Boby vs State Of Kerala

1 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)

2 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 21 st

November 2000, Leela (Complainant/PW­1) along with Babu

3 (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 28 th 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

4 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–II,

Thrissur, who committed the case to the Sessions Court,

Thrissur for trial.

2.5 Charges came to be framed by the trial court for the

offences punishable under Sections 395, 364, 365, 380 and

302 read with Section 34 of the IPC.

2.6 All the accused persons pleaded not guilty and claimed to

be tried. The prosecution examined 33 witnesses to bring home

the guilt of the accused persons. The prosecution also placed

on record 14 Material Objects which were marked as M.O. 1 to

M.O. 14. During the cross­examination from the defence side,

Sekharan (DW­1), father of the deceased was examined. The

accused persons were questioned under Section 313 of the

Criminal Procedure Code, 1973 (for short, “the Cr.P.C.”)

wherein they denied the circumstances that appeared against

them in evidence which were put to them. At the conclusion of

5 trial, the learned trial court found Shibu @ Shibu Singh

(accused No. 1), Biju @ Babu (accused No. 2) and Boby

(accused No. 3/appellant herein) guilty of the offences charged

with and accordingly sentenced them to undergo life

imprisonment for the offence punishable under Section 302

read with Section 34 IPC. It further directed them to undergo

rigorous imprisonment for different periods for the offences

punishable under Sections 364, 395, and 201 read with Section

34 of the IPC. The sentences were directed to run concurrently.

2.7 Being aggrieved thereby, accused Nos. 1 to 3 preferred their

respective appeals before the High Court. The High Court, by

the impugned judgement, dismissed the appeals preferred by

Shibu @ Shibu Singh (accused No. 1) and Boby (accused No.

3/appellant herein), but was pleased to allow the appeal

preferred by Biju @ Babu (accused No. 2), thereby setting aside

the judgment of conviction and sentence of the trial court

insofar as Biju @ Babu (accused No. 2) was concerned.

3. Being aggrieved thereby, the present appeal.

6

4. We have heard Shri R. Basant, learned Senior Counsel

appearing on behalf of the appellant–Boby and Shri K.N.

Balgopal, learned Senior Counsel appearing on behalf of the

respondent–State of Kerala.

5. Shri Basant, learned Senior Counsel would submit that

both the trial court and the High Court have erred in convicting

and sentencing the appellant–Boby for the offences punishable

under Sections 395, 365, 364, 201, 380, 302 and 302 read with

Section 34 of the IPC. He submitted that the prosecution has

failed to prove its case against the appellant–Boby beyond

reasonable doubt and that there are glaring lacunae in the case

of the prosecution. It is submitted that even the High Court

found that there were discrepancies in the statements of the

prosecution witnesses who were examined during the trial. It is

further submitted that the High Court also observed the glaring

discrepancies in the statement of the Complainant/PW­1 with

regard to Biju @ Babu (accused No. 2) on the basis of which,

the High Court acquitted the said accused Biju @ Babu

(accused No. 2) of all the charges levelled against him.

7

6. Shri Basant submitted that a Memorandum under Section

27 of the Indian Evidence Act, 1872 (hereinafter referred to as

“the Evidence Act”) is required in cases of recovery initiated at

the instance of an accused person, based on the statements

made before the Police. It is submitted that, on perusal of

evidence on record in the instant matter, neither such

Memorandum under Section 27 of the Evidence Act was

prepared at the time of the recovery of the body of deceased

Vishwanathan, nor were signatures of independent or panch

witnesses taken at the time of said recovery. It is further

submitted that it was the duty of the Investigating Officer (for

short, ‘IO’) to have prepared the said Memorandum while acting

on the information obtained from Boby (appellant herein) and

that such inaction on part of the IO would vitiate the

prosecution case, at least insofar as proving the recovery of the

dead body of the deceased is concerned.

