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Sunday, July 20, 2014

Last seen theory - not established - 6 days gap not explained properly - prosecution failed to explain about the presence of deceased at police station when deceased aunt visited the police station - the last seen theory lost it's sanctity - when some of the accused are acquitted , the same benefit doubt applies to the accused also as the case was found on last seen theory - Apex court held that n the present case as noticed above, the Sessions Judge convicted the accused Nos.1 to 3 on the basis of last seen evidence, the correctness of last seen version emanating from Valarmathi (PW-1), Amirthavalli (PW-3) and Murugan (PW-4) and as per the prosecution case is also doubtful, there being contradiction about place where the accused were last seen with the deceased Manikandan. The High Court had failed to appreciate the aforesaid fact and erred in affirming the order of conviction passed by the Sessions Judge. For the reasons aforesaid, we set aside the impugned judgment dated 31st March, 2008 passed by the High Court of Judicature at Madras in Criminal Appeal No.1009 of 2005 and impugned order of conviction and sentence dated 17th November, 2005 passed by the Sessions Judge in Session Case No.61 of 2005. The appeal is allowed. = KRISHNAN @ RAMASAMY & ORS. … APPELLANTS VERSUS STATE OF TAMIL NADU … RESPONDENT = 2014 - July Part - http://judis.nic.in/supremecourt/filename=41717

Last seen theory - not established - 6 days gap not explained properly - prosecution failed to explain about the presence of deceased at police station when deceased aunt visited the police station - the last seen theory lost it's sanctity - when some of the accused are acquitted , the same benefit doubt applies to the accused also as the case was found on last seen theory - Apex court held that n the present case as noticed above,  the  Sessions  Judge  convicted the accused Nos.1 to 3 on the basis of last seen evidence,  the  correctness of last seen version emanating from Valarmathi (PW-1),  Amirthavalli  (PW-3) and Murugan (PW-4) and as per the prosecution case is also  doubtful,  there being contradiction about place where the accused were last  seen  with  the deceased Manikandan. The High Court had failed to appreciate  the  aforesaid fact and erred in affirming the order of conviction passed by  the  Sessions Judge. For the reasons aforesaid, we set aside the  impugned  judgment  dated 31st March, 2008 passed by  the  High  Court  of  Judicature  at  Madras  in Criminal Appeal No.1009  of  2005  and  impugned  order  of  conviction  and sentence dated 17th November, 2005 passed by the Sessions Judge  in  Session Case No.61 of 2005. The appeal is allowed. =

 the  deceased
Manikandan expressed his love to one Rajeswari, daughter  of  accused  No.1,
Krishnan @ Ramasamy and accused No.5, Selvam. For  the  said  reason,  there
was a commotion which resulted in enmity between  the  accused  on  the  one
side and the deceased Manikandan on the other side. The deceased was  driven
out of Neyveli area. =

