TaxTMI 
TaxTMI 
2023 (4) TMI 1274
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....ntencing to undergo simple imprisonment for a period of 3 years/2 years for the respective offences which has been ordered to run concurrently and also fine. 2. Brief facts of the case as put forth 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 af....
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....e 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 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 Indian Penal Code 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 Cou....
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....ld 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 th....
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....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: (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 Ors. 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 ....
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....e 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: 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 ....
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....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 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 pl....
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....ble 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-mo....
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....hat 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 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 worke....
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....sed. 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 Code of Criminal Procedure or from the admissions elicited from these witnesses, the circumstances in which he was in the company of 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....
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....ar 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 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....
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....ut to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing 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 v....
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....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 21st the Police were investigating Siju Kurian. The witness showed the Accu....
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....ace where the dead body was buried. 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.....
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....to the following effect: 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 h....
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.... 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." 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 purc....
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.... 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 Sa....