Exception U/S. 27 Evidence Act Applies Even If Accused Is Not Formally Arrested At The Time Of Giving Information: Supreme Court

The Supreme Court observed that 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, 1872, and accordingly exception under Section 27 of the Evidence Act would apply. 

The Court reiterated thus in an appeal filed by a man against the judgment of the Madras High Court by which his conviction was affirmed under Sections 302 and 201 of the Indian Penal Code (IPC).

The two-Judge Bench comprising Justice Sanjiv Khanna and Justice S.V.N. Bhatti observed, “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 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. ... 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."

The Bench clarified that Section 27 of the Evidence Act, 1872 does not lay down the principle that the discovery of a fact is to be equated to the object produced or found.

"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", it also held.

Senior Advocate Col R. Balasubramanian represented the appellant while Advocate Aravindh S. represented the respondent.

Facts of the Case -

The appellant-convict was 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. The other co-accused were acquitted by the Trial Court and one was tried as a juvenile and acquitted. In 2013, the case of another co-accused was split up since he was absconding. Subsequently, vide judgment passed in 2019, which was placed on record as additional evidence, the co-accused was acquitted.

The convict challenged the judgment of the High Court which affirmed his conviction for murder. The Principal Sessions Judge, Puducherry had convicted him. The convict along with others had committed murder of a person whose body was thrown in the sump tank located in a house. Various belongings were also removed from the same house including iron box, home theatre, CD player, documents of the house, motorcycle, etc. The deceased’s body was cut into two pieces and put in two sack bags.

The Supreme Court in view of the facts and circumstances of the case noted, “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.”

The Court further said that the appellant plainly denied all accusations under Section 313 of the Criminal Procedure Code (CrPC) 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, 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”, also noted the Court.

The Court said that 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 and that Section 27 of the Evidence Act does apply to joint disclosures, but this is not one such case. It observed that the whereabouts of the deceased were unknown and the perpetrator(s) were also unknown.

“… 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”, it said.

The Court concluded that the conviction of the appellant is sustainable and the judgment of acquittal would not qualify as relevant and of evidentiary value so as to acquit him in the case.

Accordingly, the Apex Court dismissed the appeal and upheld the conviction.

Cause Title- Perumal Raja @ Perumal v. State (Neutral Citation: 2024 INSC 13)

Appearance:

Appellant: AOR D.kumanan, Advocates Raghav Gupta, Y. William Vinoth Kumar, and Ram Sankar.

Respondent: Advocates Abbas and Kavya Geetha.

Click here to read/download the Judgment