SIJU KURIAN versus STATE OF KARNATAKA

[2023] 4 S.C.R. 397

SIJU KURIAN

STATE OF KARNATAKA

(Criminal Appeal No. 64 of 2021)

APRIL 17, 2023

[SURYA KANT AND ARAVIND KUMAR, JJ.]

Penal Code, 1860: ss. 302, 201, 404 and 419 – CircumstantialEvidence – Reliance upon – Prosecution case that the accused-labourer in the farmhouse of the victim, murdered the victim by hittinghim with iron rod and then hid the dead body in pit located in thegarden – Other articles also concealed – Accused stole the articlesin the farm house and sold them as also sold the land to make unduemonetary gain – Acquittal by the trial court on the ground thatprosecution failed to prove its case beyond reasonable doubt –However, the High Court convicted and sentenced the accused forthe offence punishable u/ss. 302, 201, 404 and 419 – On appeal,held: Death of the victim being homicidal stands proved by the postmortem report – Prime witnesses as also other prosecution witnessestestified that accused last seen in the company of the victim –Recovery of dead body as also articles of the deceased on basis ofthe voluntary statement of accused, and was also proved throughthe prosecution witnesses – Articles sold by the accused wererecovered on the strength of the voluntary statement of the accused– Plea that confession statement is to be discarded in its entiretycannot be accepted – Also it cannot be said that the statement wasnot being voluntary or it was recorded improperly – Thus, theconclusion arrived at by the High Court is based on soundappreciation of evidence and proper application of law – Nomaterial irregularity in the judgment of the High Court – On re-appreciation of entire evidence by the High Court in properperspective, it was rightly held that the accused alone committedthe murder of the victim and there being no other possible viewwhich could be considered as missing in the link of chain ofcircumstances – Thus, the order passed by the High Court upheld –Evidence Act 1872 – ss. 8, 25 and 27.

CDEF

AEvidence Act, 1827: s 27 – How much of information receivedfrom accused may be proved – Held: Section 27 permits thederivative use of custodial statement in the ordinary course of events– There is no automatic presumption that the custodial statementshave been extracted through compulsion – In pursuance to avoluntary statement made by the accused, fact must be discoveredBwhich was in the exclusive knowledge of the accused alone – Insuch circumstances, that part of the voluntary statement which leadsto the discovery of new fact which was only in the knowledge ofthe accused would become admissible u/s.27 – Such statement shouldhave been voluntarily made and the facts stated therein should notChave been in the knowhow of others.

Code of Criminal Procedure, 1973: s. 378 – Appeal againstacquittal – Powers of appellate court – General principles – Stated.

Dismissing the appeal, the Court

DHELD: 1.1 It would be open for the High Court to re-apprisethe evidence and conclusions drawn by the trial court and in thecase of the judgment of the trial court being perverse that iscontrary to the evidence on record, then in such circumstancesthe High Court would be justified in interfering with the findingsof the trial court and/or reversing the finding of the trial court.EThe appellate court may reverse the order of acquittal in theexercise of its powers and there is no indication in the Code ofany limitation or restriction having placed on the High Court inexercise of its power as an appellate court. No distinction can bedrawn as regards the power of the High Court in dealing with anFappeal, between an appeal from an order of acquittal and an appealfrom conviction. The Code of Criminal Procedure does not placeany fetter on exercise of the power to review at large the evidenceupon which the order of acquittal was founded, and to reach theconclusion that upon that evidence the order of acquittal shouldbe reversed. [Para 13][411-F; 412-B-D]G1.2. The circumstantial evidence relied upon by the Stateto prove the circumstances which points to the guilt of theaccused alone for having committed the offence as summarizedby the High Court cannot be found fault with. [Para 15][413-H;414-A]H

1.3. The death of the victim being homicide stands provedby virtue of the Post Mortem report. The said report wouldindicate the death would have occurred 45-60 days prior to thepost-mortem examination. PW-22, doctor opined that the victimhad died due to brain hemorrhage that occurred because ofcommuted fracture on the forehead. The irresistible conclusiondrawn by the High Court, death of the victim was homicidal cannotbe found fault with. [Para 16][414-B, D-E]

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

1.5. The fact that accused was last seen in the company ofthe deceased is testified by PW-10 and PW-14. Apart from twoprime witnesses, PW-5, PW-7, PW-9, PW10, PW-11 and PW-15also clearly and in unequivocal terms deposed that accused waslast seen in the house of the deceased after his death. Even ifone witness amongst these is to be believed as to what has beendeposed is the truth, necessarily the onus is on the accused toprovide satisfactory explanation either in his statement recordedunder Section 313 Cr.P.C. or from the admissions elicited fromthese witnesses, the circumstances in which he was in thecompany of deceased. When PW-10 and PW-14 have clearly statedthat they had seen the accused in the company of the deceased,and there being no satisfactory explanation offered by the accusedto the contrary, it has to be necessarily held that accused hadfailed to discharge the burden cast upon him. When PW-10 andPW-14 have in clear terms deposed to have last seen the accusedwith the deceased, necessarily accused must offer an explanationas to how and when he started living separately and there beingno explanation offered necessarily in the chain of circumstances,the last seen theory propounded by the prosecution to drive homethe guilt of the accused requires to be accepted. [Para 16.5 and16.6][416-G-H; 417-A; 418-B-C]

A1.6. The prosecution relied upon is the recovery of deadbody at the instance of the accused, based on voluntary statement,which statement has been disowned by the accused and the samenot having been proved by the prosecution according to theaccused. The said statement of the accused has been marked asEx.P-2 through PW-25. The said statement was recorded in theBpresence of PW-1, CW-3 and interpreter – PW-10. [Para 17][418-D-E]

1.7. Section 27 permits the derivative use of custodialstatement in the ordinary course of events. There is no automaticpresumption that the custodial statements have been extractedCthrough compulsion. fact discovered is an information suppliedby the accused in his disclosure statement is relevant fact andthat is only admissible in evidence if something new is discoveredor recovered at the instance of the accused which was not withinthe knowledge of the police before recording the disclosureDstatement of the accused. The statement of an accused recordedwhile being in police custody can be split into its componentsand can be separated from the admissible portions. Such of thosecomponents or portions which were the immediate cause of thediscovery would be the legal evidence and the rest can be rejectedThe submission by the accused that the confession statement isEto be discarded in its entirety cannot be accepted for reasonsmore than one. Firstly, the conduct of the accused would also bea relevant fact as indicated in Section 8. [Para 18][419-A-D]1.8. It is trite law that in pursuance to voluntarystatement made by the accused, fact must be discovered whichFwas in the exclusive knowledge of the accused alone. In suchcircumstances, that part of the voluntary statement which leadsto the discovery of new fact which was only in the knowledge ofthe accused would become admissible under Section 27. Suchstatement should have been voluntarily made and the facts statedGtherein should not have been in the knowhow of others. Whenthe deposition of PW-10 is perused it would leave no manner ofdoubt that statement of the accused having been recorded beingvoluntary and when the statement is being recorded in thelanguage not known to the accused, the assistance of interpreter

if taken by the police cannot be found fault with. The ultimatetest of the said statement made by the accused having been noteddown as told by the accused or not would be of paramountconsideration. If the answer is in the affirmative then necessarilysaid statement will have to be held as passing the test of law asotherwise not. Merely because the translation was made fromMalayalam to Tamil and written down in Kannada would notsuggest that such statement be held to be either not beingvoluntary or the said statement having been recorded improperly.Merely because PW-10 did not know how to read and writeMalayalam does not ipso facto make the contents of the statementto be disbelieved. On the other hand, he states that he is fromKerala and he knows how to speak Malayalam. What was requiredto be performed by him was to pose the question as stated by thewitness to the accused and the answers given to such questionsare to be stated to the police for being recorded as stated by theaccused. In fact, there is not even suggestion made to PW-10about the contents of the statement being incorrect. [Para 19][420-B-H; 421-A]

