Section 27 of Evidence Act - confessions leads to discovery of incriminating articles - when abduction proved , burden lies on the accused to discloses what happen next when victim found dead - Apex court held that What happened thereafter to deceased is especially within the knowledge of the appellants-accused nos.1 to 3. It was for the appellants-accused nos. 1 to 3 to explain what happened to Mani alias Parai Mani after they took him away but they failed to explain the same. Mani alias Parai Mani was found dead immediately thereafter.=
Section 27 of the Evidence Act reads as under:
“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.”
21. In Anil alias Raju Namdev Patil v. Administration of Daman & Diu,
Daman and another, (2006) 13 SCC 36, this Court held:
“23.The information disclosed by the evidences leading to the
discovery of a fact which is based on mental state of affair of the accused
is, thus, admissible in evidence.”
22. This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC
370 opined that when an object is discovered from an isolated place pointed
out by the accused, the same would be admissible in evidence.
23. We have noticed the confessional statement of the appellants, on the
basis of which the discovery of material evidence took place.
24. From the evidence on record, we find that the Prosecution was
successful in bringing on record the circumstantial evidences i.e.
existence of motive; the circumstances in which the deceased was last seen
alive in the company of appellants-accused nos.1 to 3; death was homicidal
and body was found on the railway track mutilated; the body of the deceased
was identified through DNA test; on arrest of accused incriminating
articles were recovered.
25. Upon analysis of evidence, we are of the view that prosecution has
succeeded in proving the facts that the accused nos.1 to 3 took away
deceased Mani alias Parai Mani. What happened thereafter to deceased is
especially within the knowledge of the appellants-accused nos.1 to 3. It
was for the appellants-accused nos. 1 to 3 to explain what happened to Mani
alias Parai Mani after they took him away but they failed to explain the
same. Mani alias Parai Mani was found dead immediately thereafter.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 593 OF 2010
PARAMSIVAM & ORS. … APPELLANTS
VERSUS
STATE THROUGH INSPECTOR OF POLICE … RESPONDENT
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against judgment dated 27th April, 2009,
passed by the High Court of Judicature at Madras in Criminal Appeal No.441
of 2007. By the impugned judgment appeal preferred by the appellants-
accused nos.1 to 3 has been dismissed and conviction of accused nos.1 to 3
u/s 364 IPC and accused no.1 u/s 302 IPC and accused nos.2 and 3 u/s 302
r/w 34 IPC and the sentence of life imprisonment and fine imposed upon them
have been confirmed.
2. The case of the prosecution in a nutshell is as follows:
Deceased Mani alias Parai Mani took lease of the land in S.F. No. 427/1 of
Vadapudur village belonging to PW3-Krishnasamy and PW6-Ramasamy. Accused
No.6-Nagarathinam was the neighbouring land owner. Since Accused No.1-
Paramasivam and Accused No.6-Nagarathinam threatened the deceased not to
break the stone, deceased Mani alias Parai Mani filed suit in O.S. No.
5/2004 before DMC, Pollachi for Permanent Injunction restraining Accused
no.6 and PWs.3 and 6 from interfering with quarrying. There was animosity
between the deceased and the family of Accused no.6-Nagarathinam.
About 10 days prior to the date of occurrence, Accused no.1-Paramasivam,
Accused no.6-Nagarathinam and Accused no.7-Revathi threatened the deceased.
About 4 days prior to the date of occurrence, Accused no.2-Selvaraj alias
Selvan and another person approached the deceased for purchase of stone and
since it was late hours, deceased refused to accompany them and asked them
to come on some other day.
Again Accused no.2 and another person approached the deceased on 18.1.2004
and asked for stones and deceased accompanied the accused to the quarry.
PW1-Kannaiyan and PW2-Kala witnessed that deceased went along with Accused
no.2-Selvaraj alias Selvan and Accused no.3-Nirmal. On the said date
i.e.18.1.2004, PW8-Sivakumar and PW9-Doraisamy who were returning from the
Petrol Pump, saw white colour Maruthi Van bearing registration No. TN-23 E
5951 (MO1) was parked on the road side. PW9 saw the deceased and Accused
no.1 were sitting inside the Maruthi Van.
Next day on 19.1.2004, PW23-Pugazhenthi (Railway Key Man), Thirupur saw the
dead body on the railway track and informed PW20-Ramachandran (Station
Master) who in turn informed the Out-post Police Station, Thirupur. PW24-
Sankaralingam (Head Constable) received the report and registered the case
for 'suspicious death' in Cr. No. 12/2004 u/s 174 Cr.P.C. PW24-Head
Constable went to the scene of occurrence and found the dead body of a male
on the railway track, prepared Observation Mahazar (Ex.P15) and Rough Plan
(Ex.P16). PW24 also held Inquest on the body of the deceased (Ex.P18) and
sent the dead body for autopsy to Government Hospital, Thirupur. On his
request PW27-Nizar Ahemad had taken photographs (MO18 series) of the body
lying on the railway track.