7. Shri Basant submitted that the trial court solely relied on

the last seen theory and held that the prosecution had proved

the same with regard to the chain of circumstances in this

8 case. It is further submitted that conviction of an accused

person cannot be sustained only on the basis of proving the last

seen theory as the same was required to be corroborated with

the statements of the witnesses that are examined during trial

along with other evidence placed on record. While pointing out

the discrepancies in the statements of prosecution witnesses,

which were relied upon by the courts below, it was submitted

that the conviction of the appellant herein could not be

sustained on the said ground alone.

8. Shri Balgopal, on the contrary, submits that the courts

below have concurrently found the accused persons guilty of

the offences charged with. The prosecution has proved the

incriminating circumstances beyond reasonable doubt. It has

also proved the chain of circumstances which leads to no other

conclusion than the guilt of the accused. He relies on the

judgment of this Court in the case of Suresh Chandra Bahri

v. State of Bihar1.

1 1995 Supp. (1) SCC 80

9

9. Undisputedly, the present case rests entirely on

circumstantial evidence. A three­Judges Bench of this Court in

the case of Sharad Birdhichand Sarda v. State of

Maharashtra2, has laid down the golden principles with regard

to conviction in a case which rests entirely on circumstantial

evidence. We may gainfully refer to the following observations

of this Court in the said case:

“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 Crl LJ 1783] where the 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 2 (1984) 4 SCC 116

10 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.”

10. It can thus clearly be seen that it is necessary for the

prosecution that the circumstances from which the conclusion

of the guilt is to be drawn should be fully established. The

Court holds that it is a primary principle that the accused ‘must

be’ and not merely ‘may be’ guilty before a court can convict the

accused. It has been held that there is not only a grammatical

but a legal distinction between ‘may be proved’ and “must be or

should be proved”. It has been held that the facts so

11 established should be consistent only with the guilt of the

accused, that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty. It has

further been held that the circumstances should be such that

they exclude every possible hypothesis except the one to be

proved. It has been held that 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 probabilities the act must have

been done by the accused.

11. In the light of these guiding principles, we have to examine

the present case.

12. The trial court has relied on the following circumstances:

(i) Last seen together with the deceased;

(ii) Recovery of the stolen material including jewellery from accused No.3­Boby;

(iii) Recovery of spade from accused No. 1­Shibu @ Shibu Singh;

(iv) Recovery of the dead body at the instance of accused No. 3­Boby;

12 13. The trial court had convicted accused Nos. 1 to 3 upon

finding that the prosecution had proved the aforesaid

circumstances against them. In appeal, the High Court found

that the prosecution had failed to prove the case against Biju @

Babi (accused No. 2) and accordingly acquitted him.

14. The learned Division Bench of the High Court, though

found that the prosecution had failed to prove the case beyond

reasonable doubt insofar as accused No.2 was concerned, held

that, insofar as accused Nos. 1 and 3 were concerned, the

prosecution had proved the case beyond reasonable doubt.

15. It could thus be seen that the trial court as well as the

High Court found the circumstance of the accused persons

having been last seen in the company of the deceased on the

basis of the evidence of PW­1, as the main incriminating

circumstance. The High Court further found that, insofar as

Boby (accused No.3/appellant herein) was concerned, there was

an additional evidence with regard to the recovery of the dead

body and ornaments. Insofar as Shibu @ Shibu Singh (accused

13 No. 1) was concerned, the High Court found that the recovery of

spade which was used to dig the burial site where the dead

body was concealed, was an additional circumstance which

proved the guilt of Shibu @ Shibu Singh (accused No. 1).

16. Insofar as last seen theory is concerned, it will be relevant

to refer to the following observations of this Court in the case of

State of U.P. v. Satish3:

“22. The last­seen theory comes into play where the time­gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.”

17. It could thus clearly be seen that the last­seen theory

comes into play where the time­gap between the point of time

3 (2005) 3 SCC 114

14 when the accused and the deceased were last seen alive and

when the deceased is found dead is so small that possibility of

any person other than the accused being the author of the

crime becomes impossible. If the gap between the time of last

seen and the deceased found dead is long, then the possibility

of other person coming in between cannot be ruled out.

