even thoughP.W. 1 was knowing that the deceased, her mother, was havinga mobile and after coming to know about the missing of hermother on 24.8.2010, she will not make any efforts to make acall to the mobile of her mother which is an unnatural conducton her part. No daughter, after coming to know that the motheris missing, will keep quiet, that too when she knows that hermother is having mobile. Definitely she could have made acall. For what reasons P.W. 1 did not make any call to hermother’s mobile is also doubtful circumstance.

44. It is settled principle of law that when two views arepossible from the prosecution evidence, the one which isfavourable to the accused shall have to be taken and thebenefit of doubt shall have to be given to the accused. Takinginto consideration the above said facts and circumstances ofthe case, I answer point Nos.2 to 5 in the negative.”

24. Thus, the trial court, upon appreciation of the oral as well asdocumentary evidence, came to the conclusion that the prosecution hadfailed to prove its case against the accused persons beyond reasonabledoubt and accordingly, vide the judgment and order dated 20.12.2012,acquitted the appellant herein and the other two co-accused of all thecharges.

25. The State of Karnataka being dissatisfied with the judgmentand order of acquittal passed by the trial court challenged the same by

Afiling the Criminal Appeal No. 473 of 2013 in the High Court of Karnataka.The High Court upon reappreciation of the entire oral as well as thedocumentary evidence on record dismissed the acquittal appeal so faras the original accused No. 2 Gowri alias Gowramma is concernedthereby affirming her acquittal. However, the appellant herein came tobe convicted for the offence of murder punishable under Section 302 ofBthe IPC and was sentenced to undergo life imprisonment with fine ofRs. 25,000/-. Appellant was also convicted for the offence punishableunder Section 201 read with Section 34 of the IPC and was sentencedto undergo simple imprisonment for five years with fine of Rs. 5,000/-.The original accused No. 3 Seetharam Bhat came to be convicted forCthe offence punishable under Section 201 read with Section 34 of theIPC and was sentenced to undergo simple imprisonment for period ofthree years with fine of Rs. 5,000/- and in case of default to undergofurther simple imprisonment for period of two months.

26. We are informed that the original accused No. 3 SeetharamDBhat accepted the conviction and has undergone the sentence. Theoriginal accused No. 3 thought fit not to file any appeal before this Court.27. It is the appellant herein (original accused No. 1), who is herebefore this Court with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANTECONVICT

28. Mr. Krishna Pal Singh, the learned counsel appearing for theappellant convict vehemently submitted that the High Court committeda serious error in passing the impugned judgment and order of convictionby reversing the well-reasoned judgment and order of acquittal passedFby the trial court. According to the learned counsel, while sitting injudgment over an acquittal, the appellate court is first required to seekan answer to the question whether the findings of the trial court arepalpably wrong, manifestly erroneous or demonstrably unsustainable. Ifthe appellate court answers the above question in the negative, the orderof acquittal is not to be disturbed. Conversely, if the appellate court holds,Gfor reasons to be recorded, that the order of acquittal cannot at all besustained, in view of any of the above infirmities, it can then – and thenonly –reappraise the evidence to arrive at its own conclusions. Theprincipal argument of the learned counsel appearing for the appellantconvict is that in the case on hand, there is no finding recorded by the

High Court that the judgment of the trial court is palpably wrong,manifestly erroneous or demonstrably unsustainable.

29. The learned counsel would further submit that the High Courtcommitted serious error in making the extra judicial confession allegedto have been made by the original accused No. 3 Seetharam Bhat beforethe PW 7 almost after four months from the date of the incident is thebasis and thereafter, trying to search for corroboration. It was arguedthat even otherwise, an extra judicial confession is weak piece ofevidence. He would argue that in the case on hand, the High Courtshould not have relied upon the extra judicial confession alleged to havebeen made by the accused No. 3 Seetharam before the PW 7 Yogeshfor the purpose of convicting the appellant herein.

30. The learned counsel also submitted that the High Courtcommitted serious error in relying upon the various discoveries like theweapon of offence, jewellery, mobile, clothes etc. under Section 27 ofthe Evidence Act.

31. In such circumstances referred to above, the learned counselprays that there being merit in his appeal, the same may be allowed andthe impugned judgment and order passed by the High Court may be setaside.

SUBMISSIONS ON BEHALF OF THE STATE

32. Mr. V.N. Raghupathy, the learned counsel appearing for theState of Karnataka, on the other hand, has vehemently opposed thisappeal submitting that no error not to speak of any error of law could besaid to have been committed by the High Court in passing the impugnedorder. He would submit that the circumstances are fully establishedpointing only towards the guilt of the appellant convict. In suchcircumstances referred to above, the learned counsel appearing for theState prayed that there being no merit in the present appeal, the samemay be dismissed.

ANALYSIS

33. Having heard the learned counsel appearing for the partiesand having gone through the material on record, the only question thatfalls for our consideration is whether the High Court committed anyerror in passing the impugned judgment and order of conviction.

34. The High Court should have been mindful of the fact that itwas dealing with an acquittal appeal filed by the State under Section 378

Aof the Cr.PC. It would be useful to review the approach to be adoptedwhile deciding an appeal against the acquittal by the trial court.

35. In one of the earliest cases on the powers of the High Court,in dealing with an appeal against an order of acquittal the JudicialCommittee of the Privy Council, in Sheo Swarup v. King- Emperor,B1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2),considered the provisions relating to the power of an appellate court indealing with an appeal against an order of acquittal and observed asunder:

“…..But in exercising the power conferred by the Code andCbefore reaching its conclusions upon fact, the High Courtshould and will always give proper weight and considerationto such matters as: (1) the views of the trial Judge as to thecredibility of the witnesses; (2) the presumption of innocencein favour of the accused, presumption certainly notweakened by the fact that he has been acquitted at his trial;D(3) the right of the accused to the benefit of any doubt; and(4) the slowness of an appellate court in disturbing findingof fact arrived at by Judge who had the advantage of seeingthe witnesses. To state this, however, is only to say that theHigh Court in its conduct of the appeal should and will act inEaccordance with rules and principles well known andrecognised in the administration of justice.”

It was stated that the appellate court has full powers to reviewand to reverse the acquittal.

36. Following the Sheo Swarup (supra) this Court in ChandrappaFand Others v. State of Karnatakareported in (2007) 4 SCC 415 heldas under:

“16. It cannot, however, be forgotten that in case of acquittal,there is double presumption in favour of the accused. Firstly,the presumption of innocence is available to him under theGfundamental principle of criminal jurisprudence that everyperson should be presumed to be innocent unless he is provedto be guilty by competent court of law. Secondly, the accusedhaving secured an acquittal, the presumption of his innocenceis certainly not weakened but reinforced, reaffirmed andstrengthened by the trial court.”H

37. In Atley v. State of Uttar Pradesh, AIR 1955 SC 807, theapproach of the appellate court while considering judgment of acquittalwas discussed and it was observed that unless the appellate court comesto the conclusion that the judgment of the acquittal was perverse, itcould not set aside the same. To similar effect are the followingobservations of this Court speaking through Subba Rao, J. (as his Lordshipthen was) in Sanwat Singh and Others v. State of Rajasthan, AIR1961 SC 715 in para 9 held as under:

“9. The foregoing discussion yields the following results: (1)an appellate court has full power to review the evidence uponwhich the order of acquittal is founded; (2) the principleslaid down in Sheo Swarup’s case, 61 Ind App 398 : (AIR 1934PC 227 (2)) afford correct guide for the appellate court’sapproach to case in disposing of such an appeal; and (3)the different phraseology used in the judgments of this Court,such as, (i) “substantial and compelling reasons”, (ii) “goodand sufficiently cogent reasons”, and (iii) “strong reasons”are not intended to curtail the undoubted power of anappellate court in an appeal against acquittal to review theentire evidence and to come to its own conclusion; but indoing so it should not only consider every matter on recordhaving bearing on the questions of fact and the reasonsgiven by the court below in support of its order of acquittalin its arriving at conclusion on those facts, but should alsoexpress those reasons in its judgment, which lead it to holdthat the acquittal was not justified.”38. The need for the aforesaid observations arose on account ofthe observations of the majority in Aher Raja Khima v. State ofSaurashtra, AIR 1956 SC 217 : 1956 Cri LJ 426, which stated that forthe High Court to take different view on the evidence “there must alsobe substantial and compelling reasons for holding that the trial court waswrong”.

39. M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200: (1963) 1 Cri LJ 235, is the judgment of the Constitution Bench of thisCourt, speaking through Gajendragadkar, J. (as his Lordship then was).This Court observed that the approach of the High Court (appellatecourt) in dealing with an appeal against acquittal ought to be cautiousbecause the presumption of innocence in favour of the accused “is not

Acertainly weakened by the fact that he has been acquitted at histrial”.

