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TMI Blog2023 (4) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 after which, he had sold the equipments stolen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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 Counsel appearing for the Appellant along with Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvict 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 witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court. He would submit that when learned Sessions Judge had failed to look into the evidence available before it or ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 Emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption 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 lacerated. There was commuted fracture on frontal bone that comes under the said wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-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. 30,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, 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 sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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