Siju Kurian vs The State Of Karnataka

Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 64 OF 2021

SIJU KURIAN …APPELLANT

VERSUS

STATE OF KARNATAKA …RESPONDENT

JUDGMENT

Aravind Kumar, J.

1. This appeal under Section 2(1)(a) of the Supreme Court

(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 by the sole

accused in Sessions Case No.96 of 2012 on the file of the Fast Track

Court, Sagar Taluk, arises from a judgment rendered by the High Court

of Karnataka in Criminal Appeal No.335 of 2014 filed by the State of

Karnataka against the judgment of the Fast Track Court reversing the

order of acquittal and convicting the appellant for the offence punishable Signature Not Verified Digitally signed by Charanjeet Kaur under Section 302 of the Indian Penal Code (for short ‘the IPC’), 201 of Date: 2023.04.17 16:16:46 IST Reason: IPC, 404 of IPC and 419 of IPC and sentencing him to simple 2

imprisonment for life and also sentencing to undergo simple

imprisonment for a period of 3 years/2years for the respective offences

which has been ordered to run concurrently and also fine.

2. Brief facts of the case as putforth by the prosecution are: accused

was working as a labourer in the farmhouse of Mr. Jose Kafan

(deceased) in Kerodi village of Sagar Taluk (Karnataka State) and on

02.12.2011 between 6:00 am to 6:30 am, said accused had entered the

room of the deceased through the eastern side of the farm house while he

was sleeping there and murdered him by hitting with iron rod on his

face, upon his left eyebrow and on his left chin with force, then stole the

articles in the farm house and sold the same and also sold the land of said

farm house to others to make undue monetary gain. In order to conceal

the act and with a deliberate intention to destroy the evidence, the

accused then hid the dead body in a pit meant for storing ash manure in

the garden land located at a short distance from the farm house in the

western side of the farm house. The iron rod used for committing the

murder, waist belt of the deceased person, his pant, shirt were also

concealed below the upper crust of soil in the garden after which, he had

sold the equipments stolen from the farm house to Sunil Kumar (CW-18)

for consideration and likewise he had sold other items to Mr. Denis C

Thomas (CW20). It was alleged that said amount released by way of sale 3

was dishonestly misappropriated by the accused. It is further alleged by

the prosecution that accused impersonating himself as the son of the

deceased person had also attempted to sell the land of the deceased to

others and to substantiate his false claims had also handed over the

documents of the farm house of the deceased to CW-15 Mr. Lizo and

thereafter he had absconded.

3. Mr. Sajid, son of the deceased lodged a missing complaint and in

the backdrop of information regarding the accused, inquiry was

conducted and accused confessed to the crime and showed where the

dead body was concealed in the presence of witnesses. Hence, the

prosecution alleged in this manner accused had murdered the father of

the complainant, sold the belongings of the deceased and handed over

the documents of the land owned by the deceased, proclaiming himself

to be the son of the deceased and had made attempts to sell the land

illegally to others. On completion of investigation the charge-sheet came

to be filed against the accused for the offences punishable under Sections

302, 201, 404 and 419 of IPC for committing a cognizable offence.

Charge came to be framed against the accused and same having been

denied resulted in trial being held and in order to drive home the guilt of

the accused prosecution got examined 25 witnesses as PW-1 to PW-25

and got exhibited material evidence as per Ex.P-1 to P-51 and the 4

material objects as MO1 to MO47. On conclusion of prosecution

evidence, the statement of the accused person under Section 313 of Code

of Criminal Procedure, came to be recorded and accused pleaded not

being guilty and also reiterated his stand of being innocent. Learned

Sessions Judge after having heard the arguments on both the sides

formulated six points/issues of determination. The learned Trial Judge

acquitted the accused by arriving at a conclusion that prosecution had

failed to prove its case beyond reasonable doubt, by judgment dated

08.08.2013. State being aggrieved by the same filed Criminal Appeal

No.-335 of 2014 assailing the said order of acquittal contending inter

alia that Sessions Judge had failed to appreciate the evidence and/or

there is erroneous appreciation of evidence and as such the accused had

to be convicted. It was also contended that though recoveries of the

articles, namely, material object was at the instance of the accused and

the testimony of the witnesses clearly supported the case of the

prosecution, yet learned Sessions Judge had erroneously disbelieved the

case of the prosecution. It was also canvassed that on account of non-

consideration of the evidence of the doctor PW-22 in proper perspective

it had resulted in an erroneous order of acquittal being passed by

Sessions Court. On these amongst other grounds as urged in the appeal

memorandum the State sought for reversal of the Order of acquittal

passed by the Trial Court. After considering the arguments advanced by 5

the respective learned advocates appearing for the prosecution as well as

the accused the High Court reversed the finding recorded by the Trial

Court and convicted the accused for the offence punishable under

Sections 302, 201, 404 and 419 of IPC and sentenced him to life

imprisonment as already noticed herein supra. Hence this appeal.

4. We have heard the arguments of Shri. Renjith B. Marar learned

counsel appearing for the appellant along with Mr. Zulfiker Ali P.S, Ms.

Lakshmi Sree P., Ms. Lebina Baby, Advocates for the appellant/accused

and Shri V.N. Raghupathy, learned standing counsel appearing for the

State.

