BY AD v. SRI.SOJAN MICHEAL

Judicial Magistrate of the First Class, Ramankari. While they were in judicial custody, their custody was obtained from 3.30 p.m. on 26.8.2008 to 5 p.m. on 2.9.2008. Based on the disclosure statement given by the 4th accused, an ‘iron leaf’ alleged to have been used for causing injuries Crl.A.Nos. 527, 528 & 540 of 2017 :7: to the deceased was recovered at 11 a.m. on 29.8.2008. On the next day, at about 4 p.m. on 30.8.2008, based on the alleged disclosure statement given by the 1st accused, the purse of the deceased containing a copy of his identity card was seized from the premises of the house of the 1st accused. Thereafter, based on the disclosure statement given by the 3rd accused, the handle grips of the motorcycle alleged to have been used by the accused to transport the deceased to the place where the dead body was ultimately dumped were recovered. Meanwhile, a report incorporating Sections 143, 144, 147, 148, 149, 302, and 201 of the IPC was submitted before the court. Later, an additional report was submitted incorporating Sections 120B, and 396 of the IPC on 20.11.2008. The investigation was then taken over by PW26, the Circle Inspector of Police, who laid the final report before court.

3. Conspectus of the Court Charge: The prosecution allegation is that the accused entered into a criminal conspiracy to murder Akku and in furtherance of the same, they formed themselves into an unlawful assembly, armed with an iron leaf and a rope in a reclaimed land at Karuvattamkuzhi in Keerikkadu village at 9.00 p.m. on

7.6.2007. Thereafter, in prosecution of their common object, the accused are Crl.A.Nos. 527, 528 & 540 of 2017 :8: alleged to have invited Akku using the mobile phone of the 3rd accused. When Akku came to the spot, the accused are alleged to have strangulated him with a rope after closing his mouth and nose, and thereafter hitting him with an iron leaf and causing his death. Thereafter, the body was taken on a motorcycle bearing No.KL-29/4589 dumped Alappuzha-Kayamkulam Railway line near the Pathiyoorkala Southern Railway Cross. The motorcycle used by the accused was allegedly pushed into the pond of the Mayikkal temple with a view to cause disappearance of the evidence. It is alleged that by their acts, the accused have committed offences punishable under Sections 120B, 143, 144, 147, 148, 302, and 201 r/w. Section 149 of the IPC.

4. Proceedings before the Court: After the committal, on receipt of summons from the Court of Sessions, the accused appeared and when the charges were read over, they pleaded not guilty. In order to prove its case, the prosecution summoned and examined PWs 1 to 28 and through them, Exts.P1 to P15 were marked. The contradictions brought out from the previous statement of the witnesses were marked as D1 to D6. MOs 1 to 21 series were produced and identified. The incriminating materials arising from the prosecution evidence were put to the accused under Crl.A.Nos. 527, 528 & 540 of 2017 :9: Section 313 of the Cr.P.C. and their explanation was sought. No defence evidence was adduced by the accused.

5. Findings of the learned Sessions Judge: A) The learned Sessions Judge placed implicit reliance on the recovery evidence effected based on disclosure statements given by the accused, which are the following: (i) Recovery of MO4 Mobile Phone, MO 14 Battery, and MO 15 Plastic cover, on 26/08/2008 under a pineapple plant in the house compound of the 5th accused, based on Ext.P10 (a) confession. (ii) Recovery of MO1 T-Shirt, MO3 Sandal, MO16 Dhoti, MO17 Coir rope, MO18 Brick piece, and MO19 empty liquor bottle on 13.05.2008, based on Ext. P11 (a) disclosure statement given by the 2nd accused from a property situated on the northern side of a property owned by one Mr. Radhakrishnan. It is specifically alleged that the Dhoti, the T-shirt, and the Sandal were tied around a brick using a coir rope and were found under an algal bloom in a water body. The case of the prosecution is that MOs 1 to 3 were the property of the deceased as identified by PWs 2 and 3. Crl.A.Nos. 527, 528 & 540 of 2017 :10: (iii) Recovery of MO10 Iron leaf, based on Ext. P12(a) confession statement given by the 4th accused at 11:00 a.m. on 29.08.2008, from the house compound of the 4th accused. (iv) Recovery of MO5 Purse, belonging to the deceased, based on Ext.P39 (a) confession statement, given by the 1st accused on

30.08.2008, from underneath a flower pot in the courtyard of the house of the 1st accused. The said purse contained Ext.P2, a copy of the Electoral Identity Card of the deceased. (v) Recovery of MO20 series, handle grips of MO6 Motorbike, based on Ext.P40(a) confession statement of the 3rd accused given on

