State of Karnataka vs David Razario and Another

Arijit Pasayat, J.—An octogenarian old lady was the victim of robbery and murderallegedly committed by the respondent-David Rozario and ChristopherDavid (hereinafter referred to as A1 and A2 respectively for convenience).

Prosecution version sans unnecessary details is as follows :

The deceased who had three children residing abroad, was stayingalone in her house at No. 47, Stephen's Road, Frazer Town, Bangalore City.A maid-servant Tayarmma (PW5) was working in her house and also in thehouse of Mrs. Joyce wife of Holmes (PW10). In the evening of 20.12.1986the fateful day, PW5 as usual served coffee to the deceased in her house andwent to the house of PW10 to work there, and was there till about 8.00 p.m.Thereafter, she left the place to go to her house, which was situated on theback side of deceased's house. When she was near the house of the deceased, she saw the electric lights in the house of the deceased were burning, and also noticed that the front door of the house was closed. While the back door was open she entered the house of the deceased through back door and came to the hall, where she saw the deceased sitting on a chair with blood all over the body. The deceased had sustained head injury, which was bleeding. PW5 ran out screaming to the house of Mrs. Joyce and brought her husband PW10 along with her to the house of deceased. They also called another person PW-7. They took the deceased in injured condition to the Nursing Home of Bikram Chand (PW14). Since the deceased had sustained injuries on the head, the doctor PW14 requisitioned an Ambulance and sent her to the Nimhans Hospital for further treatment. In spite oftreatment she could not regain consciousness and passed away around mid-night. Intimation was sent by the doctor to the police station. First information report was accordingly recorded and investigation was undertaken. On 26.12.1986 information was gathered by the Investigating Officer about one tape recorder which was missing from the house of the deceased. The tape recorder (M.O.2) was of foreign make. It came to light that the said tape recorder was gifted by her daughter to the deceased. Some days after the date of the incident the accused persons were arrested in another case of theft of a T.V. set. Accused No. 2 led the Investigating Officer and others to a shop where Dilip Ghodke (PW-21), the owner of the shop was asked by A2 to bring the tape recorder which he had sold to him, after redeeming the same from the pawn broker Mohammed Ilyas (PW-8). Relevant pawn ticket receipts were seized by the Investigating Officer. On the basis of the information given by the accused persons recovery was made of the weapon i.e. an Iron Rod (M.O.4). The VII Additional Sessions Judge, Bangalore, on the basis of evidence on record found the accused-appellants guilty u/s 302 read with Section 34 and Section 392read with Section 34 of the Indian Penal Code, 1860 (in short 'IPC'). Theywere sentenced to undergo imprisonment for life and rigorous imprisonmentfor a period of 5 years respectively for the aforesaid two offences. TheDivision Bench of the Karnataka High Court set aside the conviction.

The State of Karnataka is in appeal before this Court. Learned counselfor appellant-State submitted that the High Court by a sketchy andpractically non-reasoned order has set aside the conviction. Learned counselfor the respondent on the other hand submitted that the High Court hasrightly stressed upon the fact that the tape recorder was of very small valueand two persons could not have taken the life of an elder lady. According tohim, Section 27 of the Indian Evidence Act, 1872 (in short 'Evidence Act')was applied by the trial court to record conviction when the same cannot bethe only foundation for conviction.

It has to be noted that primarily what seems to have weighed with theHigh Court, is the meager value of the tape recorder. It was also observedthat there was no evidence to determine as to when cassette player wasstolen and came to the possession of accused with the knowledge that it wasstolen.

The first question is whether the evidence relating to recovery issufficient to fasten guilt on the accused. Section 27 of the Evidence Act is byway of proviso to Sections 25 to 26 and a statement even by way ofconfession made in police custody which distinctly relates to the factdiscovered is admissible in evidence against the accused. This position wassuccinctly dealt with by this Court in Delhi Administration Vs. Bal Krishan and Others, and Mohmed Inayatullah Vs. The State of Maharashtra, . The words so much of such information" as relates distinctly to thefact thereby discovered, are very important and the whole force of thesection concentrates on them. Clearly the extent of the informationadmissible must depend on the exact nature of the fact discovered to whichsuch information is required to relate. The ban as imposed by the precedingsections was presumably inspired by the fear of the Legislature that a personunder police influence might be induced to confess by the exercise of unduepressure. If all that is required to lift the ban be the inclusion in theconfession of information relating to an objectsubsequently produced, it seems reasonable to suppose that the persuasivepowers of the police will prove equal to the occasion, and that in practice theban will lose its effect. The object of the provision i.e. Section 27 was toprovide for the admission of evidence which but for the existence of thesection could not in consequence of the preceding sections, be admitted inevidence. It would appear that u/s 27 as it stands in order torender the evidence leading to discovery of any fact admissible, theinformation must come from any accused in custody of the police. Therequirement of police custody is productive of extremely anomalous resultsand may lead to the exclusion of much valuable evidence in cases where aperson, who is subsequently taken into custody and becomes an accused,after committing a crime meets a police officer or voluntarily goes to him orto the police station and states the circumstances of the crime which lead tothe discovery of the dead body, weapon or any other material fact, inconsequence of the information thus received from him. This informationwhich is otherwise admissible becomes inadmissible u/s 27 if theinformation did not come from a person in the custody of a police officer ordid come from a person not in the custody of a police officer. The statementwhich is admissible u/s 27 is the one which is the informationleading to discovery. Thus, what is admissible being the information, thesame 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 custodywhich led to recovery of the articles has to be proved.