PW33-Dr.Parimala Devi conducted autopsy over the dead body and noted the
injuries, Dr. Devi opined that death was due to multiple injuries on the
neck and head injuries about 70 to 80 hours prior to autopsy. Since there
was no clue about the identity of the dead body, body was buried at
Chellandiamman grave yard Tirupur by PW24-Head Constable with the aid of
PW22-Murugasamy (Grave yard watch man).
Since, deceased not returned home, PWs.1 and 2 searched for him and on
20.1.2004 PW1 lodged written complaint [Ext.P1]. On the basis of written
complaint, PW39-Rajendran (Inspector of Police) registered the case in Cr.
No. 27/2004 u/s 363 IPC. PW39 went to the scene of occurrence and prepared
Observation Mahazar and Rough Plan. He also enquired PWs.1 to 6 and 15 and
recorded their statements.
PW41-Shahul Ahmeed (Inspector of Police) took charge of the case on
26.1.2004 and made further investigation. On 28.1.2004 at about 1.45 P.M.,
PW41 arrested accused no.2-Selvaraj near Vanjipalayam railway gate. On
being interrogated, accused no.2 voluntarily gave a confession statement
which led to the recovery of Ropes (MO10 series), Banian (MO11), Bag
(MO12), Diary (MO2) and Money purse containing the photo of the deceased
(MO3) Seizure Mahazar (Ext.P5) was prepared. Thereafter, along with accused
no.2, PW41 went to the scene of occurrence i.e. railway track and prepared
Observation Mahazar (Ext.P34) and Rough Plan (Ext.P35).
PW41 on the same day i.e. 28.1.2004 at 6.15 P.M. arrested accused
no.5-Gudalingam alias Lingasamy and recorded his confession statement which
led to recovery of MO1-Maruthi omni van under Ex.P37-Seizure Mahazar. On
the same day, at about 8.50 P.M., PW41 arrested accused no.1-
Paramasivam and recorded his confession statement which led to recovery of
Lungi (MO4), Shirt (MO5) and Voters ID Card (MO9) of deceased under Seizure
Mahazar (Ext.P39). Thereafter, PW41 went to Thirupur Out-post Police
Station and enquired PW24-Head Constable and received copy of FIR in Cr.
No. 12/2004. Thereafter, PW41-Investigating Officer altered the FIR in
Criminal No. 27/2004 from Section 363 IPC to Sections 120-
B, 364 and 302 IPC.
On 17.2.2004, PW41 sent requisition for exhumation of dead body of the
deceased which was exhumed in the presence of PW31-Tahsildar, PW21-R.I. and
other witnesses. PW41 seized Waist Cord with Silver Amulet under Seizure
Mahazar (Ext.P12). Observation Mahazar (Ext.P13) was prepared by PW-41 in
respect of the place where body was buried. Rough Plan (Ext.P44) was also
prepared. Blood samples of the dead body was taken. Blood samples of PW14
(Manickammal) and PW15 (Subramani) -mother and brother of the deceased were
taken and forwarded for DNA examination. PW40-Vanaja (Asst. Chemical
Examiner and Asst. Director) conducted DNA examination and opined that "the
bone pieces etc. described belong to a human male individual". He further
opined that "the person Mani alias Parai Mani to whom the bone pieces etc.
belong is the biological offspring of Ms.A.Manickammal."-PW14.
Accused no.3-Nirmal and Accused no.4-Sureshkumar alias Suresh alias
Pambatti surrendered before Judicial Magistrate, Pollachi on 05.2.2004.
PW41 was permitted to take them to police custody. Confession statement
recorded from accused no.3 led to recovery of Torch (MO6), Battery (MO17
series), Knife (MO16), Hundred rupee Note [MO13], Bag (MO15) under Seizure
Mahazar (Ext.P7). Confession statement recorded from accused no.4 led to
recovery of Watch (MO8), Fifty rupee Note (MO14), Plastic bag (MO19) under
Seizure Mahazar (Ext.P9).
PW38-Judicial Magistrate No. II, Pollachi conducted Test Identification
Parade in respect of Accused nos.2 and 3 on 13.2.2004. PWs.1, 2 and 5
participated in the Test Identification Parade and identified the accused.