40. InShivaji Sahabrao Bobade and Another v. State ofMaharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, in para 6,Krishna Iyer, J., observed as follows:B“

“6. …..In short, our jurisprudential enthusiasm for presumedinnocence must be moderated by the pragmatic need to makecriminal justice potent and realistic. balance has to be struckbetween chasing chance possibilities as good enough to setthe delinquent free and chopping the logic of preponderantCprobability to punish marginal innocents…..”

41. This Court inRamesh Babulal Doshi v. State of Gujarat,(1996) 9 SCC 225 : 1996 SCC (Cri) 972, in para 7 spoke about theapproach of the appellate court while considering an appeal against anorder acquitting the accused and stated as follows:

“7. …..While sitting in judgment over an acquittal theappellate court is first required to seek an answer to thequestion whether the findings of the trial court are palpablywrong, manifestly erroneous or demonstrably unsustainable.If the appellate court answers the above question in theEnegative the order of acquittal is not to be disturbed.Conversely, if the appellate court holds, for reasons to berecorded, that the order of acquittal cannot at all be sustainedin view of any of the above infirmities it can then — and thenonly — reappraise the evidence to arrive at its ownconclusions…..”F

The object and the purpose of the aforesaid approach is to ensurethat there is no miscarriage of justice. In other words, there should notbe an acquittal of the guilty or conviction of an innocent person.

42. In Ajit Savant Majagvai v. State of Karnataka, (1997) 7SCC 110 : 1997 SCC (Cri) 992, in para 16, this Court set out the followingGprinciples that would regulate and govern the hearing of an appeal bythe High Court against an order of acquittal passed by the trial court:

“16. This Court has thus explicitly and clearly laid down theprinciples which would govern and regulate the hearing ofappeal by the High Court against an order of acquittal passed

by the trial court. These principles have been set out ininnumerable cases and may be reiterated as under:

(1) In an appeal against an order of acquittal, the High Courtpossesses all the powers, and nothing less than the powers itpossesses while hearing an appeal against an order ofconviction.

(2) The High Court has the power to reconsider the wholeissue, reappraise the evidence and come to its own conclusionand findings in place of the findings recorded by the trialcourt, if the said findings are against the weight of the evidenceon record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Courthas to consider each ground on which the order of acquittalwas based and to record its own reasons for not acceptingthose grounds and not subscribing to the view expressed bythe trial court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal, the High Court hasto keep in view the fact that the presumption of innocence isstill available in favour of the accused and the same standsfortified and strengthened by the order of acquittal passed inhis favour by the trial court.

(5) If the High Court, on fresh scrutiny and reappraisal ofthe evidence and other material on record, is of the opinionthat there is another view which can be reasonably taken,then the view which favours the accused should be adopted.

(6) The High Court has also to keep in mind that the trialcourt had the advantage of looking at the demeanour ofwitnesses and observing their conduct in the Court especiallyin the witness-box.

(7) The High Court has also to keep in mind that even at thatstage, the accused was entitled to benefit of doubt. The doubtshould be such as reasonable person would honestly andconscientiously entertain as to the guilt of the accused.”

43.This Court inChandrappa (supra)highlighted that there isone significant difference in exercising power while hearing an appealagainst acquittal by the appellate court. The appellate court would not

Ainterfere where the judgment impugned is based on evidence and theview taken was reasonable and plausible. This is because the appellatecourt will determine the fact that there is presumption in favour of theaccused and the accused is entitled to get the benefit of doubt but if itdecides to interfere it should assign reasons for differing with the decisionof acquittal. After referring to catena of judgments, this Court culledBout the following general principles regarding the powers of the AppellateCourt while dealing with an appeal against an order of acquittal in thefollowing words:

“42. From the above decisions, in our considered view, thefollowing general principles regarding powers of the appellateCcourt while dealing with an appeal against an order ofacquittal emerge:

(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittalis founded.

D(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and anappellate court on the evidence before it may reach its ownconclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compellingEreasons”, “good and sufficient grounds”, “very strongcircumstances”, “distorted conclusions”, “glaring mistakes”,etc. are not intended to curtail extensive powers of anappellate court in an appeal against acquittal. Suchphraseologies are more in the nature of “flourishes ofFlanguage” to emphasise the reluctance of an appellate courtto interfere with acquittal than to curtail the power of thecourt to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that incase of acquittal, there is double presumption in favour ofthe accused. Firstly, the presumption of innocence is availableGto him under the fundamental principle of criminaljurisprudence that every person shall be presumed to beinnocent unless he is proved guilty by competent court oflaw. Secondly, the accused having secured his acquittal, thepresumption of his innocence is further reinforced, reaffirmedHand strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis ofthe evidence on record, the appellate court should not disturbthe finding of acquittal recorded by the trial court.”

44. In Nepal Singh v. State of Haryana, (2009) 12 SCC 351,this Court reversed the judgment in the State of Haryana v. NepalSingh, CRA-D No. 99-DBA of 1993, order dated 21-7-1997 (P&H), ofthe High Court which had set aside the judgment of acquittal pronouncedby the trial court and restored the judgment of the trial court acquittingthe accused on reappreciation of the evidence.

45.The circumstances under which an appeal would be entertainedby this Court from an order of acquittal passed by High Court may besummarised as follows:

45.1. Ordinarily, this Court is cautious in interfering with an orderof acquittal, especially when the order of acquittal has been confirmedup to the High Court. It is only in rarest of rare cases, where the HighCourt, on an absolutely wrong process of reasoning and legallyerroneous and perverse approach to the facts of the case, ignoring someof the most vital facts, has acquitted the accused, that the same may bereversed by this Court, exercising jurisdiction under Article 136 of theConstitution. [State of Uttar Pradesh v. Sahai and Others, (1982) 1SCC 352]. Such fetters on the right to entertain an appeal are promptedby the reluctance to expose person, who has been acquitted by acompetent court of criminal charge, to the anxiety and tension of afurther examination of the case, even though it is held by superiorcourt. [Arunachalam v. P.S.R. Sadhanantham and Another, (1979)2 SCC 297]. An appeal cannot be entertained against an order of acquittalwhich has, after recording valid and weighty reasons, has arrived at anunassailable, logical conclusion which justifies acquittal. [State ofHaryana v. Lakhbir Singh and Another, 1991 Supp (1) SCC 35 : 1990Cri LJ 2274].

45.2. However, this Court has on certain occasions, set aside theorder of acquittal passed by High Court. The circumstances underwhich this Court may entertain an appeal against an order of acquittaland pass an order of conviction, may be summarised as follows:

45.2.1. Where the approach or reasoning of the High Court isperverse:

(a) Where incontrovertible evidence has been rejected by theHigh Court based on suspicion and surmises, which are ratherunrealistic. [State of Rajasthan v. Sukhpal Singh and Others,(1983) 1 SCC 393]. For example, where direct, unanimousaccounts of the eyewitnesses, were discounted without cogentreasoning. [State of U.P. v. Shanker, 1980 Supp SCC 489 : 1981SCC (Cri) 428].

(b) Where the intrinsic merits of the testimony of relatives, livingin the same house as the victim, were discounted on the groundthat they were “interested” witnesses. [State of U.P. v. HakimSingh and Others, (1980) 3 SCC 55].

(c) Where testimony of witnesses had been disbelieved by theHigh Court, on an unrealistic conjecture of personal motive on thepart of witnesses to implicate the accused, when in fact, thewitnesses had no axe to grind in the said matter. [State ofRajasthan v. Sukhpal Singh and Others, (1983) 1 SCC 393].

(d) Where dying declaration of the deceased victim was rejectedby the High Court on an irrelevant ground that they did not explainthe injury found on one of the persons present at the site ofoccurrence of the crime. [Arunachalam v. P.S.R.Sadhanantham and Another, (1979) 2 SCC 297].

(e) Where the High Court applied an unrealistic standard of“implicit proof” rather than that of “proof beyond reasonable doubt”and therefore evaluated the evidence in flawed manner. [Stateof Uttar Pradesh v. Ranjha Ram and Others, (1986) 4 SCC99].

(f) Where the High Court rejected circumstantial evidence, basedon an exaggerated and capricious theory, which were beyond theplea of the accused; [State of Maharashtra v. ChampalalPunjaji Shah, (1981) 3 SCC 610] or where acquittal rests merelyin exaggerated devotion to the rule of benefit of doubt in favour ofthe accused. [Gurbachan Singh v. Satpal Singh and Others,(1990) 1 SCC 445].

(g) Where the High Court acquitted the accused on the groundthat he had no adequate motive to commit the offence, although,in the said case, there was strong direct evidence establishing theguilt of the accused, thereby making it unnecessary on the part of

the prosecution to establish “motive”. [State of AndhraPradesh v. Bogam Chandraiah and Another, (1986) 3 SCC637].