5. It is the contention of Shri Renjith B. Marar, learned counsel

appearing for the appellant that there is no direct evidence attributable to

the role of the accused and High Court has based the order of conviction

on circumstantial evidence. He has contended that prosecution has not

been able to establish the chain of events on the basis of circumstantial

evidence, all leading to the one and only conclusion namely the guilt of

the accused. He would submit that conviction has been based solely on

the basis of confessional statement alleged to have been given by the

appellant to the police in terms of Section 27 of the Evidence Act. The

said evidence is not reliable and ought not to have been accepted since it 6

was written in the Kannada Language which was not known to the

accused. He contended that according to the prosecution accused had

given a confessional statement at the police station in Malayalam in the

presence of PW-10 who translated the same to Kannada and

undisputedly PW-10 did not know how to write and read Kannada but

was only able to speak Kannada language and as such the translated

version of appellant’s alleged confession to the police could not be

acceptable evidence. There being no evidence available on record as to

the person who had got it typed on a computer and who had taken the

printout of the same was itself sufficient to disbelieve the said statement

and there was no explanation forthcoming from prosecution. On these

aspects as rightly pointed out by the Trial Court, the High Court ought

not to have interfered with the well-reasoned order of acquittal passed by

the Trial Court.

6. He also drew the attention of this Court to the evidence of PW-

10 by contending that he is a close friend of other prosecution witnesses

and his evidence ought not to have been considered. He would contend

that confessional statement of the accused was in a printed format and

this was not typed in the presence of the accused at the police station and

even according to the prosecution it was told by PW-10, written down by

the police and undisputedly the statement which was written down was 7

not produced and as such evidence of PW-10 could not have been relied

upon by the High Court to convict the accused.

7. He would further contend that complainant PW-4 who is the son

of the deceased had stated that his father had left home in Kerala lastly

on 29.11.2011 and he had called his father once on 28.12.2011 to invite

him to a family function which had been agreed but deceased did not

visit Kerala. He would contend that according to the prosecution the

deceased was murdered by the accused on 02.12.2011 as stated in the

alleged confession statement and as per the post-mortem report, death

had occurred 45 to 60 days prior to days of exhumation on 21.01.2012

and as such the story of the prosecution as attributed to the accused is not

believable and on account of the same it caused a serious doubt and the

lacuna that has crept in prosecution case has remained unexplained,

which was fatal to the prosecution story.

8. He would further contend that prosecution has mainly relied

upon 3 witnesses namely PW-1 (mahazar witness), PW-2 (inquest

witness) and PW-10 (the person who translated the revelations of

accused) to prove the recovery of material objects (MO’s) allegedly

stolen by the accused from the farm house of the deceased. By taking us

to the deposition of these witnesses he would contend that they are close 8

friends residing in neighbourhood and all these three witnesses had

witnessed the recoveries and attested the seizure measure and inquest

report and as such they have to be treated as stock witnesses brought in

at the instance of the prosecution and same ought to have been discarded

as not being trustworthy. He would also contend that story of the

prosecution is that accused was an employee in the farmhouse of the

deceased which had not been proved. He would submit that prosecution

had failed to prove the chain of circumstances including the last seen

theory. He would contend that very fact of accused having denied all the

allegations put against him when he was examined under Section 313 of

Code of Criminal Procedure (for short ‘the Cr.P.C.’) including the

recovery of the dead body and other material objects at his instance was

sufficient to accept the stand of the accused by arriving at a conclusion

that prosecution had failed to prove the guilt of the accused beyond

reasonable doubt.

8.1 He would contend that the case of the accused was that when he

was brought to the spot by the police there were already some people

standing exactly at the spot where the dead body was exhumed and

accused had not pointed out the spot to the police and the spot was

known to the police even before the arrest of the accused. Hence, High

Court ought not to have put the burden to disprove the prosecution case. 9

He would contend that the two employees who were working in the farm

house of the deceased were missing and there was no explanation

whatsoever forthcoming from the prosecution in this regard and this cast

a serious doubt with regard to the alleged act of the deceased. He would

contend that the CDR of the accused’s mobile was not secured and

produced by way of evidence by prosecution which was fatal to the

prosecution case.

8.2 He would contend that the alleged confessional statement Ex.P-2

is to be segregated into two parts: namely recovery of dead body and

articles and in which statement was undisputedly before the police and as

such inadmissible. He would also elaborate the submissions by

contending that when the findings of the trial court cannot be held as

perverse or not possible to be arrived at, necessarily the benefit should be

extended to the accused as held by catena of Judgments of this Court and

as such he has prayed for affirming the order of acquittal passed by the

Trial Court which has since been reversed by the High Court. He would

contend that on suspicion, conviction cannot be sustained and the

prosecution had failed to prove the guilt of the accused beyond all

reasonable doubt and by relying upon the following judgments he prays

for allowing of the appeal and restoring the judgment passed by the Trial

Court:

10

(i) Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116,

(ii) Sheo Swarup v. King Emperor AIR 1934 PC 227,

(iii) Chandrappa and others v. State of Karnataka (2007) 4 SCC 415,

(iv) Murugesan v. State through the Inspector of Police (2012) 10 SCC 383,

(v) Naresh Chandra Das v. Emperor AIR 1942 (Cal) 593,

(vi) Pohalya Motya Valvi v. State of Maharashtra (1980) 1 SCC 530,

(vii) Anvar P.V. v P.K. Basheer (2014) 10 SCC 473,

(viii) Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1.

Per contra Shri V. N. Raghupathy, learned standing counsel

appearing by the State would support the judgment passed by the High

Court. He would submit that when learned Sessions Judge had failed to

look into the evidence available before it or had erroneously appreciated

the available evidence it had resulted in appellate court exercising its

jurisdiction to reverse the said findings for which the reasonings have

been assigned while recording the findings. He would submit that on

reappreciation of the evidence the appellate court has formed an opinion

that there had been non-appreciation of available material on record and

has discussed the same threadbare.

