Munikrishna @ Krishna Etc. v. State by Ulsoor Ps
SUDHANSHU DHULIA, J.
The appellants before us have challenged the judgment and order
dated 31.8.2010 passed by the High Court of Karnataka in a Crimin al
Appeal which has upheld the order of conviction and sentence pass ed
by the Trial Court against the appellants which convicted the appellants
under Section 302 read with Section 34 IPC, and has sentenced them for
life imprisonment. We had heard Shri Lakshmeesh S. Kamath, learned
counsel for the appellant and Shri Nikhil Goel, learned Addit ional
Advocate General for the State at length on 24.08.2022 and granted
leave in the case, which was then reserved for judgment.
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
2. An FIR was lodged on 12.10.2000 at 1:15 PM mid night, which
was the intervening night between 11th October and 12th October, 2000
by the son-in-law of the deceased, S. Ramakrishnan. As per the FIR, his
father-in-law, who was seventy-two years of age, and was living alone
in house No.19/1 Haudin Road, Ulsoor, was murdered by some unknown
persons. The deceased last spoke to his daughter (wife of the informant),
at about 6:30 PM that evening. Informant then says that his wife and him
left their house in the evening that day (11.10.2000) to attend a dinner
engagement. They returned home at about 11:15 PM. On their ret urn
they received a call from a cousin Dr. B. Anarth Narayan, of the Indian
Institute of Sciences. Dr. Narayan informed him that he had received a
telephone call at about 10.00 PM, from one Sundar who is a neighbour of
his father-in-law. Sundar had informed that the gates of the house of his
father-in-law were open and lights were also on, which seemed unusual
at that hour in the night. On this information, the informant and his wife
rushed to the house of his father-in-law. He was apprehending that his father-
in- law may have collapsed, since he had a history of heart disease.
When they reached the house at around 11.30 PM, they immediately
had an impression as if something was burning in the kitchen. This
drew them to the kitchen, where they found the dead body of S.
Ramakrishnan. They also noticed that the cupboards of the living room
were open and the purse of her father was missing where he normally
kept approximately Rs.3000/-. They immediately informed the P olice
and the FIR was lodged and Criminal Case No.600 of 2000 was registered
for the offence punishable under Section 302 at Police Station, Ulsoor,
Bengaluru and investigation commenced.
3. Meanwhile, Inquest had started at about 07:00 AM in the morning
of 12.10.2000, and it is completed at 09:30 AM that day. The inquest
report states that a male person about 72 years old by the nam e of S.
Ramakrishnan s/o Subbaraya Ayyer, found dead at No. 19/1, Haudin
Road, Ulsoor, Bengaluru on the day of 12.10.2000.
Then it records: -
“The dead body is lying in blood pool in kitchen at Door No. 19/1,
Haudin Road, Ulsoor, facing the sky. Head facing West and legs
towards East. Eyes are open. A 4” long bleeding injury is found in
deceased’s neck; it is found to be cut with a sharp weapon. Both
the hands are stretched on the body. Cut injury caused in neck is
found to be caused by some antisocial elements. Deceased i s
421
wearing 1) A cross-belt, 2) White full arm banyan, 3) White
underwear, 4) White dhothi. All clothes are full of blood.
The dead body is found in kitchen at door No. 19/1, Haudin Road,
Ulsoor, the main door of the house is facing North, ‘kitchen door
is to the West, on entering the kitchen, the dead body is lying on
the floor facing the sky with head towards West and legs towards
East. Not found in water. Not in well.
On 12-10-2000 at 9.30 AM, Sri. NS. Ramachandrappa, Police
Inspector of Ulsoor Police Station, in order to know the act ual
cause for deceased’s death, sent the dead body to Bowring Hospital
Doctor through Sri. Giriyaiah PC-2539.
Sri. N.S. Ramachandra, P.I. has ordered PC 2539 to handover
the dead body to deceased’s blood relatives after postmortem, to
perform obsequies.
On 11-10-2000. Some culprits have murdered the diseased Sri. S.
