2024 INSC 13

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 1 of 35

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(arising out of Special Leave Petition (Criminal) No. 863 of 2019)

PERUMAL RAJA @ PERUMAL ..... APPELLANT

VERSUS

STATE, REP. BY INSPECTOR OF POLICE ..... RESPONDENT

J U D G M E N T

SANJIV KHANNA, J.

Leave granted.

2. The impugned judgment

1

by the High Court of Judicature at Madras

affirms the conviction of the appellant – Perumal Raja @ Perumal

for murder of Rajini @ Rajinikanth under Section 302 of the Indian

Penal Code, 1860

2

and Section 201 of the IPC, by the Principal

Sessions Judge, Puducherry in SC No. 22 of 2014

3

, in the charge

sheet arising from the First Information Report

4

No. 80 of 2008

1

Dated 31.08.2016 passed in Criminal Appeal No.280/2016.

2

For short, “IPC”.

3

Dated 07.04.2016.

4

For short, “FIR”.

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registered on 24.04.2008 in Police Station

5

Odiansalai, District –

Puducherry.

3. The appellant – Perumal Raja @ Perumal stands sentenced to

imprisonment for life and fine of Rs.5,000/- for the offence under

Section 302 of the IPC and rigorous imprisonment for three years

and fine of Rs.3,000/- for the offence under Section 201 of the IPC.

4. The other co-accused, namely, Saravanan @ Krishnan, Mohan @

Mohankumar, and Ravi @ Ravichandran were acquitted by the trial

court, which acquittal has become final. One ‘N’ was tried as a

juvenile and acquitted. On 15.02.2013, the case of another

co-accused – Chella @ Mugundhan was split up since he was

absconding. Subsequently, vide judgment dated 04.06.2019, which

has been placed on record as additional evidence, Chella @

Mukundhan has been acquitted.

5. The prosecution case in brief is as follows:

(i) On 20.04.2008, Rajaram, who was settled in France, returned

to Puducherry as his son Rajini @ Rajinikanth, who was living

in India, had gone missing.

(ii) On 20.04.2008, Rajaram had approached PS Odiansalai,

Puducherry, and made an oral complaint stating that when he

5

For short, “PS”.

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had opened his house No. 13, Chinna Vaikkal Street,

Puducherry, he had found articles to be scattered all over the

place. His motorcycle was missing. He had suspected that his

son – Rajini @ Rajinikanth and his sister’s husband

Krishnamurthy could have taken the bike. He requested the

Police to make inquiries. However, in spite of being asked, he

did not make any written complaint. He stated that he was

exhausted and would come back to lodge written complaint

afterwards.

(iii) Next day on 21.04.2008, Rajaram was murdered. FIR No.

204 of 2008 was registered at PS Grand Bazaar, District –

Puducherry under Sections 147, 148, 341 and 302 of the IPC

read with Section 149 of the IPC.

(iv) On 24.04.2008, Arumugam, father of Rajaram, had made a

written complaint at Odiansalai PS, Puducherry that his

grandson Rajini @ Rajinikanth was missing. The complaint

was registered as Diary No. 80 of 2008 for a ‘missing man’

and was taken up for investigation.

(v) The appellant – Perumal Raja @ Perumal , son of

Krishnamurthy (husband of the sister of Rajaram), was

detained and taken into custody during the course of

investigation in FIR No. 204 of 2008 for murder of Rajaram.

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(vi) On 25.04.2008, the appellant – Perumal Raja @ Perumal

made a disclosure statement (Exhibit P-37).

6

(vii) The appellant – Perumal Raja @ Perumal, along with other

co-accused, had committed murder of Rajini @ Rajinikanth

on 23.11.2007 at Rajaram’s house at Chinna Vaikkal Street,

Puducherry. His dead body was thrown in the sump tank

located in the same house.

(viii) The appellant – Perumal Raja @ Perumal had also removed

various belongings from the same house, including iron box,

home theatre, CD player, documents of the house,

motorcycle, RC book, key, Rajini @ Rajinikanth’s passport,

Rajini @ Rajinikanth’s passport size photograph, birth

registration of the grandmother, ration card, etc.

(ix) Later on, the appellant – Perumal Raja @ Perumal, and other

co-accused, decided to remove the dead body of Rajini @

Rajinikanth from the sump tank as they had learnt that

Rajaram was returning to India as his son Rajini @

Rajinikanth was missing.

(x) Accordingly, the appellant – Perumal Raja @ Perumal had

bought a knife and sack bags. They opened the sump tank

6

We shall be subsequently referring to the admissible portions of the disclosure statement under

Section 27 of the Indian Evidence Act, 1872, and also to a limited extent in terms of Section 8 of the

Indian Evidence Act, 1872.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 5 of 35

and took out Rajini @ Rajinikanth’s body, which was in a

decomposed state. They had cut Rajini @ Rajinikanth’s body

into two pieces and put it in two sack bags. The knife and rope

were put in another sack bag. The three sack bags were

taken by them from Chinna Vaikkal Street, and after passing

through Gandhi Street they threw the sack bags in the

canal/river from the Uppanaru Bridge near the railway

crossing.

(xi) On the basis of the disclosure statement (Exhibit P-37), the

sack bags with the decomposed dead body of Rajini @

Rajinikanth were recovered on 26.04.2008 from the

Uppanaru canal/river. Knife was also recovered.

