Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 13
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
(arising out of Special Leave Petition (Criminal) No. 863 of 2019)
PERUMAL RAJA @ PERUMAL ..... APPELLANT
VERSUS
STATE, REP. BY INSPECTOR OF POLICE ..... RESPONDENT
J U D G M E N T
SANJIV KHANNA, J.
Leave granted.
1
2. The impugned judgment by the High Court of Judicature at Madras
affirms the conviction of the appellant – Perumal Raja @ Perumal
for murder of Rajini @ Rajinikanth under Section 302 of the Indian
2
Penal Code, 1860 and Section 201 of the IPC, by the Principal
3
Sessions Judge, Puducherry in SC No. 22 of 2014 , in the charge
4
sheet arising from the First Information Report No. 80 of 2008
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2024.01.03
18:11:30 IST
Reason:
1
Dated 31.08.2016 passed in Criminal Appeal No.280/2016.
2
For short, “IPC”.
3
Dated 07.04.2016.
4
For short, “FIR”.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 1 of 35
5
registered on 24.04.2008 in Police Station Odiansalai, District –
Puducherry.
3. The appellant – Perumal Raja @ Perumal stands sentenced to
imprisonment for life and fine of Rs.5,000/- for the offence under
Section 302 of the IPC and rigorous imprisonment for three years
and fine of Rs.3,000/- for the offence under Section 201 of the IPC.
4. The other co-accused, namely, Saravanan @ Krishnan, Mohan @
Mohankumar, and Ravi @ Ravichandran were acquitted by the trial
court, which acquittal has become final. One ‘N’ was tried as a
juvenile and acquitted. On 15.02.2013, the case of another
co-accused – Chella @ Mugundhan was split up since he was
absconding. Subsequently, vide judgment dated 04.06.2019, which
has been placed on record as additional evidence, Chella @
Mukundhan has been acquitted.
5. The prosecution case in brief is as follows:
(i) On 20.04.2008, Rajaram, who was settled in France, returned
to Puducherry as his son Rajini @ Rajinikanth, who was living
in India, had gone missing.
(ii) On 20.04.2008, Rajaram had approached PS Odiansalai,
Puducherry, and made an oral complaint stating that when he
5
For short, “PS”.
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had opened his house No. 13, Chinna Vaikkal Street,
Puducherry, he had found articles to be scattered all over the
place. His motorcycle was missing. He had suspected that his
son – Rajini @ Rajinikanth and his sister’s husband
Krishnamurthy could have taken the bike. He requested the
Police to make inquiries. However, in spite of being asked, he
did not make any written complaint. He stated that he was
exhausted and would come back to lodge written complaint
afterwards.
(iii) Next day on 21.04.2008, Rajaram was murdered. FIR No.
204 of 2008 was registered at PS Grand Bazaar, District –
Puducherry under Sections 147, 148, 341 and 302 of the IPC
read with Section 149 of the IPC.
(iv) On 24.04.2008, Arumugam, father of Rajaram, had made a
written complaint at Odiansalai PS, Puducherry that his
grandson Rajini @ Rajinikanth was missing. The complaint
was registered as Diary No. 80 of 2008 for a ‘missing man’
and was taken up for investigation.
(v) The appellant – Perumal Raja @ Perumal, son of
Krishnamurthy (husband of the sister of Rajaram), was
detained and taken into custody during the course of
investigation in FIR No. 204 of 2008 for murder of Rajaram.
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(vi) On 25.04.2008, the appellant – Perumal Raja @ Perumal
6
made a disclosure statement (Exhibit P-37).
(vii) The appellant – Perumal Raja @ Perumal, along with other
co-accused, had committed murder of Rajini @ Rajinikanth
on 23.11.2007 at Rajaram’s house at Chinna Vaikkal Street,
Puducherry. His dead body was thrown in the sump tank
located in the same house.
(viii) The appellant – Perumal Raja @ Perumal had also removed
various belongings from the same house, including iron box,
home theatre, CD player, documents of the house,
motorcycle, RC book, key, Rajini @ Rajinikanth’s passport,
Rajini @ Rajinikanth’s passport size photograph, birth
registration of the grandmother, ration card, etc.
(ix) Later on, the appellant – Perumal Raja @ Perumal, and other
co-accused, decided to remove the dead body of Rajini @
Rajinikanth from the sump tank as they had learnt that
Rajaram was returning to India as his son Rajini @
Rajinikanth was missing.
(x) Accordingly, the appellant – Perumal Raja @ Perumal had
bought a knife and sack bags. They opened the sump tank
6
We shall be subsequently referring to the admissible portions of the disclosure statement under
Section 27 of the Indian Evidence Act, 1872, and also to a limited extent in terms of Section 8 of the
Indian Evidence Act, 1872.
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and took out Rajini @ Rajinikanth’s body, which was in a
decomposed state. They had cut Rajini @ Rajinikanth’s body
into two pieces and put it in two sack bags. The knife and rope
were put in another sack bag. The three sack bags were
taken by them from Chinna Vaikkal Street, and after passing
through Gandhi Street they threw the sack bags in the
canal/river from the Uppanaru Bridge near the railway
crossing.
(xi) On the basis of the disclosure statement (Exhibit P-37), the
sack bags with the decomposed dead body of Rajini @
Rajinikanth were recovered on 26.04.2008 from the
Uppanaru canal/river. Knife was also recovered.