Rakakrishnan, 72 years in the kitchen of his residence in between
6.30 PM and 11.30 PM and escaped from there by stealing around
Rs.3000/- from the cupboard, by cutting his neck with some sharp
weapon. However, we the Panchas opine that the dead body should
be sent to postmortem to find out the actual cause of deceased’s
death.”
4. A post-mortem was conducted on 12.10.2000 between 10:30-
11:30 AM. The post-mortem report indicates that there were seven ante
mortem injuries which are as follows:
“1. Horizontally placed Incised wound present over fr ont of
neck on the midline situated 8 cm below middle of Chin and 4
cm above level of suprasternal notch measuring 13 cm X 5
cm X cervical vertebrae deep, underneath muscles of front
and sides of neck, Jugular veins on both sides, carotid arteries
on both sides, trachea and oesophagus cut completel y and
the body of 5 th Cervical Vertebrae cut superficially, blood
extravasated around, margins are clean cut.
2. Obliquely placed incised wound over left side frontal region
situated 1 cm above inner end of left eye brow measurin g 4
cm X 1 cm X bone deep.
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
3. Incised wound over right side of neck situated 6 cm below
right ear lobule measuring 2.5 cm X 1 cm X muscle deep.
4. Incised wound present 1 cm below injury No.3 measuri ng
2 cm X 1 cm X muscle deep.
5. Superficial incised wound over left side of neck sit uated 4
cm below left ear lobule measuring 4cm X 0.5 cm X skin deep.
6. Superficial incised wound over front and upper pa rt. of
right side chest over right sterno clavicular joint me asuring
4 cm X 0.5 cm X skin deep.
7. Superficial incised wound over front and upper part of l eft
side chest, over left sterno clavicular joint 3 cm X 0.5 cm X
skin deep.”
5. Undoubtedly, it is a very heinous crime which has been
committed in the night of 11th October, 2000, where a seventy-two-year-
old man was done to death. In all probability he died because of the main
injury that is injury No.1 which is a 13 cm x 5 cm deep incised wound
on the front neck cutting jugular veins on both sides. The death would
have been in a few minutes due to the excessive loss of bl ood. The
post-mortem was conducted by Dr. Nissar Ahmad, who was the Assistant
Professor in the Department of Forensic Medicines Bowring Hospital,
Bangalore Medical College, Bangalore. He was later, examined in the
trial as PW-5. According to him, all the wearing apparels of the deceased,
like white lungi, white Katcha, white baniyan and white sacred th read
were all stained with blood, which were all handed over to the pol ice.
He had noticed the ante mortem injuries, as already referred above. All
the injuries were fresh injuries. On opening the dead body, he found all
the internal organs intact but pale. His opinion was that death was due
to shock and hemorrhage due to the ante mortem injuries in t he front
neck. On being questioned by the Court he replied that a pe rson who
sustains such injuries in the front neck, can only survive for a few seconds
and death is immediate and the injured cannot raise his voice. This expert
witness is referring to in particular to injury No.1, referred above. In his
post mortem report the cause of death is given as :-
“Death was due to shock and hemorrhage as a result of injury
over front of neck sustained.”
423
6. Meanwhile the investigation had commenced in the present
case. The present appellants were, however arrested by PW -15 who
was the Police Inspector and Investigation Officer in another case of
dacoity and murder which was registered at Police Station, Vijayanagar
as Crime No.674 of 1999 under Sections 354/397, IPC. This Investigation
Officer (PW-15) received information on 31.01.2001 about the location
of an accused called ‘Dodda Hanuma’. Dodda Hanuma was also an
accused in this case and had faced trial and was convicted like the other
appellants (he is, however, not before this Court amongst the p resent
appellants). The information received was that Dodda Hanuma had
escaped from the Chittor Jail after assaulting the staff of the jail. Following
the lead, this Police Inspector (PW-15) along with some Cons tables
reached Eachanoor village and caught the accused along with four other
persons at about 9.00 PM. All the five persons were taken into custody
and were brought to Vijayanagar Police Station and were formally arrested
on 01.02.2001. A voluntary statement was then given by Dodda Hanuma
(Accused No. 2), and finally all the five accused confessed that they
had committed the dastardly murder of S. Ramakrishnan on that fateful
night of 11.10.2000. They also volunteered to show the place where they
had committed the crime on the night of 11.10.2000 (i.e. House No. 19/
1, Haudin Road), and how they murdered the old aged person and then
decamped with the cash and jewelry. They led the Police party to the said
house that is House No. 19/1, Haudin Road, showed the exact place
where they had committed murder and got away with the cash and jewelry.