18. In the present case, according to the complainant/PW­1,

the deceased was taken away by the accused persons on the

night of 20th November 2000 at 08.00 p.m. Though, it is the

contention of the appellant that he was taken into illegal

custody on 21st November, 2000 and his arrest was shown on

25th November, 2000, we do not find it necessary to go into that

aspect of the matter. A perusal of the evidence of the IO would

reveal that, on 25th November, 2000, on the basis of secret

information that Boby (accused No.3/appellant herein) was

standing at Manaloor Kadavu, he proceeded to that place and

arrested him at 02.00 p.m. He stated that, on the basis of his

confession, various articles were seized from his house. He

further stated that thereafter on the same day, the accused led

15 them towards the place in Bharathapuzha where the deceased

was buried. He stated that, after seeing the loose soil, the scene

was guarded as it was an odd time. He further stated that, on

26th November 2000, as led by accused No. 3, they reached the

place and the Tahasildar, Ottapalam prepared the inquest

report.

19. It can thus clearly be seen that firstly, there is a gap of at

least five days from the date on which, according to PW­1, the

deceased was taken away by the accused persons and the dead

body was recovered. However, the crucial question would be as

to whether it can be held that the prosecution had established

beyond reasonable doubt that the recovery of dead body was at

the instance of Boby (accused No. 3/appellant herein). Only in

the event the prosecution establishes that the recovery of the

body was at the instance of Boby (accused No. 3/appellant

herein), the relevancy of the gap of five days would come.

20. As early as 1946, the Privy Council had considered the

provisions of Section 27 of the Evidence Act in the case of

16 Pulukuri Kotayya and Others v. King­Emperor4. It will be

relevant to refer to the following observations of the Privy

Council in the said case:

“The second question, which involves the construction of s. 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms. [His Lordship read ss. 25, 26 and 27 of the Evidence Act and continued : ] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw for the Crown, has argued that in such a case the 4 1946 SCC OnLine PC 47

17 “fact discovered” is the physical object produced, and that any information which relates distinctly to that object can be proved. On this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity, would all be admissible. If this be the effect of s. 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships' view 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

18 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.” [Emphasis supplied]

21. It could thus be seen that Section 27 of the Evidence Act

requires that 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 the said

fact. The information as to past user, or the past history, of the

object produced is not related to its discovery. The said view

has been consistently followed by this Court in a catena of

cases.

22. This Court, in the case of Chandran v. The State of

Tamil Nadu5, had an occasion to consider the evidence of

recovery of incriminating articles in the absence of record of the

statement of accused No. 1. In the said case also, no statement

of accused No. 1 was recorded under Section 27 of the Evidence 5 (1978) 4 SCC 90

19 Act leading to the recovery of jewels. The Court found that the

Sessions Judge as well as the High Court had erred in holding

that the jewels were recovered at the instance of accused No. 1

therein in pursuance to the confessional statement (Ex. P­27)

recorded before PW­34 therein. It will be relevant to refer to the

following observations of this Court in the said case:

“36. ……Thus the fact remains that no confessional statement of A­1 causing the recovery of these jewels was proved under Section 27, Evidence Act…..”

23. It is thus clear that this Court refused to rely on the

recovery of jewels since no confessional statement of the

accused was proved under Section 27 of the Evidence Act.

24. It will also be relevant to refer to the following observations

of this Court in the case of State of Karnataka v. David

Rozario and Another6:

“5. ……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,

6 (2002) 7 SCC 728

20 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 a 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 [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .…..” [Emphasis supplied] 21

25. A three­Judges Bench of this Court recently in the case of

Subramanya v. State of Karnataka7, has observed thus:

“82. 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.”

83. 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.

84. 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 7 2022 SCC OnLine SC 1400

22 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 (panch­ witnesses) 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.”

23

26. This Court has elaborately considered as to how the law

expects the IO to draw the discovery panchnama as

contemplated under Section 27 of the Evidence Act. In the

present case, leave aside the recovery panchnama being in

accordance with the aforesaid requirement, there is no

statement of Boby (accused No. 3/appellant herein) recorded

under Section 27 of the Evidence Act. We are, therefore, of the

considered view that the prosecution has failed to prove the

circumstance that the dead body of the deceased was recovered

at the instance of Boby (accused No. 3/appellant herein).

