Appeal
2. The impugned judgment 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 and Section 201 of the IPC, by the Principal Sessions Judge, Puducherry in SC No. 22 of 2014, in the charge sheet arising from the First Information Report No. 80 of 2008 registered on 24.04.2008 in Police Station Odiansalai, District – Puducherry.
3.The appellant – Perumal Raja @ Perumal stands sentenced to imprisonment for life and fine of Rs.5,000/- for the offence under Section 302 of the IPC and rigorous imprisonment for three years and fine of Rs.3,000/- for the offence under Section 201 of the IPC.
4.The other co-accused, namely, Saravanan @ Krishnan, Mohan @ Mohankumar, and Ravi @ Ravichandran were acquitted by the trial court, which acquittal has become final. One ‘N’ was tried as a juvenile and acquitted. On 15.02.2013, the case of another co-accused – Chella @ Mugundhan was split up since he was absconding. Subsequently, vide judgment dated 04.06.2019, which has been placed on record as additional evidence, Chella @ Mukundhan has been acquitted.
Witnesses turned hostile
6. Several public witnesses turned hostile and did not support the prosecution case. This includes Arumugam (PW-20), the grandfather of the deceased Rajini @ Rajinikanth, who had filed the ‘missing man’ complaint for Rajini @ Rajinikanth, vide Diary No. 80 of 2008. However, Arumugam (PW-20) did accept that his son, Rajaram, who was living abroad had come home when he was murdered on 21.04.2008. Arumugam (PW-20) also accepts that his grandson Rajini @ Rajinikanth had not attended crematorial rites of his father Rajaram and was missing.
Recovery
10. On the aspect of the recovery of two nylon sack bags with body parts, we have affirmative depositions of Chinta Kodanda Rao (PW 30), 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 (PW-32), Circle Inspector, PS Odiansalai has deposed about the recovery and proved the Mahazar (Exhibit P-48). The recovery was photographed by Subburayan (PW-25), police photographer vide photographs marked Exhibit P-18 and duly witnessed by public witness Devadass (PW-21).
DNA test
18. Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry had issued bone-case certificate (Exhibit P-17) on 19.05.2008. Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry has clarified that while he did not mention 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 19.05.2008.7 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 (PW 24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry (Exhibit P-61).
Fact discovered must lead to physical object and only that information can be proved
19. The prosecution’s case, in the absence of eye witnesses, is based upon circumstantial evidence. As per Section 25 of the Indian Evidence Act, 18728, a confession made to a police officer is prohibited and cannot be admitted in evidence. Section 26 of the Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27 of the Evidence Act is an exception to Sections 25 and 26 of the Evidence Act. It makes that part of the statement which distinctly leads to discovery of a fact in consequence of the information received from a person accused of an offence, to the extent it distinctly relates to the fact thereby discovered, admissible in evidence against the accused. The fact which is discovered as a consequence of the information given is admissible in evidence. Further, the fact discovered must lead to recovery of a physical object and only that information which distinctly relates to that discovery can be proved. Section 27 of the Evidence Act is based on the doctrine of confirmation by subsequent events – a fact is actually discovered in consequence of the information given, which results in recovery of a physical object. The facts discovered and the recovery is an assurance that the information given by a person accused of the offence can be relied.
20. In Pulukuri Kottaya v. King Emperor the Privy Council [AIR 1947 PC 67] held that the fact discovered embraces the place from which the physical object is produced and the knowledge of the accused as to this, and the information given, must distinctly relate to this fact.
21. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600], this Court affirmed that the fact discovered within the meaning of Section 27 of the Evidence Act must be some concrete fact to which the information directly relates. Further, the fact discovered should refer to a material/physical object and not to a pure mental fact relating to a physical object disassociated from the recovery of the physical object.
Recovery proves the factum of object found and the knowledge of the accused to its existence – except recovery rest of the information is to be excluded
22. However, we must clarify that Section 27 of the Evidence Act, as held in these judgments, does not lay down the principle that discovery of a fact is to be equated to the object produced or found. The discovery of the fact resulting in recovery of a physical object exhibits knowledge or mental awareness 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 information is to be excluded. The word ‘distinctly’ is used to limit and define the scope of the information and means ‘directly’, ‘indubitably’, ‘strictly’ or ‘unmistakably’. Only that part of the information which is clear, immediate and a proximate cause of discovery is admissible.
Hypotheses presumption as to the accused’s knowledge of the hidden object
23. The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, namely, (i) that the accused had himself deposited the physical items which were recovered; or (ii) only the accused knew that the physical items were lying at that place. The second hypothesis is wholly compatible with the innocence of the accused, whereas the first would be a factor to show involvement of the accused in the offence. The court has to analyse which of the hypotheses should be accepted in a particular case.
24. Section 27 of the Evidence Act is frequently used by the police, and the courts must be vigilant about its application to ensure credibility of evidence, as the provision is vulnerable to abuse. However, this does not mean that in every case invocation of Section 27 of the Evidence Act must be seen with suspicion and is to be discarded as perfunctory and unworthy of credence.
Custody includes restriction, restraint and surveillance by the police
25. The pre-requisite of police custody, within the meaning of Section 27 of the Evidence Act, ought to be read pragmatically and not formalistically or euphemistically. In the present case, the disclosure statement (Exhibit P-37) was made by the appellant – Perumal Raja @ Perumal on 25.04.2008, when he was detained in another case, namely, FIR No. 204/2008, registered at PS Grand Bazar, Puducherry, relating to the murder of Rajaram. He was subsequently arrested in this case, that is FIR.No.80/2008, which was registered at PS Odiansalai, Puducherry. The expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police.