On receipt of chemical analysis report and DNA report and after completion
of due investigation, PW41 filed final report u/s 147, 148, 120-B, 364 and
302 IPC.
3. To substantiate the charges against the accused, prosecution examined
42 witnesses and brought on record Exts.P1 to P44 and Mos.1 to 18. Accused
were questioned u/s 313 Crl.P.C. Accused denied all the charges and pleaded
not guilty and stated that a false case is foisted against them.
4. Upon consideration of oral and documentary evidence, the Sessions
Court held that the prosecution has adduced cogent and convincing evidence
establishing that due to previous enmity in respect of quarrying, accused
nos.1 to 3 abducted the deceased and committed murder of the deceased. The
Sessions Court also held that accused nos.1 to 3 were identified in the
Test Identification Parade and incriminating material objects recovered
from them would substantiate the charges. With regard to accused nos.4 to 7
the Sessions Court held that the prosecution failed to establish the guilt
against them and acquitted them.
5. Learned counsel appearing on behalf of the appellants challenged the
impugned judgment mainly on the following grounds:
There is inconsistency in the prosecution story. For example, the evidence
of PW 15-Subramani brother of the deceased is contrary to the evidence of
PW1 and 2.
The Sessions Court failed to consider the question whether the prosecution
has proved the fact that the deceased was abducted.
There is no eye witness for the alleged murder in absence of any
contemporaneous evidence to establish that the body found on the railway
track on Vanjipalayam is that of the deceased-mani.
There are contradictions with regard to exhumed body. For example, while PW
21 stated that when the body was exhumed it was found in pieces in a gunny
bag whereas PW 23 stated that dead body was found in pieces and no dress
was found on it.
6. On the other hand, the Prosecution relied upon the following
circumstances to bring home the charges.
(i) Existence of motive.
(ii) Circumstance that deceased was last seen alive in the company
of the appellants/accused nos. 1 to 3.
(iii) Death was homicidal and the body was found on the railway track
mutilated.
(iv) Body was identified as that of deceased through DNA test.
(v) Arrest of the accused and recovery of incriminating articles at their
instance.
7. PWs.3 and 6 are brothers and accused no.6-Nagarathinam is brother's
wife of PWs.3 and 6. Deceased Mani alias Parai Mani took lease of PWs.3 and
6's land in S.F. No. 427/1 (Part) of Vadapudur village for quarrying. While
the deceased was carrying on quarrying work, accused no.6-Nagarathinam and
her son and daughter i.e. accused no.1-Paramasivam and accused no.7-Revathi
objected for quarrying. Alleging that without any lawful right, accused
no.6 was objecting to quarrying, deceased filed suit in O.S. No. 5/2004 on
02.1.2004 on the file of DMC, Pollachi against accused no.6 and PWs.3 and
6. This is evident from Ext.P-22
pleadings in O.S. No. 5/2004, PWs.1 and 2 have spoken in one voice about
deceased taking quarry of lease from PWs.3 and 6 and that accused no.6,
accused no.1 and accused no.7 were raising objection to carry out quarrying
work. Evidence of PWs.3 and 6 also strengthens prosecution version about
the grant of lease.
8. Filing of suit on 02.1.2004 about two weeks prior to the occurrence
heightens the probability of prosecution case. In cases of circumstantial
evidence proof of motive is material consideration and a strong
circumstance.
9. The case of the prosecution is that deceased was last seen alive in
the company of the accused. Evidence of PWs.1 and 2 that accused nos.2 and
3 had taken the deceased from his house in Chikkalampalayam. Evidence of
PW9-Doraisamy is that he saw the deceased along with accused no.1-
Paramasivam in Maruthi Omni Van Registration No. TN-23 E 5951 (MO1) near
Kinathukadavu Checkpost. PW5-Balan stated that the deceased had left with
accused no.1 from the quarry in Ealoorkarar thottam.
About four days from the date of occurrence, accused nos. 2 and 3 went to
the house of the deceased asking for size of the stones. When being asked
about them, accused no.2 disclosed his name as Selvaraj. As they appear to
be strangers and as it was very late in the evening, deceased asked them to
come on some other day. After four days thereafter accused nos.2 and 3 went
to the house of the deceased and asked him to come along with them for
seeing the stones. Inspite of disinclination of deceased, accused nos. 2
and 3 insisted the deceased to come along with them stating that their
owner has come and therefore, stones are to be seen. As it was late in the
evening, deceased asked his wife for torch and PW2-Kala gave him torch
(MO6) and deceased went along with accused nos.2 and 3.
