BOBY vs. STATE OF KERALA

Full Judgment Text

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1439 OF 2009 BOBY ...APPELLANT(S) VERSUS STATE OF KERALA ...RESPONDENT(S) J U D G M E N T B.R. GAVAI, J. th This appeal challenges the judgement and order dated 25 1. August 2008, passed by the learned Division Bench of the High Court of Kerala at Ernakulam (hereinafter referred to as “the High Court”) in Criminal Appeal Nos. 326, 230 and 847 of 2005 thereby dismissing the appeals filed by Shibu @ Shibu Singh (accused No. 1) and Boby (accused No. 3/appellant herein), thereby upholding the judgment of conviction and sentence th dated 18 December 2004, passed by the Additional Sessions 1 Judge, Fast Track Court–II (Adhoc Court), Thrissur (hereinafter referred to as “the trial court”) in Sessions Case No. 208 of 2003 in respect of the said accused persons. Vide the same impugned judgment, the High Court, however, allowed the appeal filed by Biju @ Babi (accused No. 2) and acquitted him from all the offences charged with. 2. Shorn of details, the facts leading to the present appeal are as under: st On 21 November, 2000, Leela w/o Vishwanathan 2.1 (Complainant/PW1) made a statement before the Police Station, Anthikkadu, Dist. Thrissur, wherein she alleged that Shibu @ Shibu Singh (accused No. 1), the younger brother of her husband, Vishwanathan (deceased), was a convict who was then undergoing imprisonment as he was involved in many theft cases wherein stolen articles from the said thefts were disposed of by her husband. 2.2 It is the case of the complainant that Shibu @ Shibu Singh (accused No. 1) had escaped from the prison and was absconding. Due to the fear that Vishwanathan (deceased) 2 would disclose to the police about his escape from jail, Shibu @ Shibu Singh (accused No. 1) along with other accused persons, namely, accused No. 2 to accused No. 7 came in a jeep to the house of Vishwanathan (deceased) on 20.11.2000 at 08.00 p.m. The accused persons then held Vishwanathan (deceased) at knife point, forcefully poured liquor into his mouth and compelled him to drink till he was left unconscious. When Leela (Complainant/PW1) tried to interfere, she sustained injuries on her palm due to the knife carried by the accused persons with which they attempted to inflict blows on her. Thereafter, Leela (Complainant/PW1) along with her husband were blindfolded and taken in a jeep. After covering a distance of about 30 kms., the Complainant/PW1 was dropped at Poomala, which was her native place. When she managed to reach her house with the help of a local named Baiju from the said village, she informed her brother Babu (P.W.6) about the aforesaid incident, who attempted to search for Vishwanathan st (deceased) during the said night. Next day, i.e., on 21 November 2000, Leela (Complainant/PW1) along with Babu 3 (PW6) lodged her statement (Ext. P1) at the Police Station Anthikkadu, Dist. Thrissur. Based on the contents of the aforesaid complaint, a First Information Report (Ext. P19) (for short, “FIR”) came to be registered against the aforementioned accused persons along with other unknown persons for offences punishable under Section 395 and 365 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). 2.3 Boby (accused No. 3/appellant herein) was arrested by the th Police on 25 November 2000. Based on his disclosure statement (Ext. P23), the dead body of Vishwanathan, which was buried at Pattithara on the banks of river Bharathapuzha, was recovered. Additionally, stolen goods were also recovered from the house of accused No. 3 and were marked as Ext. P14. Shibu @ Shibu Singh (accused No. 1) and Biju @ Babu th (accused No. 2) were arrested on 28 November 2000 from a lodge at Guruvayoor by the Guruvayoor Police. Subsequently, nd they were handed over to the Anthikkadu Police on 2 December 2000. Based on the disclosure statement of Shibu @ Shibu Singh (accused No. 1), the spade with which the 4 deceased’s burial spot was dug was recovered near the site where the body was exhumed from, concealed in a plastic bag. 2.4 At the conclusion of investigation, a chargesheet came to be filed before the Judicial Magistrate First Class, Court–II, Thrissur, who committed the case to the Sessions Court, Thrissur for trial. 