Holding

The High Court correctly appreciated the evidence; the voluntary statement is admissible under Section 27 and the circumstantial evidence establishes the accused's guilt beyond reasonable doubt.

Summary

The appellant Siju Kurian was convicted by the Karnataka High Court for murder, concealment of body, theft and cheating. The conviction rested on circumstantial evidence, the post‑mortem report establishing homicide, witnesses who saw the accused with the deceased, and a voluntary statement made by the accused that led police to recover the body and stolen articles. The appellant challenged the admissibility of that statement under Section 27 of the Evidence Act and argued that the High Court should not have interfered with the trial court's acquittal. The Supreme Court held that the voluntary statement was admissible under Section 27, the chain of circumstances was complete, and the High Court correctly re‑appraised the evidence. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

The admissibility of the accused's voluntary statement under Section 27 of the Evidence Act for the purpose of discovering the body and stolen articles.
Whether the High Court erred in convicting the accused on the basis of circumstantial evidence and the 'last seen' theory.
Whether an appellate court can set aside an acquittal when it finds the trial court's judgment perverse.
The applicability of the burden of explanation under Section 106 of the Evidence Act to the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 378
Indian Evidence Act, 1872s. 106, s. 25, s. 27, s. 8
Indian Penal Code, 1860s. 201, s. 302, s. 404, s. 419
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970s. 2

Subjects

circumstantial evidenceSection 27 Evidence Actvoluntary statementmurder convictionappellate jurisdictionburden of proofpost‑mortem reportlast seen theory

Judgment

[2023] 4 S.C.R. 397 397

SIJU KURIAN A
v.
STATE OF KARNATAKA
(Criminal Appeal No. 64 of 2021)
APRIL 17, 2023 B
[SURYA KANT AND ARAVIND KUMAR, JJ.]
Penal Code, 1860: ss. 302, 201, 404 and 419 – Circumstantial
Evidence – Reliance upon – Prosecution case that the accused-
labourer in the farmhouse of the victim, murdered the victim by hitting
C
him with iron rod and then hid the dead body in a pit located in the
garden – Other articles also concealed – Accused stole the articles
in the farm house and sold them as also sold the land to make undue
monetary gain – Acquittal by the trial court on the ground that
prosecution failed to prove its case beyond reasonable doubt –
However, the High Court convicted and sentenced the accused for D
the offence punishable u/ss. 302, 201, 404 and 419 – On appeal,
held: Death of the victim being homicidal stands proved by the post
mortem report – Prime witnesses as also other prosecution witnesses
testified that accused last seen in the company of the victim –
Recovery of dead body as also articles of the deceased on basis of
E
the voluntary statement of accused, and was also proved through
the prosecution witnesses – Articles sold by the accused were
recovered on the strength of the voluntary statement of the accused
– Plea that confession statement is to be discarded in its entirety
cannot be accepted – Also it cannot be said that the statement was
not being voluntary or it was recorded improperly – Thus, the F
conclusion arrived at by the High Court is based on sound
appreciation of evidence and proper application of law – No
material irregularity in the judgment of the High Court – On re-
appreciation of entire evidence by the High Court in proper
perspective, it was rightly held that the accused alone committed
G
the murder of the victim and there being no other possible view
which could be considered as missing in the link of chain of
circumstances – Thus, the order passed by the High Court upheld –
Evidence Act 1872 – ss. 8, 25 and 27.

H
397
398 SUPREME COURT REPORTS [2023] 4 S.C.R.

A Evidence Act, 1827: s 27 – How much of information received
from accused may be proved – Held: Section 27 permits the
derivative use of custodial statement in the ordinary course of events
– There is no automatic presumption that the custodial statements
have been extracted through compulsion – In pursuance to a
voluntary statement made by the accused, a fact must be discovered
B
which was in the exclusive knowledge of the accused alone – In
such circumstances, that part of the voluntary statement which leads
to the discovery of a new fact which was only in the knowledge of
the accused would become admissible u/s.27 – Such statement should
have been voluntarily made and the facts stated therein should not
C have been in the knowhow of others.
Code of Criminal Procedure, 1973: s. 378 – Appeal against
acquittal – Powers of appellate court – General principles – Stated.
Dismissing the appeal, the Court

D HELD: 1.1 It would be open for the High Court to re-apprise
the evidence and conclusions drawn by the trial court and in the
case of the judgment of the trial court being perverse that is
contrary to the evidence on record, then in such circumstances
the High Court would be justified in interfering with the findings
of the trial court and/or reversing the finding of the trial court.
E The appellate court may reverse the order of acquittal in the
exercise of its powers and there is no indication in the Code of
any limitation or restriction having placed on the High Court in
exercise of its power as an appellate court. No distinction can be
drawn as regards the power of the High Court in dealing with an
F appeal, between an appeal from an order of acquittal and an appeal
from a conviction. The Code of Criminal Procedure does not place
any fetter on exercise of the power to review at large the evidence
upon which the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal should
be reversed. [Para 13][411-F; 412-B-D]
G
1.2. The circumstantial evidence relied upon by the State
to prove the circumstances which points to the guilt of the
accused alone for having committed the offence as summarized
by the High Court cannot be found fault with. [Para 15][413-H;
414-A]
H
SIJU KURIAN v. STATE OF KARNATAKA 399

1.3. The death of the victim being homicide stands proved A
by virtue of the Post Mortem report. The said report would
indicate the death would have occurred 45-60 days prior to the
post-mortem examination. PW-22, doctor opined that the victim
had died due to brain hemorrhage that occurred because of
commuted fracture on the forehead. The irresistible conclusion
B
drawn by the High Court, death of the victim was homicidal cannot
be found fault with. [Para 16][414-B, D-E]
1.4. The submission for the accused that it is not possible
to state conclusively as to what had exactly happened, due to
lack of eye-witnesses and therefore the possibility of the deceased
having fallen and suffered an injury cannot be ruled out is an C
argument which cannot be accepted and finding recorded by the
High Court deserves to be affirmed. [Para 16.1][414-E-F]
1.5. The fact that accused was last seen in the company of
the deceased is testified by PW-10 and PW-14. Apart from two
prime witnesses, PW-5, PW-7, PW-9, PW10, PW-11 and PW-15 D
also clearly and in unequivocal terms deposed that accused was
last seen in the house of the deceased after his death. Even if
one witness amongst these is to be believed as to what has been
deposed is the truth, necessarily the onus is on the accused to
provide a satisfactory explanation either in his statement recorded E
under Section 313 Cr.P.C. or from the admissions elicited from
these witnesses, the circumstances in which he was in the
company of deceased. When PW-10 and PW-14 have clearly stated
that they had seen the accused in the company of the deceased,
and there being no satisfactory explanation offered by the accused
to the contrary, it has to be necessarily held that accused had F
failed to discharge the burden cast upon him. When PW-10 and
PW-14 have in clear terms deposed to have last seen the accused
with the deceased, necessarily accused must offer an explanation
as to how and when he started living separately and there being
no explanation offered necessarily in the chain of circumstances, G
the last seen theory propounded by the prosecution to drive home
the guilt of the accused requires to be accepted. [Para 16.5 and
16.6][416-G-H; 417-A; 418-B-C]

H
400 SUPREME COURT REPORTS [2023] 4 S.C.R.

