Finding that the prosecution has failed in proving any acceptable chain of circumstantial evidence which points compellingly and conclusively to the guilt of the appellant who admittedly does not have any criminal antecedents, the Kerala High Court held that the breach of a statutory provision that is designed to protect a citizen from self-incrimination and arbitrary deprivation of life and personal liberty must necessarily have serious consequences for the prosecution, and therefore, constitutional safeguards cannot be rendered a teasing illusion by the very State that is obliged to uphold them.

At the same time, the High Court clarified that Sections 25 and 26 of the Evidence Act bans the admission of confessions made to the police, or by persons in police custody.

The High Court held so while considering the appeal filed by a person who was convicted for the gruesome murder of an elderly couple, based on his confessional statement recorded before the investigating officer.

The Division Bench of Justice A. K. Jayasankaran Nambiar and Justice Kauser Edappagath observed that “the admission into the evidence, of such confessional statements of the accused as are hit by Sections 25 and 26 of the Evidence Act and not saved by the provisions of Section 27 of the Act, would, without anything more, vitiate the trial against the accused and entitle him/her to an acquittal.”

Advocate Renjith B. Marar appeared for the appellant whereas Advocate K. P. Satheesan appeared for the Respondent.

The brief facts of the case were that the accused trespassed into the residence of an elderly couple with the intention of killing them. A scuffle occurred inside the house, wherein the accused inflicted multiple injuries, resulting in death of the couple. The accused also took two gold bangles, a gun, and cash of Rs.550/- and then put the dead bodies to fire by sprinkling kerosene and coconut oil. He also sprinkled the compound of Pepsi Entrine and Phenol all over the area where he had moved, to destroy any evidence of his presence at the scene. The next morning an FIR was registered and after initial investigation, the case was transferred to the CBI, resulting in the arrest of the accused. The Trial Court found the accused guilty of offence under Sections 302, 383, 449, 397, 392, 201 of IPC, entirely based on circumstantial evidence, and sentenced him to rigorous imprisonment. Hence, the accused approached the High Court challenging the decision of the trial Court.

After considering the submission, the Bench found that the testimony of the maid casts doubts on her credibility as a reliable witness, as she has deposed that when she came to the house of the deceased couple, she found the back door open and when she called out to the couple, there was no response.

“At that stage, instead of going inside the house where she had been working for the past many years, and searching for the couple, she left the place supposedly because she perceived a bad smell from inside the house and wanted to call someone for help. She returned to the crime scene much later, after having changed her clothes in between”, added the Bench.

Thus, the Bench pointed out that her testimony before the trial court that she saw the appellant in the vicinity of the house of the deceased nearer to the time of the gruesome murder is an improvement from her earlier statements to the Investigating Officers attached to the Local Police and the CBCID wherein she did not state so.

As regards the allegation of stealing gold bangles, the Bench observed that the same was not recovered from the shop where it was alleged to be sold, and therefore, there is no fact discovered pursuant to the alleged confession statement to bring it within the ambit of Section 27 of the Evidence Act.

Also, “the delay in obtaining the evidence of Saravanan and Thiruvenkada Kumar, as also in holding the TI parade wherein the appellant was identified by Saravanan, vitiates the said evidence and renders it insufficient to connect the appellant with the gold bangles taken from the body of Anandavally Amma which, in any event, was never recovered”, added the Bench.

While accepting that the billhook was recovered based on the confession statement given by the appellant before the CBI officials, the Bench elaborated that what can be attributed to the appellant by virtue of Section 27 of the Evidence Act is only the knowledge of concealment of the billhook at the place where it was found, as although the recovered billhook contained traces of blood on it, the FSL report does not link it to the scene of the crime.

“We also find it improbable that a billhook used for the crime would be concealed, by the perpetrator of the crime, at the shed from where it was eventually found almost three years later, when the gun that was taken from the house of the deceased couple on the same day was thrown into the well behind the said house, along with some passbooks”, added the Bench.

The Bench went on to observe that under the guise of marking the relevant portions of the confession statement of the accused before the CBI officials, to the extent permitted by Section 27 of the Evidence Act, what was done before the trial court was to produce the entire confession statement and selectively highlight the admissible portions within brackets.

Effectively, therefore, the High Court concluded that the entire confession statement was admitted in evidence, although with the fervent hope and expectation that the trial court would rely only on the bracketed portions as evidence against the accused.

Though being mindful of the fact that the murders committed in this case were most gruesome and inhumane and have caused insurmountable grief to the dear and near of the victims, the Bench clarified that they cannot ignore the duties requiring them to ensure that no person can be deprived of his life or personal liberty unless his guilt is firmly established beyond reasonable doubt.

Lastly, the Bench added that the practice of wholesale acceptance of confession statements of accused persons, albeit for introduction of the relevant statement under Section 27 of the Evidence Act, continues even today, notwithstanding the plethora of judgments of the High Courts and the Supreme Court since the 1960's that have deprecated the practice.

Accordingly, the High Court set aside the conviction and sentence passed against the appellant/accused and acquitted him of all the charges brought against him.

Cause Title: K. Babu v. State of Kerala [Neutral Citation: 2023/KER/64941]

Click here to read/download the Judgment


Kerala High CourtJustice A.K. Jayasankaran NambiarJustice Kauser Edappagath

Pankaj Bajpai