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

1.10. The other surrounding circumstances which provethe accused being guilty of the offence beyond reasonable doubtare the recovery of the articles belonging to the deceased andsold by the accused which were recovered on the strength of the

Avoluntary statement of accused. PW-5 clearly stated as to howthe accused intended to sell the immoveable property belongingto the deceased. PW 5 has clearly deposed as to how the accusedwas apprehended by the police when he was attempting to sellthe property of the deceased. That apart the statements made bythe accused that deceased had gone to Kerala or the deceasedBhad suffered paralytic stroke or deceased had proceeded toAmerica and expired there are all incorrect and conflictingstatements as has been deposed by PW-5. The conclusion arrivedat by the High Court is based on sound appreciation of evidenceand proper application of law. On account of evidence availableCon record having been ignored and there being patent perversityin appreciation of evidence by the Sessions Judge it resulted ininterference by the High Court. No material irregularity has creptin the judgment of the High Court calling for interference. Onre-appreciation of entire evidence by the High Court in properperspective it has resulted in arriving at right conclusion viz.Dthat accused alone committed the murder of the deceased andthere being no other possible view which could be considered asmissing in the link of chain of circumstances, the appeal is devoidof merits. The judgment passed by the High Court is upheld.[Paras 21-23][428-G-H; 429-A-B, C-E]

ESharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Sheo Swarup v.King Emperor AIR 1934 PC 227; Naresh Chandra Dasv. Emperor AIR 1942 (Cal) 593; Pohalya Motya Valviv. State of Maharashtra (1980) 1 SCC 530; Anvar P.V.Fv. P.K. Basheer (2014) 10 SCC 473; Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC1; State of Karnataka v. Suvarnamma (2015) 1 SCC323 : [2014] 10 SCR 778; Pattu Rajan v State of TamilNadu (2019) 4 SCC 771 : [2019] 5 SCR 535; State ofRajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8GSuppl. SCR 501; A.N. Venkatesh & Ors. v. State ofKarnataka (2005) 7 SCC 714; Gamini Bala KoteswaraRao v. State of Andhra Pradesh AIR 2010 SC 589 :[2009] 14 SCR 1 – referred to.

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

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.64 of 2021.

From the Judgment and Order dated 20.03.2020 of the High Courtof Karnataka at Bengaluru Bench in Criminal Appeal No. 335 of 2014.

Renjith B. Marar, Zulfiker Ali P. S., Ms. Lakshmi Sree P.,GMs. Lebina Baby, Advs. for the Appellant.

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

[2023] 4 S.C.R.

AThe Judgment of the Court was delivered byARAVIND KUMAR, J.

1. This appeal under Section 2(1)(a) of the Supreme Court(Enlargement of Criminal AppellateJurisdiction) Act, 1970 by the soleaccused in Sessions Case No.96 of 2012 on the file of the Fast TrackBCourt, Sagar Taluk,arises from judgment rendered by the High Courtof Karnataka in Criminal Appeal No.335 of 2014 filed by the State ofKarnataka against the judgment of the Fast Track Court reversing theorder of acquittal and convicting the appellant for the offence punishableunder Section 302 of the Indian Penal Code (for short ‘the IPC’), 201 ofCIPC, 404 of IPC and 419 of IPC and sentencing him to simpleimprisonment for life and also sentencing to undergo simple imprisonmentfor period of 3 years/2years for the respective offences which hasbeen ordered to run concurrently and also fine.2. Brief facts of the case as putforth by the prosecution are:Daccused was working as labourer in the farmhouse of Mr. Jose Kafan(deceased) in Kerodi village of Sagar Taluk (Karnataka State) and on02.12.2011 between 6:00 am to 6:30 am, said accused had entered theroom of the deceased through the eastern side of the farmhouse whilehe was sleeping there and murdered him by hitting with iron rod on hisface, upon his left eyebrow and on his left chin with force, then stole theEarticles in the farmhouse and sold the same and also sold the land of saidfarmhouse to others to make undue monetary gain. In order to concealthe act and with deliberate intention to destroy the evidence, the accusedthen hid the dead body in pit meant for storing ash manure in thegarden land located at short distance from the farmhouse in the westernFside of the farmhouse. The iron rod used for committing the murder,waist belt of the deceased person, his pant, shirt were also concealedbelow the upper crust of soil in the gardenafter which, he had soldtheequipmentsstolen from the farmhouseto Sunil Kumar (CW-18) forconsideration and likewise he had sold other items toMr. Denis CThomas(CW20). It was alleged that said amount released by way ofGsale was dishonestly misappropriated by the accused. It is further allegedby the prosecution that accused impersonating himself as the son of thedeceased person had also attempted to sell the land of the deceased toothers and to substantiate his false claims had also handed over thedocuments of the farmhouse of the deceased to CW-15 Mr. Lizo andthereafter he had absconded.H

3. Mr. Sajid, son of the deceased lodged missing complaint andin the backdrop of information regarding the accused,inquiry wasconducted and accused confessed to the crime and showed where thedead body was concealed in the presence of witnesses. Hence, theprosecution alleged in this manner accused had murdered the father ofthe complainant, sold the belongings of the deceased and handed overthe documents of the land owned by the deceased, proclaiming himselfto be the son of the deceased and had made attempts to sell the landillegally to others. On completion of investigation the charge-sheet cameto be filed against the accused for the offences punishable under Sections302, 201, 404 and 419 of IPC for committing cognizable offence. Chargecame to be framed against the accused and same having beendeniedresulted in trial being held and in order to drive home the guilt ofthe accused prosecution got examined 25 witnesses as PW-1 to PW-25and got exhibited material evidence as per Ex.P-1 to P-51 and the materialobjects as MO1 to MO47. On conclusion of prosecution evidence, thestatement of the accused person under Section 313 of Code of CriminalProcedure, came to be recorded and accused pleaded not being guiltyand also reiterated his stand of being innocent.Learned Sessions Judgeafter having heard the arguments on both the sides formulated six points/issues of determination. The learned Trial Judge acquitted the accusedby arriving at conclusion that prosecution had failed to prove its casebeyond reasonable doubt, by judgment dated 08.08.2013. State beingaggrieved by the same filed Criminal Appeal No.-335 of 2014 assailingthe said order of acquittal contending inter alia that Sessions Judge hadfailed to appreciate the evidence and/or there is erroneous appreciationof evidence and as such the accused had to be convicted.It was alsocontended that though recoveries of the articles, namely, material objectwas at the instance of the accused and the testimony of the witnessesclearly supported the case of the prosecution, yet learned Sessions Judgehad erroneously disbelieved the case of the prosecution. It was alsocanvassed that on account of non-consideration of the evidence of thedoctor PW-22 in proper perspective it had resulted in an erroneous orderof acquittal being passed by Sessions Court. On these amongst othergrounds as urged in the appeal memorandum the State sought for reversalof the Order of acquittal passed by the Trial Court. After considering thearguments advanced by the respective learned advocates appearing forthe prosecution as well as the accused the High Court reversed thefinding recorded by the Trial Court and convicted the accused for the

Aoffence punishable under Sections 302, 201, 404 and 419 of IPC andsentenced him to life imprisonment as already noticed herein supra.Hencethis appeal.

