Section 27 Evidence Act Statement Not Liable To Be Rejected Merely Because It Was Recorded In A Language Not Known To Accused Through Translator : Supreme Court
The Supreme Court recently held that a confessional statement, which is otherwise admissible in evidence as per Section 27 of the Indian Evidence Act, will not become solely because it was recorded not in the mother tongue of the accused.The Court was dealing with the confessional statement given by a Malayalee accused to the Karnataka police. The police had taken the help of a third party...
The Supreme Court recently held that a confessional statement, which is otherwise admissible in evidence as per Section 27 of the Indian Evidence Act, will not become solely because it was recorded not in the mother tongue of the accused.
The Court was dealing with the confessional statement given by a Malayalee accused to the Karnataka police. The police had taken the help of a third party (who knew Malayalam but did not know to read or write it) to put questions to the accused and elicit answers from him. The third party wrote the answers given by the accused in Tamil language, which in turn was recorded by the police in Kannada language. The police claimed that the confessional statement of the accused led to the discovery of the dead body and hence contended that it was admissible in evidence to that extent as per Section 27.
Before the Supreme Court, the convict raised a contention that the process of recording the statement was "unusual" and hence it should be discarded.
Rejecting this argument, a Bench of Justices Surya Kant and Aravind Kumar held that the ultimate test would be whether the statement was noted down as told by the accused. 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.
“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 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(interpreter) did not know how to read and write Malayalam does not ipso facto make the contents of Ex.P-2 to be disbelieved.”
the High Court as an appellate court has the power to reverse an order of acquittal just as it has to power to reverse an order of conviction and that no distinction can be drawn between the two.
A division bench of Justice Surya Kant and Justice Aravind Kumar observed:
“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 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.”
The Apex Court was hearing an appeal filed by an accused who had been acquitted by the Trial Court, and the acquittal was later reversed by the High Court of Karnataka on an appeal by the State. The High Court had convicted the accused for offences punishable under Sections 302, 201, 404 and 419 of the Indian Penal Code and sentenced him to simple imprisonment. Challenging the conviction by the High Court, the accused had approached the Apex Court.
The accused while working as a labourer at the farmhouse of the deceased, is alleged to have hit him with an iron rod, leading to his death. He is also accused of stealing articles from the farmhouse and selling them for undue monetary gain. He is also alleged to have posed as the son of the deceased and attempted to sell the property of the deceased. The proceedings against the accused were initiated as a result of a complaint filed by the son of the accused. During the inquiry the accused confessed to the crime and led the police to where the body was hidden.
However, the Trial Court concluded that the prosecution did not establish the guilt of the accused beyond reasonable doubt and acquitted him. The High Court reversed the acquittal on the ground that there was erroneous appreciation of evidence and convicted the accused.
Adv. Renjith B. Marar appearing for the accused argued that the order of the High Court was only based on circumstantial evidence and could not be sustained.
Adv. V. N. Raghupathy appearing for the State submitted that the material evidence on record that has been ignored by the Trial Court was rightly relied on by the High Court to secure the conviction of the accused.
The Apex Court observed that the High Court has the authority to re-examine the evidence and conclusions made by the Trial Court and has the right to intervene with its decision. The Court also held that the High Court had rightly relied on circumstantial evidence that unequivocally points to the guilt of the accused.
The prosecution relied on the “last scene theory” as two prime witnesses stated that the accused was last seen in the house of the deceased after his death. The Court held that as the accused failed to provide an explanation as to the sequence of events, the "last seen theory" propounded by the prosecution to prove the guilt of the accused must be accepted.
“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 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 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 approving that fact is upon him namely, on such person.”
The prosecution also relied on the voluntary statement of the accused pursuant to which the dead body was recovered. The accused contended that since the statement was later disowned and since the prosecution did not prove the same, the statement of the accused could not be accepted in evidence. However, the Court held that derivative use of custodial statements was permitted under Section 27 of the Evidence Act and that there was no presumption that such statements were obtained through compulsion. The court also held that the statement made by an accused in police custody could be divided into distinct parts, with only the admissible parts being considered as evidence. The portions that directly led to the discovery of evidence will be accepted as evidence, while the remaining parts can be disregarded.
“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 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.”
Hence, the part of the statement of the accused that led to the recovery of the body of the deceased would become admissible the court held.
The Apex Court found no irregularity in the circumstantial evidence relied on by the prosecution and upheld the conviction of the accused:
“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 by the High Court in proper 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”
Advocates Renjith B Marar, Zulfiker Ali PS, Lakshmi Sree P and Lebina Baby appeared for the appellant while standing counsel VN Raghupathy represented the State.
Case Title : Siju Kurian v State of Karnataka
Citation : 2023 LiveLaw (SC) 338