TMI Blog2023 (4) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... ble portions. 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 - 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. It is no doubt true that 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 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 cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st-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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htra (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 police (2012) 10 SCC 383 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 Emperor AIR 1934 PC 227, 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) The righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inches (width) was found and the edges of the said wound was found to be 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 inches (length) X 1 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early 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 v. Kashiram (2006) 12 SCC 254 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 assistance of interpreter if taken by the police cannot be found fault with. The ultimate test of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jith 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 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 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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: 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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