4. We have heard the arguments of Shri. Renjith B.Mararlearnedcounsel appearing for the appellant along with Mr. Zulfiker Ali P.S,BMs. Lakshmi Sree P., Ms. Lebina Baby, Advocates for the appellant/accused and Shri V.N.Raghupathy, learned standing counsel appearingfor the State.

5. It is the contention of Shri Renjith B. Marar,learned counselappearing for the appellant that there is no direct evidence attributableCto the role of the accused and High Court has based the order of convictionon circumstantial evidence.He has contended that prosecution has notbeen able to establish the chain of events on the basis of circumstantialevidence, all leading to the one and only conclusion namely the guilt ofthe accused. He would submit that convictionhas been based solely onthe basis of confessional statement alleged to have been given by theDappellant to the police in terms of Section 27 of the Evidence Act. Thesaid evidence is not reliable and ought not to have been accepted sinceit was written in the Kannada Language which was not known to theaccused. He contended that according to the prosecution accused hadgiven confessional statement at the police station in Malayalam in theEpresence of PW-10 who translated the same to Kannada and undisputedlyPW-10 did not know how to write and read Kannada but was only ableto speak Kannada language and as such the translated version ofappellant’s alleged confession to the police could not be acceptableevidence. There being no evidence available on record as to the personwho had got it typed on computer and who had taken the printout ofFthe same was itself sufficient to disbelieve the said statement and therewas no explanation forthcoming from prosecution. On these aspects asrightly pointed out by the Trial Court,the High Court ought not to haveinterfered with the well-reasoned order of acquittal passed by the TrialCourt.G6. He also drew the attention of this Court to the evidenceof PW-

6. He also drew the attention of this Court to the evidenceof PW-10 by contending that he is close friend of other prosecution witnessesand his evidence ought not to have been considered. He would contendthat confessional statement of the accused was in printed format andthis was not typed in the presence of the accused at the police stationHand even according to the prosecution it was told by PW-10, written

down by the police and undisputedly the statement which was writtendown was not produced and as such evidence of PW-10 could not havebeen relied upon by the High Court to convict the accused.

7. He would further contend that complainant PW-4 who is theson of the deceased had stated that his father had left home in Keralalastly on 29.11.2011 and he had called his father once on 28.12.2011 toinvite him to family function which had been agreed but deceased didnot visit Kerala. He would contend that according to the prosecution thedeceased was murdered by the accused on 02.12.2011 as stated in thealleged confession statement and as per the post-mortem report, deathhad occurred 45 to 60 days prior to days of exhumation on 21.01.2012and as such the story of the prosecution as attributed to the accused isnot believable and on account of the same it caused serious doubt andthe lacuna that has crept in prosecution case has remained unexplained,which was fatal to the prosecution story.8. He would further contend that prosecution has mainly reliedupon 3 witnessesnamely PW-1 (mahazar witness), PW-2 (inquestwitness) and PW-10 (the person who translated the revelations ofaccused) to prove the recovery of material objects (MO’s) allegedlystolen by the accused from the farmhouse of the deceased.By taking usto the deposition of these witnesses he would contend that they areclose friends residing in neighbourhood and all these three witnesseshad witnessed the recoveries and attested the seizure measure and inquestreport and as such they have to be treated as stock witnesses brought inat the instance of the prosecution and same ought to have been discardedas not being trustworthy. He would also contend that story of theprosecution is that accused was an employee in the farmhouse of thedeceased which had not been proved. He would submit that prosecutionhad failed to prove the chain of circumstances including the last seentheory. He would contend that very fact of accused having denied allthe allegations put against him when he was examined under Section313 of Code of Criminal Procedure (for short ‘the Cr.P.C.’) includingthe recovery of the dead body and other material objects at his instancewas sufficient to accept the stand of the accused by arriving at aconclusion that prosecution had failed to prove the guilt of the accusedbeyond reasonable doubt.

8.1 He would contend that the case of the accused was that whenhe was brought to the spot by the police there were already some people

Astanding exactly at the spot where the dead body was exhumed andaccused had not pointed out the spot to the police and the spot wasknown to the police even before the arrest of the accused. Hence, HighCourt ought not to have put the burden to disprove the prosecution case.He would contend that the two employees who were working in thefarmhouse of the deceased were missing and there was no explanationBwhatsoever forthcoming from the prosecution in this regard and thiscast serious doubt with regard to the alleged act of the deceased. Hewould contend that the CDR of the accused’s mobile was not securedand produced by way of evidence by prosecution which was fatal to theprosecution case.C

8.2 He would contend that the alleged confessional statement Ex.P-2 is to be segregated into two parts: namely recovery of dead bodyand articles and in which statement was undisputedly before the policeand as such inadmissible. He would also elaborate the submissions bycontending that when the findings of the trial court cannot be held asDperverse or not possible to be arrived at, necessarily the benefit shouldbe extended to the accused as held by catena of Judgments of this Courtand as such he has prayed for affirming the order of acquittal passed bythe Trial Court which has since been reversed by the High Court. Hewould contend that on suspicion, conviction cannot be sustained and theprosecution had failed to prove the guilt of the accused beyond allEreasonable doubt and by relying upon the following judgments he praysfor allowing of the appeal and restoring the judgment passed by the TrialCourt:

(i) Sharad Birdhichand Sarda v. State of Maharashtra(1984)4 SCC 116,F

(ii) Sheo Swarup v. King Emperor AIR 1934 PC 227,

(iii) Chandrappa and others v. State of Karnataka (2007) 4SCC 415,

(iv) Murugesan v. State through the Inspector of Police (2012)G10 SCC 383,

(v) Naresh Chandra Das v. EmperorAIR 1942 (Cal) 593,

(vi) Pohalya Motya Valvi v. State of Maharashtra (1980) 1 SCC530,

(vii) Anvar P.V. v P.K. Basheer(2014) 10 SCC 473,

(viii) Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal(2020) 7 SCC 1.

Per contra Shri V. N. Raghupathy, learned standing counselappearing by the State would support the judgment passed by the HighCourt. He would submit that when learned Sessions Judge had failed tolook into the evidence available before it or had erroneously appreciatedthe available evidence it had resulted in appellate court exercising itsjurisdiction to reverse the said findings for which the reasonings havebeen assigned while recording the findings. He would submit that onreappreciation of the evidence the appellatecourt has formed an opinionthat there had been non-appreciation of available material on record andhas discussed the same threadbare.

9. He would submit that material witnesses namely the witnessesto the seizure mahazar PW-3, PW-9, PW-11 had remained unshakenand there being no explanation forthcoming in the statement of theaccused recorded under Section 313 of Cr.P.C.,the High Court has rightlynoticed that this material evidence had been ignored by the Trial Courtand on account of said uncontroverted evidence available on record ithas proceeded to accept the same and convict the accused which findingdoes not suffer from the vice of error. He would draw the attention ofthe court to the evidence of PW-5 who is the friend of the accused whohas spoken about the rubble tapping machines being sold to Mr. Babu(PW-11) namely brother in law-Mr. Lijo(PW-5) under the agreementprepared by the advocate PW-15. He would contend that said witnesshas also spoken about Ex.P-15 under which MO23 to 32 had been seizedwhich are said to have been given by the accused, thus supporting thecase of the prosecution and by contending that the High Court has onre-appreciation of evidence had rightly formed an opinion that the TrialCourt had ignored the material evidence and as such prays for sustainingthe judgment of the High Court which had reversed the finding of theTrial Court whereby the accused had been acquitted. In support of hissubmissions he has relied upon the following judgments:

(i) State of Rajasthan v Kashi Ram (2006) 12 SCC 254

(ii) A.N. Venkatesh & Ors. v State of Karnataka (2005) 7 SCC714

A(iii) State of Karnataka v Suvarnamma (2015) 1 SCC 323

(iv) Pattu Rajan v State of Tamil Nadu (2019) 4 SCC 771.