A 1.6. The prosecution relied upon is the recovery of dead
body at the instance of the accused, based on voluntary statement,
which statement has been disowned by the accused and the same
not having been proved by the prosecution according to the
accused. The said statement of the accused has been marked as
Ex.P-2 through PW-25. The said statement was recorded in the
B
presence of PW-1, CW-3 and interpreter – PW-10. [Para 17][418-
D-E]
1.7. Section 27 permits the derivative use of custodial
statement in the ordinary course of events. There is no automatic
presumption that the custodial statements have been extracted
C through compulsion. A fact discovered is an information supplied
by the accused in his disclosure statement is a relevant fact and
that is only admissible in evidence if something new is discovered
or recovered at the instance of the accused which was not within
the knowledge of the police before recording the disclosure
D statement of the accused. The statement of an accused recorded
while being in police custody can be split into its components
and can be separated from the admissible portions. Such of those
components or portions which were the immediate cause of the
discovery would be the legal evidence and the rest can be rejected
The submission by the accused that the confession statement is
E to be discarded in its entirety cannot be accepted for reasons
more than one. Firstly, the conduct of the accused would also be
a relevant fact as indicated in Section 8. [Para 18][419-A-D]
1.8. It is a trite law that in pursuance to a voluntary
statement made by the accused, a fact must be discovered which
F was in the exclusive knowledge of the accused alone. In such
circumstances, that part of the voluntary statement which leads
to the discovery of a new fact which was only in the knowledge of
the accused would become admissible under Section 27. Such
statement should have been voluntarily made and the facts stated
G therein should not have been in the knowhow of others. When
the deposition of PW-10 is perused it would leave no manner of
doubt that statement of the accused having been recorded being
voluntary and when the statement is being recorded in the
language not known to the accused, the assistance of interpreter

H
SIJU KURIAN v. STATE OF KARNATAKA 401

if taken by the police cannot be found fault with. The ultimate A
test of the said statement made by the accused having been noted
down as told by the accused or not would be of paramount
consideration. If the answer is in the affirmative then necessarily
said statement will have to be held as passing the test of law as
otherwise not. Merely because the translation was made from
B
Malayalam to Tamil and written down in Kannada would not
suggest that such statement be held to be either not being
voluntary or the said statement having been recorded improperly.
Merely because PW-10 did not know how to read and write
Malayalam does not ipso facto make the contents of the statement
to be disbelieved. On the other hand, he states that he is from C
Kerala and he knows how to speak Malayalam. What was required
to be performed by him was to pose the question as stated by the
witness to the accused and the answers given to such questions
are to be stated to the police for being recorded as stated by the
accused. In fact, there is not even a suggestion made to PW-10
D
about the contents of the statement being incorrect. [Para 19][420-
B-H; 421-A]
1.9. It is no doubt true that confession of PW-25 in its
entirety is not admissible in view of Section 25 of the Evidence
Act. However, in the teeth of Section 8 read with Section 27 of
the Evidence Act, that part of the confession which led to the E
recovery of the dead body of the victim would become admissible,
apart from other articles of the deceased recovered at the instance
of the accused has been identified by several witnesses
independently. This has also persuaded the High Court to accept
the statement recorded under Ex.P-2 as being admissible which F
cannot be construed as highly improbable. Certain articles were
recovered on the strength of confession statement made by the
accused and in order to prove such recovery the witnesses have
been examined by the prosecution and this has also persuaded
the Court to accept the findings of the High Court. [Para 20][422-
G-H; 423-A-B] G

1.10. The other surrounding circumstances which prove
the accused being guilty of the offence beyond reasonable doubt
are the recovery of the articles belonging to the deceased and
sold by the accused which were recovered on the strength of the
H
402 SUPREME COURT REPORTS [2023] 4 S.C.R.

A voluntary statement of accused. PW-5 clearly stated as to how
the accused intended to sell the immoveable property belonging
to the deceased. PW 5 has clearly deposed as to how the accused
was apprehended by the police when he was attempting to sell
the property of the deceased. That apart the statements made by
the accused that deceased had gone to Kerala or the deceased
B
had suffered a paralytic stroke or deceased had proceeded to
America and expired there are all incorrect and conflicting
statements as has been deposed by PW-5. The conclusion arrived
at by the High Court is based on sound appreciation of evidence
and proper application of law. On account of evidence available
C on record having been ignored and there being patent perversity
in appreciation of evidence by the Sessions Judge it resulted in
interference by the High Court. No material irregularity has crept
in the judgment of the High Court calling for interference. On
re-appreciation of entire evidence by the High Court in proper
perspective it has resulted in arriving at a right conclusion viz.
D
that accused alone committed the murder of the deceased and
there being no other possible view which could be considered as
missing in the link of chain of circumstances, the appeal is devoid
of merits. The judgment passed by the High Court is upheld.
[Paras 21-23][428-G-H; 429-A-B, C-E]
E Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Sheo Swarup v.
King Emperor AIR 1934 PC 227; Naresh Chandra Das
v. Emperor AIR 1942 (Cal) 593; Pohalya Motya Valvi
v. State of Maharashtra (1980) 1 SCC 530; Anvar P.V.
F v. P.K. Basheer (2014) 10 SCC 473; Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC
1; State of Karnataka v. Suvarnamma (2015) 1 SCC
323 : [2014] 10 SCR 778; Pattu Rajan v State of Tamil
Nadu (2019) 4 SCC 771 : [2019] 5 SCR 535; State of
Rajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8
G Suppl. SCR 501; A.N. Venkatesh & Ors. v. State of
Karnataka (2005) 7 SCC 714; Gamini Bala Koteswara
Rao v. State of Andhra Pradesh AIR 2010 SC 589 :
[2009] 14 SCR 1 – referred to.

H
SIJU KURIAN v. STATE OF KARNATAKA 403

Chandrappa and Others v. State of Karnataka (2007) A
4 SCC 415 : [2007] 2 SCR 630; Murugesan v. State
through the Inspector of Police (2012) 10 SCC 383 :
[2012] 13 SCR 1; Mohmed Inayatullah v. State of
Maharashtra AIR 1976 SC 483 : [1976] 1 SCR 715 –
relied on.
B
Case Law Reference
[1985] 1 SCR 88 referred to Para 8.2
[2007] 2 SCR 630 relied on Para 8.2, 14
[2012] 13 SCR 1 relied on Para 8.2, 12 C

(1980) 1 SCC 530 referred to Para 8.2
(2014) 10 SCC 473 referred to Para 8.2
(2020) 7 SCC 1 referred to Para 8.2, 9 D
[2006] 8 Suppl. SCR 501 referred to Para 9, 16.5
(2005) 7 SCC 714 referred to Para 9, 18
[2014] 10 SCR 778 referred to Para 9, 22
E
[2019] 5 SCR 535 referred to Para 9, 22
[2009] 14 SCR 1 referred to Para 9
[1976] 1 SCR 715 relied on Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. F
64 of 2021.
From the Judgment and Order dated 20.03.2020 of the High Court
of Karnataka at Bengaluru Bench in Criminal Appeal No. 335 of 2014.
Renjith B. Marar, Zulfiker Ali P. S., Ms. Lakshmi Sree P.,
Ms. Lebina Baby, Advs. for the Appellant. G

V. N. Raghupathy, Adv. for the Respondent.

H
404 SUPREME COURT REPORTS [2023] 4 S.C.R.

A The Judgment of the Court was delivered by
ARAVIND KUMAR, J.
1. This appeal under Section 2(1)(a) of the Supreme Court
(Enlargement of Criminal AppellateJurisdiction) Act, 1970 by the sole
accused in Sessions Case No.96 of 2012 on the file of the Fast Track
B Court, Sagar Taluk,arises from a judgment rendered by the High Court
of Karnataka in Criminal Appeal No.335 of 2014 filed by the State of
Karnataka against the judgment of the Fast Track Court reversing the
order of acquittal and convicting the appellant for the offence punishable
under Section 302 of the Indian Penal Code (for short ‘the IPC’), 201 of
C IPC, 404 of IPC and 419 of IPC and sentencing him to simple
imprisonment for life and also sentencing to undergo simple imprisonment
for a period of 3 years/2years for the respective offences which has
been ordered to run concurrently and also fine.
2. Brief facts of the case as putforth by the prosecution are:
D accused was working as a labourer in the farmhouse of Mr. Jose Kafan
(deceased) in Kerodi village of Sagar Taluk (Karnataka State) and on
02.12.2011 between 6:00 am to 6:30 am, said accused had entered the
room of the deceased through the eastern side of the farmhouse while
he was sleeping there and murdered him by hitting with iron rod on his
face, upon his left eyebrow and on his left chin with force, then stole the
E articles in the farmhouse and sold the same and also sold the land of said
farmhouse to others to make undue monetary gain. In order to conceal
the act and with a deliberate intention to destroy the evidence, the accused
then hid the dead body in a pit meant for storing ash manure in the
garden land located at a short distance from the farmhouse in the western
F side of the farmhouse. The iron rod used for committing the murder,
waist belt of the deceased person, his pant, shirt were also concealed
below the upper crust of soil in the gardenafter which, he had sold
theequipmentsstolen from the farmhouseto Sunil Kumar (CW-18) for
consideration and likewise he had sold other items toMr. Denis C
Thomas(CW20). It was alleged that said amount released by way of
G sale was dishonestly misappropriated by the accused. It is further alleged
by the prosecution that accused impersonating himself as the son of the
deceased person had also attempted to sell the land of the deceased to
others and to substantiate his false claims had also handed over the
documents of the farmhouse of the deceased to CW-15 Mr. Lizo and
H thereafter he had absconded.
SIJU KURIAN v. STATE OF KARNATAKA 405
[ARAVIND KUMAR, J.]