2.5 Charges came to be framed by the trial court for the offences punishable under Sections 395, 364, 365, 380 and 302 read with Section 34 of the IPC. 2.6 All the accused persons pleaded not guilty and claimed to be tried. The prosecution examined 33 witnesses to bring home the guilt of the accused persons. The prosecution also placed on record 14 Material Objects which were marked as M.O. 1 to M.O. 14. During the crossexamination from the defence side, Sekharan (DW1), father of the deceased was examined. The accused persons were questioned under Section 313 of the Criminal Procedure Code, 1973 (for short, “the Cr.P.C.”) wherein they denied the circumstances that appeared against them in evidence which were put to them. At the conclusion of 5 trial, the learned trial court found Shibu @ Shibu Singh (accused No. 1), Biju @ Babu (accused No. 2) and Boby (accused No. 3/appellant herein) guilty of the offences charged with and accordingly sentenced them to undergo life imprisonment for the offence punishable under Section 302 read with Section 34 IPC. It further directed them to undergo rigorous imprisonment for different periods for the offences punishable under Sections 364, 395, and 201 read with Section 34 of the IPC. The sentences were directed to run concurrently. 2.7 Being aggrieved thereby, accused Nos. 1 to 3 preferred their respective appeals before the High Court. The High Court, by the impugned judgement, dismissed the appeals preferred by Shibu @ Shibu Singh (accused No. 1) and Boby (accused No. 3/appellant herein), but was pleased to allow the appeal preferred by Biju @ Babu (accused No. 2), thereby setting aside the judgment of conviction and sentence of the trial court insofar as Biju @ Babu (accused No. 2) was concerned. 3. Being aggrieved thereby, the present appeal. 6 4. We have heard Shri R. Basant, learned Senior Counsel appearing on behalf of the appellant–Boby and Shri K.N. Balgopal, learned Senior Counsel appearing on behalf of the respondent–State of Kerala. 5. Shri Basant, learned Senior Counsel would submit that both the trial court and the High Court have erred in convicting and sentencing the appellant–Boby for the offences punishable under Sections 395, 365, 364, 201, 380, 302 and 302 read with Section 34 of the IPC. He submitted that the prosecution has failed to prove its case against the appellant–Boby beyond reasonable doubt and that there are glaring lacunae in the case of the prosecution. It is submitted that even the High Court found that there were discrepancies in the statements of the prosecution witnesses who were examined during the trial. It is further submitted that the High Court also observed the glaring discrepancies in the statement of the Complainant/PW1 with regard to Biju @ Babu (accused No. 2) on the basis of which, the High Court acquitted the said accused Biju @ Babu (accused No. 2) of all the charges levelled against him. 7 6. Shri Basant submitted that a Memorandum under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as “the Evidence Act”) is required in cases of recovery initiated at the instance of an accused person, based on the statements made before the Police. It is submitted that, on perusal of evidence on record in the instant matter, neither such Memorandum under Section 27 of the Evidence Act was prepared at the time of the recovery of the body of deceased Vishwanathan, nor were signatures of independent or panch witnesses taken at the time of said recovery. It is further submitted that it was the duty of the Investigating Officer (for short, ‘IO’) to have prepared the said Memorandum while acting on the information obtained from Boby (appellant herein) and that such inaction on part of the IO would vitiate the prosecution case, at least insofar as proving the recovery of the dead body of the deceased is concerned. 7. Shri Basant submitted that the trial court solely relied on the last seen theory and held that the prosecution had proved the same with regard to the chain of circumstances in this 8 case. It is further submitted that conviction of an accused person cannot be sustained only on the basis of proving the last seen theory as the same was required to be corroborated with the statements of the witnesses that are examined during trial along with other evidence placed on record. While pointing out the discrepancies in the statements of prosecution witnesses, which were relied upon by the courts below, it was submitted that the conviction of the appellant herein could not be sustained on the said ground alone. 8. Shri Balgopal, on the contrary, submits that the courts below have concurrently found the accused persons guilty of the offences charged with. The prosecution has proved the incriminating circumstances beyond reasonable doubt. It has also proved the chain of circumstances which leads to no other conclusion than the guilt of the accused. He relies on the judgment of this Court in the case of Suresh Chandra Bahri 1 v. State of Bihar . 1 1995 Supp. (1) SCC 80 9 9. Undisputedly, the present case rests entirely on circumstantial evidence. A threeJudges Bench of this Court in the case of Sharad Birdhichand Sarda v. State of 2 Maharashtra , has laid down the golden principles with regard to conviction in a case which rests entirely on circumstantial evidence. We may gainfully refer to the following observations of this Court in the said case:

“153. A close analysis of this decision would show<br>that the following conditions must be fulfilled before<br>a case against an accused can be said to be fully<br>established:
	(1) the circumstances from which the<br>conclusion of guilt is to be drawn should<br>be fully established.
It may be noted here that this Court indicated that<br>the circumstances concerned “must or should” and<br>not “may be” established. There is not only a<br>grammatical but a legal distinction between “may be<br>proved” and “must be or should be proved” as was<br>held by this Court in Shivaji Sahabrao<br>Bobade v. State of Maharashtra [(1973) 2 SCC 793 :<br>1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the<br>observations were made: [SCC para 19, p. 807: SCC<br>(Cri) p. 1047]
	“Certainly, it is a primary principle that<br>the accused must be and not<br>merely may be guilty before a court can<br>convict and the mental distance between<br>‘may be’ and ‘must be’ is long and divides

2 (1984) 4 SCC 116 10

	vague conjectures from sure<br>conclusions.”
	(2) the facts so established should be<br>consistent only with the hypothesis of the<br>guilt of the accused, that is to say, they<br>should not be explainable on any other<br>hypothesis except that the accused is<br>guilty,
	(3) the circumstances should be of a<br>conclusive nature and tendency,
	(4) they should exclude every possible<br>hypothesis except the one to be proved,<br>and
	(5) there must be a chain of evidence so<br>complete as not to leave any reasonable<br>ground for the conclusion consistent with<br>the innocence of the accused and must<br>show that in all human probability the<br>act must have been done by the<br>accused.”

10. It can thus clearly be seen that it is necessary for the<br>prosecution that the circumstances from which the conclusion<br>of the guilt is to be drawn should be fully established. The<br>Court holds that it is a primary principle that the accused ‘must<br>be’ and not merely ‘may be’ guilty before a court can convict the<br>accused. It has been held that there is not only a grammatical<br>but a legal distinction between ‘may be proved’ and “must be or<br>should be proved”. It has been held that the facts so

established should be consistent only with the guilt of the<br>accused, that is to say, they should not be explainable on any<br>other hypothesis except that the accused is guilty. It has<br>further been held that the circumstances should be such that<br>they exclude every possible hypothesis except the one to be<br>proved. It has been held that there must be a chain of evidence<br>so complete as not to leave any reasonable ground for the<br>conclusion consistent with the innocence of the accused and<br>must show that in all human probabilities the act must have<br>been done by the accused.
11. In the light of these guiding principles, we have to examine<br>the present case.
12. The trial court has relied on the following circumstances:
	(i) Last seen together with the deceased;
	(ii) Recovery of the stolen material including jewellery from<br>accused No.3Boby;
	(iii) Recovery of spade from accused No. 1Shibu @ Shibu<br>Singh;
	(iv) Recovery of the dead body at the instance of accused<br>No. 3Boby;


13. The trial court had convicted accused Nos. 1 to 3 upon<br>finding that the prosecution had proved the aforesaid<br>circumstances against them. In appeal, the High Court found<br>that the prosecution had failed to prove the case against Biju @<br>Babi (accused No. 2) and accordingly acquitted him.
14. The learned Division Bench of the High Court, though<br>found that the prosecution had failed to prove the case beyond<br>reasonable doubt insofar as accused No.2 was concerned, held<br>that, insofar as accused Nos. 1 and 3 were concerned, the<br>prosecution had proved the case beyond reasonable doubt.
15. It could thus be seen that the trial court as well as the<br>High Court found the circumstance of the accused persons<br>having been last seen in the company of the deceased on the<br>basis of the evidence of PW1, as the main incriminating<br>circumstance. The High Court further found that, insofar as<br>Boby (accused No.3/appellant herein) was concerned, there was<br>an additional evidence with regard to the recovery of the dead<br>body and ornaments. Insofar as Shibu @ Shibu Singh (accused

No. 1) was concerned, the High Court found that the recovery of<br>spade which was used to dig the burial site where the dead<br>body was concealed, was an additional circumstance which<br>proved the guilt of Shibu @ Shibu Singh (accused No. 1).
16. Insofar as last seen theory is concerned, it will be relevant<br>to refer to the following observations of this Court in the case of<br>State of U.P. v. Satish3:

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

17. It could thus clearly be seen that the lastseen theory	It could thus clearly be seen that the lastseen theory
comes into play where the timegap between the point of time