Learned counsel for the appellants  would  submit  that  the  Sessions
Judge accepted the testimony of the interested witness and on the  basis  of
circumstantial  evidence  the  appellants  have  been  convicted.  He  would
further submit that the prosecution  case  rests  only  upon  circumstantial
evidence but the prosecution has failed to prove such circumstances  without
any breakage of link, convicted the appellants only on  the  basis  of  last
seen theory and the confession of accused No.3. He also submitted  that  the
appellants (accused Nos.1 to 3) also stand on the same footing  as  that  of
accused Nos. 4 and 5, who were given benefit of doubt, such benefit was  not
extended to accused Nos.1 to 3.=
 This Court in Bodhraj vs. State of Jammu and  Kashmir,  (2002)  8  SCC
45, held that the last seen theory comes into play  where  time-gap  between
the point of time when the accused and the deceased  were  seen  last  alive
and the deceased is found dead is so small that possibility  of  any  person
other than the accused being the author of the crime becomes impossible.  It
will be hazardous to come to a conclusion of guilt in cases where  there  is
no other positive evidence to conclude that the  accused  and  the  deceased
were last seen together.
23.   There is unexplained delay of six days in  lodging  the  FIR.  As  per
prosecution story the deceased Manikandan was last seen on 4th  April,  2004
at Vadakkumelur  village  during  Panguni  Uthiram  Festival  at  Mariyamman
Temple. The body of the deceased was taken from the  borewell  by  the  fire
service personnel after more than seven days. There  is  no  other  positive
material on record to show that the deceased was  last  seen  together  with
the accused and intervening  period  of  seven  days  there  was  nobody  in
contact with the deceased.=
She  saw  her  son  being
beaten up by the accused and at that time her  son  was  in  an  unconscious
state. She went and brought the village headman. Thereafter, Manikandan  was
taken  from  the  said  place  in  an  autorickshaw  by  the  accused.   She
immediately informed the village elder. The village  Head  came  along  with
her and prevented such beating. He told the accused to leave her son at  the
Police Station. The accused had kept Manikandan till  7.30  p.m.  They  sent
Chinnu @ Rajendiran, accused No.2 to bring the auto, accused Nos.1,2  and  3
had taken her son in that auto. Her son had not returned next day.   Accused
No.1, Ramasamy later on crossed her house from whom she enquired as  to  the
whereabouts of her son to which he replied that her son would return  within
two days. When she further enquired from accused No.1, he had  replied  that
he had sent him to Kerala, on paying him Rs.100/-. On  the  next  day,  i.e.
6th day she had again asked accused No.1 about her  son  and  she  told  him
that  she  would  file  a  complaint  alleging  the  missing  of  her   son.
Subsequently, after a lapse of 6 days, she had filed a  complaint  with  the
Police Station (Neyveli Township at 8th Block). The Police  having  come  to
know that they were  already  conducting  enquiry  from  accused  No.3  with
regard to this case, on the basis of the statement given  by  accused  No.3,
Ramalingam, the dead body of her son was retrieved from a deep  borewell  by
the fire service personnel.=
The  testimony  of  an  accomplice  cannot  be  used  against  another
accused. On the basis of  testimony  of  accused  No.3,  if  dead  body  was
recovered, on that basis the accused Nos.1 and 2  cannot  be  convicted.  If
accused No.4, Rajendiran @ Sakkarai was also last  seen  with  the  deceased
Manikandan along with accused Nos. 1 to 3,  the  Trial  Court  having  given
benefit of doubt to accused No.4 it is not clear as to why the same  benefit
has not been given to accused Nos.1 to 3.=
In Arjun Marik and others vs.  State  of  Bihar,
(1994) Supp.(2) SCC 372, this Court held as follows:
“31. Thus the evidence that  the  appellant  had  gone  to  Sitaram  in  the
evening of 19-7-1985 and had stayed in the night at the  house  of  deceased
Sitaram is very shaky and inconclusive. Even if it  is  accepted  that  they
were there it would at best amount to be  the  evidence  of  the  appellants
having been seen last together with the deceased.  But  it  is  settled  law
that the only circumstance of last seen  will  not  complete  the  chain  of
circumstances to record the finding that it  is  consistent  only  with  the
hypothesis of the guilt of the accused  and,  therefore,  no  conviction  on
that basis alone can be founded.”=
24.   In Jaswant Gir vs. State of Punjab, (2005)  12  SCC  438,  this  Court
held that in absence of any other  links  in  the  chain  of  circumstantial
evidence, the appellant cannot be convicted solely on  the  basis  of  “last
seen together” even if version of the prosecution witness in this regard  is
believed.
25.   In the present case as noticed above,  the  Sessions  Judge  convicted
the accused Nos.1 to 3 on the basis of last seen evidence,  the  correctness
of last seen version emanating from Valarmathi (PW-1),  Amirthavalli  (PW-3)
and Murugan (PW-4) and as per the prosecution case is also  doubtful,  there
being contradiction about place where the accused were last  seen  with  the
deceased Manikandan. The High Court had failed to appreciate  the  aforesaid
fact and erred in affirming the order of conviction passed by  the  Sessions
Judge.
26.   For the reasons aforesaid, we set aside the  impugned  judgment  dated
31st March, 2008 passed by  the  High  Court  of  Judicature  at  Madras  in
Criminal Appeal No.1009  of  2005  and  impugned  order  of  conviction  and
sentence dated 17th November, 2005 passed by the Sessions Judge  in  Session
Case No.61 of 2005. The appeal is allowed. The appellants  are  directed  to
be released forthwith, if not required in any other case.
2014 - July Part - http://judis.nic.in/supremecourt/filename=41717