3. Mr. Sajid, son of the deceased lodged a missing complaint and A
in the backdrop of information regarding the accused,inquiry was
conducted and accused confessed to the crime and showed where the
dead body was concealed in the presence of witnesses. Hence, the
prosecution alleged in this manner accused had murdered the father of
the complainant, sold the belongings of the deceased and handed over
B
the documents of the land owned by the deceased, proclaiming himself
to be the son of the deceased and had made attempts to sell the land
illegally to others. On completion of investigation the charge-sheet came
to be filed against the accused for the offences punishable under Sections
302, 201, 404 and 419 of IPC for committing a cognizable offence. Charge
came to be framed against the accused and same having been C
deniedresulted in trial being held and in order to drive home the guilt of
the accused prosecution got examined 25 witnesses as PW-1 to PW-25
and got exhibited material evidence as per Ex.P-1 to P-51 and the material
objects as MO1 to MO47. On conclusion of prosecution evidence, the
statement of the accused person under Section 313 of Code of Criminal
D
Procedure, came to be recorded and accused pleaded not being guilty
and also reiterated his stand of being innocent.Learned Sessions Judge
after having heard the arguments on both the sides formulated six points/
issues of determination. The learned Trial Judge acquitted the accused
by arriving at a conclusion that prosecution had failed to prove its case
beyond reasonable doubt, by judgment dated 08.08.2013. State being E
aggrieved by the same filed Criminal Appeal No.-335 of 2014 assailing
the said order of acquittal contending inter alia that Sessions Judge had
failed to appreciate the evidence and/or there is erroneous appreciation
of evidence and as such the accused had to be convicted.It was also
contended that though recoveries of the articles, namely, material object
F
was at the instance of the accused and the testimony of the witnesses
clearly supported the case of the prosecution, yet learned Sessions Judge
had erroneously disbelieved the case of the prosecution. It was also
canvassed that on account of non-consideration of the evidence of the
doctor PW-22 in proper perspective it had resulted in an erroneous order
of acquittal being passed by Sessions Court. On these amongst other G
grounds as urged in the appeal memorandum the State sought for reversal
of the Order of acquittal passed by the Trial Court. After considering the
arguments advanced by the respective learned advocates appearing for
the prosecution as well as the accused the High Court reversed the
finding recorded by the Trial Court and convicted the accused for the
H
406 SUPREME COURT REPORTS [2023] 4 S.C.R.

A offence punishable under Sections 302, 201, 404 and 419 of IPC and
sentenced him to life imprisonment as already noticed herein supra.Hence
this appeal.
4. We have heard the arguments of Shri. Renjith B.Mararlearned
counsel appearing for the appellant along with Mr. Zulfiker Ali P.S,
B Ms. Lakshmi Sree P., Ms. Lebina Baby, Advocates for the appellant/
accused and Shri V.N.Raghupathy, learned standing counsel appearing
for the State.
5. It is the contention of Shri Renjith B. Marar,learned counsel
appearing for the appellant that there is no direct evidence attributable
C to the role of the accused and High Court has based the order of conviction
on circumstantial evidence.He has contended that prosecution has not
been able to establish the chain of events on the basis of circumstantial
evidence, all leading to the one and only conclusion namely the guilt of
the accused. He would submit that convictionhas been based solely on
the basis of confessional statement alleged to have been given by the
D appellant to the police in terms of Section 27 of the Evidence Act. The
said evidence is not reliable and ought not to have been accepted since
it was written in the Kannada Language which was not known to the
accused. He contended that according to the prosecution accused had
given a confessional statement at the police station in Malayalam in the
E presence of PW-10 who translated the same to Kannada and undisputedly
PW-10 did not know how to write and read Kannada but was only able
to speak Kannada language and as such the translated version of
appellant’s alleged confession to the police could not be acceptable
evidence. There being no evidence available on record as to the person
who had got it typed on a computer and who had taken the printout of
F the same was itself sufficient to disbelieve the said statement and there
was no explanation forthcoming from prosecution. On these aspects as
rightly pointed out by the Trial Court,the High Court ought not to have
interfered with the well-reasoned order of acquittal passed by the Trial
Court.
G 6. He also drew the attention of this Court to the evidenceof PW-
10 by contending that he is a close friend of other prosecution witnesses
and his evidence ought not to have been considered. He would contend
that confessional statement of the accused was in a printed format and
this was not typed in the presence of the accused at the police station
H and even according to the prosecution it was told by PW-10, written
SIJU KURIAN v. STATE OF KARNATAKA 407
[ARAVIND KUMAR, J.]

down by the police and undisputedly the statement which was written A
down was not produced and as such evidence of PW-10 could not have
been relied upon by the High Court to convict the accused.
7. He would further contend that complainant PW-4 who is the
son of the deceased had stated that his father had left home in Kerala
lastly on 29.11.2011 and he had called his father once on 28.12.2011 to B
invite him to a family function which had been agreed but deceased did
not visit Kerala. He would contend that according to the prosecution the
deceased was murdered by the accused on 02.12.2011 as stated in the
alleged confession statement and as per the post-mortem report, death
had occurred 45 to 60 days prior to days of exhumation on 21.01.2012
and as such the story of the prosecution as attributed to the accused is C
not believable and on account of the same it caused a serious doubt and
the lacuna that has crept in prosecution case has remained unexplained,
which was fatal to the prosecution story.
8. He would further contend that prosecution has mainly relied
upon 3 witnessesnamely PW-1 (mahazar witness), PW-2 (inquest D
witness) and PW-10 (the person who translated the revelations of
accused) to prove the recovery of material objects (MO’s) allegedly
stolen by the accused from the farmhouse of the deceased.By taking us
to the deposition of these witnesses he would contend that they are
close friends residing in neighbourhood and all these three witnesses E
had witnessed the recoveries and attested the seizure measure and inquest
report and as such they have to be treated as stock witnesses brought in
at the instance of the prosecution and same ought to have been discarded
as not being trustworthy. He would also contend that story of the
prosecution is that accused was an employee in the farmhouse of the
deceased which had not been proved. He would submit that prosecution F
had failed to prove the chain of circumstances including the last seen
theory. He would contend that very fact of accused having denied all
the allegations put against him when he was examined under Section
313 of Code of Criminal Procedure (for short ‘the Cr.P.C.’) including
the recovery of the dead body and other material objects at his instance G
was sufficient to accept the stand of the accused by arriving at a
conclusion that prosecution had failed to prove the guilt of the accused
beyond reasonable doubt.
8.1 He would contend that the case of the accused was that when
he was brought to the spot by the police there were already some people H
408 SUPREME COURT REPORTS [2023] 4 S.C.R.

A standing exactly at the spot where the dead body was exhumed and
accused had not pointed out the spot to the police and the spot was
known to the police even before the arrest of the accused. Hence, High
Court ought not to have put the burden to disprove the prosecution case.
He would contend that the two employees who were working in the
farmhouse of the deceased were missing and there was no explanation
B
whatsoever forthcoming from the prosecution in this regard and this
cast a serious doubt with regard to the alleged act of the deceased. He
would contend that the CDR of the accused’s mobile was not secured
and produced by way of evidence by prosecution which was fatal to the
prosecution case.
C 8.2 He would contend that the alleged confessional statement Ex.
P-2 is to be segregated into two parts: namely recovery of dead body
and articles and in which statement was undisputedly before the police
and as such inadmissible. He would also elaborate the submissions by
contending that when the findings of the trial court cannot be held as
D perverse or not possible to be arrived at, necessarily the benefit should
be extended to the accused as held by catena of Judgments of this Court
and as such he has prayed for affirming the order of acquittal passed by
the Trial Court which has since been reversed by the High Court. He
would contend that on suspicion, conviction cannot be sustained and the
prosecution had failed to prove the guilt of the accused beyond all
E reasonable doubt and by relying upon the following judgments he prays
for allowing of the appeal and restoring the judgment passed by the Trial
Court:
(i) Sharad Birdhichand Sarda v. State of Maharashtra(1984)
4 SCC 116,
F
(ii) Sheo Swarup v. King Emperor AIR 1934 PC 227,
(iii) Chandrappa and others v. State of Karnataka (2007) 4
SCC 415,
(iv) Murugesan v. State through the Inspector of Police (2012)
G 10 SCC 383,
(v) Naresh Chandra Das v. EmperorAIR 1942 (Cal) 593,
(vi) Pohalya Motya Valvi v. State of Maharashtra (1980) 1 SCC
530,
H
SIJU KURIAN v. STATE OF KARNATAKA 409
[ARAVIND KUMAR, J.]

