BOBY versus STATE OF KERALA on 12 January 2023

BOBY

v.

STATE OF KERALA

(Criminal Appeal No. 1439 of 2009)

JANUARY 12, 2023

[B. R. GAVAI AND M. M. SUNDRESH, JJ.]

Evidence Act, 1872 – s.27 – Discovery of Fact – Criminaltrial – Three accused – Disclosure statement allegedly made byaccused no.3-appellant – Recovery of dead body of complainant’shusband – Appreciation of evidence – Held: s.27 requires that thefact discovered embraces the place from which the object is producedand the knowledge of the accused as to this, and the informationgiven must relate distinctly to the said fact – The information as topast user, or the past history, of the object produced is not relatedto its discovery – If a fact is actually discovered in consequence ofinformation given, some guarantee is afforded thereby that theinformation was true and consequently the said information cansafely be allowed to be given in evidence – The law expects theinvestigating Officer to draw the discovery panchnama u/s.27 – Inthe present case, the recovery panchnama is not in accordance withthe said requirement, and also there is no statement of accused no.3-appellant recorded u/s.27 – Consequently, prosecution failed to provethe circumstance that dead body of the deceased was recovered atthe instance of accused No. 3-appellant – IPC – ss. 395, 364, 365,380, 201, 302 and 302 r/w s.34.

Evidence Act, 1872 – s.27 – Application of – Held: Provisionsof s.27 are based on the view that if a fact is actually discovered inconsequence of information given, some guarantee is affordedthereby that the information was true and consequently the saidinformation can safely be allowed to be given in evidence.

Evidence – Last seen theory – Discussed – Held: Last seentheory comes into play where the time gap between the point of timewhen the accused and the deceased were last seen alive and whenthe deceased is found dead is so small that possibility of any personother than the accused being the author of the crime becomes

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Aimpossible – If the gap between the time of last seen and the deceasedfound dead is long, then the possibility of other person coming inbetween cannot be ruled out.

Criminal Trial – Murder case – Case resting entirely oncircumstantial evidence – Appreciation of circumstantial evidenceB– On facts, the only circumstance against the accused was that hewas last seen in the company of deceased on the basis of the evidenceof PW-1 – However, solely on the basis of last seen theory, convictioncannot be upheld – Prosecution failed to prove the chain ofincriminating circumstances which leads to no other conclusion thanCthe guilt of the accused – Judgment passed by trial Court, therebyconvicting appellant and impugned judgment passed by High Courtaffirming the same, accordingly, set aside – Appellant acquitted –IPC – ss. 395, 364, 365, 380, 201, 302 and 302 r/w s.34.

Evidence – Circumstantial evidence – Appreciation of –DGolden principles with regard to conviction in a case which restsentirely on circumstantial evidence – Discussed – Criminal Trial.Allowing the appeal, the Court HELD: 1. It is necessary for the prosecution that thecircumstances from which the conclusion of the guilt is to be drawnEshould be fully established. It is a primary principle that theaccused ‘must be’ and not merely ‘may be’ guilty before a courtcan convict the accused. There is not only a grammatical but alegal distinction between ‘may be proved’ and “must be or shouldbe proved”. The facts so established should be consistent onlyFwith the guilt of the accused, that is to say, they should not beexplainable on any other hypothesis except that the accused isguilty. The circumstances should be such that they exclude everypossible hypothesis except the one to be proved. There must bea chain of evidence so complete as not to leave any reasonableground for the conclusion consistent with the innocence of theGaccused and must show that in all human probabilities the actmust have been done by the accused. [Para 10]

2. Section 27 of the Evidence Act requires that the factdiscovered embraces the place from which the object is producedand the knowledge of the accused as to this, and the informationH

given must relate distinctly to the said fact. The information as topast user, or the past history, of the object produced is not relatedto its discovery. The law expects the IO to draw the discoverypanchnama as contemplated under Section 27 of the EvidenceAct. In the present case, leave aside the recovery panchnamabeing in accordance with the aforesaid requirement, there is nostatement of accused No. 3/appellant recorded under Section 27of the Evidence Act. Therefore, the prosecution has failed toprove the circumstance that the dead body of the deceased wasrecovered at the instance of accused No. 3/appellant.[Paras 21, 26]