(xii) The body parts which were in a decomposed state were sent

for post mortem, which was conducted by Dr. S. Diwakar

(PW-24), Senior Medical Officer, Department of Forensic

Medicine, Government General Hospital, Puducherry on

26.04.2008.

(xiii) On 30.04.2008, eight articles were recovered from the water

sump tank at the house of the deceased, namely, gloves,

lower jaw, rib, cervical vertebrae, tarsal and metatarsal, small

and big size bone pieces, and knee cap.

(xiv) The skull recovered from the canal/river and the lower part of

the jaw recovered from the sump tank were sent for

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superimposition test to ascertain whether they belong to the

deceased Rajini @ Rajinikanth. C. Pushparani, Scientific

Assistant Grade II, Anthropology Division, Forensic Sciences

Department, Chennai, who had deposed as PW-29, proves

the superimposition test report dated 20.01.2009 (Exhibit P-

25), which confirms that the skull and mandible were of the

deceased – Rajini @ Rajinikanth.

(xv) On the basis of the disclosure statement, various articles,

including the motorcycle, ignition key, original RC book were

recovered from the co-accused Mohan Kumar @ Mohan and

a juvenile.

(xvi) The motive for the crime was inter se family property disputes

and the appellant – Perumal Raja @ Perumal’s desire to

acquire and become owner of the property No. 13, Chinna

Vaikkal Street, Puducherry.

6. Several public witnesses turned hostile and did not support the

prosecution case. This includes Arumugam (PW -20), the

grandfather of the deceased Rajini @ Rajinikanth, who had filed the

‘missing man’ complaint for Rajini @ Rajinikanth, vide Diary No. 80

of 2008. However, Arumugam (PW-20) did accept that his son,

Rajaram, who was living abroad had come home when he was

murdered on 21.04.2008. Arumugam (PW-20) also accepts that his

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grandson Rajini @ Rajinikanth had not attended crematorial rites of

his father Rajaram and was missing.

7. Narayanasamy (PW-12), then head constable, PS Odiansalai, has

testified that he had received the oral complaint of Rajaram on

20.04.2008, in connection with the scattered articles in his house,

and the missing motorcycle. Rajaram had assumed that his son

Rajini @ Rajinikanth could have taken it away.

8. Kaniyakumaran (PW-10), involved in real estate business, did not

specifically implicate the appellant – Perumal Raja @ Perumal, but

has accepted that Punitha (PW-3), a relative of the deceased Rajini

@ Rajinikanth, had tried to sell the property in Kurumbapet.

Reliance can be also placed on the documentary evidence to

establish that the property in question in the name of Rajaram was

dealt with by Porkilai (PW-4), mother of the appellant – Perumal

Raja @ Perumal. In support, the following documents are relied:

(i) sale deed in favour of Rajaram executed on 26.06.1990

(Exhibit P-66);

(ii) sale agreement between Porkilai (PW-4) and accused

no.5 - Ravi @ Ravichandran executed on May, 2007

(Exhibit P-66);

(iii) release deed in favour of Rajaram by Porkilai (PW-4),

executed on 27.06.1990 (Exhibit P-68);

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(iv) sale agreement in favour of Thangaveni Ammal, mother

of Rajaram, executed on 19.08.1981 (Exhibit P-69).

9. Chinta Kodanda Rao (PW-30), Inspector of Police, PS Grand

Bazaar, the investigating officer in FIR No. 204 of 2008 relating to

the murder of Rajaram by unknown persons, has testified on the

disclosure statement made by the appellant – Perumal Raja @

Perumal (Exhibit P-37). The relevant portion of the disclosure

statement reads:

“…myself and xxx pull Rajni’s xxx, put him in the sump

tank near the bathroom and closed it…

…took xxx, Iron box, Home theatre, xxx, xxx, rental

documents of my uncle’s house at Chittankudi, Hero

Honda CD Dawn motorcycle, RC book and key, Rajini’s

passport book, Rajini’s passport size photo, birth

registration of grandmother, family ration card of uncle

and the copy of documents written in English, bunch of

keys of the house and my uncle Ranjith’s notebook, xxx

xxx xxx, took Hero Honda CD Dawn motorbike of my

uncle Rajaram…..one bag was put by Mohan xxx xxx

xxx the house of Mohan nearby to the Tollgate of

Ariyankuppam, kept 2 bags in Mohan’s house…

…I, immediately, went to N (name withheld) house and

gave him document, ration card, bunch of keys, Rajini’s

passport, by keeping them in Ranjith notebook and

stated to keep them safe…

…I took the already kept 3 sack bags, rope, curry knife,

showed the sump tank to xxx. When he opened the

cover of the sump tank, he bend down and lifted the

hand of the body of Rajini, who was already killed and

put in the sump by us, since Rajini’s body was in

decomposed stage, his hand had alone come. I put the

hand in sack bag. Then we tied rope in chest, myself

and xxx pulled the body outside from sump. Then, head

has come alone. I put head in the sack bag. Then xxx

took knife from me and cut Rajini’s body into two pieces

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and put them in two sack bags, then put knife and xxx

in another sack bag and kept the sack bags near

kitchen, then xxx closed the sump…

…via Chinnavaikal Street and Gandhi Street, turned on

the left side of the street, in front of small clock tower,

via Varnarapettai Billu Shop, on the centre of the bridge

of Railway Crossing on the left side, threw the two bags,

containing the decomposed body of Rajini, on the right

side threw the sack bag, containing knife and xxx…

…Also, I gave statement that if I was taken, I would

identify the Chinnavaikal street, which is the place of

occurrence, my maternal uncle’s house which is in the

same street..the place where I had left the motor cycle

of my (nc) and the place where I had put the body of

Rajini... ”