(vii) Anvar P.V. v P.K. Basheer(2014) 10 SCC 473, A
(viii) Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal
(2020) 7 SCC 1.
Per contra Shri V. N. Raghupathy, learned standing counsel
appearing by the State would support the judgment passed by the High
Court. He would submit that when learned Sessions Judge had failed to B
look into the evidence available before it or had erroneously appreciated
the available evidence it had resulted in appellate court exercising its
jurisdiction to reverse the said findings for which the reasonings have
been assigned while recording the findings. He would submit that on
reappreciation of the evidence the appellatecourt has formed an opinion C
that there had been non-appreciation of available material on record and
has discussed the same threadbare.
9. He would submit that material witnesses namely the witnesses
to the seizure mahazar PW-3, PW-9, PW-11 had remained unshaken
and there being no explanation forthcoming in the statement of the D
accused recorded under Section 313 of Cr.P.C.,the High Court has rightly
noticed that this material evidence had been ignored by the Trial Court
and on account of said uncontroverted evidence available on record it
has proceeded to accept the same and convict the accused which finding
does not suffer from the vice of error. He would draw the attention of
the court to the evidence of PW-5 who is the friend of the accused who E
has spoken about the rubble tapping machines being sold to Mr. Babu
(PW-11) namely brother in law-Mr. Lijo(PW-5) under the agreement
prepared by the advocate PW-15. He would contend that said witness
has also spoken about Ex.P-15 under which MO23 to 32 had been seized
which are said to have been given by the accused, thus supporting the F
case of the prosecution and by contending that the High Court has on
re-appreciation of evidence had rightly formed an opinion that the Trial
Court had ignored the material evidence and as such prays for sustaining
the judgment of the High Court which had reversed the finding of the
Trial Court whereby the accused had been acquitted. In support of his
submissions he has relied upon the following judgments: G
(i) State of Rajasthan v Kashi Ram (2006) 12 SCC 254
(ii) A.N. Venkatesh & Ors. v State of Karnataka (2005) 7 SCC
714
H
410 SUPREME COURT REPORTS [2023] 4 S.C.R.

A (iii) State of Karnataka v Suvarnamma (2015) 1 SCC 323
(iv) Pattu Rajan v State of Tamil Nadu (2019) 4 SCC 771.
(v) Arjun Panditrao Kotkar v Kailash (2020) 7 SCC 1.
10. Having heard the learned Advocates appearing for the parties
B and after bestowing our careful and anxious consideration to the rival
contentions raised at the bar, we are of the considered view that the
following points could arise for our consideration:
(a) Whether the judgment of the High Court reversing the finding
of the Trial Court is to be set aside on the basis of there being two
C possible views and the one taken by Trial Court being a possible
view?
(b) Whether the judgment of the High Court is erroneous and the
findings recorded by the Trial Court has been erroneously reversed
by High Court while re-appreciating the said evidence?
D Or
(c) Whether the High Court has appreciated the evidence in proper
manner or the High Court had failed to consider the evidence in
proper perspective?
DISCUSSION AND FINDING
E
11. As the points formulated hereinabove are interlinked and
findings being recorded are likely to overlap with each other, we have
considered the above points conjointly and answered hereinbelow:
RE: POINTS 1 TO 3
F 12. One of the main contentions raised by the learned counsel
appearing for the appellant is to the effect that High Court ought not to
have interdicted with the judgment of the acquittal passed by the Trial
Court and only in the event of judgment of the trial court was riddledwith
perversity and the view taken by the Trial Court was not a possible view,
G same could have been reversed by relying upon the judgment of this
Court in case of Murugesan V. State through the inspector of police1
whereunder it came to be held as follows:
“33. The expressions “erroneous”, “wrong” and “possible” are
defined in Oxford English Dictionary in the following terms:
H 1
(2012) 10 SCC 383
SIJU KURIAN v. STATE OF KARNATAKA 411
[ARAVIND KUMAR, J.]

“erroneous.— wrong; incorrect. A
wrong.—(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.
possible.—(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable.” B
34. It will be necessary for us to emphasize that a possible view
denotes an opinion which can exist or be formed irrespective of
the correctness or otherwise of such an opinion. A view taken by
a court lower in the hierarchical structure may be termed as
erroneous or wrong by a superior court upon a mere disagreement. C
But such a conclusion of the higher court would not take the view
rendered by the subordinate court outside the arena of a possible
view. The correctness or otherwise of any conclusion reached by
a court has to be tested on the basis of what the superior judicial
authority perceives to be the correct conclusion. A possible view, D
on the other hand, denotes a conclusion which can reasonably be
arrived at regardless of the fact where it is agreed upon or not by
the higher court. The fundamental distinction between the two
situations have to be kept in mind. So long as the view taken by
the trial court can be reasonably formed, regardless of whether
the High Court agrees with the same or not, the view taken by the E
trial court cannot be interdicted and that of the High Court
supplanted over and above the view of the trial court.”
13. It need not be restated that it would be open for the High
Court to re-apprise the evidence and conclusions drawn by the Trial
Court and in the case of the judgment of the trial court being perverse F
that is contrary to the evidence on record, then in such circumstances
the High Court would be justified in interfering with the findings of the
Trial Court and/or reversing the finding of the Trial Court. In Gamini
Bala Koteswara Rao Vs. State of Andhra Pradesh2 it has been held
by this Court as under:
G
“14. We have considered the arguments advanced and heard the
matter at great length. It is true, as contended by Mr. Rao, that
interference in an appeal against an acquittal recorded by the trial
court should be rare and in exceptional circumstances. It is,
2
AIR 2010 SC 589 H
412 SUPREME COURT REPORTS [2023] 4 S.C.R.

A however, well settled by now that it is open to the High Court to
reappraise the evidence and conclusions drawn by the trial court
but only in a case when the judgment of the trial court is stated to
be perverse. The word “perverse” in terms as understood in law
has been defined to mean “against the weight of evidence”. We
have to see accordingly as to whether the judgment of the trial
B
court which has been found perverse by the High Court was in
fact so.
The Appellate court may reverse the order of acquittal in the
exercise of its powers and there is no indication in the Code of any
limitation or restriction having placed on the High Court in exercise of its
C power as an Appellate court. No distinction can be drawn as regards the
power of the High Court in dealing with an appeal, between an appeal
from an order of acquittal and an appeal from a conviction. The Code of
Criminal Procedure does not place any fetter on exercise of the power
to review at large the evidence upon which the order of acquittal was
D founded, and to reach the conclusion that upon that evidence the order
of acquittal should be reversed.
In the case of Sheo Swarup v King Emperor3, it has been held
by the Privy Council as under:
But in exercising the power conferred by the Code and
E before reaching its conclusions upon fact, the High Court should
and will always give proper weight and consideration to such
matters as:
1) The views/opinion of the trial judge as to the credibility of the
witnesses;
F
2) The presumption of innocence infavour of the accused;
3) The right of the accused to the benefit of any doubt; and
4) The slowness of an appellatecourt in disturbing a finding of
fact arrived at by a judge who had the advantage of seeing the
G witnesses.
14. This Court has time and again reiterated the powers of the
Appellate Court while dealing with the appeal against an order of acquittal

H 3
AIR 1934 PC 227
SIJU KURIAN v. STATE OF KARNATAKA 413
[ARAVIND KUMAR, J.]

and laid down the general principles in the matter of Chandrappa and A
Others Vs. State of Karnataka4 to the following effect:
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the Appellate
court while dealing with an appeal against an order of acquittal
emerge: B
(1) An Appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an Appellate C
court on the evidence before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc. D
are not intended to curtail extensive powers of an Appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the reluctance of
an Appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own E
conclusion.
(4) An Appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that every F
person shall be presumed to be innocent unless he is proved guilty
by a competent court of law. Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
G
of the evidence on record, the Appellate court should not disturb
the finding of acquittal recorded by the trial court.”
15. In the aforesaid background the circumstantial evidence relied
upon by the State to prove the circumstances which points to the guilt of
4
(2007) 4 SCC 415 H
414 SUPREME COURT REPORTS [2023] 4 S.C.R.