45.2.2. Where acquittal would result in gross miscarriage of justice:

(a) Where the findings of the High Court, disconnecting theaccused persons with the crime, were based on perfunctoryconsideration of evidence, [State of U.P. v. Pheru Singh andOthers, 1989 Supp (1) SCC 288] or based on extenuatingcircumstances which were purely based in imagination and fantasy[State of Uttar Pradesh v. Pussu alias Ram Kishore, (1983) 3SCC 502].

(b) Where the accused had been acquitted on ground of delay inconducting trial, which delay was attributable not to the tardinessor indifference of the prosecuting agencies, but to the conduct ofthe accused himself; or where accused had been acquitted onground of delay in conducting trial relating to an offence which isnot of trivial nature. [State of Maharashtra v. ChampalalPunjaji Shah, (1981) 3 SCC 610].

46. Having gone through the entire impugned judgment passed bythe High Court, we do not find any satisfaction recorded therein that thefindings of the trial court are palpably wrong, manifestly erroneous ordemonstrably unsustainable. In the absence of such satisfaction, the HighCourt, in our opinion, should not have disturbed well-reasoned judgmentof acquittal, passed by the trial court. We shall assign reasons hereafterwhy the High Court should not have disturbed the acquittal recorded bythe trial court.

PRINCIPLES GOVERNING APPRECIATION OFCIRCUMSTANTIAL EVIDENCE

47. three-Judge Bench of this Court inSharad BirdhichandSarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:

“152. Before discussing the cases relied upon by the HighCourt we would like to cite few decisions on the nature,character and essential proof required in criminal case whichrests on circumstantial evidence alone. The most fundamentaland basic decision of this Court is Hanumant v. State ofMadhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953

Cri LJ 129] . This case has been uniformly followed andapplied by this Court in large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. Stateof Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 :AIR 1972 SC 656] . It may be useful to extract what Mahajan,J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952SCR 1091 : 1953 Cri LJ 129] :

It is well to remember that in cases where the evidenceis of circumstantial nature, the circumstances from whichthe conclusion of guilt is to be drawn should in the firstinstance be fully established, and all the facts so establishedshould be consistent only with the hypothesis of the guiltof the accused. Again, the circumstances should be of aconclusive nature and tendency and they should be suchas to exclude every hypothesis but the one proposed to beproved. In other words, there must be chain of evidence

so far complete as not to leave any reasonable ground fora conclusion consistent with the innocence of the accusedand it must be such as to show that within all humanprobability the act must have been done by the accused.

153. close analysis of this decision would show that thefollowing conditions must be fulfilled before case againstan accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt isto be drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned ‘must or should’ and not ‘may be’established. There is not only grammatical but legaldistinction between ‘may be proved’ and “must be or shouldbe proved” as was held by this Court in Shivaji SahabraoBobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973SCC (Cri) 1033 : 1973 Cri LJ 1783] where the followingobservations were made : [SCC para 19, p. 807 : SCC (Cri)p. 1047]

Certainly, it is primary principle that the accused must beand not merely may be guilty before court can convict

and the mental distance between ‘may be’ and ‘must be’ islong and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is tosay, they should not be explainable on any other hypothesisexcept that the accused is guilty,

(3) the circumstances should be of conclusive natureand tendency,

(4) they should exclude every possible hypothesis exceptthe one to be proved, and

(5) there must be chain of evidence so complete asnot to leave any reasonable ground for the conclusionconsistent with the innocence of the accused and must showthat in all human probability the act must have been doneby the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of case based on circumstantialevidence.”

48. In an Essay on the Principles of Circumstantial Evidence byWilliam Wills by T. and J.W. Johnson and Co. 1872, it has beenexplained as under:

“In matters of direct testimony, if credence be given to therelators, the act of hearing and the act of belief, though reallynot so, seem to be contemporaneous. But the case is verydifferent when we have to determine upon circumstantialevidence, the judgment in respect of which is essentiallyinferential. There is no apparent necessary connection betweenthe facts and the inference; the facts may be true, and theinference erroneous, and it is only by comparison with theresults of observation in similar or analogous circumstances,that we acquire confidence in the accuracy of ourconclusions. ?·

The term PRESUMPTIVE is frequently used as synonymouswith CIRCUMSTANTIAL EVIDENCE; but it is not so used withstrict accuracy, The word” presumption,” ex vi termini, importsan inference from facts; and the adjunct “presumptive,” as

Aapplied to evidentiary facts, implies the certainty of somerelation between the facts and the inference. Circumstancesgenerally, but not necessarily, lead to particular inferences;for the facts may be indisputable, and yet their relation to theprincipal fact may be only apparent, and not real; and evenwhen the connection is real, the deduction may be erroneous.BCircumstantial and presumptive evidence differ, therefore, asgenus and species.

The force and effect of circumstantial evidence depend uponits incompatibility with, and incapability of, explanation orsolution upon any other supposition than that of the truth ofCthe fact which it is adduced to prove; the mode of argumentresembling the method of demonstration by the reductio adabsurdum.”

49. Thus, in view of the above, the Court must consider case ofcircumstantial evidence in light of the aforesaid settled legal propositions.DIn case of circumstantial evidence, the judgment remains essentiallyinferential. The inference is drawn from the established facts as thecircumstances lead to particular inferences. The Court has to draw aninference with respect to whether the chain of circumstances is complete,and when the circumstances therein are collectively considered, the sameEmust lead only to the irresistible conclusion that the accused alone is theperpetrator of the crime in question. All the circumstances so establishedmust be of conclusive nature, and consistent only with the hypothesisof the guilt of the accused.

ANALYSIS OF THE CIRCUMSTANCES RELIED UPONBY THE HIGH COURTF

50. It is the case of the prosecution that the original accused No.3 Seetharam Bhat had made an extra judicial confession before the PW7, H.T. Yogesh (son-in-law of the deceased). PW 7 in his examination-in-chief, recorded by the trial court on 21.01.2012 has stated as under:

“1. I know the accused persons who are present before thecourt. Deceased Kamalamma is my mother-in-law. C.W.8 ismy wife. P.W.1 is my wife’s sister. C.W.12 is the husband ofP.W.1. C.W.5 and 6 are the brothers of the deceased. I knowother witnesses. My mother-in-law died on 23.08.2010 dueto murder. The son of A2 Gowramma by name Alok on

24.08.2010 came at about 6.30 a.m. and told that my mother-in-law Kamalamma is not found since yesterday night. A2 isthe daughter of first wife of the husband of deceasedKamalamma. Deceased used to reside Hosamane, Hirekudigevillage. By the side of the house of deceased A2 used to reside.Deceased alone used to stay there and A2 and their childrenused to stay by the side of the house of the deceased. Husbandof A2 is no more. We also came. By telling to all we searchedfor my mother-in-law Kamalamma. As we could not trace atabout 1 p.m. I went to Police Station and filed missingcomplaint. I did not get any information about my mother-in-law even after giving the missing complaint.

2. On 09.12.2010 I had been to Gadikallu. At about 9.30p.m. at Gadikallu circle A3 Seetharam Bhat met me and therehe told that about 3 or 3 1/2 months backhe had been calledby A1 and told that he had murdered Kamalamma and in orderto bury the dead body asked his help by providing two bottlesof brandy and he also told that if he would not obey he willalso kill him as done to his brother-in-law Srinivase Gowda.He also told that he helped him in carrying the dead body toDhare near the land of Dinamani and there they have buriedthe body.

3. Deceased Kamalamma used to tell that A2 is having illicitrelation and they are not liking her as she is telling toeverybody.

4. Thereafter I went to Police Station on 10.12.2010 and filedthe complaint. Now I see the said complaint. The same is nowmarked as Ex.P-11. Ex.P-11(a) is my signature.

5. Next day when police and Assistant Commissioner came tothe spot I was also called there. C.W.2 to 4 were also called.There A1 and A3 showed the place where they had buried thebody of Kamalamma to us and also to the police and AssistantCommissioner. Thereafter with the help of P.W.3 the dead bodyof Kamalamma was exhumed. The dead body was buried insurvey No.121, the Govt. land by the side of channel atHorabylu. When the body was exhumed it was fullydecomposed. Over the body one petticoat, one blouse werethere. There the Assistant Commissioner draw the body

exhumed mahazar. Now I see the same. The same is alreadymarked as Ex.P-3. Ex.P-3(b) is my signature. At that timephotographs were also taken. Now the three photos have beenmarked as Ex P-4. Apart from me C.Ws. 2 to 4 and P.W.3 alsosigned.

6. On 14.12.2010 again police called me at about 2 p.m. tothe Police Station. In the said police station A1 was alsopresent. Police brought C.W.24 Meeranath and he produceda mobile. The said mobile was of the deceased Kamalamma.The same was seized in the presence of C.W.22 and 23 bydrawing mahazar. Now I see the same. The same is nowmarked as Ex.P-12. Ex.P-12(a) is my signature. At that timephoto was also taken. Now the said photo is marked as Ex.P-13. I can identify the mobile if shown to me. The same is alreadymarked as M.O.4. I do not remember the cell number of mymother-in law. She has studied upto 4th standard.