10. On the aspect of the recovery of two nylon sack bags with body

parts, we have affirmative depositions of Chinta Kodanda Rao (PW-

30), Inspector of Police, PS Grand Bazaar, public witness

Devadass (PW-21) and Satyamurthy (PW-11). The recovery was

photographed by Selvaganapathy (PW-26), police photographer

vide photographs marked Exhibit P-19. The recovery was duly

recorded in the rough sketch plan (Exhibit P-30) and the mahazar

(Exhibit P-31).

11. On 29.04.2008, accused no. 4 - Mohan Kumar @ Mohan was

arrested. On the same day, stolen items including, the motorcycle

and ignition key of motorcycle, original registration book, insurance

certificate of the motorcycle, iron box, home theatre and speaker

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box belonging to the deceased were recovered, as recorded vide

seizure mahazar (Exhibits P-44, P-45, P-46 and P-47).

12. On 30.04.2008, eight articles were recovered from the water sump

tank at the house of the deceased, namely, gloves, lower jaw, rib,

cervical vertebrae, tarsal and metatarsal, small and big size bone

pieces, and knee cap. T. Bairavasamy (PW-32), Circle Inspector,

PS Odiansalai has deposed about the recovery and proved the

Mahazar (Exhibit P-48). The recovery was photographed by

Subburayan (PW-25), police photographer vide photographs

marked Exhibit P-18 and duly witnessed by public witness

Devadass (PW-21).

13. To determine the identity of the deceased person, some of the body

parts were sent for a superimposition test to C. Pushparani (PW-

29), who was working as a Scientific Assistant Grade II,

Anthropology Division, Forensic Sciences Department, Chennai.

She has deposed about having received the case properties,

consisting of a skull with mandible on 10.09.2008. The mandible

was attached with the skull by means of a spring. For the purpose

of identification, she had two identical colour photographs of a male

individual sent to her in a sealed envelope as Item Nos. 2 and 3.

The photographs were enlarged to the size of a self-portrait. Using

the computer aided video superimposition technique, she had

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examined the skull and mandible viz. the photographs. For the

purposes of the examination, the flesh thickness and the

anthroposcopic landmarks in the face were also taken into

consideration. C. Pushparani (PW-29), Scientific Assistant Grade

II, Anthropology Division, Forensic Sciences Department, Chennai

opined that the landmarks on the face matched well with those of

the skull. She submitted her forensic report dated 20.01.2009 with

analysis on the anthroposcopy and superimposition test (Exhibit P-

25). The skull, as per C. Pushparani (PW-29), Scientific Assistant

Grade II, Anthropology Division, Forensic Sciences Department,

Chennai belonged to the male individual seen in the photograph at

serial no.4. With the report, Exhibit P-25, C. Pushparani (PW-29),

Scientific Assistant Grade II, Anthropology Division, Forensic

Sciences Department, Chennai had enclosed the computer laser

printouts taken by her at the time of examination to establish and

prove that the photographs of deceased – Rajini @ Rajinikanth

match with the mandible and the skull (Exhibits P-26 to P-28). We

have carefully examined the computer laser print outs, and are of

the opinion that the findings of the High Court affirming the

judgment of the trial court are justified.

14. On behalf of the appellant – Perumal Raja @ Perumal, it is

submitted that as per Dr. S. Diwakar (PW-24), Senior Medical

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Officer, Department of Forensic Medicine, Government General

Hospital, Puducherry no definite cause of death could be

ascertained due to decomposition of the body. However, it is

pertinent to note that Dr. S. Diwakar (PW-24), Senior Medical

Officer, Department of Forensic Medicine, Government General

Hospital, Puducherry has also deposed that the deceased could be

between 25-30 years of age and probable death could have

occurred six months prior to the autopsy. It must be further noted

that the deceased – Rajini @ Rajinikanth was about 30 years of age

and he had been missing for about six months prior to the date on

which the autopsy was conducted.

15. It has been submitted with considerable emphasis that

Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of

Forensic Medicine, Government General Hospital, Puducherry has

accepted that the lower jaw (mandible) was not found. Whereas,

deposition of C. Pushparani (PW-29), Scientific Assistant Grade II,

Anthropology Division, Forensic Sciences Department, Chennai

and the photo superimposition done by her specifically refer to the

lower jaw. We have examined this contention. Dr. S. Diwakar (PW-

24), Senior Medical Officer, Department of Forensic Medicine,

Government General Hospital, Puducherry, in his examination-in-

chief, has testified that the police had sent the skull, sternum and

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 13 of 35

right femur which were preserved by him from the autopsy material.

Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of

Forensic Medicine, Government General Hospital, Puducherry has

also stated that the lower jaw and the left lower first premolar tooth

were preserved by him from the skeleton remains for onward

transmission to Central Forensic Science Laboratory, Hyderabad,

for necessary photo superimposition and DNA test through the

Judicial Magistrate-II, Puducherry. The mahazar dated 21.5.2008

(Exhibit P-15) was prepared after collecting the aforesaid body

parts.

