# SIJU KURIAN v. STATE OF KARNATAKA

- **Citation:** [2023] 4 S.C.R. 397
- **Court:** Supreme Court of India
- **Decided:** 2023-04-17
- **Case number:** Criminal Appeal No. 64 of 2021
- **Bench:** Surya Kant, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/siju-kurian-v-state-of-karnataka-37046
- **Pages:** 33

## Headnote

Penal Code, 1860: ss. 302, 201, 404 and 419 - Circumstantial
Evidence - Reliance upon - Prosecution case that the accusedlabourer in the farmhouse of the victim, murdered the victim by hitting
him with iron rod and then hid the dead body in a pit located in the
garden - Other articles also concealed - Accused stole the articles
in the farm house and sold them as also sold the land to make undue
monetary gain - Acquittal by the trial court on the ground that
prosecution failed to prove its case beyond reasonable doubt -
However, the High Court convicted and sentenced the accused for
the offence punishable u/ss. 302, 201, 404 and 419 - On appeal,
held: Death of the victim being homicidal stands proved by the post
mortem report - Prime witnesses as also other prosecution witnesses
testified that accused last seen in the company of the victim -
Recovery of dead body as also articles of the deceased on basis of
the voluntary statement of accused, and was also proved through
the prosecution witnesses - Articles sold by the accused were
recovered on the strength of the voluntary statement of the accused
- Plea that confession statement is to be discarded in its entirety
cannot be accepted - Also it cannot be said that the statement was
not being voluntary or it was recorded improperly - Thus, the
conclusion arrived at by the High Court is based on sound
appreciation of evidence and proper application of law - No
material irregularity in the judgment of the High Court - On reappreciation of entire evidence by the High Court in proper
perspective, it was rightly held that the accused alone committed
the murder of the victim and there being no other possible view
which could be considered as missing in the link of chain of
circumstances - Thus, the order passed by the High Court upheld -
Evidence Act 1872 - ss. 8, 25 and 27.
[2023] 4 S.C.R. 397
397
A
B
C
D
E
F
G
H
398
SUPREME COURT REPORTS
[2023] 4 S.C.R.
Evidence Act, 1827: s 27 - How much of information received
from accused may be proved - Held: Section 27 permits the
derivative use of custodial statement in the ordinary course of events
- There is no automatic presumption that the custodial statements
have been extracted through compulsion - In pursuance to a
voluntary statement made by the accused, a fact must be discovered
which was in the exclusive knowledge of the accused alone - In
such circumstances, that part of the voluntary statement which leads
to the discovery of a new fact which was only in the knowledge of
the accused would become admissible u/s.27 - Such statement should
have been voluntarily made and the facts stated therein should not
have been in the knowhow of others.
Code of Criminal Procedure, 1973: s. 378 - Appeal against
acquittal - Powers of appellate court - General principles - Stated.
Dismissing the appeal, the Court
HELD: 1.1 It would be open for the High Court to re-apprise
the evidence and conclusions drawn by the trial court and in the
case of the judgment of the trial court being perverse that is
contrary to the evidence on record, then in such circumstances
the High Court would be justified in interfering with the findings
of the trial court and/or reversing the finding of the trial court.
The appellate court may reverse the order of acquittal in the
exercise of its powers and there is no indication in the Code of
any limitation or restriction having placed on the High Court in
exercise of its power as an appellate court. No distinction can be
drawn as regards the power of the High Court in dealing with an
appeal, between an appeal from an order of acquittal and an appeal
from a conviction. The Code of Criminal Procedure does not place
any fetter on exercise of the power to review at large the evidence
upon which the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal should
be reversed. [Para 13][411-F; 412-B-D]
1.2. The circumstantial evidence relied upon by the State
to prove the circumstances

## Text

_Characters 0–39,781 of 75,093. This is a partial read: ask again with offset=39781 for what follows._

A
B
C
D
E
F
G
H
397
SIJU KURIAN
v.
STATE OF KARNATAKA
(Criminal Appeal No. 64 of 2021)
APRIL 17, 2023
[SURYA KANT AND ARAVIND KUMAR, JJ.]