31.08.2008, from the courtyard of his house. The handle grips are stated to have been taken out from the bike before dumping the same into the temple pond. (vi) The report of the Director of Forensic Science Lab, that the MO16 Dhoti, MO1 T-Shirt, contained human blood and MO10 Iron leaf contained blood, the origin of which, which could not be detected. (vii) The learned Sessions Judge was of the view that the recovery of the objects, based on the disclosure statement unmistakably points to the Crl.A.Nos. 527, 528 & 540 of 2017 :11: guilt of the accused. The evidence showing the conduct of the accused in transporting the dead body to a different location and in hiding the belongings of the deceased and the material objects used to murder him, clearly discloses that the accused have committed the offence under Section 201 of the IPC. B) The learned Sessions Judge placed implicit reliance on the evidence tendered by PWs 4, 5, and 7, wherein they stated that the deceased while leaving their company on 07.06.2007, had stated that he intended to meet the 1st accused. The Court was of the view that the said statement of the deceased was admissible under Section 32(1) of the Indian Evidence Act.

6. The submissions of the appellants: Sri. O.V Maniprasad, the learned counsel appearing for the appellants in Crl.Appeal No.540 of 2017, and Sri. Sojan Michael, the learned counsel appearing for the appellants in Crl. A Nos.527 of 2017 and 528 of 2017, submitted that the case rests squarely on circumstantial evidence and therefore, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. It is pointed out by the learned counsel that the incident leading to the death of Akku had allegedly Crl.A.Nos. 527, 528 & 540 of 2017 :12: taken place on 07.06.2007. Except for the fabricated recovery, which was effected more than a year after the incident, and certain embellishments in the statements of the family members and the close associates of the deceased, there is absolutely no material to link the accused with the crime. It is submitted by the learned counsel that it would be legally impermissible and thoroughly improbable to believe that the so-called hardened criminals like the accused as projected by the prosecution, took the valueless personal belongings of the deceased and took it to their residential premises and kept the same in safe custody, to enable the Investigating Officers to stage a recovery and to create evidence to link the accused with the offence of murder. It is pointed out by the learned counsel that no prudent person would believe that the prime accused took the purse containing the Voter ID Card of the deceased and kept it underneath a flower pot in the courtyard of his house. The same is the case of other recoveries as well. It is submitted that the learned Sessions Judge had seriously erred in believing the recovery evidence and in concluding that the failure on the part of the accused to furnish a reliable explanation for their possession of the material objects, would clearly lead to the irresistible conclusion that they are also involved in the murder. It is further submitted that the defence had brought out that PWs 4 and 5 had not stated to the police that the deceased had told them that he was going to meet the 1st accused. The Crl.A.Nos. 527, 528 & 540 of 2017 :13: same was brought out as an omission, which amounts to material contradiction. However, the learned Sessions Judge had erroneously concluded that the said statement, which is nothing but an embellishment, is admissible under Section 32(1) of the Indian Evidence Act. It is further submitted that PW7 was brought into the picture, seven years after the incident, much after the filing of the final report. The defence had brought out that he was in Kerala all through and nothing prevented him from disclosing what had transpired between him and the deceased on the fateful day. It is further submitted that the call-data records of the conversation between PW7 and the deceased would have been the best piece of evidence to probablize his version. However, for reasons best known, no such evidence was adduced. It is pointed out by the learned counsel that the prosecution has not let in any evidence to fix the place where the accused had attacked the deceased and caused the injuries. There was also no evidence to substantiate that the deceased was found in the company of the 1st accused after he had parted the company of PWs 4 and 5 at Velanjira. Furthermore, no evidence was let in to show the distance from the place where the injuries were inflicted to the Railway line, where the body was ultimately dumped and the manner in which the body was transported, and by whom. It is submitted that there are several missing links in the chain, and it cannot be said with any amount of certainty that the offence was committed by the accused and none Crl.A.Nos. 527, 528 & 540 of 2017 :14: else. It is further submitted that the fact that blood was detected from some of the recovered objects, is no reason to conclude that the case of the prosecution stands proved, particularly when a specific case of the defence is that the recovery evidence was cooked up. Reliance was placed on the observations made by the Apex Court in Geejaganda Somaiah v. State of Karnataka1, wherein it was held that the courts are required to be vigilant about the recovery under Section 27 of the Indian Evidence Act and must ensure the credibility of evidence collected by police because this provision is vulnerable to abuse. Reliance was also placed on Raja Naykar v. State of Chhattisgarh2 and in Mustkeem v. State of Rajasthan3, and it is urged that on the basis of fabricated recovery of some items, it cannot be said that the prosecution has discharged its burden of proving the case beyond a reasonable doubt.