16. We do not find that any confusion or doubt arises from the

deposition of Dr. S. Diwakar (PW-24), Senior Medical Officer,

Department of Forensic Medicine, Government General Hospital,

Puducherry. He had conducted the post mortem examination

(Exhibit P-16) on 26.04.2008, wherein he had examined the

remains/body parts of the deceased which were found in the two

nylon sack bags on the same day. Other body parts including, the

lower part of the skull i.e. the mandible and the tooth were found

subsequently in the sump tank on 30.04.2008. Therefore, Dr. S.

Diwakar (PW-24), Senior Medical Officer, Department of Forensic

Medicine, Government General Hospital, Puducherry, in his

deposition, while referring to Exhibit P-17 dated 19.05.2008, has

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 14 of 35

referred to the lower jaw (mandible) and the left lower first premolar

tooth, to send the said body parts to the Central Forensic Science

Laboratory at Hyderabad.

17. It has been submitted on behalf of the appellant – Perumal Raja @

Perumal that Dr. S. Diwakar (PW-24), Senior Medical Officer,

Department of Forensic Medicine, Government General Hospital,

Puducherry, in his cross-examination, has accepted that body parts

were sent to him in two nylon sack bags only once, and nothing was

sent thereafter. The post mortem was completed on 26.04.2008,

vide the post mortem report (Exhibit P-16) of the same date.

18. Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of

Forensic Medicine, Government General Hospital, Puducherry had

issued bone-case certificate (Exhibit P-17) on 19.05.2008. Dr. S.

Diwakar (PW-24), Senior Medical Officer, Department of Forensic

Medicine, Government General Hospital, Puducherry has clarified

that while he did not mention the lower jaw in the post mortem

26.04.2008 (Exhibit P-16), he had mentioned that the lower jaw was

preserved in the bone-case certificate (Exhibit P-17) dated

19.05.2008.

7

Further, the aforesaid deposition of Dr. S. Diwakar

(PW-24), Senior Medical Officer, Department of Forensic Medicine,

7

The recovery of lower jaw from the sump took place on 30.04.2008. Thus, it could not have been

mentioned in the post mortem report dated 26.04.2008.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 15 of 35

Government General Hospital, Puducherry has to be read with the

testimony of T. Bairavasamy (PW-32), Circle Inspector, PS

Odiansalai, who had deposed that he had taken the letter written

by Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of

Forensic Medicine, Government General Hospital, Puducherry and

had obtained the signatures of Judicial Magistrate-II, Puducherry

for conducting DNA test. Thereafter, the material objects were sent

through Form 95 No. 02876 (Exhibit P-60) to the Judicial

Magistrate-II, Puducherry. The skull and the mandible were sent for

photo superimposition test after addressing a letter to Judicial

Magistrate-II, Puducherry which was signed by Dr. S. Diwakar (PW-

24), Senior Medical Officer, Department of Forensic Medicine,

Government General Hospital, Puducherry (Exhibit P-61).

19. The prosecution’s case, in the absence of eye witnesses, is based

upon circumstantial evidence. As per Section 25 of the Indian

Evidence Act, 1872

8

, a confession made to a police officer is

prohibited and cannot be admitted in evidence. Section 26 of the

Evidence Act provides that no confession made by any person

whilst he is in the custody of a police officer shall be proved against

such person, unless it is made in the immediate presence of a

8

For short ‘the Evidence Act’.

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Magistrate. Section 27

9

of the Evidence Act is an exception to

Sections 25 and 26 of the Evidence Act. It makes that part of the

statement which distinctly leads to discovery of a fact in

consequence of the information received from a person accused of

an offence, to the extent it distinctly relates to the fact thereby

discovered, admissible in evidence against the accused. The fact

which is discovered as a consequence of the information given is

admissible in evidence. Further, the fact discovered must lead to

recovery of a physical object and only that information which

distinctly relates to that discovery can be proved. Section 27 of the

Evidence Act is based on the doctrine of confirmation by

subsequent events – a fact is actually discovered in consequence

of the information given, which results in recovery of a physical

object. The facts discovered and the recovery is an assurance that

the information given by a person accused of the offence can be

relied.

20. In Pulukuri Kottaya v. King Emperor

10

, the Privy Council held that

the fact discovered embraces the place from which the physical

9

27. How much of information received from accused may be proved. – Provided that, when any

fact is deposed to as discovered in consequence of information received from a person accused of any

offence, in the custody of a police officer, so much of such information, whether it amounts to a

confession or not, as relates distinctly to the fact thereby discovered, may be proved.

10

AIR 1947 PC 67.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 17 of 35

object is produced and the knowledge of the accused as to this, and

the information given, must distinctly relate to this fact.

21. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru

11

, this

Court affirmed that the fact discovered within the meaning of

Section 27 of the Evidence Act must be some concrete fact to which

the information directly relates. Further, the fact discovered should

refer to a material/physical object and not to a pure mental fact

relating to a physical object disassociated from the recovery of the

physical object.

22. However, we must clarify that Section 27 of the Evidence Act, as

held in these judgments, does not lay down the principle that

discovery of a fact is to be equated to the object produced or found.