                                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 512  OF 2010

KRISHNAN @ RAMASAMY & ORS.                     … APPELLANTS

                                   VERSUS

STATE OF TAMIL NADU                                … RESPONDENT


                               J U D G M E N T


Sudhansu Jyoti Mukhopadhaya, J.


      This appeal is directed against the judgment dated  31st  March,  2008
passed by the High Court of Judicature at Madras in Criminal Appeal  No.1009
of 2005. By the impugned judgment the High Court dismissed  the  appeal  and
affirmed the judgment of conviction  and  sentence  passed  by  the  learned
Sessions Judge against the appellants for the  offence  under  Section  364,
302 and 201 read with Section 34 IPC.
2.    The case of the prosecution in nutshell is as follows:
      Prior  to  4th  April,  2004,  the  date  of  incident,  the  deceased
Manikandan expressed his love to one Rajeswari, daughter  of  accused  No.1,
Krishnan @ Ramasamy and accused No.5, Selvam. For  the  said  reason,  there
was a commotion which resulted in enmity between  the  accused  on  the  one
side and the deceased Manikandan on the other side. The deceased was  driven
out of Neyveli area. Subsequently, on 4th April, 2004 during Panguni  Uthram
Kaavadi Festival at Veludaiyanpattu village, the deceased  visited  for  the
festival. On the said date at about 6.30 p.m., the deceased along  with  his
friends was  talking  behind  the  school  at  Vadakkumelur.  At  that  time
accused No.1,  Krishnan  @  Ramasamy,  accused  No.2  Rajendiran  @  Chinnu,
accused No.3, Ramalingam and accused No.5, Selvam came there  and  took  the
deceased Manikandan to the place near Mariyamman Temple  and  attacked  him.
Later, they took him in an autorickshaw bearing Registration No.TN 31Y  2376
and abducted him under the pretext that the  deceased  was  being  taken  to
Police Station.   On the way, the accused purchased brandy and at 6.15  p.m.
in the cashew thope belong to one Vijeyendiran  the deceased was  taken  out
of the autorickshaw. Vijeyendiran told the accused not  to  assemble  there.
Then, accused Nos.1, 2 and 3 took the deceased Manikandan  to  the  side  of
the road leading to Vadakkumelur and under a  margosa  tree  Manikandan  was
compelled to drink  brandy.  At  about  12  midnight  accused  Nos.1  and  2
strangulated the deceased Manikandan by putting his towel  around  his  neck
and done him to death. Thereafter, accused Nos.1, 2 and 3 put the dead  body
into a borewell.
3.    On 10th April, 2004, based on the complaint given  by  the  mother  of
the deceased Manikandan a complaint was  registered  for  an  offence  under
Section 365 IPC. On 13th April, 2004,  the  Police  arrested  accused  No.3-
Ramasamy, who gave a voluntary confession statement in  pursuance  of  which
accused No.3 took the Police to the borewell where they had hidden the  dead
body. Upon the identification of the borewell by accused No.3 with the  help
of Kurinjipadi fire service personnel, the dead body was taken  out  by  the
Police from the borewell. The body  was  identified  by  Valarmathi  (PW.1),
Amrthavalli (PW-2) Gopal (PW-3), Murugan (PW-4) and Rajeswari (PW-5)  to  be
that of Manikandan. The body was sent to Panruti Government  Hospital  where
inquest was conducted by Kabbadasan (PW-13) on 14th March, 2004  at  6  a.m.
in the presence of  witnesses  and  panchayatdars.  The  inquest  report  is
Ex.P.17. Ex.P.9 is the post mortem certificate and Ex.P.10  is  the  opinion
given by the Doctor who conducted  postmortem.  The  Investigating  Officer,
Kannadasan  (PW-13)  came  to  know  that  the  other  accused   surrendered
themselves before the Court. After concluding the enquiry,  Kannadasan  (PW-
13) laid charge sheet against the accused before  the  Court  on  26th  May,
2004 for the offence under Sections 364, 365, 302 and 201 IPC. The  Sessions
Judge secured the presence of the accused,  framed  charges  under  Sections
364, 365, 302 and 201 IPC. All the accused pleaded not  guilty  and  claimed
to be tried.
4.    The prosecution in all examined 13 witnesses, produced Ex.P.1 to  P.22
and marked MOS 1 to 4 to prove its case. When the  accused  were  questioned
under Section 313 Cr.P.C. on the basis of the incriminating  materials  made
available against them, they denied  each  and  every  circumstance  put  up
against them as false and contrary to the facts. Neither any  oral  evidence
nor  any  documentary  evidence  was  produced  on   their   behalf.   After
considering all  the  material  on  record  and  hearing  the  parties,  the
Sessions Court had come to the conclusion that the  prosecution  has  proved
its case only against accused Nos.1 to 3  for  the  offence  under  Sections
364, 302 and 201 IPC read with Section 34 IPC and  acquitted  accused  Nos.4
and 5 of the charges levelled against them.
5.    To challenge their conviction and sentence accused Nos.1  to  3  moved
before the High Court, which dismissed the appeal by the impugned  judgment.

