2022 Supreme(SC) 358

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, M.M. SUNDRESH, JJ.
Jafarudheen & Ors. - Appellants
Versus
State of Kerala - Respondent
Criminal Appeal Nos. 430-431 of 2015 With Criminal Appeal Nos. 450-451 of 2015, Criminal Appeal No. 959 of 2015
Decided On : 22-04-2022

IMPORTANT POINTS
(1) Court will have to be conscious of witness's credibility and other evidence produced when dealing with a recovery under Section 27 of Evidence Act.
(2) To attract Section 149 of IPC, prosecution has to prove its foundational facts.
(3) Recoveries are expected to be proved if relied upon by Court.
(4) Mere delay in despatch of FIR to Magistrate by itself cannot be a sole factor in rejecting prosecution's case arrived at after due investigation.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 378 – Appeal against acquittal – While dealing with appeal against acquittal by invoking Section 378 of Cr.P.C., Appellate Court has to consider whether Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed – Order of acquittal adds up to presumption of innocence in favour of accused – Appellate Court has to be relatively slow in reversing order of Trial Court rendering acquittal – Presumption in favour of accused does not get weakened but only strengthened – Such a double presumption that enures in favour of accused has to be disturbed only by thorough scrutiny on accepted legal parameters. (Paras 25)

(B) Criminal Procedure Code, 1973 – Section 157 – Delay in despatch of FIR to Magistrate – First information report in a criminal case starts process of investigation by letting criminal law into motion – It is certainly a vital and valuable aspect of evidence to corroborate oral evidence – It is imperative that such an information is expected to reach jurisdictional Magistrate at earliest point of time to avoid any possible ante-dating or ante-timing leading to insertion of materials meant to convict accused contrary to truth and on account of such a delay may also not only gets bereft of advantage of spontaneity – There is also a danger creeping in by introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation – However, mere delay by itself cannot be a sole factor in rejecting prosecution's case arrived at after due investigation – Ultimately, it is for Court concerned to take a call – Such a view is expected to be taken after considering relevant materials. (Paras 27)

(C) Criminal Procedure Code, 1973 – Section 161 – Delay in recording statement of a witness – Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense – Inordinate and unexplained delay may be fatal to prosecution's case but only to be considered by Court, on facts of each case – There may be adequate circumstances for not examining a witness at an appropriate time – However, non-examination of witness despite being available may call for an explanation from Investigating Officer – It only causes doubt in mind of Court which is required to be cleared. (Paras 28)

(D) Indian Evidence Act, 1872 – Section 27 – Disclosure statement – Section 27 of Evidence Act is an exception to Sections 24 to 26 – Admissibility under Section 27 is relatable to information pertaining to a fact discovered – This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense – It incorporates theory of “confirmation by subsequent facts” facilitating a link to chain of events – It is for prosecution to prove that information received from accused is relatable to fact discovered – Object is to utilize it for the purpose of recovery as it ultimately touches upon issue pertaining to discovery of a new fact through information furnished by accused – Onus is on prosecution to prove fact discovered from information obtained from accused – Any recovery under Section 27 will have to satisfy Court’s conscience – Court will have to be conscious of witness's credibility and other evidence produced when dealing with a recovery under Section 27 of Evidence Act. (Paras 30 and 31)

(E) Indian Penal Code, 1860 – Sections 427, 460, 148, 302 read with 149 – Explosives Substances Act, 1908 – Section 3 – Murder – Common object – Reversal of acquittal by High Court – High Court found fault with Trial Court by relying on Section 149 IPC – To attract Section 149, prosecution has to prove its foundational facts – Trial Court has taken a possible view that evidence rendered by eyewitnesses does not satisfy Court qua presence of A-10 to A-13 – Trial Court had advantage of seeing witnesses as they deposed – Appellate forum cannot change conclusion arrived at thereafter by substituting its views – High Court has adopted principle of preponderance of probability as could be applicable to civil cases to case on hand when more scrutiny is warranted for reversing an order of acquittal – High Court placed its reliance also on recovery coupled with scientific evidence – Such recoveries are expected to be proved if relied upon by Court – Appeals partly allowed. (Paras 36, 38, 42 and 43)

Facts of the case:

Convictions confirmed and acquittals reversed at the hands of the Division Bench of the High Court of Kerala are under challenge here. The accused, who got their acquittal confirmed, stand as freemen with no further challenge. Deceased and the accused belong to two different political parties – one affiliated to CPI (M) and the other NDF (National Development Front). There was an altercation between the affiliated political members of CPI (M) and NDF on 17.07.2002 at about 4:00 p.m. with the deceased and P.W.8 as the CPI(M) members, and A-3 and A-10 as that of NDF. In the altercation the deceased had reportedly assaulted A-3. Seeking to avenge, the accused, being 16 in numbers, assembled at the family house of A-5 on the same day and hatched a conspiracy to take out the life of the deceased.

Findings of Court:

Court inclined to dismiss the appeals filed being Criminal Appeal No.450-451 of 2015 and Criminal Appeal No.959 of 2015 confirming the conviction rendered by the High Court. The conviction rendered by the High Court against the appellants in Criminal Appeal No. 430-431 of 2015 arrayed as A-10 to A-13 stands set aside. Consequently, appeals filed by accused nos. A-10 to A-13 being Criminal Appeal No.430-431 of 2015 are allowed by setting aside the judgment rendered by the High Court and restoring the acquittal rendered by the Trial Court.

Result : Appeals Partly allowed.