The discovery of the fact resulting in recovery of a physical object

exhibits knowledge or mental awareness of the person accused of

the offence as to the existence of the physical object at the

particular place. Accordingly, discovery of a fact includes the object

found, the place from which it was produced and the knowledge of

the accused as to its existence. To this extent, therefore, factum of

discovery combines both the physical object as well as the mental

consciousness of the informant accused in relation thereto. In

11

(2005) 11 SCC 600.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 18 of 35

Mohmed Inayatullah v. State of Maharashtra

12

, elucidating on

Section 27 of the Evidence Act, it has been held that the first

condition imposed and necessary for bringing the section into

operation is the discovery of a fact which should be a relevant fact

in consequence of information received from a person accused of

an offence. The second is that the discovery of such a fact must be

deposed to. A fact already known to the police will fall foul and not

meet this condition. The third is that at the time of receipt of the

information, the accused must be in police custody. Lastly, it is only

so much of information which relates distinctly to the fact thereby

discovered resulting in recovery of a physical object which is

admissible. Rest of the information is to be excluded. The word

‘distinctly’ is used to limit and define the scope of the information

and means ‘directly’, ‘indubitably’, ‘strictly’ or ‘unmistakably’. Only

that part of the information which is clear, immediate and a

proximate cause of discovery is admissible.

23. The facts proved by the prosecution, particularly the admissible

portion of the statement of the accused, would give rise to two

alternative hypotheses, namely, (i) that the accused had himself

deposited the physical items which were recovered; or (ii) only the

accused knew that the physical items were lying at that place. The

12

(1976) 1 SCC 828.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 19 of 35

second hypothesis is wholly compatible with the innocence of the

accused, whereas the first would be a factor to show involvement

of the accused in the offence. The court has to analyse which of the

hypotheses should be accepted in a particular case.

24. Section 27 of the Evidence Act is frequently used by the police, and

the courts must be vigilant about its application to ensure credibility

of evidence, as the provision is vulnerable to abuse. However, this

does not mean that in every case invocation of Section 27 of the

Evidence Act must be seen with suspicion and is to be discarded

as perfunctory and unworthy of credence.

25. The pre-requisite of police custody, within the meaning of Section

27 of the Evidence Act, ought to be read pragmatically and not

formalistically or euphemistically. In the present case, the

disclosure statement (Exhibit P-37) was made by the appellant –

Perumal Raja @ Perumal on 25.04.2008, when he was detained in

another case, namely, FIR No. 204/2008, registered at PS Grand

Bazar, Puducherry, relating to the murder of Rajaram. He was

subsequently arrested in this case, that is FIR.No.80/2008, which

was registered at PS Odiansalai, Puducherry. The expression

“custody” under Section 27 of the Evidence Act does not mean

formal custody. It includes any kind of restriction, restraint or even

surveillance by the police. Even if the accused was not formally

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 20 of 35

arrested at the time of giving information, the accused ought to be

deemed, for all practical purposes, in the custody of the police.

26. Reference is made to a recent decision of this Court in Rajesh &

Anr. v. State of Madhya Pradesh

13

, which held that formal

accusation and formal police custody are essential pre-requisites

under Section 27 of the Evidence Act. In our opinion, we need not

dilate on the legal proposition as we are bound by the law and ratio

as laid down by the decision of a Constitution Bench of this Court

in State of U.P. v. Deoman Upadhyaya

14

. The law laid down by

this Court in a decision delivered by a Bench of larger strength is

binding on any subsequent Bench of lesser or coequal strength.

15

This Court in Deoman Upadhyay (supra) observed that the bar

under Section 25 of the Evidence Act applies equally whether or

not the person against whom evidence is sought to be led in a

criminal trial was in custody at the time of making the confession.

Further, for the ban to be effective the person need not have been

accused of an offence when he made the confession. The reason

is that the expression “accused person” in Section 24 and the

expression “a person accused of any offence” in Sections 26 and

13

2023 SCC OnLine SC 1202.

14

(1961) 1 SCR 14.

15

See Judgments of the Constitution Bench of this Court in Central Board of Dawoodi Bohra

Community and Anr. v. State of Maharashtra and Anr., (2005) 2 SCC 673 and Union of India and Anr.

v. Raghubir Singh (Dead) By Lrs., (1989) 2 SCC 754. Raghubir Singh (supra) and Central Board of

Dawoodi Bohra Community (supra) have been subsequently followed and applied by this Court in

Trimurthi Fragrances (P) Ltd. v. Government of N.C.T. of Delhi, 2022 SCC OnLine SC 1247.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 21 of 35

27 have the same connotation, and describe the person against

whom evidence is sought to be led in a criminal proceeding. The

adjectival clause “accused of any offence” is, therefore, descriptive

of the person against whom a confessional statement made by him

is declared not provable, and does not predicate a condition of that

person at the time of making the statement.

27. Elaborating on this aspect, a three judge Bench of this Court in

Aghnoo Nagesia v. State of Bihar

16

has held that if the FIR is

given by the accused to a police officer and amounts to a

confessional statement, proof of the confession is prohibited by

Section 25 of the Evidence Act. The confession includes not only

the admission of the offence but all other admissions of

incriminating facts related to the offence, except to the extent that

the ban is lifted by Section 27 of the Evidence Act. While dealing

with the admission of part of confession report dealing with motive,

subsequent conduct and opportunity, this Court rejected the

severability test adopted by some High Courts. The statement can,

however, be relied upon and admitted to identify the accused as the

maker, and the portion within the purview of Section 27 of the

Evidence Act is admissible. Aghnoo Nagesia (supra) has been

16

AIR 1966 SC 119.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 22 of 35

applied and followed by this Court in Khatri Hemraj Amulakh v.