9. He would submit that material witnesses namely the witnesses to

the seizure mahazar PW-3, PW-9, PW-11 had remained unshaken and 11

there being no explanation forthcoming in the statement of the accused

recorded under Section 313 of Cr.P.C., the High Court has rightly

noticed that this material evidence had been ignored by the Trial Court

and on account of said uncontroverted evidence available on record it

has proceeded to accept the same and convict the accused which finding

does not suffer from the vice of error. He would draw the attention of the

court to the evidence of PW-5 who is the friend of the accused who has

spoken about the rubble tapping machines being sold to Mr. Babu (PW-

11) namely brother in law-Mr. Lijo (PW-5) under the agreement

prepared by the advocate PW-15. He would contend that said witness

has also spoken about Ex.P-15 under which MO23 to 32 had been seized

which are said to have been given by the accused, thus supporting the

case of the prosecution and by contending that the High Court has on re-

appreciation of evidence had rightly formed an opinion that the Trial

Court had ignored the material evidence and as such prays for sustaining

the judgment of the High Court which had reversed the finding of the

Trial Court whereby the accused had been acquitted. In support of his

submissions he has relied upon the following judgments:

(i) State of Rajasthan v Kashi Ram (2006) 12 SCC 254

(ii) A.N. Venkatesh & Ors. v State of Karnataka (2005) 7 SCC 714

(iii) State of Karnataka v Suvarnamma (2015) 1 SCC 323 12

(iv) Pattu Rajan v State of Tamil Nadu (2019) 4 SCC

771.

(v) Arjun Panditrao Kotkar v Kailash (2020) 7 SCC 1.

10. Having heard the learned Advocates appearing for the parties and

after bestowing our careful and anxious consideration to the rival

contentions raised at the bar, we are of the considered view that the

following points could arise for our consideration:

(a) Whether the judgment of the High Court reversing the finding of the Trial Court is to be set aside on the basis of there being two possible views and the one taken by Trial Court being a possible view?

(b) Whether the judgment of the High Court is erroneous and the findings recorded by the Trial Court has been erroneously reversed by High Court while re-appreciating the said evidence?

Or

(c) Whether the High Court has appreciated the evidence in proper manner or the High Court had failed to consider the evidence in proper perspective?

DISCUSSION AND FINDING

11. As the points formulated hereinabove are interlinked and

findings being recorded are likely to overlap with each other, we have

considered the above points conjointly and answered hereinbelow: 13

RE: POINTS 1 TO 3

12. One of the main contentions raised by the learned counsel

appearing for the appellant is to the effect that High Court ought not to

have interdicted with the judgment of the acquittal passed by the Trial

Court and only in the event of judgment of the trial court was riddled

with perversity and the view taken by the Trial Court was not a possible

view, same could have been reversed by relying upon the judgment of

this Court in case of Murugesan V. State through the inspector of

police1 whereunder it came to be held as follows:

“33. The expressions “erroneous”, “wrong” and “possible” are defined in Oxford English Dictionary in the following terms:

“erroneous.— wrong; incorrect.

wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral.

possible.—(1) capable of existing, happening, or being achieved.

(2) that may exist or happen, but that is not certain or probable.”

34. It will be necessary for us to emphasize that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible

1 (2012) 10 SCC 383 14

view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.”

13. It need not be restated that it would be open for the High Court to

re-apprise the evidence and conclusions drawn by the Trial Court and in

the case of the judgment of the trial court being perverse that is contrary

to the evidence on record, then in such circumstances the High Court

would be justified in interfering with the findings of the Trial Court

and/or reversing the finding of the Trial Court. In Gamini Bala

Koteswara Rao Vs. State of Andhra Pradesh2 it has been held by this

Court as under:

“14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr. Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to

2 AIR 2010 SC 589 15

whether the judgment of the trial court which has been found perverse by the High Court was in fact so.

The Appellate court may reverse the order of acquittal in the

exercise of its powers and there is no indication in the Code of any

limitation or restriction having placed on the High Court in exercise of

its power as an Appellate court. No distinction can be drawn as regards

the power of the High Court in dealing with an appeal, between an

appeal from an order of acquittal and an appeal from a conviction. The

Code of Criminal Procedure does not place any fetter on exercise of the

power to review at large the evidence upon which the order of acquittal

was founded, and to reach the conclusion that upon that evidence the

order of acquittal should be reversed.

In the case of Sheo Swarup v King Emperor3, it has been held by

the Privy Council 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/opinion of the trial judge as to the credibility of the witnesses;

2) The presumption of innocence in favour of the accused;

3 AIR 1934 PC 227 16

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.

14. This Court has time and again reiterated the powers of the

Appellate Court while dealing with the appeal against an order of

acquittal and laid down the general principles in the matter of

Chandrappa and Others Vs. State of Karnataka4 to the following

effect:

“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 (2007) 4 SCC 415 17

(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.”

15. In the aforesaid background the circumstantial evidence relied

upon by the State to prove the circumstances which points to the guilt of

the accused alone for having committed the offence as summarized by

the High Court cannot be found fault with, for reasons indicated

hereinbelow:

16. The death of Mr. Jose C Kafan being homicide stands proved by

virtue of the Post Mortem report Ex.P-41 which was conducted on

21.01.2012. The said report would indicate the death would have

occurred 45-60 days prior to the post-mortem examination. PW-22, the

Doctor who conducted the post-mortem of the dead body, Doctor

Keertiraj in his examination in chief held on 26.03.2013 has opined thus:

“A lacerated wound on left eyebrow measuring 2 inches (length) X 2 ½ inches (width) was found and the edges of the said wound was found to be 18

lacerated. There was commuted fracture on frontal bone that comes under the said wound. Below the left eye i.e., in the maxilla bone part, swollen wound was found that means some blood clotting mark was found measuring 2 ½ inches (length) X 1 ½ inches (width).”