7. My mother-in-law used to wear chain with Ganapathipendant which is already marked as M.O.1, one pair of olewith blue stone in the middle surrounded by white stones whichis already marked as M.O.2, one gold ring with red stonewhich is already marked as M.O.3. I can identify the blouseEand petticoat which were found on the body of the deceased.(Now one sealed cover is shown to the learned counsel forthe accused. The seals are found intact. He has no objectionto open the same. The same is now opened). It contains oneblouse and one petticoat. Witness identifies the same. The sameare now marked as M.O.11 and 12.”F

51. We need not refer to the cross-examination of the PW 7, aswe are of the view that the plain reading of the examination-in-chiefitself is sufficient to arrive at the conclusion that the extra judicialconfession could not have been relied upon as an incriminatingcircumstance.G

52. The date of the alleged crime is 23.08.2010. The so calledextra judicial confession, said to have been made by Seetharam Bhat(accused No. 3) is dated 09.12.2010. We fail to understand why all of asudden Seetharam (accused No. 3) after period of almost four months,thought fit to make an extra judicial confession before the PW 7 H.T.HYogesh involving himself and the appellant herein in the alleged crime.

53. An extra judicial confession, if voluntary and true and made ina fit state of mind, can be relied upon by the Court. The confession willhave to be proved like any other fact. The value of the evidence as toconfession, like any other evidence, depends upon the veracity of thewitness to whom it has been made. The value of the evidence as to theconfession depends on the reliability of the witness who gives theevidence. It is not open to any court to start with presumption thatextra judicial confession is weak type of evidence. It would depend onthe nature of the circumstances, the time when the confession was madeand the credibility of the witnesses who speak to such confession.Such confession can be relied upon and conviction can be foundedthereon if the evidence about the confession comes from the mouth ofwitnesses who appear to be unbiased, not even remotely inimical to theaccused, and in respect of whom nothing is brought out which may tendto indicate that he may have motive for attributing an untruthfulstatement to the accused, the words spoken to by the witness are clear,unambiguous and unmistakably convey that the accused is the perpetratorof the crime and nothing is omitted by the witness which may militateagainst it. After subjecting the evidence of the witness to rigorous teston the touchstone of credibility, the extra judicial confession can beaccepted and can be the basis of conviction if it passes the test ofcredibility.54. Extra judicial confession is weak piece of evidence and thecourt must ensure that the same inspires confidence and is corroboratedby other prosecution evidence. It is considered to be weak piece ofevidence as it can be easily procured whenever direct evidence is notavailable. In order to accept extra judicial confession, it must be voluntaryand must inspire confidence. If the court is satisfied that the extra judicialconfession is voluntary, it can be acted upon to base the conviction.

55. Considering the admissibility and evidentiary value of extrajudicial confession, after referring to various judgments, in Sahadevanand Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Courtheld as under:-

“15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4)SCC 259 : 1996 SCC (Cri) 59] this Court stated the principlethat: (SCC p. 265, para 10)

“10. An extra-judicial confession by its very nature israther weak type of evidence and requires appreciation

ABC

-with great deal of care and caution. Where an extrajudicial confession is surrounded by suspiciouscircumstances, its credibility becomes doubtful and it losesits importance.”

15.4. While explaining the dimensions of the principlesgoverning the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. RajaRam [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated theprinciple that: (SCC p. 192, para 19)

“19. An extra-judicial confession, if voluntary and trueand made in fit state of mind, can be relied upon by thecourt. The confession will have to be proved like any otherfact. The value of the evidence as to confession, like anyother evidence, depends upon the veracity of the witnessto whom it has been made.”

The Court further expressed the view that: (SCC p. 192, para19)

“19. … Such confession can be relied upon and convictioncan be founded thereon if the evidence about the confessioncomes from the mouth of witnesses who appear to beunbiased, not even remotely inimical to the accused, andin respect of whom nothing is brought out which may tendto indicate that he may have motive of attributing anuntruthful statement to the accused.…”

15.6. Accepting the admissibility of the extra-judicialconfession, the Court in Sansar Chand v. State ofRajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] heldthat: (SCC p. 611, paras 29-30)

“29. There is no absolute rule that an extra-judicial confessioncan never be the basis of conviction, although ordinarilyan extra-judicial confession should be corroborated by someother material. [Vide Thimma and Thimma Raju v. State ofMysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , MulkRaj v. State of U.P. [AIR 1959 SC 902 : 1959 Cri LJ

1219], Sivakumar v. State [(2006) 1 SCC 714 : (2006) 1 SCC(Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and42), Shiva Karam Payaswami Tewari v. State ofMaharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320]and Mohd. Azad v. State of W.B.[(2008) 15 SCC 449 : (2009)3 SCC (Cri) 1082] ]””

[Emphasis supplied]

56. It is well settled that conviction can be based on voluntarilyconfession but the rule of prudence requires that wherever possible itshould be corroborated by independent evidence. Extra judicial confessionof accused need not in all cases be corroborated. In Madan GopalKakkad v. Naval Dubey and Another,(1992) 3 SCC 204, this Courtafter referring to Piara Singh and Others v. State of Punjab, (1977) 4SCC 452, held that the law does not require that the evidence of anextra judicial confession should in all cases be corroborated. The rule ofprudence does not require that each and every circumstance mentionedin the confession must be separately and independently corroborated.57. The sum and substance of the aforesaid is that an extrajudicial confession by its very nature is rather weak type of evidenceand requires appreciation with great deal of care and caution. Where anextra judicial confession is surrounded by suspicious circumstances, itscredibility becomes doubtful and it loses its importance like the case inhand. The Courts generally look for an independent reliable corroborationbefore placing any reliance upon an extra judicial confession.

58. This Court in Kashmira Singh v. The State of MadhyaPradesh reported in AIR 1952 SC 159, had observed as under:

“The confession of an accused person is not evidence in theordinary sense of the term as defined in Section 3. It cannotbe made the foundation of conviction and can only be usedin support of other evidence. The proper way is, first, tomarshal the evidence against the accused excluding theconfession altogether from consideration and see whether, ifit is believed conviction could safely be based on it. If it iscapable of belief independently of the confession, then ofcourse it is not necessary to call the confession in aid. Butcases may arise where the Judge is not prepared to act on theother evidence as it stands even though, if believed, it would

Abe sufficient to sustain conviction. In such an event theJudge may call in aid the confession and use it to lendassurance to the other evidence and thus fortify himself inbelieving what without the aid of the confession he would notbe prepared to accept. [para 8, 10]”

B59. In the case on hand, the High Court committed serious errorin making the confessional statement as the basis and thereafter going insearch for corroboration. The High Court concluded that the confessionalstatement is corroborated in material particulars without first consideringand marshalling the evidence against the appellant convict herein excludingthe conviction altogether from consideration. As held in the decision,Ccited above, only if on such consideration on the evidence available,other than the confession conviction can safely be based then only theconfession could be used to support that belief or conclusion.

60. The trial court has assigned cogent reasons for not acceptingthe evidence of the PW 7, before whom the confession is alleged toDhave been made, and rightly so, the High Court has not given anyconvincing reasons as to why the PW 7 who was discarded by the trialcourt should be relied on.

61. The learned counsel appearing for the State, relied on Section30 of the Evidence Act to make good his submission that, the extraEjudicial confession alleged to have been made by the original accusedNo. 3 Seetharam Bhat is admissible against the appellant convict herein.No doubt, the statement would be admissible but the question is not ofmere admissibility or mere absence of bar under Section 25 of theEvidence Act, the real question relates to proper interpretation of Section30 of the Evidence Act.F

62. Section 30 of the Evidence Act is quoted below in toto:

“30. Consideration of proved confession affecting personmaking it and others jointly under trial for the same offence.—

When more persons than one are being tried jointly for theGsame offence, and confession made by one of such personsaffecting himself and some other of such persons is proved,the Court may take into consideration such confession asagainst such other person as well as against the person whomakes such confession.

[Explanation:—”Offence”, as used in this section includesthe abatement of, or attempt to commit the offence.]”

63. It was argued that this confession of co-accused, even ifproved, cannot be the basis of conviction and although it is evidence inthe generic sense, yet it is not evidence in the specific sense and it couldafford corroboration to other evidence and cannot be the supportingpoint or the sole basis of the conviction. In this respect, reference couldbe made to decision of this Court in the case of Haricharan Kurmi& Jogia Hajam v. State of Bihar, as reported in AIR 1964 SC 1184, asalso to another decision of this Court reported in Ram Chandra andAnother v. State of Uttar Pradesh, AIR 1957 SC 381 wherein it washeld that confession of co-accused can only be taken into considerationbut it was not in itself substantive evidence. The Privy Council alsoheld that confession of co-accused was obviously evidence of veryweak type and it did not come within the definition of evidence containedin Section 3.