(v) Arjun Panditrao Kotkar v Kailash (2020) 7 SCC 1.

10. Having heard the learned Advocates appearing for the partiesBand after bestowing our careful and anxious consideration to the rivalcontentions raised at the bar, we are of the considered view that thefollowing points could arise for our consideration:

(a) Whether the judgment of the High Court reversing the findingof the Trial Court is to be set aside on the basis of there being twoCpossible views and the one taken by Trial Court being possibleview?

(b) Whether the judgment of the High Court is erroneous and thefindings recorded by the Trial Court has been erroneously reversedby High Court while re-appreciating the said evidence?

DOr

(c) Whether the High Court has appreciated the evidence in propermanner or the High Court had failed to consider the evidence inproper perspective?

DISCUSSION AND FINDINGE

11. As the points formulated hereinabove are interlinked andfindings being recorded are likely to overlap with each other, we haveconsidered the above points conjointly and answered hereinbelow:

RE: POINTS 1 TO 3

12. One of the main contentions raised by the learned counselappearing for the appellant is to the effect that High Court ought not tohave interdicted with the judgment of the acquittal passed by the TrialCourt and only in the event of judgment of the trial court was riddledwithperversity and the view taken by the Trial Court was not possible view,Gsame could have been reversed by relying upon the judgment of thisCourt in case of Murugesan V. State through the inspector of police[1]whereunder it came to be held as follows:

“33. The expressions “erroneous”, “wrong” and “possible” aredefined in Oxford English Dictionary in the following terms:

H1(2012) 10 SCC 383

“erroneous.— wrong; incorrect.wrong.—(1) not correct or true, mistaken.

(2) unjust, dishonest, or immoral.

possible.—(1) capable of existing, happening, or being achieved.

(2) that may exist or happen, but that is not certain or probable.”

34. It will be necessary for us to emphasize that possible viewdenotes an opinion which can exist or be formed irrespective ofthe correctness or otherwise of such an opinion. view taken bya court lower in the hierarchical structure may be termed aserroneous or wrong by superior court upon mere disagreement.But such conclusion of the higher court would not take the viewrendered by the subordinate court outside the arena of possibleview. The correctness or otherwise of any conclusion reached bya court has to be tested on the basis of what the superior judicialauthority perceives to be the correct conclusion. possible view,on the other hand, denotes conclusion which can reasonably bearrived at regardless of the fact where it is agreed upon or not bythe higher court. The fundamental distinction between the twosituations have to be kept in mind. So long as the view taken bythe trial court can be reasonably formed, regardless of whetherthe High Court agrees with the same or not, the view taken by thetrial court cannot be interdicted and that of the High Courtsupplanted over and above the view of the trial court.”

13. It need not be restated that it would be open for the HighCourt to re-apprise the evidence and conclusions drawn by the TrialCourt and in the case of the judgment of the trial court being perversethat is contrary to the evidence on record, then in such circumstancesthe High Court would be justified in interfering with the findings of theTrial Court and/or reversing the finding of the Trial Court. In GaminiBala Koteswara Rao Vs. State of Andhra Pradesh[2 ]it has been heldby this Court as under:

“14. We have considered the arguments advanced and heard thematter at great length. It is true, as contended by Mr. Rao, thatinterference in an appeal against an acquittal recorded by the trialcourt should be rare and in exceptional circumstances. It is,

2 AIR 2010 SC 589

412SUPREME COURT REPORTS

Ahowever, well settled by now that it is open to the High Court toreappraise the evidence and conclusions drawn by the trial courtbut only in case when the judgment of the trial court is stated tobe perverse. The word “perverse” in terms as understood in lawhas been defined to mean “against the weight of evidence”. Wehave to see accordingly as to whether the judgment of the trialBcourt which has been found perverse by the High Court was infact so.

The Appellate court may reverse the order of acquittal in theexercise of its powers and there is no indication in the Code of anylimitation or restriction having placed on the High Court in exercise of itsCpower as an Appellate court. No distinction can be drawn as regards thepower of the High Court in dealing with an appeal, between an appealfrom an order of acquittal and an appeal from conviction. The Code ofCriminal Procedure does not place any fetter on exercise of the powerto review at large the evidence upon which the order of acquittal wasDfounded, and to reach the conclusion that upon that evidence the orderof acquittal should be reversed.

In the case of Sheo Swarup v King Emperor[3], it has been heldby the Privy Council as under:

But in exercising the power conferred by the Code andEbefore reaching its conclusions upon fact, the High Court shouldand will always give proper weight and consideration to suchmatters as:

1) The views/opinion of the trial judge as to the credibility of thewitnesses;F2) The presumption of innocence infavour of the accused;

3) The right of the accused to the benefit of any doubt; and

4) The slowness of an appellatecourt in disturbing finding offact arrived at by judge who had the advantage of seeing theGwitnesses.

14. This Court has time and again reiterated the powers of theAppellate Court while dealing with the appeal against an order of acquittal

and laid down the general principles in the matter of Chandrappa andOthers Vs. State of Karnataka[4] to the following effect:

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

(1) An Appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittal isfounded.

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

(3) Various expressions, such as, “substantial and compellingreasons”, “good and sufficient grounds”, “very strongcircumstances”, “distorted conclusions”, “glaring mistakes”, etc.are not intended to curtail extensive powers of an Appellate courtin an appeal against acquittal. Such phraseologies are more in thenature of “flourishes of language” to emphasise the reluctance ofan Appellate court to interfere with acquittal than to curtail thepower of the court to review the evidence and to come to its ownconclusion.

(4) An Appellate court, however, must bear in mind that incase of acquittal, there is double presumption in favour of theaccused. Firstly, the presumption of innocence is available to himunder the fundamental principle of criminal jurisprudence that everyperson shall be presumed to be innocent unless he is proved guiltyby competent court of law. Secondly, the accused having securedhis acquittal, the presumption of his innocence is further reinforced,reaffirmed and strengthened by the trial court.

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

15. In the aforesaid background the circumstantial evidence reliedupon by the State to prove the circumstances which points to the guilt of

Athe accused alone for having committed the offence as summarized bythe High Court cannot be found fault with, for reasons indicatedhereinbelow:

16. The death of Mr. Jose Kafan being homicide stands provedby virtue of the Post Mortem report Ex.P-41 which was conducted onB21.01.2012. The said report would indicate the death would have occurred45-60 days prior to the post-mortem examination. PW-22, the Doctorwho conducted the post-mortem of the dead body, Doctor Keertiraj inhis examination in chief held on 26.03.2013 has opined thus:

“A lacerated wound on left eyebrow measuring 2 inches (length)CX 2 ½ inches (width) was found and the edges of the said woundwas found to be lacerated. There was commuted fracture onfrontal bone that comes under the said wound. Below the left eyei.e., in the maxilla bone part, swollen wound was found that meanssome blood clotting mark was found measuring 2 ½ inches (length)X 1 ½ inches (width).”D

PW-22 has opined that Mr. Jose Kafan had died due to brainhemorrhage that occurred because of commuted fracture on theforehead. In that view of the matter and also there being no seriousdispute on this issue,the irresistible conclusion drawn by the High Court,death of Mr. Jose Kafan was by homicidal cannot be found fault with.E

16.1 The contention of the learned counsel for the accused that itis not possible to state conclusively as to what had exactly happened,due to lack of eye-witnesses and therefore the possibility of the deceasedhaving fallen and suffered an injury cannot be ruled out is an argumentwhich cannot be accepted and finding recorded by the High CourtFdeserves to be affirmed.