3. Insofar as accused No.1 is concerned, the additionalcircumstance sought to be relied on by the trial court and theHigh Court is the alleged recovery of the spade. It is to be notedthat the spade was also recovered from the same place from wherethe dead body of the deceased was alleged to have been recoveredat the instance of accused No. 3/appellant. The trial court againheld that the place from where the spade was recovered wasalready known from the disclosure statement of accused No. 3/appellant; however, it still held the recovery of the said spade tobe admissible in evidence. It is thus clear that the said recoverywas from a place which was already known and not exclusivelywithin the knowledge of accused No. 1. Hence, the trial courthas again committed perversity in arriving at such a finding.[Para 28]

4. It is clear that the only circumstance that now remains isthe circumstance of the accused last seen in the company of thedeceased on the basis of the evidence of PW1. However, solelyon the basis of last seen theory, the conviction could not havebeen recorded. The prosecution has utterly failed to prove thatthe recovery of the dead body of the deceased was at the instanceof accused No. 3/appellant. The recovery of the articles from thehouse of accused No. 3/appellant, even according to the trial court,is farce and fabricated. The recovery of the spade at the instanceof accused No. 1 is from a place which, even according to the trialcourt, was also known on account of the disclosure statementmade by accused No. 3/appellant. Therefore, the prosecution has AB

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Autterly failed to prove the chain of incriminating circumstanceswhich leads to no other conclusion than the guilt of the accused.[Para 29, 30]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; State of U.P. v.BSatish (2005) 3 SCC 114 : [2005] 1 SCR 1132;Chandran v. The State of Tamil Nadu (1978) 4 SCC 90: [1979] 1 SCR 176; State of Karnataka v. DavidRozario and Another (2002) 7 SCC 728:[2002] 2Suppl. SCR 419 and Subramanya v. State of Karnataka2022 SCC OnLine SC 1400 – relied on.CSuresh Chandra Bahri v. State of Bihar 1995 Supp. (1)SCC 80 : [1994] 1 Suppl. SCR 483 – referred to.

Pulukuri Kotayya and Others v. King-Emperor 1946SCC OnLine PC 47 – referred to.D

Case Law Reference

FCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1439 of 2009.

From the Judgment and Order dated 25.08.2008 of the High Courtof Kerala at Ernakulam in CRLA No.326 of 2005.

GR. Basant, Sr. Adv., Abdulla Naseeh V. T., Meena K. Poulose,Akshay, Ashok Basoya, Ms. Shruti Jose, P. S. Sudheer, Advs. for theAppellant.

K. N. Balgopal, Sr. Adv., Harshad V. Hameed, Dileep Poolakkot,Ms. Ashly Harshad, Advs. for the Respondent.

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The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. This appeal challenges the judgement and order dated 25[th]August 2008, passed by the learned Division Bench of the High Court ofKerala at Ernakulam (hereinafter referred to as “the High Court”) inCriminal Appeal Nos. 326, 230 and 847 of 2005 thereby dismissing theappeals filed by Shibu @ Shibu Singh (accused No. 1) and Boby (accusedNo. 3/appellant herein), thereby upholding the judgment of convictionand sentence dated 18[th] December 2004, passed by the AdditionalSessions Judge, Fast Track Court–II (Ad-hoc Court), Thrissur (hereinafterreferred to as “the trial court”) in Sessions Case No. 208 of 2003 inrespect of the said accused persons. Vide the same impugned judgment,the High Court, however, allowed the appeal filed by Biju @ Babi(accused No. 2) and acquitted him from all the offences charged with.

2. Shorn of details, the facts leading to the present appeal are asunder:

2.1 On 21[st] November, 2000, Leela w/o Vishwanathan(Complainant/PW-1) made a statement before the Police Station,Anthikkadu, Dist. Thrissur, wherein she alleged that Shibu @ Shibu Singh(accused No. 1), the younger brother of her husband, Vishwanathan(deceased), was a convict who was then undergoing imprisonment ashe was involved in many theft cases wherein stolen articles from thesaid thefts were disposed of by her husband.