64. It is necessary to have the facts behind these decisions of theSupreme Court and the Privy Council. We may proceed chronologically.

65. In the case of Bhuboni Sahu v. The King reported in AIR1949 PC 257, the Patna High Court had dismissed an appeal against ajudgment and order of the Sessions Judge convicting the appellant for anoffence of murder. The Privy Council, however, advised His Majestythat the appeal be allowed and the judgment was recorded giving thereasons for such advice. The evidence against the appellant consistedof, (a) the evidence of Kholli Behera who had taken part in the murderand had become an approver, (b) the confession of Trinath recordedunder Section 164 Cr. P.C. which implicated both himself and the appellantin the murder, and (c) the recovery of loin cloth identified as the onewhich the deceased was wearing when he was assaulted and aninstrument for cutting grass. For the purpose of the instant case, theevidence in point (b) is relevant. The Privy Council quoted Section 30 ofthe Evidence Act and held in paragraph 9 of the judgment (as reported)that Section 30 was introduced for the first time in the Indian EvidenceAct of 1872 and it was the departure from the common law of England.It was observed that this Section 30 applied to confessions and not tostatements which do not admit the guilt of the confessing party. It washeld that statement of Trinath was confession. Their lordships furtherobserved that Section 30 seemed to be based on the view that an admission

Aof an accused person of his own guilt affords some sort of sanction insupport of the truth of his confession against others as well as himself.But confession of co-accused, their lordships continued to observe,was obviously evidence of weaker type. It did not indeed come withinthe definition of ‘evidence’ contained in Section 3 of the Evidence Act.Such statement was not required to be given on oath nor in the presenceBof the accused and it could not be tested by cross-examination. It was amuch weaker type of evidence than the evidence of an approver whichwas not subject to any of those infirmities. Section 30, however, providedthat the Court might take into consideration the confession and therebyno doubt made it evidence on which the Court could act, but the sectionCdid not say that the confession was to amount to proof. Clearly, theremust be other evidence and confession was only one element in theconsideration of all the facts proved in the case, which can be put intothe scale and weighed with other evidence. Their lordships confirmedthe view that the confession of co-accused could be used only in supportof the evidence and could not be made foundation of conviction.D

66. The case of Ram Chandra (supra) before this Court, asreported in AIR 1957 SC 381 was also of murder. It was case in whichcorpus delecti was not traceable and proof of murder solely dependedon retracted confession of an accused. The Court was of the viewthat although corpus delecti was not found, yet there could be convictionEif reliable evidence, direct or circumstantial, of the commission of murderwas available. However, confession of co-accused was not in itselfa substantive evidence. The courts below had relied on confession ofaccused Ram Chandra against co-accused, Ram Bharosey, for holdinghim guilty of the offences charged against him. This Court held, “It is

Frightly urged that under Section 30, Evidence Act confession of aco-accused can only be taken into consideration but is not in itselfsubstantive evidence.” This Court, however, was satisfied that evenexcluding the confession as substantive evidence there was enoughmaterial against the appellant Ram Bharosey to find him guilty of offence

of criminal conspiracy to commit offences charged. To come to theGratio, we find that the view was affirmed that confession of co-accusedcould only be considered but could not be relied on as substantive evidence.

67. The case of Haricharan Kurmi (supra) was again from thePatna High Court. Here also question arose as to the probative valueof confession of one accused against co-accused. This Court dealt

with the definition clause in Section 3 in the Evidence Act and Section30 thereof, as also some earlier decisions of this Court. It was observed,in paragraph 15 of the judgment, as reported, “It is true that theconfession made by Ram Surat is detailed statement and it attributesto the two appellants major part in the commission of the offence.It is also true that the said confession has been found to be voluntary,and true so far as the part played by Ram Surat himself is concerned,and so, it is not unlikely that the confessional statement in regard tothe part played by the two appellants may also be true; and in thatsense, the rending of the said confession may raise serioussuspicion against the accused. But it is precisely in such cases thatthe true legal approach must be adopted and suspicion, however,grave, must not be allowed to take the place of proof. As we havealready indicated, it has been recognised principle ofadministration of criminal law in this country for over half centurythat the confession of co-accused person cannot be treated assubstantive evidence and can be pressed into service only when theCourt is inclined to accept other evidence and feels the necessity ofseeking for an assurance in support of its conclusion deduciblefrom the said evidence. In criminal trial, there is no scope for applyingthe principle of moral conviction or grave suspicion. In criminalcases where the other evidence adduced against an accused personis wholly unsatisfactory and the prosecution seeks to rely on theconfession of co-accused person, the presumption of innocencewhich is the basis of criminal jurisprudence assists the accusedperson and compels the Court to render the verdict that the chargeis not proved against him, and so, he is entitled to the benefit ofdoubt. That is precisely what has happened in these appeals.”

68. The case in hand is not one of confession recorded underSection 15 of the TADA Act. On the language of sub-section (1) ofSection 15, confession of an accused is made admissible evidence asagainst all those tried jointly with him. So, it is implicit that the same canbe considered against all those, tried together. In this view of the matteralso, Section 30 of the Evidence Act need not be invoked for considerationof confession of an accused against the co-accused, abettor or conspiratorcharged and tried in the same case along with the accused. The acceptedprinciple in law is that the confessional statement of an accused recordedunder Section 15 of the TADA Act is substantive piece of evidenceagainst his co-accused, provided the accused concerned are tried together.

AThis is the fine distinction between an extra judicial confession being acorroborative piece of evidence and confession recorded under Section15 of the TADA Act being treated as substantive piece of evidence.

DISCOVERY OF WEAPON OF OFFENCE, CLOTHESAND DEAD BODY

69. For the purpose of proving the discovery of clothes of theappellant herein at his instance by drawing panchnama under Section27 of the Evidence Act, the prosecution has relied upon the evidence ofthe PW 5 T. Somaiah. PW 5 in his examination-in-chief has deposed asunder:C

“1. I know the accused persons who are present before thecourt. I know C.W.19. About one year back myself and C.W.19were called by the police, at that time A1 Subramanya wasalso there. From there A1 led us near the house of Kamalamma.By the side of house of Kamalamma there is house of A2.DPolice told me that A1 is going to give the cloths, we have tobe there.By the side of house of Kamalamma from the placewhere the firewood has been stored A1 removed one pant andone shirt and produced before the police and thereafter thesame were seized by drawing mahazar. Now I see the saidmahazar. The same is now marked as Ex.P-6. Ex.P-6(a) is myEsignature. The said mahazar was drawn between 9.30 a.m. to10.30 a.m. (Now two covers are shown to the learned counselfor the accused. He has no objection to open the same. Thesame are now opened.) They contain red colour shirt andcement colour pant. The same are now marked as M.O.7 andF8 respectively. At the time of seizing M.O.7 and 8 photographis also taken. Now I see the same. The same is now marked asEx.P-7.”

70. For the purpose of proving the discovery of the weapon ofoffence, the prosecution has relied upon the examination-in-chief at theGinstance of the appellant convict herein. The prosecution has relied uponthe evidence of PW 6 Sridhar Shetty. Sridhar Shetty in his examination-in-chief has deposed as under:

“1. I know the accused persons who are present before thecourt. I know C.W.21. On 14.12.2010 myself and C.W.21 werecalled by C.W.42. At that time A1 and A3 and the president of

Panchayath and many other persons were also present. A1and A3 led us to survey No.121 Government land by the sideof the estate of Dinamani and there they told that they aregoing to produce the club which has been used for the purposeof commission of offence and which has been kept in bush.Thereafter A1 took out club from the bush and producedbefore the police. Now I see the said club which is before thecourt. The same is now marked as M.O.9. Thereafter A3 alsowent by the side of the bush and from there he produced aspade. Now I see the said spade. The same is now marked asM.O.10. Thereafter M.O.9 and 10 were seized by drawing amahazar. Now I see the said mahazar. The same is now markedas Ex.P-8. Ex.P-8(a) is my signature. The said mahazar wasdrawn in between 11 a.m to 11.30 a.m. At the time of drawingthe said proceedings photographs were also taken. Now thesaid two photographs are marked as Ex.P-9 and P-10.”

71. For the purpose of proving the discovery of the dead body ofthe deceased at the instance of the appellant herein and the acquittedco-accused (A-2), the prosecution has relied upon evidence of PW 7H.T. Yogesh. PW 7 H.T. Yogesh in his examination-in-chief has deposedas under:

“5. Next day when police and Assistant Commissioner cameto the spot I was also called there. C.W.2 to 4 were also called.There A1 and A3 showed the place where they had buried thebody of Kamalamma to us and also to the police and AssistantCommissioner. Thereafter with the help of P.W.3 the dead bodyof Kamalamma was exhumed. The dead body was buried insurvey No.121, the Govt. land by the side of channel atHorabylu. When the body was exhumed it was fullydecomposed. Over the body one petticoat, one blouse werethere. There the Assistant Commissioner draw the bodyexhumed mahazar. Now I see the same. The same is alreadymarked as Ex.P-3. Ex.P-3(b) is my signature. At that timephotographs were also taken. Now the three photos have beenmarked as Ex P-4. Apart from me C.Ws. 2 to 4 and P.W.3 alsosigned.