Meanwhile a videography statement of the accused was also recorded.
The videography was done by one, Sadashiva (PW-16), on 08.02.2001.
7. Consequent to the voluntary statement given by Doda Hanuma,
the police party was led to Raja Market, Nagaraj Complex to Shop No.
167, i.e., Satyanarayana Jewellery Mart where the a ccused Doda
Hanuma identified Janardhana Shetty (P.W.-17) of the said Jewelry Mart
and asked him to produce the jewels which he had sold to him. Thes e
were the jewels pertaining to Kamakshipalya case and U lsoor case
(present case). Janardhana Shetty, then produced a golden ingot, a pair
of golden ear rings having red stones and also drops pertaining to the
said pair of ear rings. The Police seized the said property and prepared
a mahazar in the presence of the panchas which is Ex. P-14.
8. Police after its investigation filed its chargesheet for the offences
under Section 302 read with 34 IPC, against all the accused. The case
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
was committed to the Sessions Court and then assigned to the IVth
Additional City Civil and Sessions Judge, Mayohall, Bangalore. On
19.03.2003 charges were framed against the accused under Section 302/
396, read with Section 34 IPC. Ultimately the accused were convicted
by the Trial Court under Section 302 read with Section 34 IPC. Out of
the five accused, who faced the trial and were convicted a nd their
conviction sentence was upheld by the High Court, we have only four
accused before this court. They are as follows :-
1. Appellant No.1, Munikrishna @ Krishna (accused No.4)
2. Appellant No.2, Nallathimma (accused No.3)
3. Appellant No.3, Lakshmi (accused No.5)
4. Appellant No.4, Venkatesh @ Chandra (accused No.1)
9. Undoubtedly, it is a case of homicide. The question is whether
the prosecution has been able to prove the case against the present
appellants, beyond reasonable doubt. The prosecution in order to establish
its case had examined as many as 17 prosecution witnesses, apart from
other exhibits such as forensic and other material, seizure memo of the
discovery of weapon of crime and the gold ornament from the jewelry
shop, etc.
10. PW-1 & PW-2 respectively are the son-in-law and daughter
of the deceased. They were the one who had first discovered the de ad
body on that fateful night of 11.10.2000. PW-3 is the witness of the
inquest reports, PW-4 is the witness for the seizure memo mahazar (Ex.
P2). PW-5 is the Doctor who conducted the post-mortem, PW-6 is the
watchman, who was on the watch between 9.30 PM to 5.30 AM. PW-
7 is the witness who accompanied the accused to the place of incident.
PW-8 is the constable who shifted the dead body from the house of the
deceased to the hospital for post-mortem. PW-15 is the Inspe ctor of
Police Station, Vijayanagar and the investigating officer, investigating
another crime who had arrested the present appellant on 01.02.2001,
and PW-9 & PW-14 are the police personnel who accompanied him
when he had apprehended the accused. PW-10 is the independent witness
for the seizure memo of knife (the weapon of crime), an d the witness
which led to the discovery of the knife on the pointing out of Accused
No.1. Similarly, PW-11 is the witness to the seizure memo of the golden
ingot from the ‘Satyanarayana Jewellery Mart’. PW-12 is t he police
Sub-Inspector of police station, Ulsoor, who had received the telephonic
425
message about the crime, at about 11.45 PM on 11.10.2000, saw the
dead body and then took PW-1 with him to the police station to lodge the
FIR. PW-13 is the police inspector who took up the investigation further
and finally filed the chargesheet in the case. PW-16 is the videographer
who had video graphed the statements of the accused persons.
PW-17 is the propriety of the Satyanarayana Jewellery Mart.
