Summary
The Court restored the acquittal of six accused in a contract-killing case in which 71 of 87 prosecution witnesses, including the eyewitness son of the deceased, turned hostile. The High Court had convicted them on the testimony of the investigating officers, which merely repeated the witnesses' Section 161 CrPC statements and the accused's voluntary statements; such reliance violates Section 162 CrPC and Sections 25 and 26 of the Evidence Act, recoveries under Section 27 were not connected to the crime or to the alleged assailants, and a Section 27 disclosure cannot be used against co-accused under Section 30.
Issues
- Whether the High Court, in reversing an acquittal, could rely on the investigating officers' testimony affirming the Section 161 CrPC statements of witnesses who disowned them at trial.
- Whether the recoveries of cash, weapons, clothes and vehicles, made on the disclosure of an alleged conspirator (A3) or by seizure, were admissible under Section 27 of the Evidence Act and connected to the crime and the alleged assailants.
- Whether a disclosure statement under Section 27 can be used under Section 30 of the Evidence Act to implicate co-accused.
- Whether the motive, conspiracy and preparation alleged by the prosecution were proved by legal evidence.
Provisions considered
- Section 161, Code of Criminal Procedure, 1973Statements recorded during investigation from the eyewitnesses, relatives, employees and panch witnesses were disowned by them at trial; the High Court nonetheless treated their contents as established because the investigating officers affirmed having recorded them. The Court held such statements are not substantive evidence and cannot be given credibility merely because the IO narrates them. (¶¶ 6, 7, 8, 14, 17, 18, 23, 24, 26, 46, 48)
- Section 162, Code of Criminal Procedure, 1973Statements to the police during investigation can be used only to contradict the maker under the proviso to sub-section (1) or for the purposes in sub-section (2) (Kali Ram, R. Shaji, Rajendra Singh). Relying on them through the IO's testimony as proof of motive, conspiracy and preparation was wholly inadmissible and egregiously wrong. (¶¶ 14, 25, 26, 48)
- Section 102, Code of Criminal Procedure, 1973The High Court treated the seizure of cash and mobile phones from A2 to A6 as permissible under Section 102. The Court held a seizure under Section 102, unless linked to the crime, cannot be relied on to convict for murder on the alleged conspiracy; no proper inventory was taken, only the bundles were identified and the source of the cash was never traced. (¶¶ 15, 38)
- Sections 25 and 26, Indian Evidence Act, 1872Confessional parts of the accused's statements to the police, including A3's reference to the murder, A1's narration of the conspiracy and money transfer while pointing out sites, and A5 and A6's identification of their clothes at the recovery, are barred as confessions to police or in police custody; pointing out sites without recovery of any tangible object leads to no discovery of fact and is hit by these sections. (¶¶ 9, 20, 29, 32, 39, 45, 48)
- Section 27, Indian Evidence Act, 1872Following Pulukuri Kottaya, Navjot Sandhu, Om Prakash and Pandurang Kalu Patil, the fact discovered is the concealment of the object and the accused's knowledge of it, not the object itself; only so much of the information as relates distinctly to that fact is admissible, and the recovered object must be independently connected to the crime and the accused. The weapons and clothes were recovered on A3's statement, who was not an alleged assailant, with no independent proof that A5 and A6 handed them over, so the recovery did not implicate A5 or A6; cash seizures were not Section 27 recoveries at all. (¶¶ 9, 11, 12, 13, 18, 20, 27, 30, 32, 33, 34, 35, 36, 37, 38, 39, 42, 45)
- Section 30, Indian Evidence Act, 1872A co-accused's confession is not evidence under Section 3 and can only lend assurance to a conclusion reached on other evidence (Kashmira Singh, Haricharan Kurmi). Athappa Goundan, relied on by the High Court to use a Section 27 disclosure against other accused, was overruled by Pulukuri Kottaya; where a Section 27 recovery cannot inculpate even its maker for want of independent connection to the crime, it cannot be used under Section 30 against co-accused. (¶¶ 30, 40, 41, 42, 43, 44, 45)
- Section 302 read with Section 120B, Indian Penal Code, 1860Offence for which the High Court convicted A1 to A6 on reversing the Trial Court's acquittal; the conviction was set aside for total absence of legal evidence of the conspiracy and the murder against the accused. (¶¶ 3, 49)
Held
