As per the case facts, the appellant was accused of murder. The High Court had overturned the trial court's acquittal and convicted the appellant. The prosecution alleged that the appellant ...
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 242 OF 2022
SUBRAMANYA …..APPELLANT
VERSUS
STATE OF KARNATAKA …..RESPONDENT
J U D G M E N T
J.B. PARDIWALA, J.
1.This statutory criminal appeal is at the instance of a convict
accused charged with the offence of murder of one Kamalamma
(deceased) and is directed against the judgment and order of
conviction passed by the High Court of Karnataka dated
02.07.2019 in the Criminal Appeal No. 473 of 2013 by which
the High Court allowed the acquittal appeal filed by the State of
Karnataka against the judgment and order of acquittal passed
by the Principal Sessions Judge, Chikmagalur dated 20.12.2012
in the Sessions Case No. 59 of 2011 and held the appellant
herein guilty of the offence of murder punishable under Section
302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). The
High Court sentenced the appellant herein to undergo life
imprisonment with fine of Rs. 25,000/ and in the event of
default of payment of fine to undergo further simple
imprisonment for a period of six months.
CASE OF PROSECUTION
2. The appellant herein along with two other coaccused, namely,
Gowri alias Gowramma wife of late Nagaraj and Seetharam Bhat
son of late Nagabhatt were put to trial in the Sessions Case No.
59 of 2011 for the offences punishable under Sections 120B,
302, 379 and 201 read with Section 34 of the IPC. All the three
accused were put to trial in the court of Principal Sessions
Judge, Chikmagalur. The original accused No. 2, namely, Gowri
(acquitted) was born in the wedlock of one Manjappanaika and
his first wife. The deceased, namely, Kamalamma was the
second wife of the Manjappanaika. Gowri (original accused No.
2) happens to be the step daughter of the deceased
Kamalamma. After the demise of Manjappanaika his immovable
properties were divided between the deceased Kamalamma and
Gowri (A2). In the wedlock of Manjappanaika and the deceased
two daughters were born, namely, Sugandha (PW 1) and
Sujatha. The deceased Kamalamma used to reside all alone at
the village Horabylu adjacent to the house of the original
accused No. 2 Gowri. Gowri is a widow and at the relevant point
of time was staying along with her two children. It is the case of
the prosecution that Gowri (A2) had an illicit relationship with
the appellant herein. The deceased Kamalamma was highly
opposed to such illicit relationship and used to reprimand both,
the appellant and Gowri.
3.According to the case of the prosecution, the appellant herein
and Gowri conspired on 23.08.2010 to do away with the
deceased Kamalamma. Both are alleged to have entered her
house and somewhere near the cattle shed, the deceased was
hit on her head and neck with a hard object like a club. Later,
the appellant and Gowri are alleged to have removed the gold
chain, a pair of ear studs and one gold ring from the body of the
deceased Kamalamma. They took away her mobile also.
4.It is the case of the prosecution that after the deceased
Kamalamma was done to death, the original accused No. 3,
namely, Seetharam Bhat came into picture. Seetharam Bhat (A
3) is alleged to have helped the appellant and Gowri in wrapping
the dead body of the deceased in a sari and thereafter dumping
it on the land of one Dinamani. The land of Dinamani is
situated besides a water channel. It is alleged that with the aid
of a crowbar, a pit was dug and the dead body of the deceased
was buried with the intention to destroy the evidence.
5.According to the case of the prosecution, the appellant sold the
gold ornaments to a jeweller, namely, Somashekhara Shetty (PW
9). PW 9 Somashekhara Shetty at the relevant point of time was
running a jewellery shop at Rippanpet. So far as the mobile is
concerned, the same is said to have been sold by the appellant
herein to one Ashok alias Meeranath (PW 16). Ashok alias
Meeranath (PW 16) is a resident of a place called Surathkal.
6. On 24.08.2010, Alok (son of Gowri) informed the soninlaw of
the deceased, namely, H.T. Yogesh (PW 7) that his motherin
law (deceased) had been missing since 23.08.2010. In such
circumstances, H.T. Yogesh went (PW 7) to the Koppa, Police
Station (P.S.) and filed a missing complaint.
7. On 09.12.2010 at 21:30 hours, Seetharam Bhat (A3) is said to
have met H.T. Yogesh (PW7) and made an extra judicial
confession before him stating that about four months back the
appellant herein and Gowri had lured him with a bottle of
brandy and saying so had asked him to accompany them as
they had some work. Thereafter, the appellant and Gowri are
said to have revealed or rather made an extra judicial confession
before Seetharam Bhat (A3) that they had committed murder of
the deceased Kamalamma and had kept the body in a cattle
shed.
8.The appellant and Gowri asked Seetharam Bhat (A3) to help
them in disposing of the dead body. When Seetharam (A3)
declined to help them, he was threatened by the appellant and
Gowri. Accordingly, Seetharam Bhat (A3) accompanied them
and helped in removing the gold ornaments from the body of the
deceased and burying the body at the field of one Dinamani.
9. On 10.12.2010, H.T. Yogesh (PW 7) went to the Police Station
and lodged a First Information Report for the offence of murder.
10. Upon registration of the First Information Report, the
investigation had commenced. All the three accused persons
came to be arrested. While the appellant herein and Gowri (A2)
were in custody of the Police they are said to have made
statements that they would show the place where the dead body
had been buried and also the place where the weapon of offence
(club) had been concealed. The appellant is also said to have
made a statement that he would also show the place where he
had sold of the ornaments of the deceased.
11.Accordingly, a discovery panchnama Ex. P.3 was drawn under
Section 27 of the Indian Evidence Act, 1872. The photographs of
the exhumation of the body were also taken and admitted as Ex.
P.4. The Inquest panchnama of the body of the deceased, Ex.
P.14 was also drawn.
12.The ornaments said to have been sold by the appellant herein to
a jeweller, Somashekhara Shetty (PW 9), were collected from his
shop by drawing a panchnama Ex. P.1.
13.The clothes of the appellant herein are said to have been
discovered at his instance from the place nearby the house of
the deceased by drawing a panchnama Ex. P.6. The weapon of
offence (club) was also discovered at the instance of the
appellant herein by drawing a panchnama Ex. P.8. It appears
that one more weapon in the form of a spade was discovered at
the instance of the original accused No. 3 Seetharam by drawing
a panchnama Ex. P.8.
14.The dead body of the deceased was sent for postmortem at the
General Hospital, Koppa.
15.The postmortem report Ex. P.17 reveals that the cause of death
was due to head injuries in the form of fractures.
16.At the end of the investigation, the Investigating Officer filed
chargesheet against the appellant and the two coaccused for
the offences enumerated above. Upon filing of the chargesheet,
the case was committed by the Magistrate under Section 209 of
the Cr.P.C. to the Sessions Court which came to be registered as
the Sessions Case No. 59 of 2011 in the court of Principal
Sessions Judge, Chikmagalur.
17. The trial court framed charge against all the accused persons
vide order dated 20.12.2012. Appellant herein and the other two
coaccused pleaded not guilty to the charge.
18. The prosecution adduced the following oral evidence in support
of its case:
(1)PW 1 Sugandha, CW 7, daughter of the deceased.
(2)PW 2 Vishwa K. K., CW 9, panchwitness to the discovery
of the ornaments from the shop of the jewellery and also
the discovery of the dead body.
(3)PW 3 Nandi Purela, CW 11, panchwitness.
(4)PW 4 H.S. Sathyamurthi, CW 13, panchwitness.
(5)PW 5 T. Somaiah, CW18, panchwitness.
(6)PW 6 Sridhar Shetty, CW 20, panchwitness.
(7)PW 7 H. T. Yogesh, CW 1, soninlaw of the deceased
before whom original accused No. 3 is said to have been
made extra judicial confession.
(8)PW 8 H. M. Ravikanth, CW 4, panchwitness.
(9)PW 9 I. Somashekhara Shetty, CW 14, jeweler to whom the
ornaments were sold.
(10)PW 10 Ravi Shetty, CW 22, panchwitness to the discovery
of the mobile.
(11)PW 11 Dr. J. Neelakantappa Gowda, CW 29, panch
witness.
(12)PW 12 C.V. Harish, CW 26 panchwitness.
(13) PW 13 Thousif Ahmed, CW 32, panchwitness to the place
of incident.
(14)PW 14 J.K. Shivakumar, CW 37, Revenue Officer.
(15)PW15 Dayanand Gowda, CW 28, Assistant Commissioner.
(16)PW 16 Meeranath Gowda, CW 24, Cook at Sharath Bar
and Restaurant. The appellant used to assist the PW 16 at
the restaurant.
(17)PW 17 Mahesh E.S., CW 41, Police Officer.
(18)PW 18 Manjeshwara Kalappa, CW 40, Police Officer.
(19)PW 19 T. Sanjeeva Naik, CW 42, Police Officer.
19.The prosecution also adduced documentary evidence in the form
of FIR, Inquest panchnama, discovery panchnamas etc.
20.The trial court framed the following points of determination in its
judgment:
“1) Whether the prosecution proves that Kamalamma,
w/o late Manjappanaika died a homicidal death?
2) Whether the prosecution proves that on or about
23.8.2010, in Hirekudige village in Koppa Taluk,
accused Nos. 1 and 2, in furtherance of their common
intention or otherwise, agreed and conspired with each
other to murder Kamalamma, w/o late Manjappanaika,
and thereby committed an offence of criminal conspiracy,
punishable under Section 120B read with Section 34 of
I.P.C?
3) Whether the prosecution proves that on the aforesaid
date at about 9.00 PM, in the house of Kamalamma at
Hirekudige village in Koppa Taluk, accused Nos.1 and 2,
in furtherance of common intention, did commit murder
by intentionally and knowingly causing the death of
Kamalamma, by assaulting on her head and neck by
means of club, and thereby committed an offence
punishable under Section 302 read with Section 34 of
I.P.C?
4) Whether the prosecution proves that on the aforesaid
date, time and place, accused No.1, committed theft of a
gold chain, a pair of earstuds, one gold ring and a mobile
handset belonging to deceased Kamalamma and thereby
committed an offence punishable under Section 379 of
I.P.C?
5) Whether the prosecution proves that on or about the
aforesaid date, in furtherance of common intention,
accused Nos.1 and 3, knowing that the offence of
murder, punishable with death or imprisonment for life,
has been committed by accused Nos. 1 and 2, caused
certain evidence to disappear, to wit, buried the dead
body of Kamalamma, by the side of the Government
channel at Horabylu, with an intention to screen the
offenders (accused Nos.1 and 2) from legal punishment,
and thereby committed an offence punishable under
Section 201 read with Section 34 of I.P.C?
6) What order?”
21. The aforesaid points of determination came to be answered by
the trial court as under:
“POINT No. 1: In the affirmative;
POINT No.2: In the negative;
POINT No.3: In the negative;
POINT No.4: In the negative;
POINT No.5: In the negative;
POINT No.6: As per final order, for the following:”
22.The prosecution in the course of the trial relied upon the
following circumstances to prove its case against the accused
persons:
(1)Motive to commit the crime. According to the prosecution,
the appellant herein had illicit relationship with original accused
No. 2, namely, Gowri and the deceased was coming in their way.
In such circumstances, the appellant herein and the original
accused No. 2 had the motive to commit the crime.
(2)Extra judicial confession alleged to have been made by the
accused No. 3 Seetharam Bhat before the PW 7 Yogesh (sonin
law of the deceased) after four months of the date of incident.