PW-15 is the Police Inspector who had apprehended the accused
while he was investigating another crime. As we can see there is no
direct evidence in the case. There is no forensic or scientif ic evidence
which links any of the present appellants to the crime. T he so-called
discovery of the weapon of crime and the discovery of stolen gold material
is also severely flawed. It is thus in sum and substance entirely a case of
circumstantial evidence.
11. It is a case of circumstantial evidence and in a case of
circumstantial evidence, the entire chain of evidence must be complete
and the conclusions which is arrived after examining the chain of evidence
must point towards the culpability of the accused and to no other
conclusion. This, however, is clearly missing from the case of the
prosecution. The entire case of the prosecution is based on the so-called
confessional statements or voluntary statements given by accused Nos.
1 to 5 (all the present appellants) while they were in p olice custody.
Statement given by an accused to police under Section 161 of CrPC is
not admissible as evidence. The so-called evidence discover ed under
section 27 of Indian Evidence Act, 1872, i.e., the recovery of stol en
items and the recovery of the weapon are also very doubtful.
12. In a case of circumstantial evidence, the Court has to scrutinize
each and every circumstantial possibility, which is placed before it in the
form of an evidence and the evidence must point towards only on e
conclusion, which is the guilt of the accused. In other word s, a very
heavy duty is cast upon the prosecution to prove its ca se, beyond
reasonable doubt. As early as in 1952, this Court in its seminal judgment
of Hanumant Govind Nargundkar & Anr. v. State of Madhya
Pradesh1 had laid down the parameters under which the case o f
circumstantial evidence is to be evaluated. It states: -
“… It is well to remember that in cases where the evidence is of
a circumstantial nature, the circumstances from whi ch the
1 AIR 1952 SC 343
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
conclusion of guilt is to be drawn should in the first instance be
fully established and all the facts so established should be consistent
only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the on e
proposed to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable gr ound
for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability
the act must have been done by the accused…”
Hanumant (supra) has been consistently followed by this Court.
To name a few, Tufail (Alias) Simmi v. State of Uttar Pradesh 2 ,
Ram Gopal v. State of Maharashtra3and Sharad Birdhichand Sarda
v. State of Maharashtra 4.
In Musheer Khan @ Badshah Khan & Anr. v. State of
Madhya Pradesh5 dated 28.01.2010, this Court while discussing the
nature of circumstantial evidence and the burden of proof of prosecution
stated as under: -
“39. In a case of circumstantial evidence, one must look for
complete chain of circumstances and not on snapped and scattered
links which do not make a complete sequence. This Court finds
that this case is entirely based on circumstantial evidence. While
appreciating circumstantial evidence, the Court must ad opt a
cautious approach as circumstantial evidence is “in ferential
evidence” and proof in such a case is derivable by inference from
circumstances.
40. Chief Justice Fletcher Moulton once observed that “proof does
not mean rigid mathematical formula” since “that is impossible”.
However, proof must mean such evidence as would induce a
reasonable man to come to a definite conclusion. Circumstantial
evidence, on the other hand, has been compared by Lord Coleridge
“like a gossamer thread, light and as unsubstantial as the air itself
and may vanish with the merest of touches”. The learned Jud ge
also observed that such evidence may be strong in parts but it
2 (1969) 3 SCC 198
3 (1972) 4 SCC 625
4 (1984) 4 SCC 116
5 (2010) 2 SCC 748
427
may also leave great gaps and rents through which the accus ed
may escape. Therefore, certain rules have been judicially evolved
for appreciation of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as the basis
of any legal inference from circumstantial evidence must be clearly
proved beyond any reasonable doubt. If conviction rests solely on
circumstantial evidence, it must create a network from which there
is no escape for the accused. The facts evolving out of such
circumstantial evidence must be such as not to admit of any
inference except that of guilt of the accused. (See Raghav
Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1
Cri LJ 70] )
42. The second principle is that all the links in the chain of evidence
must be proved beyond reasonable doubt and they must exclude
the evidence of guilt of any other person than the accused. (Se e
State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC
300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para
20.)