6. On 14.12.2010 again police called me at about 2 p.m. tothe Police Station. In the said police station A1 was also

present. Police brought C.W.24 Meeranath and he produceda mobile. The said mobile was of the deceased Kamalamma.The same was seized in the presence of C.W.22 and 23 bydrawing mahazar. Now I see the same. The same is nowmarked as Ex.P-12. Ex.P-12(a) is my signature. At that timephoto was also taken. Now the said photo is marked as Ex.P-13. I can identify the mobile if shown to me. The same is alreadymarked as M.O.4. I do not remember the cell number of mymother-in law. She has studied upto 4th standard.

7. My mother-in-law used to wear chain with Ganapathipendant which is already marked as M.O.1, one pair of olewith blue stone in the middle surrounded by white stones whichis already marked as M.O.2, one gold ring with red stonewhich is already marked as M.O.3. I can identify the blouseand petticoat which were found on the body of the deceased.(Now one sealed cover is shown to the learned counsel forthe accused. The seals are found intact. He has no objectionto open the same. The same is now opened). It contains oneblouse and one petticoat. Witness identifies the same. The sameare now marked as M.O.11 and 12.”

72. PW 8 H. M. Ravikanth also as one of the panch-witnesseshas deposed in his examination-in-chief as under:

“2. On 11.12.2010 at about 10 a.m. C.P.I. called me, C.W.2and 3. At that time Assistant Commissioner was also presentand A1 Subramanya and A3 Seetharama Bhat were alsopresent. From Gadikallu police officials, A.C., A1 and A3alongwith me and C.W. 2 and 3 we went to the place whereFthe body has been buried. A1 took us to the said place wherethey had buried the body. After showing the place where theyhad buried the body of the deceased by A1 with the help ofP.W.3 and A1 and A3 the body was exhumed and there wenoticed that it is the dead body of Kamalamma. The said bodywas fully decomposed and one blouse and one petticoat wereGfound on the dead body. For having exhumed the body amahazar was drawn as per Ex.P-3. Ex.P-3(c) is my signature.There the photographs were also taken about the proceedings.The said photographs have been already marked as Ex.P-4.The proceedings was also videographed. Now the said C.D.His marked as M.O.13.

3. Thereafter the inquest mahazar was also drawn over thebody of the deceased. Now I see the said mahazar. The sameis now marked as Ex.P-14. Ex.P-14(a) is my signature. At thetime of drawing Ex.P-14 C.W.2 and 3 were also present.

4. Thereafter A1 led us to the house of deceased Kamalammaand took us to the backside door and at distance of 3 to 4feet he showed the place where he has murdered the deceasedKamalamma by assaulting. Thereafter A1 took us to acattleshed at distance of 5 to 6 feet and from there heproduced club. Now I see the said club. The club is markedas M.O.14. Thereafter accused told that he has kept theumbrella of deceased in Theerthahalli Kuppalli bus standabove the bus shelter. Thereafter A1 led us in police jeep toKuppalli and there after going near the bus stop A1 asked tostop the jeep. After alighting from the jeep A1 went and tookout the umbrella kept on the roof of the shelter and producedthe same. Now I see the said umbrella. The said umbrella isnow marked as M.O.15. Now the spot cum seizure mahazarof club and umbrella is confronted to the witness. He admitshis signature. The same is now marked as Ex.P-15. Ex.P-15(a)is my signature. The said mahazar has been drawn from 2p.m. to 4 p.m. At that time A3 was also present. A1 who ispresent before the court is the same person who led us andproduced M.O.14 and 15 and A1 and A3 showed the placewhere the dead body has been buried. At the time of mahazarphotographs have been also taken. The said five photos aremarked as Ex.P-16.”

73. PW 9 Somashekhara (Jeweller) in his examination-in-chiefhas deposed as under:

“1. I know A1 when he came to my shop to sell the gold. I amhaving jewellery works at Rippanpet on the road whichleads to Theerthahalli. Police came alongwith A1 on13.12.2010 at about 7 p.m. Alongwith police A1, C.W.15/Gururaj were also there. I told the police that A1 had comeand sold the gold in my shop. I took the gold from A1 threeand 1/2 months prior to police coming to my shop alongwithA1. A1 sold one gold chain with Ganapathi pendant, one pairof ole having blue stone in the middle surrounded by white

Astones and one gold ring with red stone. A1 while selling toldthat the said gold articles belong to him, as he is havingfinancial difficulties in the family and he is also constructinga house, for that reason he is selling the same. I paid-Rs.27,500/ to the accused for having purchased. Police askedme to return the said articles. Accordingly I returned and theBsame were seized by the police. C.W.15 appraised the goldarticles and thereafter certified them. At the time when thegold articles were seized it was valuing Rs.47,000/-. Now Isee the said mahazar. The same is already marked as Ex.P-1.Ex.P-1(b) is my signature. Myself, C.W.l3, C.W.15 and P.W.2Chave signed Ex.P-1. The said mahazar has been drawn from7 p.m. to 8.30 p.m. I can identify the said gold articles whichhave been seized under Ex.P-1. They have been alreadymarked as M.Os. 1 to 3. At the time of seizing M.Os. 1 to 3police also took photographs. The same are already markedas Ex.P-2.”D

74. PW 10 Ravi Shetty (one of the panch-witnesses) to therecovery of mobile, in his examination-in-chief has deposed as under:

“2. On 14.12.2010 myself, C.W.23 and 24 were called to thePolice Station at about 1.30 p.m. P.W.7 was also present.EC.W.24 produced the mobile which had been sold by A1 tohim. The said mobile has been seized by drawing mahazaras per Ex.P-12. Ex.P-12(b) is my signature. M.O.4 is the samemobile which was produced on that day. When the saidproceedings took place photographs were also taken. Now Isee the said photographs. They have been already marked asFEx.P-13.”

75. PW 19 T. Sanjeeva Naik is the Investigating Officer. In hisexamination-in-chief, he has deposed as under:

“2. On 10.12.2010 at about 1.30 p.m. I received the case fileGand took the further investigation of this case from P.W.17and perused the investigation done by him. Immediately Ideployed P.S.I. and other staff to trace about the accused.C.W. 36, 37 brought A1 and produced before me at about 9p.m. with report. Now I see the said report. The same is nowmarked as Ex.P-26. Ex.P-26(a) is my signature, C.w.34 andH35 also informed that they have apprehended A2 and secured

and produced before me with report at about 9 p.m. Now Isee the said report. The same is now marked as Ex.P-27. Ex.P-27(a) is my signature. P.W.17 and C.W.38 apprehended A3and produced before me at about 9 p.m. on the same day witha report. The report has been already marked as Ex.P-23.Ex.P-23(b) is my signature. Immediately I interrogated theaccused persons and recorded their voluntary statement. A1volunteered that he had committed the murder of deceasedKamalamma and to produce the club, mobile, spade, anotherclub which had been used for transportation of dead bodyand the ornaments which were taken over from the dead body.Now the relevant portion the voluntary statement of A1 ismarked as Ex.P-28. Ex.P-28(a) is my signature. A2 and A3also volunteered to show the place where they had buried thedead body. The said voluntary statements have been recordedin the presence of C.W.2, 3 and P.W.8. I also sent immediatelya requisition to P.w.15 to come as Sub-Divisional Magistrateto exhume the body of deceased Kamalamma.3. On 11.12.2010 P.W. 15 in the presence of panch witnessesas shown by A1 and A3 he exhumed the body of deceased inthe presence of P.W.7, P.W.8, P.W.3, C.W.2 and 3. For havingexhumed the body mahazar was also drawn as per Ex.P-3.Ex. P-3(e) is my signature. There the photographs were takenas per Ex.P-4. In the presence of above said panch witnessesI also drew the inquest mahazar as per Ex.P-14. Ex.P- 14(b)is my signature. At the time of inquest I recorded the statementof C.W.5, 6, P.W.1, C.W.8, P.W.2, C.W.10, P.W.3 and C.W.12.Thereafter through C.W.39 I sent the body to Govt. Hospital,Koppa for post-mortem with requisition. I also requested tocollect the material to send for D.N.A. test from the body.Subsequently A1 led us and showed the place where he hascommitted the offence and there in the presence of C.W. 2, 3and P.W.8 I drew the spot cum seizure mahazar as per Ex.P-15. ExP-15(b) is my signature. At the time of drawing Ex.P-15 he also produced M.O.14. Thereafter he led us to Kuppallibus stop and there he produced the umbrella from the shelterof the said bus stand. The umbrella is already marked asM.O.15. I seized M.O.15 under Ex.P-15. I also took thephotographs of· the proceedings. The said five photographs

ABC

have been marked as Ex.P-16. Thereafter I came backalongwith accused and seized articles and subjected theseized articles to P.F.No.73/2010. I also produced A1 and A3before the court and took them to police custody. I producedA2 before the court with remand application.