6.    Learned counsel for the appellants  would  submit  that  the  Sessions
Judge accepted the testimony of the interested witness and on the  basis  of
circumstantial  evidence  the  appellants  have  been  convicted.  He  would
further submit that the prosecution  case  rests  only  upon  circumstantial
evidence but the prosecution has failed to prove such circumstances  without
any breakage of link, convicted the appellants only on  the  basis  of  last
seen theory and the confession of accused No.3. He also submitted  that  the
appellants (accused Nos.1 to 3) also stand on the same footing  as  that  of
accused Nos. 4 and 5, who were given benefit of doubt, such benefit was  not
extended to accused Nos.1 to 3.
7.    From the judgment passed by the Sessions  Judge  as  affirmed  by  the
High  Court,  we  find  that  the  prosecution  case  rests  only  upon  the
circumstantial evidence. The  Court  mainly  relied  upon  the  evidence  of
Valarmathi (PW-1), mother of  deceased  Manikandan,  confession  of  accused
No.3 and the postmortem report.
8.    The evidence of Valarmathi (PW-1)  is  to  the  effect  that  her  son
Manikandan was said to have given a flower to the daughter of  accused  No.1
and since accused No.1 was very much annoyed with Manikandan, she  sent  her
son to Kerala for employment in order to save him from  the  accused.  After
sometime, Manikandan had come to his native village for celebrating  Panguni
Uthiram Festival and when he was talking to his friends on one  evening,  he
was taken by accused Nos. 1 to 4 for questioning and  on  hearing  the  same
Valarmathi (PW-1) went  to  said  place,  namely,  Mariyamman  Temple  where
accused Nos.1 to 4 had been examining Manikandan.  She  saw  her  son  being
beaten up by the accused and at that time her  son  was  in  an  unconscious
state. She went and brought the village headman. Thereafter, Manikandan  was
taken  from  the  said  place  in  an  autorickshaw  by  the  accused.   She
immediately informed the village elder. The village  Head  came  along  with
her and prevented such beating. He told the accused to leave her son at  the
Police Station. The accused had kept Manikandan till  7.30  p.m.  They  sent
Chinnu @ Rajendiran, accused No.2 to bring the auto, accused Nos.1,2  and  3
had taken her son in that auto. Her son had not returned next day.   Accused
No.1, Ramasamy later on crossed her house from whom she enquired as  to  the
whereabouts of her son to which he replied that her son would return  within
two days. When she further enquired from accused No.1, he had  replied  that
he had sent him to Kerala, on paying him Rs.100/-. On  the  next  day,  i.e.
6th day she had again asked accused No.1 about her  son  and  she  told  him
that  she  would  file  a  complaint  alleging  the  missing  of  her   son.
Subsequently, after a lapse of 6 days, she had filed a  complaint  with  the
Police Station (Neyveli Township at 8th Block). The Police  having  come  to
know that they were  already  conducting  enquiry  from  accused  No.3  with
regard to this case, on the basis of the statement given  by  accused  No.3,
Ramalingam, the dead body of her son was retrieved from a deep  borewell  by
the fire service personnel.
9.    During the cross-examination,  Valarmathi  (PW-1)  accepted  that  she
lodged the complaint after lapse of six days of  missing  of  her  son.  She
further accepted that she had not stated in the complaint  that  during  the
Inspector’s enquiry that while she had asked accused No.1 about her son,  he
had replied that her son would return within two days.  She  further  stated
that when she dictated the complaint Ex.P.1, one auto driver had reduced  it
in writing. Auto driver was not examined.
10.    Amirthavalli  (PW-2)  is  the  elder  sister  of  Valarmathi  (PW-1),
complainant. She stated that Manikandan went to Kerala and had returned  for
Panguni Uthiram Festival last year. When he was lying  at  the  entrance  of
the house at about 6  o’clock,  all  the  five  accused  who  were  present,
descended  down  to  Valarmathi’s  (PW-1)  house  and  taken  Manikandan  to
Mariyammam Temple for enquiry. They had beaten  up  Manikandan  there.  Then
the village head had told not to beat him and asked them to  hand  him  over
to the Police  Station.  Subsequently,  at  8  hrs  accused  Rajendiran  had
brought  the  auto.  Then  accused  Rajendiran,  Chakkarai,   Ramasamy   and
Ramalingam had taken Manikandan in that Auto. They had not gone  along  with
them, since there was a darkness.
11.   During her cross-examination, she stated that when  they  had  made  a
visit to Police Station, accused No.1, Ramasamy had  brought  the   deceased
 Manikandan  to  Police Station.
Therefore, they asked as  to  whether  Manikandan  was  present  there.  The
Police had replied that Manikandan was not handed over to them.
12.   Murugan (PW-4), a coolie at Neyveli, stated that he was  a  friend  of
Manikandan. He further stated that there was an enmity between the  deceased
and the accused as Manikandan had love with Rajeswari, daughter  of  accused
Nos.1 and 5. Due to the threat from accused No.1, Manikandan  had  left  the
village. He stated that about 6 p.m., he had gone to the  temple.  Then  all
the accused and Ramasamy had  found  to  have  examined  Manikandan  in  the
Temple. When they were making such enquiry, they had beaten  up  Manikandan.
During the  cross-examination,  he  accepted  that  he  has  not  given  any