43. While appreciating circumstantial evidence, we must remember
the principle laid down in Ashraf Ali v. King Emperor [21 CWN
1152 : 43 IC 241] (IC at para 14) that when in a criminal case
there is conflict between presumption of innocence and any other
presumption, the former must prevail.
44. The next principle is that in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence
of the accused and are incapable of explanation upon any other
reasonable hypothesis except his guilt.
45. When a murder charge is to be proved solely on circumstantial
evidence, as in this case, presumption of innocence of the accused
must have a dominant role. In Nibaran Chandra Roy v. King
Emperor [11 CWN 1085] it was held that the fact that an accused
person was found with a gun in his hand immediately after a gun
was fired and a man was killed on the spot from which the gun
was fired may be strong circumstantial evidence against the
accused, but it is an error of law to hold that the burden of proving
innocence lies upon the accused under such circumstances. It
seems, therefore, to follow that whatever force a pres umption
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
arising under Section 106 of the Evidence Act may have in civil or
in less serious criminal cases, in a trial for murder it is extremely
weak in comparison with the dominant presumption of innocence.
46. The same principles have been followed by the Constitution
Bench of this Court in Govinda Reddy v. State of Mysore [AI R
1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted
the principles laid down in Hanumant Govind Nargundkar v. State
of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind
[AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30
of the Report in Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ
137] are:
“5. … ‘10. … in cases where the evidence is of a circumstantial
nature, the circumstances [which lead to the conclusion of guilt
should be in the first instance] fully established, and all the facts
so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of
a conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so f ar
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must b e
[shown] that within all human probability the act must have
been [committed] by the accused.’ [ As observed in Hanumant
Govind Nargundkar v. State of M.P., AIR 1952 SC 343 at pp.
345-46, para 10.]’’
The same principle has also been followed by this Court in Mohan
Lal Pangasa v. State of U.P. [(1974) 4 SCC 607: 1974 SCC (Cri)
643 : AIR 1974 SC 1144]”
13. In the case at hand the entire case of the prosecution is built
upon the confessional/voluntary statements made by the accused persons
before the police and the recovery of the alleged weapon of murder
recovered at the pointing out of the accused and the recovery of alleged
stolen gold material from a jewelry shop, again, on pointing out of the
accused. Let us deal with the first evidence. As per the p olice, all the
accused were arrested from a school building on 31.01.2001 and formally
arrested on 01.02.2001. They confessed to as many a s 24 crimes
committed by them. Their confessions of how they planned and executed
429
the murders has been captured on a video, which was also exhib ited
before the court. The Court has taken this evidence of voluntary
statements made by the accused and hence admitted it as evi dence.
This was done both by the Sessions Court as well as the Hig h Court.
The learned Sessions Judge records in his judgment dated 19.03.2003
records as under: -
“… The prosecution has played the audio in the open Court Hall
in the presence of the accused persons and jam-packed Court
Hall and on a mere perusal and hearing the video, it will be evident
that the accused persons themselves had explained the enti re
incident the manner in which they have committed the offence
alleged by the prosecution against them. The video statement of
accused no. 5 makes it clear as to how the deceased was made to
open the iron grill and as to how they had planned to murder the
aged innocent Ramakrishnan who was residing alone. The video
statement of the accused personal reveals the intension of the
accused person and also the manner in which they have made
deceased Ramakrishnan to open the iron grill and also the manner
in which the accused persons have committed the offence i n
murdering the aged man.”
The Sessions Court then refers to a decision of Supreme Court ,
(Shri N. Sri Rama Reddy, Etc. v. Shri V.V. Giri6) and states that in
view of this decision video tapes can also be used as corro borative
evidence. This is what has been said: -
“When such being the case, it goes without saying that the video
recorded statement of the accused persons can also be made use
as corroborative piece of evidence. If really, the accused persons
after witnessing and hearing the video cassettes suspecte d the
bonafide or genuineness of the video recorded statement of the
accused persons, instead of taking contention that their statements
obtained by making them to consume alcohol, they would have
requested the Court for subjecting the video tape records for
scientific scrutiny. In view of the rulings of the Ho nourable
Supreme Court, even video tapes of the voluntary statement of
the accused persons can be used as the corroborative piece o f
evidence. Thus, on perusal of the materials on record, it will b e
quite manifest that the circumstances relied upon by the prosecution
6 AIR 1971 SC 1162
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
will bring home the guilt of the accused beyond all reasonab le
doubt”
Later the High Court while hearing the appeal of the accus ed
gives a similar finding as follows : -
“It is not the case of the accused that they have not given voluntary
statements before PW 15 as per Ext P 8, 9, 10, 11 & 12. However,
it is their contention that they were made to drink liquor and under
the influence of liquor, the statements have been taken as pe r
Exs. P-8,9,10,11 & 12 and the statements were not voluntary.