Penal Code, 1860: ss. 302, 201, 404 and 419 - Circumstantial
Evidence - Reliance upon - Prosecution case that the accusedlabourer in the farmhouse of the victim, murdered the victim by hitting
him with iron rod and then hid the dead body in a pit located in the
garden - Other articles also concealed - Accused stole the articles
in the farm house and sold them as also sold the land to make undue
monetary gain - Acquittal by the trial court on the ground that
prosecution failed to prove its case beyond reasonable doubt -
However, the High Court convicted and sentenced the accused for
the offence punishable u/ss. 302, 201, 404 and 419 - On appeal,
held: Death of the victim being homicidal stands proved by the post
mortem report - Prime witnesses as also other prosecution witnesses
testified that accused last seen in the company of the victim -
Recovery of dead body as also articles of the deceased on basis of
the voluntary statement of accused, and was also proved through
the prosecution witnesses - Articles sold by the accused were
recovered on the strength of the voluntary statement of the accused
- Plea that confession statement is to be discarded in its entirety
cannot be accepted - Also it cannot be said that the statement was
not being voluntary or it was recorded improperly - Thus, the
conclusion arrived at by the High Court is based on sound
appreciation of evidence and proper application of law - No
material irregularity in the judgment of the High Court - On reappreciation of entire evidence by the High Court in proper
perspective, it was rightly held that the accused alone committed
the murder of the victim and there being no other possible view
which could be considered as missing in the link of chain of
circumstances - Thus, the order passed by the High Court upheld -
Evidence Act 1872 - ss. 8, 25 and 27.
[2023] 4 S.C.R. 397
397
A
B
C
D
E
F
G
H
398
SUPREME COURT REPORTS
[2023] 4 S.C.R.
Evidence Act, 1827: s 27 - How much of information received
from accused may be proved - Held: Section 27 permits the
derivative use of custodial statement in the ordinary course of events
- There is no automatic presumption that the custodial statements
have been extracted through compulsion - In pursuance to a
voluntary statement made by the accused, a fact must be discovered
which was in the exclusive knowledge of the accused alone - In
such circumstances, that part of the voluntary statement which leads
to the discovery of a new fact which was only in the knowledge of
the accused would become admissible u/s.27 - Such statement should
have been voluntarily made and the facts stated therein should not
have been in the knowhow of others.
Code of Criminal Procedure, 1973: s. 378 - Appeal against
acquittal - Powers of appellate court - General principles - Stated.
Dismissing the appeal, the Court
HELD: 1.1 It would be open for the High Court to re-apprise
the evidence and conclusions drawn by the trial court and in the
case of the judgment of the trial court being perverse that is
contrary to the evidence on record, then in such circumstances
the High Court would be justified in interfering with the findings
of the trial court and/or reversing the finding of the trial court.
The appellate court may reverse the order of acquittal in the
exercise of its powers and there is no indication in the Code of
any limitation or restriction having placed on the High Court in
exercise of its power as an appellate court. No distinction can be
drawn as regards the power of the High Court in dealing with an
appeal, between an appeal from an order of acquittal and an appeal
from a conviction. The Code of Criminal Procedure does not place
any fetter on exercise of the power to review at large the evidence
upon which the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal should
be reversed. [Para 13][411-F; 412-B-D]
1.2. The circumstantial evidence relied upon by the State
to prove the circumstances which points to the guilt of the
accused alone for having committed the offence as summarized
by the High Court cannot be found fault with. [Para 15][413-H;
414-A]
A
B
C
D
E
F
G
H
399
1.3. The death of the victim being homicide stands proved
by virtue of the Post Mortem report. The said report would
indicate the death would have occurred 45-60 days prior to the
post-mortem examination. PW-22, doctor opined that the victim
had died due to brain hemorrhage that occurred because of
commuted fracture on the forehead. The irresistible conclusion
drawn by the High Court, death of the victim was homicidal cannot
be found fault with. [Para 16][414-B, D-E]
1.4. The submission for the accused that it is not possible
to state conclusively as to what had exactly happened, due to
lack of eye-witnesses and therefore the possibility of the deceased
having fallen and suffered an injury cannot be ruled out is an
argument which cannot be accepted and finding recorded by the
High Court deserves to be affirmed. [Para 16.1][414-E-F]
1.5. The fact that accused was last seen in the company of
the deceased is testified by PW-10 and PW-14. Apart from two
prime witnesses, PW-5, PW-7, PW-9, PW10, PW-11 and PW-15
also clearly and in unequivocal terms deposed that accused was
last seen in the house of the deceased after his death. Even if
one witness amongst these is to be believed as to what has been
deposed is the truth, necessarily the onus is on the accused to
provide a satisfactory explanation either in his statement recorded
under Section 313 Cr.P.C. or from the admissions elicited from
these witnesses, the circumstances in which he was in the
company of deceased. When PW-10 and PW-14 have clearly stated
that they had seen the accused in the company of the deceased,
and there being no satisfactory explanation offered by the accused
to the contrary, it has to be necessarily held that accused had
failed to discharge the burden cast upon him. When PW-10 and
PW-14 have in clear terms deposed to have last seen the accused
with the deceased, necessarily accused must offer an explanation
as to how and when he started living separately and there being
no explanation offered necessarily in the chain of circumstances,
the last seen theory propounded by the prosecution to drive home
the guilt of the accused requires to be accepted. [Para 16.5 and
16.6][416-G-H; 417-A; 418-B-C]
SIJU KURIAN v. STATE OF KARNATAKA
A
B
C
D
E
F
G
H
400
SUPREME COURT REPORTS
[2023] 4 S.C.R.