(xii) The body parts which were in a decomposed state were sent
for post mortem, which was conducted by Dr. S. Diwakar
(PW-24), Senior Medical Officer, Department of Forensic
Medicine, Government General Hospital, Puducherry on
26.04.2008.
(xiii) On 30.04.2008, eight articles were recovered from the water
sump tank at the house of the deceased, namely, gloves,
lower jaw, rib, cervical vertebrae, tarsal and metatarsal, small
and big size bone pieces, and knee cap.
(xiv) The skull recovered from the canal/river and the lower part of
the jaw recovered from the sump tank were sent for
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superimposition test to ascertain whether they belong to the
deceased Rajini @ Rajinikanth. C. Pushparani, Scientific
Assistant Grade II, Anthropology Division, Forensic Sciences
Department, Chennai, who had deposed as PW-29, proves
the superimposition test report dated 20.01.2009 (Exhibit P-
25), which confirms that the skull and mandible were of the
deceased – Rajini @ Rajinikanth.
(xv) On the basis of the disclosure statement, various articles,
including the motorcycle, ignition key, original RC book were
recovered from the co-accused Mohan Kumar @ Mohan and
a juvenile.
(xvi) The motive for the crime was inter se family property disputes
and the appellant – Perumal Raja @ Perumal’s desire to
acquire and become owner of the property No. 13, Chinna
Vaikkal Street, Puducherry.
6. Several public witnesses turned hostile and did not support the
prosecution case. This includes Arumugam (PW-20), the
grandfather of the deceased Rajini @ Rajinikanth, who had filed the
‘missing man’ complaint for Rajini @ Rajinikanth, vide Diary No. 80
of 2008. However, Arumugam (PW-20) did accept that his son,
Rajaram, who was living abroad had come home when he was
murdered on 21.04.2008. Arumugam (PW-20) also accepts that his
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grandson Rajini @ Rajinikanth had not attended crematorial rites of
his father Rajaram and was missing.
7. Narayanasamy (PW-12), then head constable, PS Odiansalai, has
testified that he had received the oral complaint of Rajaram on
20.04.2008, in connection with the scattered articles in his house,
and the missing motorcycle. Rajaram had assumed that his son
Rajini @ Rajinikanth could have taken it away.
8. Kaniyakumaran (PW-10), involved in real estate business, did not
specifically implicate the appellant – Perumal Raja @ Perumal, but
has accepted that Punitha (PW-3), a relative of the deceased Rajini
@ Rajinikanth, had tried to sell the property in Kurumbapet.
Reliance can be also placed on the documentary evidence to
establish that the property in question in the name of Rajaram was
dealt with by Porkilai (PW-4), mother of the appellant – Perumal
Raja @ Perumal. In support, the following documents are relied:
(i) sale deed in favour of Rajaram executed on 26.06.1990
(Exhibit P-66);
(ii) sale agreement between Porkilai (PW-4) and accused
no.5 - Ravi @ Ravichandran executed on May, 2007
(Exhibit P-66);
(iii) release deed in favour of Rajaram by Porkilai (PW-4),
executed on 27.06.1990 (Exhibit P-68);
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(iv) sale agreement in favour of Thangaveni Ammal, mother
of Rajaram, executed on 19.08.1981 (Exhibit P-69).
9. Chinta Kodanda Rao (PW-30), Inspector of Police, PS Grand
Bazaar, the investigating officer in FIR No. 204 of 2008 relating to
the murder of Rajaram by unknown persons, has testified on the
disclosure statement made by the appellant – Perumal Raja @
Perumal (Exhibit P-37). The relevant portion of the disclosure
statement reads:
“…myself and xxx pull Rajni’s xxx, put him in the sump
tank near the bathroom and closed it…
…took xxx, Iron box, Home theatre, xxx, xxx, rental
documents of my uncle’s house at Chittankudi, Hero
Honda CD Dawn motorcycle, RC book and key, Rajini’s
passport book, Rajini’s passport size photo, birth
registration of grandmother, family ration card of uncle
and the copy of documents written in English, bunch of
keys of the house and my uncle Ranjith’s notebook, xxx
xxx xxx, took Hero Honda CD Dawn motorbike of my
uncle Rajaram…..one bag was put by Mohan xxx xxx
xxx the house of Mohan nearby to the Tollgate of
Ariyankuppam, kept 2 bags in Mohan’s house…
…I, immediately, went to N (name withheld) house and
gave him document, ration card, bunch of keys, Rajini’s
passport, by keeping them in Ranjith notebook and
stated to keep them safe…
…I took the already kept 3 sack bags, rope, curry knife,
showed the sump tank to xxx. When he opened the
cover of the sump tank, he bend down and lifted the
hand of the body of Rajini, who was already killed and
put in the sump by us, since Rajini’s body was in
decomposed stage, his hand had alone come. I put the
hand in sack bag. Then we tied rope in chest, myself
and xxx pulled the body outside from sump. Then, head
has come alone. I put head in the sack bag. Then xxx
took knife from me and cut Rajini’s body into two pieces
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and put them in two sack bags, then put knife and xxx
in another sack bag and kept the sack bags near
kitchen, then xxx closed the sump…
…via Chinnavaikal Street and Gandhi Street, turned on
the left side of the street, in front of small clock tower,
via Varnarapettai Billu Shop, on the centre of the bridge
of Railway Crossing on the left side, threw the two bags,
containing the decomposed body of Rajini, on the right
side threw the sack bag, containing knife and xxx…
…Also, I gave statement that if I was taken, I would
identify the Chinnavaikal street, which is the place of
occurrence, my maternal uncle’s house which is in the
same street..the place where I had left the motor cycle
of my (nc) and the place where I had put the body of
Rajini... ”
10. On the aspect of the recovery of two nylon sack bags with body
parts, we have affirmative depositions of Chinta Kodanda Rao (PW-
30), Inspector of Police, PS Grand Bazaar, public witness
Devadass (PW-21) and Satyamurthy (PW-11). The recovery was
photographed by Selvaganapathy (PW-26), police photographer
vide photographs marked Exhibit P-19. The recovery was duly
recorded in the rough sketch plan (Exhibit P-30) and the mahazar
(Exhibit P-31).
