It is most refreshing to note that while setting aside the concurrent conviction in a murder case, none other than the Supreme Court itself has in an extremely laudable, learned, landmark and latest judgment titled Munikrishna @ Krishna vs State By Ulsoor PS in Criminal Appeal Nos. 1597-1600 of 2022 and arising out of Special Leave Petition (Crl.) Nos.8792-8795 of 2022 and cited in 2022 LiveLaw (SC) 812 that was pronounced as recently as on September 30, 2022 observed that videography containing confession made before police is inadmissible in evidence. The key points of this brilliant judgment as stated even before the judgment starts are as follows: –
1. Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements.
2. A confessional statement given by an accused before a Police officer is inadmissible as evidence
3. Statement given by an accused to police under Section 161 of CrPC is not admissible as evidence. (Para 13)
4. 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 one conclusion, which is the guilt of the accused.
5. A very heavy duty is cast upon the prosecution to prove its case, beyond reasonable doubt.
6. Parameters under which the case of circumstantial evidence is to be evaluated. Referred to Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh AIR 1952 SC 343. (Para 12)
At the outset, this brief, brilliant, bold and balanced judgment authored by Justice Sudhanshu Dhulia for a Bench of Apex Court comprising of CJI Uday Umesh Lalit, Justice S Ravindra Bhat and himself first and foremost puts forth in para 1 that, “The appellants before us have challenged the judgment and order dated 31.8.2010 passed by the High Court of Karnataka in a Criminal Appeal which has upheld the order of conviction and sentence passed 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 Additional Advocate General for the State at length on 24.08.2022 and granted leave in the case, which was then reserved for judgment.”
To put things in perspective, the Bench then envisages in para 2 that, “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 return 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 Police 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.”
Without mincing any words, the Bench then observes in para 5 that, “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 blood. 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 thread were all stained with blood, which were all handed over to the police. 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 the front neck. On being questioned by the Court he replied that a person 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.””
As it turned out, the Bench then mentions in para 6 that, “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 present 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 Constables 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.”
Most significantly and briefly stated, the Bench then lays bare in para 13 pointing out that, “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 police, 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 as 24 crimes committed by them. Their confessions of how they planned and executed the murders has been captured on a video, which was also exhibited before the court. The Court has taken this evidence of voluntary statements made by the accused and hence admitted it as evidence. This was done both by the Sessions Court as well as the High Court. The Sessions Court then refers to a decision of Supreme Court, (Shri N. Sri Rama Reddy, Etc. v. Shri V.V. Giri AIR 1971 SC 1162) and states that in view of this decision video tapes can also be used as corroborative evidence. Later the High Court while hearing the appeal of the accused gives a similar finding. Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements. Under Article 20(3) of the Constitution of India, an accused cannot be compelled to be a witness against himself. Again, under Section 25 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 taperecorded conversation in an election petition which is tried before a Court under 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 P18-B and P-37A, 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.”
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 has 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 recovery was made has not been explained. Secondly, the independent witness to this recovery PW-10 Murugan, had also turned hostile during 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.”
It is worth noting that the Bench then hastens to add in para 15 that, “We must add that this Court in its order dated 19.04.2022has allowed the above appeal and has set aside the order of the 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 the 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.”
Most remarkably, the Bench then points out in para 16 that, “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 court 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 wellestablished rule of criminal justice is that “fouler the crime higher the proof”. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.””
Finally, the Bench then aptly concludes by holding in para 17 that, “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.”
In conclusion, the Apex Court sets aside concurrent conviction in a murder case. The Apex Court made it crystal clear that the video of confession made before police is inadmissible in evidence. Very rightly so!
Sanjeev Sirohi