1.6. The prosecution relied upon is the recovery of dead
body at the instance of the accused, based on voluntary statement,
which statement has been disowned by the accused and the same
not having been proved by the prosecution according to the
accused. The said statement of the accused has been marked as
Ex.P-2 through PW-25. The said statement was recorded in the
presence of PW-1, CW-3 and interpreter - PW-10. [Para 17][418D-E]
1.7. Section 27 permits the derivative use of custodial
statement in the ordinary course of events. There is no automatic
presumption that the custodial statements have been extracted
through compulsion. A fact discovered is an information supplied
by the accused in his disclosure statement is a relevant fact and
that is only admissible in evidence if something new is discovered
or recovered at the instance of the accused which was not within
the knowledge of the police before recording the disclosure
statement of the accused. The statement of an accused recorded
while being in police custody can be split into its components
and can be separated from the admissible portions. Such of those
components or portions which were the immediate cause of the
discovery would be the legal evidence and the rest can be rejected
The submission by the accused that the confession statement is
to be discarded in its entirety cannot be accepted for reasons
more than one. Firstly, the conduct of the accused would also be
a relevant fact as indicated in Section 8. [Para 18][419-A-D]
1.8. It is a trite law that in pursuance to a voluntary
statement made by the accused, a fact must be discovered which
was in the exclusive knowledge of the accused alone. In such
circumstances, that part of the voluntary statement which leads
to the discovery of a new fact which was only in the knowledge of
the accused would become admissible under Section 27. Such
statement should have been voluntarily made and the facts stated
therein should not have been in the knowhow of others. When
the deposition of PW-10 is perused it would leave no manner of
doubt that statement of the accused having been recorded being
voluntary and when the statement is being recorded in the
language not known to the accused, the assistance of interpreter
A
B
C
D
E
F
G
H
401
if taken by the police cannot be found fault with. The ultimate
test of the said statement made by the accused having been noted
down as told by the accused or not would be of paramount
consideration. If the answer is in the affirmative then necessarily
said statement will have to be held as passing the test of law as
otherwise not. Merely because the translation was made from
Malayalam to Tamil and written down in Kannada would not
suggest that such statement be held to be either not being
voluntary or the said statement having been recorded improperly.
Merely because PW-10 did not know how to read and write
Malayalam does not ipso facto make the contents of the statement
to be disbelieved. On the other hand, he states that he is from
Kerala and he knows how to speak Malayalam. What was required
to be performed by him was to pose the question as stated by the
witness to the accused and the answers given to such questions
are to be stated to the police for being recorded as stated by the
accused. In fact, there is not even a suggestion made to PW-10
about the contents of the statement being incorrect. [Para 19][420B-H; 421-A]
1.9. It is no doubt true that confession of PW-25 in its
entirety is not admissible in view of Section 25 of the Evidence
Act. However, in the teeth of Section 8 read with Section 27 of
the Evidence Act, that part of the confession which led to the
recovery of the dead body of the victim would become admissible,
apart from other articles of the deceased recovered at the instance
of the accused has been identified by several witnesses
independently. This has also persuaded the High Court to accept
the statement recorded under Ex.P-2 as being admissible which
cannot be construed as highly improbable. Certain articles were
recovered on the strength of confession statement made by the
accused and in order to prove such recovery the witnesses have
been examined by the prosecution and this has also persuaded
the Court to accept the findings of the High Court. [Para 20][422G-H; 423-A-B]
1.10. The other surrounding circumstances which prove
the accused being guilty of the offence beyond reasonable doubt
are the recovery of the articles belonging to the deceased and
sold by the accused which were recovered on the strength of the
SIJU KURIAN v. STATE OF KARNATAKA
A
B
C
D
E
F
G
H
402
SUPREME COURT REPORTS
[2023] 4 S.C.R.
voluntary statement of accused. PW-5 clearly stated as to how
the accused intended to sell the immoveable property belonging
to the deceased. PW 5 has clearly deposed as to how the accused
was apprehended by the police when he was attempting to sell
the property of the deceased. That apart the statements made by
the accused that deceased had gone to Kerala or the deceased
had suffered a paralytic stroke or deceased had proceeded to
America and expired there are all incorrect and conflicting
statements as has been deposed by PW-5. The conclusion arrived
at by the High Court is based on sound appreciation of evidence
and proper application of law. On account of evidence available
on record having been ignored and there being patent perversity
in appreciation of evidence by the Sessions Judge it resulted in
interference by the High Court. No material irregularity has crept
in the judgment of the High Court calling for interference. On
re-appreciation of entire evidence by the High Court in proper
perspective it has resulted in arriving at a right conclusion viz.
that accused alone committed the murder of the deceased and
there being no other possible view which could be considered as
missing in the link of chain of circumstances, the appeal is devoid
of merits. The judgment passed by the High Court is upheld.
