No conviction solely on the basis of evidence of last seen together with the deceased = Navaneethakrishnan -vs- The State by Inspector of Police

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1134 OF 2013

Navaneethakrishnan …. Appellant(s)

 

Versus

The State by Inspector of Police …. Respondent(s)

WITH

CRIMINAL APPEAL NOs. 1135-1136 OF 2013

CRIMINAL APPEAL NO. 1137 OF 2013

J U D G M E N T

R.K. Agrawal, J.

1) The above appeals are directed against the common

judgment and order dated 23.11.2009 passed by the High

Court of Judicature at Madras in Criminal Appeal Nos. 639

and 688 of 2009 whereby the Division Bench of the High Court

dismissed the appeals filed by the appellants herein against

the order dated 18.09.2009 passed by the Fast Track Court

No. II, Salem, in Sessions Case No. 21 of 2009 wherein learned

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Additional District & Sessions Judge convicted the appellants

herein under Sections 302 read with Section 34, Section 364

and Section 379 of the Indian Penal Code, 1860 (in short ‘the

IPC’) and sentenced to undergo imprisonment for life with

substantive sentences under the IPC.

2) Brief facts:

(a) A First Information Report (FIR) bearing No. 41 of 2008 at

PS Yercaud, District Salem dated 16.02.2008 got registered by

Mahimaidoss (PW-8) stating that on 14.02.2008, John Bosco

(since deceased), who was employed as the driver in his travel

agency, along with one Madhan (since deceased), took a

Maruti Van from him but did not return for two days.

(b) On the very next date, i.e., on 17.02.2008, one more FIR

got registered by one Asokan bearing No. 88 of 2008 stating

that when he went to irrigate his fields, he found a white

colour sack floating in the well. He immediately informed the

same to the local police and when the sack was opened, a

male body with hands tied at the back was found.

(c) On the basis of FIR dated 16.02.2008, Crime No. 41 of

2008 was registered at Yercaud Police Station and during the

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pendency of investigation, FIR No. 88 of 2008 got registered

and a body was found which was identified as of John Bosco.

(d) During investigation, Sivashankar (A-1 therein) was

apprehended and he confessed about committing the crime

along with (A-2 and A-3) appellants herein stating that they

abducted John Bosco and his friend Madhan and taken them

in the Maruti Van being driven by John Bosco to one of the

relatives of Accused No. 2 therein where they caused death of

John Bosco and Madhan by strangulating them one by one

using a rope and drowned their bodies in water streams using

gunny bags. A-1 also took the investigation officer to the place

where the body of Madhan was found in a gunny bag.

(e) After following the due procedure, a charge sheet was

filed in the Court of Judicial Magistrate No. 5, Salem and the

case was committed to the Court of Additional District &

Sessions Judge, Fast Track Court No. II, Salem and numbered

as Sessions Case No. 21 of 2009. The Court framed charges

under Sections 364, 302 read with Section 34, 201 read with

Section 302 and 379 of the IPC.

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(f) Learned Additional District & Sessions Judge, vide

judgment and order dated 18.09.2009, convicted all the

accused for the commission of crime under the charging

Sections and sentenced them to undergo imprisonment for life.

(g) Being aggrieved by the judgment and order dated

18.09.2009, the appellants-accused preferred Criminal Appeal

Nos. 639 and 688 of 2009 before the High Court. The Division

Bench of the High Court, vide judgment and order dated

23.11.2009, dismissed the appeals preferred by the appellants

herein.

(h) Being aggrieved by the judgment and order dated

23.11.2009, the appellants herein have preferred these

appeals by way of special leave before this Court.

3) Heard Mr. K.K. Mani, learned counsel for the

appellants-accused and Mr. M. Yogesh Kanna, learned counsel

for the respondent-State and perused the records.

Point(s) for consideration:-

4) The only point for consideration before this Court in the

present facts and circumstances of the case is whether the

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High Court was right in dismissing the appeals preferred by

the appellants-accused?