(3)Discovery of the dead body at the instance of the appellant
herein by drawing a panchnama under Section 27 of the
Evidence Act.
(4)Recovery of the ornaments from the shop of the Jeweller
(PW 9) at the instance of the appellant herein by drawing a
panchnama.
(5)The discovery of the weapon of offence, mobile of the
deceased and the clothes of the appellant accused at the instance
of the appellant herein under Section 27 of the Evidence Act.
23.We shall now look into the reasonings assigned by the trial court
while not accepting any of the aforesaid circumstances, as
incriminating circumstances, establishing the guilt of the
accused persons. We quote as under:
“34. The first circumstance which the prosecution is
intending to rely upon is motive that A1 was having
illicit relation with A2 and in that context, deceased
Kamalamma used to abuse them and she was also
making propaganda about the same and the accused
persons were enraged by that and thinking that she is
an obstacle for their relation, they conspired to get rid of
her and murdered the deceased. In circumstantial
evidence, motive plays important role and it must be
strong and reliable. If prosecution fails to prove the
motive, it will be beneficial to the accused. Even though
P.Ws.1, 2 and 7 have deposed that the mother of P.W.1,
the deceased used to tell her that A1 and A2 are having
illicit relation and she used to scold them for having such
illicit relation, but if we see the crossexamination of P.W.
1, it discloses that A1 is distant brother to A2 and that
there was a panchayath before the division of the
properties between the deceased and A2. Even in the
case of the prosecution, the prosecution has not proved
by examining any witness to substantiate the said fact
of illicit relation between A1 and A2, who have either
seen them together or that they have advised them to
give up the same. Even though P.W.1, the daughter and
P.W.7, the soninlaw of the deceased have deposed
about the illicit relation between A1 and A2, but they
have deposed that the deceased used to tell about the
illicit relations and they are not the direct witnesses to
substantiate the said fact. Their evidence is only hearsay
in nature. As such, the evidence regarding the illicit
relation is not acceptable and reliable in law.
35. The second circumstance which the prosecution is
intending to rely upon is the confession made by A3
before P.W.7, the soninlaw of the deceased. It is the
specific case of the prosecution that on 9.12.2010 he had
been to Gadikallu and at about 9.30 PM, near the Circle,
A3 met him and there he told that about 3 or 3 1/2
months back he had been called by A1 and told that he
had murdered Kamalamma and in order to bury the
dead body, asked his help by providing two bottles of
brandy and he also told that if he is not going to obey, he
will also kill him as done to his brotherinlaw Srinivase
Gowda. He also told that he helped him in carrying the
dead body to the mound near the land of Dinamani and
buried it. During the course of crossexamination, he has
admitted that he is not going to ask any personal
matters of A3 nor he will tell his personal matters to
him. He has further admitted that he is not having any
confidence in him and vice versa, A3 is also not having
any confidence in him. A3 is also not a friend or relative
of P.W.7. In order to establish that A3 made a
confession before P.W.7, A3 must have reposed
confidence in him and he must have some faith with the
person to whom he is making such a confession. When
P.W.7 is neither a relative nor a friend, why A3 is going
to make such a confession before P.W.7 who is a close
relative of the deceased, is a mystery. Under the facts
and circumstances of the present case on hand, it is very
difficult to believe that A3 would make such a
confession before P.W.7 about the crime committed by
them. While considering the evidence of extra judicial
confession, the Court must also verify whether the
accused could repose confidence in such a person so as
to disclose a secret aspect of his life. For this proposition
of law, I want to rely upon the decision reported in AIR
1975 SUPREME COURT 258, [THE STATE OF PUNJAB
v/s BHAJAN SINGH & OTHERS] wherein it is held as
under:
“(C) Evidence Act (1872), S.24 Extra judicial
confession – Value of the evidence of extra judicial
confession in the very nature of things is a weak
piece of evidence. (The evidence adduced in this
respect in the instant case, held, lacked plausibility
and did not inspire confidence.) Para 15”
36. In another decision reported in [2011] ACR 704 in the
case of SK. YUSUF v/s STATE OF WEST BENGAL, the
Hon'ble Supreme Court of India has again held as under:
"C. Evidence Act, 1872 S.25 Extra judicial
confession – Extra judicial confession must be
established to be true and made voluntarily and in a
fit state of mind Extra judicial confession can be
accepted and can be the basis of a conviction if it
passes the test of credibility. Para 22"
37. Leave apart this, as per the evidence of P.W.7, A3
met him 3 1/2 months or 4 months after the incident.
Usually, if at all, a confession is going to be made by the
offenders in respect of the commission of the offence, it
will be made immediately after the incident which they
have committed and not after a long gap and the
confession is going to be made immediately before the
person who come across with him and with whom he is
having full faith. In this behalf also the evidence which
has been produced before the court is not cogent and
reliable and the prosecution has utterly failed to prove
the said circumstance which it is intending to rely upon.
38. The third circumstance which the prosecution is
intending to rely upon is that of accused showing the
place of commission of offence and the place of burial of
the dead body. As per the evidence of P.W.19, the
Investigating Officer, on 10.12.2010, C.Ws.36 and 37
produced accused No.1 at about 9.00 PM; C.Ws.34 and
35 produced accused No.2 at the same time; and
P.Ws.17 and C.W.38 produced accused No.3 at the same
time. He has further deposed that thereafter he recorded
their voluntary statements and on the basis of that, he
traced the place of burial. If we see the voluntary
statement of A1 as per Ex.P.28, he has stated that he
will show the place of burial. He has also volunteered
that he has committed the murder of deceased
Kamalamma and he will produce the club, mobile, spade
and another club which has been used for the purpose of
transportation of the dead body and he will also produce
the ornaments which he has taken from the body and
the same has been marked as Ex.P.28. Accused nos.2
and 3 have volunteered to show the place where they
have buried the dead body. If we see the evidence of this
witness with the evidence of the other witnesses, it is not
accused nos.2 and 3 who took the IO and the panch
witnesses and showed the place of burial. P.Ws.2 and 8
have deposed that about one year back, he saw the
dead body of deceased near a halla situated at
Dinamani land at a mound and there, the Dy.S.P. and
the A.C., were also present. A1 and A3 showed the
place of burial of the dead body. But, nowhere these
witnesses have spoken that A1 and A3 led them and
showed the place of burial. If already the said burial
spot was known to the Dy.S.P, and the A.C., then under
such circumstances, it cannot be held that it is at the
instance of the accused that the said place has been
discovered. If we see the evidence of P.W.8, he has
deposed that the said body was fully decomposed and
one blouse and one petticoat were found on the dead
body and if we see the evidence of P. W.15, he has
deposed that accused nos.1 and 3 led them to a mound
in survey No.121 and showed the place where they had
buried the dead body of deceased Kamalamma and he
got it exhumed through A1, A3 and P.W.3. The said
body was highly decomposed and an old type blouse
and a petticoat were there over the said body. But if we
see the crossexamination of this witness, he received
the requisition on 10.12.2010 and thereafter on
11.12.2010 he fixed the timing to exhume the body and
he went there at about 10.30 AM and when he was
about to enter the village, police were also there along
with A1 and A3 and other witnesses, Doctor and
Videographer were also present. Then, under such
circumstances, the evidence of P.W.15 that A1 and A3
led them and showed the place where they had buried
the dead body is also not believable and reliable. It is not
for the first time that he came to know about the dead
body in that place. He has categorically deposed that the
body was highly decomposed. But if we see the evidence
of P.W.11, the Doctor, he found a semi decomposed, legs
little semi flexed in position, head was covered with
black and gray hairs measuring 12 inches in length,
2/3rd of the body was decomposed and breast was also
semidecomposed. If the alleged murder has taken place
on 23.8.2010, with the above condition of the body, the
exhumation of the body must have been done earlier to
11.12.2010 and not on 11.12.2010, 3 1/2 months later
as contended by the prosecution, or else, the death must
have taken place at a later date which is closer to the
date of exhumation and examination. According to
P.W.19, accused nos.2 and 3 volunteered to show the
place where they have buried the dead body, but as per
the case of the prosecution, accused nos.1 and 3 have
showed the place. That also creates a doubt. In that
behalf, there is no consistency in the evidence to show
that it is at the instance of A1 and A3 by their voluntary
statement, the fact about the place of burial has been
discovered. Under such circumstances, this circumstance
which the prosecution is intending to rely upon, cannot
be said to be proved beyond reasonable doubt.
39. The next circumstance which the prosecution is
intending to rely upon is that of recovery of the
ornaments at the instance of accused No. 1. In this
behalf, the prosecution is intending to rely upon the
evidence of P.W.2 and P.W.9. P.W.2 in his evidence has
deposed that after 2 or 3 days again police called him
and along with C.W.13, A1 was also present and that
himself, C.W.13 and the PI were led by A1 to Rippanpet.
There, A1 took them to Someshwara Jewellers shop and
there A1 asked to give the gold ornaments given by him
and C.W.14 returned the said gold ornaments and the
same were seized by drawing a Mahazar as per Ex.P.1.
Admittedly, this witness is the nephew of the deceased
and even though by the side of the Police Station and the
jewellery shop there are so many shops and other
persons were available, but why this particular person
has been chosen as a witness is also not forthcoming.
40. P.W.9 is the owner of the jewellery shop. He has
deposed that A1 came and sold the gold articles prior to
3 1/2 months back by coming to his shop and he
returned the said articles and they were seized by
drawing a Mahazar as per Ex.P.1. During the course of
crossexamination, he has deposed that they will not
maintain any receipt book for having purchased the gold
and he has also further deposed that when he
purchased the gold articles, they were just like new and
there will be wear and tear found on the gold articles
even though they have been renewed with new coatings.
When the said articles appear to be new one and even
after 3 1/2 months of their purchase by P.W.9 who is a
jeweller, they were in the same condition in which they
have been recovered at the instance of A1 is hard to
believe and in this behalf also, the case of the
prosecution is not worthy of acceptance.
41. The next circumstance which the prosecution is
intending to rely upon is the recovery of the club,
umbrella, mobile and spade and the seizure of the
clothes of A1 and A3. Even though the recovery
evidence has been given by P.Ws.8, 10,16 and P.Ws.4
and 5, but if we closely scrutinise their evidence, the club
which has been recovered is also not having stains and
it is a new one. Even it is not believable that the said
clubs which have been thrown by the accused persons in
that particular area will be available in the condition in
which they have been thrown even after 3 1/2 months.
By bare looking by this court, M.Os. 9 and 14 are just
like new clubs. If they are exposed to rain, water and
sun, definitely they would have changed their colour and
shape. So also, the recovery of the clothes of the accused
persons. In this behalf also, the recovery evidence of all
these articles has not been proved by the prosecution
beyond all reasonable doubt.
42. Even though the learned Public Prosecutor
vehemently argued and contended that at the instance of
the accused, the body has been exhumed and the
recovery has been done and A3 has also confessed
before P.W.7 and the prosecution has also proved the
motive that A1 and A2 were having illicit relation, the
same is not acceptable under the above said
circumstances.