11. On 29.04.2008, accused no. 4 - Mohan Kumar @ Mohan was
arrested. On the same day, stolen items including, the motorcycle
and ignition key of motorcycle, original registration book, insurance
certificate of the motorcycle, iron box, home theatre and speaker
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box belonging to the deceased were recovered, as recorded vide
seizure mahazar (Exhibits P-44, P-45, P-46 and P-47).
12. On 30.04.2008, eight articles were recovered from the water sump
tank at the house of the deceased, namely, gloves, lower jaw, rib,
cervical vertebrae, tarsal and metatarsal, small and big size bone
pieces, and knee cap. T. Bairavasamy (PW-32), Circle Inspector,
PS Odiansalai has deposed about the recovery and proved the
Mahazar (Exhibit P-48). The recovery was photographed by
Subburayan (PW-25), police photographer vide photographs
marked Exhibit P-18 and duly witnessed by public witness
Devadass (PW-21).
13. To determine the identity of the deceased person, some of the body
parts were sent for a superimposition test to C. Pushparani (PW-
29), who was working as a Scientific Assistant Grade II,
Anthropology Division, Forensic Sciences Department, Chennai.
She has deposed about having received the case properties,
consisting of a skull with mandible on 10.09.2008. The mandible
was attached with the skull by means of a spring. For the purpose
of identification, she had two identical colour photographs of a male
individual sent to her in a sealed envelope as Item Nos. 2 and 3.
The photographs were enlarged to the size of a self-portrait. Using
the computer aided video superimposition technique, she had
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examined the skull and mandible viz. the photographs. For the
purposes of the examination, the flesh thickness and the
anthroposcopic landmarks in the face were also taken into
consideration. C. Pushparani (PW-29), Scientific Assistant Grade
II, Anthropology Division, Forensic Sciences Department, Chennai
opined that the landmarks on the face matched well with those of
the skull. She submitted her forensic report dated 20.01.2009 with
analysis on the anthroposcopy and superimposition test (Exhibit P-
25). The skull, as per C. Pushparani (PW-29), Scientific Assistant
Grade II, Anthropology Division, Forensic Sciences Department,
Chennai belonged to the male individual seen in the photograph at
serial no.4. With the report, Exhibit P-25, C. Pushparani (PW-29),
Scientific Assistant Grade II, Anthropology Division, Forensic
Sciences Department, Chennai had enclosed the computer laser
printouts taken by her at the time of examination to establish and
prove that the photographs of deceased – Rajini @ Rajinikanth
match with the mandible and the skull (Exhibits P-26 to P-28). We
have carefully examined the computer laser print outs, and are of
the opinion that the findings of the High Court affirming the
judgment of the trial court are justified.
14. On behalf of the appellant – Perumal Raja @ Perumal, it is
submitted that as per Dr. S. Diwakar (PW-24), Senior Medical
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Officer, Department of Forensic Medicine, Government General
Hospital, Puducherry no definite cause of death could be
ascertained due to decomposition of the body. However, it is
pertinent to note that Dr. S. Diwakar (PW-24), Senior Medical
Officer, Department of Forensic Medicine, Government General
Hospital, Puducherry has also deposed that the deceased could be
between 25-30 years of age and probable death could have
occurred six months prior to the autopsy. It must be further noted
that the deceased – Rajini @ Rajinikanth was about 30 years of age
and he had been missing for about six months prior to the date on
which the autopsy was conducted.
15. It has been submitted with considerable emphasis that
Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of
Forensic Medicine, Government General Hospital, Puducherry has
accepted that the lower jaw (mandible) was not found. Whereas,
deposition of C. Pushparani (PW-29), Scientific Assistant Grade II,
Anthropology Division, Forensic Sciences Department, Chennai
and the photo superimposition done by her specifically refer to the
lower jaw. We have examined this contention. Dr. S. Diwakar (PW-
24), Senior Medical Officer, Department of Forensic Medicine,
Government General Hospital, Puducherry, in his examination-in-
chief, has testified that the police had sent the skull, sternum and
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right femur which were preserved by him from the autopsy material.
Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of
Forensic Medicine, Government General Hospital, Puducherry has
also stated that the lower jaw and the left lower first premolar tooth
were preserved by him from the skeleton remains for onward
transmission to Central Forensic Science Laboratory, Hyderabad,
for necessary photo superimposition and DNA test through the
Judicial Magistrate-II, Puducherry. The mahazar dated 21.5.2008
(Exhibit P-15) was prepared after collecting the aforesaid body
parts.