Rival contentions:-

5) Learned counsel appearing for the appellants contended

that the courts below failed to appreciate that the conviction

cannot be based upon a retracted confession and it can be

used only in support of other evidence. He further contended

that the courts below erred in convicting the appellants where

the cause of death is not known.

6) Learned counsel further contended that there are several

lacunas in the prosecution version. In support of the same, he

contended that the lower courts failed to appreciate that the

owner of the phone recovered from Accused No. 1 therein is

not PW-8 and some other person and the said person was

never examined by the prosecution. Further, on 14.02.2008,

at about 10.30 a.m., PW-11 has seen the accused along with

the deceased whereas the dead bodies have been found after a

gap of several days and the possibility of intervention of some

other person cannot be ignored.

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7) Learned counsel appearing for the appellants finally

contended that the High Court ought to have appreciated the

fact that there was no complete chain of circumstantial

evidence in the prosecution case and there are various

discrepancies inherent in it, hence, the benefit of doubt should

be given in favour of the appellants while setting aside the

judgment and order passed by the High Court.

8) Per contra, learned counsel appearing on the behalf of

Respondent-State submitted that the judgment and order

passed by the Division Bench of the High Court upholding the

decision of the Sessions Court is as per the terms and dictates

of law and should not be inferred with and the evidence

against the appellants-accused are sufficient enough to bring

home the guilt.

Discussion:-

9) It is the case of the prosecution that the

appellants-accused planned to earn quick money by robbing a

car and selling the same and for that purpose on 14.2.2008

they went to Yercaud and engaged the taxi of the John Bosco

(since deceased) under the guise of sightseeing. John Bosco

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(since deceased) also took one Madhan (since deceased) on the

way. The appellants-accused asked the driver-John Bosco to

drop them at Periyar Nagar, Salem at the house of the

grandfather of one of the accused. After reaching there, the

appellant-accused found that the grandfather was not

available. The appellants-accused invited John Bosco into the

house for taking liquor and they killed both of them by

strangulating their necks with a rope. Accused No. 1 therein

took the mobile phone and the Accused No. 3 therein took the

Yashika Camera of one John Bosco. Accused No. 2 therein

concealed the said van in the house of his grandfather. The

number plate of van was changed with a sticker. Thereafter,

they wrapped the dead bodies into separate gunny bags and

threw the gunny bag containing the dead body of John Bosco

into the well of PW-1 and threw away the dead body of

Madhan to some other place.

10) The appellants-accused were charged and prosecuted

under Sections 302 read with 34, 364, 201 read with Section

379 of the IPC. As in the given case no direct evidence of the

incident is available, the prosecution heavily relied upon the

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circumstantial evidences. To prove the case, the prosecution

has examined as much as 27 witnesses and produced different

relevant documents.

11) In the FIR, bearing No. 41 of 2008, lodged by PW-8, at

Yercaud Police Station, he had specifically mentioned that he

bought a mobile phone in the name of some other person and

handed over the same to John Bosco. PW-8 is the owner of the

vehicle which was being driven by John Bosco at the time of

the incident, and also happens to be his maternal uncle. He

further deposed that John Bosco was working as a driver on

the said vehicle at that time and on the fateful day i.e., on

14.02.2008, he told him that he is going to drop one of his

friends at Salem and left the place at about 11:30 and when

he did not return for two days he filed a missing complaint on

16.02.2008. PW-8 also tried to contact John Bosco over the

mobile phone but it was switched off. Mr. Asaithambi

(PW-26), the investigation officer, stated in his deposition that

on 25.02.2008, PW-8 handed over the bill of the said mobile

phone to him. During investigation and while tracing the IMEI

number of the mobile phone, it was revealed that the said

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phone was being used by Accused No. 1-Sivasankaran. On

01.03.2008, Accused No. 1 was apprehended by PW-26 and he

voluntarily gave a confessional statement which was witnessed

by PW-13. Based on his confessional statement, PW-26 found

the dead body of Madhan as well as the mobile phone of John

Bosco and a rope was also recovered with which they alleged

to have murdered the deceased. The dead body was identified

by his mother and the same was further proved by skull

imposition test. He further informed the whereabouts of other

accused persons on the basis of which they were arrested from

Yercaud junction. However, he retracted from the given

statement in the court.