A the accused alone for having committed the offence as summarized by
the High Court cannot be found fault with, for reasons indicated
hereinbelow:
16. The death of Mr. Jose C Kafan being homicide stands proved
by virtue of the Post Mortem report Ex.P-41 which was conducted on
B 21.01.2012. The said report would indicate the death would have occurred
45-60 days prior to the post-mortem examination. PW-22, the Doctor
who conducted the post-mortem of the dead body, Doctor Keertiraj in
his examination in chief held on 26.03.2013 has opined thus:
“A lacerated wound on left eyebrow measuring 2 inches (length)
C X 2 ½ inches (width) was found and the edges of the said wound
was found to be lacerated. There was commuted fracture on
frontal bone that comes under the said wound. Below the left eye
i.e., in the maxilla bone part, swollen wound was found that means
some blood clotting mark was found measuring 2 ½ inches (length)
X 1 ½ inches (width).”
D
PW-22 has opined that Mr. Jose Kafan had died due to brain
hemorrhage that occurred because of commuted fracture on the
forehead. In that view of the matter and also there being no serious
dispute on this issue,the irresistible conclusion drawn by the High Court,
death of Mr. Jose Kafan was by homicidal cannot be found fault with.
E
16.1 The contention of the learned counsel for the accused that it
is not possible to state conclusively as to what had exactly happened,
due to lack of eye-witnesses and therefore the possibility of the deceased
having fallen and suffered an injury cannot be ruled out is an argument
which cannot be accepted and finding recorded by the High Court
F deserves to be affirmed.
16.2 One another circumstance in the chain which came to be
relied upon by the prosecution is with regard to the “last scene theory”.The
case of the prosecution is that deceased Mr. Jose Kafan was living in
his garden land at Kerodi village and was carrying on agricultural activities
G in survey No.48 and 49. It is also the case of the prosecution that deceased
had constructed a house in the garden land itself and was residing therein.
The son of the deceased who came to be examined as PW-4 has deposed
in unequivocal terms that he had been informed by his father that an
advertisement had been given in the newspaper ‘Deepika’ about the
requirement of a worker and pursuant to the same accused had applied
H
SIJU KURIAN v. STATE OF KARNATAKA 415
[ARAVIND KUMAR, J.]

and he had been taken for work. He has identified the newspaper as A
Ex.P-28 and the relevant advertisement as Ex.P-8(a).
16.3 Contending that prosecution had failed to prove that accused
had been employed by the deceased and neither PW-4 nor any other
witnesses namely PW-5, PW-6, PW-7, PW-8, PW-9, PW-11 and PW-
12 had deposed that they have seen the appellant working in the garden B
land of the deceased. It is contended that accused and deceased were
never seen together and the finding recorded by the Trial Court is well
reasoned and particularly the finding recorded at paragraphs 14, 15, 16
and same ought not to have been interfered by the High Court is an
argument at first blush looks attractive but on deeper examination it
belies the truth as noticed by High Court. The fact that accused was last C
seen in the company of the deceased is testified by PW-10 and PW-14.
PW-10 in his examination in chief dated 26.02.2013 has stated to the
following effect.
“I have been residing in Sagar since 1962. I am driving auto
rikshaw from the past 23 years. I have the acquaintance of Jose D
Kafan and he belongs to Kerala. When an auto driver, who knew
Malayalam, was required in the auto stand I was shown and I and
Kafan have acquaintance of nearly 5-6 years. When he required
auto rikshaw, he used to call me. I used to drop him to his farm
land. I know where the land of Kafan is situated. The witness E
was shown Ex.P.31 and 32 and he identified the person wearing
purple colour shirt as Jose Kafan. People used to go to the land
for working. I have seen the accused in the place of Kafan.
The accused was a worker there.
On 21.01.2012, a Dafedar namely Sundar told me that he wants F
someone who knew Malayalam and requested to go with him in
order to do translation from Malayalam language. I went to Sagar
Rural station. I was taken to the station and Dy.S.P Was there in
the station.” The accused was shown to me and asked whether I
have acquaintance of the accused and I have identified the
accused and stated that he was working in the garden land G
of Kafan.The police showed xxx informed to the police.The
accused stated that on 02.12.2011 when Kafan was sleeping at
6:00-6:30 in his house in the garden land, I killed him by assaulting
on his head with an iron rod. Half an hour later when I lifted his
hand and dropped, it fell downwards and later I got confirmed H
416 SUPREME COURT REPORTS [2023] 4 S.C.R.

A that he is dead and then wrapped his dead body using bedsheet
and buried. He has stated that there was a compost pit behind the
house and he has buried the dead body in that compost pit only.
He told that after burying his dead body he was residing there
only. He stated that he murdered in order to gain money by selling
the equipments. He also told that he even thought of selling the
B
land. The accused told that he would show the place where he
has buried the dead body and would show the people to whom he
has sold the equipments.
16.4 PW-14 is another witness whose testimony has been placed
reliance by the High Court in the chain of circumstances namely last
C seen theory. In his examination in chief dated 12.03.2013, PW-14 has
stated to the following effect:
“I basically xxx industries. I have the acquaintance of Deepak
Gowda who works by taking JCB for rent. Deepak did not know
Malayalam and Kafan did not know Kannada and therefore
D Deepak Gowda took me to talk about the money for JCB and
about work. Then I got the acquaintance of Kafan. The witness
was shown Ex.P.31 and 32 and he identified the person wearing
purple colour shirt asMr. Jose Kafan.After that we had been to
his garden land. He told me that he wanted workers as there are
E no workers to work in his garden land. Therefore, I got a worker
for him but he went back to Kerala saying he is not feeling
comfortable. Later an advertisement was given in the month of
September 2011 through which he got a worker. That worker
was there in the house when we went there. The witness
identifies that person who was with Mr. Jose Kafan as the
F accused. Mr. Jose Kafan told that he does not have any identity
card of this place and asked to get a SIM for his workers by
giving my own address. Accordingly I got a SIM card to him.”
16.5 Apart from these two prime witnesses, PW-5, PW-7, PW-9,
PW-10, PW-11 and PW-15 have also clearly and in unequivocal terms
G deposed that accused was last seen in the house of the deceased after
his death. Even if one witness amongst these is to be believed as to what
has been deposed is the truth, necessarily the onus is on the accused to
provide a satisfactory explanation either in his statement recorded under
Section 313 of Cr.P.C. or from the admissions elicited from these
H witnesses, the circumstances in which he was in the company of
SIJU KURIAN v. STATE OF KARNATAKA 417
[ARAVIND KUMAR, J.]

deceased. When PW-10 and PW-14 have clearly stated that they had A
seen the accused in the company of the deceased, and there being no
satisfactory explanation offered by the accused to the contrary, it has to
be necessarily held that accused had failed to discharge the burden cast
upon him. Section 106 of the Evidence Act clearly lays down that when
any fact is specially within the knowledge of a person, the burden
B
approving that fact is upon him namely, on such person. This Court in a
case of State of Rajasthan Vs. Kashiram5 has held:
“16. The most important circumstance that the respondent was
last seen with the deceased on 3-2-1998 whereafter he had
disappeared and his house was found locked and that he had
offered no explanation whatsoever, was disposed of by the High C
Court in one short paragraph observing that there was nothing
unusual if the accused was seen in the company of his own family
members in his house. On such reasoning, the High Court held
that the circumstantial evidence relied upon by the prosecution
was not strong enough to sustain the conviction of the respondent. D
Accordingly, the High Court allowed the appeals preferred by the
respondent and declined the death reference made by the trial
court for confirmation of the sentence of death.”
“23. It is not necessary to multiply with authorities. The principle
is well settled. The provisions of Section 106 of the Evidence Act E
itself are unambiguous and categoric in laying down that when
any fact is especially within the knowledge of a person, the burden
of proving that fact is upon him. Thus, if a person is last seen with
the deceased, he must offer an explanation as to how and when
he parted company. He must furnish an explanation which appears
to the court to be probable and satisfactory. If he does so he must F
be held to have discharged his burden. If he fails to offer an
explanation on the basis of facts within his special knowledge, he
fails to discharge the burden cast upon him by Section 106 of the
Evidence Act. In a case resting on circumstantial evidence if the
accused fails to offer a reasonable explanation in discharge of the G
burden placed on him, that itself provides an additional link in the
chain of circumstances proved against him. Section 106 does not
shift the burden of proof in a criminal trial, which is always upon

5
(2006) 12 SCC254 H
418 SUPREME COURT REPORTS [2023] 4 S.C.R.