[Paras 21-23][428-G-H; 429-A-B, C-E]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Sheo Swarup v.
King Emperor AIR 1934 PC 227; Naresh Chandra Das
v. Emperor AIR 1942 (Cal) 593; Pohalya Motya Valvi
v. State of Maharashtra (1980) 1 SCC 530; Anvar P.V.
v. P.K. Basheer (2014) 10 SCC 473; Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC
1; State of Karnataka v. Suvarnamma (2015) 1 SCC
323 : [2014] 10 SCR 778; Pattu Rajan v State of Tamil
Nadu (2019) 4 SCC 771 : [2019] 5 SCR 535; State of
Rajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8
Suppl. SCR 501; A.N. Venkatesh & Ors. v. State of
Karnataka (2005) 7 SCC 714; Gamini Bala Koteswara
Rao v. State of Andhra Pradesh AIR 2010 SC 589 :
[2009] 14 SCR 1 - referred to.
A
B
C
D
E
F
G
H
403
Chandrappa and Others v. State of Karnataka (2007)
4 SCC 415 : [2007] 2 SCR 630; Murugesan v. State
through the Inspector of Police (2012) 10 SCC 383 :
[2012] 13 SCR 1; Mohmed Inayatullah v. State of
Maharashtra AIR 1976 SC 483 : [1976] 1 SCR 715 -
relied on.
Case Law Reference
[1985] 1 SCR 88
referred to
Para 8.2
[2007] 2 SCR 630
relied on
Para 8.2, 14
[2012] 13 SCR 1
relied on
Para 8.2, 12
(1980) 1 SCC 530
referred to
Para 8.2
(2014) 10 SCC 473
referred to
Para 8.2
(2020) 7 SCC 1
referred to
Para 8.2, 9
[2006] 8 Suppl. SCR 501
referred to
Para 9, 16.5
(2005) 7 SCC 714
referred to
Para 9, 18
[2014] 10 SCR 778
referred to
Para 9, 22
[2019] 5 SCR 535
referred to
Para 9, 22
[2009] 14 SCR 1
referred to
Para 9
[1976] 1 SCR 715
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
64 of 2021.
From the Judgment and Order dated 20.03.2020 of the High Court
of Karnataka at Bengaluru Bench in Criminal Appeal No. 335 of 2014.
Renjith B. Marar, Zulfiker Ali P. S., Ms. Lakshmi Sree P.,
Ms. Lebina Baby, Advs. for the Appellant.
V. N. Raghupathy, Adv. for the Respondent.
SIJU KURIAN v. STATE OF KARNATAKA
A
B
C
D
E
F
G
H
404
SUPREME COURT REPORTS
[2023] 4 S.C.R.
The Judgment of the Court was delivered by
ARAVIND KUMAR, J.
1. This appeal under Section 2(1)(a) of the Supreme Court
(Enlargement of Criminal AppellateJurisdiction) Act, 1970 by the sole
accused in Sessions Case No.96 of 2012 on the file of the Fast Track
Court, Sagar Taluk,arises from a judgment rendered by the High Court
of Karnataka in Criminal Appeal No.335 of 2014 filed by the State of
Karnataka against the judgment of the Fast Track Court reversing the
order of acquittal and convicting the appellant for the offence punishable
under Section 302 of the Indian Penal Code (for short 'the IPC'), 201 of
IPC, 404 of IPC and 419 of IPC and sentencing him to simple
imprisonment for life and also sentencing to undergo simple imprisonment
for a period of 3 years/2years for the respective offences which has
been ordered to run concurrently and also fine.
2. Brief facts of the case as putforth by the prosecution are:
accused was working as a labourer in the farmhouse of Mr. Jose Kafan
(deceased) in Kerodi village of Sagar Taluk (Karnataka State) and on
02.12.2011 between 6:00 am to 6:30 am, said accused had entered the
room of the deceased through the eastern side of the farmhouse while
he was sleeping there and murdered him by hitting with iron rod on his
face, upon his left eyebrow and on his left chin with force, then stole the
articles in the farmhouse and sold the same and also sold the land of said
farmhouse to others to make undue monetary gain. In order to conceal
the act and with a deliberate intention to destroy the evidence, the accused
then hid the dead body in a pit meant for storing ash manure in the
garden land located at a short distance from the farmhouse in the western
side of the farmhouse. The iron rod used for committing the murder,
waist belt of the deceased person, his pant, shirt were also concealed
below the upper crust of soil in the gardenafter which, he had sold
theequipmentsstolen from the farmhouseto Sunil Kumar (CW-18) for
consideration and likewise he had sold other items toMr. Denis C
Thomas(CW20). It was alleged that said amount released by way of
sale was dishonestly misappropriated by the accused. It is further alleged
by the prosecution that accused impersonating himself as the son of the
deceased person had also attempted to sell the land of the deceased to
others and to substantiate his false claims had also handed over the
documents of the farmhouse of the deceased to CW-15 Mr. Lizo and
thereafter he had absconded.