information about Manikandan to anybody. He had not engaged in a  search  as
to the disappearance  of  Manikandan.  He  had  enquired  with  Manikandan’s
mother as to his disappearance on the third day and she  informed  him  that
there was no information as to Manikandan. He further accepted that on  11th
April, 2004, the Police had  enquired  him  about  Manikandan,  he  had  not
mentioned to anyone as the occurrence happened  between  4th  day  and  11th
day, with regard to Manikandan.
13.   In the FIR, Valarmathi  (PW-1)  had  not  disclosed  the  presence  of
Amirthavalli (PW-2) and  Murugan  (PW-4)  at  the  scene  of  occurrence  at
Mariyamman Temple. Nothing was stated with  regard  to  Amirthavalli  (PW-2)
and Murugan (PW-4). Valarmathi (PW-1)  did  not  disclose  the  presence  of
Amirthavalli (PW-2) at the scene of occurrence. The deceased was  last  seen
with accused Nos.1 and 4 by Village headman by name, super  supparayan,  who
said to had been present at the place where the deceased was  last  seen  in
the company of  accused,  was  neither  named  as  prosecution  witness  nor
examined. There was inordinate delay of more than six  days  in  filing  the
complaint about the missing of Manikandan  but  Valarmathi  (PW-1)  has  not
explained the delay in lodging such complaint.
14.    Valarmathi  (PW-1)  in  her  statement  stated  that   the   deceased
Manikandan was lastly seen  with  the  accused  Nos.1  to  4  in  Mariyamman
Temple. Amirthavalli (PW-2) in her statement stated that  the  deceased  was
last seen in the Police Station. The case of the  prosecution  is  that  the
deceased Manikandan was last seen  in  the  autorickshaw  by  which  he  was
abducted from the house of accused No.1.
15.   In the complaint, Ex.P.1, Valarmathi (PW-1) intimated that  Manikandan
was sleeping in the night. In the FIR, Ex.P.13, the motive  of  the  accused
was not disclosed. The accused No.3 was not even named in the FIR.
16.   The manner in which Valarmathi (PW-1), mother of  deceased  Manikandan
gave the detail of occurrence which took place on 4th April, 2004  shows  as
if she had seen every stage, the manner in which the  accused  abducted  the
deceased Manikandan, beaten up  in  the  Mariyamman  Temple,  taken  in  the
autorickshaw, reached from one place to another place and then went  to  the
Police Station. The statement of Valarmathi (PW-1) about accused No.3 is  an
improvement which was not explained. The story of accused  to  the  deceased
in the autorickshaw as narrated in the deposition of  Valarmathi  (PW-1)  is
another improvement which she has not disclosed in the FIR, Ex.P.13.
17.    Referring  to  the  material  on  record,  learned  counsel  for  the
appellants submitted that there  is  a  doubt  about  the  place  where  the
deceased Manikandan was last seen and the time when he was last  seen  along
with the accused.
18.   The case of the prosecution rests mainly on the scene  of  occurrence;
the deceased Manikandan was last seen in the company of accused Nos.1 to  3.
As per Valarmathi (PW-1), deceased Manikandan was last  seen  in  Mariyamman
Temple in the company of  accused  Nos.  1  to  4.  Amirthavalli  (PW-2)  is
maternal aunt of the  deceased.  Valarmathi  (PW-1)  did  not  disclose  the
presence of Amirthavalli  (PW-2)  at  the  scene  of  occurrence  where  the
deceased was last seen in the company of accused Nos.1 to  4.  Even  if  the
statement of Amirthavalli (PW-2) is accepted,  then  according  to  her  the
deceased was last seen in  the  Police  Station  along  with  accused  No.1,
Ramasamy who had brought the deceased Manikandan there.
19.    The  prosecution  has  failed  to  explain  the  statement  given  by
Amrithavalli (PW-2) during her cross-examination  wherein  she  stated  that
when she asked the Police about Manikandan,  they  replied  that  Manikandan
was not handed over to them. Therefore, the presence of Amrithavalli  (PW-2)
at the scene of occurrence is doubtful.  She  being  the  highly  interested
witness and in view of contradictions aforesaid,  her  statement  cannot  be
relied upon.
20.   The  testimony  of  an  accomplice  cannot  be  used  against  another
accused. On the basis of  testimony  of  accused  No.3,  if  dead  body  was
recovered, on that basis the accused Nos.1 and 2  cannot  be  convicted.  If
accused No.4, Rajendiran @ Sakkarai was also last  seen  with  the  deceased
Manikandan along with accused Nos. 1 to 3,  the  Trial  Court  having  given
benefit of doubt to accused No.4 it is not clear as to why the same  benefit
has not been given to accused Nos.1 to 3.
21.   The conviction cannot be based  only  on  circumstance  of  last  seen
together with the deceased. In Arjun Marik and others vs.  State  of  Bihar,
(1994) Supp.(2) SCC 372, this Court held as follows:
“31. Thus the evidence that  the  appellant  had  gone  to  Sitaram  in  the
evening of 19-7-1985 and had stayed in the night at the  house  of  deceased
Sitaram is very shaky and inconclusive. Even if it  is  accepted  that  they
were there it would at best amount to be  the  evidence  of  the  appellants
having been seen last together with the deceased.  But  it  is  settled  law
that the only circumstance of last seen  will  not  complete  the  chain  of
circumstances to record the finding that it  is  consistent  only  with  the
hypothesis of the guilt of the accused  and,  therefore,  no  conviction  on
that basis alone can be founded.”