PW-22 has opined that Mr. Jose Kafan had died due to brain hemorrhage

that occurred because of commuted fracture on the forehead. In that

view of the matter and also there being no serious dispute on this issue,

the irresistible conclusion drawn by the High Court, death of Mr. Jose

Kafan was by homicidal cannot be found fault with.

16.1 The contention of the learned counsel for the accused that it is

not possible to state conclusively as to what had exactly happened, due

to lack of eye-witnesses and therefore the possibility of the deceased

having fallen and suffered an injury cannot be ruled out is an argument

which cannot be accepted and finding recorded by the High Court

deserves to be affirmed.

16.2 One another circumstance in the chain which came to be relied

upon by the prosecution is with regard to the “last scene theory”. The

case of the prosecution is that deceased Mr. Jose Kafan was living in his

garden land at Kerodi village and was carrying on agricultural activities

in survey No.48 and 49. It is also the case of the prosecution that

deceased had constructed a house in the garden land itself and was

residing therein. The son of the deceased who came to be examined as 19

PW-4 has deposed in unequivocal terms that he had been informed by

his father that an advertisement had been given in the newspaper

‘Deepika’ about the requirement of a worker and pursuant to the same

accused had applied and he had been taken for work. He has identified

the newspaper as Ex.P-28 and the relevant advertisement as Ex.P-8(a).

16.3 Contending that prosecution had failed to prove that accused had

been employed by the deceased and neither PW-4 nor any other

witnesses namely PW-5, PW-6, PW-7, PW-8, PW-9, PW-11 and PW-12

had deposed that they have seen the appellant working in the garden land

of the deceased. It is contended that accused and deceased were never

seen together and the finding recorded by the Trial Court is well

reasoned and particularly the finding recorded at paragraphs 14, 15, 16

and same ought not to have been interfered by the High Court is an

argument at first blush looks attractive but on deeper examination it

belies the truth as noticed by High Court. The fact that accused was last

seen in the company of the deceased is testified by PW-10 and PW-14.

PW-10 in his examination in chief dated 26.02.2013 has stated to the

following effect.

“I have been residing in Sagar since 1962. I am driving auto rikshaw from the past 23 years. I have the acquaintance of Jose Kafan and he belongs to Kerala. When an auto driver, who knew Malayalam, was required in the auto stand I was shown and I and Kafan have acquaintance of nearly 5-6 years. When 20

he required auto rikshaw, he used to call me. I used to drop him to his farm land. I know where the land of Kafan is situated. The witness was shown Ex.P.31 and 32 and he identified the person wearing purple colour shirt as Jose Kafan. People used to go to the land for working. I have seen the accused in the place of Kafan. The accused was a worker there.

On 21.01.2012, a Dafedar namely Sundar told me that he wants someone who knew Malayalam and requested to go with him in order to do translation from Malayalam language. I went to Sagar Rural station. I was taken to the station and Dy. S.P Was there in the station.” The accused was shown to me and asked whether I have acquaintance of the accused and I have identified the accused and stated that he was working in the garden land of Kafan. The police showed xxx informed to the police. The accused stated that on 02.12.2011 when Kafan was sleeping at 6:00-6:30 in his house in the garden land, I killed him by assaulting on his head with an iron rod. Half an hour later when I lifted his hand and dropped, it fell downwards and later I got confirmed that he is dead and then wrapped his dead body using bedsheet and buried. He has stated that there was a compost pit behind the house and he has buried the dead body in that compost pit only. He told that after burying his dead body he was residing there only. He stated that he murdered in order to gain money by selling the equipments. He also told that he even thought of selling the land. The accused told that he would show the place where he has buried the dead body and would show the people to whom he has sold the equipments.

16.4 PW-14 is another witness whose testimony has been placed

reliance by the High Court in the chain of circumstances namely last 21

seen theory. In his examination in chief dated 12.03.2013, PW-14 has

stated to the following effect:

“I basically xxx industries. I have the acquaintance of Deepak Gowda who works by taking JCB for rent. Deepak did not know Malayalam and Kafan did not know Kannada and therefore Deepak Gowda took me to talk about the money for JCB and about work. Then I got the acquaintance of Kafan. The witness was shown Ex.P.31 and 32 and he identified the person wearing purple colour shirt as Mr. Jose Kafan. After that we had been to his garden land. He told me that he wanted workers as there are no workers to work in his garden land. Therefore, I got a worker for him but he went back to Kerala saying he is not feeling comfortable. Later an advertisement was given in the month of September 2011 through which he got a worker. That worker was there in the house when we went there. The witness identifies that person who was with Mr. Jose Kafan as the accused. Mr. Jose Kafan told that he does not have any identity card of this place and asked to get a SIM for his workers by giving my own address. Accordingly I got a SIM card to him.”

