PERUMAL RAJA @ PERUMAL versus STATE, REP. BY INSPECTOR OF POLICE

23. The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, namely, (i) that the accused had himself deposited the physical items which were recovered; or (ii) only the accused knew that the physical items were lying at that place. The second hypothesis is wholly compatible with the innocence of the accused, whereas the first would be a factor to show involvement of the accused in the offence. The court has to analyse which of the hypotheses should be accepted in a particular case.

24. Section 27 of the Evidence Act is frequently used by the police, and the courts must be vigilant about its application to ensure credibility of evidence, as the provision is vulnerable to abuse. However, this does not mean that in every case invocation of Section 27 of the Evidence Act must be seen with suspicion and is to be discarded as perfunctory and unworthy of credence. (1976) 1 SCC 828. 104

25. The pre-requisite of police custody, within the meaning of Section 27 of the Evidence Act, ought to be read pragmatically and not formalistically or euphemistically. In the present case, the disclosure statement (Exhibit P-37) was made by the appellant – Perumal Raja @ Perumal on 25.04.2008, when he was detained in another case, namely, FIR No. 204/2008, registered at PS Grand Bazar, Puducherry, relating to the murder of Rajaram. He was subsequently arrested in this case, that is FIR.No.80/2008, which was registered at PS Odiansalai, Puducherry. The expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police.

26. Reference is made to a recent decision of this Court in Rajesh & Anr. v. State of Madhya Pradesh13, which held that formal accusation and formal police custody are essential pre-requisites under Section 27 of the Evidence Act. In our opinion, we need not dilate on the legal proposition as we are bound by the law and ratio as laid down by the decision of a Constitution Bench of this Court in State of U.P. v. Deoman Upadhyaya14. The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.15 This Court in Deoman Upadhyay (supra) observed that the bar under Section 25 of the Evidence Act applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was in custody at the time of making the confession. Further, for the ban to be effective the person need not have been accused of an offence when he made the confession. The reason is that the expression “accused person” in Section 24 and the expression “a person accused of any offence” in Sections 26 and 27 have the same connotation, and describe the person against whom evidence 2023 SCC OnLine SC 1202. (1961) 1 SCR 14. See Judgments of the Constitution Bench of this Court in Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr., (2005) 2 SCC 673 and Union of India and Anr. v. Raghubir Singh (Dead) By Lrs., (1989) 2 SCC 754. Raghubir Singh (supra) and Central Board of Dawoodi Bohra Commu- nity (supra) have been subsequently followed and applied by this Court in Trimurthi Fragrances (P) Ltd. v. Government of N.C.T. of Delhi, 2022 SCC OnLine SC 1247. [2024] 1 S.C.R.  PERUMAL RAJA @ PERUMAL v. STATE, REP. BY INSPECTOR OF POLICE is sought to be led in a criminal proceeding. The adjectival clause “accused of any offence” is, therefore, descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement.

27. Elaborating on this aspect, a three judge Bench of this Court in Aghnoo Nagesia v. State of Bihar16 has held that if the FIR is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence, except to the extent that the ban is lifted by Section 27 of the Evidence Act. While dealing with the admission of part of confession report dealing with motive, subsequent conduct and opportunity, this Court rejected the severability test adopted by some High Courts. The statement can, however, be relied upon and admitted to identify the accused as the maker, and the portion within the purview of Section 27 of the Evidence Act is admissible. Aghnoo Nagesia (supra) has been applied and followed by this Court in Khatri Hemraj Amulakh v. State of Gujarat.17

28. The words “person accused of an offence” and the words “in the custody of a police officer” in Section 27 of the Evidence Act are separated by a comma. Thus, they have to be read distinctively. The wide and pragmatic interpretation of the term “police custody” is supported by the fact that if a narrow or technical view is taken, it will be very easy for the police to delay the time of filing the FIR and arrest, and thereby evade the contours of Sections 25 to 27 of the Evidence Act. Thus, in our considered view the correct interpretation would be that as soon as an accused or suspected person comes into the hands of a police officer, he is no longer at liberty and is under a check, and is, therefore, in “custody” within the meaning of Sections 25 to 27 of the Evidence Act. It is for this reason that the expression “custody” has been held, as earlier observed, to include surveillance, restriction or restraint by the police. AIR 1966 SC 119. (1972) 3 SCC 671. 106

