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SUPREME COURT OF INDIA
B.R. GAVAI, M.M. SUNDRESH, JJ.
Boby - Appellant
Versus
State Of Kerala – Respondent
Criminal Appeal No.1439 of 2009
Decided on : 12-01-2023
(A) Indian Penal Code, 1860 – Sections 395, 365, 364, 201, 380, 302 read with Section 34 – Kidnapping, dacoity, murder and screening of evidence – Conviction and sentence – Circumstantial evidence – Last seen theory – It is necessary for prosecution that circumstances from which conclusion of guilt is to be drawn should be fully established – Accused ‘must be’ and not merely ‘may be’ guilty before a court can convict accused – Last-seen theory comes into play where time-gap between point of time when accused and deceased were last seen alive and when deceased is found dead is so small that possibility of any person other than accused being author of crime becomes impossible – If gap between time of last-seen and deceased found dead is long, then possibility of other person coming in between cannot be ruled out – Prosecution has failed to prove circumstance that dead body of deceased was recovered at instance of appellant – Recovery of Spade was from a place which was already known and not exclusively within knowledge of accused – Solely on the basis of last seen theory, conviction could not have been recorded – Prosecution has utterly failed to prove chain of incriminating circumstances which leads to no other conclusion than guilt of accused – There is no confessional statement of appellant recorded with regard to recovery of dead body of deceased – Appellant acquitted. (Paras 10, 17, 26, 28, 29, 30, 34 and 36)
(B) Indian Evidence Act, 1872 – Section 27 – Disclosure statement – Section 27 of Evidence Act requires that fact discovered embraces place from which object is produced and knowledge of accused as to this – Information given must relate distinctly to said fact – Information as to past user or past history of object produced is not related to its discovery. (Para 21)
Facts of the case:
Present appeal challenges the judgement and order dated 25th August 2008, passed by Division Bench of the High Court of Kerala at Ernakulam in Criminal Appeal Nos. 326, 230 and 847 of 2005 thereby dismissing the appeals filed by Shibu @ Shibu Singh (accused No. 1) and Boby (accused No. 3/appellant herein), thereby upholding the judgment of conviction and sentence dated 18th December 2004, passed by Trial Court in Sessions Case No. 208 of 2003 in respect of the said accused persons. Vide same impugned judgment, High Court, however, allowed appeal filed by accused No. 2 and acquitted him from all offences charged with.
Findings of Court:
Judgment dated 18th December 2004 passed by trial Court, thereby convicting the appellant under Sections 395, 365, 364, 201, 380, 302 read with Section 34 of the IPC and impugned Judgment dated 25th August 2008, passed by High Court affirming the same are set aside. Appellant is acquitted of all the charges charged with. Bail bonds of accused shall stand discharged.
Result : Appeal allowed.
Section 27 permits proof of only that part of information given by an accused in police custody which distinctly relates to the fact discovered thereby; the fact discovered encompasses the place from which the object is produced and the accused's knowledge thereof.[1000767320019][1000767320020] Information regarding the past user or history of the produced object does not relate to its discovery and is inadmissible.[1000767320019][1000767320020] The exact information given by the accused, leading to the discovery, must be recorded and proved through evidence, such as a panchnama prepared at the police station in the presence of independent witnesses before proceeding to the site; the investigating officer must depose the precise words of the accused.[1000767320023][1000767320024][1000767320025] Failure to follow this procedure, including absence of any recorded statement or memorandum under Section 27 with panch witnesses, renders the alleged recovery inadmissible and unproved.[1000767320005][1000767320025] In the present case, no such memorandum or exact confessional statement was prepared or proved for the recovery of the dead body or ornaments at the appellant's instance, nor was the spade recovery from a place exclusively within the knowledge of accused No. 1 (as it was already known); thus, prosecution failed to establish these recoveries.[1000767320025][1000767320026][1000767320027]
JUDGMENT :
B.R. GAVAI, J.
