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TMI Blog2024 (1) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case. Even if Section 8 of the Evidence Act is to apply, it would not have been possible to convict the co-accused. The trial court rightly held other co-accused not guilty. For the same reason, acquittal of co-accused Chella @ Mukundhan, who was earlier absconding, is also of no avail. As far as acquittal of the juvenile is concerned, reference can be made to the provisions of Sections 40 to 43 of the Evidence Act. There are no difficulty in upholding the conviction of the appellant Perumal Raja @ Perumal. The appeal is dismissed. - Sanjiv Khanna And S. V. N. Bhatti, JJ. For the Petitioner : Mr. Col R. Balasubramanian, Sr. Adv, Mr. D.kumanan, AOR, Mr. Raghav Gupta, Adv., Mr. Y. William Vinoth Kumar, Adv., Mr. Ram Sankar, Adv. For the Respondent : Mr. Aravindh S., AOR, Mr. Abbas, Adv., Ms. Kavya Geetha, Adv. JUDGMENT SANJIV KHANNA, J. Leave granted. 2. The impugned judgment [Dated 31.08.2016 passed in Criminal Appeal No.280/2016.] by the High Court of Judicature at Madras affirms the conviction of the appellant Perumal Raja @ Perumal for murder of Rajini @ Rajinikanth under Section 302 of the Indian Penal Code, 1860 [For short, IPC ] and Section 201 of the IPC, by the Principa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation in FIR No. 204 of 2008 for murder of Rajaram. (vi) On 25.04.2008, the appellant Perumal Raja @ Perumal made a disclosure statement (Exhibit P-37). [1] (vii) The appellant Perumal Raja @ Perumal, along with other co-accused, had committed murder of Rajini @ Rajinikanth on 23.11.2007 at Rajaram s house at Chinna Vaikkal Street, Puducherry. His dead body was thrown in the sump tank located in the same house. (viii) The appellant Perumal Raja @ Perumal had also removed various belongings from the same house, including iron box, home theatre, CD player, documents of the house, motorcycle, RC book, key, Rajini @ Rajinikanth s passport, Rajini @ Rajinikanth s passport size photograph, birth registration of the grandmother, ration card, etc. (ix) Later on, the appellant Perumal Raja @ Perumal, and other co-accused, decided to remove the dead body of Rajini @ Rajinikanth from the sump tank as they had learnt that Rajaram was returning to India as his son Rajini @ Rajinikanth was missing. (x) Accordingly, the appellant Perumal Raja @ Perumal had bought a knife and sack bags. They opened the sump tank and took out Rajini @ Rajinikanth s body, which was in a decomposed state. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded crematorial rites of his father Rajaram and was missing. 7. Narayanasamy (PW-12), then head constable, PS Odiansalai, has testified that he had received the oral complaint of Rajaram on 20.04.2008, in connection with the scattered articles in his house, and the missing motorcycle. Rajaram had assumed that his son Rajini @ Rajinikanth could have taken it away. 8. Kaniyakumaran (PW-10), involved in real estate business, did not specifically implicate the appellant Perumal Raja @ Perumal, but has accepted that Punitha (PW-3), a relative of the deceased Rajini @ Rajinikanth, had tried to sell the property in Kurumbapet. Reliance can be also placed on the documentary evidence to establish that the property in question in the name of Rajaram was dealt with by Porkilai (PW-4), mother of the appellant Perumal Raja @ Perumal. In support, the following documents are relied: (i) sale deed in favour of Rajaram executed on 26.06.1990 (Exhibit P-66); (ii) sale agreement between Porkilai (PW-4) and accused no.5 - Ravi @ Ravichandran executed on May, 2007 (Exhibit P-66); (iii) release deed in favour of Rajaram by Porkilai (PW-4), executed on 27.06.1990 (Exhibit P-68); (iv) sale agreement in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is in the same street..the place where I had left the motor cycle of my (nc) and the place where I had put the body of Rajini... 10. On the aspect of the recovery of two nylon sack bags with body parts, we have affirmative depositions of Chinta Kodanda Rao (PW30), Inspector of Police, PS Grand Bazaar, public witness Devadass (PW-21) and Satyamurthy (PW-11). The recovery was photographed by Selvaganapathy (PW-26), police photographer vide photographs marked Exhibit P-19. The recovery was duly recorded in the rough sketch plan (Exhibit P-30) and the mahazar (Exhibit P-31). 11. On 29.04.2008, accused no. 4 - Mohan Kumar @ Mohan was arrested. On the same day, stolen items including, the motorcycle and ignition key of motorcycle, original registration book, insurance certificate of the motorcycle, iron box, home theatre and speaker box belonging to the deceased were recovered, as recorded vide seizure mahazar (Exhibits P-44, P-45, P-46 and P-47). 