3 (2005) 3 SCC 114 14

when the accused and the deceased were last seen alive and

when the deceased is found dead is so small that possibility of

any person other than the accused being the author of the

crime becomes impossible. If the gap between the time of last

seen and the deceased found dead is long, then the possibility
of other person coming in between cannot be ruled out.
of other person coming in between cannot be ruled out.
18. In the present case, according to the complainant/PW1,
the deceased was taken away by the accused persons on the

night of 20			th	November 2000 at 08.00 p.m. Though, it is the

contention of the appellant that he was taken into illegal

custody on 21					st	November, 2000 and his arrest was shown on

25	th	November, 2000, we do not find it necessary to go into that

aspect of the matter. A perusal of the evidence of the IO would

reveal that, on 25							th	November, 2000, on the basis of secret

information that Boby (accused No.3/appellant herein) was

standing at Manaloor Kadavu, he proceeded to that place and

arrested him at 02.00 p.m. He stated that, on the basis of his

confession, various articles were seized from his house. He

further stated that thereafter on the same day, the accused led

them towards the place in Bharathapuzha where the deceased

was buried. He stated that, after seeing the loose soil, the scene

was guarded as it was an odd time. He further stated that, on

26	th	November 2000, as led by accused No. 3, they reached the

place and the Tahasildar, Ottapalam prepared the inquest
report.
report.
19. It can thus clearly be seen that firstly, there is a gap of at
least five days from the date on which, according to PW1, the

deceased was taken away by the accused persons and the dead

body was recovered. However, the crucial question would be as

to whether it can be held that the prosecution had established

beyond reasonable doubt that the recovery of dead body was at

the instance of Boby (accused No. 3/appellant herein). Only in

the event the prosecution establishes that the recovery of the

body was at the instance of Boby (accused No. 3/appellant
herein), the relevancy of the gap of five days would come.
herein), the relevancy of the gap of five days would come.
20. As early as 1946, the Privy Council had considered the
provisions of Section 27 of the Evidence Act in the case of

16 4 Pulukuri Kotayya and Others v. KingEmperor . It will be

relevant to refer to the following observations of the Privy
Council in the said case:
Council in the said case:

	“The second question, which involves the
	construction of s. 27 of the Indian Evidence Act, will
	now be considered. That section and the two
	preceding sections, with which it must be read, are
	in these terms. [His Lordship read ss. 25, 26 and 27
	of the Evidence Act and continued : ] Section 27,
	which is not artistically worded, provides an
	exception to the prohibition imposed by the
	preceding section, and enables certain statements
	made by a person in police custody to be proved.
	The condition necessary to bring the section into
	operation is that the discovery of a fact in
	consequence of information received from a person
	accused of any offence in the custody of a police
	officer must be deposed to, and there upon so much
	of the information as relates distinctly to the fact
	thereby discovered may be proved. The section
	seems to be based on the view that if a fact is
	actually discovered in consequence of information
	given, some guarantee is afforded thereby that the
	information was true, and accordingly can be safely
	allowed to be given in evidence; but clearly the
	extent of the information admissible must depend
	on the exact nature of the fact discovered to which
	such information is required to relate. Normally the
	section is brought into operation when a person in
	police custody produces from some place of
	concealment some object, such as a dead body, a
	weapon or ornaments, said to be connected with the
	crime of which the informant is accused. Mr. Megaw
	for the Crown, has argued that in such a case the

4 1946 SCC OnLine PC 47 17

“fact discovered” is the physical object produced,
and that any information which relates distinctly to
that object can be proved. On this view information
given by a person that the body produced is that of
a person murdered by him, that the weapon
produced is the one used by him in the commission
of a murder, or that the ornaments produced were
stolen in a dacoity, would all be admissible. If this
be the effect of s. 27, little substance would remain
in the ban imposed by the two preceding sections
on confessions made to the police, or by persons in
police custody. That ban was presumably inspired
by the fear of the legislature		that a person under
police influence might be induced to confess by the
exercise of undue pressure. But if all that is
required to lift the ban be the inclusion in the
confession of information relating to an object
subsequently produced, it seems reasonable to
suppose that the persuasive powers of the police
will prove equal to the occasion, and that in practice
the ban will lose its effect.	On normal principles of
construction their Lordships think that the
proviso to s. 26, added by s. 27, should not be
held to nullify the substance of the section. In
their Lordships' view it is fallacious to treat the
“fact discovered” within the section as
equivalent to the object produced; the fact
discovered embraces the place from which the
object is produced and the knowledge of the
accused as to this, and the information given
must relate distinctly to this fact.			Information
as to past user, or the past history, of the
object produced is not related to its discovery in
the setting in which it is discovered.				Information
supplied by a person in custody that “I will produce
a knife concealed in the roof of my house” does not
lead to the discovery of a knife; knives were