The material on record does not probablise the said version taken
by the accused. In the absence of proof of the said fact, voluntary
statements at Exs. P- 8,9,10,11 & 12 given by accused Nos. 1 to
5 is proved to be voluntary as there is no material on record which
would probablise the defence taken by the accused that they were
made to drink liquor and their statements were recorded in the
influence of drinking and it was not voluntary”.
The High Court then affirms the finding of the Sessions Court and
the admissibility of the voluntary statement of the accused and the
videography placed before the Court and states as under: -
“It is clear from the above said proved circumstances th at the
accused have committed murder of S Ramakrishnan aged 72 years
by slitting his neck as he was living alone in the house. The only
defence taken by the accused is that they have given volunt ary
statements under the influence of liquor which is not probabilised
by the material on record and in view of statements of the accused
pointing to the scene of offence wherein S Ramakrishnan was
murdered and Ramakrishnan suffered homicidal death and
recovery of M.O.1 which according to P.W.5 would cause injury
found on the body of S Ramakrishnan and also recovery of
ornaments which they melted into ingot from the shop of P.W.17
and the fact that accused have shown the place where they
committed the scene of offence in furtherance of the voluntary
statements have been conclusively proved by the prosecution and
such circumstances form a complete link which would point out
only to the guilt of the accused and is wholly inconsistent w ith
their innocence.
431
The trial Court has appreciated oral and documentary evidence on
record in the right perspective and on re-appreciation of the entire
material on record, we hold that finding of guilt arrived at against
the accused Nos.1 to 5 – appellants herein for having committed
the offence punishable under Sections 302 & r/w 34 of IPC is
justified and sentence imposed thereon cannot also be said to be
excessive so as to call for interference in this appeal.”
Both the Trial Court and the Appellate Court went comple tely
wrong in placing reliance on the voluntary statements of th e accused
and their videography statements. Under Article 20(3)7 of the Constitution
of India, an accused cannot be compelled to be a witness against himself.
Again, under Section 258 of the Indian Evidence Act, 1872; a confessional
statement given by an accused before a Police officer is inadmissible as
evidence.
The reference of the Supreme Court judgment by the trial Court
(Shri N. Sri Rama Reddy v. Shri V.V. Giri) is also misplaced. That
case only refers to the admissibility of a tape- recorded conversation in
an election petition which is tried before a Court unde r the Civil
Procedure Code (Section 87 of the Representation of People Act, 1951).
This Court, in the above cited judgment was not dealing with a criminal
case and most certainly not on the admissibility of a statement given by
an accused to the Police under Section 161 of Code of Criminal
Procedure. Indeed, the above judgment also ends with a note of caution:
“30. We once again emphasize that this order relates only to the
admissibility in evidence of the conversation recorded on tape
and has not dealt with the weight to be attached to that evidence.
It must also be pointed out that the question, whether the pamphlets,
Exhibits P-18-B and P-37- A, have been circulated in the manner
alleged by the petitioners and the further question whether they
amount to exercise of undue influence are also matters which
have not been considered in this order. The above are all aspects
which will be dealt with in the judgment, while disposing of the
election petitions.”
7 20 (1) XXX XXX
(2) XXX XXX
(3) No person accused of any offence shall be compe lled to be a witness against
himself.
8 25. Confession to police-officer not to be proved. –– No confession made to a
police-officer, shall be proved as against a person accused of any offence.
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
Thus, the opinion of this Court regarding the admissibility of a
tape-recorded conversation, was in an entirely different context.