16.5 Apart from these two prime witnesses, PW-5, PW-7, PW-9, PW-

10, PW-11 and PW-15 have also clearly and in unequivocal terms

deposed that accused was last seen in the house of the deceased after his

death. Even if one witness amongst these is to be believed as to what has

been deposed is the truth, necessarily the onus is on the accused to

provide a satisfactory explanation either in his statement recorded under

Section 313 of Cr.P.C. or from the admissions elicited from these

witnesses, the circumstances in which he was in the company of 22

deceased. When PW-10 and PW-14 have clearly stated that they had

seen the accused in the company of the deceased, and there being no

satisfactory explanation offered by the accused to the contrary, it has to

be necessarily held that accused had failed to discharge the burden cast

upon him. Section 106 of the Evidence Act clearly lays down that when

any fact is specially within the knowledge of a person, the burden

approving that fact is upon him namely, on such person. This Court in a

case of State of Rajasthan Vs. Kashiram5 has held:

“16. The most important circumstance that the respondent was last seen with the deceased on 3-2- 1998 whereafter he had disappeared and his house was found locked and that he had offered no explanation whatsoever, was disposed of by the High Court in one short paragraph observing that there was nothing unusual if the accused was seen in the company of his own family members in his house. On such reasoning, the High Court held that the circumstantial evidence relied upon by the prosecution was not strong enough to sustain the conviction of the respondent. Accordingly, the High Court allowed the appeals preferred by the respondent and declined the death reference made by the trial court for confirmation of the sentence of death.” “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an 5 (2006) 12 SCC 254 23

explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. [AIR 1960 Mad 218 : 1960 Cri LJ 620]”

16.6 Thus, when PW-10 and PW-14 have in clear terms deposed to

have last seen the accused with the deceased, necessarily accused must

offer an explanation as to how and when he started living separately and

there being no explanation offered necessarily in the chain of

circumstances, the last seen theory propounded by the prosecution to

drive home the guilt of the accused requires to be accepted.

17. Yet another circumstance which the prosecution has heavily

relied upon is the recovery of dead body at the instance of the accused,

based on voluntary statement, which statement has been disowned by the

accused and the same not having been proved by the prosecution

according to the learned counsel appearing for the accused. The said 24

statement of the accused has been marked as Ex.P-2 through PW-25. The

said statement was recorded in the presence of Mr. Balakrishna Guled

PW-1, Mr. Raju CW-3 and interpreter Mr. Kunjali, PW-10.

17.1. It has been contended that procedure adopted in asking

questions, eliciting answers from the appellant-accused has been spoken

to by PW-10 Mr. Kunjali who states that he did not know how to read

and write Malayalam and yet police had asked him questions in Kannada

who in turn had translated into Malayalam and elicited answers from

accused in Malayalam and said answer was translated into Tamil by PW-

10 and same was typed out in Kannada by the police which is an unusual

method of recording the confession of an accused and as such confession

statement Ex.P-2 was not admissible evidence under Section 27 of the

Evidence Act. To examine said contention we deem it proper to extract

Section 27 of the Evidence Act and it reads:

“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.”

18. Section 27 permits the derivative use of custodial statement in

the ordinary course of events. There is no automatic presumption that the 25

custodial statements have been extracted through compulsion. A fact

discovered is an information supplied by the accused in his disclosure

statement is a relevant fact and that is only admissible in evidence if

something new is discovered or recovered at the instance of the accused

which was not within the knowledge of the police before recording the

disclosure statement of the accused. The statement of an accused

recorded while being in police custody can be split into its components

and can be separated from the admissible portions. Such of those

components or portions which were the immediate cause of the

discovery would be the legal evidence and the rest can be rejected vide

Mohmed Inayatullah Vs. State of Maharashtra6. In this background

when we turn our attention to the facts on hand as well as the contention

raised by the accused that the confession statement is to be discarded in

its entirety cannot be accepted for reasons more than one. Firstly, the

conduct of the accused would also be a relevant fact as indicated in

Section 8. This court in A.N. Venkatesh & another. Vs. State of

Karnataka7 has held to the following effect:

“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 6 AIR 1976 SC 483 7 (2005) 7 SCC 714 26

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 accused-appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW-4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.

19. It is a trite law that in pursuance to a voluntary statement made

by the accused, a fact must be discovered which was in the exclusive

knowledge of the accused alone. In such circumstances, that part of the

voluntary statement which leads to the discovery of a new fact which

was only in the knowledge of the accused would become admissible

under Section 27. Such statement should have been voluntarily made and

the facts stated therein should not have been in the knowhow of others.

In this background when the deposition of PW-10 is perused it would

leave no manner of doubt in our mind that statement of the accused

(Ex.P-2) having been recorded being voluntary and when the statement

is being recorded in the language not known to the accused, the 27

assistance of interpreter if taken by the police cannot be found fault with.

The ultimate test of the said statement made by the accused having been

noted down as told by the accused or not would be of paramount

consideration. If the answer is in the affirmative then necessarily said

statement will have to be held as passing the test of law as otherwise not.

Merely because the translation was made from Malayalam to Tamil and

written down in Kannada would not suggest that such statement be held

to be either not being voluntary or the said statement having been

recorded improperly. The interpreter having entered the witness box and

tendered himself for cross-examination which resulted in nothing

worthwhile having been elicited for discarding his evidence, it cannot be

gainsaid by the accused that said statement at Ex.P-2 is to be ignored or

rejected or discarded. Merely because PW-10 did not know how to read

and write Malayalam does not ipso facto make the contents of Ex.P-2 to

be disbelieved. On the other hand, he states that he is from Kerala and he

knows how to speak Malayalam. What was required to be performed by

him was to pose the question as stated by the witness to the accused and

the answers given to such questions are to be stated to the police for

being recorded as stated by the accused. In fact, there is not even a

suggestion made to PW-10 about the contents of Ex.P-2 being incorrect. 28

20. It is pursuant to this voluntary statement as per Ex.P-2 which

lead the police to recover the body of the victim from the compost pit,

which has been proved through PW-1, PW-2, PW-4, PW-10 and PW-25.