29. This Court in Deoman Upadhyay (supra), while rejecting the argument that the distinction between persons in custody and persons not in custody violates Article 14 of the Constitution of India, observed that the distinction is a mere theoretical possibility. Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. A person giving word of mouth information to police, which may be used as evidence against him, may be deemed to have submitted himself to the “custody” of the police officer. Reference can also be made to decision of this Court in Vikram Singh and Ors. v. State of Punjab18, which discusses and applies Deoman Upadhyay (supra), to hold that formal arrest is not a necessity for operation of Section 27 of the Evidence Act. This Court in Dharam Deo Yadav v. State of Uttar Pradesh19, has held that the expression “custody” in Section 27 of the Evidence Act does not mean formal custody, but includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not formally arrested at the time of giving information, the accused is, for all practical purposes, in the custody of the police and the bar vide Sections 25 and 26 of the Evidence Act, and accordingly exception under Section 27 of the Evidence Act, apply. Reliance was placed on the decisions in State of A.P. v. Gangula Satya Murthy20 and A.N.Vekatesh and Anr. v. State of Karnataka21.

30. However, evidentiary value to be attached on evidence produced before the court in terms of Section 27 of the Evidence Act cannot be codified or put in a straightjacket formula. It depends upon the facts and circumstances of the case. A holistic and inferential appreciation of evidence is required to be adopted in a case of circumstantial evidence.

31. When we turn to the facts of the present case, the body parts of the deceased Rajini @ Rajinikanth were recovered on the pointing out of appellant – Perumal Raja @ Perumal in his disclosure (2010) 3 SCC 56. (2014) 5 SCC 509. (1997) 1 SCC 272. (2005) 7 SCC 714. [2024] 1 S.C.R.  PERUMAL RAJA @ PERUMAL v. STATE, REP. BY INSPECTOR OF POLICE statement. Rajini @ Rajinikanth had been missing for months and was untraceable. In the present case, as discussed above, the homicidal death of Rajini @ Rajinikanth, the disclosure statement marked Exhibit P-37, and the consequent recovery as elucidated above have been proved beyond doubt and debate.

32. In State of Maharashtra v. Suresh22, this Court in the facts therein held that recovery of a dead body, which was from the place pointed out by the accused, was a formidable incriminating circumstance. This would, the Court held, reveal that the dead body was concealed by the accused unless there is material and evidence to show that somebody else had concealed it and this fact came to the knowledge of the accused either because he had seen that person concealing the dead body or was told by someone else that the dead body was concealed at the said location. Here, if the accused declines and does not tell the criminal court that his knowledge of the concealment was on the basis of the possibilities that absolve him, the court can presume that the dead body (or physical object, as the case may be) was concealed by the accused himself. This is because the person who can offer the explanation as to how he came to know of such concealment is the accused. If the accused chooses to refrain from telling the court as to how else he came to know of it, the presumption is that the concealment was by the accused himself.

33. The aforesaid view has been followed subsequently and reiterated in Harivadan Babubhai Patel v. State of Gujarat23, Vasanta Sampat Dupare v. State of Maharashtra24, State of Maharashtra v. Damu S/o Gopinath Shinde and Ors.25, and Rumi Bora Dutta v. State of Assam26.

34. Our reasoning, which places reliance on Section 106 of the Evidence Act, does not in any way dilute the burden of proof which is on the prosecution. Section 106 comes into play when the prosecution is able to establish the facts by way of circumstantial evidence. On this aspect we shall delve upon subsequently. (2000) 1 SCC 471. (2013) 7 SCC 45. (2015) 1 SCC 253. (2000) 6 SCC 269. (2013) 7 SCC 417. 108

35. Apart from Section 27 of the Evidence Act, Section 8 of the said Act would be also attracted insofar as the prosecution witnesses, namely, the investigating officers, Chinta Kodanda Rao (PW-30), Inspector of Police, PS Grand Bazaar and T. Bairavasamy (PW- 32), Circle Inspector, PS Odiansalai, have referred to the conduct of the appellant – Perumal Raja @ Perumal with regard to any fact in issue or a relevant fact when the appellant – Perumal Raja @ Perumal was confronted and questioned.27 Reference in this regard may also be made to the judgment of this Court in Sandeep v. State of U.P.28 which held that: “52. (…) It is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered.”

