TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 1311
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...., 1860 (for short, 'the IPC'). The High Court sentenced the appellant herein to undergo life imprisonment with fine of Rs. 25,000/- and in the event of default of payment of fine to undergo further simple imprisonment for a period of six months. CASE OF PROSECUTION 2. The appellant herein along with two other co-accused, namely, Gowri alias Gowramma wife of late Nagaraj and Seetharam Bhat son of late Nagabhatt were put to trial in the Sessions Case No. 59 of 2011 for the offences punishable under Sections 120-B, 302, 379 and 201 read with Section 34 of the IPC. All the three accused were put to trial in the court of Principal Sessions Judge, Chikmagalur. The original accused No. 2, namely, Gowri (acquitted) was born in the wedlock of one Manjappanaika and his first wife. The deceased, namely, Kamalamma was the second wife of the Manjappanaika. Gowri (original accused No. 2) happens to be the step daughter of the deceased Kamalamma. After the demise of Manjappanaika his immovable properties were divided between the deceased Kamalamma and Gowri (A-2). In the wedlock of Manjappanaika and the deceased two daughters were born, namely, Sugandha (PW 1) and Sujatha. The decea....
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....t herein and Gowri had lured him with a bottle of brandy and saying so had asked him to accompany them as they had some work. Thereafter, the appellant and Gowri are said to have revealed or rather made an extra judicial confession before Seetharam Bhat (A-3) that they had committed murder of the deceased Kamalamma and had kept the body in a cattle shed. 8. The appellant and Gowri asked Seetharam Bhat (A-3) to help them in disposing of the dead body. When Seetharam (A-3) declined to help them, he was threatened by the appellant and Gowri. Accordingly, Seetharam Bhat (A-3) accompanied them and helped in removing the gold ornaments from the body of the deceased and burying the body at the field of one Dinamani. 9. On 10.12.2010, H.T. Yogesh (PW 7) went to the Police Station and lodged a First Information Report for the offence of murder. 10. Upon registration of the First Information Report, the investigation had commenced. All the three accused persons came to be arrested. While the appellant herein and Gowri (A-2) were in custody of the Police they are said to have made statements that they would show the place where the dead body had been buried and also the place where t....
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....-witness. (7) PW 7 H. T. Yogesh, CW 1, son-in-law of the deceased before whom original accused No. 3 is said to have been made extra judicial confession. (8) PW 8 H. M. Ravikanth, CW 4, panch-witness. (9) PW 9 I. Somashekhara Shetty, CW 14, jeweler to whom the ornaments were sold. (10) PW 10 Ravi Shetty, CW 22, panch-witness to the discovery of the mobile. (11) PW 11 Dr. J. Neelakantappa Gowda, CW 29, panch- witness. (12) PW 12 C.V. Harish, CW 26 panch-witness. (13) PW 13 Thousif Ahmed, CW 32, panch-witness to the place of incident. (14) PW 14 J.K. Shivakumar, CW 37, Revenue Officer. (15) PW15 Dayanand Gowda, CW 28, Assistant Commissioner. (16) PW 16 Meeranath Gowda, CW 24, Cook at Sharath Bar and Restaurant. The appellant used to assist the PW 16 at the restaurant. (17) PW 17 Mahesh E.S., CW 41, Police Officer. (18) PW 18 Manjeshwara Kalappa, CW 40, Police Officer. (19) PW 19 T. Sanjeeva Naik, CW 42, Police Officer. 19. The prosecution also adduced documentary evidence in the form of FIR, Inquest panchnama, discovery panchnamas etc. 20. The trial court framed ....
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....o commit the crime. According to the prosecution, the appellant herein had illicit relationship with original accused No. 2, namely, Gowri and the deceased was coming in their way. In such circumstances, the appellant herein and the original accused No. 2 had the motive to commit the crime. (2) Extra judicial confession alleged to have been made by the accused No. 3 Seetharam Bhat before the PW 7 Yogesh (son-in- law of the deceased) after four months of the date of incident. (3) Discovery of the dead body at the instance of the appellant herein by drawing a panchnama under Section 27 of the Evidence Act. (4) Recovery of the ornaments from the shop of the Jeweller (PW 9) at the instance of the appellant herein by drawing a panchnama. (5) The discovery of the weapon of offence, mobile of the deceased and the clothes of the appellant accused at the instance of the appellant herein under Section 27 of the Evidence Act. 23. We shall now look into the reasonings assigned by the trial court while not accepting any of the aforesaid circumstances, as incriminating circumstances, establishing the guilt of the accused persons. We quote as under: ....