16. We do not find that any confusion or doubt arises from the
deposition of Dr. S. Diwakar (PW-24), Senior Medical Officer,
Department of Forensic Medicine, Government General Hospital,
Puducherry. He had conducted the post mortem examination
(Exhibit P-16) on 26.04.2008, wherein he had examined the
remains/body parts of the deceased which were found in the two
nylon sack bags on the same day. Other body parts including, the
lower part of the skull i.e. the mandible and the tooth were found
subsequently in the sump tank on 30.04.2008. Therefore, Dr. S.
Diwakar (PW-24), Senior Medical Officer, Department of Forensic
Medicine, Government General Hospital, Puducherry, in his
deposition, while referring to Exhibit P-17 dated 19.05.2008, has
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 13 of 35
referred to the lower jaw (mandible) and the left lower first premolar
tooth, to send the said body parts to the Central Forensic Science
Laboratory at Hyderabad.
17. It has been submitted on behalf of the appellant – Perumal Raja @
Perumal that Dr. S. Diwakar (PW-24), Senior Medical Officer,
Department of Forensic Medicine, Government General Hospital,
Puducherry, in his cross-examination, has accepted that body parts
were sent to him in two nylon sack bags only once, and nothing was
sent thereafter. The post mortem was completed on 26.04.2008,
vide the post mortem report (Exhibit P-16) of the same date.
18. Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of
Forensic Medicine, Government General Hospital, Puducherry had
issued bone-case certificate (Exhibit P-17) on 19.05.2008. Dr. S.
Diwakar (PW-24), Senior Medical Officer, Department of Forensic
Medicine, Government General Hospital, Puducherry has clarified
that while he did not mention the lower jaw in the post mortem
26.04.2008 (Exhibit P-16), he had mentioned that the lower jaw was
preserved in the bone-case certificate (Exhibit P-17) dated
7
19.05.2008. Further, the aforesaid deposition of Dr. S. Diwakar
(PW-24), Senior Medical Officer, Department of Forensic Medicine,
7
The recovery of lower jaw from the sump took place on 30.04.2008. Thus, it could not have been
mentioned in the post mortem report dated 26.04.2008.
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Government General Hospital, Puducherry has to be read with the
testimony of T. Bairavasamy (PW-32), Circle Inspector, PS
Odiansalai, who had deposed that he had taken the letter written
by Dr. S. Diwakar (PW-24), Senior Medical Officer, Department of
Forensic Medicine, Government General Hospital, Puducherry and
had obtained the signatures of Judicial Magistrate-II, Puducherry
for conducting DNA test. Thereafter, the material objects were sent
through Form 95 No. 02876 (Exhibit P-60) to the Judicial
Magistrate-II, Puducherry. The skull and the mandible were sent for
photo superimposition test after addressing a letter to Judicial
Magistrate-II, Puducherry which was signed by Dr. S. Diwakar (PW-
24), Senior Medical Officer, Department of Forensic Medicine,
Government General Hospital, Puducherry (Exhibit P-61).
19. The prosecution’s case, in the absence of eye witnesses, is based
upon circumstantial evidence. As per Section 25 of the Indian
8
Evidence Act, 1872 , a confession made to a police officer is
prohibited and cannot be admitted in evidence. Section 26 of the
Evidence Act provides that no confession made by any person
whilst he is in the custody of a police officer shall be proved against
such person, unless it is made in the immediate presence of a
8
For short ‘the Evidence Act’.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 15 of 35
9
Magistrate. Section 27 of the Evidence Act is an exception to
Sections 25 and 26 of the Evidence Act. It makes that part of the
statement which distinctly leads to discovery of a fact in
consequence of the information received from a person accused of
an offence, to the extent it distinctly relates to the fact thereby
discovered, admissible in evidence against the accused. The fact
which is discovered as a consequence of the information given is
admissible in evidence. Further, the fact discovered must lead to
recovery of a physical object and only that information which
distinctly relates to that discovery can be proved. Section 27 of the
Evidence Act is based on the doctrine of confirmation by
subsequent events – a fact is actually discovered in consequence
of the information given, which results in recovery of a physical
object. The facts discovered and the recovery is an assurance that
the information given by a person accused of the offence can be
relied.
10
20. In Pulukuri Kottaya v. King Emperor , the Privy Council held that
the fact discovered embraces the place from which the physical
9
27. How much of information received from accused may be proved. – Provided that, when any
fact is deposed to as discovered in consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered, may be proved.
10
AIR 1947 PC 67.
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object is produced and the knowledge of the accused as to this, and
the information given, must distinctly relate to this fact.
11
21. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru , this
Court affirmed that the fact discovered within the meaning of
Section 27 of the Evidence Act must be some concrete fact to which
the information directly relates. Further, the fact discovered should
refer to a material/physical object and not to a pure mental fact
relating to a physical object disassociated from the recovery of the
physical object.
22. However, we must clarify that Section 27 of the Evidence Act, as
held in these judgments, does not lay down the principle that
discovery of a fact is to be equated to the object produced or found.