2.2 It is the case of the complainant that Shibu @ Shibu Singh(accused No. 1) had escaped from the prison and was absconding. Dueto the fear that Vishwanathan (deceased) would disclose to the policeabout his escape from jail, Shibu @ Shibu Singh (accused No. 1) alongwith other accused persons, namely, accused No. 2 to accused No. 7came in a jeep to the house of Vishwanathan (deceased) on 20.11.2000at 08.00 p.m. The accused persons then held Vishwanathan (deceased)at knife point, forcefully poured liquor into his mouth and compelled himto drink till he was left unconscious. When Leela (Complainant/PW-1)tried to interfere, she sustained injuries on her palm due to the knifecarried by the accused persons with which they attempted to inflict blowson her. Thereafter, Leela (Complainant/PW-1) along with her husbandwere blindfolded and taken in a jeep. After covering a distance of about A

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A30 kms., the Complainant/PW-1 was dropped at Poomala, which washer native place. When she managed to reach her house with the helpof a local named Baiju from the said village, she informed her brotherBabu (P.W.6) about the aforesaid incident, who attempted to search forVishwanathan (deceased) during the said night. Next day, i.e., on 21[st]November 2000, Leela (Complainant/PW-1) along with Babu (PW-6)Blodged her statement (Ext. P-1) at the Police Station Anthikkadu, Dist.Thrissur. Based on the contents of the aforesaid complaint, a FirstInformation Report (Ext. P-19) (for short, “FIR”) came to be registeredagainst the aforementioned accused persons along with other unknownpersons for offences punishable under Section 395 and 365 of the IndianCPenal Code, 1860 (hereinafter referred to as “IPC”).

2.3 Boby (accused No. 3/appellant herein) was arrested by thePolice on 25[th] November 2000. Based on his disclosure statement (Ext.P-23), the dead body of Vishwanathan, which was buried at Pattitharaon the banks of river Bharathapuzha, was recovered. Additionally, stolenDgoods were also recovered from the house of accused No. 3 and weremarked as Ext. P-14. Shibu @ Shibu Singh (accused No. 1) and Biju @Babu (accused No. 2) were arrested on 28[th] November 2000 from alodge at Guruvayoor by the Guruvayoor Police. Subsequently, they werehanded over to the Anthikkadu Police on 2[nd] December 2000. Based onEthe disclosure statement of Shibu @ Shibu Singh (accused No. 1), thespade with which the deceased’s burial spot was dug was recoverednear the site where the body was exhumed from, concealed in a plasticbag.

2.4 At the conclusion of investigation, a charge-sheet came to beFfiled before the Judicial Magistrate First Class, Court–II, Thrissur, whocommitted the case to the Sessions Court, Thrissur for trial.

2.5 Charges came to be framed by the trial court for the offencespunishable under Sections 395, 364, 365, 380 and 302 read with Section34 of the IPC.G

2.6 All the accused persons pleaded not guilty and claimed to betried. The prosecution examined 33 witnesses to bring home the guilt ofthe accused persons. The prosecution also placed on record 14 MaterialObjects which were marked as M.O. 1 to M.O. 14. During the cross-examination from the defence side, Sekharan (DW-1), father of theHdeceased was examined. The accused persons were questioned under Section 313 of the Criminal Procedure Code, 1973 (for short, “theCr.P.C.”) wherein they denied the circumstances that appeared againstthem in evidence which were put to them. At the conclusion of trial, thelearned trial court found Shibu @ Shibu Singh (accused No. 1), Biju @Babu (accused No. 2) and Boby (accused No. 3/appellant herein) guiltyof the offences charged with and accordingly sentenced them to undergolife imprisonment for the offence punishable under Section 302 readwith Section 34 IPC. It further directed them to undergo rigorousimprisonment for different periods for the offences punishable underSections 364, 395, and 201 read with Section 34 of the IPC. The sentenceswere directed to run concurrently.

2.7 Being aggrieved thereby, accused Nos. 1 to 3 preferred theirrespective appeals before the High Court. The High Court, by theimpugned judgement, dismissed the appeals preferred by Shibu @ ShibuSingh (accused No. 1) and Boby (accused No. 3/appellant herein), butwas pleased to allow the appeal preferred by Biju @ Babu (accusedNo. 2), thereby setting aside the judgment of conviction and sentence ofthe trial court insofar as Biju @ Babu (accused No. 2) was concerned.

3. Being aggrieved thereby, the present appeal.

4. We have heard Shri R. Basant, learned Senior Counselappearing on behalf of the appellant–Boby and Shri K.N. Balgopal,learned Senior Counsel appearing on behalf of the respondent–State ofKerala.