A
B
C
D
E
F
G
H
405
3. Mr. Sajid, son of the deceased lodged a missing complaint and
in the backdrop of information regarding the accused,inquiry was
conducted and accused confessed to the crime and showed where the
dead body was concealed in the presence of witnesses. Hence, the
prosecution alleged in this manner accused had murdered the father of
the complainant, sold the belongings of the deceased and handed over
the documents of the land owned by the deceased, proclaiming himself
to be the son of the deceased and had made attempts to sell the land
illegally to others. On completion of investigation the charge-sheet came
to be filed against the accused for the offences punishable under Sections
302, 201, 404 and 419 of IPC for committing a cognizable offence. Charge
came to be framed against the accused and same having been
deniedresulted in trial being held and in order to drive home the guilt of
the accused prosecution got examined 25 witnesses as PW-1 to PW-25
and got exhibited material evidence as per Ex.P-1 to P-51 and the material
objects as MO1 to MO47. On conclusion of prosecution evidence, the
statement of the accused person under Section 313 of Code of Criminal
Procedure, came to be recorded and accused pleaded not being guilty
and also reiterated his stand of being innocent.Learned Sessions Judge
after having heard the arguments on both the sides formulated six points/
issues of determination. The learned Trial Judge acquitted the accused
by arriving at a conclusion that prosecution had failed to prove its case
beyond reasonable doubt, by judgment dated 08.08.2013. State being
aggrieved by the same filed Criminal Appeal No.-335 of 2014 assailing
the said order of acquittal contending inter alia that Sessions Judge had
failed to appreciate the evidence and/or there is erroneous appreciation
of evidence and as such the accused had to be convicted.It was also
contended that though recoveries of the articles, namely, material object
was at the instance of the accused and the testimony of the witnesses
clearly supported the case of the prosecution, yet learned Sessions Judge
had erroneously disbelieved the case of the prosecution. It was also
canvassed that on account of non-consideration of the evidence of the
doctor PW-22 in proper perspective it had resulted in an erroneous order
of acquittal being passed by Sessions Court. On these amongst other
grounds as urged in the appeal memorandum the State sought for reversal
of the Order of acquittal passed by the Trial Court. After considering the
arguments advanced by the respective learned advocates appearing for
the prosecution as well as the accused the High Court reversed the
finding recorded by the Trial Court and convicted the accused for the
SIJU KURIAN v. STATE OF KARNATAKA
[ARAVIND KUMAR, J.]
A
B
C
D
E
F
G
H
406
SUPREME COURT REPORTS
[2023] 4 S.C.R.
offence punishable under Sections 302, 201, 404 and 419 of IPC and
sentenced him to life imprisonment as already noticed herein supra.Hence
this appeal.
4. We have heard the arguments of Shri. Renjith B.Mararlearned
counsel appearing for the appellant along with Mr. Zulfiker Ali P.S,
Ms. Lakshmi Sree P., Ms. Lebina Baby, Advocates for the appellant/
accused and Shri V.N.Raghupathy, learned standing counsel appearing
for the State.
5. It is the contention of Shri Renjith B. Marar,learned counsel
appearing for the appellant that there is no direct evidence attributable
to the role of the accused and High Court has based the order of conviction
on circumstantial evidence.He has contended that prosecution has not
been able to establish the chain of events on the basis of circumstantial
evidence, all leading to the one and only conclusion namely the guilt of
the accused. He would submit that convictionhas been based solely on
the basis of confessional statement alleged to have been given by the
appellant to the police in terms of Section 27 of the Evidence Act. The
said evidence is not reliable and ought not to have been accepted since
it was written in the Kannada Language which was not known to the
accused. He contended that according to the prosecution accused had
given a confessional statement at the police station in Malayalam in the
presence of PW-10 who translated the same to Kannada and undisputedly
PW-10 did not know how to write and read Kannada but was only able
to speak Kannada language and as such the translated version of
appellant's alleged confession to the police could not be acceptable
evidence. There being no evidence available on record as to the person
who had got it typed on a computer and who had taken the printout of
the same was itself sufficient to disbelieve the said statement and there
was no explanation forthcoming from prosecution. On these aspects as
rightly pointed out by the Trial Court,the High Court ought not to have
interfered with the well-reasoned order of acquittal passed by the Trial
Court.
6. He also drew the attention of this Court to the evidenceof PW10 by contending that he is a close friend of other prosecution witnesses
and his evidence ought not to have been considered. He would contend
that confessional statement of the accused was in a printed format and
this was not typed in the presence of the accused at the police station
and even according to the prosecution it was told by PW-10, written
A
B
C
D
E
F
G
H
407
down by the police and undisputedly the statement which was written
down was not produced and as such evidence of PW-10 could not have
been relied upon by the High Court to convict the accused.