The discovery of the fact resulting in recovery of a physical object
exhibits knowledge or mental awareness of the person accused of
the offence as to the existence of the physical object at the
particular place. Accordingly, discovery of a fact includes the object
found, the place from which it was produced and the knowledge of
the accused as to its existence. To this extent, therefore, factum of
discovery combines both the physical object as well as the mental
consciousness of the informant accused in relation thereto. In
11
(2005) 11 SCC 600.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 17 of 35
12
Mohmed Inayatullah v. State of Maharashtra , elucidating on
Section 27 of the Evidence Act, it has been held that the first
condition imposed and necessary for bringing the section into
operation is the discovery of a fact which should be a relevant fact
in consequence of information received from a person accused of
an offence. The second is that the discovery of such a fact must be
deposed to. A fact already known to the police will fall foul and not
meet this condition. The third is that at the time of receipt of the
information, the accused must be in police custody. Lastly, it is only
so much of information which relates distinctly to the fact thereby
discovered resulting in recovery of a physical object which is
admissible. Rest of the information is to be excluded. The word
‘distinctly’ is used to limit and define the scope of the information
and means ‘directly’, ‘indubitably’, ‘strictly’ or ‘unmistakably’. Only
that part of the information which is clear, immediate and a
proximate cause of discovery is admissible.
23. The facts proved by the prosecution, particularly the admissible
portion of the statement of the accused, would give rise to two
alternative hypotheses, namely, (i) that the accused had himself
deposited the physical items which were recovered; or (ii) only the
accused knew that the physical items were lying at that place. The
12
(1976) 1 SCC 828.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 18 of 35
second hypothesis is wholly compatible with the innocence of the
accused, whereas the first would be a factor to show involvement
of the accused in the offence. The court has to analyse which of the
hypotheses should be accepted in a particular case.
24. Section 27 of the Evidence Act is frequently used by the police, and
the courts must be vigilant about its application to ensure credibility
of evidence, as the provision is vulnerable to abuse. However, this
does not mean that in every case invocation of Section 27 of the
Evidence Act must be seen with suspicion and is to be discarded
as perfunctory and unworthy of credence.
25. The pre-requisite of police custody, within the meaning of Section
27 of the Evidence Act, ought to be read pragmatically and not
formalistically or euphemistically. In the present case, the
disclosure statement (Exhibit P-37) was made by the appellant –
Perumal Raja @ Perumal on 25.04.2008, when he was detained in
another case, namely, FIR No. 204/2008, registered at PS Grand
Bazar, Puducherry, relating to the murder of Rajaram. He was
subsequently arrested in this case, that is FIR.No.80/2008, which
was registered at PS Odiansalai, Puducherry. The expression
“custody” under Section 27 of the Evidence Act does not mean
formal custody. It includes any kind of restriction, restraint or even
surveillance by the police. Even if the accused was not formally
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 19 of 35
arrested at the time of giving information, the accused ought to be
deemed, for all practical purposes, in the custody of the police.
26. Reference is made to a recent decision of this Court in Rajesh &
13
Anr. v. State of Madhya Pradesh , which held that formal
accusation and formal police custody are essential pre-requisites
under Section 27 of the Evidence Act. In our opinion, we need not
dilate on the legal proposition as we are bound by the law and ratio
as laid down by the decision of a Constitution Bench of this Court
14
in State of U.P. v. Deoman Upadhyaya . The law laid down by
this Court in a decision delivered by a Bench of larger strength is
15
binding on any subsequent Bench of lesser or coequal strength.
This Court in Deoman Upadhyay (supra) observed that the bar
under Section 25 of the Evidence Act applies equally whether or
not the person against whom evidence is sought to be led in a
criminal trial was in custody at the time of making the confession.
Further, for the ban to be effective the person need not have been
accused of an offence when he made the confession. The reason
is that the expression “accused person” in Section 24 and the
expression “a person accused of any offence” in Sections 26 and
13
2023 SCC OnLine SC 1202.
14
(1961) 1 SCR 14.
15
See Judgments of the Constitution Bench of this Court in Central Board of Dawoodi Bohra
Community and Anr. v. State of Maharashtra and Anr., (2005) 2 SCC 673 and Union of India and Anr.
v. Raghubir Singh (Dead) By Lrs., (1989) 2 SCC 754. Raghubir Singh (supra) and Central Board of
Dawoodi Bohra Community (supra) have been subsequently followed and applied by this Court in
Trimurthi Fragrances (P) Ltd. v. Government of N.C.T. of Delhi , 2022 SCC OnLine SC 1247.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 20 of 35
27 have the same connotation, and describe the person against
whom evidence is sought to be led in a criminal proceeding. The
adjectival clause “accused of any offence” is, therefore, descriptive
of the person against whom a confessional statement made by him
is declared not provable, and does not predicate a condition of that
person at the time of making the statement.
27. Elaborating on this aspect, a three judge Bench of this Court in
16
Aghnoo Nagesia v. State of Bihar has held that if the FIR is
given by the accused to a police officer and amounts to a
confessional statement, proof of the confession is prohibited by
Section 25 of the Evidence Act. The confession includes not only
the admission of the offence but all other admissions of
incriminating facts related to the offence, except to the extent that
the ban is lifted by Section 27 of the Evidence Act. While dealing
with the admission of part of confession report dealing with motive,
subsequent conduct and opportunity, this Court rejected the
severability test adopted by some High Courts. The statement can,
however, be relied upon and admitted to identify the accused as the
maker, and the portion within the purview of Section 27 of the
Evidence Act is admissible. Aghnoo Nagesia (supra) has been
16
AIR 1966 SC 119.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 21 of 35
applied and followed by this Court in Khatri Hemraj Amulakh v.