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....ossexamination, he has admitted that he is not going to ask any personal matters of A-3 nor he will tell his personal matters to him. He has further admitted that he is not having any confidence in him and vice versa, A-3 is also not having any confidence in him. A-3 is also not a friend or relative of P.W.7. In order to establish that A-3 made a confession before P.W.7, A-3 must have reposed confidence in him and he must have some faith with the person to whom he is making such a confession. When P.W.7 is neither a relative nor a friend, why A-3 is going to make such a confession before P.W.7 who is a close relative of the deceased, is a mystery. Under the facts and circumstances of the present case on hand, it is very difficult to believe that A-3 would make such a confession before P.W.7 about the crime committed by them. While considering the evidence of extra judicial confession, the Court must also verify whether the accused could repose confidence in such a person so as to disclose a secret aspect of his life. For this proposition of law, I want to rely upon the decision reported in AIR 1975 SUPREME COURT 258, [THE STATE OF PUNJAB v/s BHAJAN SINGH & OTHERS] wherein it is hel....
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....ich he has taken from the body and the same has been marked as Ex.P.28. Accused nos.2 and 3 have volunteered to show the place where they have buried the dead body. If we see the evidence of this witness with the evidence of the other witnesses, it is not accused nos.2 and 3 who took the IO and the panch witnesses and showed the place of burial. P.Ws.2 and 8 have deposed that about one year back, he saw the dead body of deceased near a halla situated at Dinamani land at a mound and there, the Dy. S.P. and the A.C., were also present. A-1 and A-3 showed the place of burial of the dead body. But, nowhere these witnesses have spoken that A-1 and A-3 led them and showed the place of burial. If already the said burial spot was known to the Dy. S.P, and the A.C., then under such circumstances, it cannot be held that it is at the instance of the accused that the said place has been discovered. If we see the evidence of P.W.8, he has deposed that the said body was fully decomposed and one blouse and one petticoat were found on the dead body and if we see the evidence of P. W.15, he has deposed that accused nos. 1 and 3 led them to a mound in survey No. 121 and showed the place where they h....
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....1 was also present and that himself, C.W.13 and the PI were led by A-1 to Rippanpet. There, A-1 took them to Someshwara Jewellers shop and there A-1 asked to give the gold ornaments given by him and C.W.14 returned the said gold ornaments and the same were seized by drawing a Mahazar as per Ex.P.1. Admittedly, this witness is the nephew of the deceased and even though by the side of the Police Station and the jewellery shop there are so many shops and other persons were available, but why this particular person has been chosen as a witness is also not forthcoming. 40. P.W.9 is the owner of the jewellery shop. He has deposed that A-1 came and sold the gold articles prior to 3 1/2 months back by coming to his shop and he returned the said articles and they were seized by drawing a Mahazar as per Ex.P.1. During the course of cross-examination, he has deposed that they will not maintain any receipt book for having purchased the gold and he has also further deposed that when he purchased the gold articles, they were just like new and there will be wear and tear found on the gold articles even though they have been renewed with new coatings. When the said articles appear to be n....
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....the deceased is also not brought on record by the prosecution, for the reasons best known to it. This particular doubt also goes to the benefit of the accused. Even though P.W. 1 was knowing that the deceased, her mother, was having a mobile and after coming to know about the missing of her mother on 24.8.2010, she will not make any efforts to make a call to the mobile of her mother which is an unnatural conduct on her part. No daughter, after coming to know that the mother is missing, will keep quiet, that too when she knows that her mother is having a mobile. Definitely she could have made a call. For what reasons P.W. 1 did not make any call to her mother's mobile is also a doubtful circumstance. 44. It is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt shall have to be given to the accused. Taking into consideration the above said facts and circumstances of the case, I answer point Nos.2 to 5 in the negative." 24. Thus, the trial court, upon appreciation of the oral as well as documentary evidence, came to the conclusion that the pr....