43. The material witnesses in this case have not been
examined by the prosecution for the reasons best known
to it. It is the specific case of the prosecution that one
Alok, son of accused No.2 informed P.W.7 about the
missing of the deceased. But the said Alok has not been
examined. The body of deceased is found buried in
Survey No.121 of Dinamani and Narayanaswamy, and
when the said body was found there in the said land
belonging to them, then, under such circumstances, they
are considered to be material witnesses. Non
examination of these material witnesses will also not fill
up the gap which the prosecution has to fill up to prove
its case beyond all reasonable doubt. From what date
that the deceased was missing and how nobody noticed
about the missing of the deceased is also not brought on
record by the prosecution, for the reasons best known to
it. This particular doubt also goes to the benefit of the
accused. Even though P.W. 1 was knowing that the
deceased, her mother, was having a mobile and after
coming to know about the missing of her mother on
24.8.2010, she will not make any efforts to make a call
to the mobile of her mother which is an unnatural
conduct on her part. No daughter, after coming to know
that the mother is missing, will keep quiet, that too when
she knows that her mother is having a mobile. Definitely
she could have made a call. For what reasons P.W. 1 did
not make any call to her mother's mobile is also a
doubtful circumstance.
44. It is settled principle of law that when two views are
possible from the prosecution evidence, the one which is
favourable to the accused shall have to be taken and the
benefit of doubt shall have to be given to the accused.
Taking into consideration the above said facts and
circumstances of the case, I answer point Nos.2 to 5 in
the negative.”
24.Thus, the trial court, upon appreciation of the oral as well as
documentary evidence, came to the conclusion that the
prosecution had failed to prove its case against the accused
persons beyond reasonable doubt and accordingly, vide the
judgment and order dated 20.12.2012, acquitted the appellant
herein and the other two coaccused of all the charges.
25.The State of Karnataka being dissatisfied with the judgment and
order of acquittal passed by the trial court challenged the same
by filing the Criminal Appeal No. 473 of 2013 in the High Court
of Karnataka. The High Court upon reappreciation of the entire
oral as well as the documentary evidence on record dismissed the
acquittal appeal so far as the original accused No. 2 Gowri alias
Gowramma is concerned thereby affirming her acquittal.
However, the appellant herein came to be convicted for the
offence of murder punishable under Section 302 of the IPC and
was sentenced to undergo life imprisonment with fine of Rs.
25,000/. Appellant was also convicted for the offence punishable
under Section 201 read with Section 34 of the IPC and was
sentenced to undergo simple imprisonment for five years with
fine of Rs. 5,000/. The original accused No. 3 Seetharam Bhat
came to be convicted for the offence punishable under Section
201 read with Section 34 of the IPC and was sentenced to
undergo simple imprisonment for a period of three years with fine
of Rs. 5,000/ and in case of default to undergo further simple
imprisonment for a period of two months.
26.We are informed that the original accused No. 3 Seetharam Bhat
accepted the conviction and has undergone the sentence. The
original accused No. 3 thought fit not to file any appeal before
this Court.
27.It is the appellant herein (original accused No. 1), who is here
before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT CONVICT
28.Mr. Krishna Pal Singh, the learned counsel appearing for the
appellant convict vehemently submitted that the High Court
committed a serious error in passing the impugned judgment
and order of conviction by reversing the wellreasoned judgment
and order of acquittal passed by the trial court. According to the
learned counsel, while sitting in judgment over an acquittal, the
appellate court is first required to seek an answer to the question
whether the findings of the trial court are palpably wrong,
manifestly erroneous or demonstrably unsustainable. If the
appellate court answers the above question in the negative, the
order of acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be recorded, that the order
of acquittal cannot at all be sustained, in view of any of the above
infirmities, it can then – and then only – reappraise the evidence
to arrive at its own conclusions. The principal argument of the
learned counsel appearing for the appellant convict is that in the
case on hand, there is no finding recorded by the High Court that
the judgment of the trial court is palpably wrong, manifestly
erroneous or demonstrably unsustainable.
29.The learned counsel would further submit that the High Court
committed a serious error in making the extra judicial confession
alleged to have been made by the original accused No. 3
Seetharam Bhat before the PW 7 almost after four months from
the date of the incident is the basis and thereafter, trying to
search for corroboration. It was argued that even otherwise, an
extra judicial confession is a weak piece of evidence. He would
argue that in the case on hand, the High Court should not have
relied upon the extra judicial confession alleged to have been
made by the accused No. 3 Seetharam before the PW 7 Yogesh
for the purpose of convicting the appellant herein.
30.The learned counsel also submitted that the High Court
committed a serious error in relying upon the various discoveries
like the weapon of offence, jewellery, mobile, clothes etc. under
Section 27 of the Evidence Act.
31.In such circumstances referred to above, the learned counsel
prays that there being merit in his appeal, the same may be
allowed and the impugned judgment and order passed by the
High Court may be set aside.
SUBMISSIONS ON BEHALF OF THE STATE
32.Mr. V.N. Raghupathy, the learned counsel appearing for the State
of Karnataka, on the other hand, has vehemently opposed this
appeal submitting that no error not to speak of any error of law
could be said to have been committed by the High Court in
passing the impugned order. He would submit that the
circumstances are fully established pointing only towards the
guilt of the appellant convict. In such circumstances referred to
above, the learned counsel appearing for the State prayed that
there being no merit in the present appeal, the same may be
dismissed.
ANALYSIS
33.Having heard the learned counsel appearing for the parties and
having gone through the material on record, the only question
that falls for our consideration is whether the High Court
committed any error in passing the impugned judgment and
order of conviction.
34.The High Court should have been mindful of the fact that it was
dealing with an acquittal appeal filed by the State under Section
378 of the Cr.PC. It would be useful to review the approach to be
adopted while deciding an appeal against the acquittal by the
trial court.
35.In one of the earliest cases on the powers of the High Court, in
dealing with an appeal against an order of acquittal the Judicial
Committee of the Privy Council, in Sheo Swarup v. King
Emperor, 1934 SCC OnLine PC 42 : (193334) 61 IA 398 : AIR
1934 PC 227 (2), considered the provisions relating to the power of
an appellate court in dealing with an appeal against an order of
acquittal and observed as under:
“…..But in exercising the power conferred by the Code
and before reaching its conclusions upon fact, the High
Court should and will always give proper weight and
consideration to such matters as: (1) the views of the trial
Judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he
has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness
of an appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of seeing
the witnesses. To state this, however, is only to say that
the High Court in its conduct of the appeal should and
will act in accordance with rules and principles well
known and recognised in the administration of justice.”
It was stated that the appellate court has full powers to review and
to reverse the acquittal.
36.Following the Sheo Swarup (supra) this Court in Chandrappa
and Others v. State of Karnataka reported in (2007) 4 SCC 415
held as under:
“16. It cannot, however, be forgotten that in case of
acquittal, there is a double presumption in favour of the
accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person should be
presumed to be innocent unless he is proved to be guilty
by a competent court of law. Secondly, the accused
having secured an acquittal, the presumption of his
innocence is certainly not weakened but reinforced,
reaffirmed and strengthened by the trial court.”
37.In Atley v. State of Uttar Pradesh, AIR 1955 SC 807, the
approach of the appellate court while considering a judgment of
acquittal was discussed and it was observed that unless the
appellate court comes to the conclusion that the judgment of the
acquittal was perverse, it could not set aside the same. To a
similar effect are the following observations of this Court speaking
through Subba Rao, J. (as his Lordship then was) in Sanwat
Singh and Others v. State of Rajasthan, AIR 1961 SC 715 in
para 9 held as under:
“9. The foregoing discussion yields the following results:
(1) an appellate court has full power to review the
evidence upon which the order of acquittal is founded; (2)
the principles laid down in Sheo Swarup’s case, 61 Ind
App 398 : (AIR 1934 PC 227 (2)) afford a correct guide for
the appellate court's approach to a case in disposing of
such an appeal; and (3) the different phraseology used in
the judgments of this Court, such as, (i) “substantial and
compelling reasons”, (ii) “good and sufficiently cogent
reasons”, and (iii) “strong reasons” are not intended to
curtail the undoubted power of an appellate court in an
appeal against acquittal to review the entire evidence
and to come to its own conclusion; but in doing so it
should not only consider every matter on record having a
bearing on the questions of fact and the reasons given by
the court below in support of its order of acquittal in its
arriving at a conclusion on those facts, but should also
express those reasons in its judgment, which lead it to
hold that the acquittal was not justified.”
38.The need for the aforesaid observations arose on account of the
observations of the majority in Aher Raja Khima v. State of
Saurashtra, AIR 1956 SC 217 : 1956 Cri LJ 426, which stated
that for the High Court to take a different view on the evidence
“there must also be substantial and compelling reasons for
holding that the trial court was wrong”.
39. M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 :
(1963) 1 Cri LJ 235, is the judgment of the Constitution Bench of
this Court, speaking through Gajendragadkar, J. (as his Lordship
then was). This Court observed that the approach of the High
Court (appellate court) in dealing with an appeal against acquittal
ought to be cautious because the presumption of innocence in
favour of the accused “is not certainly weakened by the fact that
he has been acquitted at his trial”.
40. In Shivaji Sahabrao Bobade and Another v. State of
Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, in para
6, Krishna Iyer, J., observed as follows:
“6. …..In short, our jurisprudential enthusiasm for
presumed innocence must be moderated by the
pragmatic need to make criminal justice potent and
realistic. A balance has to be struck between chasing
chance possibilities as good enough to set the delinquent
free and chopping the logic of preponderant probability to
punish marginal innocents…..”
41.This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996)
9 SCC 225 : 1996 SCC (Cri) 972, in para 7 spoke about the
approach of the appellate court while considering an appeal
against an order acquitting the accused and stated as follows:
“7. …..While sitting in judgment over an acquittal the
appellate court is first required to seek an answer to the
question whether the findings of the trial court are
palpably wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate court answers the above
question in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court holds, for
reasons to be recorded, that the order of acquittal cannot
at all be sustained in view of any of the above infirmities
it can then — and then only — reappraise the evidence to
arrive at its own conclusions…..”
The object and the purpose of the aforesaid approach is to ensure
that there is no miscarriage of justice. In other words, there
should not be an acquittal of the guilty or a conviction of an
innocent person.
42. In Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC
110 : 1997 SCC (Cri) 992, in para 16, this Court set out the
following principles that would regulate and govern the hearing of
an appeal by the High Court against an order of acquittal passed
by the trial court:
“16. This Court has thus explicitly and clearly laid down
the principles which would govern and regulate the
hearing of appeal by the High Court against an order of
acquittal passed by the trial court. These principles have
been set out in innumerable cases and may be reiterated
as under:
(1) In an appeal against an order of acquittal, the High
Court possesses all the powers, and nothing less than
the powers it possesses while hearing an appeal
against an order of conviction.
(2) The High Court has the power to reconsider the
whole issue, reappraise the evidence and come to its
own conclusion and findings in place of the findings
recorded by the trial court, if the said findings are
against the weight of the evidence on record, or in
other words, perverse.
(3) Before reversing the finding of acquittal, the High
Court has to consider each ground on which the order
of acquittal was based and to record its own reasons
for not accepting those grounds and not subscribing to
the view expressed by the trial court that the accused
is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court
has to keep in view the fact that the presumption of
innocence is still available in favour of the accused and
the same stands fortified and strengthened by the
order of acquittal passed in his favour by the trial
court.
(5) If the High Court, on a fresh scrutiny and
reappraisal of the evidence and other material on
record, is of the opinion that there is another view
which can be reasonably taken, then the view which
favours the accused should be adopted.
(6) The High Court has also to keep in mind that the
trial court had the advantage of looking at the
demeanour of witnesses and observing their conduct in
the Court especially in the witnessbox.
(7) The High Court has also to keep in mind that even
at that stage, the accused was entitled to benefit of
doubt. The doubt should be such as a reasonable
person would honestly and conscientiously entertain
as to the guilt of the accused.”