- In an appeal against acquittal the appellate court, though empowered to reappreciate the evidence, must remain circumspect because the presumption of innocence is fortified by the acquittal; where two reasonable views are possible the one favouring the accused must be adopted (Chandrappa). Here not even two views arose: the only view was that the prosecution completely failed to prove the charges, and the High Court erred in not appreciating these principles. (¶¶ 5, 48)
- The principle that police testimony need not be approached with distrust (Sunil, Rizwan Khan, Pardeep Kumar) applies to recoveries under Section 27 and to seizures of contraband on search or interception; it cannot be imported to an investigating officer's affirmation of Section 161 statements that the witnesses do not subscribe to at trial. Such statements can be used only for contradiction under Section 162 CrPC, are not substantive evidence, and the IO's narration of them is not gospel truth; voluntary statements of the accused can be relied on only to the extent of a discovery of fact, and then only if linked to the crime. (¶¶ 11, 12, 13, 14, 17, 18, 25, 26)
- What the investigation revealed to the investigating officer must be established before the Court by oral testimony or other evidence; a conviction cannot rest on the IO's predilection that a circumstance was revealed during investigation. A test identification parade only aids the investigation and cannot lead to conviction unless the accused are identified in Court at trial; here the eyewitnesses identified no one either at the TIP or in Court. (¶¶ 19, 21, 47)
- Under Section 27 of the Evidence Act the fact discovered is not the object produced but the place from which it is produced and the accused's knowledge of it; only information relating distinctly to that fact is admissible, and words relating to the crime itself are barred by Sections 25 and 26. The recovered object must be connected to the crime by independent evidence, which is one link in the chain and not the foundation of the case (Pulukuri Kottaya, Navjot Sandhu, Om Prakash, Pandurang Kalu Patil). Pointing out sites where the conspiracy was allegedly hatched and money changed hands, without recovery of any concealed object, leads to no discovery of fact. (¶¶ 13, 20, 27, 32, 33, 34, 36, 39)
- The weapons and clothes were recovered on the disclosure of A3, who was not alleged to have taken part in the killing; there was no independent evidence that A5 and A6 handed them to him, the clothes were never checked for fit, and a match of 'O' group human blood alone cannot implicate the accused without a clear connection of the items to them and the crime. The cash seizures were seizures rather than Section 27 recoveries, with no inventory and no link to the crime, and the motorcycle and pickup van were not connected to the offence since the eyewitness account was that the assailants fled on foot. (¶¶ 15, 20, 28, 29, 38, 39)
- A confession of a co-accused under Section 30 of the Evidence Act is not evidence under Section 3; the Court must first marshal the other evidence and may turn to the confession only to receive assurance for a conclusion of guilt it is about to reach on that evidence (Kashmira Singh, Haricharan Kurmi). Athappa Goundan, relied on by the High Court to bring a Section 27 disclosure within Section 30, was overruled by the Privy Council in Pulukuri Kottaya; when a Section 27 recovery cannot by itself inculpate its maker for lack of independent connection to the crime, there is no question of using it to inculpate other accused under Section 30. (¶¶ 30, 40, 41, 42, 43, 44, 45)
- The motive was not proved: the letter (MO40) allegedly written by PW4 was denied by him when confronted and was not proved merely because the IO said PW4 handed it over, and PW10's disowned Section 161 statement could not be relied on by reasoning that a wife would necessarily know the reason for the murder. The conspiracy and preparation likewise rested only on Section 161 statements and voluntary statements of the accused narrated by the IOs. (¶¶ 22, 23, 24, 26)
- Witnesses may turn hostile en bloc for many reasons (fear, political, family or social pressure, monetary consideration) and not only because of police coercion or the accused's influence; it was presumptuous and fallacious for the High Court to attribute the hostility to the accused. Consternation at an unsolved brutal murder cannot justify a purely moral conviction without legal evidence, which is anathema to criminal jurisprudence. (¶¶ 46, 47, 49)
Result
Criminal appeals allowed. The High Court's judgment convicting A1 to A6 under Section 302 read with Section 120B IPC was reversed and the Trial Court's judgment of acquittal restored. The accused to be released forthwith if in custody and not required in any other case; if on bail, their bail bonds stand cancelled. Pending applications disposed of.