36. On the basis of the prosecution evidence, the following factual position has been established: (i) Rajini @ Rajinikanth was missing for months before his father Rajaram came from France to India, on 20.04.2008. (ii) On return, Rajaram had noticed that the articles in the property No.13, Chinna Vaikkal street, Puducherry, where deceased Rajini @ Rajinikanth used to reside and was owned by Rajaram, were scattered. The motorcycle owned by Rajaram, which the deceased Rajini @ Rajinikanth used to use, was missing. (iii) Rajaram was murdered on 21.04.2008. (iv) The appellant – Perumal Raja @ Perumal is a close relative of Rajini @ Rajinikanth and Rajaram (son of sister of Rajaram). (v) Rajaram as the owner of the immovable property No.13, Chinna Vaikkal street, Puducherry and Rajini @ Rajinikanth, as the son of Rajaram, were hindrance in the way of the appellant – See State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, ¶¶ 190, 204-206, 219-223, 225. (2012) 6 SCC 107. [2024] 1 S.C.R.  PERUMAL RAJA @ PERUMAL v. STATE, REP. BY INSPECTOR OF POLICE Perumal Raja @ Perumal acquiring the said property. There were also inter se family disputes relating to the property in Kurumbapet. This was the motive for the offence. (vi) On the basis of the disclosure statement made by the appellant – Perumal Raja @ Perumal on 25.04.2008 (Exhibit P-37) – (a) two nylon sack bags were recovered containing decomposed human body parts; and (b) human bones were also recovered from the sump tank in property bearing No.13, Chinna Vaikkal street, Puducherry. (vii) The superimposition report dated 20.01.2009 (Exhibit P-25) by C. Pushparani (PW-29), Scientific Assistant Grade II, Anthropology Division, Forensic Sciences Department, Chennai states that the skull and the mandible which were recovered from the river and the sump tank were that of the deceased Rajini @ Rajinikanth. The report relies on the computer laser print out of the skull and the mandible for comparison with the photograph of the deceased Rajini @ Rajinikanth. It is shown that the skull and the mandible were of the deceased Rajini @ Rajinikanth. (viii) As per the post mortem report (Exhibit P-16), though the cause of death could not be ascertained due to decomposition of the body, the bones were that of a person between 25-30 years of age. Further, the death had probably occurred six months prior to the autopsy. The deceased Rajini @ Rajinikanth was of 30 years in age and he had been missing for about six months. (ix) Motorcycle bearing registration No. PY 01 X 9857 belonging to Rajaram (which was then at Rajaram’s house and in possession of Rajini @ Rajinikanth, as Rajaram was in France), keys, insurance papers, as well as other personal belongings were recovered from Mohan Kumar @ Mohan and a juvenile, whose name is withheld.

37. In Sharad Birdhichand Sarda v. State of Maharashtra29, this Court referred to Hanumant v. State of Madhya Pradesh30, and laid down the five golden principles (‘panchsheel’) that should be satisfied before a case based on circumstantial evidence against an accused can be said to be fully established: (1984) 4 SCC 116. (1952) 2 SCC 71. 110 (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

38. This Court in Sharad Birdhichand Sarda (supra) rejected the contention that if the defence case is false it would constitute an additional link as to fortify the case of the prosecution. However, a word of caution was laid down to observe that a false explanation given can be used as a link when: (i) various links in the chain of evidence laid by the prosecution have been satisfactorily proved; (ii) circumstance points to the guilt of the accused with reasonable definiteness; and (iii) the circumstance is in proximity to the time and situation. If these conditions are fulfilled only then the court can use the false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Thus, a distinction has to be drawn between incomplete chain of circumstances and a circumstance after a chain is complete and the defence or explanation given by the accused is found to be false, in which event the said falsehood is added to reinforce the conclusion of the court.

39. This Court in Deonandan Mishra v. State of Bihar31 has laid down the following principle regarding circumstantial evidence and the failure of accused to adduce any explanation: (1955) 2 SCR 570. [2024] 1 S.C.R.  PERUMAL RAJA @ PERUMAL v. STATE, REP. BY INSPECTOR OF POLICE “It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence.”

