SUPREME COURT UPHOLDS THE DECISION OF THE TRIAL COURT IN A MURDER CASE

INTRODUCTION

A two-Judge Bench of the Supreme Court comprising of Justice Sanjiv Khanna and Justice S.V.N Bhatti passed an Order dated 03.01.2024 in Criminal Appeal of 2024 (arising out of Special Leave Petition (Criminal) No. 863 of 2019) in Perumal Raja @ Perumal Vs. State, Rep. By Inspector Of Police and held that a statement/confession to the Police officer of an accused can be admissible in the Court if it is within the purview of Section 27 of the Evidence Act, 1872 and thereby upheld the decision given by the Ld. Principal Sessions Judge.

FACTS

i) That one, Mr. Rajaram, who was settled in France, returned to Puducherry on 20.04.2008 as his son Rajini, who lived in India was missing.

ii) On the same day Mr. Rajaram had approached PS Odiansala, Puducherry and made an oral complaint stating that when he opened his house No. 13 Chinna Vaikkal Street, Puducherry, he had found articles to be scattered all over the place and his motorcycle was also missing. He had suspected that his son– Rajini and his sister’s husband Krishnamurthy could have taken the bike. He requested the Police to make inquiries. However, despite being asked, he did not make any written complaint. He stated that he was exhausted and would come back to lodge a written complaint later.

iii) On the next day, i.e., on 21.04.2008, Rajaram was murdered. An F.I.R No. 204 of 2008 was registered at PS Grand Bazaar, District – Puducherry under Sections 147 of the Indian Penal Code, 1860 (IPC) (Punishment for Rioting), Section 148 (Rioting, armed with deadly weapon), Section 341 (Punishment for wrongful restraint) and Section 302 (Punishment for Murder) read with Section 149 (Every member of unlawful assembly guilty of offence commit ted in prosecution of common object).

iv) On 24.04.2008, one, Mr. Arumugam, father of Rajaram, had made a written complaint at Odiansalai PS, Puducherry that his grandson Rajini was missing. The complaint was registered as Diary No. 80 of 2008 for a ‘missing man’ and was taken up for investigation.

v) The Appellant, Perumal Raja, son of Krishnamurthy (husband of the sister of Rajaram), was detained and taken into custody during the course of investigation in FIR No. 204 of 2008 for murder of Rajaram.

vi) The Appellant made a disclosure statement on 25.04.2008 stating that the Appellant, along with other co-Accused, had committed murder of Rajini on 23.11.2007 at Rajaram’s house at Chinna Vaikkal Street, Puducherry. His dead body was thrown in the sump tank located in the same house. The Appellant had also removed various belongings from the same house, including iron box, home theatre, CD player, documents of the house, motorcycle, RC book, key, Rajini’s passport, Rajini’s passport size photograph, birth registration of the grandmother, ration card, etc.

vii) That further, the Appellant and the other co-Accused decided to remove the dead body of Rajini from the sump tank as they had learnt that Rajaram was returning to India as his son Rajini was missing.

viii) They opened the sump tank and took out Rajini’s body, which was in a decomposed state. They cut Rajini’s body into two pieces and put it in two sack bags. The knife and rope were put in another sack bag. The three sack bags were taken by them from Chinna Vaikkal Street, and after passing through Gandhi Street they threw the sack bags in the canal/river from the Uppanaru Bridge near the railway crossing.

ix) That based on the disclosure statement, the sack bags with the decomposed dead body of Rajini were recovered on 26.04.2008 from the Uppanaru canal/river along with the Knife.

x) The body parts that were in a decomposed state were sent for post-mortem, which was conducted by Dr. S. Diwakar (Prosecution Witness-{PW}-24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry on 26.04.2008.

xi) That on 30.04.2008, eight articles were recovered from the water sump tank at the house of the deceased, namely, gloves, lower jaw, rib, cervical vertebrae, tarsal and metatarsal, small and big size bone pieces, and knee cap.

xii) The skull recovered from the canal/river and the lower part of the jaw recovered from the sump tank were sent for superimposition test to ascertain whether they belong to the deceased Rajini. C. Pushparani, Scientific Assistant Grade II, Anthropology Division, Forensic Sciences Department, Chennai, who had deposed as PW-29, proved the superimposition test report dated 20.01.2009, which confirmed that the skull and mandible were of the deceased Rajini.

xiii) That based on the disclosure statement, various articles, including the motorcycle, ignition key, original RC book were recovered from the co-Accused Mohan Kumar and a Juvenile.

xiv) The motive of the Appellant was to become the owner of the property No. 13, Chinna Vaikkal Street, Puducherry.

xv) The Ld. Principal Sessions Judge in SC No. 22 of 2014, passed an Order dated 07.04.2016 convicting the Appellant for the murder of Rajini under Section 302 of IPC and Section 201 (Causing disappearance of evidence of offence, or giving false information to screen offender) of IPC.

xvi) Aggrieved by the said Order dated 07.04.2016, the Appellant filed a Criminal Appeal No. 280/2016 before the High Court of Judicature at Madras.

xvii) The High Court of Judicature at Madras in Criminal Appeal No. 280/2016 passed an Order dated 31.08.2016 and upheld the Order of the Ld. Principal Sessions Judge dated 07.04.2016.

xviii) Aggrieved by the said Order dated 31.08.2016, the Appellant filed a Criminal Appeal of 2024 (arising out of Special Leave Petition (Criminal) No. 863 of 2019) before the Supreme Court.

