The Apex Court has ruled in a significant and far-reaching development named Rakesh Rai @ Vishal Rai @ Purna Rai & Anr vs State of Sikkim in Criminal Appeal No. 172 of 2018 that was finally delivered on December 9, 2021. The judgment is strong, logical, and refreshing.
In a significant ruling with far-reaching implications, the Apex Court held in Rakesh Rai @ Vishal Rai @ Purna Rai & Anr vs State of Sikkim in Criminal Appeal No. 172 of 2018—a case that was ultimately heard on December 9, 2021—that recovery under Section 27 of the Evidence Act would not be admissible if the disclosure statement was made in connection with a crime that was the subject of a separate trial, particularly if the jurisdictional police officer was not the recipient of the statement. What the three judges on the Apex Court’s bench decided in this landmark decision must be followed by all courts! It is important to note that the Bench, which was made up of Justices UU Lalit, S. Ravindra Bhat, and Bela M. Trivedi, supported the Trial Court’s decision to acquit the appellants who had been found guilty of murder and given a life sentence by the High Court.
The statement “This appeal has been preferred by Rakesh Rai alias Vishal Rai alias Purna Rai (original accused No. 3) and Tenzing Tamang (original accused No. 4), collectively referred to as the appellants, challenging the judgment and order dated 20.04.2012 passed by the High Court of Sikkim at Gangtok in Criminal Appeal No.8 of 2011,” is what sets the ball rolling first and foremost in paragraph 1.
The Bench then states in paragraph 2 that “Four persons, namely Praveen Subba (original accused No. 1), Abishek Rai (original accused No. 2), and the appellants were tried in the Court of Sessions, South & West Sikkim at Namchi in Sessions Trial Case No. 21 of 2004 for having committed the offences punishable under Section 302 read with 34 of the Indian Penal Code, 1860” after discussing the charges for which the accused were being tried.
The Bench then notes in paragraph three, as we can see, that the trial was held in relation to the offense that was reported following the filing of First Information Report No. 25(11)03, dated 28.11.2003, with Police Station Kaluk, District Gayzing.
The Bench then remembers, in retrospect, in paragraph 4, that “Said reporting was as under:
“A telephone report was received today, November 28, 2003, at approximately 030 hrs. from I/C Dentam O.P. claiming that a man deceased body that has not been recognized has been found below a road near Ling Bashi, West Bengal.
Based on the aforementioned data, Kaluk P.S. U/D. Case No.11(11)03, dated 25.11.03, U/S 174 Cr.P.C. was registered, and an investigation was conducted.
The P.O. located the scene of the incident on Dentam to Pelling road at Liching Busty, around one kilometer away from Dentam’s B.B. Lall suspension bridge, after conducting an inquiry and inspecting the area. Blood and teeth can be discovered in roads. One deceased male body, unnamed, was discovered laying 100 feet below the road. Sonam Dadul Bhutia, son of Kinzang Dadul Bhutia of Chumbang, Gayzing, West Bengal, was later identified as the deceased person. An inquest was held over the deceased body. In the course of the inquest, wounds to his skull and missing upper jaw teeth were discovered. There’s also one black chunni in the vicinity of the P.O.
According to the inquiry thus far, Sonam Dadul Bhutia, who died on January 27, 2003, at about 1900 hours, was dumped below the road near Ling Busty and was suspected of being murdered by the same unknown person or people.
Thus, in order to allow for additional investigation, the aforementioned U/D matter has been turned into a criminal case under F.I.R. No. 25(11)03, dated 28.11.2003, using U/S. 302 IPC against an unidentified person on suo motu.
Naturally, the Bench then declares in paragraph 5 that “the aforementioned four accused persons were sent up for trial after due investigation.”
It is noteworthy to mention that the Bench proceeds to observe in paragraph 8 that, “It may further be stated here that insofar as the crime concerning the alleged murder of Beena is concerned, separate criminal proceedings are being held, namely Sessions Trial No.26(S)/04, pursuant to FIR No.331(11)2003 dated 24.12.2003 lodged with Police Station Matigarh, Siliguri, District Darjeeling, in respect of offences under Sections 302/201/34 IPC.” All four of the suspects are identified in the FIR for that offense, and the prosecution is currently ongoing.