It is, therefore,necessary for the benefit of both the accused and prosecution thatinformation given should be recorded and proved and if not so recorded, theexact information must be adduced through evidence. The basic ideaembedded in Section 27 of the Evidence Act is the doctrine of confirmationby subsequent events. The doctrine is founded on the principle that if anyfact is discovered as a search made on the strength of any informationobtained from a prisoner, such a discovery is a guarantee that theinformation supplied by the prisoner is true. The information might beconfessional or non-inculcator in nature but if it results in discovery of afact, it becomes a reliable information. It is now well settled that recovery ofan object is not discovery of fact envisaged in the section. Decision of PrivyCouncil in Palukuri Kotayya v. Emperor AIR 1947 PC 67, is the mostquoted authority for supporting the interpretation that the "fact discovered"envisaged in the section embraces the place from which the object wasproduced, the knowledge of the accused as to it, but the information givenmust relate distinctly to that effect. [see State of Maharashtra Vs. Damu Shinde and Others, . No doubt, the informationpermitted to be admitted in evidence is confirmed to that portion of theinformation which "distinctly relates to the fact thereby discovered". But theinformation to get admissibility need not be so truncated as to make itinsensible or incomprehensible. The extent of information admitted shouldbe consistent with understandability. Mere statement that the accused led thepolice and the witnesses to the place where he had concealed the article isnot indicative of the information given.

In the instant case the evidence of PWs 8 and 21 are of significance.PW 21 has stated that in the evening of 21.12.1986 he was sitting in theshop of his father, when A2 approached him with an offer that they (A1 andA2) intend to sell a tape recorder, which was pledged with a pawn brokerPW8. They also showed him the pawn ticket. He gave Rs.240/- to one ofthe accused and other one was asked to sit in the shop so that the first onecan go and bring the tape recorder. After finding that the same was in goodcondition the extra amount of Rs.15/- was given to them. Thereafter,Ex.P18 was prepared and it was signed by one of the accused on the stamppaper and was attested by the other. He identified the tape recorder (M.O.2)which was sold by the accused. PW8 who runs pawn broker shop stated thatthe accused were frequently visiting his shop and on 20.12.1986 theypledged a tape recorder which was redeemed on 21.12.1986. Sale receiptEx.P8 was produced. Dhanraj (PW-16) is an employee of PW8 who startedthat the tape recorder was pledged on 22.12.1986 and was redeemed by A1.In the pawn broker's records, A1 has signed as Peter Brown. At thisjuncture. It is relevant to take note of Section 114 of the Evidence Act.Illustration (a) provides that a presumption arises that when a man is inpossession of stolen goods soon after the theft, he is either the thief or hasreceived the goods knowing them to be stolen, unless he can account for hispossession. Presumption of facts are assumption resulting from one'sexperience of the course of natural events of human conduct and humancharacter, and all those which one is entitled to make use of or has to makeuse of in the ordinary course of life, as well as the business of Courts. Itwas submitted by the learned counsel for the accused that there is noevidence that the one tape recorder which was pawned belonged to thedeceased. This plea is without any substance. The oral evidence of R.S.Macdermott (PW-2), Tayarmma (PW-5) and M.W. French (PW-6) clearlyshow that M.O.2 was one which belonged to the deceased. This article wasgifted to the deceased by her daughter. Documentary evidence of the taperecorder, customs invoice and the colour photograph (M.O.3) clearlyestablish that the tape recorder which was earlier with the deceased was thesame one which was pawned by the accused with PW8 and wassubsequently sold to PW21. From the evidence of PW-5, it appears thatdeceased wrapped in shawl, when she first found her bleeding on account ofinjuries. The weapon used in the assault for causing injuries on the deceasedand blood stained shawl (M.O.1) were sent for forensic examination.Forensic reports disclosed that blood group found on the weapon (M.O.4)was the same as was found on the shawl (M.O.1).

A faint plea was made by the learned counsel for the accused that foran article of very small value, no one would kill an old lady, particularlywhen the articles of higher value were not touched. This plea is really basedon suppositions. Robbery can be made of articles which are easy to bedisposed of. Articles of a particular category, for example, electronic goodsmay be preferred. It is on record that the accused-respondents were arrestedin another case of theft of T.V. set. Without going into the merits of thatcase, it can only be said by way of illustration that there may be fascinationfor selling goods of particular category which are easy to carry and areeasily disposable. In view of the credible evidence on record, it is notnecessary to fathom as to what was in the mind of the accused or find outwhy valuable articles were not lifted. This is not a case where theprosecution case rests only on the evidence in terms of Section 27 of theEvidence Act. That was only one of the pieces of evidence. It is, therefore,not necessary to decide the question as to whether conviction can berecorded only on the basis of such recovery. The High Court was clearly inerror in directing the acquittal.

The impugned order of the High Court is setaside, and that of the trial Court is restored.

The appeal is allowed.