A the prosecution. It lays down the rule that when the accused does
not throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis
compatible with his innocence, the court can consider his failure
to adduce any explanation, as an additional link which completes
the chain. The principle has been succinctly stated in Naina Mohd.,
B
Re. [AIR 1960 Mad 218 : 1960 Cri LJ 620]”
16.6 Thus, when PW-10 and PW-14 have in clear terms deposed
to have last seen the accused with the deceased, necessarily accused
must offer an explanation as to how and when he started living separately
and there being no explanation offered necessarily in the chain of
C circumstances, the last seen theory propounded by the prosecution to
drive home the guilt of the accused requires to be accepted.
17. Yet another circumstance which the prosecution has heavily
relied upon is the recovery of dead body at the instance of the accused,
based on voluntary statement, which statement has been disowned by
D the accused and the same not having been proved by the prosecution
according to the learned counsel appearing for the accused.The said
statement of the accused has been marked as Ex.P-2 through PW-25.
The said statement was recorded in the presence of Mr. Balakrishna
Guled PW-1, Mr. Raju CW-3 and interpreter Mr. Kunjali, PW-10.
E 17.1. It has been contended that procedure adopted in asking
questions, eliciting answers from the appellant-accused has been spoken
to by PW-10 Mr. Kunjali who states that he did not know how to read
and write Malayalam and yet police had asked him questions in Kannada
who in turn had translated into Malayalam and elicited answers from
F accused in Malayalam and said answer was translated into Tamil by
PW-10 and same was typed out in Kannada by the police which is an
unusual method of recording the confession of an accused and as such
confession statement Ex.P-2 was not admissible evidence underSection
27 of the Evidence Act. To examine said contention we deem it proper
to extract Section 27 of the Evidence Act and itreads:
G
“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
H
SIJU KURIAN v. STATE OF KARNATAKA 419
[ARAVIND KUMAR, J.]

not, as relates distinctly to the fact thereby discovered, may be A
proved.”
18. Section 27 permits the derivative use of custodial statement in
the ordinary course of events. There is no automatic presumption that
the custodial statements have been extracted through compulsion. A
fact discovered is an information supplied by the accused in his disclosure B
statement is a relevant fact and that is only admissible in evidence if
something new is discovered or recovered at the instance of the accused
which was not within the knowledge of the police before recording the
disclosure statement of the accused. The statement of an accused
recorded while being in police custody can be split into its components
and can be separated from the admissible portions. Such of those C
components or portions which were the immediate cause of the discovery
would be the legal evidence and the rest can be rejected vide Mohmed
Inayatullah Vs. State of Maharashtra6. In this background when we
turn our attention to the facts on hand as well as the contention raised by
the accused that the confession statement is to be discarded in its entirety D
cannot be accepted for reasons more than one. Firstly, the conduct of
the accused would also be a relevant fact as indicated in Section 8. This
court in A.N. Venkatesh & another. Vs. State of Karnataka7 has held
to the following effect:
“9. By virtue of Section 8 of the Evidence Act, the conduct of the E
accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The evidence of
the circumstance, simpliciter, that the accused pointed out to the
police officer, the place where the dead body of the kidnapped
boy was found and on their pointing out the body was exhumed,
would be admissible as conduct under Section 8 irrespective of F
the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct falls within
the purview of Section 27 or not as held by this Court in Prakash
Chand v. State (Delhi Admn.) [(1979) 3 SCC 90: 1979 SCC (Cri)
656 : AIR 1979 SC 400]. Even if we hold that the disclosure G
statement made by the accused-appellants (Exts. P-15 and P-16)
is not admissible under Section 27 of the Evidence Act, still it is
relevant under Section 8. The evidence of the investigating officer

6
AIR 1976 SC 483
7
(2005) 7 SCC 714 H
420 SUPREME COURT REPORTS [2023] 4 S.C.R.

A and PWs 1, 2, 7 and PW-4 the spot mahazar witness that the
accused had taken them to the spot and pointed out the place
where the dead body was buried, is an admissible piece of evidence
under Section 8 as the conduct of the accused. Presence of A-1
and A-2 at a place where ransom demand was to be fulfilled and
their action of fleeing on spotting the police party is a relevant
B
circumstance and are admissible under Section 8 of the Evidence
Act.
19. It is a trite law that in pursuance to a voluntary statement
made by the accused, a fact must be discovered which was in the
exclusive knowledge of the accused alone. In such circumstances, that
C part of the voluntary statement which leads to the discovery of a new
fact which was only in the knowledge of the accused would become
admissible under Section 27. Such statement should have been voluntarily
made and the facts stated therein should not have been in the knowhow
of others. In this background when the deposition of PW-10 is perused it
D would leave no manner of doubt in our mind that statement of the accused
(Ex.P-2) having been recorded being voluntary and when the statement
is being recorded in the language not known to the accused, the assistance
of interpreter if taken by the police cannot be found fault with. The
ultimate test of the said statement made by the accused having been
noted down as told by the accused or not would be of paramount
E consideration. If the answer is in the affirmative then necessarily said
statement will have to be held as passing the test of law as otherwise
not. Merely because the translation was made from Malayalam to Tamil
and written down in Kannada would not suggest that such statement be
held to be either not being voluntary or the said statement having been
F recorded improperly. The interpreter having entered the witness box
and tendered himself for cross-examination which resulted in nothing
worthwhile having been elicited for discarding his evidence,it cannot be
gainsaid by the accused that said statement at Ex.P-2 is to be ignored or
rejected or discarded. Merely because PW-10 did not know how to read
and write Malayalam does not ipso facto make the contents of Ex.P-2
G to be disbelieved. On the other hand, he states that he is from Kerala
and he knows how to speak Malayalam. What was required to be
performed by him was to pose the question as stated by the witness to
the accused and the answers given to such questionsare to be stated to
the police for being recorded as stated by the accused. In fact, there is
H
SIJU KURIAN v. STATE OF KARNATAKA 421
[ARAVIND KUMAR, J.]

not even a suggestion made to PW-10 about the contents of Ex.P-2 A
being incorrect.
20. It is pursuant to this voluntary statement as per Ex.P-2 which
lead the police to recover the body of the victim from the compost pit,
which has been proved through PW-1, PW-2, PW-4, PW-10 and PW-
25. Their admissions read as under: B
PW-1: “I will show the place where I have murdered Jose CKafan
with an iron rod and the place where I haveburied his dead body
in the pit.
PW-2:”On 21.01.2012, I had been to Kerodi Village due to some
personal work. Tahsildar and police were going there in a jeep. I C
greeted Tahsildar. He told me that a case is there and asked me
to accompany him. The accused showed a place there. He showed
a place and told that there is a dead body in a compost pit situated
next to lemon tree and told that he has closed it. I, Devendra and
Shivu opened the pit. While digging the pit, a cloth was found and D
while removing the mud a blanket was found after cloth and again
while removing the mud slowly a dead body wrapped with a blanket
was found.”
PW-4:”I have told Stanie that my father has not expired.
Immediately, I and my brothers Ajith and Ranjith came to Kerodi E
village with K.K. Shaabu of Kundapura. When we went to that
place, neither my father nor the workers were there. Immediately
we went to the rural Police Station of Sagar and lodged complaints.
I have not lodged complaint about missing. We went to the station
on 21st the Police were investigating Siju Kurian. The witness
showed the accused and identified him as Siju Kurian. The accused F
has stated before the police that he has killed my father by
assaulting with an iron rod on his head and has buried in a pit by
wrapping the dead body with a blanket. The accused told that he
would show the place where he had buried the dead body and
hence led us and showed the place where he had buried the dead G
body. The accused has shown the place of incident occurred. He
took us to the place and showed the place my father was sleeping.
Later he showed us the place where the dead body was
buried. Then, before the presence of Tahasildar, the dead body
was exhumed.”
H
422 SUPREME COURT REPORTS [2023] 4 S.C.R.