12) Accused No. 2-Suresh was apprehended by PW-20 at

Salem Railway Station based on the information given by

Accused No. 1 and on the basis of his information, the

recovery of the alleged Omni Van was affected by PW-26.

Further, Anbalagan (PW-11), who was a Taxi driver at Yercaud

Taxi stand had deposed that the appellants-accused had

spoken to John Bosco on 14.02.2008 for hiring a taxi for

sightseeing. Thereafter, he noticed that the

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appellants-accused boarded the vehicle of John Bosco and

Madhan also boarded the same vehicle from a short distance.

In fact, PW-11 had identified the appellants-accused in the

court as the persons who had accompanied John Bosco and

Madhan on 14.02.2008.

13) Accused No.-3-Navaneethakrishnan was apprehended by

PW-20 from Salem Railway Station based on the information

given by Accused No. 1. PW-26 deposed that on the basis of

the confession of Accused No. 3, Yashika Camera was

recovered. The dead body of John Bosco was recovered from

the farm of PW-1 on 17.02.2008 on his information and the

same was identified by the mother and father of the deceased

and was further proved by skull imposition test. But it is also

relevant to mention here that in the present case, the

prosecution has no direct evidence to offer. The entire case

rests upon the circumstantial evidence as there is no witness

directly to speak about the occurrence.

14) In the present case, there is no witness of the occurrence

and it is only based on circumstantial evidence. Before

moving further, it would be apposite to refer the law regarding

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reliability of circumstantial evidence to acquit or convict an

accused. The law regarding circumstantial evidence was aptly

dealt with by this Court in Padala Veera Reddy vs. State of

Andhra Pradesh and Others 1989 Supp. 2 SCC 706 wherein

this Court has observed as under:-

“10. x x x x

(1) The circumstances from which an inference of guilt is sought

to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency

unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain

so complete that there is no escape from the conclusion that

within all human probability the crime was committed by the

accused and none else; and

(4) the circumstantial evidence in order to sustain conviction

must be complete and incapable of explanation of any other

hypothesis than that of guilt of the accused and such evidence

should not only be consistent with the guilt of the accused but

should be inconsistent with his innocence.”

15) The prosecution placed reliance before the Court mainly

on three circumstances, firstly, the last seen theory, secondly,

the recovery of material objects which belonged to both the

deceased from the appellants-accused and thirdly, the

identification of the dead body of Madhan from the river bed as

pointed out by the first accused, however, the appellant herein

has raised certain doubts regarding the same.

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16) The pivotal evidence in the given case is the testimony of

PW-11 who is believed to have lastly seen the

appellants-accused with the deceased. Learned counsel

appearing for the appellants-accused has contended that all

the accused were unknown to PW-11 but no identification

parade was conducted and the said witness has identified the

said accused directly in court after a lapse of about 50 days’

and hence his evidence should not be relied upon.

17) It is a settled proposition of law that the identification

parade of the accused before the court of law is not the only

main and substantive piece of evidence, but it is only a

corroborative piece of evidence. Regarding this, reliance can

be safely placed on Rafikul Alam & Others vs. The State of

West Bengal 2008 Crl. L.J. 2005 wherein it was held as

under:-

“32…..It is accordingly considered a safe rule of prudence to

generally look for corroboration of the sworn testimony of

witnesses in Court as to the identity of the accused who are

strangers to them, in the form of earlier identification proceedings.

This rule of prudence, however, is subject to exceptions when, for

example, the Court is impressed by a particular witness on whose

testimony it can safely rely, without such or other corroboration.

The identification parades do not constitute substantive evidence.