43.This Court in Chandrappa (supra) highlighted that there is one
significant difference in exercising power while hearing an appeal
against acquittal by the appellate court. The appellate court
would not interfere where the judgment impugned is based on
evidence and the view taken was reasonable and plausible. This
is because the appellate court will determine the fact that there is
presumption in favour of the accused and the accused is entitled
to get the benefit of doubt but if it decides to interfere it should
assign reasons for differing with the decision of acquittal. After
referring to a catena of judgments, this Court culled out the
following general principles regarding the powers of the Appellate
Court while dealing with an appeal against an order of acquittal
in the following words:
“42. From the above decisions, in our considered view,
the following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court 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
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his 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
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.”
44.In Nepal Singh v. State of Haryana, (2009) 12 SCC 351, this
Court reversed the judgment in the State of Haryana v. Nepal
Singh, CRAD No. 99DBA of 1993, order dated 2171997
(P&H), of the High Court which had set aside the judgment of
acquittal pronounced by the trial court and restored the
judgment of the trial court acquitting the accused on
reappreciation of the evidence.
45. The circumstances under which an appeal would be entertained
by this Court from an order of acquittal passed by a High Court
may be summarised as follows:
45.1.Ordinarily, this Court is cautious in interfering with an order of
acquittal, especially when the order of acquittal has been
confirmed up to the High Court. It is only in rarest of rare cases,
where the High Court, on an absolutely wrong process of
reasoning and a legally erroneous and perverse approach to the
facts of the case, ignoring some of the most vital facts, has
acquitted the accused, that the same may be reversed by this
Court, exercising jurisdiction under Article 136 of the
Constitution. [State of Uttar Pradesh v. Sahai and Others,
(1982) 1 SCC 352]. Such fetters on the right to entertain an
appeal are prompted by the reluctance to expose a person, who
has been acquitted by a competent court of a criminal charge, to
the anxiety and tension of a further examination of the case, even
though it is held by a superior court. [Arunachalam v. P.S.R.
Sadhanantham and Another , (1979) 2 SCC 297]. An appeal
cannot be entertained against an order of acquittal which has,
after recording valid and weighty reasons, has arrived at an
unassailable, logical conclusion which justifies acquittal. [State
of Haryana v. Lakhbir Singh and Another, 1991 Supp (1)
SCC 35 : 1990 Cri LJ 2274].
45.2.However, this Court has on certain occasions, set aside the order
of acquittal passed by a High Court. The circumstances under
which this Court may entertain an appeal against an order of
acquittal and pass an order of conviction, may be summarised as
follows:
45.2.1. Where the approach or reasoning of the High Court is perverse:
(a) Where incontrovertible evidence has been rejected by the High
Court based on suspicion and surmises, which are rather
unrealistic. [State of Rajasthan v. Sukhpal Singh and
Others, (1983) 1 SCC 393]. For example, where direct,
unanimous accounts of the eyewitnesses, were discounted
without cogent reasoning. [State of U.P. v. Shanker, 1980 Supp
SCC 489 : 1981 SCC (Cri) 428].
(b) Where the intrinsic merits of the testimony of relatives, living
in the same house as the victim, were discounted on the ground
that they were “interested” witnesses. [State of U.P. v. Hakim
Singh and Others, (1980) 3 SCC 55].
(c) Where testimony of witnesses had been disbelieved by the
High Court, on an unrealistic conjecture of personal motive on
the part of witnesses to implicate the accused, when in fact, the
witnesses had no axe to grind in the said matter. [ State of
Rajasthan v. Sukhpal Singh and Others , (1983) 1 SCC 393].
(d) Where dying declaration of the deceased victim was rejected
by the High Court on an irrelevant ground that they did not
explain the injury found on one of the persons present at the site
of occurrence of the crime. [Arunachalam v. P.S.R.
Sadhanantham and Another , (1979) 2 SCC 297].
(e) Where the High Court applied an unrealistic standard of
“implicit proof” rather than that of “proof beyond reasonable
doubt” and therefore evaluated the evidence in a flawed manner.
[State of Uttar Pradesh v. Ranjha Ram and Others , (1986) 4
SCC 99].
(f) Where the High Court rejected circumstantial evidence, based
on an exaggerated and capricious theory, which were beyond the
plea of the accused; [State of Maharashtra v. Champalal
Punjaji Shah, (1981) 3 SCC 610] or where acquittal rests merely
in exaggerated devotion to the rule of benefit of doubt in favour of
the accused. [Gurbachan Singh v. Satpal Singh and Others ,
(1990) 1 SCC 445].
(g) Where the High Court acquitted the accused on the ground
that he had no adequate motive to commit the offence, although,
in the said case, there was strong direct evidence establishing the
guilt of the accused, thereby making it unnecessary on the part
of the prosecution to establish “motive”. [State of Andhra
Pradesh v. Bogam Chandraiah and Another , (1986) 3 SCC
637].
45.2.2. Where acquittal would result in gross miscarriage of justice:
(a) Where the findings of the High Court, disconnecting the
accused persons with the crime, were based on a perfunctory
consideration of evidence, [State of U.P. v. Pheru Singh and
Others, 1989 Supp (1) SCC 288] or based on extenuating
circumstances which were purely based in imagination and
fantasy [State of Uttar Pradesh v. Pussu alias Ram Kishore ,
(1983) 3 SCC 502].
(b) Where the accused had been acquitted on ground of delay in
conducting trial, which delay was attributable not to the
tardiness or indifference of the prosecuting agencies, but to the
conduct of the accused himself; or where accused had been
acquitted on ground of delay in conducting trial relating to an
offence which is not of a trivial nature. [State of
Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610].
46.Having gone through the entire impugned judgment passed by
the High Court, we do not find any satisfaction recorded therein
that the findings of the trial court are palpably wrong, manifestly
erroneous or demonstrably unsustainable. In the absence of
such satisfaction, the High Court, in our opinion, should not
have disturbed a wellreasoned judgment of acquittal, passed by
the trial court. We shall assign reasons hereafter why the High
Court should not have disturbed the acquittal recorded by the
trial court.
PRINCIPLES GOVERNING APPRECIATION OF CIRCUMSTANTIAL
EVIDENCE
47. A threeJudge Bench of this Court in Sharad Birdhichand
Sarda v. State of Maharashtra , (1984) 4 SCC 116, held as
under:
“152. Before discussing the cases relied upon by the
High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant v. State of Madhya Pradesh [AIR
1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This
case has been uniformly followed and applied by this
Court in a large number of later decisions uptodate, for
instance, the cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]
and Ramgopal v. State of Maharashtra [(1972) 4 SCC
625 : AIR 1972 SC 656] . It may be useful to extract what
Mahajan, J. has laid down in Hanumant case [AIR 1952
SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to
show that within all human probability the act must
have been done by the accused.
153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ‘must or should’ and not ‘may
be’ established. There is not only a grammatical but a
legal distinction between ‘may be proved’ and “must be
or should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the
following observations were made : [SCC para 19, p. 807
: SCC (Cri) p. 1047]
Certainly, it is a primary principle that the
accused must be and not merely may be guilty before
a court can convict and the mental distance between
‘may be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.
(2) 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,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
48.In an Essay on the Principles of Circumstantial Evidence by
William Wills by T. and J.W. Johnson and Co. 1872, it
has been explained as under:
“In matters of direct testimony, if credence be given to the
relators, the act of hearing and the act of belief, though
really not so, seem to be contemporaneous. But the case is
very different when we have to determine upon
circumstantial evidence, the judgment in respect of which
is essentially inferential. There is no apparent necessary
connection between the facts and the inference; the facts
may be true, and the inference erroneous, and it is only by
comparison with the results of observation in similar or
analogous circumstances, that we acquire confidence in
the accuracy of our conclusions. ?∙
The term PRESUMPTIVE is frequently used as
synonymous with CIRCUMSTANTIAL EVIDENCE; but it is
not so used with strict accuracy, The word"
presumption," ex vi termini, imports an inference from
facts; and the adjunct "presumptive," as applied to
evidentiary facts, implies the certainty of some relation
between the facts and the inference. Circumstances
generally, but not necessarily, lead to particular
inferences; for the facts may be indisputable, and yet
their relation to the principal fact may be only apparent,
and not real; and even when the connection is real, the
deduction may be erroneous. Circumstantial and
presumptive evidence differ, therefore, as genus and
species.
The force and effect of circumstantial evidence depend
upon its incompatibility with, and incapability of,
explanation or solution upon any other supposition than
that of the truth of the fact which it is adduced to prove;
the mode of argument resembling the method of
demonstration by the reductio ad absurdum.”
49. Thus, in view of the above, the Court must consider a case of
circumstantial evidence in light of the aforesaid settled legal
propositions. In a case of circumstantial evidence, the judgment
remains essentially inferential. The inference is drawn from the
established facts as the circumstances lead to particular
inferences. The Court has to draw an inference with respect to
whether the chain of circumstances is complete, and when the
circumstances therein are collectively considered, the same must
lead only to the irresistible conclusion that the accused alone is
the perpetrator of the crime in question. All the circumstances so
established must be of a conclusive nature, and consistent only
with the hypothesis of the guilt of the accused.
ANALYSIS OF THE CIRCUMSTANCES RELIED UPON BY THE HIGH
COURT
50.It is the case of the prosecution that the original accused No. 3
Seetharam Bhat had made an extra judicial confession before the
PW 7, H.T. Yogesh (soninlaw of the deceased). PW 7 in his
examinationinchief, recorded by the trial court on 21.01.2012
has stated as under:
“1. I know the accused persons who are present before
the court. Deceased Kamalamma is my motherinlaw.
C.W.8 is my wife. P.W.1 is my wife's sister. C.W.12 is the
husband of P.W.1. C.W.5 and 6 are the brothers of the
deceased. I know other witnesses. My motherinlaw
died on 23.08.2010 due to murder. The son of A2
Gowramma by name Alok on 24.08.2010 came at about
6.30 a.m. and told that my motherinlaw Kamalamma is
not found since yesterday night. A2 is the daughter of
first wife of the husband of deceased Kamalamma.
Deceased used to reside Hosamane, Hirekudige village.
By the side of the house of deceased A2 used to reside.
Deceased alone used to stay there and A2 and their
children used to stay by the side of the house of the
deceased. Husband of A2 is no more. We also came. By
telling to all we searched for my motherinlaw
Kamalamma. As we could not trace at about 1 p.m. I
went to Police Station and filed a missing complaint. I did
not get any information about my motherinlaw even
after giving the missing complaint.
2. On 09.12.2010 I had been to Gadikallu. At about 9.30
p.m. at Gadikallu circle A3 Seetharam Bhat met me and
there he told that about 3 or 3 1/2 months back he had
been called by A1 and told that he had murdered
Kamalamma and in order to bury the dead body asked
his help by providing two bottles of brandy and he also
told that if he would not obey he will also kill him as
done to his brotherinlaw Srinivase Gowda. He also told
that he helped him in carrying the dead body to Dhare
near the land of Dinamani and there they have buried
the body.
3.Deceased Kamalamma used to tell that A2 is having
illicit relation and they are not liking her as she is telling
to everybody.
4. Thereafter I went to Police Station on 10.12.2010 and
filed the complaint. Now I see the said complaint. The
same is now marked as Ex.P11. Ex.P11(a) is my
signature.