5. Shri Basant, learned Senior Counsel would submit that both thetrial court and the High Court have erred in convicting and sentencingthe appellant–Boby for the offences punishable under Sections 395, 365,364, 201, 380, 302 and 302 read with Section 34 of the IPC. He submittedthat the prosecution has failed to prove its case against the appellant–Boby beyond reasonable doubt and that there are glaring lacunae in thecase of the prosecution. It is submitted that even the High Court foundthat there were discrepancies in the statements of the prosecutionwitnesses who were examined during the trial. It is further submittedthat the High Court also observed the glaring discrepancies in thestatement of the Complainant/PW-1 with regard to Biju @ Babu (accusedNo. 2) on the basis of which, the High Court acquitted the said accusedBiju @ Babu (accused No. 2) of all the charges levelled against him.

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A6. Shri Basant submitted that a Memorandum under Section 27 ofthe Indian Evidence Act, 1872 (hereinafter referred to as “the EvidenceAct”) is required in cases of recovery initiated at the instance of anaccused person, based on the statements made before the Police. It issubmitted that, on perusal of evidence on record in the instant matter,neither such Memorandum under Section 27 of the Evidence Act wasBprepared at the time of the recovery of the body of deceasedVishwanathan, nor were signatures of independent or panch witnessestaken at the time of said recovery. It is further submitted that it was theduty of the Investigating Officer (for short, ‘IO’) to have prepared thesaid Memorandum while acting on the information obtained from BobyC(appellant herein) and that such inaction on part of the IO would vitiatethe prosecution case, at least insofar as proving the recovery of thedead body of the deceased is concerned.

7. Shri Basant submitted that the trial court solely relied on thelast seen theory and held that the prosecution had proved the same withDregard to the chain of circumstances in this case. It is further submittedthat conviction of an accused person cannot be sustained only on thebasis of proving the last seen theory as the same was required to becorroborated with the statements of the witnesses that are examinedduring trial along with other evidence placed on record. While pointingEout the discrepancies in the statements of prosecution witnesses, whichwere relied upon by the courts below, it was submitted that the convictionof the appellant herein could not be sustained on the said ground alone.

8. Shri Balgopal, on the contrary, submits that the courts belowhave concurrently found the accused persons guilty of the offencesFcharged with. The prosecution has proved the incriminating circumstancesbeyond reasonable doubt. It has also proved the chain of circumstanceswhich leads to no other conclusion than the guilt of the accused. Herelies on the judgment of this Court in the case of Suresh ChandraBahri v. State of Bihar[1].G9. Undisputedly, the present case rests entirely on circumstantialevidence. A three-Judges Bench of this Court in the case of SharadBirdhichand Sarda v. State of Maharashtra[2], has laid down the goldenprinciples with regard to conviction in a case which rests entirely on 1 1995 Supp. (1) SCC 80H2 (1984) 4 SCC 116

circumstantial evidence. We may gainfully refer to the followingobservations of this Court in the said case:

“153. A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case against anaccused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973Crl LJ 1783] where the observations were made: [SCC para 19,p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty,

(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”

10. It can thus clearly be seen that it is necessary for theprosecution that the circumstances from which the conclusion of the A

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Aguilt is to be drawn should be fully established. The Court holds that it isa primary principle that the accused ‘must be’ and not merely ‘may be’guilty before a court can convict the accused. It has been held that thereis not only a grammatical but a legal distinction between ‘may be proved’and “must be or should be proved”. It has been held that the facts soBestablished should be consistent only with the guilt of the accused, that isto say, they should not be explainable on any other hypothesis exceptthat the accused is guilty. It has further been held that the circumstancesshould be such that they exclude every possible hypothesis except theone to be proved. It has been held that there must be a chain of evidenceso complete as not to leave any reasonable ground for the conclusionCconsistent with the innocence of the accused and must show that in allhuman probabilities the act must have been done by the accused.

11. In the light of these guiding principles, we have to examine thepresent case.D12. The trial court has relied on the following circumstances:

(i) Last seen together with the deceased;

(ii) Recovery of the stolen material including jewellery fromaccused No.3-Boby; E

(iii) Recovery of spade from accused No. 1-Shibu @ ShibuSingh;

(iv) Recovery of the dead body at the instance of accused No.3-Boby; F13. The trial court had convicted accused Nos. 1 to 3 upon findingthat the prosecution had proved the aforesaid circumstances againstthem. In appeal, the High Court found that the prosecution had failed toprove the case against Biju @ Babi (accused No. 2) and accordinglyacquitted him.G

14. The learned Division Bench of the High Court, though foundthat the prosecution had failed to prove the case beyond reasonabledoubt insofar as accused No.2 was concerned, held that, insofar asaccused Nos. 1 and 3 were concerned, the prosecution had proved thecase beyond reasonable doubt.