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....ve, the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained, in view of any of the above infirmities, it can then - and then only - reappraise the evidence to arrive at its own conclusions. The principal argument of the learned counsel appearing for the appellant convict is that in the case on hand, there is no finding recorded by the High Court that the judgment of the trial court is palpably wrong, manifestly erroneous or demonstrably unsustainable. 29. The learned counsel would further submit that the High Court committed a serious error in making the extra judicial confession alleged to have been made by the original accused No. 3 Seetharam Bhat before the PW 7 almost after four months from the date of the incident is the basis and thereafter, trying to search for corroboration. It was argued that even otherwise, an extra judicial confession is a weak piece of evidence. He would argue that in the case on hand, the High Court should not have relied upon the extra judicial confession alleged to have been made by the accused No. 3 Seetharam before the PW 7 Yogesh ....
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....r of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (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. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice." It was stated that the appellate court has full powers to review and to reverse the acquittal. 36. Following the Sheo Swarup (supra) this Court in Chandrappa and Others v. State of Karnataka reported in (2007) 4 SCC 415 held as under: "16. It cannot, however, be forgotten that in case of acquittal, there is a 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 should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innoce....
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....ous because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial". 40. In Shivaji Sahabrao Bobade and Another v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, in para 6, Krishna Iyer, J., observed as follows: "6. ..... In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents ..... ' 41. This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972, in para 7 spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows: "7. ..... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court ans....
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....reasonably taken, then the view which favours the accused should be adopted. (6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box. (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused." 43. This Court in Chandrappa (supra) highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal. After referring to a catena of judgments, this Court culled out the following gene....
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.... appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarised as follows: 45.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of Uttar Pradesh v. Sahai and Others, (1982) 1 SCC 352]. Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. P.S.R. Sadhanantham and Another, (1979) 2 SCC 297]. An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical....
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....e ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish "motive". [State of Andhra Pradesh v. Bogam Chandraiah and Another, (1986) 3 SCC 637]. 45.2.2. Where acquittal would result in gross miscarriage of justice: (a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh and Others, 1989 Supp (1) SCC 288] or based on extenuating circumstances which were purely based in imagination and fantasy [State of Uttar Pradesh v. Pussu alias Ram Kishore, (1983) 3 SCC 502]. (b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610]. 46.....
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....nst 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 Cri LJ 1783] where the following 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 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 natur....
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....aid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. ANALYSIS OF THE CIRCUMSTANCES RELIED UPON BY THE HIGH COURT 50. It is the case of the prosecution that the original accused No. 3 Seetharam Bhat had made an extra judicial confession before the PW 7, H.T. Yogesh (son-in-law of the deceased). PW 7 in his examination-in-chief, recorded by the trial court on 21.01.2012 has stated as under: "1. I know the accused persons who are present before the court. Deceased Kamalamma is my mother-in-law. C.W.8 is my wife. P.W.1 is my wife's sister. C.W.12 is the husband of P.W.1. C.W.5 and 6 are th....
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....my signature. At that time photographs were also taken. Now the three photos have been marked as Ex P-4. Apart from me C.Ws. 2 to 4 and P.W.3 also signed. 6. On 14.12.2010 again police called me at about 2 p.m. to the Police Station. In the said police station A1 was also present. Police brought C.W.24 Meeranath and he produced a mobile. The said mobile was of the deceased Kamalamma. The same was seized in the presence of C.W.22 and 23 by drawing a mahazar. Now I see the same. The same is now marked as Ex.P-12. Ex.P-12(a) is my signature. At that time photo was also taken. Now the said photo is marked as Ex.P-13. I can identify the mobile if shown to me. The same is already marked as M.O.4. I do not remember the cell number of my mother- in law. She has studied upto 4th standard. 7. My mother-in-law used to wear a chain with Ganapathi pendant which is already marked as M.O.1, one pair of ole with blue stone in the middle surrounded by white stones which is already marked as M.O.2, one gold ring with red stone which is already marked as M.O.3. I can identify the blouse and petticoat which were found on the body of the deceased. (Now one sealed cover is shown to the....
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....on if it passes the test of credibility. 54. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction. 55. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under :- "15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra­judicial confession is surrounded by suspicious circumstances, its credibility becomes doub....