1. This appeal challenges the judgment and order dated 25th August 2008, passed by the learned Division Bench of the High Court of Kerala at Ernakulam (hereinafter referred to as “the High Court”) in Criminal Appeal Nos. 326, 230 and 847 of 2005 thereby dismissing the appeals filed by Shibu @ Shibu Singh (accused No. 1) and Boby (accused No. 3/appellant herein), thereby upholding the judgment of conviction and sentence dated 18th December 2004, passed by the Additional Sessions Judge, Fast Track Court–II (Adhoc Court), Thrissur (hereinafter referred to as “the trial court”) in Sessions Case No. 208 of 2003 in respect of the said accused persons. Vide the same impugned judgment, the High Court, however, allowed the appeal filed by Biju @ Babi (accused No. 2) and acquitted him from all the offences charged with.
2. Shorn of details, the facts leading to the present appeal are as under:
2.1 On 21st November, 2000, Leela w/o Vishwanathan (Complainant/PW1) made a statement before the Police Station, Anthikkadu, Dist. Thrissur, wherein she alleged that Shibu @ Shibu Singh (accused No. 1), the younger brother of her husband, Vishwanathan (deceased), was a convict who was then undergoing imprisonment as he was involved in many theft cases wherein stolen articles from the said thefts were disposed of by her husband.
2.2 It is the case of the complainant that Shibu @ Shibu Singh (accused No. 1) had escaped from the prison and was absconding. Due to the fear that Vishwanathan (deceased) would disclose to the police about his escape from jail, Shibu @ Shibu Singh (accused No. 1) along with other accused persons, namely, accused No. 2 to accused No. 7 came in a jeep to the house of Vishwanathan (deceased) on 20.11.2000 at 08.00 p.m. The accused persons then held Vishwanathan (deceased) at knife point, forcefully poured liquor into his mouth and compelled him to drink till he was left unconscious. When Leela (Complainant/PW1) tried to interfere, she sustained injuries on her palm due to the knife carried by the accused persons with which they attempted to inflict blows on her. Thereafter, Leela (Complainant/PW1) along with her husband were blindfolded and taken in a jeep. After covering a distance of about 30 kms., the Complainant/PW1 was dropped at Poomala, which was her native place. When she managed to reach her house with the help of a local named Baiju from the said village, she informed her brother Babu (P.W.6) about the aforesaid incident, who attempted to search for Vishwanathan (deceased) during the said night. Next day, i.e., on 21st November 2000, Leela (Complainant/PW1) along with Babu (PW6) lodged her statement (Ext. P1) at the Police Station Anthikkadu, Dist. Thrissur. Based on the contents of the aforesaid complaint, a First Information Report (Ext. P19) (for short, “FIR”) came to be registered against the aforementioned accused persons along with other unknown persons for offences punishable under Section 395 and 365 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
2.3 Boby (accused No. 3/appellant herein) was arrested by the Police on 25th November 2000. Based on his disclosure statement (Ext. P23), the dead body of Vishwanathan, which was buried at Pattithara on the banks of river Bharathapuzha, was recovered. Additionally, stolen goods were also recovered from the house of accused No. 3 and were marked as Ext. P14. Shibu @ Shibu Singh (accused No. 1) and Biju @ Babu (accused No. 2) were arrested on 28th November 2000 from a lodge at Guruvayoor by the Guruvayoor Police. Subsequently, they were handed over to the Anthikkadu Police on 2nd December 2000. Based on the disclosure statement of Shibu @ Shibu Singh (accused No. 1), the spade with which the deceased’s burial spot was dug was recovered near the site where the body was exhumed from, concealed in a plastic bag.
2.4 At the conclusion of investigation, a chargesheet came to be filed before the Judicial Magistrate First Class, Court–I
The prosecution must establish its case beyond reasonable doubt, and procedural safeguards for evidence recovery must be strictly adhered to for admissibility.
The admissibility of information provided by the accused while in police custody, and the application of Section 27 of the Evidence Act in determining the evidentiary value of the disclosure statemen....
Circumstantial evidence can establish guilt if it forms a complete chain pointing to the accused, even without direct evidence.
(1) Suspicion, however strong it may be, cannot take place of proof beyond reasonable doubt – Accused cannot be convicted on the ground of suspicion.(2) Disclosure statement – It is only so much of i....
The prosecution must establish an unbroken chain of evidence beyond reasonable doubt for conviction, failing which the accused is entitled to acquittal.
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