7. He would further contend that complainant PW-4 who is the
son of the deceased had stated that his father had left home in Kerala
lastly on 29.11.2011 and he had called his father once on 28.12.2011 to
invite him to a family function which had been agreed but deceased did
not visit Kerala. He would contend that according to the prosecution the
deceased was murdered by the accused on 02.12.2011 as stated in the
alleged confession statement and as per the post-mortem report, death
had occurred 45 to 60 days prior to days of exhumation on 21.01.2012
and as such the story of the prosecution as attributed to the accused is
not believable and on account of the same it caused a serious doubt and
the lacuna that has crept in prosecution case has remained unexplained,
which was fatal to the prosecution story.
8. He would further contend that prosecution has mainly relied
upon 3 witnessesnamely PW-1 (mahazar witness), PW-2 (inquest
witness) and PW-10 (the person who translated the revelations of
accused) to prove the recovery of material objects (MO's) allegedly
stolen by the accused from the farmhouse of the deceased.By taking us
to the deposition of these witnesses he would contend that they are
close friends residing in neighbourhood and all these three witnesses
had witnessed the recoveries and attested the seizure measure and inquest
report and as such they have to be treated as stock witnesses brought in
at the instance of the prosecution and same ought to have been discarded
as not being trustworthy. He would also contend that story of the
prosecution is that accused was an employee in the farmhouse of the
deceased which had not been proved. He would submit that prosecution
had failed to prove the chain of circumstances including the last seen
theory. He would contend that very fact of accused having denied all
the allegations put against him when he was examined under Section
313 of Code of Criminal Procedure (for short 'the Cr.P.C.') including
the recovery of the dead body and other material objects at his instance
was sufficient to accept the stand of the accused by arriving at a
conclusion that prosecution had failed to prove the guilt of the accused
beyond reasonable doubt.
8.1 He would contend that the case of the accused was that when
he was brought to the spot by the police there were already some people
SIJU KURIAN v. STATE OF KARNATAKA
[ARAVIND KUMAR, J.]
A
B
C
D
E
F
G
H
408
SUPREME COURT REPORTS
[2023] 4 S.C.R.
standing exactly at the spot where the dead body was exhumed and
accused had not pointed out the spot to the police and the spot was
known to the police even before the arrest of the accused. Hence, High
Court ought not to have put the burden to disprove the prosecution case.
He would contend that the two employees who were working in the
farmhouse of the deceased were missing and there was no explanation
whatsoever forthcoming from the prosecution in this regard and this
cast a serious doubt with regard to the alleged act of the deceased. He
would contend that the CDR of the accused's mobile was not secured
and produced by way of evidence by prosecution which was fatal to the
prosecution case.
8.2 He would contend that the alleged confessional statement Ex.
P-2 is to be segregated into two parts: namely recovery of dead body
and articles and in which statement was undisputedly before the police
and as such inadmissible. He would also elaborate the submissions by
contending that when the findings of the trial court cannot be held as
perverse or not possible to be arrived at, necessarily the benefit should
be extended to the accused as held by catena of Judgments of this Court
and as such he has prayed for affirming the order of acquittal passed by
the Trial Court which has since been reversed by the High Court. He
would contend that on suspicion, conviction cannot be sustained and the
prosecution had failed to prove the guilt of the accused beyond all
reasonable doubt and by relying upon the following judgments he prays
for allowing of the appeal and restoring the judgment passed by the Trial
Court:
(i) Sharad Birdhichand Sarda v. State of Maharashtra(1984)
4 SCC 116,
(ii) Sheo Swarup v. King Emperor AIR 1934 PC 227,
(iii) Chandrappa and others v. State of Karnataka (2007) 4
SCC 415,
(iv) Murugesan v. State through the Inspector of Police (2012)
10 SCC 383,
(v) Naresh Chandra Das v. EmperorAIR 1942 (Cal) 593,
(vi) Pohalya Motya Valvi v. State of Maharashtra (1980) 1 SCC
530,
A
B
C
D
E
F
G
H
409
(vii) Anvar P.V. v P.K. Basheer(2014) 10 SCC 473,
(viii) Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal
(2020) 7 SCC 1.
Per contra Shri V. N. Raghupathy, learned standing counsel
appearing by the State would support the judgment passed by the High
Court. He would submit that when learned Sessions Judge had failed to
look into the evidence available before it or had erroneously appreciated
the available evidence it had resulted in appellate court exercising its
jurisdiction to reverse the said findings for which the reasonings have
been assigned while recording the findings. He would submit that on
reappreciation of the evidence the appellatecourt has formed an opinion
that there had been non-appreciation of available material on record and
has discussed the same threadbare.