	discovered many years ago. It leads to the discovery
	of the fact that a knife is concealed in the house of
	the informant to his knowledge, and if the knife is
	proved to have been used in the commission of the
	offence, the fact discovered is very relevant. But if to
	the statement the words be added “with which I
	stabbed A.”, these words are inadmissible since they
	do not relate to the discovery of the knife in the
	house of the informant.”
		[	Emphasis supplied	]

21. It could thus be seen that Section 27 of the Evidence Act
requires that the fact discovered embraces the place from which

the object is produced and the knowledge of the accused as to

this, and the information given must relate distinctly to the said

fact. The information as to past user, or the past history, of the

object produced is not related to its discovery. The said view

has been consistently followed by this Court in a catena of
cases.
cases.
22. This Court, in the case of Chandran v. The State of<br>Tamil Nadu5, had an occasion to consider the evidence of
recovery of incriminating articles in the absence of record of the

statement of accused No. 1. In the said case also, no statement

of accused No. 1 was recorded under Section 27 of the Evidence

This Court, in the case of	Chandran v. The State of

5 (1978) 4 SCC 90 19

Act leading to the recovery of jewels. The Court found that the

Sessions Judge as well as the High Court had erred in holding

that the jewels were recovered at the instance of accused No. 1

therein in pursuance to the confessional statement (Ex. P27)

recorded before PW34 therein. It will be relevant to refer to the
following observations of this Court in the said case:
following observations of this Court in the said case:

	“	36.	……Thus the fact remains that no confessional
	statement of A1 causing the recovery of these
	jewels was proved under Section 27, Evidence
	Act…..”

23.	It is thus clear that this Court refused to rely on the

recovery of jewels since no confessional statement of the
accused was proved under Section 27 of the Evidence Act.
accused was proved under Section 27 of the Evidence Act.

24.	It will also be relevant to refer to the following observations

of this Court in the case of				State of Karnataka v. David
Rozario and Another6:
Rozario and Another

“	5.	……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 to discovery. Thus,

6 (2002) 7 SCC 728 20

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 is founded on
the principle that if any fact is discovered as a
search made on the strength of any information
obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the
prisoner is true. The information might be
confessional or noninculpatory 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 a fact
envisaged in the section. Decision of the Privy
Council in		Pulukuri Kottaya			v.	Emperor			[AIR 1947
PC 67 : 48 Cri LJ 533 : 74 IA 65] is the mostquoted
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 of Maharashtra					v.	Damu		[(2000) 6
SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ
2301] .…..”

[	Emphasis supplied	]

21 25. A threeJudges Bench of this Court recently in the case of 7 , has observed thus: Subramanya v. State of Karnataka

“82. Keeping in mind the aforesaid evidence, we<br>proceed to consider whether the prosecution has<br>been able to prove and establish the discoveries in<br>accordance with law. Section 27 of the Evidence Act<br>reads thus:
“27. How much of information received from<br>accused may be proved.—
	Provided that, when any fact is deposed<br>to as discovered in consequence of<br>information received from a person<br>accused of any offence, in the custody of a<br>police officer, so much of such information,<br>whether it amounts to a confession or not,<br>as relates distinctly to the fact thereby<br>discovered, may be proved.”
83. The first and the basic infirmity in the evidence<br>of all the aforesaid prosecution witnesses is that<br>none of them have deposed the exact statement said<br>to have been made by the appellant herein which<br>ultimately led to the discovery of a fact relevant<br>under Section 27 of the Evidence Act.
84. If, it is say of the investigating officer that the<br>accused appellant while in custody on his own free<br>will and volition made a statement that he would<br>lead to the place where he had hidden the weapon<br>of offence, the site of burial of the dead body,<br>clothes etc., then the first thing that the<br>investigating officer should have done was to call for<br>two independent witnesses at the police station<br>itself. Once the two independent witnesses would