Failure to hold a test identification parade would not make

inadmissible the evidence of identification in Court. The weight to

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be attached to such identification should be a matter for the

Courts of fact. In appropriate cases it may accept the evidence of

identification even without insisting upon corroboration”

18) PW-11 was able to identify all the three accused in the

Court itself by recapitulating his memory as those persons

who came at the time when he was washing his car along with

John Bosco and further that he had last seen all of them

sitting in the Omni van on that day and his testimony to that

effect remains intact even during the cross examination in the

light of the fact that the said witness has no enmity

whatsoever against the appellants herein and he is an

independent witness. Once the testimony of PW-11 is

established and inspires full confidence, it is well established

that it is the accused who were last seen with the deceased

specially in the circumstances when there is nothing on record

to show that they parted from the accused and since then no

activity of the deceased can be traced and their dead bodies

were recovered later on. It is a settled legal position that the

law presumes that it is the person, who was last seen with the

deceased, would have killed the deceased and the burden to

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rebut the same lies on the accused to prove that they had

departed. Undoubtedly, the last seen theory is an important

event in the chain of circumstances that would completely

establish and/or could point to the guilt of the accused with

some certainty. However, this evidence alone can’t discharge

the burden of establishing the guilt of accused beyond

reasonable doubt and requires corroboration.

19) Learned counsel for the appellants-accused contended

that the statements given by the appellants-accused are

previous statements made before the police and cannot be

therefore relied upon by both the appellant-accused as well as

the prosecution. In this view of the matter, it is pertinent to

mention here the following decision of this Court in Selvi and

Others vs. State of Karnataka (2010) 7 SCC 263 wherein it

was held as under:-

“133. We have already referred to the language of Section

161 CrPC which protects the accused as well as suspects

and witnesses who are examined during the course of

investigation in a criminal case. It would also be useful to

refer to Sections 162, 163 and 164 CrPC which lay down

procedural safeguards in respect of statements made by

persons during the course of investigation. However, Section

27 of the Evidence Act incorporates the “theory of

confirmation by subsequent facts” i.e. statements made in

custody are admissible to the extent that they can be proved

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by the subsequent discovery of facts. It is quite possible that

the content of the custodial statements could directly lead to

the subsequent discovery of relevant facts rather than their

discovery through independent means. Hence such

statements could also be described as those which “furnish a

link in the chain of evidence” needed for a successful

prosecution. This provision 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.

134. This provision permits the derivative use of custodial

statements in the ordinary course of events. In Indian law, there

is no automatic presumption that the custodial statements have

been extracted through compulsion. In short, there is no

requirement of additional diligence akin to the administration of

Miranda warnings. However, in circumstances where it is shown

that a person was indeed compelled to make statements while

in custody, relying on such testimony as well as its derivative

use will offend Article 20(3).”

20) In this view, the information given by an accused person

to a police officer leading to the discovery of a fact which may

or may not prove incriminatory has been made admissible

under Section 27 of the Evidence Act, 1872. Further, in Selvi

(supra), this Court held as under:-

“264. In light of these conclusions, we hold that no

individual should be forcibly subjected to any of the

techniques in question, whether in the context of

investigation in criminal cases or otherwise. Doing so would

amount to an unwarranted intrusion into personal liberty.

However, we do leave room for the voluntary administration

of the impugned techniques in the context of criminal justice

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provided that certain safeguards are in place. Even when the

subject has given consent to undergo any of these tests, the

test results by themselves cannot be admitted as evidence

because the subject does not exercise conscious control over

the responses during the administration of the test.

However, any information or material that is subsequently

discovered with the help of voluntary administered test

results can be admitted in accordance with Section 27 of the

Evidence Act, 1872.”

21) In Madhu vs. State of Kerala (2012) 2 SCC 399, this

Court while discussing the mandate of Section 27 of the

Evidence Act held as under:-

“49. As an exception, Section 27 of the Evidence Act provides

that a confessional statement made to a police officer or

while an accused is in police custody, can be proved against

him, if the same leads to the discovery of an unknown fact.

The rationale of Sections 25 and 26 of the Evidence Act is,

that police may procure a confession by coercion or threat.

The exception postulated under Section 27 of the Evidence

Act is applicable only if the confessional statement leads to

the discovery of some new fact. The relevance under the

exception postulated by Section 27 aforesaid, is limited “…

as relates distinctly to the fact thereby discovered….”. The

rationale behind Section 27 of the Evidence Act is, that the

facts in question would have remained unknown but for the

disclosure of the same by the accused. The discovery of facts

itself, therefore, substantiates the truth of the confessional

statement. And since it is truth that a court must endeavour

to search, Section 27 aforesaid has been incorporated as an

exception to the mandate contained in Sections 25 and 26 of

the Evidence Act.”