The Bench then clarifies in paragraph 9 that, “We are concerned here with the murder of Sonam Dadul Bhutia and not Beena,” for the purpose of clarity.
It is important to note that the Bench goes on to explain in paragraph 10: “The evidence against the appellants, and primarily against accused No. 3, can be classified as follows:
A) At Dentam Bridge, a few witnesses reported seeing Maruti Car No. WNC-0525.
B) The prosecution claims that while the car, registered as WNC-0525, belonged to PW40, it was being held and managed by accused No. 3 Rakesh Rai.
C) Although the prosecution declined to identify the girl, she was spotted with accused number three, Rakesh Rai.
D) Beena’s body could only be found after accused No. 3 Rakesh Rai pointed it out.
It’s also important to note that the Bench goes on to say in detail in paragraph 11: “Taking into account all of the evidence presented, the Trial Court cleared all four of the charges brought against them in its judgment and order dated May 20, 2011.” The Trial Court determined that there was insufficient evidence in the file to declare all four of the accused guilty.
In the end, the Bench notes in paragraph 12 that “the State filed Criminal Appeal No. 8 of 2011 challenging the acquittal of the appellants rather than choosing to file any appeal against acquittal of accused Nos. 1 and 2.”
In order to put things into perspective, the Bench goes on to state in paragraph 13 that “The High Court accepted the State’s appeal and, while reversing the acquittal, recorded conviction against the appellants for the offences they were charged with by its judgment and order presently under challenge. The High Court then imposed a life sentence on them and ordered them to pay a fine of Rs. 20,000/-per person. If they failed to comply, they would have been sentenced to an additional six months in prison.
The Bench then quickly adds, in paragraph 15, “What emerges from the record is that:” This is quite significant.
i. The prosecution claims that Sonam Dadul Bhutia and Beena were discovered with accused Nos. 1 and 2.
ii. Accused Nos. 1 and 2 were both cleared of the accusations made against them.
iii. Not a single witness mentioned seeing Sonam with the appellants.
iv. Even if it is proven true, the evidence in the file would indicate that a girl was with accused No. 3 at the very least. That girl’s identity, however, remained a mystery.
v. Beena’s body was found at the location where A3 Rakesh Rai pointed out.
vi. Sonam Dadul Bhutia’s murder is the subject of this procedure, while a second trial is ongoing for Beena’s murder.
Having said that, the Bench then briefly notes in paragraph 17 that, “As stated herein above, not a single person had seen Sonam in the company of the appellants nor was the body of Sonam recovered pursuant to any disclosure made by any of the appellants.”
Most importantly, in paragraph 18, the Bench does not hold back in asserting, in our considered opinion, that the acquittal recorded by the Trial Court was appropriate and justifiable under the circumstances. In handling an appeal against acquittal, the Trial Court’s position could not have been reversed by the High Court.
“Consequently, we allow this appeal, set-aside the judgment and order of the High Court and acquit the appellants i.e. Rakesh Rai alias Vishal Rai alias Purna Rai (original accused No. 3) and Tenzing Tamang (original accused No. 4) of the charges leveled against them,” is what is held so aptly in paragraph 19. This is equally significant. They will be released right away unless their custody is needed in relation to another offense.
“Needless to say that the proceedings which are presently going on in the Court at Siliguri, District Darjeeling concerning the murder of Beena shall be taken to the logical conclusion without in any way being influenced by the order of acquittal recorded against the appellants in the present matter,” the Bench concludes in paragraph 20, holding this to be the correct conclusion. The Court’s proceedings will be evaluated only on the basis of merit and in compliance with the law.
The main takeaway from this insightful ruling by a three-judge Apex Court bench is undoubtedly that a recovery made pursuant to Section 27 of the Evidence Act would not be allowed if the disclosure statement was made in connection with a crime that was the subject of a separate trial, particularly if the jurisdictional police officer was not contacted. Given that the recovery based on the disclosure statement made in another crime would not be admitted as evidence, it follows naturally that the defendants are found not guilty. It is irrefutable that all courts must adhere to the express rulings made by the Apex Court in this landmark case and other decisions of a similar nature!