16.2 One another circumstance in the chain which came to berelied upon by the prosecution is with regard to the “last scene theory”.Thecase of the prosecution is that deceased Mr. Jose Kafan was living inhis garden land at Kerodi village and was carrying on agricultural activitiesGin survey No.48 and 49. It is also the case of the prosecution that deceasedhad constructed house in the garden land itself and was residing therein.The son of the deceased who came to be examined as PW-4 has deposedin unequivocal terms that he had been informed by his father that anadvertisement had been given in the newspaper ‘Deepika’ about therequirement of worker and pursuant to the same accused had appliedH

and he had been taken for work. He has identified the newspaper asEx.P-28 and the relevant advertisement as Ex.P-8(a).

16.3 Contending that prosecution had failed to prove that accusedhad been employed by the deceased and neither PW-4 nor any otherwitnesses namely PW-5, PW-6, PW-7, PW-8, PW-9, PW-11 and PW-12 had deposed that they have seen the appellant working in the gardenland of the deceased. It is contended that accused and deceased werenever seen together and the finding recorded by the Trial Court is wellreasoned and particularly the finding recorded at paragraphs 14, 15, 16and same ought not to have been interfered by the High Court is anargument at first blush looks attractive but on deeper examination itbelies the truth as noticed by High Court. The fact that accused was lastseen in the company of the deceased is testified by PW-10 and PW-14.PW-10 in his examination in chief dated 26.02.2013 has stated to thefollowing effect.“I have been residing in Sagar since 1962. I am driving autorikshaw from the past 23 years. I have the acquaintance of JoseKafan and he belongs to Kerala. When an auto driver, who knewMalayalam, was required in the auto stand I was shown and I andKafan have acquaintance of nearly 5-6 years. When he requiredauto rikshaw, he used to call me. I used to drop him to his farmland. I know where the land of Kafan is situated. The witnesswas shown Ex.P.31 and 32 and he identified the person wearingpurple colour shirt as Jose Kafan. People used to go to the landfor working. I have seen the accused in the place of Kafan.The accused was worker there.

On 21.01.2012, Dafedar namely Sundar told me that he wantssomeone who knew Malayalam and requested to go with him inorder to do translation from Malayalam language. I went to SagarRural station. I was taken to the station and Dy.S.P Was there inthe station.” The accused was shown to me and asked whether Ihave acquaintance of the accused and I have identified theaccused and stated that he was working in the garden landof Kafan.The police showed xxx informed to the police.Theaccused stated that on 02.12.2011 when Kafan was sleeping at6:00-6:30 in his house in the garden land, I killed him by assaultingon his head with an iron rod. Half an hour later when I lifted hishand and dropped, it fell downwards and later I got confirmed

Athat he is dead and then wrapped his dead body using bedsheetand buried. He has stated that there was compost pit behind thehouse and he has buried the dead body in that compost pit only.He told that after burying his dead body he was residing thereonly. He stated that he murdered in order to gain money by sellingthe equipments. He also told that he even thought of selling theBland. The accused told that he would show the place where hehas buried the dead body and would show the people to whom hehas sold the equipments.

16.4 PW-14 is another witness whose testimony has been placedreliance by the High Court in the chain of circumstances namely lastCseen theory. In his examination in chief dated 12.03.2013, PW-14 hasstated to the following effect:

“I basically xxx industries. I have the acquaintance of DeepakGowda who works by taking JCB for rent. Deepak did not knowMalayalam and Kafan did not know Kannada and thereforeDDeepak Gowda took me to talk about the money for JCB andabout work. Then I got the acquaintance of Kafan. The witnesswas shown Ex.P.31 and 32 and he identified the person wearingpurple colour shirt asMr. Jose Kafan.After that we had been tohis garden land. He told me that he wanted workers as there areEno workers to work in his garden land. Therefore, I got workerfor him but he went back to Kerala saying he is not feelingcomfortable. Later an advertisement was given in the month ofSeptember 2011 through which he got worker. That workerwas there in the house when we went there. The witnessidentifies that person who was with Mr. Jose Kafan as theFaccused. Mr. Jose Kafan told that he does not have any identitycard of this place and asked to get SIM for his workers bygiving my own address. Accordingly I got SIM card to him.”

16.5 Apart from these two prime witnesses, PW-5, PW-7, PW-9,PW-10, PW-11 and PW-15 have also clearly and in unequivocal termsGdeposed that accused was last seen in the house of the deceased afterhis death. Even if one witness amongst these is to be believed as to whathas been deposed is the truth, necessarily the onus is on the accused toprovide satisfactory explanation either in his statement recorded underSection 313 of Cr.P.C. or from the admissions elicited from theseHwitnesses, the circumstances in which he was in the company ofdeceased. When PW-10 and PW-14 have clearly stated that they hadseen the accused in the company of the deceased, and there being nosatisfactory explanation offered by the accused to the contrary, it has tobe necessarily held that accused had failed to discharge the burden castupon him. Section 106 of the Evidence Act clearly lays down that whenany fact is specially within the knowledge of person, the burdenapproving that fact is upon him namely, on such person. This Court in acase of State of Rajasthan Vs. Kashiram[5] has held:

“16. The most important circumstance that the respondent waslast seen with the deceased on 3-2-1998 whereafter he haddisappeared and his house was found locked and that he hadoffered no explanation whatsoever, was disposed of by the HighCourt in one short paragraph observing that there was nothingunusual if the accused was seen in the company of his own familymembers in his house. On such reasoning, the High Court heldthat the circumstantial evidence relied upon by the prosecutionwas not strong enough to sustain the conviction of the respondent.Accordingly, the High Court allowed the appeals preferred by therespondent and declined the death reference made by the trialcourt for confirmation of the sentence of death.”

“23. It is not necessary to multiply with authorities. The principleis well settled. The provisions of Section 106 of the Evidence Actitself are unambiguous and categoric in laying down that whenany fact is especially within the knowledge of person, the burdenof proving that fact is upon him. Thus, if person is last seen withthe deceased, he must offer an explanation as to how and whenhe parted company. He must furnish an explanation which appearsto the court to be probable and satisfactory. If he does so he mustbe held to have discharged his burden. If he fails to offer anexplanation on the basis of facts within his special knowledge, hefails to discharge the burden cast upon him by Section 106 of theEvidence Act. In case resting on circumstantial evidence if theaccused fails to offer reasonable explanation in discharge of theburden placed on him, that itself provides an additional link in thechain of circumstances proved against him. Section 106 does notshift the burden of proof in criminal trial, which is always upon

Athe prosecution. It lays down the rule that when the accused doesnot throw any light upon facts which are specially within hisknowledge and which could not support any theory or hypothesiscompatible with his innocence, the court can consider his failureto adduce any explanation, as an additional link which completesthe chain. The principle has been succinctly stated in Naina Mohd.,BRe. [AIR 1960 Mad 218 : 1960 Cri LJ 620]”

16.6 Thus, when PW-10 and PW-14 have in clear terms deposedto have last seen the accused with the deceased, necessarily accusedmust offer an explanation as to how and when he started living separatelyand there being no explanation offered necessarily in the chain ofCcircumstances, the last seen theory propounded by the prosecution todrive home the guilt of the accused requires to be accepted.