7. Submission of the learned Public Prosecutor: Sri. Alex M. Thombra, the learned Public Prosecutor submitted that the learned Sessions Judge had evaluated the evidence let in by the prosecution in a thorough manner and had rightly come to the conclusion that the circumstances proven had a definite tendency and it unerringly pointed towards the guilt of the 1 to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may exclusion of much valuable evidence in cases where a person, who is subsequently taken custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery body, weapon other material fact, consequence information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine founded on the Crl.A.Nos. 527, 528 & 540 of 2017 :36: principle that if any fact is discovered as a search made on strength prisoner, a information obtained from a discovery a guarantee information supplied prisoner true. The information might be confessional or non inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67] is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269]). No doubt, the information permitted to be admitted in evidence is confined to that portion of information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not truncated to make insensible incomprehensible. The extent information admitted should consistent understandability. Mere statement accused police and the witnesses place where he had concealed the articles is not indicative of the information given.” [Emphasis supplied] i) The aspect which this Court has to consider in the present case is Crl.A.Nos. 527, 528 & 540 of 2017 :37: whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not, and most importantly, the link with and effect of the same vis-a-vis the commission of the crime. At this juncture, it would be profitable to bear in mind the observations of the Apex Court in Subramanya v. State of Karnataka7 wherein the Supreme Court has delineated the principles that are to be borne in mind by the Court while confronted with the question of admissibility of recovery effected at the instance of the accused. It was observed as follows in paragraph Nos. 77 and 78 of the judgment.

77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.

78. If, say of investigating officer appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call two independent witnesses at the police station itself. Once the two independent 7 (2022 SCC OnLine SC 1400) Crl.A.Nos. 527, 528 & 540 of 2017 :38: witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter. Crl.A.Nos. 527, 528 & 540 of 2017 :39: j) In Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh8, the principles were clarified further and it was observed as under paragraph 56 of the judgment:

56. The requirement of law that needs to be fulfilled before accepting the evidence discovery that by proving contents the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of panchnama and it is only if the investigating officer has successfully proved contents the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW 7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and deposed accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of panchnama investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about 8 2022 SCC OnLine SC 1396 Crl.A.Nos. 527, 528 & 540 of 2017 :40: such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place. xxxxxxx xxxxxxxxx

70. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon

71. If it is the case of the prosecution that the PW 2, Chhatarpal Raidas, s/o Rameshwar Raidas the panch witnesses to the drawing of the discovery panchnama, then why the PW 2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW 6 and PW 7 respectively. Crl.A.Nos. 527, 528 & 540 of 2017 :41: k) In the case on hand, when the investigating officer was examined, he merely stated that the accused while in custody furnished a statement and nothing more. In his evidence, he has not proved the contents of the recovery mahazar. He has also not mentioned that he had procured the presence of independent witnesses of the locality to witness the search. Furthermore, the witnesses to the recovery effected at the instance of the 2nd accused and the 5th accused did not support the prosecution case. Insofar as the witnesses to the recovery effected at the instance of the 4th accused are concerned, he stated that he reached the place only when the mahazar was being prepared by the lady Constable and about 100 persons had assembled at the place by then. Insofar as the recovery effected at the instance of 1st and 3rd accused are concerned, the very same witnesses were cited and the prosecution did not choose to examine anyone. We have also noted that we entertain serious doubts as regards the recovery effected at the instance of the accused as it appears that an attempt has been made to plant evidence in spite of getting enough time to conduct a thorough investigation, all that they have managed is to procure a stage-managed recovery. l) In Geejaganda Somaiah (supra), the Apex Court had occasion to Crl.A.Nos. 527, 528 & 540 of 2017 :42: observe that Section 27 of the Evidence Act is frequently misused by the police, and the courts are required to be vigilant about its application. The court are required to be extremely cautious and ensure the credibility of evidence by police because this provision is vulnerable to abuse. However, this does not mean that any statement made in terms of the aforesaid section should be seen with suspicion. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act. m) In Mustkeem (supra), the Apex Court held that in a case which rests purely on circumstantial evidence the recovery cannot be the sole basis for conviction. It was observed as under:

21. The recovery memos also reflect that there were overwriting on the same which has not been explained by PW 16 Diwakar Chaturvedi (Investigating Officer). He admitted that memos and annexures were prepared in his own handwriting but also admitted in his cross-examination that the same were in a different handwriting. This lacuna should have been explained by the prosecution more so when the whole case rested only on circumstantial evidence. Crl.A.Nos. 527, 528 & 540 of 2017 :43:

22. Thus, looking to the matter from all angles we are of the considered opinion that it would not be safe and proper to hold the appellants guilty for commission of offence.

23. It is too well settled in law that where the case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence, which has been well settled by law by this Court. xxxxxxx xxxxxxx

25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.

