Kerala HC Acquits Hindi Proficient Accused As Disclosure Statement U/S 27 Evidence Act Was Recorded In Malayalam, Translator Not Examined

The Division Bench comprising Justices P.B.Suresh Kumar and P.G.Ajithkumar observed that disclosure statement has to be recorded in the same language spoken by the accused. It was found that the police made the recovery of material objects with the help of a translator who translated the disclosure statement into Malayalam and the translator was not examined as a witness.

“….in the case on hand, as Sri.Shaik Ameed who rendered assistance to PW17 to translate the disclosures made by the accused has not been examined in the proceedings. In short, we are constrained to hold that the evidence tendered by PW17 as regards the disclosures deposed to have been made by the accused which led to the seizure of various material objects, is inadmissible in evidence.”

The prosecution case was that the accused murdered the deceased by inflicting a cut injury on his neck and also robbed him. Both the deceased and the accused were natives of West Bengal. The accused was convicted and sentenced by Sessions Court for offences under Section 449 (house trespass to commit offence punishable with death), 302 (punishment for murder) and 397 (robbery or dacoity with attempt to cause death or grievous hurt) of the IPC. Against conviction and sentence, appeal was preferred.

The Counsel for the accused, Advocates Sarath Babu Kottakkal and Rebin Vincent Gralan submitted that arrest was made based on oral evidence of a witness (PW3) and based on discovery of materials admissible under Section 27 of Evidence Act. It was submitted that the accused was not proficient in Malayalam and disclosures were made in Hindi and was translated to the investigating officer by another civil police officer. It was contended that the exact words spoken by the accused was not recorded in the Mahazars nor the translator was examined. It was submitted that the evidence of PW3 was not trustworthy and the evidence was not sufficient to hold the accused guilty. It was submitted that the accused should be given benefit of doubt.

Senior Public Prosecutor, Alex M Thombra submitted that oral evidence of PW3, along with the disclosures made by the accused which led to the discovery of various material objects, would prove the guilt of the accused beyond doubt.

The Court found that the Sessions Court has observed that the accused was proficient in Malayalam. The Court found that the accused was examined after six years of the alleged incident and meanwhile, he learnt Malayalam from jail. The Court noted that the accused was not proficient in Malayalam at the time when he made the alleged disclosures. It found that the disclosures made by the accused in Hindi were translated to Malayalam for helping the investigating officer by another civil police officer who was proficient in Hindi. These disclosure statements were recorded in Malayalam, a language not known to the accused, the Court stated thus:

“It is seen from the evidence of PW17 that it was with the assistance of one Shaik Ameed, a Civil Police Officer who was proficient in Hindi that the investigation of the case had been conducted. PW17 admitted in his cross-examination that the disclosures have been made to him by the accused in Hindi and the same have not been recorded in the language spoken by the accused, but only in Malayalam as he was not proficient in Hindi.”

The Court relied upon the decisions in Sanjay Oraon v. State of Kerala (2021) and observed that statements made by accused under Section 27 of Evidence Act should be recorded in the first person and as far as possible in the actual words of the accused. In Siju Kurian v. State of Karnataka (2023), the Apex Court clarified that if disclosure was translated from one language to another language and recorded in a third language, then it can be admissible in evidence if the translator was examined as a witness.

The Court noted that in the facts of the case, the translator was not examined. Thus, it found that the disclosures which led to the seizure of various material objects under Section 27 of Evidence Act was not admissible in evidence because recovery was effected based on the disclosure statement of the accused recorded in a language which was not known to the accused.

Regarding the evidence of PW3, the Court found that it was not possible to believe that he might have seen the accused in pitch dark when he was away ten to twenty meters from the scene. It also found that when cases were based on circumstantial evidence, it was obligatory for the prosecution to prove each and every circumstance forming the chain of circumstances to prove the guilt of the accused.

On the above observations, the Court set aside the conviction and sentence imposed upon the accused and found that conviction of the accused was unsustainable. The appeal was allowed and the appellant was ordered to be released from the prison.

Citation: 2023 LiveLaw (Ker) 568

Case title: Sanath Roy v State of Kerala

Case number: CRL.A NO. 511 OF 2019

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