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15. It could thus be seen that the trial court as well as the HighCourt found the circumstance of the accused persons having been lastseen in the company of the deceased on the basis of the evidence ofPW-1, as the main incriminating circumstance. The High Court furtherfound that, insofar as Boby (accused No.3/appellant herein) wasconcerned, there was an additional evidence with regard to the recoveryof the dead body and ornaments. Insofar as Shibu @ Shibu Singh(accused No. 1) was concerned, the High Court found that the recoveryof spade which was used to dig the burial site where the dead body wasconcealed, was an additional circumstance which proved the guilt ofShibu @ Shibu Singh (accused No. 1).

16. Insofar as last seen theory is concerned, it will be relevant torefer to the following observations of this Court in the case of State ofU.P. v. Satish[3]:

“22. The last-seen theory comes into play where the time-gapbetween the point of time when the accused and the deceasedwere last seen alive and when the deceased is found dead is sosmall that possibility of any person other than the accused beingthe author of the crime becomes impossible. It would be difficultin some cases to positively establish that the deceased was lastseen with the accused when there is a long gap and possibility ofother persons coming in between exists. In the absence of anyother positive evidence to conclude that the accused and thedeceased were last seen together, it would be hazardous to cometo a conclusion of guilt in those cases. In this case there is positiveevidence that the deceased and the accused were seen togetherby witnesses PWs 3 and 5, in addition to the evidence of PW 2.”

17. It could thus clearly be seen that the last-seen theory comesinto play where the time-gap between the point of time when the accusedand the deceased were last seen alive and when the deceased is founddead is so small that possibility of any person other than the accusedbeing the author of the crime becomes impossible. If the gap betweenthe time of last seen and the deceased found dead is long, then thepossibility of other person coming in between cannot be ruled out.

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A18. In the present case, according to the complainant/PW-1, thedeceased was taken away by the accused persons on the night of 20[th]November 2000 at 08.00 p.m. Though, it is the contention of the appellantthat he was taken into illegal custody on 21[st] November, 2000 and hisarrest was shown on 25[th] November, 2000, we do not find it necessaryto go into that aspect of the matter. A perusal of the evidence of the IOBwould reveal that, on 25[th] November, 2000, on the basis of secretinformation that Boby (accused No.3/appellant herein) was standing atManaloor Kadavu, he proceeded to that place and arrested him at 02.00p.m. He stated that, on the basis of his confession, various articles wereseized from his house. He further stated that thereafter on the sameCday, the accused led them towards the place in Bharathapuzha wherethe deceased was buried. He stated that, after seeing the loose soil, thescene was guarded as it was an odd time. He further stated that, on 26[th]November 2000, as led by accused No. 3, they reached the place andthe Tahasildar, Ottapalam prepared the inquest report.D19. It can thus clearly be seen that firstly, there is a gap of at leastfive days from the date on which, according to PW-1, the deceased wastaken away by the accused persons and the dead body was recovered.However, the crucial question would be as to whether it can be held thatthe prosecution had established beyond reasonable doubt that the recoveryEof dead body was at the instance of Boby (accused No. 3/appellantherein). Only in the event the prosecution establishes that the recoveryof the body was at the instance of Boby (accused No. 3/appellant herein),the relevancy of the gap of five days would come.

20. As early as 1946, the Privy Council had considered theFprovisions of Section 27 of the Evidence Act in the case of PulukuriKotayya and Others v. King-Emperor[4]. It will be relevant to refer tothe following observations of the Privy Council in the said case:

