Wednesday, April 18, 2018

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

Navaneethakrishnan .... Appellant(s)

The State by Inspector of Police .... Respondent(s)
CRIMINAL APPEAL NOs. 1135-1136 OF 2013
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
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
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.
(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
(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
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.
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.
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
(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
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
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
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
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.
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
“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
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
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
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
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
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
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.
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.
24) In view of the foregoing discussion, we are of the
considered opinion that both the courts below have erred in
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.
APRIL 16, 2018. 

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