Their admissions read as under:

PW-1: “I will show the place where I have murdered Jose C Kafan with an iron rod and the place where I have buried his dead body in the pit.

PW-2: “On 21.01.2012, I had been to Kerodi Village due to some personal work. Tahsildar and police were going there in a jeep. I greeted Tahsildar. He told me that a case is there and asked me to accompany him. The accused showed a place there. He showed a place and told that there is a dead body in a compost pit situated next to lemon tree and told that he has closed it. I, Devendra and Shivu opened the pit. While digging the pit, a cloth was found and while removing the mud a blanket was found after cloth and again while removing the mud slowly a dead body wrapped with a blanket was found.”

PW-4: “I have told Stanie that my father has not expired. Immediately, I and my brothers Ajith and Ranjith came to Kerodi village with K.K. Shaabu of Kundapura. When we went to that place, neither my father nor the workers were there. Immediately we went to the rural Police Station of Sagar and lodged complaints. I have not lodged complaint about missing. We went to the station on 21 st the Police were investigating Siju Kurian. The witness showed the accused and identified him as Siju Kurian. The accused has stated before the police that he has killed my father by assaulting with an iron rod on his head and has buried in a pit by wrapping the dead body with a blanket. The accused told that he would show the place where he had buried the dead body and hence led us and showed the place where he had buried the dead body. The accused has shown the 29

place of incident occurred. He took us to the place and showed the place my father was sleeping.

Later he showed us the place where the dead body was buried. Then, before the presence of Tahasildar, the dead body was exhumed.”

PW-10: “On 21.01.2012, A Dafedar namely sundar told me that he wants someone who knew Malayalam and requested to go with him in order to do translation form Malayalam language. I went to Sagar Rural station. I was taken to the station and Dy.S.P was there in the station. The accused was shown to me and asked whether I have the acquaintance of the accused and I identified the accused and stated that he was working in the garden land of Kafan. The Police showed the accused and told me that he does not know Kannada and told me to ask him about Jose Kafan. I used to ask the accused in Malayalam in the manner in which the police wanted to ask and the reply given by the accused is translated into Tamil (Translator’s note: In the original document it is written Tamil and the word is underlined.) and informed to the police. The accused stated that “on 02.12.2011 when Kafan was sleeping at 6-6:30 in his house in the garden land, I killed him by assaulting on his head with an iron rod. Half an hour later when I lifted his hand and dropped, it fell downwards and later I got confirmed that he is dead and then wrapped his dead body using bed sheet and buried”. He has stated that there was a compost pit behind the house and he has buried the dead body in that compost pit only. He told that after burying the dead body he was residing there only. He stated that he murdered in order to gain money by selling the equipments. He also told that he even thought of selling the land.

The accused told that he would show the place where he has buried the dead body and would show the people to whom he has sold the equipments.”

PW-25: In his statement, he had admitted about committing the offence and stated that he would show the place where the dead body was buried.

30

It is no doubt true that aforesaid confession of PW-25 in its entirety is

not admissible in view of Section 25 of the Evidence Act. However, in

the teeth of Section 8 read with Section 27 of the Evidence Act, that part

of the confession which led to the recovery of the dead body of the

victim would become admissible, apart from other articles of the

deceased recovered at the instance of the accused has been identified by

several witnesses independently. This has also persuaded the High Court

to accept the statement recorded under Ex.P-2 as being admissible which

cannot be construed as highly improbable. Certain articles were

recovered on the strength of confession statement – Ex.P-2 made by the

accused and in order to prove such recovery the witnesses who have

been examined by the prosecution have deposed to the following effect

and this has also persuaded us to accept the findings of the High Court.

(a) PW-3- Mr. Raghavendra (Panch witness) has deposed as under:

“… When Lijo came out the police enquired as to whether the accused has given him any items, for which Lijo admitted and told that he has given him certain items. Lijo produced the said items before the police. Lijo produced almirah, suitcase, basket and spade. Lijo produced almirah, suitcase, basket and spade. He totally produced 4 baskets…”

(b) PW-9 Mr. Sunil Kumar in his evidence has stated that-

“When we went to Kafan’s land, the accused was there. The accused told in Malayalam that we would sell the equipments and Keriyappa understood little bit of Malayalam. He told that rubber roller machine is for sale. Since the price of it was costly, I refused to buy and when we were returning, he had piled up the 31

equipments in front of the house. He told that he would sell that too. He wrote and showed the price of those equipments as Rs. 2,500/-. I wrote and showed Rs. 2,000/-. The accused agreed for it and sold the equipments. We purchased it. I have purchased 12 spades, one iron rod, and one handsaw, two water drums wherein one had lid and the other one was not having and pest control spraying machine…”

(c) PW-10-Kunjali has stated that-

“… Police and Panchas were there when I went to the station and accused and also there. From there the accused led us to Bheemaneri. I do not remember the name of the person to whose house he took us. I have translated whatever the accused has spoken from Malayalam to Kannada language. One almirah, suitcase, Bank cheque book and pass book, 4-5 baskets and one spade and documents were there in that place and he has identified it and they have been marked as M.O.23-32…”

(d) PW-12- Denny C. Thomas in his deposition has stated that-

“I have the acquaintance of Lijo. I was in need of water tank and have informed this matter to Lijo. He informed me that one water tank is for sale. It was an old water tank. Later Lijo took me to the garden land of Jose Kafan and showed the water tank. He charged Rs. 15,000/- but I told I would give Rs. 12,000/-. Lijo agreed for that. All these happened in the month of December 2011. Later I gave Rs. 12,000/- and purchased the water tank. I gave that to Sebastian as he asked to preserve water for marriage.”