12. On 30.04.2008, eight articles were recovered from the water sump tank at the house of the deceased, namely, gloves, lower jaw, rib, cervical vertebrae, tarsal and metatarsal, small and big size bone pieces, and knee cap. T. Bairavasamy ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government General Hospital, Puducherry no definite cause of death could be ascertained due to decomposition of the body. However, it is pertinent to note that Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry has also deposed that the deceased could be between 25-30 years of age and probable death could have occurred six months prior to the autopsy. It must be further noted that the deceased Rajini @ Rajinikanth was about 30 years of age and he had been missing for about six months prior to the date on which the autopsy was conducted. 15. It has been submitted with considerable emphasis that Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry has accepted that the lower jaw (mandible) was not found. Whereas, deposition of C. Pushparani (PW-29), Scientific Assistant Grade II, Anthropology Division, Forensic Sciences Department, Chennai and the photo superimposition done by her specifically refer to the lower jaw. We have examined this contention. Dr. S. Diwakar (PW24), Senior Medical Officer, Department of Forensic Medicine, Government General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion the lower jaw in the post mortem 26.04.2008 (Exhibit P-16), he had mentioned that the lower jaw was preserved in the bone-case certificate (Exhibit P-17) dated 19.05.2008 [2] . Further, the aforesaid deposition of Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry has to be read with the testimony of T. Bairavasamy (PW-32), Circle Inspector, PS Odiansalai, who had deposed that he had taken the letter written by Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry and had obtained the signatures of Judicial Magistrate-II, Puducherry for conducting DNA test. Thereafter, the material objects were sent through Form 95 No. 02876 (Exhibit P-60) to the Judicial Magistrate-II, Puducherry. The skull and the mandible were sent for photo superimposition test after addressing a letter to Judicial Magistrate-II, Puducherry which was signed by Dr. S. Diwakar (PW24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry (Exhibit P-61). 19. The prosecution s case, in the absence of eye witnesses, is based upon cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reness of the person accused of the offence as to the existence of the physical object at the particular place. Accordingly, discovery of a fact includes the object found, the place from which it was produced and the knowledge of the accused as to its existence. To this extent, therefore, factum of discovery combines both the physical object as well as the mental consciousness of the informant accused in relation thereto. In Mohmed Inayatullah v. State of Maharashtra [(1976) 1 SCC 828], elucidating on Section 27 of the Evidence Act, it has been held that the first condition imposed and necessary for bringing the section into operation is the discovery of a fact which should be a relevant fact in consequence of information received from a person accused of an offence. The second is that the discovery of such a fact must be deposed to. A fact already known to the police will fall foul and not meet this condition. The third is that at the time of receipt of the information, the accused must be in police custody. Lastly, it is only so much of information which relates distinctly to the fact thereby discovered resulting in recovery of a physical object which is admissible. Rest of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, we need not dilate on the legal proposition as we are bound by the law and ratio as laid down by the decision of a Constitution Bench of this Court in State of U.P. v. Deoman Upadhyaya [(1961) 1 SCR 14]. The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength [See Judgments of the Constitution Bench of this Court in Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr., (2005) 2 SCC 673 and Union of India and Anr. v. Raghubir Singh (Dead) By Lrs., (1989) 2 SCC 754. Raghubir Singh (supra) and Central Board of Dawoodi Bohra Community (supra) have been subsequently followed and applied by this Court in Trimurthi Fragrances (P) Ltd. v. Government of N.C.T. of Delhi, 2022 SCC OnLine SC 1247.] . This Court in Deoman Upadhyay (supra) observed that the bar under Section 25 of the Evidence Act applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was in custody at the time of making the confession. Further, for the ban to be effective the person need not have been accused of an offence when he made the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude surveillance, restriction or restraint by the police. 29. This Court in Deoman Upadhyay (supra), while rejecting the argument that the distinction between persons in custody and persons not in custody violates Article 14 of the Constitution of India, observed that the distinction is a mere theoretical possibility. Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. A person giving word of mouth information to police, which may be used as evidence against him, may be deemed to have submitted himself to the custody of the police officer. Reference can also be made to decision of this Court in Vikram Singh and Ors. v. State of Punjab [(2010) 3 SCC 56], which discusses and applies Deoman Upadhyay (supra), to hold that formal arrest is not a necessity for operation of Section 27 of the Evidence Act. This Court in Dharam Deo Yadav v. State of Uttar Pradesh [(2014) 5 SCC 509], has held that the expression custody in Section 27 of the Evidence Act does not mean formal custody, but includes any kind of surveillance, restriction or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, the presumption is that the concealment was by the accused himself. 33. The aforesaid view has been followed subsequently and reiterated in Harivadan Babubhai Patel v. State of Gujarat [(2013) 7 SCC 45], Vasanta Sampat Dupare v. State of Maharashtra [(2015) 1 SCC 253], State of Maharashtra v. Damu S/o Gopinath Shinde and Ors. [(2000) 6 SCC 269], and Rumi Bora Dutta v. State of Assam [(2013) 7 SCC 417]. 34. Our reasoning, which places reliance on Section 106 of the Evidence Act, does not in any way dilute the burden of proof which is on the prosecution. Section 106 comes into play when the prosecution is able to establish the facts by way of circumstantial evidence. On this aspect we shall delve upon subsequently. 35. Apart from Section 27 of the Evidence Act, Section 8 of the said Act would be also attracted insofar as the prosecution witnesses, namely, the investigating officers, Chinta Kodanda Rao (PW-30), Inspector of Police, PS Grand Bazaar and T. Bairavasamy (PW32), Circle Inspector, PS Odiansalai, have referred to the conduct of the appellant Perumal Raja @ Perumal with regard to any fact in issue or a relevant fact when the appellant Perumal Raja @ Perumal was confronted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mandible for comparison with the photograph of the deceased Rajini @ Rajinikanth. It is shown that the skull and the mandible were of the deceased Rajini @ Rajinikanth. (viii) As per the post mortem report (Exhibit P-16), though the cause of death could not be ascertained due to decomposition of the body, the bones were that of a person between 25-30 years of age. Further, the death had probably occurred six months prior to the autopsy. The deceased Rajini @ Rajinikanth was of 30 years in age and he had been missing for about six months. (ix) Motorcycle bearing registration No. PY 01 X 9857 belonging to Rajaram (which was then at Rajaram s house and in possession of Rajini @ Rajinikanth, as Rajaram was in France), keys, insurance papers, as well as other personal belongings were recovered from Mohan Kumar @ Mohan and a juvenile, whose name is withheld. 37. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], this Court referred to Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71], and laid down the five golden principles ( panchsheel ) that should be satisfied before a case based on circumstantial evidence against an accused can be said to be fully establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence. 40. The appellant Perumal Raja @ Perumal in his statement under Section 313 of the Code of Criminal Procedure, 1973 plainly denied all accusations without furnishing any explanation regarding his knowledge of the places from which the dead body was recovered. In this circumstance, the failure of the appellant Perumal Raja @ Perumal to present evidence on his behalf or to offer any cogent explanation regarding the recovery of the dead body by virtue of his special knowledge must lead to a reasonable adverse inference, by application of the principle under Section 106 of the Evidence Act, thus forming an additional link in the chain of circumstances. The additional link further affirms the conclusion of guilt as indicated by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the evidence placed on record in the present case. The judgment of acquittal would not qualify as relevant and of evidentiary value so as to acquit the appellant Perumal Raja @ Perumal in the present case. [See 40-43 of the Indian Evidence Act, 1872] 43. Acquittal of the co-accused, as noticed in paragraph 4 above, again is for want of evidence against them. At best, they were found in possession of the articles connected with the crime on the basis of the disclosure statement (Exhibit P-37) dated 25.04.2008 made by the appellant Perumal Raja @ Perumal. Section 27 of the Evidence Act could not have been applied to the other co-accused for the simple reason that the provision pertains to information that distinctly relates to the discovery of a 'fact' that was previously unknown, as opposed to fact already disclosed or known. Once information is given by an accused, the same information cannot be used, even if voluntarily made by a co-accused who is in custody. Section 27 of the Evidence Act does apply to joint disclosures, but this is not one such case [See State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, 145] . This was precisely the reason given by the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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