17. Yet another circumstance which the prosecution has heavilyrelied upon is the recovery of dead body at the instance of the accused,based on voluntary statement, which statement has been disowned byDthe accused and the same not having been proved by the prosecutionaccording to the learned counsel appearing for the accused.The saidstatement of the accused has been marked as Ex.P-2 through PW-25.The said statement was recorded in the presence of Mr. BalakrishnaGuled PW-1, Mr. Raju CW-3 and interpreter Mr. Kunjali, PW-10.

17.1. It has been contended that procedure adopted in askingquestions, eliciting answers from the appellant-accused has been spokento by PW-10 Mr. Kunjali who states that he did not know how to readand write Malayalam and yet police had asked him questions in Kannadawho in turn had translated into Malayalam and elicited answers fromFaccused in Malayalam and said answer was translated into Tamil byPW-10 and same was typed out in Kannada by the police which is anunusual method of recording the confession of an accused and as suchconfession statement Ex.P-2 was not admissible evidence underSection27 of the Evidence Act. To examine said contention we deem it properto extract Section 27 of the Evidence Act and itreads:G

“27. How much of information received from accused maybe proved. —Provided that, when any fact is deposed to asdiscovered in consequence of information received from personaccused of any offence, in the custody of police officer, somuch of such information, whether it amounts to confession or

not, as relates distinctly to the fact thereby discovered, may beproved.”

18. Section 27 permits the derivative use of custodial statement inthe ordinary course of events. There is no automatic presumption thatthe custodial statements have been extracted through compulsion. Afact discovered is an information supplied by the accused in his disclosurestatement is relevant fact and that is only admissible in evidence ifsomething new is discovered or recovered at the instance of the accusedwhich was not within the knowledge of the police before recording thedisclosure statement of the accused. The statement of an accusedrecorded while being in police custody can be split into its componentsand can be separated from the admissible portions. Such of thosecomponents or portions which were the immediate cause of the discoverywould be the legal evidence and the rest can be rejected vide MohmedInayatullah Vs. State of Maharashtra[6]. In this background when weturn our attention to the facts on hand as well as the contention raised bythe accused that the confession statement is to be discarded in its entiretycannot be accepted for reasons more than one. Firstly, the conduct ofthe accused would also be relevant fact as indicated in Section 8. Thiscourt in A.N. Venkatesh & another. Vs. State of Karnataka[7] has heldto the following effect:

“9. By virtue of Section 8 of the Evidence Act, the conduct of theaccused person is relevant, if such conduct influences or isinfluenced by any fact in issue or relevant fact. The evidence ofthe circumstance, simpliciter, that the accused pointed out to thepolice officer, the place where the dead body of the kidnappedboy was found and on their pointing out the body was exhumed,would be admissible as conduct under Section 8 irrespective ofthe fact whether the statement made by the accusedcontemporaneously with or antecedent to such conduct falls withinthe purview of Section 27 or not as held by this Court in PrakashChand v. State (Delhi Admn.) [(1979) 3 SCC 90: 1979 SCC (Cri)656 : AIR 1979 SC 400]. Even if we hold that the disclosurestatement made by the accused-appellants (Exts. P-15 and P-16)is not admissible under Section 27 of the Evidence Act, still it isrelevant under Section 8. The evidence of the investigating officer

6 AIR 1976 SC 483

7 (2005) 7 SCC 714

Aand PWs 1, 2, 7 and PW-4 the spot mahazar witness that theaccused had taken them to the spot and pointed out the placewhere the dead body was buried, is an admissible piece of evidenceunder Section 8 as the conduct of the accused. Presence of A-1and A-2 at place where ransom demand was to be fulfilled andtheir action of fleeing on spotting the police party is relevantBcircumstance and are admissible under Section 8 of the EvidenceAct.

19. It is trite law that in pursuance to voluntary statementmade by the accused, fact must be discovered which was in theexclusive knowledge of the accused alone. In such circumstances, thatCpart of the voluntary statement which leads to the discovery of newfact which was only in the knowledge of the accused would becomeadmissible under Section 27. Such statement should have been voluntarilymade and the facts stated therein should not have been in the knowhowof others. In this background when the deposition of PW-10 is perused itDwould leave no manner of doubt in our mind that statement of the accused(Ex.P-2) having been recorded being voluntary and when the statementis being recorded in the language not known to the accused, the assistanceof interpreter if taken by the police cannot be found fault with. Theultimate test of the said statement made by the accused having beennoted down as told by the accused or not would be of paramountEconsideration. If the answer is in the affirmative then necessarily saidstatement will have to be held as passing the test of law as otherwisenot. Merely because the translation was made from Malayalam to Tamiland written down in Kannada would not suggest that such statement beheld to be either not being voluntary or the said statement having been

Frecorded improperly. The interpreter having entered the witness boxand tendered himself for cross-examination which resulted in nothingworthwhile having been elicited for discarding his evidence,it cannot begainsaid by the accused that said statement at Ex.P-2 is to be ignored orrejected or discarded. Merely because PW-10 did not know how to readand write Malayalam does not ipso facto make the contents of Ex.P-2Gto be disbelieved. On the other hand, he states that he is from Keralaand he knows how to speak Malayalam. What was required to beperformed by him was to pose the question as stated by the witness tothe accused and the answers given to such questionsare to be stated tothe police for being recorded as stated by the accused. In fact, there isH

not even suggestion made to PW-10 about the contents of Ex.P-2being incorrect.

20. It is pursuant to this voluntary statement as per Ex.P-2 whichlead the police to recover the body of the victim from the compost pit,which has been proved through PW-1, PW-2, PW-4, PW-10 and PW-25. Their admissions read as under:

PW-1:“I will show the place where I have murdered Jose CKafanwith an iron rod and the place where I haveburied his dead bodyin the pit.

PW-2:”On 21.01.2012, I had been to Kerodi Village due to somepersonal work. Tahsildar and police were going there in jeep. Igreeted Tahsildar. He told me that case is there and asked meto accompany him. The accused showed place there. He showeda place and told that there is dead body in compost pit situatednext to lemon tree and told that he has closed it. I, Devendra andShivu opened the pit. While digging the pit, cloth was found andwhile removing the mud blanket was found after cloth and againwhile removing the mud slowly dead body wrapped with blanketwas found.”PW-4:”I have told Stanie that my father has not expired.Immediately, I and my brothers Ajith and Ranjith came to Kerodivillage with K.K. Shaabu of Kundapura. When we went to thatplace, neither my father nor the workers were there. Immediatelywe went to the rural Police Station of Sagar and lodged complaints.I have not lodged complaint about missing. We went to the stationon 21[st] the Police were investigating Siju Kurian. The witnessshowed the accused and identified him as Siju Kurian. The accusedhas stated before the police that he has killed my father byassaulting with an iron rod on his head and has buried in pit bywrapping the dead body with blanket. The accused told that hewould show the place where he had buried the dead body andhence led us and showed the place where he had buried the deadbody. The accused has shown the place of incident occurred. Hetook us to the place and showed the place my father was sleeping.

Later he showed us the place where the dead body wasburied. Then, before the presence of Tahasildar, the dead bodywas exhumed.”