20.1 In fact, accused had sold the rubber rolling machines for a sum of

Rs.27,000 in favour of PW-11, which came to be marked as MO 43 and

MO 44. The factum of sale of MO 43 and MO 44 has also been proved

through PW-5. It would be apt and appropriate to extract the deposition

of PW-5 which is to the following effect:

32

PW-5: “On 08.12.2011 in the evening Babu called me over phone and told me that rubber roller machine is for sale in Lingadahalli and he is thinking of purchasing it. He asked my suggestion because the cost of that machine was Rs. 30,000/-. I told him not to buy immediately but to buy the next day after preparing an agreement with the advocate. Later all three of us namely I, Babu and the accused Binu went to Lingadahalli. There we went to the house of Uday Kumar, who was an advocate. My brother-in-law knew him and he was requested to prepare an agreement regarding the purchase of roller machine.

He took us to the garden land of Jose Kafan and had shown the rubber roller machine. At that time, it was dark. Later we went to the hose of Babu in the same auto. We took machine in the auto and kept in Babu’s house. I enquired about Jose Kafan with the accused. He told that he is unwell and hence he is in the hospital in Kerala and he cannot move his hands and legs and can only move his head and hence he is in Ernakulam Hospital.” PW-7: “I asked whether the owner is doing fine and the accused told that he is doing fine and had gone to Kerala. He informed about rubber machine and asked me only to purchase it. I told that I do not want it and would inform him about people who wants to purchase it. I told I need the owner for that dealing. At that time the accused told that the owner is not keeping well. He told that money is required for his treatment only for which he is selling it. Therefore, the next day I and Sunil Kumar went to the Garden land of Jose Kafan. We saw the rubber roller machine. The accused told that the cost of it is Rs. 50,000/- We asked for Rs. 30,000/-. We did not buy it but came back.”

20.2 In fact the land belonging to the deceased was attempted to be

sold by the accused to PW-5 and the uncontroverted evidence that is

available on record is to be following effect below:

33 PW-5: “He told that they will not do any agricultural activities and want to sell property and asked me to inform whether anybody wants to buy it. I agreed for that and told that I would inform if any party is ready to buy it. He told that Binu does not know Kannada and did not have the acquaintance of anyone. Therefore, he asked me to keep and preserve the records.

PW-8: “He has identified the person wearing purple colour shirt as Jose Kafan. In the month of December 2011, Bisu had told that 4 ½ acres of farm land of Kafan is for sale. Lijo had told Bisu about this. In order to obtain advice regarding the purchase of the said farm land, I, Lijo and my brother-in-law Bisu met Nagaraj, who is an advocate. Lijo had the documents.

The advocate examined the documents. Lijo told that Mr. Jose Kafan has expired. By looking at the documents, advocate told that the death certificate of Kafan is required and for identification purpose his ID card or License is required and Kafan’s son has to come in order to sell the land. Later we went to bus stand from the house of advocate. I also went to the bus stand. Lijo and Bisu went in bike. Later, after 5 minutes Lijo made a phone call to me and told me to be in bus stand only saying Kafan’s son had called and they could talk directly with him. They came to bus stand. They made a phone call and gave mobile to me. The person who made a phone call asked to give advance amount of one lakh rupees to Binu. The person who made a phone call stated that he is Kafan’s son Sajith. He told that the value of land is 10 lakhs. I told that I would get the advance amount to Kerala. At that time he asked me to give advance amount to Binu. Lijo asked for commission. He asked to give one lakh rupees to Lijo. Around 2-3 days after this, my brother-in-law Bisu had been to Mankalale, where Kolathur Jose was residing. He is the relative of Jose Kafan.

Lijo told Kolathur Jose that Jose Kafan has expired and his sons are selling his land. Then Kolathur Jose told that Jose Kafan is not dead and he would talk to Kafan’s children and let us know about it.” 34

PW-9: “When we went to Kafan’s land, the accused was there. The accused told in Malayalam that he would sell the equipments and Keriyappa understood little bit of Malayalam language. Keriyappa explained by understanding little bit of Malayalam. He told that rubber roller machine is for sale. Since the price of it was costly, I refused to buy and when we were returning, he had piled up the equipments in front of the house. He said that he would sell that also. He wrote and showed the price of those equipments as Rs. 2,500/- I wrote and showed Rs. 2,000/-. The accused agreed for it and sold the equipments. We purchased it. I have purchased 12 spades one iron rod, one handsaw, two water drums wherein on had lid and the other one was not having and pest control spraying machine. We shifted all the items and I gave the drum that had no lid to Keriyappa. I took the remaining.” PW-11: “In the month of December 2011, it was told about rubber roller machine. It was told that the machine is there in someone’s house at Kerodi. I and Sunil Kumar went to see the machine and the accused was there in that place. The accused disclosed his name as Binu. He introduced himself as the son of Kafan’s younger brother. He said that the rubber roller machine is on sale and informed that its cost is Rs. 30,000/-. I agreed to purchase the machine and after negotiation it was decided to purchase it for an amount of Rs. 27,000/-. We came back on that day only.