A PW-10:”On 21.01.2012, A Dafedar namely sundar told me that
he wants someone who knew Malayalam and requested to go
with him in order to do translation form Malayalam language. I
went to Sagar Rural station. I was taken to the station and Dy.S.P
was there in the station. The accused was shown to me and asked
whether I have the acquaintance of the accused and I identified
B
the accused and stated that he was working in the garden land of
Kafan. The Police showed the accused and told me that he does
not know Kannada and told me to ask him about Jose Kafan. I
used to ask the accused in Malayalam in the manner in which the
police wanted to ask and the reply given by the accused is translated
C into Tamil (Translator’s note: In the original document it is written
Tamil and the word is underlined.) and informed to the police.
The accused stated that “on 02.12.2011 when Kafan was sleeping
at 6-6:30 in his house in the garden land, I killed him by assaulting
on his head with an iron rod. Half an hour later when I lifted his
hand and dropped, it fell downwards and later I got confirmed
D
that he is dead and then wrapped his dead body using bed sheet
and buried”. He has stated that there was a compost pit behind
the house and he has buried the dead body in that compost pit
only. He told that after burying the dead body he was residing
there only. He stated that he murdered in order to gain money by
E selling the equipments. He also told that he even thought of selling
the land.
The accused told that he would show the place where he
has buried the dead body and would show the people to whom he
has sold the equipments.”
F PW-25: In his statement, he had admitted about committing the
offence and stated that he would show the place where the dead
body was buried.
It is no doubt true that aforesaid confession of PW-25 in its
entirety is not admissible in view of Section 25 of the Evidence
G Act. However, in the teeth of Section 8 read with Section 27 of
the Evidence Act, that part of the confession which led to the
recovery of the dead body of the victim would become
admissible,apart from other articles of the deceased recovered at
the instance of the accused has been identified by several
H witnesses independently.This has also persuaded the High Court
SIJU KURIAN v. STATE OF KARNATAKA 423
[ARAVIND KUMAR, J.]

to accept the statement recorded under Ex.P-2 as being admissible A
which cannot be construed as highly improbable. Certain articles
were recovered on the strength of confession statement – Ex.P-
2 made by the accused and in order to prove such recovery the
witnesses who have been examined by the prosecution
havedeposed to the following effectand this has also persuaded
B
us to accept the findings of the High Court.
(a) PW-3- Mr. Raghavendra (Panch witness) has deposed as
under:
“… When Lijo came out the police enquired as to whether
the accused has given him any items, for which Lijo admitted C
and told that he has given him certain items. Lijo produced
the said items before the police. Lijo produced almirah,
suitcase, basket and spade. Lijo produced almirah, suitcase,
basket and spade. He totally produced 4 baskets…”
(b) PW-9 Mr. Sunil Kumar in his evidence has stated that- D
“When we went to Kafan’s land, the accused was there.
The accused told in Malayalam that we would sell the
equipments and Keriyappa understood little bit of
Malayalam. He told that rubber roller machine is for sale.
Since the price of it was costly, I refused to buy and when E
we were returning, he had piled up the equipments in front
of the house. He told that he would sell that too. He wrote
and showed the price of those equipments as Rs. 2,500/-. I
wrote and showed Rs. 2,000/-. The accused agreed for it
and sold the equipments. We purchased it. I have purchased
12 spades, one iron rod, and one handsaw, two water drums F
wherein one had lid and the other one was not having and
pest control spraying machine…”
(c) PW-10-Kunjali has stated that-
“… Police and Panchas were there when I went to the
G
station and accused and also there. From there the accused
led us to Bheemaneri. I do not remember the name of the
person to whose house he took us. I have translated
whatever the accused has spoken from Malayalam to
Kannada language. One almirah, suitcase, Bank cheque
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424 SUPREME COURT REPORTS [2023] 4 S.C.R.

A book and pass book, 4-5 baskets and one spade and
documents were there in that place and he has identified it
and they have been marked as M.O.23-32…”
(d) PW-12- Denny C.Thomas in his deposition has stated that-
“I have the acquaintance of Lijo. I was in need of water
B tank and have informed this matter to Lijo. He informed
me that one water tank is for sale. It was an old water
tank. Later Lijo took me to the garden land of Jose Kafan
and showed the water tank. He charged Rs. 15,000/- but I
told I would give Rs. 12,000/-. Lijo agreed for that. All these
C happened in the month of December 2011. Later I gave
Rs. 12,000/- and purchased the water tank. I gave that to
Sebastian as he asked to preserve water for marriage.”
20.1 In fact, accused had sold the rubber rolling machines for a
sum of Rs.27,000 in favour of PW-11, which came to be marked as MO
D 43 and MO 44. The factum of sale of MO43 and MO 44 has also been
proved through PW-5. It would be apt and appropriate to extract the
deposition of PW-5 which is to the following effect:
PW-5: “On 08.12.2011 in the evening Babu called me over phone
and told me that rubber roller machine is for sale in Lingadahalli
E and he is thinking of purchasing it. He asked my suggestion because
the cost of that machine was Rs. 30,000/-. I told him not to buy
immediately but to buy the next day after preparing an agreement
with the advocate.
Later all three of us namely I, Babu and the accused Binu went to
F Lingadahalli. There we went to the house of Uday Kumar, who
was an advocate. My brother-in-law knew him and he was
requested to prepare an agreement regarding the purchase of
roller machine.
He took us to the garden land of Jose Kafan and had shown the
rubber roller machine. At that time, it was dark. Later we went to
G
the hose of Babu in the same auto. We took machine in the auto
and kept in Babu’s house. I enquired about Jose Kafan with the
accused. He told that he is unwell and hence he is in the hospital
in Kerala and he cannot move his hands and legs and can only
move his head and hence he is in Ernakulam Hospital.”
H
SIJU KURIAN v. STATE OF KARNATAKA 425
[ARAVIND KUMAR, J.]

PW-7: “I asked whether the owner is doing fine and the accused A
told that he is doing fine and had gone to Kerala. He informed
about rubber machine and asked me only to purchase it. I told
that I do not want it and would inform him about people who
wants to purchase it. I told I need the owner for that dealing. At
that time the accused told that the owner is not keeping well. He
B
told that money is required for his treatment only for which he is
selling it. Therefore, the next day I and Sunil Kumar went to the
Garden land of Jose Kafan. We saw the rubber roller machine.
The accused told that the cost of it is Rs. 50,000/- We asked for
Rs. 30,000/-. We did not buy it but came back.”
20.2 In fact the land belonging to the deceased was attempted to C
be sold by the accused to PW-5 and the uncontroverted evidence that is
available on record is to be following effect below:
PW-5:‘‘He told that they will not do any agricultural activities
and want to sell property and asked me to inform whether anybody
wants to buy it. I agreed for that and told that I would inform if D
any party is ready to buy it. He told that Binu does not know
Kannada and did not have the acquaintance of anyone. Therefore,
he asked me to keep and preserve the records.
PW-8: “He has identified the person wearing purple colour shirt
as Jose Kafan. In the month of December 2011, Bisu had told E
that 4 ½ acres of farm land of Kafan is for sale. Lijo had told Bisu
about this. In order to obtain advice regarding the purchase of the
said farm land, I, Lijo and my brother-in-law Bisu met Nagaraj,
who is an advocate. Lijo had the documents.
The advocate examined the documents. Lijotold that Mr. F
Jose Kafan has expired. By looking at the documents, advocate
told that the death certificate of Kafan is required and for
identification purpose his ID card or License is required and
Kafan’s son has to come in order to sell the land. Later we went
to bus stand from the house of advocate. I also went to the bus G
stand. Lijo and Bisu went in bike. Later, after 5 minutes Lijo made
a phone call to me and told me to be in bus stand only saying
Kafan’s son had called and they could talk directly with him. They
came to bus stand. They made a phone call and gave mobile to
me. The person who made a phone call asked to give advance
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426 SUPREME COURT REPORTS [2023] 4 S.C.R.