7 2022 SCC OnLine SC 1400 22 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 (panchwitnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the 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 the 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 blood stained 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.” 23 26. This Court has elaborately considered as to how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama being in accordance with the aforesaid requirement, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein). 27. Another circumstance on which the High Court relied was that the recovery of ornaments was at the instance of Boby (accused No. 3/appellant herein). We find that both the trial court and the High Court have patently erred in relying on such recovery. The trial court found that there was enough material to show that the alleged recovery memo was a fabricated document and the alleged recovery as per Ext. P14 is farce. However, the trial court still relied on the said recovery to convict the accused. In our view, the finding of the trial court 24 in this regard is totally perverse which has been confirmed by the High Court. Insofar as Shibu @ Shibu Singh (accused No. 1) is 28. concerned, the additional circumstance sought to be relied on by the trial court and the High Court is the alleged recovery of the spade. It is to be noted that the spade was also recovered from the same place from where the dead body of the deceased was alleged to have been recovered at the instance of Boby (accused No. 3/appellant herein). The trial court again held that the place from where the spade was recovered was already known from the disclosure statement of Boby (accused No. 3/appellant herein); however, it still held the recovery of the said spade to be admissible in evidence. It is thus clear that the said recovery was from a place which was already known and not exclusively within the knowledge of Shibu @ Shibu Singh (accused No. 1) . We find that the trial court has again committed perversity in arriving at such a finding. 29. It is thus clear that the only circumstance that now remains is the circumstance of the accused last seen in the 25 company of the deceased on the basis of the evidence of PW1. In that view of the matter, we find that, solely on the basis of last seen theory, the conviction could not have been recorded. The prosecution has utterly failed to prove that the recovery of the dead body of the deceased was at the instance of Boby (accused No. 3/appellant herein). The recovery of the articles from the house of Boby (accused No. 3/appellant herein), even according to the trial court, is farce and fabricated. The recovery of the spade at the instance of Shibu @ Shibu Singh (accused No. 1) is from a place which, even according to the trial court, was also known on account of the disclosure statement made by Boby (accused No. 3/appellant herein). 30. In that view of the matter, we find that the prosecution has utterly failed to prove the chain of incriminating circumstances which leads to no other conclusion than the guilt of the accused. 31. Insofar as the reliance placed by Shri Balgopal, learned Senior Counsel on the case of (supra) Suresh Chandra Bahri 26

is concerned, it is totally misplaced inasmuch as in paragraph<br>40, this Court has observed thus:

	“	40.	…….Before we discuss the merits or demerits
	of the aforesaid submissions we would like to state
	that the law relating to conviction based on
	circumstantial evidence is well settled and it hardly
	requires a detailed discussion on this aspect.
	Suffice to say that in a case of murder in which the
	evidence that is available is only circumstantial in
	nature then in that event the facts and
	circumstances from which the conclusion of guilt is
	required to be drawn by the prosecution must be
	fully established beyond all reasonable doubt and
	the facts and circumstances so established should
	not only be consistent with the guilt of the accused
	but they also must entirely be incompatible with the
	innocence of the accused and must exclude every
	reasonable hypothesis consistent with his
	innocence.”


32. It will further be relevant to refer to the following<br>observations of this Court in the said case:
	“71. ……The provisions of Section 27 of the<br>Evidence Act are based on the view that if a fact is<br>actually discovered in consequence of information<br>given, some guarantee is afforded thereby that the<br>information was true and consequently the said<br>information can safely be allowed to be given in<br>evidence because if such an information is further<br>fortified and confirmed by the discovery of articles<br>or the instrument of crime and which leads to the

	belief that the information about the confession<br>made as to the articles of crime cannot be false…..”


33. A perusal of paragraph 71 of the said judgment would<br>reveal that the Court has reiterated that the two essential<br>requirements for the application of Section 27 of the Evidence<br>Act are that (1) the person giving information must be an<br>accused of any offence and (2) he must also be in police<br>custody. The Court held that the provisions of Section 27 of the<br>Evidence Act are based on the view that if a fact is actually<br>discovered in consequence of information given, some guarantee<br>is afforded thereby that the information was true and<br>consequently the said information can safely be allowed to be<br>given in evidence.
34. In the facts of the said case, the Court found that there<br>was, in fact, a confessional statement of the disclosure made by<br>the appellant Gurbachan Singh which was confirmed by the<br>recovery of the incriminating articles. As such, the Court<br>believed the disclosure statement and the evidence led in that