17
State of Gujarat .
28. The words “person accused of an offence” and the words “in the
custody of a police officer” in Section 27 of the Evidence Act are
separated by a comma. Thus, they have to be read distinctively.
The wide and pragmatic interpretation of the term “police custody”
is supported by the fact that if a narrow or technical view is taken, it
will be very easy for the police to delay the time of filing the FIR and
arrest, and thereby evade the contours of Sections 25 to 27 of the
Evidence Act. Thus, in our considered view the correct
interpretation would be that as soon as an accused or suspected
person comes into the hands of a police officer, he is no longer at
liberty and is under a check, and is, therefore, in “custody” within
the meaning of Sections 25 to 27 of the Evidence Act. It is for this
reason that the expression “custody” has been held, as earlier
observed, to include surveillance, restriction or restraint by the
police.
29. This Court in Deoman Upadhyay (supra), while rejecting the
argument that the distinction between persons in custody and
persons not in custody violates Article 14 of the Constitution of
17
(1972) 3 SCC 671.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 22 of 35
India, observed that the distinction is a mere theoretical possibility.
Sections 25 and 26 were enacted not because the law presumed
the statements to be untrue, but having regard to the tainted nature
of the source of the evidence, prohibited them from being received
in evidence. A person giving word of mouth information to police,
which may be used as evidence against him, may be deemed to
have submitted himself to the “custody” of the police officer.
Reference can also be made to decision of this Court in Vikram
18
Singh and Ors. v. State of Punjab , which discusses and applies
Deoman Upadhyay (supra), to hold that formal arrest is not a
necessity for operation of Section 27 of the Evidence Act. This
19
Court in Dharam Deo Yadav v. State of Uttar Pradesh , has held
that the expression “custody” in Section 27 of the Evidence Act
does not mean formal custody, but includes any kind of
surveillance, restriction or restraint by the police. Even if the
accused was not formally arrested at the time of giving information,
the accused is, for all practical purposes, in the custody of the police
and the bar vide Sections 25 and 26 of the Evidence Act, and
accordingly exception under Section 27 of the Evidence Act, apply.
Reliance was placed on the decisions in State of A.P. v. Gangula
18
(2010) 3 SCC 56.
19
(2014) 5 SCC 509.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 23 of 35
20
Satya Murthy and A.N.Vekatesh and Anr. v. State of
21
Karnataka .
30. However, evidentiary value to be attached on evidence produced
before the court in terms of Section 27 of the Evidence Act cannot
be codified or put in a straightjacket formula. It depends upon the
facts and circumstances of the case. A holistic and inferential
appreciation of evidence is required to be adopted in a case of
circumstantial evidence.
31. When we turn to the facts of the present case, the body parts of the
deceased Rajini @ Rajinikanth were recovered on the pointing out
of appellant – Perumal Raja @ Perumal in his disclosure statement.
Rajini @ Rajinikanth had been missing for months and was
untraceable. In the present case, as discussed above, the
homicidal death of Rajini @ Rajinikanth, the disclosure statement
marked Exhibit P-37, and the consequent recovery as elucidated
above have been proved beyond doubt and debate.
22
32. In State of Maharashtra v. Suresh , this Court in the facts therein
held that recovery of a dead body, which was from the place pointed
out by the accused, was a formidable incriminating circumstance.
20
(1997) 1 SCC 272.
21
(2005) 7 SCC 714.
22
(2000) 1 SCC 471.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 24 of 35
This would, the Court held, reveal that the dead body was
concealed by the accused unless there is material and evidence to
show that somebody else had concealed it and this fact came to
the knowledge of the accused either because he had seen that
person concealing the dead body or was told by someone else that
the dead body was concealed at the said location. Here, if the
accused declines and does not tell the criminal court that his
knowledge of the concealment was on the basis of the possibilities
that absolve him, the court can presume that the dead body (or
physical object, as the case may be) was concealed by the accused
himself. This is because the person who can offer the explanation
as to how he came to know of such concealment is the accused. If
the accused chooses to refrain from telling the court as to how else
he came to know of it, the presumption is that the concealment was
by the accused himself.
33. The aforesaid view has been followed subsequently and reiterated
23
in Harivadan Babubhai Patel v. State of Gujarat , Vasanta
24
Sampat Dupare v. State of Maharashtra , State of Maharashtra
25
v. Damu S/o Gopinath Shinde and Ors. , and Rumi Bora Dutta
26
v. State of Assam .
23
(2013) 7 SCC 45.
24
(2015) 1 SCC 253.
25
(2000) 6 SCC 269.
26
(2013) 7 SCC 417.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 25 of 35
34. Our reasoning, which places reliance on Section 106 of the
Evidence Act, does not in any way dilute the burden of proof which
is on the prosecution. Section 106 comes into play when the
prosecution is able to establish the facts by way of circumstantial
evidence. On this aspect we shall delve upon subsequently.