I had informed Lijo about purchasing the machine. Lijo is my brother-in-law and he told to prepare an agreement for that. Then I, my brother-in- law Lijo and Binu went to advocate’s house on 09.12.2011. Advocate Uday Kumar resides in Lingadahalli. We had been to his house. He wrote the content of agreement on a white paper. I, Binu and Lijo had affixed our signature on the said document.

The accused himself is Binu. The witness identifies his signature of the accused in M.O.41-agreement. The witness identifies his signature also. The signature of the witness has been marked as M.O.41(b), accused signature as M.O.41 (c) and Lijo’s signature as M.O.41 (a). The sale agreement 35

was prepared for Rs. 30,000/- but I gave only Rs. 27,000/-.” PW-13: “On 07.01.2012, I went to Vigneshwara Hospital with my wife and son because my son was unwell. Lijo also had come to the hospital since his son was also unwell. I know Lijo from long back. While talking, Lijo informed me that Jose Kafan is dead. He informed me that Kafan was suffering from Paralysis disease and his son took him to Kerala for treatment and since the disease became severe in Kerala, he took Kafan to America for better treatment but Kafan died two days before Christmas festival. Lijo even told that his dead body was not bought back but the funeral was conducted there only.

Later, after several days I went to Century Motors for my bike repair. Lijo was also there in that place. Lijo told me that Kafan’s children are intended to sell his land and asked me whether I would be interested to buy it. I told Lijo that I don’t want and would inform my brother-in-law about it. After 2 days Lijo informed me about the price of the land and about his commission. Later Lijo told me that he has land documents with him. Since I said that I have to take suggestions from Advocate, I and my brother-in-law, Stanie and Lijo went to the house of Advocate Nagaraj with the said documents. Advocate Nagaraj examined the documents and since the advocate was informed that Jose Kafan had died, he informed that Kafan’s children have to come and should bring Power of Attorney from all the heirs and also the death certificate of Kafan. We went to our respective houses from the hose of Advocate. By the time I reached Mari temple, I once again made a phone call to Lijo. Lijo told me that Kafan’s son had called him over phone and asked me to go there saying that Kafan’s son Sajith had called him over phone. I and Stanie again went near the court. Lijo was there and at that time Lijo got a phone call and he talked and then gave mobile phone to Stanie. Stanie talked directly and the person who was talking in the phone told that he would come to Sagar to obtain the advance amount. He even told that he would come after making a phone call.” PW-15: “From 17 years I have been practicing as an Advocate in Sagar. I have the acquaintance of Babu 36

of Marur village. He had come to my house on 09.12.2011 at about 7-45 in the evening. The said Babu was accompanied by his uncle and the accused before the Court. The witness was shown Ex.P.21. He has identified the person who is holding documents in Ex.P.21-photograph as the brother-in-law of Babu. Babu, who came to my house, told me that the accused has a rubber roller machine and he is purchasing it. He asked me to prepare a sale agreement with regard to that. I asked him the details about the company of the rubber roller machine, its owner, its number and other details, for which he said that he does not have all those details.

According to the information furnished from them, I prepared a sale agreement of movable property. The witness was shown M.O. 41. He identifies it as the sale agreement that was prepared by him. The accused, who was selling the rubber roller machine, did not know Kannada. I read out the sale agreement in Kannada and also in English. Since the accused did not know both English and Kannada, Lijo translated the contents of sale agreement into Malayalam language and explained to the accused. Both the vendor and vendee have affixed their signature before me. The accused, who is the vendor, has affixed his signature and the vendee has also affixed his signature. Lijo has affixed his signature as a witness.”

21. The other surrounding circumstances which prove the accused

being guilty of the offence beyond reasonable doubt are the recovery of

the articles belonging to the deceased and sold by the accused which

were recovered on the strength of the voluntary statement of accused as

per Ex.P-2. In-fact PW-5 has clearly stated as to how the accused

intended to sell the immoveable property belonging to the deceased. PW- 37

5 has clearly deposed as to how the accused was apprehended by the

police when he was attempting to sell the property of the deceased.

22. That apart the statements made by the accused that deceased had

gone to Kerala or the deceased had suffered a paralytic stroke or

deceased had proceeded to America and expired there are all incorrect

and conflicting statements as has been deposed by PW-5, reliance of

which is placed by the High Court in the background of the Judgment of

this Court in State of Karnataka v. Swarnama8, and as such we are of

the view that conclusion arrived at by the High Court is based on sound

appreciation of evidence and proper application of law. That apart,

accused has failed to explain with regard to the incriminating evidence

found against him except total denial and as such the High Court has

rightly applied the principles laid down by this Court in Pattu Rajan v.

State of Tamil Nadu9 to reject the contention of the accused appellant.

On account of evidence available on record having been ignored and

there being patent perversity in appreciation of evidence by the Learned

Sessions Judge it resulted in interference by the High Court. We do not

find any material irregularly having crept in the judgment of the High

Court calling for our interference. On re-appreciation of entire evidence

by the High Court in proper perspective it has resulted in arriving at a 8 (2015) 1 SCC 323 9 (2019) 4 SCC 771 38

right conclusion viz. that accused alone has committed the murder of the

deceased Mr. Jose C Kafan and there being no other possible view which

could be considered as missing in the link of chain of circumstances, this

Court is of the considered view that appeal deserves to be dismissed as

being devoid of merits.

23. For the reasons indicated hereinabove we dismiss the appeal and

confirm the judgment dated 20.03.2020 passed by the High Court of

Karnataka in Criminal Appeal No. 335 of 2014.

……………………………….J. (Surya Kant)

…………………………………J. (Aravind Kumar)

New Delhi April 17, 2023