As far as the recovery of gold ingot is concerned, PW-1, i.e., the
son-in-law and the complainant has said in his evidence before the Court
that he does not recognize the ingot and it does not belong to his father-
in-law. Therefore, the gold which has been recovered ha s not been
identified as the one which was stolen from the house of the deceased.
The recovery of knife is also doubtful. Firstly, Venkatesh who had led
the discovery had mentioned about the knife and its disposal on 01.02.2001
when he was arrested. The recovery, however was made on 15.05.2001
i.e., four and a half months later. Why such a belated recover y was
made has not been explained. Secondly, the independent witness to this
recovery PW-10 Murugan, had also turned hostile dur ing cross-
examination as he said that he does not recognize Venkatesh (accused)
on whose pointing out the alleged recovery was made. So much for the
recovery of the murder weapon.
14. At this juncture, we may also add that some of the accuse d
who were before us were also facing another trial of simi lar nature in
which they were convicted on 17.09.2010 and sentenced to death.
Thereafter in Appeal their conviction was upheld, but the sentence was
converted to life imprisonment by the High Court. They finally came
before this Court in Appeal. The course of investigat ion and the
appreciation of evidence by the Trial Court and the Appellate Court had
taken a similar course as they have in the present case. While hearing
their Criminal Appeal (Nos. 1476-1477 of 2018)9 this Court made certain
observations, which are equally relevant for the presen t case as well.
Regarding the investigation of the Police in the case, this is w hat was
said by this Court:
“…19. We must observe that we have repeatedly found a tendency
on part of the Prosecuting Agency in getting the entire statement
recorded rather than only that part of the statement which lea ds
to the discovery of facts. In the process, a confession of an accused
which is otherwise hit by the principles of Evidence Act finds its
place on record. Such kind of statements may have a di rect
tendency to influence and prejudice the mind of the Court. This
practice must immediately be stopped. In the present cas e, the
9 2022 SCC OnLine SC 765
433
Trial Court not only extracted the entire statements but also relied
upon them.
20. The other disturbing feature that we have noticed is t hat
voluntary statements of the appellants were recorded on a DVD
which was played in Court and formed the basis of the judgment
of the Trial Court as is noticeable from paragraph Nos. 34 and 35
of its judgment. Such a statement is again in the nature of a
confession to a Police Officer and is completely hit by the principles
of Evidence Act. If at all the accused were desirous of maki ng
confessions, the Investigating Machinery could have facilita ted
recording of confession by producing them before a Magistrate
for appropriate action in terms of Section 164 of the Code. Any
departure from that course is not acceptable and can not be
recognized and taken on record as evidence. The Trial Court erred
in exhibiting those DVD statement Exh.P-25 to 28. As a matter of
fact, it went further in relying upon them while concludin g the
matter on the issue of conviction.
21. What has further aggravated the situation is the fact that said
statements on DVD recorded by the Investigating Agency wer e
played and published in a program named “Putta Mutta” by Udaya
TV. Allowing said DVD to go into the hands of a private TV
channel so that it could be played and published in a program is
nothing but dereliction of duty and direct interference in the
administration of Justice. All matters relating to the c rime and
whether a particular thing happens to be a conclusive piec e of
evidence must be dealt with by a Court of Law and not through a
TV channel. If at all there was a voluntary statement, the matter
would be dealt with by the Court of Law. The public platform is
not a place for such debate or proof of what otherwise is the
exclusive domain and function of Courts of law. Any such debate
or discussion touching upon matters which are in the domain of
Courts would amount to direct interference in administration of
Criminal Justice.
22. The last disturbing feature is the fact that Chart E xh.P-29
was taken to be proof of the activities of the gang to whic h the
appellants allegedly belonged. Apart from exhibiting the chart, no
details or documents either in the form of chargesheet or orders,
depositions were produced on record. If the Prosecution wanted
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
the Court to take note of the fact that there were other matters in
which accused were involved, the concerned Chargesheets should
have been produced on record along with sufficient details including
the judgments or orders of conviction. A mere chart cannot be
taken as proof of the involvement of the accused in other crimes
either at the stage of conviction or sentence. But that fac tor
seriously weighed with the Trial Court as is obviou s from
paragraphs 15 to 18 of the order of sentence. In fact, such
involvement was taken to be one of the reasons why the deat h
sentence was awarded by the Trial Court. Such a practice c an
never be approved.