40. The appellant – Perumal Raja @ Perumal in his statement under Section 313 of the Code of Criminal Procedure, 1973 plainly denied all accusations without furnishing any explanation regarding his knowledge of the places from which the dead body was recovered. In this circumstance, the failure of the appellant – Perumal Raja @ Perumal to present evidence on his behalf or to offer any cogent explanation regarding the recovery of the dead body by virtue of his special knowledge must lead to a reasonable adverse inference, by application of the principle under Section 106 of the Evidence Act, thus forming an additional link in the chain of circumstances. The additional link further affirms the conclusion of guilt as indicated by the prosecution evidence.

41. The whereabouts of Rajini @ Rajinikanth were unknown. The perpetrator(s) were also unknown. It is only consequent to the disclosure statement by the appellant – Perumal Raja @ Perumal, that the police came to know that Rajini @ Rajinikanth had been murdered and his body was first dumped in the sump tank and after some months, it was retrieved, cut into two parts, put in sack bags, and thrown in the river/canal. The police, accordingly, proceeded on the leads and recovered the parts of the dead body from the sump tank and sack bags from the river/canal. It has been also established that Rajini @ Rajinikanth was murdered. In addition, there have been 112 recoveries of the motorcycle and other belongings at the behest of the appellant – Perumal Raja @ Perumal. These facts, in the absence of any other material to doubt them, establish indubitable conclusion that the appellant – Perumal Raja @ Perumal is guilty of having committed murder of Rajini @ Rajinikanth. The presence of motive reinforces the above conclusion.

42. It has been contended before us that the appellant – Perumal Raja @ Perumal had been acquitted in the case arising out of crime No. 204 of 2008 relating to the murder of Rajaram. The judgment passed by the trial court32 has been taken on record as additional evidence. However, we do not find this judgment in any way relevant or negating the prosecution evidence, which we have referred to and elucidated earlier in the prosecution case against the appellant, because the murder trial of Rajaram was primarily based upon an entirely different set of evidence. The evidence we have mentioned in the present case is not relevant and directly connected with the murder of Rajaram. The two occurrences are separate, albeit the appellant – Perumal Raja @ Perumal was accused of the murder of Rajaram and his son Rajini @ Rajinikanth. The murders certainly were committed on two different dates – 23.11.2007 (or thereabout) and 21.04.2008 respectively, approximately five months apart. Except for the fact that the appellant – Perumal Raja @ Perumal was taken into custody during the course of investigation in FIR No. 204 of 2008 for murder of Rajaram and thereupon on 25.04.2008 his disclosure statement (Exhibit P-37) was recorded, there is no connection between the two offences. The conviction of the appellant is, therefore, sustainable in view of the evidence placed on record in the present case. The judgment of acquittal would not qualify as relevant and of evidentiary value so as to acquit the appellant – Perumal Raja @ Perumal in the present case.33

43. Acquittal of the co-accused, as noticed in paragraph 4 above, again is for want of evidence against them. At best, they were found in possession of the articles connected with the crime on the basis of the disclosure statement (Exhibit P-37) dated 25.04.2008 made by the appellant – Perumal Raja @ Perumal. Section 27 of the Evidence Dated 13.06.2017. See §§ 40-43 of the Indian Evidence Act, 1872. [2024] 1 S.C.R.  PERUMAL RAJA @ PERUMAL v. STATE, REP. BY INSPECTOR OF POLICE Act could not have been applied to the other co-accused for the simple reason that the provision pertains to information that distinctly relates to the discovery of a ‘fact’ that was previously unknown, as opposed to fact already disclosed or known. Once information is given by an accused, the same information cannot be used, even if voluntarily made by a co-accused who is in custody. Section 27 of the Evidence Act does apply to joint disclosures, but this is not one such case.34 This was precisely the reason given by the trial court to acquit the co-accused. Even if Section 8 of the Evidence Act is to apply, it would not have been possible to convict the co-accused. The trial court rightly held other co-accused not guilty. For the same reason, acquittal of co-accused Chella @ Mukundhan, who was earlier absconding, is also of no avail.

44. As far as acquittal of the juvenile is concerned, reference can be made to the provisions of Sections 40 to 43 of the Evidence Act.

45. In view of the above discussion, we have no difficulty in upholding the conviction of the appellant – Perumal Raja @ Perumal. The appeal is dismissed. Headnotes prepared by: Divya Pandey Result of the case: Appeal dismissed. See State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, ¶ 145.