“The second question, which involves the construction of s. 27 ofthe Indian Evidence Act, will now be considered. That sectionGand the two preceding sections, with which it must be read, are inthese terms. [His Lordship read ss. 25, 26 and 27 of the EvidenceAct and continued : ] Section 27, which is not artistically worded,provides an exception to the prohibition imposed by the precedingsection, and enables certain statements made by a person in police

custody to be proved. The condition necessary to bring the sectioninto operation is that the discovery of a fact in consequence ofinformation received from a person accused of any offence in thecustody of a police officer must be deposed to, and there upon somuch of the information as relates distinctly to the fact therebydiscovered may be proved. The section seems to be based on theview that if a fact is actually discovered in consequence ofinformation given, some guarantee is afforded thereby that theinformation was true, and accordingly can be safely allowed to begiven in evidence; but clearly the extent of the informationadmissible must depend on the exact nature of the fact discoveredto which such information is required to relate. Normally the sectionis brought into operation when a person in police custody producesfrom some place of concealment some object, such as a deadbody, a weapon or ornaments, said to be connected with the crimeof which the informant is accused. Mr. Megaw for the Crown,has argued that in such a case the “fact discovered” is the physicalobject produced, and that any information which relates distinctlyto that object can be proved. On this view information given by aperson that the body produced is that of a person murdered byhim, that the weapon produced is the one used by him in thecommission of a murder, or that the ornaments produced werestolen in a dacoity, would all be admissible. If this be the effect ofs. 27, little substance would remain in the ban imposed by the twopreceding sections on confessions made to the police, or by personsin police custody. That ban was presumably inspired by the fearof the legislaturethat a person under police influence might beinduced to confess by the exercise of undue pressure. But if allthat is required to lift the ban be the inclusion in the confession ofinformation relating to an object subsequently produced, it seemsreasonable to suppose that the persuasive powers of the policewill prove equal to the occasion, and that in practice the ban willlose its effect. On normal principles of construction theirLordships think that the proviso to s. 26, added by s. 27, shouldnot be held to nullify the substance of the section. In theirLordships’ view it is fallacious to treat the “fact discovered”within the section as equivalent to the object produced; thefact discovered embraces the place from which the object is ABC

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Aproduced and the knowledge of the accused as to this, andthe information given must relate distinctly to thisfact.Information as to past user, or the past history, of theobject produced is not related to its discovery in the setting inwhich it is discovered. Information supplied by a person in custodythat “I will produce a knife concealed in the roof of my house”Bdoes not lead to the discovery of a knife; knives were discoveredmany years ago. It leads to the discovery of the fact that a knifeis concealed in the house of the informant to his knowledge, and ifthe knife is proved to have been used in the commission of theoffence, the fact discovered is very relevant. But if to the statementCthe words be added “with which I stabbed A.”, these words areinadmissible since they do not relate to the discovery of the knifein the house of the informant.”

D21. It could thus be seen that Section 27 of the Evidence Actrequires that the fact discovered embraces the place from which theobject is produced and the knowledge of the accused as to this, and theinformation given must relate distinctly to the said fact. The informationas to past user, or the past history, of the object produced is not related toits discovery. The said view has been consistently followed by this CourtEin a catena of cases.

22. This Court, in the case of Chandran v. The State of TamilNadu[5], had an occasion to consider the evidence of recovery ofincriminating articles in the absence of record of the statement of accusedNo. 1. In the said case also, no statement of accused No. 1 was recordedFunder Section 27 of the Evidence Act leading to the recovery of jewels.The Court found that the Sessions Judge as well as the High Court haderred in holding that the jewels were recovered at the instance of accusedNo. 1 therein in pursuance to the confessional statement (Ex. P-27)recorded before PW-34 therein. It will be relevant to refer to the followingGobservations of this Court in the said case:

“36. ……Thus the fact remains that no confessional statementof A-1 causing the recovery of these jewels was proved underSection 27, Evidence Act…..”

H5 (1978) 4 SCC 90

23. It is thus clear that this Court refused to rely on the recoveryof jewels since no confessional statement of the accused was provedunder Section 27 of the Evidence Act.