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....nd Others v. State of Punjab, (1977) 4 SCC 452, held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated. 57. The sum and substance of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession. 58. This Court in Kashmira Singh v. The State of Madhya Pradesh reported in AIR 1952 SC 159, had observed as under: "The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidenc....
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....or the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. [Explanation :- "Offence", as used in this section includes the abatement of, or attempt to commit the offence.]" 63. It was argued that this confession of a co-accused, even if proved, cannot be the basis of a conviction and although it is evidence in the generic sense, yet it is not evidence in the specific sense and it could afford corroboration to other evidence and cannot be the supporting point or the sole basis of the conviction. In this respect, reference could be made to a decision of this Court in the case of Haricharan Kurmi & Jogia Hajam v. State of Bihar, as reported in AIR 1964 SC 1184, as also to another decision of this Court reported in Ram Chandra and Another v. State of Uttar Pradesh, AIR 1957 SC 381 wherein it was held that confession of a co-accused can only be taken into consideration but it was not in itself a substantive evidence. The Privy Council also held that a confession of a co- accused w....
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....ubt made it evidence on which the Court could act, but the section did not say that the confession was to amount to proof. Clearly, there must be other evidence and confession was only one element in the consideration of all the facts proved in the case, which can be put into the scale and weighed with other evidence. Their lordships confirmed the view that the confession of a co-accused could be used only in support of the evidence and could not be made a foundation of a conviction. 66. The case of Ram Chandra (supra) before this Court, as reported in AIR 1957 SC 381 was also of murder. It was a case in which corpus delecti was not traceable and proof of murder solely depended on a retracted confession of an accused. The Court was of the view that although corpus delecti was not found, yet there could be a conviction if reliable evidence, direct or circumstantial, of the commission of murder was available. However, a confession of a co-accused was not in itself a substantive evidence. The courts below had relied on a confession of accused Ram Chandra against a co-accused, Ram Bharosey, for holding him guilty of the offences charged against him. This Court held, "It is rightly u....
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.... of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals." 68. The case in hand is not one of a confession recorded under Section 15 of the TADA Act. On the language of sub-section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him. So, it is implicit that the same can be considered against all those, tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against the co-accused, abettor or conspirator charged and tried in the same case along with the accused. The accepted principle in law is that the confessional statement of an accused recorded under Section 15 of the TADA Act is a substantive piece of evidence against his co-accused, provided the accused concerned are tried together. This is the fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TAD....
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.... the court. The same is now marked as M.O.9. Thereafter A3 also went by the side of the bush and from there he produced a spade. Now I see the said spade. The same is now marked as M.O.10. Thereafter M.O.9 and 10 were seized by drawing a mahazar. Now I see the said mahazar. The same is now marked as Ex.P-8. Ex.P-8(a) is my signature. The said mahazar was drawn in between 11 a.m to 11.30 a.m. At the time of drawing the said proceedings photographs were also taken. Now the said two photographs are marked as Ex.P-9 and P-10." 71. For the purpose of proving the discovery of the dead body of the deceased at the instance of the appellant herein and the acquitted co-accused (A-2), the prosecution has relied upon evidence of PW 7 H.T. Yogesh. PW 7 H.T. Yogesh in his examination-in-chief has deposed as under: "5. Next day when police and Assistant Commissioner came to the spot I was also called there. C.W.2 to 4 were also called. There A1 and A3 showed the place where they had buried the body of Kamalamma to us and also to the police and Assistant Commissioner. Thereafter with the help of P.W.3 the dead body of Kamalamma was exhumed. The dead body was buried in survey No.121, th....
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....dy of Kamalamma. The said body was fully decomposed and one blouse and one petticoat were found on the dead body. For having exhumed the body a mahazar was drawn as per Ex.P-3. Ex.P-3(c) is my signature. There the photographs were also taken about the proceedings. The said photographs have been already marked as Ex.P-4. The proceedings was also videographed. Now the said C.D. is marked as M.O.13. 3. Thereafter the inquest mahazar was also drawn over the body of the deceased. Now I see the said mahazar. The same is now marked as Ex.P-14. Ex.P-14(a) is my signature. At the time of drawing Ex.P-14 C.W.2 and 3 were also present. 4. Thereafter A1 led us to the house of deceased Kamalamma and took us to the backside door and at a distance of 3 to 4 feet he showed the place where he has murdered the deceased Kamalamma by assaulting. Thereafter A1 took us to a cattleshed at a distance of 5 to 6 feet and from there he produced a club. Now I see the said club. The club is marked as M.O.14. Thereafter accused told that he has kept the umbrella of deceased in Theerthahalli Kuppalli bus stand above the bus shelter. Thereafter A1 led us in a police jeep to Kuppalli and....