PW-10:”On 21.01.2012, Dafedar namely sundar told me thathe wants someone who knew Malayalam and requested to gowith him in order to do translation form Malayalam language. Iwent to Sagar Rural station. I was taken to the station and Dy.S.Pwas there in the station. The accused was shown to me and askedwhether I have the acquaintance of the accused and I identifiedthe accused and stated that he was working in the garden land ofKafan. The Police showed the accused and told me that he doesnot know Kannada and told me to ask him about Jose Kafan. Iused to ask the accused in Malayalam in the manner in which thepolice wanted to ask and the reply given by the accused is translatedinto Tamil (Translator’s note: In the original document it is writtenTamil and the word is underlined.) and informed to the police.The accused stated that “on 02.12.2011 when Kafan was sleepingat 6-6:30 in his house in the garden land, I killed him by assaultingon his head with an iron rod. Half an hour later when I lifted hishand and dropped, it fell downwards and later I got confirmedthat he is dead and then wrapped his dead body using bed sheetand buried”. He has stated that there was compost pit behindthe house and he has buried the dead body in that compost pitonly. He told that after burying the dead body he was residingthere only. He stated that he murdered in order to gain money byselling the equipments. He also told that he even thought of sellingthe land.

The accused told that he would show the place where hehas buried the dead body and would show the people to whom hehas sold the equipments.”

PW-25:In his statement, he had admitted about committing theoffence and stated that he would show the place where the deadbody was buried.

It is no doubt true that aforesaid confession of PW-25 in itsentirety is not admissible in view of Section 25 of the EvidenceAct. However, in the teeth of Section 8 read with Section 27 ofthe Evidence Act, that part of the confession which led to therecovery of the dead body of the victim would becomeadmissible,apart from other articles of the deceased recovered atthe instance of the accused has been identified by severalwitnesses independently.This has also persuaded the High Court

to accept the statement recorded under Ex.P-2 as being admissiblewhich cannot be construed as highly improbable. Certain articleswere recovered on the strength of confession statement – Ex.P-2 made by the accused and in order to prove such recovery thewitnesses who have been examined by the prosecutionhavedeposed to the following effectand this has also persuadedus to accept the findings of the High Court.

(a)PW-3- Mr. Raghavendra (Panch witness) has deposed asunder:

“… When Lijo came out the police enquired as to whetherthe accused has given him any items, for which Lijo admittedand told that he has given him certain items. Lijo producedthe said items before the police. Lijo produced almirah,suitcase, basket and spade. Lijo produced almirah, suitcase,basket and spade. He totally produced 4 baskets…”

(b)PW-9 Mr. Sunil Kumar in his evidence has stated that-

“When we went to Kafan’s land, the accused was there.The accused told in Malayalam that we would sell theequipments and Keriyappa understood little bit ofMalayalam. He told that rubber roller machine is for sale.Since the price of it was costly, I refused to buy and whenwe were returning, he had piled up the equipments in frontof the house. He told that he would sell that too. He wroteand showed the price of those equipments as Rs. 2,500/-. Iwrote and showed Rs. 2,000/-. The accused agreed for itand sold the equipments. We purchased it. I have purchased12 spades, one iron rod, and one handsaw, two water drumswherein one had lid and the other one was not having andpest control spraying machine…”

(c)PW-10-Kunjali has stated that-

“… Police and Panchas were there when I went to thestation and accused and also there. From there the accusedled us to Bheemaneri. I do not remember the name of theperson to whose house he took us. I have translatedwhatever the accused has spoken from Malayalam toKannada language. One almirah, suitcase, Bank cheque

book and pass book, 4-5 baskets and one spade anddocuments were there in that place and he has identified itand they have been marked as M.O.23-32…”

(d)PW-12- Denny C.Thomas in his deposition has stated that-

“I have the acquaintance of Lijo. I was in need of watertank and have informed this matter to Lijo. He informedme that one water tank is for sale. It was an old watertank. Later Lijo took me to the garden land of Jose Kafanand showed the water tank. He charged Rs. 15,000/- but Itold I would give Rs. 12,000/-. Lijo agreed for that. All thesehappened in the month of December 2011. Later I gaveRs. 12,000/- and purchased the water tank. I gave that toSebastian as he asked to preserve water for marriage.”

20.1 In fact, accused had sold the rubber rolling machines for asum of Rs.27,000 in favour of PW-11, which came to be marked as MO43 and MO 44. The factum of sale of MO43 and MO 44 has also beenDproved through PW-5. It would be apt and appropriate to extract thedeposition of PW-5 which is to the following effect:

PW-5:“On 08.12.2011 in the evening Babu called me over phoneand told me that rubber roller machine is for sale in Lingadahalliand he is thinking of purchasing it. He asked my suggestion becausethe cost of that machine was Rs. 30,000/-. I told him not to buyimmediately but to buy the next day after preparing an agreementwith the advocate.

Later all three of us namely I, Babu and the accused Binu went toLingadahalli. There we went to the house of Uday Kumar, whowas an advocate. My brother-in-law knew him and he wasrequested to prepare an agreement regarding the purchase ofroller machine.

He took us to the garden land of Jose Kafan and had shown therubber roller machine. At that time, it was dark. Later we went tothe hose of Babu in the same auto. We took machine in the autoand kept in Babu’s house. I enquired about Jose Kafan with theaccused. He told that he is unwell and hence he is in the hospitalin Kerala and he cannot move his hands and legs and can onlymove his head and hence he is in Ernakulam Hospital.”

PW-7: “I asked whether the owner is doing fine and the accusedtold that he is doing fine and had gone to Kerala. He informedabout rubber machine and asked me only to purchase it. I toldthat I do not want it and would inform him about people whowants to purchase it. I told I need the owner for that dealing. Atthat time the accused told that the owner is not keeping well. Hetold that money is required for his treatment only for which he isselling it. Therefore, the next day I and Sunil Kumar went to theGarden land of Jose Kafan. We saw the rubber roller machine.The accused told that the cost of it is Rs. 50,000/- We asked forRs. 30,000/-. We did not buy it but came back.”

20.2 In fact the land belonging to the deceased was attempted tobe sold by the accused to PW-5 and the uncontroverted evidence that isavailable on record is to be following effect below:

PW-5:‘‘He told that they will not do any agricultural activitiesand want to sell property and asked me to inform whether anybodywants to buy it. I agreed for that and told that I would inform ifany party is ready to buy it. He told that Binu does not knowKannada and did not have the acquaintance of anyone. Therefore,he asked me to keep and preserve the records.

PW-8: “He has identified the person wearing purple colour shirtas Jose Kafan. In the month of December 2011, Bisu had toldthat 4 ½ acres of farm land of Kafan is for sale. Lijo had told Bisuabout this. In order to obtain advice regarding the purchase of thesaid farm land, I, Lijo and my brother-in-law Bisu met Nagaraj,who is an advocate. Lijo had the documents.

The advocate examined the documents. Lijotold that Mr.Jose Kafan has expired. By looking at the documents, advocatetold that the death certificate of Kafan is required and foridentification purpose his ID card or License is required andKafan’s son has to come in order to sell the land. Later we wentto bus stand from the house of advocate. I also went to the busstand. Lijo and Bisu went in bike. Later, after 5 minutes Lijo madea phone call to me and told me to be in bus stand only sayingKafan’s son had called and they could talk directly with him. Theycame to bus stand. They made phone call and gave mobile tome. The person who made phone call asked to give advance

amount of one lakh rupees to Binu. The person who made phonecall stated that he is Kafan’s son Sajith. He told that the value ofland is 10 lakhs. I told that I would get the advance amount toKerala. At that time he asked me to give advance amount toBinu. Lijo asked for commission. He asked to give one lakh rupeesto Lijo. Around 2-3 days after this, my brother-in-law Bisu hadbeen to Mankalale, where Kolathur Jose was residing. He is therelative of Jose Kafan.