22.   This Court in Bodhraj vs. State of Jammu and  Kashmir,  (2002)  8  SCC
45, held that the last seen theory comes into play  where  time-gap  between
the point of time when the accused and the deceased  were  seen  last  alive
and the deceased is found dead is so small that possibility  of  any  person
other than the accused being the author of the crime becomes impossible.  It
will be hazardous to come to a conclusion of guilt in cases where  there  is
no other positive evidence to conclude that the  accused  and  the  deceased
were last seen together.
23.   There is unexplained delay of six days in  lodging  the  FIR.  As  per
prosecution story the deceased Manikandan was last seen on 4th  April,  2004
at Vadakkumelur  village  during  Panguni  Uthiram  Festival  at  Mariyamman
Temple. The body of the deceased was taken from the  borewell  by  the  fire
service personnel after more than seven days. There  is  no  other  positive
material on record to show that the deceased was  last  seen  together  with
the accused and intervening  period  of  seven  days  there  was  nobody  in
contact with the deceased.
24.   In Jaswant Gir vs. State of Punjab, (2005)  12  SCC  438,  this  Court
held that in absence of any other  links  in  the  chain  of  circumstantial
evidence, the appellant cannot be convicted solely on  the  basis  of  “last
seen together” even if version of the prosecution witness in this regard  is
believed.
25.   In the present case as noticed above,  the  Sessions  Judge  convicted
the accused Nos.1 to 3 on the basis of last seen evidence,  the  correctness
of last seen version emanating from Valarmathi (PW-1),  Amirthavalli  (PW-3)
and Murugan (PW-4) and as per the prosecution case is also  doubtful,  there
being contradiction about place where the accused were last  seen  with  the
deceased Manikandan. The High Court had failed to appreciate  the  aforesaid
fact and erred in affirming the order of conviction passed by  the  Sessions
Judge.
26.   For the reasons aforesaid, we set aside the  impugned  judgment  dated
31st March, 2008 passed by  the  High  Court  of  Judicature  at  Madras  in
Criminal Appeal No.1009  of  2005  and  impugned  order  of  conviction  and
sentence dated 17th November, 2005 passed by the Sessions Judge  in  Session
Case No.61 of 2005. The appeal is allowed. The appellants  are  directed  to
be released forthwith, if not required in any other case.