4. On 13.12.2010 I secured P.W.2, C.W.13 and C.W.15.Thereafter A1 led us to Rippanpet to the Someshwara Jewelleryworks shop i.e., the shop of P.W.9. A1 asked P.W.9 to produceM.Os. 1 to 3. As per the request of the accused he producedM.Os. 1 to 3 which has been pledged with him. He producedM.Os. 1 to 3 and I seized them by drawing mahazar as perEx.P-1. Ex.P-1(c) is my signature. I also took the photographsas per Ex.P-2. I have also videographed the said proceedings.I came back to the Police Station with seized property andsubjected the seized articles to P.F.No.74/2010. I also recordedthe statement of P.W.9 and C.W.15. I also kept A1 in policecustody.

5. On 14.12.2010 I secured P.W.4 and C.w.17 and thereafterA3 led us to his house at Kiranakere and there he producedthe M.O. 5 and 6 and there I seized them by drawing mahazaras per Ex.P-5. Ex.P-5(b) is my signature. I also took thephotographs. Now I see the said two photographs. The sameare now marked as Ex.P-29. There I secured P.W.5 and C.W.19and thereafter A1 led us to the house of A2 and from thefirestag he produced M.O.7 and 8 and there I seized them bydrawing mahazar as per Ex.P-6. Ex.P-6(b) is my signature.I also took the photographs as per Ex.P-7. Thereafter A1 andA3 led us to the place where they have hidden M.O.9 and 10and they went near the side of bush at Government land SurveyNo.121 at Hirekodige village and by going inside the bushA1 produced M.O.9 and A3 produced M.O.10. The same wereseized by drawing mahazar as per Ex.P-8. Ex.P-8(b) is mysignature. There I also took the photographs as per Ex.P-9and P-10. Thereafter I came back to the Police Stationalongwith A1 and A3 and seized articles and subjected theseized articles to P.F.No.75/2010 to 77/2010. On the sameday, as per my direction my constable C.W.36 secured P.W.16to the Police Station. I secured P.W.10 and C.W.23 and P.W.16

produced the mobile M.O.4 which is said to have been soldby A1 to him and the same was seized by drawing mahazaras per Ex.P-12. Ex.P-12(d) is my signature. PW.16 alsoidentified A1 by saying that he is the person who sold M.O.4to him. At the time of proceedings P.W.7 was also present. Ialso took the photographs as per Ex.P-13. Thereafter Isubjected M.O.4 to P.F.No.78/2010. I also recorded thestatement of P.W.16, further statement of C.W.5, C.W.6, P.W.1,C.W.8 and C.W.25. I also produced A1 and A3 before thecourt with remand application.”76. Keeping in mind the aforesaid evidence, we proceed to considerwhether the prosecution has been able to prove and establish thediscoveries in accordance with law. Section 27 of the Evidence Actreads thus:

“27.How much of information received from accused maybe proved.—

Provided that, when any fact is deposed to as discovered inconsequence of information received from person accusedof any offence, in the custody of police officer, so much ofsuch information, whether it amounts to confession or not,as relates distinctly to the fact thereby discovered, may beproved.”

77. The first and the basic infirmity in the evidence of all theaforesaid prosecution witnesses is that none of them have deposed theexact statement said to have been made by the appellant herein whichultimately led to the discovery of fact relevant under Section 27 of theEvidence Act.

78. If, it is say of the investigating officer that the accused appellantwhile in custody on his own free will and volition made statement thathe would lead to the place where he had hidden the weapon of offence,the site of burial of the dead body, clothes etc., then the first thing thatthe investigating officer should have done was to call for two independentwitnesses at the police station itself. Once the two independent witnesseswould arrive at the police station thereafter in their presence the accusedshould be asked to make an appropriate statement as he may desire inregard to pointing out the place where he is said to have hidden theweapon of offence etc. When the accused while in custody makes such

Astatement before the two independent witnesses (panch-witnesses) theexact statement or rather the exact words uttered by the accused shouldbe incorporated in the first part of the panchnama that the investigatingofficer may draw in accordance with law. This first part of the panchnamafor the purpose of Section 27 of the Evidence Act is always drawn atthe police station in the presence of the independent witnesses so as toBlend credence that particular statement was made by the accusedexpressing his willingness on his own free will and volition to point outthe place where the weapon of offence or any other article used in thecommission of the offence had been hidden. Once the first part of thepanchnama is completed thereafter the police party along with theCaccused and the two independent witnesses (panch-witnesses) wouldproceed to the particular place as may be led by the accused. If fromthat particular place anything like the weapon of offence or blood stainedclothes or any other article is discovered then that part of the entireprocess would form the second part of the panchnama. This is how thelaw expects the investigating officer to draw the discovery panchnamaDas contemplated under Section 27 of the Evidence Act. If we read theentire oral evidence of the investigating officer then it is clear that thesame is deficient in all the aforesaid relevant aspects of the matter.

79. In the aforesaid context, we may refer to and rely upon theEdecision of this Court in the case of Murli and Another v. State ofRajasthan reported in (2009) 9 SCC 417, held as under:

“34.The contents of the panchnama are not the substantiveevidence. The law is settled on that issue. What is substantiveevidence is what has been stated by the panchas or the personconcerned in the witness box.……”F

[Emphasis supplied]

80. One another serious infirmity which has surfaced is in regardto the authorship of concealment by the person who is said to havediscovered the weapon.G

81. The conditions necessary for the applicability of Section-27 of the Act are broadly as under:--

(1)Discovery of fact in consequence of an informationreceived from accused;H

[J. B. PARDIWALA, J.]

(2)Discovery of such fact to be deposed to;A

(3)The accused must be in police custody when he gaveinformation; and

(4)So much of information as relates distinctly to the factthereby discovered is admissible – Mohmed InayatullahBv. The State of Maharashtra: AIR (1976) SC 483

Two conditions for application: –

(1)information must be such as has caused discovery ofthe fact; and

(2)information must relate distinctly to the fact discovered- Earabhadrappa v. State of Karnataka: AIR (1983) SC446.

82. We may refer to and rely upon Constitution Bench decisionof this Court in the case of State of Uttar Pradesh v. DeomanUpadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph 71explains the position of law as regards the Section 27 of the EvidenceAct:

“71. The law has thus made classification of accused personsinto two: (1) those who have the danger brought home tothem by detention on charge; and (2) those who are yetfree. In the former category are also those persons whosurrender to the custody by words or action. The protectiongiven to these two classes is different. In the case of personsbelonging to the first category the law has ruled that theirstatements are not admissible, and in the case of the secondcategory, only that portion, of the statement is admissible asis guaranteed by the discovery of relevant fact unknownbefore the statement to the investigating authority. Thatstatement may even be confessional in nature, as when theperson in custody says: “I pushed him down such and suchmineshaft”, and the body of the victim is found as result,and it can be proved that his death was due to injuries received”by fall down the mineshaft.

A83. The scope and ambit of Section 27 of the Evidence Act wereilluminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR1947 PC 67, which have become locus classicus, in the following words:

“10. ….It is fallacious to treat the “fact discovered” withinthe section as equivalent to the object produced; the factBdiscovered embraces the place from which the object isproduced and the knowledge of the accused as to this, andthe information given must relate distinctly to this fact.Information as to past user, or the past history, of the objectproduced is not related to its discovery in the setting in whichCit is discovered. Information supplied by person in custodythat “I will produce knife concealed in the roof of my house”does not lead to the discovery of knife; knives werediscovered many years ago. It leads to the discovery of thefact that knife is concealed in the house of the informant tohis knowledge, and if the knife is proved to have been usedDin the commission of the offence, the fact discovered is veryrelevant. But if to the statement the words be added “withwhich I stabbed A” these words are inadmissible since theydo not relate to the discovery of the knife in the house of theinformant.”E84. What emerges from the evidence of the investigating officeris that the accused appellant stated before him while he was in custody,“I may get discovered the murder weapon used in the incident”.This statement does not indicate or suggest that the accused appellantindicated anything about his involvement in the concealment of theFweapon. It is vague statement. Mere discovery cannot be interpretedas sufficient to infer authorship of concealment by the person whodiscovered the weapon. He could have derived knowledge of theexistence of that weapon at the place through some other source also.He might have even seen somebody concealing the weapon, and,Gtherefore, it cannot be presumed or inferred that because persondiscovered the weapon, he was the person who had concealed it, least itcan be presumed that he used it. Therefore, even if discovery by theappellant is accepted, what emerges from the substantive evidence asregards the discovery of weapon is that the appellant disclosed that heHwould show the weapon used in the commission of offence.