24. It will also be relevant to refer to the following observations ofthis Court in the case of State of Karnataka v. David Rozario andAnother[6]:

“5. ……This information which is otherwise admissible becomesinadmissible under Section 27 if the information did not come froma person in the custody of a police officer or did come from aperson not in the custody of a police officer. The statement whichis admissible under Section 27 is the one which is the informationleading to discovery. Thus, what is admissible being theinformation, the same has to be proved and not the opinion formedon it by the police officer. In other words, the exact informationgiven by the accused while in custody which led to recovery ofthe articles has to be proved. It is, therefore, necessary for thebenefit of both the accused and the prosecution thatinformation given should be recorded and proved and if notso recorded, the exact information must be adduced throughevidence. The basic idea embedded in Section 27 of the EvidenceAct is the doctrine of confirmation by subsequent events. Thedoctrine is founded on the principle that if any fact isdiscovered as a search made on the strength of anyinformation obtained from a prisoner, such a discovery is aguarantee that the information supplied by the prisoner istrue. The information might be confessional or non-inculpatoryin nature but if it results in discovery of a fact, it becomes areliable information. It is now well settled that recovery of anobject is not discovery of a fact envisaged in the section. Decisionof the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most-quoted authority forsupporting the interpretation that the “fact discovered” envisagedin the section embraces the place from which the object wasproduced, the knowledge of the accused as to it, but the informationgiven must relate distinctly to that effect. (See State of A

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AMaharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088: 2000 Cri LJ 2301] .…..”

25. A three-Judges Bench of this Court recently in the case ofBSubramanya v. State of Karnataka[7], has observed thus:

“82. Keeping in mind the aforesaid evidence, we proceed toconsider whether the prosecution has been able to prove andestablish the discoveries in accordance with law. Section 27 ofthe Evidence Act reads thus:

C“27. How much of information received from accused maybe proved.—

Provided that, when any fact is deposed to as discoveredin consequence of information received from a personaccused of any offence, in the custody of a police officer,Dso much of such information, whether it amounts to aconfession or not, as relates distinctly to the fact therebydiscovered, may be proved.”

83. The first and the basic infirmity in the evidence of all theaforesaid prosecution witnesses is that none of them have deposedEthe exact statement said to have been made by the appellant hereinwhich ultimately led to the discovery of a fact relevant underSection 27 of the Evidence Act.

84. If, it is say of the investigating officer that the accused appellantwhile in custody on his own free will and volition made a statementFthat he would lead to the place where he had hidden the weaponof offence, the site of burial of the dead body, clothes etc., thenthe first thing that the investigating officer should have done wasto call for two independent witnesses at the police station itself.Once the two independent witnesses would arrive at the policeGstation thereafter in their presence the accused should be askedto make an appropriate statement as he may desire in regard topointing out the place where he is said to have hidden the weaponof offence etc. When the accused while in custody makes suchstatement before the two independent witnesses (panch-witnesses)

H7 2022 SCC OnLine SC 1400

the exact statement or rather the exact words uttered by theaccused should be incorporated in the first part of the panchnamathat the investigating officer may draw in accordance with law.This first part of the panchnama for the purpose of Section 27 ofthe Evidence Act is always drawn at the police station in thepresence of the independent witnesses so as to lend credencethat a particular statement was made by the accused expressinghis willingness on his own free will and volition to point out theplace where the weapon of offence or any other article used inthe commission of the offence had been hidden. Once the firstpart of the panchnama is completed thereafter the police partyalong with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be ledby the accused. If from that particular place anything like theweapon of offence or blood stained clothes or any other article isdiscovered then that part of the entire process would form thesecond part of the panchnama. This is how the law expects theinvestigating officer to draw the discovery panchnama ascontemplated under Section 27 of the Evidence Act. If we readthe entire oral evidence of the investigating officer then it is clearthat the same is deficient in all the aforesaid relevant aspects ofthe matter.”

26. This Court has elaborately considered as to how the law expectsthe IO to draw the discovery panchnama as contemplated under Section27 of the Evidence Act. In the present case, leave aside the recoverypanchnama being in accordance with the aforesaid requirement, there isno statement of Boby (accused No. 3/appellant herein) recorded underSection 27 of the Evidence Act. We are, therefore, of the consideredview that the prosecution has failed to prove the circumstance that thedead body of the deceased was recovered at the instance of Boby(accused No. 3/appellant herein).

27. Another circumstance on which the High Court relied wasthat the recovery of ornaments was at the instance of Boby (accusedNo. 3/appellant herein). We find that both the trial court and the HighCourt have patently erred in relying on such recovery. The trial courtfound that there was enough material to show that the alleged recoverymemo was a fabricated document and the alleged recovery as per Ext.P-14 is farce. However, the trial court still relied on the said recovery to AB

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Aconvict the accused. In our view, the finding of the trial court in thisregard is totally perverse which has been confirmed by the High Court.