11. Closing Thoughts: a) Before concluding this case, we must express our profound distress over the manner in which the investigation was conducted and the accused Crl.A.Nos. 527, 528 & 540 of 2017 :44: were subjected to trial. Although we recognize that the appellants are not saints, it is abundantly clear from the facts and circumstances that the investigating officer deliberately and consciously fabricated false evidence against the accused. The prosecution has not acted fairly. Accusing a person of a grave crime punishable under Section 302 of the IPC demands an honest, sincere, and unbiased investigation. Only the person genuinely suspected of the crime should be charged. In this case, there was a conscious attempt to plant evidence and avoid presenting crucial pieces of evidence that would have supported the prosecution's version. The failure to procure the 65B certificate for the admissibility of electronic evidence, the introduction of PW7 after nearly seven years, the fabrication of recovery evidence, the failure to identify the exact crime scene, and the introduction of new facts by witnesses in court that were not stated in their initial statements are clear demonstrations of prosecutorial misconduct. b) We are bewildered as to how accused Nos. 2 to 5 were implicated in this case. Except for the obviously planted recovery, no evidence whatsoever has been let in by the prosecution to link them to the crime. Regarding the 1st accused, in addition to the dubious recovery, the alleged Crl.A.Nos. 527, 528 & 540 of 2017 :45: statements made by the deceased to his friends are clearly embellishments brought in at a later stage. Such fabrication of records by the investigating officer is deplorable and would undermine the public confidence in the prowess of investigative agencies. However, as we are informed that the investigating officer is no more, we refrain from passing strictures against him. c) We acknowledge that heinous crimes are committed under great secrecy, making the investigation a challenging and arduous task. However, the liberty of a citizen is a precious right guaranteed under Article 3 of the Universal Declaration of Human Rights and Article 21 of the Constitution of India, and its deprivation can only be in accordance with law. Impartial and truthful investigation and a fair trial are imperative. A fair trial, as envisaged by Articles 20 and 21 of the Constitution of India, includes a fair investigation. The role of the police is to protect the life, liberty, and property of citizens, and the investigation of offences is one of its foremost duties. The accused is entitled to a fair and true investigation and trial, and the prosecution is expected to play a balanced role in the trial of a crime. Investigations should be judicious, fair, transparent, and expeditious to ensure compliance with the basic rule of law. These Crl.A.Nos. 527, 528 & 540 of 2017 :46: principles align with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India [See Kishore Chand (supra)]. d) We must also highlight the role of the Public Prosecutor in cases of this nature. We need to elaborate no more than refer to the observations in Dodda Brahmanandam v. State of Andhra Pradesh9, wherein Jagannadha Rao, J. (as he then was), while referring to the office of the Public Prosecutor, as observed in Kenny's Outlines of Criminal Law and various English and Indian decisions, ultimately summed up his views as under: "The Prosecuting Counsel stands in a position different from that of an advocate who represents the complainant. He does not represent either the defacto complainant or the police. He is a representative of the State and is part of the Court and in that sense called a minister of justice. His function is to assist the Court in arriving at the truth. It is not his duty to obtain a conviction at any cost but simply to lay before the Court the whole of the facts of the case and the law. The State too has no interest in procuring a conviction. It's only interest is that the guilty must be punished and justice should be done. It is regarded as proper for the prosecution to acquaint the defence as to any relevant information so that the defence may have the opportunity to use it if they so desire and so that no unfairness is meted out to the 9 [(1986) 1 Andh LT 141] Crl.A.Nos. 527, 528 & 540 of 2017 :47: accused (See also Kenny's Outlines of Criminal Law, 19th Ed (196) (p.611-612). The position of the prosecutor is thus quasi-judicial and one of trust." We hope and expect that the observations made by us are taken note of in its true spirit and appropriate measures are taken so that such misadventures do not happen in the future.

12. Conclusion: Having carefully evaluated the entire evidence, we are of the view that the prosecution has totally failed to prove any one of the circumstances against the appellants. The circumstances, we are afraid, do not cumulatively form an unbroken chain of events linking the accused with the crime. The prosecution has also failed to prove as a primary fact, the circumstances projected by them, much less beyond all reasonable doubt, to bring home the guilt to the accused, and to prove that the accused had committed the offences under Section 302 r/w. Section 34 of the IPC and Section 120B and under Section 201 r/w. Section 34 of the IPC. There is no evidence to show that the accused had entered into a conspiracy and that they had caused the disappearance of evidence. Therefore, the appellants are entitled to the benefit of doubt. Crl.A.Nos. 527, 528 & 540 of 2017 :48: These appeals are allowed. The conviction and sentence of the appellants for the offences under Section 302 r/w. Section 34 and Section 120B and Section 201 r/w. Section 34 of the IPC are set aside. The appellants are on bail granted by this Court. The bail bond shall stand cancelled. They shall remain at liberty if their incarceration is not required to be resumed in connection with any other case. Sd/- RAJA VIJAYARAGHAVAN V, JUDGE Sd/- G. GIRISH, JUDGE PS & APM/03/08/24