5. Next day when police and Assistant Commissioner
came to the spot I was also called there. C.W.2 to 4 were
also called. There A1 and A3 showed the place where
they had buried the body of Kamalamma to us and also
to the police and Assistant Commissioner. Thereafter
with the help of P.W.3 the dead body of Kamalamma
was exhumed. The dead body was buried in survey
No.121, the Govt. land by the side of a channel at
Horabylu. When the body was exhumed it was fully
decomposed. Over the body one petticoat, one blouse
were there. There the Assistant Commissioner draw the
body exhumed mahazar. Now I see the same. The same
is already marked as Ex.P3. Ex.P3(b) is my signature.
At that time photographs were also taken. Now the three
photos have been marked as Ex P4. Apart from me
C.Ws. 2 to 4 and P.W.3 also signed.
6. On 14.12.2010 again police called me at about 2 p.m.
to the Police Station. In the said police station A1 was
also present. Police brought C.W.24 Meeranath and he
produced a mobile. The said mobile was of the deceased
Kamalamma. The same was seized in the presence of
C.W.22 and 23 by drawing a mahazar. Now I see the
same. The same is now marked as Ex.P12. Ex.P12(a) is
my signature. At that time photo was also taken. Now
the said photo is marked as Ex.P13. I can identify the
mobile if shown to me. The same is already marked as
M.O.4. I do not remember the cell number of my mother
in law. She has studied upto 4th standard.
7. My motherinlaw used to wear a chain with
Ganapathi pendant which is already marked as M.O.1,
one pair of ole with blue stone in the middle surrounded
by white stones which is already marked as M.O.2, one
gold ring with red stone which is already marked as
M.O.3. I can identify the blouse and petticoat which were
found on the body of the deceased. (Now one sealed
cover is shown to the learned counsel for the accused.
The seals are found intact. He has no objection to open
the same. The same is now opened). It contains one
blouse and one petticoat. Witness identifies the same.
The same are now marked as M.O.11 and 12.”
51.We need not refer to the crossexamination of the PW 7, as we are
of the view that the plain reading of the examinationinchief itself
is sufficient to arrive at the conclusion that the extra judicial
confession could not have been relied upon as an incriminating
circumstance.
52.The date of the alleged crime is 23.08.2010. The so called extra
judicial confession, said to have been made by Seetharam Bhat
(accused No. 3) is dated 09.12.2010. We fail to understand why
all of a sudden Seetharam (accused No. 3) after a period of almost
four months, thought fit to make an extra judicial confession
before the PW 7 H.T. Yogesh involving himself and the appellant
herein in the alleged crime.
53.An extra judicial confession, if voluntary and true and made in a
fit state of mind, can be relied upon by the Court. The confession
will have to be proved like any other fact. The value of the
evidence as to confession, like any other evidence, depends upon
the veracity of the witness to whom it has been made. The value of
the evidence as to the confession depends on the reliability of the
witness who gives the evidence. It is not open to any court to start
with a presumption that extra judicial confession is a weak type of
evidence. It would depend on the nature of the circumstances, the
time when the confession was made and the credibility of the
witnesses who speak to such a confession. Such a confession can
be relied upon and conviction can be founded thereon if the
evidence about the confession comes from the mouth of witnesses
who appear to be unbiased, not even remotely inimical to the
accused, and in respect of whom nothing is brought out which
may tend to indicate that he may have a motive for attributing an
untruthful statement to the accused, the words spoken to by the
witness are clear, unambiguous and unmistakably convey that the
accused is the perpetrator of the crime and nothing is omitted by
the witness which may militate against it. After subjecting the
evidence of the witness to a rigorous test on the touchstone of
credibility, the extra judicial confession can be accepted and can
be the basis of a conviction if it passes the test of credibility.
54. Extra judicial confession is a weak piece of evidence and the court
must ensure that the same inspires confidence and is
corroborated by other prosecution evidence. It is considered to be
a weak piece of evidence as it can be easily procured whenever
direct evidence is not available. In order to accept extra judicial
confession, it must be voluntary and must inspire confidence. If
the court is satisfied that the extra judicial confession is
voluntary, it can be acted upon to base the conviction.
55. Considering the admissibility and evidentiary value of extra
judicial confession, after referring to various judgments,
in Sahadevan and Another v. State of Tamil Nadu , (2012) 6
SCC 403, this Court held as under:
“15.1. In Balwinder Singh v. State of Punjab [1995 Supp
(4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the
principle that: (SCC p. 265, para 10)
“10. An extrajudicial confession by its very nature is
rather a weak type of evidence and requires
appreciation with a great deal of care and caution.
Where an extrajudicial confession is surrounded by
suspicious circumstances, its credibility becomes
doubtful and it loses its importance.”
x x x x
15.4. While explaining the dimensions of the principles
governing the admissibility and evidentiary value of an
extrajudicial confession, this Court in State of
Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC
(Cri) 1965] stated the principle that: (SCC p. 192, para
19)
“19. An extrajudicial confession, if voluntary and true
and made in a fit state of mind, can be relied upon by
the court. The confession will have to be proved like
any other fact. The value of the evidence as to
confession, like any other evidence, depends upon the
veracity of the witness to whom it has been made.”
The Court further expressed the view that: (SCC p. 192,
para 19)
“19. … Such a confession can be relied upon and
conviction can be founded thereon if the evidence
about the confession comes from the mouth of
witnesses who appear to be unbiased, not even
remotely inimical to the accused, and in respect of
whom nothing is brought out which may tend to
indicate that he may have a motive of attributing an
untruthful statement to the accused.…”
x x x
x
15.6. Accepting the admissibility of the extrajudicial
confession, the Court in Sansar Chand v. State of
Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79]
held that: (SCC p. 611, paras 2930)
“29. There is no absolute rule that an extrajudicial
confession can never be the basis of a conviction,
although ordinarily an extrajudicial confession should
be corroborated by some other material. [Vide Thimma
and Thimma Raju v. State of Mysore [(1970) 2 SCC
105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of
U.P. [AIR 1959 SC 902 : 1959 Cri LJ
1219] , Sivakumar v. State [(2006) 1 SCC 714 : (2006)
1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41
and 42), Shiva Karam Payaswami Tewari v. State of
Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri)
1320] and Mohd. Azad v. State of W.B.[(2008) 15 SCC
449 : (2009) 3 SCC (Cri) 1082] ]””
[Emphasis supplied]
56. It is well settled that conviction can be based on a voluntarily
confession but the rule of prudence requires that wherever
possible it should be corroborated by independent evidence.
Extra judicial confession of accused need not in all cases be
corroborated. In Madan Gopal Kakkad v. Naval Dubey and
Another, (1992) 3 SCC 204, this Court after referring to Piara
Singh and Others v. State of Punjab , (1977) 4 SCC 452, held
that the law does not require that the evidence of an extra
judicial confession should in all cases be corroborated. The rule
of prudence does not require that each and every circumstance
mentioned in the confession must be separately and
independently corroborated.
57. The sum and substance of the aforesaid is that an extra judicial
confession by its very nature is rather a weak type of evidence
and requires appreciation with great deal of care and caution.
Where an extra judicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
importance like the case in hand. The Courts generally look for
an independent reliable corroboration before placing any reliance
upon an extra judicial confession.
58.This Court in Kashmira Singh v. The State of Madhya
Pradesh reported in AIR 1952 SC 159, had observed as under:
“The confession of an accused person is not evidence in
the ordinary sense of the term as defined in Section 3. It
cannot be made the foundation of a conviction and can
only be used in support of other evidence. The proper
way is, first, to marshal the evidence against the
accused excluding the confession altogether from
consideration and see whether, if it is believed a
conviction could safely be based on it. If it is capable of
belief independently of the confession, then of course it is
not necessary to call the confession in aid. But cases
may arise where the Judge is not prepared to act on the
other evidence as it stands even though, if believed, it
would be sufficient to sustain a conviction. In such an
event the Judge may call in aid the confession and use it
to lend assurance to the other evidence and thus fortify
himself in believing what without the aid of the
confession he would not be prepared to accept. [para 8,
10]”
59.In the case on hand, the High Court committed a serious error in
making the confessional statement as the basis and thereafter
going in search for corroboration. The High Court concluded that
the confessional statement is corroborated in material particulars
without first considering and marshalling the evidence against
the appellant convict herein excluding the conviction altogether
from consideration. As held in the decision, cited above, only if
on such consideration on the evidence available, other than the
confession a conviction can safely be based then only the
confession could be used to support that belief or conclusion.
60.The trial court has assigned cogent reasons for not accepting the
evidence of the PW 7, before whom the confession is alleged to
have been made, and rightly so, the High Court has not given
any convincing reasons as to why the PW 7 who was discarded
by the trial court should be relied on.
61.The learned counsel appearing for the State, relied on Section 30
of the Evidence Act to make good his submission that, the extra
judicial confession alleged to have been made by the original
accused No. 3 Seetharam Bhat is admissible against the
appellant convict herein. No doubt, the statement would be
admissible but the question is not of mere admissibility or mere
absence of bar under Section 25 of the Evidence Act, the real
question relates to a proper interpretation of Section 30 of the
Evidence Act.
62.Section 30 of the Evidence Act is quoted below in toto:
“30. Consideration of proved confession affecting
person making it and others jointly under trial for
the same offence.—
When more persons than one are being tried jointly for
the same offence, and a confession made by one of such
persons affecting himself and some other of such persons
is proved, the Court may take into consideration such
confession as against such other person as well as
against the person who makes such confession.
[Explanation:—“Offence”, as used in this section includes
the abatement of, or attempt to commit the offence.]”
63.It was argued that this confession of a coaccused, even if
proved, cannot be the basis of a conviction and although it is
evidence in the generic sense, yet it is not evidence in the specific
sense and it could afford corroboration to other evidence and
cannot be the supporting point or the sole basis of the
conviction. In this respect, reference could be made to a decision
of this Court in the case of Haricharan Kurmi & Jogia
Hajam v. State of Bihar, as reported in AIR 1964 SC 1184, as
also to another decision of this Court reported in Ram Chandra
and Another v. State of Uttar Pradesh , AIR 1957 SC 381
wherein it was held that confession of a coaccused can only be
taken into consideration but it was not in itself a substantive
evidence. The Privy Council also held that a confession of a co
accused was obviously evidence of a very weak type and it did
not come within the definition of evidence contained in Section 3.
64.It is necessary to have the facts behind these decisions of the
Supreme Court and the Privy Council. We may proceed
chronologically.
65.In the case of Bhuboni Sahu v. The King reported in AIR 1949
PC 257, the Patna High Court had dismissed an appeal against a
judgment and order of the Sessions Judge convicting the
appellant for an offence of murder. The Privy Council, however,
advised His Majesty that the appeal be allowed and the judgment
was recorded giving the reasons for such advice. The evidence
against the appellant consisted of, (a) the evidence of Kholli
Behera who had taken part in the murder and had become an
approver, (b) the confession of Trinath recorded under Section
164 Cr. P.C. which implicated both himself and the appellant in
the murder, and (c) the recovery of a loin cloth identified as the
one which the deceased was wearing when he was assaulted and
an instrument for cutting grass. For the purpose of the instant
case, the evidence in point (b) is relevant. The Privy Council
quoted Section 30 of the Evidence Act and held in paragraph 9 of
the judgment (as reported) that Section 30 was introduced for the
first time in the Indian Evidence Act of 1872 and it was the
departure from the common law of England. It was observed that
this Section 30 applied to confessions and not to statements
which do not admit the guilt of the confessing party. It was held
that statement of Trinath was a confession. Their lordships
further observed that Section 30 seemed to be based on the view
that an admission of an accused person of his own guilt affords
some sort of sanction in support of the truth of his confession
against others as well as himself. But a confession of a co
accused, their lordships continued to observe, was obviously
evidence of a weaker type. It did not indeed come within the
definition of ‘evidence’ contained in Section 3 of the Evidence Act.