SUPREME COURT ANALYSIS

The Apex Court vide Order dated 03.01.2024, made the following observations:

1) The Supreme Court observed that the prosecution’s case, in the absence of an eye witness, was based on circumstantial evidence.

2) That as per Section 25 of the Indian Evidence Act, 1872 (Evidence Act) (Confession to police officer not to be proved), a confession made to a police officer is prohibited and cannot be admitted as evidence. That as per Section 26 of the Evidence Act (Confession by accused while in custody of police not to be proved against him), no confession made by any person whilst he is in the custody of the police officer shall be proved against such person, unless it is made in the presence of a Magistrate. That Section 27 of the Evidence Act (How much of information received from accused may be proved) is an exception for Section 25 and 26. Further, the Apex Court observed that Section 27 of the Evidence Act is based on the doctrine of confirmation by subsequent events – a fact is actually discovered in consequence of the information given, which results in recovery of a physical object.

3) The Apex Court observed that the facts proved by the prosecution, particularly the admissible portion of the statement of the Accused, would give rise to two alternative hypotheses, namely, (i) that the Accused had himself deposited the physical items which were recovered; or (ii) only the Accused knew that the physical items were lying at that place. That the second hypothesis was wholly compatible with the innocence of the Accused, whereas the first would be a factor to show involvement of the Accused in the offence. The Supreme Court then analysed which hypothesis should have been accepted in this case.

4) The Division Bench observed that in the three-Judge Bench of the Supreme Court in Aghnoo Nagesia v. State of Bihar AIR 1966 SC 119 which held that if the FIR is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence, except to the extent that the ban is lifted by Section 27 of the Evidence Act. While dealing with the admission of part of confession report dealing with motive, subsequent conduct and opportunity, this Court rejected the severability test adopted by some High Courts. The statement can, however, be relied upon and admitted to identify the accused as the maker, and the portion within the purview of Section 27 of the Evidence Act is admissible.

5) The Apex Court observed that the words “person accused of an offence” and the words “in the custody of a police officer” in Section 27 of the Evidence Act are separated by a comma. Thus, they have to be read distinctively. The wide and pragmatic interpretation of the term “police custody” is supported by the fact that if a narrow or technical view is taken, it will be very easy for the police to delay the time of filing the FIR and arrest, and thereby evade the contours of Sections 25 to 27 of the Evidence Act.

6) The Supreme Court observed that in case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 the Apex Court laid down following words of caution to be observed that a false explanation can be used when; i) various links in the chain of evidence laid by the prosecution have been satisfactorily proved, ii) circumstance points to the guilt of the accused with reasonable definiteness; and iii) the circumstance is in proximity to the time and situation. That if these conditions are fulfilled only then the court can use the false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Thus, a distinction has to be drawn between incomplete chain of circumstances and a circumstance after a chain is complete and the defence or explanation given by the accused is found to be false, in which event the said falsehood is added to reinforce the conclusion of the court.

7) That the Appellant in his statement under Section 313 of the Code of Criminal Procedure, 1973 (Power to examine the accused) plainly denied all accusations without furnishing any explanation regarding his knowledge of the places from which the dead body was recovered. The failure of the Appellant to present evidence on his behalf or to offer any cogent explanation regarding the recovery of the dead body by virtue of his special knowledge must lead to a reasonable adverse inference, by application of the principle under Section 106 of the Evidence Act thus forming an additional link in the chain of circumstances. The additional link further affirms the conclusion of guilt as indicated by the prosecution evidence.

ORDER

The Supreme Court hereby upheld the conviction and the Order dated 07.04.2016 of the Ld. Principal Sessions Judge, Puducherry and thereby dismissed the Appeal of the Accused. The other co-Accused, namely, Saravanan, Mohan, and Ravi were acquitted by the Ld. Trial Court. One ‘N’ was tried as a Juvenile and acquitted. On 15.02.2013, the case of another co-Accused Chella was split up since he was absconding. Subsequently, vide Judgment dated 04.06.2019, Chella was been acquitted.

Kartik Khandekar

Associate

The Indian Lawyer