A amount of one lakh rupees to Binu. The person who made a phone
call stated that he is Kafan’s son Sajith. He told that the value of
land is 10 lakhs. I told that I would get the advance amount to
Kerala. At that time he asked me to give advance amount to
Binu. Lijo asked for commission. He asked to give one lakh rupees
to Lijo. Around 2-3 days after this, my brother-in-law Bisu had
B
been to Mankalale, where Kolathur Jose was residing. He is the
relative of Jose Kafan.
Lijo told Kolathur Jose that Jose Kafan has expired and his
sons are selling his land. Then Kolathur Jose told that Jose Kafan
is not dead and he would talk to Kafan’s children and let us know
C about it.”
PW-9:‘‘When we went to Kafan’s land, the accused was there.
The accused told in Malayalam that he would sell the equipments
and Keriyappa understood little bit of Malayalam language.
Keriyappa explained by understanding little bit of Malayalam. He
D told that rubber roller machine is for sale. Since the price of it was
costly, I refused to buy and when we were returning, he had piled
up the equipments in front of the house. He said that he would sell
that also. He wrote and showed the price of those equipments as
Rs. 2,500/- I wrote and showed Rs. 2,000/-. The accused agreed
E for it and sold the equipments. We purchased it. I have purchased
12 spades one iron rod, one handsaw, two water drums wherein
on had lid and the other one was not having and pest control
spraying machine. We shifted all the items and I gave the drum
that had no lid to Keriyappa. I took the remaining.”

F PW-11: “In the month of December 2011, it was told about rubber
roller machine. It was told that the machine is there in someone’s
house at Kerodi. I and Sunil Kumar went to see the machine and
the accused was there in that place. The accused disclosed his
name as Binu. He introduced himself as the son of Kafan’s
younger brother. He said that the rubber roller machine is on sale
G and informed that its cost is Rs. 30,000/-. I agreed to purchase
the machine and after negotiation it was decided to purchase it
for an amount of Rs. 27,000/-. We came back on that day only.
I had informed Lijo about purchasing the machine. Lijo is
my brother-in-law and he told to prepare an agreement for that.
H
SIJU KURIAN v. STATE OF KARNATAKA 427
[ARAVIND KUMAR, J.]

Then I, my brother-in-law Lijo and Binu went to advocate’s house A
on 09.12.2011. Advocate Uday Kumar resides in Lingadahalli.
We had been to his house. He wrote the content of agreement on
a white paper. I, Binu and Lijo had affixed our signature on the
said document. The accused himself is Binu. The witness identifies
his signature of the accused in M.O.41-agreement. The witness
B
identifies his signature also. The signature of the witness has been
marked as M.O.41(b), accused signature as M.O.41 (c) and Lijo’s
signature as M.O.41 (a). The sale agreement was prepared for
Rs. 30,000/- but I gave only Rs. 27,000/-.”
PW-13: “On 07.01.2012, I went to Vigneshwara Hospital with
my wife and son because my son was unwell. Lijo also had come C
to the hospital since his son was also unwell. I know Lijo from
long back. While talking, Lijo informed me that Jose Kafan is
dead. He informed me that Kafan was suffering from Paralysis
disease and his son took him to Kerala for treatment and since
the disease became severe in Kerala, he took Kafan to America D
for better treatment but Kafan died two days before Christmas
festival. Lijo even told that his dead body was not bought back but
the funeral was conducted there only.
Later, after several days I went to Century Motors for my
bike repair. Lijo was also there in that place. Lijo told me that E
Kafan’s children are intended to sell his land and asked me
whether I would be interested to buy it. I told Lijo that I don’t
want and would inform my brother-in-law about it. After 2 days
Lijo informed me about the price of the land and about his
commission. Later Lijo told me that he has land documents with
him. Since I said that I have to take suggestions from Advocate, I F
and my brother-in-law, Stanie and Lijo went to the house of
Advocate Nagaraj with the said documents. Advocate Nagaraj
examined the documents and since the advocate was informed
that Jose Kafan had died, he informed that Kafan’s children have
to come and should bring Power of Attorney from all the heirs G
and also the death certificate of Kafan. We went to our respective
houses from the hose of Advocate. By the time I reached Mari
temple, I once again made a phone call to Lijo. Lijo told me that
Kafan’s son had called him over phone and asked me to go there
saying that Kafan’s son Sajith had called him over phone. I and
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428 SUPREME COURT REPORTS [2023] 4 S.C.R.

A Stanie again went near the court. Lijo was there and at that time
Lijo got a phone call and he talked and then gave mobile phone to
Stanie. Stanie talked directly and the person who was talking in
the phone told that he would come to Sagar to obtain the advance
amount. He even told that he would come after making a phone
call.”
B
PW-15: “From 17 years I have been practicing as an Advocate in
Sagar. I have the acquaintance of Babu of Marur village. He had
come to my house on 09.12.2011 at about 7-45 in the evening.
The said Babu was accompanied by his uncle and the accused
before the Court. The witness was shown Ex.P.21. He has
C identified the person who is holding documents in Ex.P.21-
photograph as the brother-in-law of Babu. Babu, who came to
my house, told me that the accused has a rubber roller machine
and he is purchasing it. He asked me to prepare a sale agreement
with regard to that. I asked him the details about the company of
D the rubber roller machine, its owner, its number and other details,
for which he said that he does not have all those details.
According to the information furnished from them, I prepared
a sale agreement of movable property. The witness was shown
M.O. 41. He identifies it as the sale agreement that was prepared
E by him. The accused, who was selling the rubber roller machine,
did not know Kannada. I read out the sale agreement in Kannada
and also in English. Since the accused did not know both English
and Kannada, Lijo translated the contents of sale agreement into
Malayalam language and explained to the accused. Both the vendor
and vendee have affixed their signature before me. The accused,
F who is the vendor, has affixed his signature and the vendee has
also affixed his signature. Lijo has affixed his signature as a
witness.”
21. The other surrounding circumstances which prove the accused
being guilty of the offence beyond reasonable doubt are the recovery of
G the articles belonging to the deceased and sold by the accused which
were recovered on the strength of the voluntary statement of accused
as per Ex.P-2. In-fact PW-5 has clearly stated as to how the accused
intended to sell the immoveable property belonging to the deceased.
PW-5 has clearly deposed as to how the accused was apprehended by
H the police when he was attempting to sell the property of the deceased.
SIJU KURIAN v. STATE OF KARNATAKA 429
[ARAVIND KUMAR, J.]

22. That apart the statements made by the accused that deceased A
had gone to Kerala or the deceased had suffered a paralytic stroke or
deceased had proceeded to America and expired there are all incorrect
and conflicting statements as has been deposed by PW-5, reliance of
which is placed by the High Court in the background of the Judgment of
this Court in State of Karnataka v. Swarnama8, and as such we are of
B
the view that conclusion arrived at by the High Court is based on sound
appreciation of evidence and proper application of law. That apart,
accused has failed to explain with regard to the incriminating evidence
found against him except total denial and as such the High Court has
rightly applied the principles laid down by this Court in Pattu Rajan v.
State of Tamil Nadu9 to reject the contention of the accused appellant. C
On account of evidence available on record having been ignored and
there being patent perversity in appreciation of evidence by the Learned
Sessions Judge it resulted in interference by the High Court. We do not
find any material irregularly having crept in the judgment of the High
Court calling for our interference. On re-appreciation of entire evidence
D
by the High Court inproper perspective it has resulted in arriving at a
right conclusion viz. that accused alone has committed the murder of the
deceased Mr. Jose C Kafan and there being no other possible view
which could be considered as missing in the link of chain of circumstances,
this Court is of the considered view that appeal deserves to be dismissed
as being devoid of merits. E
23. For the reasons indicated hereinabove we dismiss the appeal
and confirm the judgment dated 20.03.2020 passed by the High Court of
Karnataka in Criminal Appeal No.335 of 2014.

Nidhi Jain Appeal dismissed.
F
(Assisted by : Rakhi, LCRA)

G

8
(2015)1 SCC 323
9
(2019) 4 SCC 771 H