Section 25 applies equally whether or not the person was in custody
26. Reference is made to a recent decision of this Court in Rajesh & Anr. v. State of Madhya Pradesh [2023 SCC OnLine SC 1202], which held that formal accusation and formal police custody are essential pre-requisites under Section 27 of the Evidence Act. In 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[1]. 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 confession. The reason is that the expression “accused person” in Section 24 and the expression “a person accused of any offence” in Sections 26 and 27 have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. The adjectival clause “accused of any offence” is, therefore, descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement.
Confession means not only the admission of offence but all other admissions of incriminating facts related to the offence
27. Elaborating on this aspect, a three judge Bench of this Court in Aghnoo Nagesia v. State of Bihar [AIR 1966 SC 119] has held that if the FIR is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence, except to the extent that the ban is lifted by Section 27 of the Evidence Act. While dealing with the admission of part of confession report dealing with motive, subsequent conduct and opportunity, this Court rejected the severability test adopted by some High Courts. The statement can, however, be relied upon and admitted to identify the accused as the maker, and the portion within the purview of Section 27 of the Evidence Act is admissible. Aghnoo Nagesia (supra) has been applied and followed by this Court in Khatri Hemraj Amulakh v. State of Gujarat [(1972) 3 SCC 671].
Word of mouth information to the police if used against the person giving then it deemed to have submitted himself to custody
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 restraint by the police. Even if the accused was not formally arrested at the time of giving information, the accused is, for all practical purposes, in the custody of the police and the bar vide Sections 25 and 26 of the Evidence Act, and accordingly exception under Section 27 of the Evidence Act, apply. Reliance was placed on the decisions in State of A.P. v. Gangula Satya Murthy [(1997) 1 SCC 272] and A.N.Vekatesh and Anr. v. State of Karnataka [(2005) 7 SCC 714].
Presumption as to how the accused knew the place of concealed dead body
32. In State of Maharashtra v. Suresh22, this Court in the facts therein held that recovery of a dead body, which was from the place pointed out by the accused, was a formidable incriminating circumstance. This would, the Court held, reveal that the dead body was concealed by the accused unless there is material and evidence to show that somebody else had concealed it and this fact came to the knowledge of the accused either because he had seen that person concealing the dead body or was told by someone else that the dead body was concealed at the said location. Here, if the accused declines and does not tell the criminal court that his knowledge of the concealment was on the basis of the possibilities that absolve him, the court can presume that the dead body (or physical object, as the case may be) was concealed by the accused himself. This is because the person who can offer the explanation as to how he came to know of such concealment is the accused. If the accused chooses to refrain from telling the court as to how else he came to know of it, the presumption is that the concealment was by the accused himself.
Section 106 Evidence act does not dilute the burden on prosecution
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.
Section 8 Evidence Act
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 (PW 32), 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 and questioned[2] Reference in this regard may also be made to the judgment of this Court in Sandeep v. State of U.P.[3] which held that:
“52. (…) It is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered.”
When false defence taken by the accused may use as additional link by the court?
38. This Court in Sharad Birdhichand Sarda (supra) rejected the contention that if the defence case is false it would constitute an additional link as to fortify the case of the prosecution. However, a word of caution was laid down to observe that a false explanation given can be used as a link when:
(i) various links in the chain of evidence laid by the prosecution have been satisfactorily proved;
(ii) circumstance points to the guilt of the accused with reasonable definiteness; and
(iii) the circumstance is in proximity to the time and situation.
If these conditions are fulfilled only then the court can use the false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Thus, a distinction has to be drawn between incomplete chain of circumstances and a circumstance after a chain is complete and the defence or explanation given by the accused is found to be false, in which event the said falsehood is added to reinforce the conclusion of the court.
Principles regarding circumstantial evidence
39. This Court in Deonandan Mishra v. State of Bihar[4] has laid down the following principle regarding circumstantial evidence and the failure of accused to adduce any explanation:
“It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased 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.”
What is circumstantial evidence and appreciation of the same
41. The whereabouts of Rajini @ Rajinikanth were unknown. The perpetrator(s) were also unknown. It is only consequent to the disclosure statement by the appellant – Perumal Raja @ Perumal, that the police came to know that Rajini @ Rajinikanth had been murdered and his body was first dumped in the sump tank and after some months, it was retrieved, cut into two parts, put in sack bags, and thrown in the river/canal. The police, accordingly, proceeded on the leads and recovered the parts of the dead body from the sump tank and sack bags from the river/canal. It has been also established that Rajini @ Rajinikanth was murdered. In addition, there have been recoveries of the motorcycle and other belongings at the behest of the appellant – Perumal Raja @ Perumal. These facts, in the absence of any other material to doubt them, establish indubitable conclusion that the appellant – Perumal Raja @ Perumal is guilty of having committed murder of Rajini @ Rajinikanth. The presence of motive reinforces the above conclusion.
Conviction confirmed.
Parties
PERUMAL RAJA @ PERUMAL ….. APPELLANT VERSUS STATE, REP. BY INSPECTOR OF POLICE ….. RESPONDENT – CRIMINAL APPEAL NO. OF 2024 (arising out of Special Leave Petition (Criminal) No. 863 of 2019) – JANUARY 03, 2024 – 2024 INSC 13
https://main.sci.gov.in/supremecourt/2018/4802/4802_2018_2_1501_49136_Judgement_03-Jan-2024.pdf
Perumal Raja vs. State – 4802_2018_2_1501_49136_Judgement_03-Jan-2024
Further study
Appreciation of evidence – Explained
Appreciation of evidence: Circumstantial evidence & Recovery
Entire evidence act explained in single judgment.
Judgments full of citations on all the principles of criminal law
[1] 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.
[2] See State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, paragraphs: 190, 204-206, 219-223, 225.
[3] (2012) 6 SCC 107.
[4] (1955) 2 SCR 570