Such statement was not required to be given on oath nor in the
presence of the accused and it could not be tested by cross
examination. It was a much weaker type of evidence than the
evidence of an approver which was not subject to any of those
infirmities. Section 30, however, provided that the Court might
take into consideration the confession and thereby no doubt
made it evidence on which the Court could act, but the section
did not say that the confession was to amount to proof. Clearly,
there must be other evidence and confession was only one
element in the consideration of all the facts proved in the case,
which can be put into the scale and weighed with other evidence.
Their lordships confirmed the view that the confession of a co
accused could be used only in support of the evidence and could
not be made a foundation of a conviction.
66.The case of Ram Chandra (supra) before this Court, as reported
in AIR 1957 SC 381 was also of murder. It was a case in which
corpus delecti was not traceable and proof of murder solely
depended on a retracted confession of an accused. The Court was
of the view that although corpus delecti was not found, yet there
could be a conviction if reliable evidence, direct or
circumstantial, of the commission of murder was available.
However, a confession of a coaccused was not in itself a
substantive evidence. The courts below had relied on a
confession of accused Ram Chandra against a coaccused, Ram
Bharosey, for holding him guilty of the offences charged against
him. This Court held, “It is rightly urged that under Section 30,
Evidence Act confession of a coaccused can only be taken into
consideration but is not in itself substantive evidence.” This Court,
however, was satisfied that even excluding the confession as
substantive evidence there was enough material against the
appellant Ram Bharosey to find him guilty of offence of criminal
conspiracy to commit offences charged. To come to the ratio, we
find that the view was affirmed that confession of a coaccused
could only be considered but could not be relied on as
substantive evidence.
67.The case of Haricharan Kurmi (supra) was again from the
Patna High Court. Here also a question arose as to the probative
value of a confession of one accused against a coaccused. This
Court dealt with the definition clause in Section 3 in the
Evidence Act and Section 30 thereof, as also some earlier
decisions of this Court. It was observed, in paragraph 15 of the
judgment, as reported, “It is true that the confession made by Ram
Surat is a detailed statement and it attributes to the two
appellants a major part in the commission of the offence. It is also
true that the said confession has been found to be voluntary, and
true so far as the part played by Ram Surat himself is concerned,
and so, it is not unlikely that the confessional statement in regard
to the part played by the two appellants may also be true; and in
that sense, the rending of the said confession may raise a serious
suspicion against the accused. But it is precisely in such cases
that the true legal approach must be adopted and suspicion,
however, grave, must not be allowed to take the place of proof. As
we have already indicated, it has been a recognised principle of
administration of criminal law in this country for over half a
century that the confession of a coaccused person cannot be
treated as substantive evidence and can be pressed into service
only when the Court is inclined to accept other evidence and feels
the necessity of seeking for an assurance in support of its
conclusion deducible from the said evidence. In criminal trial, there
is no scope for applying the principle of moral conviction or grave
suspicion. In criminal cases where the other evidence adduced
against an accused person is wholly unsatisfactory and the
prosecution seeks to rely on the confession of a coaccused person,
the presumption of innocence which is the basis of criminal
jurisprudence assists the accused person and compels the Court
to render the verdict that the charge is not proved against him,
and so, he is entitled to the benefit of doubt. That is precisely what
has happened in these appeals.”
68.The case in hand is not one of a confession recorded under
Section 15 of the TADA Act. On the language of subsection (1) of
Section 15, a confession of an accused is made admissible
evidence as against all those tried jointly with him. So, it is
implicit that the same can be considered against all those, tried
together. In this view of the matter also, Section 30 of the
Evidence Act need not be invoked for consideration of confession
of an accused against the coaccused, abettor or conspirator
charged and tried in the same case along with the accused. The
accepted principle in law is that the confessional statement of an
accused recorded under Section 15 of the TADA Act is a
substantive piece of evidence against his coaccused, provided
the accused concerned are tried together. This is the fine
distinction between an extra judicial confession being a
corroborative piece of evidence and a confession recorded under
Section 15 of the TADA Act being treated as a substantive piece
of evidence.
DISCOVERY OF WEAPON OF OFFENCE, CLOTHES AND DEAD
BODY
69.For the purpose of proving the discovery of clothes of the
appellant herein at his instance by drawing a panchnama under
Section 27 of the Evidence Act, the prosecution has relied upon
the evidence of the PW 5 T. Somaiah. PW 5 in his examination
inchief has deposed as under:
“1. I know the accused persons who are present
before the court. I know C.W.19. About one year back
myself and C.W.19 were called by the police, at that time
A1 Subramanya was also there. From there A1 led us
near the house of Kamalamma. By the side of house of
Kamalamma there is a house of A2. Police told me that A1
is going to give the cloths, we have to be there. By the side
of house of Kamalamma from the place where the
firewood has been stored A1 removed one pant and one
shirt and produced before the police and thereafter the
same were seized by drawing a mahazar. Now I see the
said mahazar. The same is now marked as Ex.P6. Ex.P
6(a) is my signature. The said mahazar was drawn
between 9.30 a.m. to 10.30 a.m. (Now two covers are
shown to the learned counsel for the accused. He has no
objection to open the same. The same are now opened.)
They contain red colour shirt and cement colour pant. The
same are now marked as M.O.7 and 8 respectively. At the
time of seizing M.O.7 and 8 photograph is also taken. Now
I see the same. The same is now marked as Ex.P7.”
70.For the purpose of proving the discovery of the weapon of offence,
the prosecution has relied upon the examinationinchief at the
instance of the appellant convict herein. The prosecution has
relied upon the evidence of PW 6 Sridhar Shetty. Sridhar Shetty
in his examinationinchief has deposed as under:
“1. I know the accused persons who are present before
the court. I know C.W.21. On 14.12.2010 myself and
C.W.21 were called by C.W.42. At that time A1 and A3
and the president of Panchayath and many other
persons were also present. A1 and A3 led us to survey
No.121 Government land by the side of the estate of
Dinamani and there they told that they are going to
produce the club which has been used for the purpose of
commission of offence and which has been kept in a
bush. Thereafter A1 took out a club from the bush and
produced before the police. Now I see the said club which
is before the court. The same is now marked as M.O.9.
Thereafter A3 also went by the side of the bush and from
there he produced a spade. Now I see the said spade.
The same is now marked as M.O.10. Thereafter M.O.9
and 10 were seized by drawing a mahazar. Now I see
the said mahazar. The same is now marked as Ex.P8.
Ex.P8(a) is my signature. The said mahazar was drawn
in between 11 a.m to 11.30 a.m. At the time of drawing
the said proceedings photographs were also taken. Now
the said two photographs are marked as Ex.P9 and P
10.”
71.For the purpose of proving the discovery of the dead body of the
deceased at the instance of the appellant herein and the
acquitted coaccused (A2), the prosecution has relied upon
evidence of PW 7 H.T. Yogesh. PW 7 H.T. Yogesh in his
examinationinchief has deposed as under:
“5. Next day when police and Assistant Commissioner
came to the spot I was also called there. C.W.2 to 4 were
also called. There A1 and A3 showed the place where
they had buried the body of Kamalamma to us and also
to the police and Assistant Commissioner. Thereafter
with the help of P.W.3 the dead body of Kamalamma
was exhumed. The dead body was buried in survey
No.121, the Govt. land by the side of a channel at
Horabylu. When the body was exhumed it was fully
decomposed. Over the body one petticoat, one blouse
were there. There the Assistant Commissioner draw the
body exhumed mahazar. Now I see the same. The same
is already marked as Ex.P3. Ex.P3(b) is my signature.
At that time photographs were also taken. Now the three
photos have been marked as Ex P4. Apart from me
C.Ws. 2 to 4 and P.W.3 also signed.
6. On 14.12.2010 again police called me at about 2 p.m.
to the Police Station. In the said police station A1 was
also present. Police brought C.W.24 Meeranath and he
produced a mobile. The said mobile was of the deceased
Kamalamma. The same was seized in the presence of
C.W.22 and 23 by drawing a mahazar. Now I see the
same. The same is now marked as Ex.P12. Ex.P12(a) is
my signature. At that time photo was also taken. Now
the said photo is marked as Ex.P13. I can identify the
mobile if shown to me. The same is already marked as
M.O.4. I do not remember the cell number of my mother
in law. She has studied upto 4th standard.
7. My motherinlaw used to wear a chain with
Ganapathi pendant which is already marked as M.O.1,
one pair of ole with blue stone in the middle surrounded
by white stones which is already marked as M.O.2, one
gold ring with red stone which is already marked as
M.O.3. I can identify the blouse and petticoat which were
found on the body of the deceased. (Now one sealed
cover is shown to the learned counsel for the accused.
The seals are found intact. He has no objection to open
the same. The same is now opened). It contains one
blouse and one petticoat. Witness identifies the same.
The same are now marked as M.O.11 and 12.”
72.PW 8 H. M. Ravikanth also as one of the panchwitnesses has
deposed in his examinationinchief as under:
“2. On 11.12.2010 at about 10 a.m. C.P.I. called me,
C.W.2 and 3. At that time Assistant Commissioner was
also present and A1 Subramanya and A3 Seetharama
Bhat were also present. From Gadikallu police officials,
A.C., A1 and A3 alongwith me and C.W. 2 and 3 we
went to the place where the body has been buried. A1
took us to the said place where they had buried the
body. After showing the place where they had buried the
body of the deceased by A1 with the help of P.W.3 and
A1 and A3 the body was exhumed and there we noticed
that it is the dead body of Kamalamma. The said body
was fully decomposed and one blouse and one petticoat
were found on the dead body. For having exhumed the
body a mahazar was drawn as per Ex.P3. Ex.P3(c) is
my signature. There the photographs were also taken
about the proceedings. The said photographs have been
already marked as Ex.P4. The proceedings was also
videographed. Now the said C.D. is marked as M.O.13.
3. Thereafter the inquest mahazar was also drawn over
the body of the deceased. Now I see the said mahazar.
The same is now marked as Ex.P14. Ex.P14(a) is my
signature. At the time of drawing Ex.P14 C.W.2 and 3
were also present.
4. Thereafter A1 led us to the house of deceased
Kamalamma and took us to the backside door and at a
distance of 3 to 4 feet he showed the place where he has
murdered the deceased Kamalamma by assaulting.
Thereafter A1 took us to a cattleshed at a distance of 5 to
6 feet and from there he produced a club. Now I see the
said club. The club is marked as M.O.14. Thereafter
accused told that he has kept the umbrella of deceased
in Theerthahalli Kuppalli bus stand above the bus
shelter. Thereafter A1 led us in a police jeep to Kuppalli
and there after going near the bus stop A1 asked to stop
the jeep. After alighting from the jeep A1 went and took
out the umbrella kept on the roof of the shelter and
produced the same. Now I see the said umbrella. The
said umbrella is now marked as M.O.15. Now the spot
cum seizure mahazar of club and umbrella is confronted
to the witness. He admits his signature. The same is now
marked as Ex.P15. Ex.P15(a) is my signature. The said
mahazar has been drawn from 2 p.m. to 4 p.m. At that
time A3 was also present. A1 who is present before the
court is the same person who led us and produced
M.O.14 and 15 and A1 and A3 showed the place where
the dead body has been buried. At the time of mahazar
photographs have been also taken. The said five photos
are marked as Ex.P16.”
73.PW 9 Somashekhara (Jeweller) in his examinationinchief has
deposed as under:
“1. I know A1 when he came to my shop to sell the gold.