Lijo told Kolathur Jose that Jose Kafan has expired and hissons are selling his land. Then Kolathur Jose told that Jose Kafanis not dead and he would talk to Kafan’s children and let us knowabout it.”

PW-9:‘‘When we went to Kafan’s land, the accused was there.The accused told in Malayalam that he would sell the equipmentsand Keriyappa understood little bit of Malayalam language.Keriyappa explained by understanding little bit of Malayalam. Hetold that rubber roller machine is for sale. Since the price of it wascostly, I refused to buy and when we were returning, he had piledup the equipments in front of the house. He said that he would sellthat also. He wrote and showed the price of those equipments asRs. 2,500/- I wrote and showed Rs. 2,000/-. The accused agreedfor it and sold the equipments. We purchased it. I have purchased12 spades one iron rod, one handsaw, two water drums whereinon had lid and the other one was not having and pest controlspraying machine. We shifted all the items and I gave the drumthat had no lid to Keriyappa. I took the remaining.”

PW-11:“In the month of December 2011, it was told about rubberroller machine. It was told that the machine is there in someone’shouse at Kerodi. I and Sunil Kumar went to see the machine andthe accused was there in that place. The accused disclosed hisname as Binu. He introduced himself as the son of Kafan’syounger brother. He said that the rubber roller machine is on saleand informed that its cost is Rs. 30,000/-. I agreed to purchasethe machine and after negotiation it was decided to purchase itfor an amount of Rs. 27,000/-. We came back on that day only.

I had informed Lijo about purchasing the machine. Lijo ismy brother-in-law and he told to prepare an agreement for that.

Then I, my brother-in-law Lijo and Binu went to advocate’s houseon 09.12.2011. Advocate Uday Kumar resides in Lingadahalli.We had been to his house. He wrote the content of agreement ona white paper. I, Binu and Lijo had affixed our signature on thesaid document. The accused himself is Binu. The witness identifieshis signature of the accused in M.O.41-agreement. The witnessidentifies his signature also. The signature of the witness has beenmarked as M.O.41(b), accused signature as M.O.41 (c) and Lijo’ssignature as M.O.41 (a). The sale agreement was prepared forRs. 30,000/- but I gave only Rs. 27,000/-.”

PW-13:“On 07.01.2012, I went to Vigneshwara Hospital withmy wife and son because my son was unwell. Lijo also had cometo the hospital since his son was also unwell. I know Lijo fromlong back. While talking, Lijo informed me that Jose Kafan isdead. He informed me that Kafan was suffering from Paralysisdisease and his son took him to Kerala for treatment and sincethe disease became severe in Kerala, he took Kafan to Americafor better treatment but Kafan died two days before Christmasfestival. Lijo even told that his dead body was not bought back butthe funeral was conducted there only.

Later, after several days I went to Century Motors for mybike repair. Lijo was also there in that place. Lijo told me thatKafan’s children are intended to sell his land and asked mewhether I would be interested to buy it. I told Lijo that I don’twant and would inform my brother-in-law about it. After 2 daysLijo informed me about the price of the land and about hiscommission. Later Lijo told me that he has land documents withhim. Since I said that I have to take suggestions from Advocate, Iand my brother-in-law, Stanie and Lijo went to the house ofAdvocate Nagaraj with the said documents. Advocate Nagarajexamined the documents and since the advocate was informedthat Jose Kafan had died, he informed that Kafan’s children haveto come and should bring Power of Attorney from all the heirsand also the death certificate of Kafan. We went to our respectivehouses from the hose of Advocate. By the time I reached Maritemple, I once again made phone call to Lijo. Lijo told me thatKafan’s son had called him over phone and asked me to go theresaying that Kafan’s son Sajith had called him over phone. I and

Stanie again went near the court. Lijo was there and at that timeLijo got phone call and he talked and then gave mobile phone toStanie. Stanie talked directly and the person who was talking inthe phone told that he would come to Sagar to obtain the advanceamount. He even told that he would come after making phonecall.”

PW-15:“From 17 years I have been practicing as an Advocate inSagar. I have the acquaintance of Babu of Marur village. He hadcome to my house on 09.12.2011 at about 7-45 in the evening.The said Babu was accompanied by his uncle and the accusedbefore the Court. The witness was shown Ex.P.21. He hasidentified the person who is holding documents in Ex.P.21-photograph as the brother-in-law of Babu. Babu, who came tomy house, told me that the accused has rubber roller machineand he is purchasing it. He asked me to prepare sale agreementwith regard to that. I asked him the details about the company ofthe rubber roller machine, its owner, its number and other details,for which he said that he does not have all those details.

According to the information furnished from them, I prepareda sale agreement of movable property. The witness was shownM.O. 41. He identifies it as the sale agreement that was preparedEby him. The accused, who was selling the rubber roller machine,did not know Kannada. I read out the sale agreement in Kannadaand also in English. Since the accused did not know both Englishand Kannada, Lijo translated the contents of sale agreement intoMalayalam language and explained to the accused. Both the vendorand vendee have affixed their signature before me. The accused,Fwho is the vendor, has affixed his signature and the vendee hasalso affixed his signature. Lijo has affixed his signature as awitness.”

21. The other surrounding circumstances which prove the accusedbeing guilty of the offence beyond reasonable doubt are the recovery ofGthe articles belonging to the deceased and sold by the accused whichwere recovered on the strength of the voluntary statement of accusedas per Ex.P-2. In-fact PW-5 has clearly stated as to how the accusedintended to sell the immoveable property belonging to the deceased.PW-5 has clearly deposed as to how the accused was apprehended byHthe police when he was attempting to sell the property of the deceased.

22. That apart the statements made by the accused that deceasedhad gone to Kerala or the deceased had suffered paralytic stroke ordeceased had proceeded to America and expired there are all incorrectand conflicting statements as has been deposed by PW-5, reliance ofwhich is placed by the High Court in the background of the Judgment ofthis Court in State of Karnataka v. Swarnama[8], and as such we are ofthe view that conclusion arrived at by the High Court is based on soundappreciation of evidence and proper application of law. That apart,accused has failed to explain with regard to the incriminating evidencefound against him except total denial and as such the High Court hasrightly applied the principles laid down by this Court in Pattu Rajan v.State of Tamil Nadu[9] to reject the contention of the accused appellant.On account of evidence available on record having been ignored andthere being patent perversity in appreciation of evidence by the LearnedSessions Judge it resulted in interference by the High Court. We do notfind any material irregularly having crept in the judgment of the HighCourt calling for our interference. On re-appreciation of entire evidenceby the High Court inproper perspective it has resulted in arriving at aright conclusion viz. that accused alone has committed the murder of thedeceased Mr. Jose Kafan and there being no other possible viewwhich could be considered as missing in the link of chain of circumstances,this Court is of the considered view that appeal deserves to be dismissedas being devoid of merits.

23. For the reasons indicated hereinabove we dismiss the appealand confirm the judgment dated 20.03.2020 passed by the High Court ofKarnataka in Criminal Appeal No.335 of 2014.