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.... the panch-witnesses) to the recovery of mobile, in his examination-in-chief has deposed as under: "2. On 14.12.2010 myself. C.W. 23 and 24 were called to the Police Station at about 1.30 p.m. P.W.7 was also present. C.W.24 produced the mobile which had been sold by A1 to him. The said mobile has been seized by drawing a mahazar as per Ex.P-12. Ex.P-12(b) is my signature. M.O.4 is the same mobile which was produced on that day. When the said proceedings took place photographs were also taken. Now I see the said photographs. They have been already marked as Ex.P- 13." 75. PW 19 T. Sanjeeva Naik is the Investigating Officer. In his examination-in-chief, he has deposed as under: "2. On 10.12.2010 at about 1.30 p.m. I received the case file and took the further investigation of this case from P.W.17 and perused the investigation done by him. Immediately I deployed P.S.I. and other staff to trace about the accused. C.W. 36, 37 brought A1 and produced before me at about 9 p.m. with a report. Now I see the said report. The same is now marked as Ex.P-26. Ex.P-26(a) is my signature, C.w.34 and 35 also informed that they have apprehended A2 and secured and produced befor....
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....eized articles to P.F.No.73/2010. I also produced A1 and A3 before the court and took them to police custody. I produced A2 before the court with remand application. 4. On 13.12.2010 I secured P.W.2, C.W.13 and C.W.15. Thereafter A1 led us to Rippanpet to the Someshwara Jewellery works shop i.e., the shop of P.W.9. A1 asked P.W.9 to produce M.Os. 1 to 3. As per the request of the accused he produced M.Os. 1 to 3 which has been pledged with him. He produced M.Os. 1 to 3 and I seized them by drawing a mahazar as per Ex.P-1. Ex.P-1 (c) is my signature. I also took the photographs as per Ex.P-2. I have also videographed the said proceedings. I came back to the Police Station with seized property and subjected the seized articles to P.F.No.74/2010. I also recorded the statement of P.W.9 and C.W.15. I also kept A1 in police custody. 5. On 14.12.2010 I secured P.W.4 and C.w.17 and thereafter A3 led us to his house at Kiranakere and there he produced the M.O. 5 and 6 and there I seized them by drawing a mahazar as per Ex.P-5. Ex.P-5(b) is my signature. I also took the photographs. Now I see the said two photographs. The same are now marked as Ex.P-29. There I secured P.W.....
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....g 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 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 (panch-witnesses) 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....
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....ported in AIR (1960) SC 1125, wherein, Paragraph 71 explains the position of law as regards the Section 27 of the Evidence Act: "71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied] 83. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotta....
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....y itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept. 86. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama, the High Court was not justified in placing reliance upon the circumstance of discovery of weapon. 87. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under: "18. ..... It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a pe....
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....act thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis supplied] 88. Mr. V.N. Raghupathy, the learned counsel for the State would submit that even while discarding the evidence in the form of various discovery panchnamas the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh and Another v. State of Karnataka, (2005) 7 SCC 714: "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 ou....
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....f Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 : AIR 2011 SC 1585] where this Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Rai v. UT, Chandigarh [(2011) 12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] . This Court explained the legal position as follows: (Sunil Rai case [(2011) 12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545], SCC p. 266, paras 31-32) "31. ... In any event, motive alone can hardly be a ground for conviction. 32. On the materials on record, there may be some suspicion against the accused, but as is often said, suspicion, howsoever strong, cannot take the place of proof." 31. Suffice it to say although, according to the appellants the question of the appellant Velu having the motive to harm the deceased Senthil for falling in love with his sister, Usha did not survive once the family had decided to offer Usha in matrimony to the deceased Senthil. Yet even assuming that the appellant Velu had not reconciled to the idea of Usha getting married to the deceased Senthil, al....