27. Another circumstance on which the High Court relied was

that the recovery of ornaments was at the instance of Boby

(accused No. 3/appellant herein). We find that both the trial

court and the High Court have patently erred in relying on such

recovery. The trial court found that there was enough material

to show that the alleged recovery memo was a fabricated

document and the alleged recovery as per Ext. P­14 is farce.

However, the trial court still relied on the said recovery to

convict the accused. In our view, the finding of the trial court

24 in this regard is totally perverse which has been confirmed by

the High Court.

28. Insofar as Shibu @ Shibu Singh (accused No. 1) is

concerned, the additional circumstance sought to be relied on

by the trial court and the High Court is the alleged recovery of

the spade. It is to be noted that the spade was also recovered

from the same place from where the dead body of the deceased

was alleged to have been recovered at the instance of Boby

(accused No. 3/appellant herein). The trial court again held

that the place from where the spade was recovered was already

known from the disclosure statement of Boby (accused No.

3/appellant herein); however, it still held the recovery of the

said spade to be admissible in evidence. It is thus clear that

the said recovery was from a place which was already known

and not exclusively within the knowledge of Shibu @ Shibu

Singh (accused No. 1). We find that the trial court has again

committed perversity in arriving at such a finding.

29. It is thus clear that the only circumstance that now

remains is the circumstance of the accused last seen in the

25 company of the deceased on the basis of the evidence of PW­1.

In that view of the matter, we find that, solely on the basis of

last seen theory, the conviction could not have been recorded.

The prosecution has utterly failed to prove that the recovery of

the dead body of the deceased was at the instance of Boby

(accused No. 3/appellant herein). The recovery of the articles

from the house of Boby (accused No. 3/appellant herein), even

according to the trial court, is farce and fabricated. The

recovery of the spade at the instance of Shibu @ Shibu Singh

(accused No. 1) is from a place which, even according to the

trial court, was also known on account of the disclosure

statement made by Boby (accused No. 3/appellant herein).

30. In that view of the matter, we find that the prosecution has

utterly failed to prove the chain of incriminating circumstances

which leads to no other conclusion than the guilt of the

accused.

31. Insofar as the reliance placed by Shri Balgopal, learned

Senior Counsel on the case of Suresh Chandra Bahri (supra)

26 is concerned, it is totally misplaced inasmuch as in paragraph

40, this Court has observed thus:

“40. …….Before we discuss the merits or demerits of the aforesaid submissions we would like to state that the law relating to conviction based on circumstantial evidence is well settled and it hardly requires a detailed discussion on this aspect. Suffice to say that in a case of murder in which the evidence that is available is only circumstantial in nature then in that event the facts and circumstances from which the conclusion of guilt is required to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused but they also must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.”

32. It will further be relevant to refer to the following

observations of this Court in the said case:

“71. ……The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the

27 belief that the information about the confession made as to the articles of crime cannot be false…..”

33. A perusal of paragraph 71 of the said judgment would

reveal that the Court has reiterated that the two essential

requirements for the application of Section 27 of the Evidence

Act are that (1) the person giving information must be an

accused of any offence and (2) he must also be in police

custody. The Court held that the provisions of Section 27 of the

Evidence Act are based on the view that if a fact is actually

discovered in consequence of information given, some guarantee

is afforded thereby that the information was true and

consequently the said information can safely be allowed to be

given in evidence.

34. In the facts of the said case, the Court found that there

was, in fact, a confessional statement of the disclosure made by

the appellant Gurbachan Singh which was confirmed by the

recovery of the incriminating articles. As such, the Court

believed the disclosure statement and the evidence led in that

28 behalf. As already stated hereinabove, in the present case,

there is no confessional statement of Boby (accused

No.3/appellant herein) recorded with regard to recovery of the

dead body of the deceased.

35. In the result, the appeal is allowed.

36. The judgment dated 18th December 2004 passed by the

trial Court, thereby convicting the appellant under Sections

395, 365, 364, 201, 380, 302 read with Section 34 of the IPC

and the impugned judgment dated 25th August 2008, passed by

the High Court affirming the same are set aside. The appellant

is acquitted of all the charges charged with. The bail bonds of

the accused shall stand discharged.