28. Insofar as Shibu @ Shibu Singh (accused No. 1) is concerned,the additional circumstance sought to be relied on by the trial court andthe High Court is the alleged recovery of the spade. It is to be noted thatBthe spade was also recovered from the same place from where thedead body of the deceased was alleged to have been recovered at theinstance of Boby (accused No. 3/appellant herein). The trial court againheld that the place from where the spade was recovered was alreadyknown from the disclosure statement of Boby (accused No. 3/appellantCherein); however, it still held the recovery of the said spade to beadmissible in evidence. It is thus clear that the said recovery was from aplace which was already known and not exclusively within the knowledgeof Shibu @ Shibu Singh (accused No. 1). We find that the trial court hasagain committed perversity in arriving at such a finding.

D29. It is thus clear that the only circumstance that now remains isthe circumstance of the accused last seen in the company of the deceasedon the basis of the evidence of PW-1. In that view of the matter, we findthat, solely on the basis of last seen theory, the conviction could not havebeen recorded. The prosecution has utterly failed to prove that therecovery of the dead body of the deceased was at the instance of BobyE(accused No. 3/appellant herein). The recovery of the articles from thehouse of Boby (accused No. 3/appellant herein), even according to thetrial court, is farce and fabricated. The recovery of the spade at theinstance of Shibu @ Shibu Singh (accused No. 1) is from a place which,even according to the trial court, was also known on account of theFdisclosure statement made by Boby (accused No. 3/appellant herein).

30. In that view of the matter, we find that the prosecution hasutterly failed to prove the chain of incriminating circumstances whichleads to no other conclusion than the guilt of the accused.

31. Insofar as the reliance placed by Shri Balgopal, learned SeniorGCounsel on the case of Suresh Chandra Bahri (supra) is concerned, itis totally misplaced inasmuch as in paragraph 40, this Court has observedthus:

“40. …….Before we discuss the merits or demerits of theaforesaid submissions we would like to state that the law relatingH

to conviction based on circumstantial evidence is well settled andit hardly requires a detailed discussion on this aspect. Suffice tosay that in a case of murder in which the evidence that is availableis only circumstantial in nature then in that event the facts andcircumstances from which the conclusion of guilt is required to bedrawn by the prosecution must be fully established beyond allreasonable doubt and the facts and circumstances so establishedshould not only be consistent with the guilt of the accused butthey also must entirely be incompatible with the innocence of theaccused and must exclude every reasonable hypothesis consistentwith his innocence.”

32. It will further be relevant to refer to the following observationsof this Court in the said case:

“71. ……The provisions of Section 27 of the Evidence Act arebased on the view that if a fact is actually discovered inconsequence of information given, some guarantee is affordedthereby that the information was true and consequently the saidinformation can safely be allowed to be given in evidence becauseif such an information is further fortified and confirmed by thediscovery of articles or the instrument of crime and which leadsto the belief that the information about the confession made as tothe articles of crime cannot be false…..”

33. A perusal of paragraph 71 of the said judgment would revealthat the Court has reiterated that the two essential requirements for theapplication of Section 27 of the Evidence Act are that (1) the persongiving information must be an accused of any offence and (2) he mustalso be in police custody. The Court held that the provisions of Section27 of the Evidence Act are based on the view that if a fact is actuallydiscovered in consequence of information given, some guarantee isafforded thereby that the information was true and consequently thesaid information can safely be allowed to be given in evidence.

34. In the facts of the said case, the Court found that there was,in fact, a confessional statement of the disclosure made by the appellantGurbachan Singh which was confirmed by the recovery of theincriminating articles. As such, the Court believed the disclosure statementand the evidence led in that behalf. As already stated hereinabove, in the AB

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Apresent case, there is no confessional statement of Boby (accused No.3/appellant herein) recorded with regard to recovery of the dead body ofthe deceased.

35. In the result, the appeal is allowed.

B36. The judgment dated 18[th] December 2004 passed by the trialCourt, thereby convicting the appellant under Sections 395, 365, 364,201, 380, 302 read with Section 34 of the IPC and the impugned judgmentdated 25[th] August 2008, passed by the High Court affirming the sameare set aside. The appellant is acquitted of all the charges charged with.The bail bonds of the accused shall stand discharged.C

37. Pending application(s), if any, shall stand disposed of.

Bibhuti Bhushan Bose

(Assisted by : Shevali Monga, LCRA)

Appeal allowed.

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