35. Apart from Section 27 of the Evidence Act, Section 8 of the said Act
would be also attracted insofar as the prosecution witnesses,
namely, the investigating officers, Chinta Kodanda Rao (PW-30),
Inspector of Police, PS Grand Bazaar and T. Bairavasamy (PW-
32), Circle Inspector, PS Odiansalai, have referred to the conduct
of the appellant – Perumal Raja @ Perumal with regard to any fact
in issue or a relevant fact when the appellant – Perumal Raja @
27
Perumal was confronted and questioned. Reference in this regard
may also be made to the judgment of this Court in Sandeep v.
28
State of U.P. which held that:
“ 52 . (…) It is quite common that based on admissible
portion of the statement of the accused whenever and
wherever recoveries are made, the same are
admissible in evidence and it is for the accused in those
situations to explain to the satisfaction of the court as to
the nature of recoveries and as to how they came into
possession or for planting the same at the places from
where they were recovered.”
27
See State (NCT of Delhi) v. Navjot Sandhu , (2005) 11 SCC 600, ¶¶ 190, 204-206, 219-223, 225.
28
(2012) 6 SCC 107.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 26 of 35
36. On the basis of the prosecution evidence, the following factual
position has been established:
(i) Rajini @ Rajinikanth was missing for months before his father
Rajaram came from France to India, on 20.04.2008.
(ii) On return, Rajaram had noticed that the articles in the
property No.13, Chinna Vaikkal street, Puducherry, where
deceased Rajini @ Rajinikanth used to reside and was owned
by Rajaram, were scattered. The motorcycle owned by
Rajaram, which the deceased Rajini @ Rajinikanth used to
use, was missing.
(iii) Rajaram was murdered on 21.04.2008.
(iv) The appellant – Perumal Raja @ Perumal is a close relative
of Rajini @ Rajinikanth and Rajaram (son of sister of
Rajaram).
(v) Rajaram as the owner of the immovable property No.13,
Chinna Vaikkal street, Puducherry and Rajini @ Rajinikanth,
as the son of Rajaram, were hindrance in the way of the
appellant – Perumal Raja @ Perumal acquiring the said
property. There were also inter se family disputes relating to
the property in Kurumbapet. This was the motive for the
offence.
(vi) On the basis of the disclosure statement made by the
appellant – Perumal Raja @ Perumal on 25.04.2008 (Exhibit
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 27 of 35
P-37) – (a) two nylon sack bags were recovered containing
decomposed human body parts; and (b) human bones were
also recovered from the sump tank in property bearing No.13,
Chinna Vaikkal street, Puducherry.
(vii) The superimposition report dated 20.01.2009 (Exhibit P-25)
by C. Pushparani (PW-29), Scientific Assistant Grade II,
Anthropology Division, Forensic Sciences Department,
Chennai states that the skull and the mandible which were
recovered from the river and the sump tank were that of the
deceased Rajini @ Rajinikanth. The report relies on the
computer laser print out of the skull and the mandible for
comparison with the photograph of the deceased Rajini @
Rajinikanth. It is shown that the skull and the mandible were
of the deceased Rajini @ Rajinikanth.
(viii) As per the post mortem report (Exhibit P-16), though the
cause of death could not be ascertained due to
decomposition of the body, the bones were that of a person
between 25-30 years of age. Further, the death had probably
occurred six months prior to the autopsy. The deceased Rajini
@ Rajinikanth was of 30 years in age and he had been
missing for about six months.
(ix) Motorcycle bearing registration No. PY 01 X 9857 belonging
to Rajaram (which was then at Rajaram’s house and in
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 28 of 35
possession of Rajini @ Rajinikanth, as Rajaram was in
France), keys, insurance papers, as well as other personal
belongings were recovered from Mohan Kumar @ Mohan
and a juvenile, whose name is withheld.
29
37. In Sharad Birdhichand Sarda v. State of Maharashtra , this
30
Court referred to Hanumant v. State of Madhya Pradesh , and
laid down the five golden principles (‘ panchsheel ’) that should be
satisfied before a case based on circumstantial evidence against
an accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be
drawn should be fully established;
(ii) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty;
(iii) the circumstances should be of a conclusive nature and
tendency;
(iv) they should exclude every possible hypothesis except the
one to be proved; and
(v) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
29
(1984) 4 SCC 116.
30
(1952) 2 SCC 71.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 29 of 35
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
38. This Court in Sharad Birdhichand Sarda (supra) rejected the
contention that if the defence case is false it would constitute an
additional link as to fortify the case of the prosecution. However, a
word of caution was laid down to observe that a false explanation
given can be used as a link when:
(i) various links in the chain of evidence laid by the prosecution
have been satisfactorily proved;
(ii) circumstance points to the guilt of the accused with
reasonable definiteness; and
(iii) the circumstance is in proximity to the time and situation.
If these conditions are fulfilled only then the court can use the false
explanation or a false defence as an additional link to lend an
assurance to the court and not otherwise. Thus, a distinction has to
be drawn between incomplete chain of circumstances and a
circumstance after a chain is complete and the defence or
explanation given by the accused is found to be false, in which
event the said falsehood is added to reinforce the conclusion of the
court.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 30 of 35
31
39. This Court in Deonandan Mishra v. State of Bihar has laid down
the following principle regarding circumstantial evidence and the
failure of accused to adduce any explanation:
“It is true that in a case of circumstantial evidence not
only should the various links in the chain of evidence be
clearly established, but the completed chain must be
such as to rule out a reasonable likelihood of the
innocence of the accused. But in a case like this where
the various links as stated above have been
satisfactorily made out and the circumstances point to
the appellant as the probable assailant, with reasonable
definiteness and in proximity to the deceased as
regards time and situation, and he offers no
explanation, which if accepted, though not proved,
would afford a reasonable basis for a conclusion on the
entire case consistent with his innocence, such
absence of explanation or false explanation would itself
be an additional link which completes the chain. We are,
therefore, of the opinion that this is a case which
satisfies the standards requisite for conviction on the
basis of circumstantial evidence.”