9. He would submit that material witnesses namely the witnesses
to the seizure mahazar PW-3, PW-9, PW-11 had remained unshaken
and there being no explanation forthcoming in the statement of the
accused recorded under Section 313 of Cr.P.C.,the High Court has rightly
noticed that this material evidence had been ignored by the Trial Court
and on account of said uncontroverted evidence available on record it
has proceeded to accept the same and convict the accused which finding
does not suffer from the vice of error. He would draw the attention of
the court to the evidence of PW-5 who is the friend of the accused who
has spoken about the rubble tapping machines being sold to Mr. Babu
(PW-11) namely brother in law-Mr. Lijo(PW-5) under the agreement
prepared by the advocate PW-15. He would contend that said witness
has also spoken about Ex.P-15 under which MO23 to 32 had been seized
which are said to have been given by the accused, thus supporting the
case of the prosecution and by contending that the High Court has on
re-appreciation of evidence had rightly formed an opinion that the Trial
Court had ignored the material evidence and as such prays for sustaining
the judgment of the High Court which had reversed the finding of the
Trial Court whereby the accused had been acquitted. In support of his
submissions he has relied upon the following judgments:
(i) State of Rajasthan v Kashi Ram (2006) 12 SCC 254
(ii) A.N. Venkatesh & Ors. v State of Karnataka (2005) 7 SCC
714
SIJU KURIAN v. STATE OF KARNATAKA
[ARAVIND KUMAR, J.]
A
B
C
D
E
F
G
H
410
SUPREME COURT REPORTS
[2023] 4 S.C.R.
(iii) State of Karnataka v Suvarnamma (2015) 1 SCC 323
(iv) Pattu Rajan v State of Tamil Nadu (2019) 4 SCC 771.
(v) Arjun Panditrao Kotkar v Kailash (2020) 7 SCC 1.
10. Having heard the learned Advocates appearing for the parties
and after bestowing our careful and anxious consideration to the rival
contentions raised at the bar, we are of the considered view that the
following points could arise for our consideration:
(a) Whether the judgment of the High Court reversing the finding
of the Trial Court is to be set aside on the basis of there being two
possible views and the one taken by Trial Court being a possible
view?
(b) Whether the judgment of the High Court is erroneous and the
findings recorded by the Trial Court has been erroneously reversed
by High Court while re-appreciating the said evidence?
Or
(c) Whether the High Court has appreciated the evidence in proper
manner or the High Court had failed to consider the evidence in
proper perspective?
DISCUSSION AND FINDING
11. As the points formulated hereinabove are interlinked and
findings being recorded are likely to overlap with each other, we have
considered the above points conjointly and answered hereinbelow:
RE: POINTS 1 TO 3
12. One of the main contentions raised by the learned counsel
appearing for the appellant is to the effect that High Court ought not to
have interdicted with the judgment of the acquittal passed by the Trial
Court and only in the event of judgment of the trial court was riddledwith
perversity and the view taken by the Trial Court was not a possible view,
same could have been reversed by relying upon the judgment of this
Court in case of Murugesan V. State through the inspector of police1
whereunder it came to be held as follows:
"33. The expressions "erroneous", "wrong" and "possible" are
defined in Oxford English Dictionary in the following terms:
1(2012) 10 SCC 383
A
B
C
D
E
F
G
H
411
"erroneous.- wrong; incorrect.
wrong.-(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.
possible.-(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable."
34. It will be necessary for us to emphasize that a possible view
denotes an opinion which can exist or be formed irrespective of
the correctness or otherwise of such an opinion. A view taken by
a court lower in the hierarchical structure may be termed as
erroneous or wrong by a superior court upon a mere disagreement.
But such a conclusion of the higher court would not take the view
rendered by the subordinate court outside the arena of a possible
view. The correctness or otherwise of any conclusion reached by
a court has to be tested on the basis of what the superior judicial
authority perceives to be the correct conclusion. A possible view,
on the other hand, denotes a conclusion which can reasonably be
arrived at regardless of the fact where it is agreed upon or not by
the higher court. The fundamental distinction between the two
situations have to be kept in mind. So long as the view taken by
the trial court can be reasonably formed, regardless of whether
the High Court agrees with the same or not, the view taken by the
trial court cannot be interdicted and that of the High Court
supplanted over and above the view of the trial court."
13. It need not be restated that it would be open for the High
Court to re-apprise the evidence and conclusions drawn by the Trial
Court and in the case of the judgment of the trial court being perverse
that is contrary to the evidence on record, then in such circumstances
the High Court would be justified in interfering with the findings of the
Trial Court and/or reversing the finding of the Trial Court. In Gamini
Bala Koteswara Rao Vs. State of Andhra Pradesh2 it has been held
by this Court as under:
"14. We have considered the arguments advanced and heard the
matter at great length. It is true, as contended by Mr. Rao, that
interference in an appeal against an acquittal recorded by the trial
court should be rare and in exceptional circumstances. It is,
2 AIR 2010 SC 589
SIJU KURIAN v. STATE OF KARNATAKA
[ARAVIND KUMAR, J.]