10. The evidence of PWs.1 and 2 is cogent and consistent which clearly
brings home the circumstance that deceased went along with accused nos. 2
and 3. In the Test Identification Parade conducted by PW38-Judicial
Magistrate, PWs.1 and 2 have also identified accused nos. 2 and 3 which
would strengthen the stand of the prosecution.
11. Learned counsel for the appellant raised objection with regard to non-
mention of name of accused no.2-Selvaraj in Ext.P1-Complaint and submitted
that accused no.3-Nirmal accompanied accused no.2 would throw serious
doubts about the credibility of PWs.1 and 2. But from the evidence Ext.P1-
complaint we find that PW1 has clearly stated that two persons had come to
their house and took the deceased in Maruthi Omni Van. In Ext.P1-Complaint,
though PW1 had expressed suspicion about accused nos. 1, 6 and 7, PW1 has
clearly expressed his doubts that accused nos. 1, 6 and 7 might have
engaged men for abducting the deceased. Such doubts expressed in Ext.P1-
Complaint is sufficient incriminating circumstance against the accused nos.
2 and 3. Credibility of PWs.1 and 2 cannot be doubted on the ground of non-
mention of name of accused no.2 in Ext.P1-Complaint. The evidence of PW9
also established that the deceased was last seen alive with accused no.1-
Paramasivam in Maruthi Omni Van (TN-23 E 5951) near Kinathukadavu
Checkpost. In his evidence, PW9 has stated that after taking petrol for TVS-
50 in a Petrol Pump near the Checkpost while he was proceeding along with
PW8-Sivakumar, he saw the deceased along with accused no.1-Paramasivam in
Maruthi Omni Van (MO1) and saw the others inside the Van. Since, deceased
and accused no.1-Paramasivam were in inimical terms, PW9 wondered as to why
accused no.1 and deceased are seen together and he asked PW8-Sivakumar
about the same. Though, PW8-Sivakumar turned hostile, evidence of PW9 is
trustworthy and we do not find any reason to take a different view.
12. Another circumstances relied upon by the prosecution is evidence of
PW15-Subramani (brother of the deceased) that accused no. 1 and another
person came to the quarry to see stones. When they were crushing the
stones, deceased went with them to see the stones. No doubt evidence of
PW15 as to how deceased went with the accused might appear to be slightly
different but due to variation of time narrating the events cannot be said
in manner the PW15 narrated his statement. We are of the view that evidence
of PW15 does not make any dent upon the consistent version of PWs.1 and 2
and the case of prosecution.
13. Dr. Perimaladevi-PW33 conducted autopsy and noted the following
injuries:
? Crush injury over the front of head and part of brain comes out
[liquified].
? Fracture of left arm bone [upper] and left shoulder joint bones.
? Fracture of right upper arm bone and cut off from the shoulder joint.
? Fracture of left leg bones [middle].
? Fracture of right thigh bone and leg bones.
14. Dr. Perimaladevi opined that deceased died of 'shock and haemorrhage'
due to multiple injuries and head injuries about 70-80 hours prior to the
autopsy. Since identity of the body was not known, body was buried in
Thirupur Chellandiamman burial ground. Later at the request of
Investigating Officer, body was exhumed in the presence of PW21-Tahsildar.
After the body was exhumed, PW34-Dr.Vallinayagam collected the blood for
DNA test. Blood samples of PW14-Manickammal and PW15-Subramani (mother and
brother of the deceased) were also collected. After conducting DNA test and
upon analysis of results of DNA typing for the samples, PW40-Asst. Director
gave Ext.P32-Report and opined that "bone pieces etc. described belong to a
human male individual". PW40 further opined that "the person Mani alias
Paraimani to whom the bone pieces etc. belong is the biological offspring
of Ms. A. Manickammal.". Evidence of PW40 would amply establish identity of
body recovered from the railway track as that of the deceased Mani alias
Parai Mani who is the son of PW14-Manickammal.
15. When deceased is shown to be abducted, it is for the abductors to
explain how they dealt with the abducted victim. In the absence of
explanation, Court is to draw inference that abductors are the murderers.
16. In State of W.B. v. Mir Mohammad Omar and others (2000) 8 SCC 382,
this Court held:
“34. When it is proved to the satisfaction of the Court that Mahesh was
abducted by the accused and they took him out of that area, the accused
alone knew what happened to him until he was with them. If he was found
murdered within a short time after the abduction the permitted reasoning
process would enable the Court to draw the presumption that the accused
have murdered him. Such inference can be disrupted if the accused would
tell the Court what else happened to Mahesh at least until he was in their
custody.”