40. The appellant – Perumal Raja @ Perumal in his statement under
Section 313 of the Code of Criminal Procedure, 1973 plainly denied
all accusations without furnishing any explanation regarding his
knowledge of the places from which the dead body was recovered.
In this circumstance, the failure of the appellant – Perumal Raja @
Perumal to present evidence on his behalf or to offer any cogent
explanation regarding the recovery of the dead body by virtue of his
special knowledge must lead to a reasonable adverse inference, by
application of the principle under Section 106 of the Evidence Act,
31
(1955) 2 SCR 570.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 31 of 35
thus forming an additional link in the chain of circumstances. The
additional link further affirms the conclusion of guilt as indicated by
the prosecution evidence.
41. The whereabouts of Rajini @ Rajinikanth were unknown. The
perpetrator(s) were also unknown. It is only consequent to the
disclosure statement by the appellant – Perumal Raja @ Perumal,
that the police came to know that Rajini @ Rajinikanth had been
murdered and his body was first dumped in the sump tank and after
some months, it was retrieved, cut into two parts, put in sack bags,
and thrown in the river/canal. The police, accordingly, proceeded
on the leads and recovered the parts of the dead body from the
sump tank and sack bags from the river/canal. It has been also
established that Rajini @ Rajinikanth was murdered. In addition,
there have been recoveries of the motorcycle and other belongings
at the behest of the appellant – Perumal Raja @ Perumal. These
facts, in the absence of any other material to doubt them, establish
indubitable conclusion that the appellant – Perumal Raja @
Perumal is guilty of having committed murder of Rajini @
Rajinikanth. The presence of motive reinforces the above
conclusion.
42. It has been contended before us that the appellant – Perumal Raja
@ Perumal had been acquitted in the case arising out of crime No.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 32 of 35
204 of 2008 relating to the murder of Rajaram. The judgment
32
passed by the trial court has been taken on record as additional
evidence. However, we do not find this judgment in any way
relevant or negating the prosecution evidence, which we have
referred to and elucidated earlier in the prosecution case against
the appellant, because the murder trial of Rajaram was primarily
based upon an entirely different set of evidence. The evidence we
have mentioned in the present case is not relevant and directly
connected with the murder of Rajaram. The two occurrences are
separate, albeit the appellant – Perumal Raja @ Perumal was
accused of the murder of Rajaram and his son Rajini @ Rajinikanth.
The murders certainly were committed on two different dates –
23.11.2007 (or thereabout) and 21.04.2008 respectively,
approximately five months apart. Except for the fact that the
appellant – Perumal Raja @ Perumal was taken into custody during
the course of investigation in FIR No. 204 of 2008 for murder of
Rajaram and thereupon on 25.04.2008 his disclosure statement
(Exhibit P-37) was recorded, there is no connection between the
two offences. The conviction of the appellant is, therefore,
sustainable in view of the evidence placed on record in the present
case. The judgment of acquittal would not qualify as relevant and
32
Dated 13.06.2017.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 33 of 35
of evidentiary value so as to acquit the appellant – Perumal Raja @
33
Perumal in the present case.
43. Acquittal of the co-accused, as noticed in paragraph 4 above, again
is for want of evidence against them. At best, they were found in
possession of the articles connected with the crime on the basis of
the disclosure statement (Exhibit P-37) dated 25.04.2008 made by
the appellant – Perumal Raja @ Perumal. Section 27 of the
Evidence Act could not have been applied to the other co-accused
for the simple reason that the provision pertains to information that
distinctly relates to the discovery of a 'fact' that was previously
unknown, as opposed to fact already disclosed or known. Once
information is given by an accused, the same information cannot be
used, even if voluntarily made by a co-accused who is in custody.
Section 27 of the Evidence Act does apply to joint disclosures, but
34
this is not one such case. This was precisely the reason given by
the trial court to acquit the co-accused. Even if Section 8 of the
Evidence Act is to apply, it would not have been possible to convict
the co-accused. The trial court rightly held other co-accused not
guilty. For the same reason, acquittal of co-accused Chella @
Mukundhan, who was earlier absconding, is also of no avail.
33
See §§ 40-43 of the Indian Evidence Act, 1872.
34
See State (NCT of Delhi) v. Navjot Sandhu , (2005) 11 SCC 600, ¶ 145.
Crl. Appeal @ SLP (Crl.) No. 863 of 2019 Page 34 of 35
44. As far as acquittal of the juvenile is concerned, reference can be
made to the provisions of Sections 40 to 43 of the Evidence Act.
45. In view of the above discussion, we have no difficulty in upholding
the conviction of the appellant – Perumal Raja @ Perumal. The
appeal is dismissed.
......................................J.
(SANJIV KHANNA)
…...................................J.
(S. V. N. BHATTI)
NEW DELHI;
JANUARY 03, 2024.
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