                                                        ………………………………………………J.
                                     (SUDHANSU JYOTI MUKHOPADHAYA)


                                                        ………………………………………………J.
                                             (DIPAK MISRA)

NEW DELHI,
                                                              JULY 01, 2014.
ITEM NO.1H               COURT NO.6                 SECTION IIA

(For Judgment)



               S U P R E M E  C O U R T  O F  I N D I A

                          RECORD OF PROCEEDINGS



Criminal Appeal No(s). 512/2010



KRISHNAN & RAMASAMY & ORS.                         Appellant(s)



                                VERSUS



STATE OF TAMILNADU                                 Respondent(s)



Date : 01/07/2014      This appeal was called on for pronouncement of
            Judgment today.



For Appellant(s)       Mr. K. V. Vijayakumar ,Adv.



For Respondent(s)            Mr. M. Yogesh Kanna ,Adv.







       Hon'ble  Mr.  Justice  Sudhansu  Jyoti  Mukhopadhaya  pronounced  the
reportable judgment of the Bench comprising His  Lordship  and  Hon'ble  Mr.
Justice Dipak Misra.



      The appeal is allowed in terms of the signed reportable judgment.











(MEENAKSHI KOHLI)                               (USHA SHARMA)

  COURT MASTER                                   COURT MASTER



             [Signed reportable judgment is placed on the file]


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