State of Gujarat.

17

28. The words “person accused of an offence” and the words “in the

custody of a police officer” in Section 27 of the Evidence Act are

separated by a comma. Thus, they have to be read distinctively.

The wide and pragmatic interpretation of the term “police custody”

is supported by the fact that if a narrow or technical view is taken, it

will be very easy for the police to delay the time of filing the FIR and

arrest, and thereby evade the contours of Sections 25 to 27 of the

Evidence Act. Thus, in our considered view the correct

interpretation would be that as soon as an accused or suspected

person comes into the hands of a police officer, he is no longer at

liberty and is under a check, and is, therefore, in “custody” within

the meaning of Sections 25 to 27 of the Evidence Act. It is for this

reason that the expression “custody” has been held, as earlier

observed, to include surveillance, restriction or restraint by the

police.

29. This Court in Deoman Upadhyay (supra), while rejecting the

argument that the distinction between persons in custody and

persons not in custody violates Article 14 of the Constitution of

17

(1972) 3 SCC 671.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 23 of 35

India, observed that the distinction is a mere theoretical possibility.

Sections 25 and 26 were enacted not because the law presumed

the statements to be untrue, but having regard to the tainted nature

of the source of the evidence, prohibited them from being received

in evidence. A person giving word of mouth information to police,

which may be used as evidence against him, may be deemed to

have submitted himself to the “custody” of the police officer.

Reference can also be made to decision of this Court in Vikram

Singh and Ors. v. State of Punjab

18

, which discusses and applies

Deoman Upadhyay (supra), to hold that formal arrest is not a

necessity for operation of Section 27 of the Evidence Act. This

Court in Dharam Deo Yadav v. State of Uttar Pradesh

19

, has held

that the expression “custody” in Section 27 of the Evidence Act

does not mean formal custody, but includes any kind of

surveillance, restriction or restraint by the police. Even if the

accused was not formally arrested at the time of giving information,

the accused is, for all practical purposes, in the custody of the police

and the bar vide Sections 25 and 26 of the Evidence Act, and

accordingly exception under Section 27 of the Evidence Act, apply.

Reliance was placed on the decisions in State of A.P. v. Gangula

18

(2010) 3 SCC 56.

19

(2014) 5 SCC 509.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 24 of 35

Satya Murthy

20

and A.N.Vekatesh and Anr. v. State of

Karnataka

21

.

30. However, evidentiary value to be attached on evidence produced

before the court in terms of Section 27 of the Evidence Act cannot

be codified or put in a straightjacket formula. It depends upon the

facts and circumstances of the case. A holistic and inferential

appreciation of evidence is required to be adopted in a case of

circumstantial evidence.

31. When we turn to the facts of the present case, the body parts of the

deceased Rajini @ Rajinikanth were recovered on the pointing out

of appellant – Perumal Raja @ Perumal in his disclosure statement.

Rajini @ Rajinikanth had been missing for months and was

untraceable. In the present case, as discussed above, the

homicidal death of Rajini @ Rajinikanth, the disclosure statement

marked Exhibit P-37, and the consequent recovery as elucidated

above have been proved beyond doubt and debate.

32. In State of Maharashtra v. Suresh

22

, this Court in the facts therein

held that recovery of a dead body, which was from the place pointed

out by the accused, was a formidable incriminating circumstance.

20

(1997) 1 SCC 272.

21

(2005) 7 SCC 714.

22

(2000) 1 SCC 471.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 25 of 35

This would, the Court held, reveal that the dead body was

concealed by the accused unless there is material and evidence to

show that somebody else had concealed it and this fact came to

the knowledge of the accused either because he had seen that

person concealing the dead body or was told by someone else that

the dead body was concealed at the said location. Here, if the

accused declines and does not tell the criminal court that his

knowledge of the concealment was on the basis of the possibilities

that absolve him, the court can presume that the dead body (or

physical object, as the case may be) was concealed by the accused

himself. This is because the person who can offer the explanation

as to how he came to know of such concealment is the accused. If

the accused chooses to refrain from telling the court as to how else

he came to know of it, the presumption is that the concealment was

by the accused himself.

33. The aforesaid view has been followed subsequently and reiterated

in Harivadan Babubhai Patel v. State of Gujarat

23

, Vasanta

Sampat Dupare v. State of Maharashtra

24

, State of Maharashtra

v. Damu S/o Gopinath Shinde and Ors.

25

, and Rumi Bora Dutta

v. State of Assam

26

.

23

(2013) 7 SCC 45.

24

(2015) 1 SCC 253.

25

(2000) 6 SCC 269.

26

(2013) 7 SCC 417.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 26 of 35

34. Our reasoning, which places reliance on Section 106 of the

Evidence Act, does not in any way dilute the burden of proof which

is on the prosecution. Section 106 comes into play when the

prosecution is able to establish the facts by way of circumstantial

evidence. On this aspect we shall delve upon subsequently.

