Facts of the case:

This case of Arup Rabha v. The State of Assam & another, was filed by the appellant assailing the judgement and order dated 03.12.2018 passed by the learned Additional Session Judge, Goalpara in Sessions Case No.25/2016 convicting the sole appellant (Arup Rabha) for committing offences under Sections 364(A)/302/201 of The Indian Penal Code (IPC). As a result of which the sole appellant was sentenced to undergo rigorous imprisonment for life e for committing the offences under sections 364(A) and 302 of the IPC and to undergo rigorous imprisonment for five years for committing the offence under Section 201 of the IPC and also to pay a fine of ₹5000/-, in default, to undergo rigorous imprisonment for a further period of one year with all the sentences running concurrently.

Issue:

1. Whether an accused can be convicted on mere disclosure of facts.
2. Will the information an accused gives under police custody be regarded as evidence under the purview of Section 27 of The Indian Evidence Act, 1872.

Rule:

1. Section 25 of The India Evidence Act, 1872 deals with the confession made by an accused of any offence that need not be proved. It reads as follows-

“25. Confession to police officer not to be proved – No confession made to a police officer, shall be proved as against a person accused of any offence.”

2. Section 26 of The India Evidence Act, 1872 deals with those inadmissible confessions that are made, while in the custody of a police officer, to a third person other than the police officer, unless it is made in the immediate presence of a Magistrate. It reads as follows-

“26. Confession by accused while in custody of police not to be proved against him. – No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.”

3. Section 27 of The India Evidence Act, 1872 deals with the amount of information given by an accused in custody, to a Police officer which may be proved. It reads as follows-

“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 not, as relates distinctly to the fact thereby discovered, may be proved.”

Analysis:

The appeal Crl. Appeal No.50 of 2019 was filed by the sole appellant Arup Rabha, who was convicted under Section 364(A) (Kidnapping for ransom, etc.), Section 302(Punishment for murder), and Section 201(Causing disappearance of evidence of offence, or giving false information to screen offender) of The Indian Penal Code.

The prosecution case started with the submission of the application before the Officer-in-charge, Agia Police Station by Nikhil Chandra Kalita (brother-in-law of deceased Jogendra Narayan Kalita). Which mentions that the deceased Jogendra Narayan Kalita who was a businessman by profession was called by an unknown person on the pretext of providing of rubber sheets to the deceased, following which Jogendra Narayan Kalita went out of his house never to return home again alive.

Based on the application, P.S. Case No.107/2014 was registered under Section 364(A) of IPC, whereafter investigation had commenced. During the course of investigation dead body of Jogendra Narayan Kalita was recovered and hence, Section 302/201 of the IPC were added. Five persons including the appellant herein were arrested by the I.O. and charges under Section 364(A)/368/302/201/34 of IPC were framed against the accused persons which were read over and explained to them. However, since the accused persons had pleaded innocence and claimed to be tried, the matter went up for trial.

The prosecution case was entirely based on circumstantial evidence. The prosecution had also claimed that based on disclosure made by the appellant the dead body was recovered on being shown by the accused. The accused had denied the charge brought against him.

Upon analyzing the evidence adduced by the prosecution side, the learned trial court had convicted the appellant Arup Rabha under Sections 364(A)/302/201 of the IPC and sentenced him as aforesaid while acquitting the four other accused persons due to lack of evidence against them.

By referring to the impugned judgment and order dated 03.12.2018 passed by the learned Additional Sessions Judge, Goalpara. The advocate of the appellant had argued that there was no evidence to support the prosecution story that the dead body was recovered on being led by the accused/appellant.

However, even assuming that there was evidence within the meaning of Section 27 of the Indian Evidence Act, even then, the same would, at best, be an additional link in the chain of circumstances. The case was based on circumstantial evidence, according to the Advocate of the appellant/accused, the prosecution, had failed to establish the chain of circumstances pointing towards the guilt of the appellant.

The following cases were relied upon during the proceedings: –

1. Anter Singh v. State of Rajasthan [(2004)10 SCC 657]
2. Yusuf v. State of West Bengal [(2011)11 SCC 754]
3. Mustakeem alias Sirajuddin v. State of Rajasthan [(2011)11 SCC 724]

By a long line of authoritative pronouncement, the Hon’ble Supreme Court has held that Section 27 of the Indian Evidence Act is an exception to the provisions of Sections 25 and 26. In the case of Anter Singh (supra) relied upon by the appellant’s counsel, the Apex Court has observed that under Section 27 of the Indian Evidence Act, only so much of the information that relates to the fact thereby discovered would be admissible in evidence and no further. While laying down the tests for applying Section 27 of the Indian Evidence Act, it has been held that the first condition necessary for bringing the Section into operation would be the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence, the second condition would be that the discovery of such fact must be deposed to and the third is that at the time of receipt of information, the accused must be in police custody.

Section 27 partially lifts the ban against confessional statements made to the police while in custody on account of the fact that if a fact is discovered in consequence of information given by the accused, it would afford some guarantee of the truth of that part, and that part only of the information which was the clear, immediate and proximate cause of the discovery.

While interpreting the scope of Section 27 of the Indian Evidence Act, the Supreme Court has observed in the case of Mustakeem alias Sirajuddin (supra) as follows: –

“25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.”

Conclusion:

The Hon’ble High Court came to a conclusion that even assuming that the dead body was recovered on the basis of facts disclosed by the appellant while in police custody, even then, that alone would be insufficient to convict the accused for committing the murder of the victim.

The prosecution, in this case, had not only failed to establish links in the chain of circumstances pointing towards the guilt of the accused but had also failed to even remotely connect the appellant with the kidnapping or murder of the victim.

Hence the Hon’ble High Court sets aside the impugned judgement and order dated 03.12.2018 passed by the learned Additional Session Judge, Goalpara and set the appellant/accused at liberty and therefore directs the release of the accused (Arup Rabha) unless his custodial detention is deemed to be necessary in connection to any other case.