37. Pending application(s), if any, shall stand disposed of.

…..….......................J. [B.R. GAVAI]

……....................…..J. [M.M. SUNDRESH]

NEW DELHI;

JANUARY 12, 2023.

29 1

ITEM NO.102/1 COURT NO.8 SECTION II-B

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(s). 1439/2009

BOBY Appellant(s)

VERSUS

STATE OF KERALA Respondent(s)

Date : 12-01-2023 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE B.R. GAVAI HON'BLE MR. JUSTICE M.M. SUNDRESH

For Appellant(s) Mr. R. Basant, Sr. Adv.

Mr. Abdulla Naseeh V.T., Adv.

Meena K. Poulose, Adv.

Mr. Akshay, Adv.

Mr. Ashok Basoya, Adv.

Ms. Shruti Jose, Adv.

Mr. P. S. Sudheer, AOR

For Respondent(s) Mr. K.N. Balgopal, Sr. Adv.

Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv.

Ms. Ashly Harshad, Adv.

UPON hearing the counsel the Court made the following O R D E R

The appeal is allowed in terms of the signed

reportable judgment. Pending application(s), if any,

shall stand disposed of.

The concluding paragraph of the judgment reads

as under :

“The judgment dated 18th December 2004 passed by the trial Court, thereby convicting the appellant under Sections 395, 365, 364, 201, 2

380, 302 read with Section 34 of the IPC and the impugned judgment dated 25th August 2008, passed by the High Court affirming the same are set aside. The appellant is acquitted of all the charges charged with. The bail bonds of the accused shall stand discharged.”

(Geeta Ahuja) (Anju Kapoor) Assistant Registrar-cum-PS Court Master (signed reportable judgment containing the reasons is placed on the file)

# signed order dated 12.1.2023 along with ROP has already been uploaded and sent to the concerned Branch.

3

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1439 OF 2009

BOBY APPELLANT(S)

VERSUS

STATE OF KERALA RESPONDENT(S)

O R D E R

For the reasons to be recorded separately, the

appeal is allowed.

The judgment and order dated 18.12.2004 of the trial

Court of conviction and sentence of the appellant

punishable under Sections 395, 365, 364, 201, 380, 302

read with Section 34 of the Indian Penal Code and the

judgment and order dated 25.08.2008 of the High Court

affirming the same are set aside.

The appellant is acquitted of all the charges

charged with. The bail bonds of the accused shall stand

discharged.

Pending application(s), if any, shall stand disposed

of.

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

( B.R. GAVAI )

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

( M.M. SUNDRESH ) NEW DELHI 12th JANUARY, 2023 4

ITEM NO.102 COURT NO.8 SECTION II-B

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(s). 1439/2009

BOBY Appellant(s)

VERSUS

STATE OF KERALA Respondent(s)

Date : 12-01-2023 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE B.R. GAVAI HON'BLE MR. JUSTICE M.M. SUNDRESH

For Appellant(s) Mr. R. Basant, Sr. Adv.

Mr. Abdulla Naseeh V.T., Adv.

Meena K. Poulose, Adv.

Mr. Akshay, Adv.

Mr. Ashok Basoya, Adv.

Ms. Shruti Jose, Adv.

Mr. P. S. Sudheer, AOR

For Respondent(s) Mr. K.N. Balgopal, Sr. Adv.

Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv.

Ms. Ashly Harshad, Adv.

UPON hearing the counsel the Court made the following O R D E R

For the reasons to be recorded separately, the appeal is allowed.

The judgment and order dated 18.12.2004 of the trial Court of conviction and sentence of the appellant punishable under Sections 395, 365, 364, 201, 380, 302 read with Section 34 of the Indian Penal Code and the judgment and order dated 25.08.2008 of the High Court affirming the same are set aside.

The appellant is acquitted of all the charges 5

charged with. The bail bonds of the accused shall stand discharged.

Pending application(s), if any, shall stand disposed of.

(Geeta Ahuja) (Anju Kapoor) Assistant Registrar-cum-PS Court Master (Signed Order is placed on the file)