35. Apart from Section 27 of the Evidence Act, Section 8 of the said Act

would be also attracted insofar as the prosecution witnesses,

namely, the investigating officers, Chinta Kodanda Rao (PW-30),

Inspector of Police, PS Grand Bazaar and T. Bairavasamy (PW-

32), Circle Inspector, PS Odiansalai, have referred to the conduct

of the appellant – Perumal Raja @ Perumal with regard to any fact

in issue or a relevant fact when the appellant – Perumal Raja @

Perumal was confronted and questioned.

27

Reference in this regard

may also be made to the judgment of this Court in Sandeep v.

State of U.P.

28

which held that:

“52. (…) It is quite common that based on admissible

portion of the statement of the accused whenever and

wherever recoveries are made, the same are

admissible in evidence and it is for the accused in those

situations to explain to the satisfaction of the court as to

the nature of recoveries and as to how they came into

possession or for planting the same at the places from

where they were recovered.”

27

See State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, ¶¶ 190, 204-206, 219-223, 225.

28

(2012) 6 SCC 107.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 27 of 35

36. On the basis of the prosecution evidence, the following factual

position has been established:

(i) Rajini @ Rajinikanth was missing for months before his father

Rajaram came from France to India, on 20.04.2008.

(ii) On return, Rajaram had noticed that the articles in the

property No.13, Chinna Vaikkal street, Puducherry, where

deceased Rajini @ Rajinikanth used to reside and was owned

by Rajaram, were scattered. The motorcycle owned by

Rajaram, which the deceased Rajini @ Rajinikanth used to

use, was missing.

(iii) Rajaram was murdered on 21.04.2008.

(iv) The appellant – Perumal Raja @ Perumal is a close relative

of Rajini @ Rajinikanth and Rajaram (son of sister of

Rajaram).

(v) Rajaram as the owner of the immovable property No.13,

Chinna Vaikkal street, Puducherry and Rajini @ Rajinikanth,

as the son of Rajaram, were hindrance in the way of the

appellant – Perumal Raja @ Perumal acquiring the said

property. There were also inter se family disputes relating to

the property in Kurumbapet. This was the motive for the

offence.

(vi) On the basis of the disclosure statement made by the

appellant – Perumal Raja @ Perumal on 25.04.2008 (Exhibit

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 28 of 35

P-37) – (a) two nylon sack bags were recovered containing

decomposed human body parts; and (b) human bones were

also recovered from the sump tank in property bearing No.13,

Chinna Vaikkal street, Puducherry.

(vii) The superimposition report dated 20.01.2009 (Exhibit P-25)

by C. Pushparani (PW-29), Scientific Assistant Grade II,

Anthropology Division, Forensic Sciences Department,

Chennai states that the skull and the mandible which were

recovered from the river and the sump tank were that of the

deceased Rajini @ Rajinikanth. The report relies on the

computer laser print out of the skull and the mandible for

comparison with the photograph of the deceased Rajini @

Rajinikanth. It is shown that the skull and the mandible were

of the deceased Rajini @ Rajinikanth.

(viii) As per the post mortem report (Exhibit P-16), though the

cause of death could not be ascertained due to

decomposition of the body, the bones were that of a person

between 25-30 years of age. Further, the death had probably

occurred six months prior to the autopsy. The deceased Rajini

@ Rajinikanth was of 30 years in age and he had been

missing for about six months.

(ix) Motorcycle bearing registration No. PY 01 X 9857 belonging

to Rajaram (which was then at Rajaram’s house and in

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 29 of 35

possession of Rajini @ Rajinikanth, as Rajaram was in

France), keys, insurance papers, as well as other personal

belongings were recovered from Mohan Kumar @ Mohan

and a juvenile, whose name is withheld.

37. In Sharad Birdhichand Sarda v. State of Maharashtra

29

, this

Court referred to Hanumant v. State of Madhya Pradesh

30

, and

laid down the five golden principles (‘panchsheel’) that should be

satisfied before a case based on circumstantial evidence against

an accused can be said to be fully established:

(i) the circumstances from which the conclusion of guilt is to be

drawn should be fully established;

(ii) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except that

the accused is guilty;

(iii) the circumstances should be of a conclusive nature and

tendency;

(iv) they should exclude every possible hypothesis except the

one to be proved; and

(v) there must be a chain of evidence so complete as not to leave

any reasonable ground for the conclusion consistent with the

29

(1984) 4 SCC 116.

30

(1952) 2 SCC 71.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 30 of 35

innocence of the accused and must show that in all human

probability the act must have been done by the accused.

38. This Court in Sharad Birdhichand Sarda (supra) rejected the

contention that if the defence case is false it would constitute an

additional link as to fortify the case of the prosecution. However, a

word of caution was laid down to observe that a false explanation

given can be used as a link when:

(i) various links in the chain of evidence laid by the prosecution

have been satisfactorily proved;

(ii) circumstance points to the guilt of the accused with

reasonable definiteness; and

(iii) the circumstance is in proximity to the time and situation.