23. We must clarify that the approach at certain stages including
the stage of considering the bail application may be qualitatively
different. At the stage of consideration of bail, the primary concern
is to weigh in balance the liberty of an accused and the possible
prejudice that may get visited upon the societal interes t in case
he is released. It would therefore be apt and proper to c onsider
his involvement in other crimes. But at the stage of final assessment
whether conviction be recorded or not, the matter m ust be
considered purely on its merits unless the very membership of a
gang or a group or an outfit itself can amount to an offence or as
an aggravated form of an offence. Again, at the stage of sentencing,
his involvement in other crimes may be a relevant factor provided
the concerned material in the form of concluded judgments in the
other matters are brought on record in a manner known to law.
The established involvement in other matters would then certainly
be relevant while dealing with the question whether the concerned
accused is required to be dealt with sternly or leniently.
24. We have gone through Chart Exh. P-29. According to said
chart, in so far as the present appellants are concerned, they were
said to be involved in one more crime which has given rise t o
Special Leave Petition (Crl) Diary No.24079 of 2020 and was
listed along with the instant appeal before us. That matter is still
pending consideration before us. Therefore, what weighed with
the Trial Court was the alleged involvement of the other members
of the alleged gang in so many similar activities, in support of
which there was no concrete material, other than the confessions
of the appellants.”
435
15. We must add that this Court in its order dated 19.04.2022 has
allowed the above appeal and has set aside the order of t he Sessions
Judge as well as of the High Court which had placed its reliance almost
completely on the statement made by the accused before the Police
under Section 161 of CrPC. This is exactly what has been done in the
present case as well and consequently this too must meet the same fate.
Indeed, it was also the case of the prosecution that the appellants belong
to a gang which commits crime of this nature and that the modus operandi
is by and large the same in all cases. It was alleged that t he appellants
are involved in as many as 20-25 such cases. But what was given before
the Court was a chart giving description of offences, numbers and Sections
under which such offences had been allegedly committed. No documents
in the nature of chargesheet or any other proof was submitted. Therefore,
this factor cannot be taken into account. This was also not taken into
account by this Court in the above order dated 19.04.2022, while allowing
the Criminal Appeal No. 1476-1477 of 2018 as referred above.
16. Ordinarily, this Court does not interfere with concurrent
findings of facts as they are in the present case. But, then in the present
case it has become necessary to interfere with the findings for the reasons
that both the High Court as well as the Sessions Court have ignored the
well-established principles of criminal jurisprudences and have relied upon
facts and evidences which are clearly inadmissible in a cou rt of law.
The crime indeed was ghastly, to say the least. Yet, linking the crime to
the present appellants is an exercise which was to be undertaken in the
court of law under established principles of law. This has not been done.
This Court in Sharad Birdhichand Sarda (supra) has cautioned thus: -
“179. We can fully understand that though the case superficially
viewed bears an ugly look so as to prima facie shock the
conscience of any court yet suspicion, however great it may be,
cannot take the place of legal proof. A moral conviction however
strong or genuine cannot amount to a legal conviction supportable
in law.
180. It must be recalled that the well- established rule of criminal
justice is that “fouler the crime higher the proof”. In the i nstant
case, the life and liberty of a subject was at stake. As the accused
was given a capital sentence, a very careful, cauti ous and
meticulous approach was necessary to be made.”
MUNIKRISHNA @ KRISHNA ETC. v. STATE BY ULSOOR PS
[SUDHANSHU DHULIA, J.]
17. In view of the above, these appeals are allowed, the order of
the Sessions Judge dated 19.03.2003 and the High Court dated 31.08.2010
are hereby set aside, the appellants shall be released from jail, unless
they are wanted in some other crime.
Divya Pandey Appeals allowed.
(Assisted by : Neha Sharma, LCRA)