I am having a jewellery works at Rippanpet on the road
which leads to Theerthahalli. Police came alongwith A1
on 13.12.2010 at about 7 p.m. Alongwith police A1,
C.W.15/Gururaj were also there. I told the police that A1
had come and sold the gold in my shop. I took the gold
from A1 three and 1/2 months prior to police coming to
my shop alongwith A1. A1 sold one gold chain with
Ganapathi pendant, one pair of ole having blue stone in
the middle surrounded by white stones and one gold ring
with red stone. A1 while selling told that the said gold
articles belong to him, as he is having financial
difficulties in the family and he is also constructing a
house, for that reason he is selling the same. I paid
Rs.27,500/ to the accused for having purchased. Police
asked me to return the said articles. Accordingly I
returned and the same were seized by the police. C.W.15
appraised the gold articles and thereafter certified them.
At the time when the gold articles were seized it was
valuing Rs.47,000/. Now I see the said mahazar. The
same is already marked as Ex.P1. Ex.P1(b) is my
signature. Myself, C.W.l3, C.W.15 and P.W.2 have
signed Ex.P1. The said mahazar has been drawn from 7
p.m. to 8.30 p.m. I can identify the said gold articles
which have been seized under Ex.P1. They have been
already marked as M.Os. 1 to 3. At the time of seizing
M.Os. 1 to 3 police also took photographs. The same are
already marked as Ex.P2.”
74.PW 10 Ravi Shetty (one of the panchwitnesses) to the recovery of
mobile, in his examinationinchief has deposed as under:
“2. On 14.12.2010 myself, C.W.23 and 24 were called to
the Police Station at about 1.30 p.m. P.W.7 was also
present. C.W.24 produced the mobile which had been
sold by A1 to him. The said mobile has been seized by
drawing a mahazar as per Ex.P12. Ex.P12(b) is my
signature. M.O.4 is the same mobile which was produced
on that day. When the said proceedings took place
photographs were also taken. Now I see the said
photographs. They have been already marked as Ex.P
13.”
75.PW 19 T. Sanjeeva Naik is the Investigating Officer. In his
examinationinchief, he has deposed as under:
“2. On 10.12.2010 at about 1.30 p.m. I received the case
file and took the further investigation of this case from
P.W.17 and perused the investigation done by him.
Immediately I deployed P.S.I. and other staff to trace
about the accused. C.W. 36, 37 brought A1 and
produced before me at about 9 p.m. with a report. Now I
see the said report. The same is now marked as Ex.P26.
Ex.P26(a) is my signature, C.w.34 and 35 also informed
that they have apprehended A2 and secured and
produced before me with a report at about 9 p.m. Now I
see the said report. The same is now marked as Ex.P27.
Ex.P27(a) is my signature. P.W.17 and C.W.38
apprehended A3 and produced before me at about 9 p.m.
on the same day with a report. The report has been
already marked as Ex.P23. Ex.P23(b) is my signature.
Immediately I interrogated the accused persons and
recorded their voluntary statement. A1 volunteered that
he had committed the murder of deceased Kamalamma
and to produce the club, mobile, spade, another club
which had been used for transportation of dead body
and the ornaments which were taken over from the dead
body. Now the relevant portion the voluntary statement
of A1 is marked as Ex.P28. Ex.P28(a) is my signature.
A2 and A3 also volunteered to show the place where
they had buried the dead body. The said voluntary
statements have been recorded in the presence of C.W.2,
3 and P.W.8. I also sent immediately a requisition to
P.w.15 to come as a SubDivisional Magistrate to exhume
the body of deceased Kamalamma.
3. On 11.12.2010 P.W. 15 in the presence of panch
witnesses as shown by A1 and A3 he exhumed the body
of deceased in the presence of P.W.7, P.W.8, P.W.3,
C.W.2 and 3. For having exhumed the body a mahazar
was also drawn as per Ex.P3. Ex. P3(e) is my
signature. There the photographs were taken as per
Ex.P4. In the presence of above said panch witnesses I
also drew the inquest mahazar as per Ex.P14. Ex.P
14(b) is my signature. At the time of inquest I recorded
the statement of C.W.5, 6, P.W.1, C.W.8, P.W.2, C.W.10,
P.W.3 and C.W.12. Thereafter through C.W.39 I sent the
body to Govt. Hospital, Koppa for postmortem with a
requisition. I also requested to collect the material to send
for D.N.A. test from the body. Subsequently A1 led us
and showed the place where he has committed the
offence and there in the presence of C.W. 2, 3 and P.W.8
I drew the spot cum seizure mahazar as per Ex.P15.
ExP15(b) is my signature. At the time of drawing Ex.P15
he also produced M.O.14. Thereafter he led us to
Kuppalli bus stop and there he produced the umbrella
from the shelter of the said bus stand. The umbrella is
already marked as M.O.15. I seized M.O.15 under Ex.P
15. I also took the photographs of∙ the proceedings. The
said five photographs have been marked as Ex.P16.
Thereafter I came back alongwith accused and seized
articles and subjected the seized articles to
P.F.No.73/2010. I also produced A1 and A3 before the
court and took them to police custody. I produced A2
before the court with remand application.
4. On 13.12.2010 I secured P.W.2, C.W.13 and C.W.15.
Thereafter A1 led us to Rippanpet to the Someshwara
Jewellery works shop i.e., the shop of P.W.9. A1 asked
P.W.9 to produce M.Os. 1 to 3. As per the request of the
accused he produced M.Os. 1 to 3 which has been
pledged with him. He produced M.Os. 1 to 3 and I seized
them by drawing a mahazar as per Ex.P1. Ex.P1(c) is
my signature. I also took the photographs as per Ex.P2. I
have also videographed the said proceedings. I came
back to the Police Station with seized property and
subjected the seized articles to P.F.No.74/2010. I also
recorded the statement of P.W.9 and C.W.15. I also kept
A1 in police custody.
5. On 14.12.2010 I secured P.W.4 and C.w.17 and
thereafter A3 led us to his house at Kiranakere and there
he produced the M.O. 5 and 6 and there I seized them by
drawing a mahazar as per Ex.P5. Ex.P5(b) is my
signature. I also took the photographs. Now I see the
said two photographs. The same are now marked as
Ex.P29. There I secured P.W.5 and C.W.19 and
thereafter A1 led us to the house of A2 and from the
firestag he produced M.O.7 and 8 and there I seized
them by drawing a mahazar as per Ex.P6. Ex.P6(b) is
my signature. I also took the photographs as per Ex.P7.
Thereafter A1 and A3 led us to the place where they
have hidden M.O.9 and 10 and they went near the side
of bush at Government land Survey No.121 at Hirekodige
village and by going inside the bush A1 produced M.O.9
and A3 produced M.O.10. The same were seized by
drawing a mahazar as per Ex.P8. Ex.P8(b) is my
signature. There I also took the photographs as per Ex.P
9 and P10. Thereafter I came back to the Police Station
alongwith A1 and A3 and seized articles and subjected
the seized articles to P.F.No.75/2010 to 77/2010. On the
same day, as per my direction my constable C.W.36
secured P.W.16 to the Police Station. I secured P.W.10
and C.W.23 and P.W.16 produced the mobile M.O.4
which is said to have been sold by A1 to him and the
same was seized by drawing a mahazar as per Ex.P12.
Ex.P12(d) is my signature. PW.16 also identified A1 by
saying that he is the person who sold M.O.4 to him. At
the time of proceedings P.W.7 was also present. I also
took the photographs as per Ex.P13. Thereafter I
subjected M.O.4 to P.F.No.78/2010. I also recorded the
statement of P.W.16, further statement of C.W.5, C.W.6,
P.W.1, C.W.8 and C.W.25. I also produced A1 and A3
before the court with remand application.”
76.Keeping in mind the aforesaid evidence, we proceed to consider
whether the prosecution has been able to prove and establish the
discoveries in accordance with law. Section 27 of the Evidence Act
reads thus:
“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.”
77.The first and the basic infirmity in the evidence of all the aforesaid
prosecution witnesses is that none of them have deposed the exact
statement said to have been made by the appellant herein which
ultimately led to the discovery of a fact relevant under Section 27
of the Evidence Act.
78.If, it is say of the investigating officer that the accused appellant
while in custody on his own free will and volition made a
statement that he would lead to the place where he had hidden
the weapon of offence, the site of burial of the dead body, clothes
etc., then the first thing that the investigating officer should have
done was to call for two independent witnesses at the police
station itself. Once the two independent witnesses would arrive at
the police station thereafter in their presence the accused should
be asked to make an appropriate statement as he may desire in
regard to pointing out the place where he is said to have hidden
the weapon of offence etc. When the accused while in custody
makes such statement before the two independent witnesses
(panchwitnesses) the exact statement or rather the exact words
uttered by the accused should be incorporated in the first part of
the panchnama that the investigating officer may draw in
accordance with law. This first part of the panchnama for the
purpose of Section 27 of the Evidence Act is always drawn at the
police station in the presence of the independent witnesses so as
to lend credence that a particular statement was made by the
accused expressing his willingness on his own free will and
volition to point out the place where the weapon of offence or any
other article used in the commission of the offence had been
hidden. Once the first part of the panchnama is completed
thereafter the police party along with the accused and the two
independent witnesses (panchwitnesses) would proceed to the
particular place as may be led by the accused. If from that
particular place anything like the weapon of offence or blood
stained clothes or any other article is discovered then that part of
the entire process would form the second part of the panchnama.
This is how the law expects the investigating officer to draw the
discovery panchnama as contemplated under Section 27 of the
Evidence Act. If we read the entire oral evidence of the
investigating officer then it is clear that the same is deficient in all
the aforesaid relevant aspects of the matter.
79.In the aforesaid context, we may refer to and rely upon the
decision of this Court in the case of Murli and Another v. State
of Rajasthan reported in (2009) 9 SCC 417, held as under:
“34. The contents of the panchnama are not the
substantive evidence. The law is settled on that issue.
What is substantive evidence is what has been stated by
the panchas or the person concerned in the witness box.
……” [Emphasis supplied]
80. One another serious infirmity which has surfaced is in regard to
the authorship of concealment by the person who is said to have
discovered the weapon.
81. The conditions necessary for the applicability of Section 27 of the
Act are broadly as under:
(1)Discovery of fact in consequence of an information received
from accused;
(2)Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctly to the fact thereby
discovered is admissible – Mohmed Inayatullah v. The State
of Maharashtra: AIR (1976) SC 483
Two conditions for application: –
(1)information must be such as has caused discovery of the fact;
and
(2)information must relate distinctly to the fact discovered
Earabhadrappa v. State of Karnataka: AIR (1983) SC 446.
82. We may refer to and rely upon a Constitution Bench decision of
this Court in the case of State of Uttar Pradesh v. Deoman
Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph
71 explains the position of law as regards the Section 27 of the
Evidence Act:
“71. The law has thus made a classification of accused
persons into two: (1) those who have the danger brought
home to them by detention on a charge; and (2) those
who are yet free. In the former category are also those
persons who surrender to the custody by words or
action. The protection given to these two classes is
different. In the case of persons belonging to the first
category the law has ruled that their statements are not
admissible, and in the case of the second category, only
that portion, of the statement is admissible as is
guaranteed by the discovery of a relevant fact unknown
before the statement to the investigating authority. That
statement may even be confessional in nature, as when
the person in custody says: “I pushed him down such
and such mineshaft”, and the body of the victim is found
as a result, and it can be proved that his death was due
to injuries received by a fall down the mineshaft.”