28 behalf. As already stated hereinabove, in the present case, there is no confessional statement of Boby (accused No.3/appellant herein) recorded with regard to recovery of the dead body of the deceased. 35. In the result, the appeal is allowed. th 36. The judgment dated 18 December 2004 passed by the trial Court, thereby convicting the appellant under Sections 395, 365, 364, 201, 380, 302 read with Section 34 of the IPC th and the impugned judgment dated 25 August 2008, passed by the High Court affirming the same are set aside. The appellant is acquitted of all the charges charged with. The bail bonds of the accused shall stand discharged. Pending application(s), if any, shall stand disposed of. 37. …..….......................J. [B.R. GAVAI] ……....................…..J. [M.M. SUNDRESH] NEW DELHI; JANUARY 12, 2023. 29 1 ITEM NO.102/1 COURT NO.8 SECTION II-B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 1439/2009 BOBY Appellant(s) VERSUS STATE OF KERALA Respondent(s) Date : 12-01-2023 This appeal was called on for hearing today. CORAM : HON'BLE MR. JUSTICE B.R. GAVAI HON'BLE MR. JUSTICE M.M. SUNDRESH For Appellant(s) Mr. R. Basant, Sr. Adv. Mr. Abdulla Naseeh V.T., Adv. Meena K. Poulose, Adv. Mr. Akshay, Adv. Mr. Ashok Basoya, Adv. Ms. Shruti Jose, Adv. Mr. P. S. Sudheer, AOR For Respondent(s) Mr. K.N. Balgopal, Sr. Adv. Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Ms. Ashly Harshad, Adv. UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed reportable judgment. Pending application(s), if any, shall stand disposed of. The concluding paragraph of the judgment reads as under : th “The judgment dated 18 December 2004 passed by the trial Court, thereby convicting the appellant under Sections 395, 365, 364, 201, 2 380, 302 read with Section 34 of the IPC and th the impugned judgment dated 25 August 2008, passed by the High Court affirming the same are set aside. The appellant is acquitted of all the charges charged with. The bail bonds of the accused shall stand discharged.” (Geeta Ahuja) (Anju Kapoor) Assistant Registrar-cum-PS Court Master (signed reportable judgment containing the reasons is placed on the file) # signed order dated 12.1.2023 along with ROP has already been uploaded and sent to the concerned Branch. 3 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1439 OF 2009 BOBY APPELLANT(S) VERSUS STATE OF KERALA RESPONDENT(S) O R D E R For the reasons to be recorded separately, the appeal is allowed. The judgment and order dated 18.12.2004 of the trial Court of conviction and sentence of the appellant punishable under Sections 395, 365, 364, 201, 380, 302 read with Section 34 of the Indian Penal Code and the judgment and order dated 25.08.2008 of the High Court affirming the same are set aside. The appellant is acquitted of all the charges charged with. The bail bonds of the accused shall stand discharged. Pending application(s), if any, shall stand disposed of. ............... J. ( B.R. GAVAI ) ............... J. ( M.M. SUNDRESH ) NEW DELHI th 12 JANUARY, 2023 4 ITEM NO.102 COURT NO.8 SECTION II-B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 1439/2009 BOBY Appellant(s) VERSUS STATE OF KERALA Respondent(s) Date : 12-01-2023 This appeal was called on for hearing today. CORAM : HON'BLE MR. JUSTICE B.R. GAVAI HON'BLE MR. JUSTICE M.M. SUNDRESH For Appellant(s) Mr. R. Basant, Sr. Adv. Mr. Abdulla Naseeh V.T., Adv. Meena K. Poulose, Adv. Mr. Akshay, Adv. Mr. Ashok Basoya, Adv. Ms. Shruti Jose, Adv. Mr. P. S. Sudheer, AOR For Respondent(s) Mr. K.N. Balgopal, Sr. Adv. Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Ms. Ashly Harshad, Adv. UPON hearing the counsel the Court made the following O R D E R For the reasons to be recorded separately, the appeal is allowed. The judgment and order dated 18.12.2004 of the trial Court of conviction and sentence of the appellant punishable under Sections 395, 365, 364, 201, 380, 302 read with Section 34 of the Indian Penal Code and the judgment and order dated 25.08.2008 of the High Court affirming the same are set aside. The appellant is acquitted of all the charges 5 charged with. The bail bonds of the accused shall stand discharged. Pending application(s), if any, shall stand disposed of. (Geeta Ahuja) (Anju Kapoor) Assistant Registrar-cum-PS Court Master (Signed Order is placed on the file)