22) Section 27 of the Evidence Act is applicable only if the

confessional statement leads to the discovery of some new

fact. The relevance is limited as relates distinctly to the fact

thereby discovered. In the case at hand, the Yashika Camera

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which was recovered at the instance of Accused No. 3 was not

identified by the father as well as the mother of the deceased.

In fact, the prosecution is unable to prove that the said

camera actually belongs to the deceased-John Bosco. Though

the mobile phone is recovered from A-1, but there is no

evidence on record establishing the fact that the cell phone

belongs to the deceased-John Bosco or to PW-8 as the same

was not purchased in their name. Further, the prosecution

failed to examine the person on whose name the cell phone

was purchased to show that it originally belongs to PW-8 to

prove the theory of PW-8 that he had purchased and given it

to the deceased John-Bosco. Further, the material objects,

viz., Nokia phone and Motor Bike do not have any bearing on

the case itself. The Nokia phone was recovered from Accused

No. 1 and it is not the case that it was used for the

commission of crime and similarly the motor cycle so

recovered was of the father of Accused No. 3 and no evidence

has been adduced or produced by the prosecution as to how

these objects have a bearing on the case. In fact, none of the

witnesses have identified the camera or stated the belongings

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of John Bosco. The said statements are inadmissible in spite

of the mandate contained in Section 27 for the simple reason

that it cannot be stated to have resulted in the discovery of

some new fact. The material objects which the police is

claimed to have recovered from the accused may well have

been planted by the police. Hence, in the absence of any

connecting link between the crime and the things recovered,

there recovery on the behest of accused will not have any

material bearing on the facts of the case.

23) The law is well settled that each and every incriminating

circumstance must be clearly established by reliable and

clinching evidence and the circumstances so proved must

form a chain of events from which the only irresistible

conclusion about the guilt of the accused can be safely drawn

and no other hypothesis against the guilt is possible. In a

case depending largely upon circumstantial evidence, there is

always a danger that conjecture or suspicion may take the

place of legal proof. The court must satisfy itself that various

circumstances in the chain of events must be such as to rule

out a reasonable likelihood of the innocence of the accused.

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When the important link goes, the chain of circumstances gets

snapped and the other circumstances cannot, in any manner,

establish the guilt of the accused beyond all reasonable doubt.

The court has to be watchful and avoid the danger of allowing

the suspicion to take the place of legal proof for sometimes,

unconsciously it may happen to be a short step between moral

certainty and legal proof. There is a long mental distance

between “may be true” and “must be true” and the same

divides conjectures from sure conclusions. The Court in

mindful of caution by the settled principles of law and the

decisions rendered by this Court that in a given case like this,

where the prosecution rests on the circumstantial evidence,

the prosecution must place and prove all the necessary

circumstances, which would constitute a complete chain

without a snap and pointing to the hypothesis that except the

accused, no one had committed the offence, which in the

present case, the prosecution has failed to prove.

Conclusion:-

24) In view of the foregoing discussion, we are of the

considered opinion that both the courts below have erred in

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relying that part of the statement which can be termed as

confession which were given to the police officer while they

were in custody and it will be hit by Section 26 of the Indian

Evidence Act,1872 and only that part of the statement which

led to the discovery of various materials would be permissible.

Hence, in the absence of any other material evidence against

the appellants-accused, they cannot be convicted solely on the

basis of evidence of last seen together with the deceased.

25) In the light of the above discussion, the judgment and

order dated 23.11.2009 passed by the High Court is set aside.

The appeals are allowed. The appellants who are in custody

shall be set at liberty forthwith, if they are not required in any

other criminal case.

……………….………………………J.

(A.K. SIKRI)

.…….…………………………………J.

(R.K. AGRAWAL)

NEW DELHI;

APRIL 16, 2018.