If these conditions are fulfilled only then the court can use the false

explanation or a false defence as an additional link to lend an

assurance to the court and not otherwise. Thus, a distinction has to

be drawn between incomplete chain of circumstances and a

circumstance after a chain is complete and the defence or

explanation given by the accused is found to be false, in which

event the said falsehood is added to reinforce the conclusion of the

court.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 31 of 35

39. This Court in Deonandan Mishra v. State of Bihar

31

has laid down

the following principle regarding circumstantial evidence and the

failure of accused to adduce any explanation:

“It is true that in a case of circumstantial evidence not

only should the various links in the chain of evidence be

clearly established, but the completed chain must be

such as to rule out a reasonable likelihood of the

innocence of the accused. But in a case like this where

the various links as stated above have been

satisfactorily made out and the circumstances point to

the appellant as the probable assailant, with reasonable

definiteness and in proximity to the deceased as

regards time and situation, and he offers no

explanation, which if accepted, though not proved,

would afford a reasonable basis for a conclusion on the

entire case consistent with his innocence, such

absence of explanation or false explanation would itself

be an additional link which completes the chain. We are,

therefore, of the opinion that this is a case which

satisfies the standards requisite for conviction on the

basis of circumstantial evidence.”

40. The appellant – Perumal Raja @ Perumal in his statement under

Section 313 of the Code of Criminal Procedure, 1973 plainly denied

all accusations without furnishing any explanation regarding his

knowledge of the places from which the dead body was recovered.

In this circumstance, the failure of the appellant – Perumal Raja @

Perumal to present evidence on his behalf or to offer any cogent

explanation regarding the recovery of the dead body by virtue of his

special knowledge must lead to a reasonable adverse inference, by

application of the principle under Section 106 of the Evidence Act,

31

(1955) 2 SCR 570.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 32 of 35

thus forming an additional link in the chain of circumstances. The

additional link further affirms the conclusion of guilt as indicated by

the prosecution evidence.

41. The whereabouts of Rajini @ Rajinikanth were unknown. The

perpetrator(s) were also unknown. It is only consequent to the

disclosure statement by the appellant – Perumal Raja @ Perumal,

that the police came to know that Rajini @ Rajinikanth had been

murdered and his body was first dumped in the sump tank and after

some months, it was retrieved, cut into two parts, put in sack bags,

and thrown in the river/canal. The police, accordingly, proceeded

on the leads and recovered the parts of the dead body from the

sump tank and sack bags from the river/canal. It has been also

established that Rajini @ Rajinikanth was murdered. In addition,

there have been recoveries of the motorcycle and other belongings

at the behest of the appellant – Perumal Raja @ Perumal. These

facts, in the absence of any other material to doubt them, establish

indubitable conclusion that the appellant – Perumal Raja @

Perumal is guilty of having committed murder of Rajini @

Rajinikanth. The presence of motive reinforces the above

conclusion.

42. It has been contended before us that the appellant – Perumal Raja

@ Perumal had been acquitted in the case arising out of crime No.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 33 of 35

204 of 2008 relating to the murder of Rajaram. The judgment

passed by the trial court

32

has been taken on record as additional

evidence. However, we do not find this judgment in any way

relevant or negating the prosecution evidence, which we have

referred to and elucidated earlier in the prosecution case against

the appellant, because the murder trial of Rajaram was primarily

based upon an entirely different set of evidence. The evidence we

have mentioned in the present case is not relevant and directly

connected with the murder of Rajaram. The two occurrences are

separate, albeit the appellant – Perumal Raja @ Perumal was

accused of the murder of Rajaram and his son Rajini @ Rajinikanth.

The murders certainly were committed on two different dates –

23.11.2007 (or thereabout) and 21.04.2008 respectively,

approximately five months apart. Except for the fact that the

appellant – Perumal Raja @ Perumal was taken into custody during

the course of investigation in FIR No. 204 of 2008 for murder of

Rajaram and thereupon on 25.04.2008 his disclosure statement

(Exhibit P-37) was recorded, there is no connection between the

two offences. The conviction of the appellant is, therefore,

sustainable in view of the evidence placed on record in the present

case. The judgment of acquittal would not qualify as relevant and

32

Dated 13.06.2017.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 34 of 35

of evidentiary value so as to acquit the appellant – Perumal Raja @

Perumal in the present case.

33

43. Acquittal of the co-accused, as noticed in paragraph 4 above, again

is for want of evidence against them. At best, they were found in

possession of the articles connected with the crime on the basis of

the disclosure statement (Exhibit P-37) dated 25.04.2008 made by

the appellant – Perumal Raja @ Perumal. Section 27 of the

Evidence Act could not have been applied to the other co-accused

for the simple reason that the provision pertains to information that

distinctly relates to the discovery of a 'fact' that was previously

unknown, as opposed to fact already disclosed or known. Once

information is given by an accused, the same information cannot be

used, even if voluntarily made by a co-accused who is in custody.

Section 27 of the Evidence Act does apply to joint disclosures, but

this is not one such case.

34

This was precisely the reason given by

the trial court to acquit the co-accused. Even if Section 8 of the

Evidence Act is to apply, it would not have been possible to convict

the co-accused. The trial court rightly held other co-accused not

guilty. For the same reason, acquittal of co-accused Chella @

Mukundhan, who was earlier absconding, is also of no avail.

33

See §§ 40-43 of the Indian Evidence Act, 1872.

34

See State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, ¶ 145.

Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 35 of 35

44. As far as acquittal of the juvenile is concerned, reference can be

made to the provisions of Sections 40 to 43 of the Evidence Act.

45. In view of the above discussion, we have no difficulty in upholding

the conviction of the appellant – Perumal Raja @ Perumal. The

appeal is dismissed.

......................................J.

(SANJIV KHANNA)

…...................................J.

(S. V. N. BHATTI)

NEW DELHI;

JANUARY 03, 2024.