85. In Dudh Nath Pandey v. State of U.P., AIR (1981) SC 911,this Court observed that the evidence of discovery of pistol at the instanceof the appellant cannot, by itself, prove that he who pointed out theweapon wielded it in the offence. The statement accompanying thediscovery was found to be vague to identify the authorship of concealmentand it was held that pointing out of the weapon may, at the best, provethe appellant’s knowledge as to where the weapon was kept.

86. Thus, in the absence of exact words, attributed to an accusedperson, as statement made by him being deposed by the investigatingofficer in his evidence, and also without proving the contents of thepanchnama, the High Court was not justified in placing reliance upon thecircumstance of discovery of weapon.

87. In the aforesaid context, we may also refer to decision ofthis Court in the case of Bodhraj alias Bodha and Others v. State ofJammu and Kashmir reported in (2002) 8 SCC 45, as under:

“18. …..It would appear that under Section 27 as it stands inorder to render the evidence leading to discovery of any factadmissible, the information must come from any accused incustody of the police. The requirement of police custody isproductive of extremely anomalous results and may lead tothe exclusion of much valuable evidence in cases where aperson, who is subsequently taken into custody and becomesan accused, after committing crime meets police officeror voluntarily goes to him or to the police station and statesthe circumstances of the crime which lead to the discovery ofthe dead body, weapon or any other material fact, inconsequence of the information thus received from him. Thisinformation which is otherwise admissible becomesinadmissible under Section 27 if the information did not comefrom person in the custody of police officer or did comefrom person not in the custody of police officer. Thestatement which is admissible under Section 27 is the onewhich is the information leading to discovery. Thus, what isadmissible being the information, the same has to be provedand not the opinion formed on it by the police officer. In otherwords, the exact information given by the accused while in

custody which led to recovery of the articles has to be proved.It is, therefore, necessary for the benefit of both the accusedand the prosecution that information given should be recordedand proved and if not so recorded, the exact information mustbe adduced through evidence. The basic idea embedded inSection 27 of the Evidence Act is the doctrine of confirmationby subsequent events. The doctrine is founded on the principlethat if any fact is discovered as search made on the strengthof any information obtained from prisoner, such discoveryis guarantee that the information supplied by the prisoneris true. The information might be confessional or non-inculpatory in nature but if it results in discovery of fact, itbecomes reliable information. It is now well settled thatrecovery of an object is not discovery of fact envisaged inthe section. Decision of the Privy Council in PulukuriKottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA65] is the most-quoted authority for supporting theinterpretation that the “fact discovered” envisaged in thesection embraces the place from which the object wasproduced, the knowledge of the accused as to it, but theinformation given must relate distinctly to that effect. (See Stateof Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269: 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, theinformation permitted to be admitted in evidence is confinedto that portion of the information which “distinctly relates tothe fact thereby discovered”. But the information to getadmissibility need not be so truncated as to make it insensibleor incomprehensible. The extent of information admittedshould be consistent with understandability. Mere statementthat the accused led the police and the witnesses to the placewhere he had concealed the articles is not indicative of the”information given.

[Emphasis supplied]

88. Mr. V.N. Raghupathy, the learned counsel for the State wouldsubmit that even while discarding the evidence in the form of variousdiscovery panchnamas the conduct of the appellant herein would berelevant under Section 8 of the Evidence Act. The evidence of discovery

would be admissible as conduct under Section 8 of the Evidence Actquite apart from the admissibility of the disclosure statement under Section27 of the said Act, as this Court observed in A.N. Venkatesh and Anotherv. State of Karnataka, (2005) 7 SCC 714:

“9. By virtue of Section 8 of the Evidence Act, the conduct ofthe accused person is relevant, if such conduct influences oris influenced by any fact in issue or relevant fact. The evidenceof the circumstance, simpliciter, that the accused pointed outto the police officer, the place where the dead body of thekidnapped boy was found and on their pointing out the bodywas exhumed, would be admissible as conduct under Section8 irrespective of the fact whether the statement made by theaccused contemporaneously with or antecedent to suchconduct falls within the purview of Section 27 or not as heldby this Court in Prakash Chand v. State (Delhi Admn.) [(1979)3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400]. Even ifwe hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible underSection 27 of the Evidence Act, still it is relevant under Section8…..”

[Emphasis supplied]

89. In the aforesaid context, we would like to sound note ofcaution. Although the conduct of an accused may be relevant factunder Section 8 of the Evidence Act, yet the same, by itself, cannot be aground to convict him or hold him guilty and that too, for serious offencelike murder. Like any other piece of evidence, the conduct of an accusedis also one of the circumstances which the court may take intoconsideration along with the other evidence on record, direct or indirect.What we are trying to convey is that the conduct of the accused alone,though may be relevant under Section 8 of the Evidence Act, cannotform the basis of conviction.

MOTIVE

90. The High Court has relied upon the strong motive for theappellant convict to commit the crime as one of the incriminatingcircumstances.

A91. In the case of Sampath Kumar v. Inspector of Police,Krishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this Court heldas under:

“29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004 SCC(Cri) Supp 85] the prosecution case was based entirely uponcircumstantial evidence and motive. Having discussed thecircumstances relied upon by the prosecution, this Courtrejected the motive which was the only remaining circumstancerelied upon by the prosecution stating that the presence of amotive was not enough for supporting conviction, for it iswell settled that the chain of circumstances should be such asto lead to an irresistible conclusion, that is incompatible withthe innocence of the accused.

30. To the same effect is the decision of this Court in SantoshKumar Singh v. State [(2010) 9 SCC 747 : (2010) 3 SCC (Cri)1469] and Rukia Begum v. State of Karnataka [(2011) 4 SCC779 : (2011) 2 SCC (Cri) 488 : AIR 2011 SC 1585] where thisCourt held that motive alone in the absence of any othercircumstantial evidence would not be sufficient to convict theappellant. Reference may also be made to the decision of thisCourt in Sunil Rai v. UT, Chandigarh [(2011) 12 SCC 258 :(2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] . This Courtexplained the legal position as follows: (Sunil Rai case [(2011)12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] ,SCC p. 266, paras 31-32)

“31. … In any event, motive alone can hardly be groundfor conviction.

32. On the materials on record, there may be some suspicionagainst the accused, but as is often said, suspicion, howsoeverstrong, cannot take the place of proof.”

31. Suffice it to say although, according to the appellants thequestion of the appellant Velu having the motive to harm thedeceased Senthil for falling in love with his sister, Usha didnot survive once the family had decided to offer Usha inmatrimony to the deceased Senthil. Yet even assuming that

the appellant Velu had not reconciled to the idea of Ushagetting married to the deceased Senthil, all that can be saidwas that the appellant Velu had motive for physicallyharming the deceased. That may be an important circumstancein case based on circumstantial evidence but cannot takethe place of conclusive proof that the person concerned wasthe author of the crime. One could even say that the presenceof motive in the facts and circumstances of the case creates astrong suspicion against the appellant but suspicion,howsoever strong, also cannot be substitute for proof of”the guilt of the accused beyond reasonable doubt.

[Emphasis supplied]

92. Thus, even if it is believed that the accused appellant had amotive to commit the crime, the same may be an important circumstancein case based on circumstantial evidence but cannot take the place asa conclusive proof that the person concerned was the author of thecrime. One could even say that the presence of motive in the facts andcircumstances of the case creates strong suspicion against the accusedappellant but suspicion, howsoever strong, cannot be substitute forproof of the guilt of the accused beyond reasonable doubt. The trialcourt rightly disbelieved motive to commit the crime as the evidence inthis regard is absolutely hearsay in nature.

93. The fact that we have ruled out the circumstances relating tothe making of an extra judicial confession and the discovery of the weaponof offence etc. as not having been established, the chain of circumstantialevidence snaps so badly that to consider any other circumstance, evenlike motive, would not be necessary.

94. Thus, in view of the aforesaid discussion, we have reached tothe conclusion that the evidence of discovery of the weapon, clothesand dead body of the deceased at the instance of the appellant convictherein can hardly be treated as legal evidence, more particularly,considering the various legal infirmities in the same.

95. For all the foregoing reasons, we have reached to theconclusion that the High Court committed error in holding the appellantconvict herein guilty of the offence of murder.

888SUPREME COURT REPORTS

[2022] 14 S.C.R.

A96. In the result, this appeal succeeds and is hereby allowed. Theimpugned judgment and order of conviction passed by the High Court ishereby set aside.

97. The appellant convict shall be set at liberty forthwith, if notrequired in any other case.B

98. Pending application, if any, also stands disposed of.

Ankit Gyan(Assisted by : Rakhi, LCRA)

Appeal allowed.