[Emphasis supplied]
83. The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kottaya and Others v.
Emperor, AIR 1947 PC 67, which have become locus classicus,
in the following words:
"10. ….It is fallacious to treat the “fact discovered”
within the section as equivalent to the object produced;
the fact discovered embraces the place from which the
object is produced and the knowledge of the accused as
to this, and the information given must relate distinctly to
this fact. Information as to past user, or the past history,
of the object produced is not related to its discovery in
the setting in which it is discovered. Information supplied
by a person in custody that “I will produce a knife
concealed in the roof of my house” does not lead to the
discovery of a knife; knives were discovered many years
ago. It leads to the discovery of the fact that a knife is
concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used
in the commission of the offence, the fact discovered is
very relevant. But if to the statement the words be added
“with which I stabbed A" these words are inadmissible
since they do not relate to the discovery of the knife in
the house of the informant."
84. What emerges from the evidence of the investigating officer is
that the accused appellant stated before him while he was in
custody, “I may get discovered the murder weapon used in the
incident”. This statement does not indicate or suggest that the
accused appellant indicated anything about his involvement in
the concealment of the weapon. It is a vague statement. Mere
discovery cannot be interpreted as sufficient to infer authorship
of concealment by the person who discovered the weapon. He
could have derived knowledge of the existence of that weapon at
the place through some other source also. He might have even
seen somebody concealing the weapon, and, therefore, it cannot
be presumed or inferred that because a person discovered the
weapon, he was the person who had concealed it, least it can be
presumed that he used it. Therefore, even if discovery by the
appellant is accepted, what emerges from the substantive
evidence as regards the discovery of weapon is that the appellant
disclosed that he would show the weapon used in the
commission of offence.
85. In Dudh Nath Pandey v. State of U.P., AIR (1981) SC 911, this
Court observed that the evidence of discovery of pistol at the
instance of the appellant cannot, by itself, prove that he who
pointed out the weapon wielded it in the offence. The statement
accompanying the discovery was found to be vague to identify
the authorship of concealment and it was held that pointing out
of the weapon may, at the best, prove the appellant’s knowledge
as to where the weapon was kept.
86. Thus, in the absence of exact words, attributed to an accused
person, as statement made by him being deposed by the
investigating officer in his evidence, and also without proving the
contents of the panchnama, the High Court was not justified in
placing reliance upon the circumstance of discovery of weapon.
87. In the aforesaid context, we may also refer to a decision of this
Court in the case of Bodhraj alias Bodha and Others v. State
of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
“18. …..It would appear that under Section 27 as it
stands in order to render the evidence leading to
discovery of any fact admissible, the information must
come from any accused in custody of the police. The
requirement of police custody is productive of extremely
anomalous results and may lead to the exclusion of
much valuable evidence in cases where a person, who is
subsequently taken into custody and becomes an
accused, after committing a crime meets a police officer
or voluntarily goes to him or to the police station and
states the circumstances of the crime which lead to the
discovery of the dead body, weapon or any other
material fact, in consequence of the information thus
received from him. This information which is otherwise
admissible becomes inadmissible under Section 27 if the
information did not come from a person in the custody of
a police officer or did come from a person not in the
custody of a police officer. The statement which is
admissible under Section 27 is the one which is the
information leading to discovery. Thus, what is
admissible being the information, the same has to be
proved and not the opinion formed on it by the police
officer. In other words, the exact information given by the
accused while in custody which led to recovery of the
articles has to be proved. It is, therefore, necessary for
the benefit of both the accused and the prosecution that
information given should be recorded and proved and if
not so recorded, the exact information must be adduced
through evidence. The basic idea embedded in Section
27 of the Evidence Act is the doctrine of confirmation by
subsequent events. The doctrine is founded on the
principle that if any fact is discovered as a search made
on the strength of any information obtained from a
prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. The
information might be confessional or noninculpatory in
nature but if it results in discovery of a fact, it becomes a
reliable information. It is now well settled that recovery
of an object is not discovery of fact envisaged in the
section. Decision of the Privy Council in Pulukuri
Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74
IA 65] is the mostquoted authority for supporting the
interpretation that the “fact discovered” envisaged in the
section embraces the place from which the object was
produced, the knowledge of the accused as to it, but the
information given must relate distinctly to that effect.
(See State of Maharashtra v. Damu Gopinath
Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000
Cri LJ 2301] .) No doubt, the information permitted to be
admitted in evidence is confined to that portion of the
information which “distinctly relates to the fact thereby
discovered”. But the information to get admissibility need
not be so truncated as to make it insensible or
incomprehensible. The extent of information admitted
should be consistent with understandability. Mere
statement that the accused led the police and the
witnesses to the place where he had concealed the
articles is not indicative of the information given.”
[Emphasis supplied]
88. Mr. V.N. Raghupathy, the learned counsel for the State would
submit that even while discarding the evidence in the form of
various discovery panchnamas the conduct of the appellant herein
would be relevant under Section 8 of the Evidence Act. The
evidence of discovery would be admissible as conduct under
Section 8 of the Evidence Act quite apart from the admissibility of
the disclosure statement under Section 27 of the said Act, as this
Court observed in A.N. Venkatesh and Another v. State of
Karnataka, (2005) 7 SCC 714:
“9. By virtue of Section 8 of the Evidence Act, the conduct
of the accused person is relevant, if such conduct
influences or is influenced by any fact in issue or relevant
fact. The evidence of the circumstance, simpliciter, that
the accused pointed out to the police officer, the place
where the dead body of the kidnapped boy was found
and on their pointing out the body was exhumed, would
be admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 or not as held by
this Court in Prakash Chand v. State (Delhi
Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979
SC 400] . Even if we hold that the disclosure statement
made by the accusedappellants (Exts. P15 and P16) is
not admissible under Section 27 of the Evidence Act, still
it is relevant under Section 8…..”
[Emphasis supplied]
89. In the aforesaid context, we would like to sound a note of
caution. Although the conduct of an accused may be a relevant
fact under Section 8 of the Evidence Act, yet the same, by itself,
cannot be a ground to convict him or hold him guilty and that
too, for a serious offence like murder. Like any other piece of
evidence, the conduct of an accused is also one of the
circumstances which the court may take into consideration along
with the other evidence on record, direct or indirect. What we are
trying to convey is that the conduct of the accused alone, though
may be relevant under Section 8 of the Evidence Act, cannot form
the basis of conviction.
MOTIVE
90.The High Court has relied upon the strong motive for the
appellant convict to commit the crime as one of the incriminating
circumstances.
91.In the case of Sampath Kumar v. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this
Court held as under:
“29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004
SCC (Cri) Supp 85] the prosecution case was based
entirely upon circumstantial evidence and a motive.
Having discussed the circumstances relied upon by the
prosecution, this Court rejected the motive which was the
only remaining circumstance relied upon by the
prosecution stating that the presence of a motive was not
enough for supporting a conviction, for it is well settled
that the chain of circumstances should be such as to lead
to an irresistible conclusion, that is incompatible with the
innocence of the accused.
30. To the same effect is the decision of this Court
in Santosh Kumar Singh v. State [(2010) 9 SCC 747 :
(2010) 3 SCC (Cri) 1469] and Rukia Begum v. State of
Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 :
AIR 2011 SC 1585] where this Court held that motive
alone in the absence of any other circumstantial evidence
would not be sufficient to convict the appellant.
Reference may also be made to the decision of this Court
in Sunil Rai v. UT, Chandigarh [(2011) 12 SCC 258 :
(2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] . This Court
explained the legal position as follows: (Sunil Rai
case [(2011) 12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR
2011 SC 2545] , SCC p. 266, paras 3132)
“31. … In any event, motive alone can hardly be a
ground for conviction.
32. On the materials on record, there may be some
suspicion against the accused, but as is often said,
suspicion, howsoever strong, cannot take the place of
proof.”
31. Suffice it to say although, according to the appellants
the question of the appellant Velu having the motive to
harm the deceased Senthil for falling in love with his
sister, Usha did not survive once the family had decided
to offer Usha in matrimony to the deceased Senthil. Yet
even assuming that the appellant Velu had not
reconciled to the idea of Usha getting married to the
deceased Senthil, all that can be said was that the
appellant Velu had a motive for physically harming the
deceased. That may be an important circumstance in a
case based on circumstantial evidence but cannot take
the place of conclusive proof that the person concerned
was the author of the crime. One could even say that the
presence of motive in the facts and circumstances of the
case creates a strong suspicion against the appellant but
suspicion, howsoever strong, also cannot be a substitute
for proof of the guilt of the accused beyond reasonable
doubt.”
[Emphasis supplied]
92. Thus, even if it is believed that the accused appellant had a
motive to commit the crime, the same may be an important
circumstance in a case based on circumstantial evidence but
cannot take the place as a conclusive proof that the person
concerned was the author of the crime. One could even say that
the presence of motive in the facts and circumstances of the case
creates a strong suspicion against the accused appellant but
suspicion, howsoever strong, cannot be a substitute for proof of
the guilt of the accused beyond reasonable doubt. The trial court
rightly disbelieved motive to commit the crime as the evidence in
this regard is absolutely hearsay in nature.
93. The fact that we have ruled out the circumstances relating to the
making of an extra judicial confession and the discovery of the
weapon of offence etc. as not having been established, the chain
of circumstantial evidence snaps so badly that to consider any
other circumstance, even like motive, would not be necessary.
94.Thus, in view of the aforesaid discussion, we have reached to the
conclusion that the evidence of discovery of the weapon, clothes
and dead body of the deceased at the instance of the appellant
convict herein can hardly be treated as legal evidence, more
particularly, considering the various legal infirmities in the same.
95.For all the foregoing reasons, we have reached to the conclusion
that the High Court committed error in holding the appellant
convict herein guilty of the offence of murder.
96.In the result, this appeal succeeds and is hereby allowed. The
impugned judgment and order of conviction passed by the High
Court is hereby set aside.
97.The appellant convict shall be set at liberty forthwith, if not
required in any other case.
98.Pending application, if any, also stands disposed of.
..…….……………… CJI.
(UDAY UMESH LALIT)
………………..……….J.
(J.B. PARDIWALA)
New Delhi;
Date: October 13, 2022.
ITEM NO.1504 COURT NO.9 SECTION II-C
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No. 242/2022
SUBRAMANYA Appellant(s)
VERSUS
THE STATE OF KARNATAKA Respondent(s)
(IA No.17205/2022-CONDONATION OF DELAY IN FILING and IA
No.17206/2022-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT
and IA No.17207/2022-GRANT OF BAIL )
Date : 13-10-2022 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Krishna Pal Singh, AOR
Mr. Seemab Qayyum, Adv.
Ms. Anvita Aprajita, Adv.
Mr. Madhavendra Singh, Adv.
Mr. Mohan Singh Bais, Adv.
For Respondent(s) Mr. V. N. Raghupathy, AOR
Mr. Md. Apzal Ansari, Adv.
Mr. Parikshit P. Angadi, Adv.
Hon’ble Mr. Justice J. B. Pardiwala, pronounced the judgment
of the Bench comprising Hon’ble the Chief Justice of India and His
Lordship.
This appeal succeeds and is hereby allowed in terms of the
signed reportable judgment.
The impugned judgment and order of conviction passed by the
High Court is hereby set aside.
The appellant convict shall be set at liberty forthwith, if
not required in any other case.
Pending application, if any, also stands disposed of.
(SNEHA DAS) (RANJANA SHAILEY)
SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)
(Signed reportable judgment is placed on the file)
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