A
B
C
D
E
F
G
H
412
SUPREME COURT REPORTS
[2023] 4 S.C.R.
however, well settled by now that it is open to the High Court to
reappraise the evidence and conclusions drawn by the trial court
but only in a case when the judgment of the trial court is stated to
be perverse. The word "perverse" in terms as understood in law
has been defined to mean "against the weight of evidence". We
have to see accordingly as to whether the judgment of the trial
court which has been found perverse by the High Court was in
fact so.
The Appellate court may reverse the order of acquittal in the
exercise of its powers and there is no indication in the Code of any
limitation or restriction having placed on the High Court in exercise of its
power as an Appellate court. No distinction can be drawn as regards the
power of the High Court in dealing with an appeal, between an appeal
from an order of acquittal and an appeal from a conviction. The Code of
Criminal Procedure does not place any fetter on exercise of the power
to review at large the evidence upon which the order of acquittal was
founded, and to reach the conclusion that upon that evidence the order
of acquittal should be reversed.
In the case of Sheo Swarup v King Emperor3, it has been held
by the Privy Council as under:
But in exercising the power conferred by the Code and
before reaching its conclusions upon fact, the High Court should
and will always give proper weight and consideration to such
matters as:
1) The views/opinion of the trial judge as to the credibility of the
witnesses;
2) The presumption of innocence infavour of the accused;
3) The right of the accused to the benefit of any doubt; and
4) The slowness of an appellatecourt in disturbing a finding of
fact arrived at by a judge who had the advantage of seeing the
witnesses.
14. This Court has time and again reiterated the powers of the
Appellate Court while dealing with the appeal against an order of acquittal
3 AIR 1934 PC 227
A
B
C
D
E
F
G
H
413
and laid down the general principles in the matter of Chandrappa and
Others Vs. State of Karnataka4 to the following effect:
"42. From the above decisions, in our considered view, the
following general principles regarding powers of the Appellate
court while dealing with an appeal against an order of acquittal
emerge:
(1) An Appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an Appellate
court on the evidence before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling
reasons", "good and sufficient grounds", "very strong
circumstances", "distorted conclusions", "glaring mistakes", etc.
are not intended to curtail extensive powers of an Appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the reluctance of
an Appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An Appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved guilty
by a competent court of law. Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the Appellate court should not disturb
the finding of acquittal recorded by the trial court."
15. In the aforesaid background the circumstantial evidence relied
upon by the State to prove the circumstances which points to the guilt of
4 (2007) 4 SCC 415
SIJU KURIAN v. STATE OF KARNATAKA
[ARAVIND KUMAR, J.]
A
B
C
D
E
F
G
H
414
SUPREME COURT REPORTS
[2023] 4 S.C.R.
the accused alone for having committed the offence as summarized by
the High Court cannot be found fault with, for reasons indicated
hereinbelow:
16. The death of Mr. Jose C Kafan being homicide stands proved
by virtue of the Post Mortem report Ex.P-41 which was conducted on
21.01.2012. The said report would indicate the death would have occurred
45-60 days prior to the post-mortem examination. PW-22, the Doctor
who conducted the post-mortem of the dead body, Doctor Keertiraj in
his examination in chief held on 26.03.2013 has opined thus:
"A lacerated wound on left eyebrow measuring 2 inches (length)
X 2 1⁄2 inches (width) was found and the edges of the said wound
was found to be lacerated. There was commuted fracture on
frontal bone that comes under the said wound. Below the left eye
i.e., in the maxilla bone part, swollen wound was found that means
some blood clotting mark was found measuring 2 1⁄2 inches (length)
X 1 1⁄2 inches (width)."
PW-22 has opined that Mr. Jose Kafan had died due to brain
hemorrhage that occurred because of commuted fracture on the
forehead. In that view of the matter and also there being no serious
dispute on this issue,the irresistible conclusion drawn by the High Court,
death of Mr. Jose Kafan was by homicidal cannot be found fault with.
16.1 The contention of the learned counsel for the accused that it
is not possible to state conclusively as to what had exactly happened,
due to lack of eye-witnesses and therefore the possibility of the deceased
having fallen and suffered an injury cannot be ruled out is an argument
which cannot be accepted and finding recorded by the High Court
deserves to be affirmed.
16.2 One another circumstance in the chain which came to be
relied upon by the prosecution is with regard to the "last scene theory".The
case of the prosecution is that deceased Mr. Jose Kafan was living in
his garden land at Kerodi village and was carrying on agricultural activities
in survey No.48 and 49.