17. In Sucha Singh v. State of Punjab (2001) 4 SCC 375, this Court held:
“15. The abductors alone could tell the court as to what happened to the
deceased after they were abducted. When the abductors withheld that
information from the court there is every justification for drawing the
inference, in the light of all the preceding and succeeding circumstances
adverted to above, that the abductors are the murderers of the deceased.”
“19. We pointed out that Section 106 of the Evidence Act is not intended to
relieve the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt, but the section would apply to cases where the
prosecution has succeeded in proving facts for which a reasonable inference
can be drawn regarding the existence of certain other facts, unless the
accused by virtue of special knowledge regarding such facts failed to offer
any explanation which might drive the court to draw a different inference.”
“21. We are mindful of what is frequently happening during these days.
Persons are kidnapped in the sight of others and are forcibly taken out of
the sight of all others and later the kidnapped are killed. If a legal
principle is to be laid down that for the murder of such kidnapped there
should necessarily be independent evidence apart from the circumstances
enumerated above, we would be providing a safe jurisprudence for protecting
such criminal activities. India cannot now afford to lay down any such
legal principle insulating the marauders of their activities of killing
kidnapped innocents outside the ken of others.”
18. In the present case, the prosecution brought on record the evidences
that accused no.1 to 3 had abducted the deceased. Therefore, it is accused
nos.1 to 3 alone knew what happened to him as the deceased was found
murdered within a short time after abduction. The accused nos.1 to 3 have
failed to give any explanation and the Court rightly draw presumption that
the accused have murdered the deceased Mani alias Parai Mani.
19. The prosecution relied upon the statement of accused persons leading
to discovery of facts as envisaged u/s 27 of Indian Evidence Act. Accused
Nos. 1, 2 and 5 were arrested on 28.1.2004 at different times. Confession
statement of accused no.1 led to recovery of Voter ID Card of Mani (MO9)
and other articles i.e. MOs.4 and 5. Confession statement recorded from
accused no.2-Selvaraj alias Selvan] led to recovery of Pocket Diary (MO2),
Money purse (MO3) with photo of deceased and other articles-MOs.10 to 12.
Confession statement of accused no.5 Driver Lingasamy led to seizure of
Taxi MO1-Maruthi Omni Van (TN-23 E 5951). Accused no.3-Nirmal and accused
no.4-Sureshkumar alias Suresh alias Pambatti were surrendered before the
Court and on application, PW41-Investigating Officer took them for police
custody. Confession statement recorded from accused no.3 led to recovery of
Torch light(MO6) which was handed over to the deceased by PW2 at the time
when he left the house. PW2 also identified MO6 as the torch light handed
over by her at the time when the deceased left the house. Recovery of
various articles of the deceased from accused nos.1 to 3 is a strong
incriminating circumstance connecting the appellants with the crime.
20. Section 27 of the Evidence Act reads as under:
“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.”
21. In Anil alias Raju Namdev Patil v. Administration of Daman & Diu,
Daman and another, (2006) 13 SCC 36, this Court held:
“23.The information disclosed by the evidences leading to the
discovery of a fact which is based on mental state of affair of the accused
is, thus, admissible in evidence.”
22. This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC
370 opined that when an object is discovered from an isolated place pointed
out by the accused, the same would be admissible in evidence.
23. We have noticed the confessional statement of the appellants, on the
basis of which the discovery of material evidence took place.
24. From the evidence on record, we find that the Prosecution was
successful in bringing on record the circumstantial evidences i.e.
existence of motive; the circumstances in which the deceased was last seen
alive in the company of appellants-accused nos.1 to 3; death was homicidal
and body was found on the railway track mutilated; the body of the deceased
was identified through DNA test; on arrest of accused incriminating
articles were recovered.
25. Upon analysis of evidence, we are of the view that prosecution has
succeeded in proving the facts that the accused nos.1 to 3 took away
deceased Mani alias Parai Mani. What happened thereafter to deceased is
especially within the knowledge of the appellants-accused nos.1 to 3. It
was for the appellants-accused nos. 1 to 3 to explain what happened to Mani
alias Parai Mani after they took him away but they failed to explain the
same. Mani alias Parai Mani was found dead immediately thereafter.
Therefore, it is clear that the accused nos.1 to 3 who abducted deceased
Mani alias Parai Mani intentionally withhold the information from the Court
and, therefore, there is every justification for drawing inference that
appellants-accused nos.1 to 3 murdered Mani alias Parai Mani. Stand of the
appellants is a bare denial of prosecution case. In the absence of any
explanation, the inevitable inference is that appellants are responsible
for the death of deceased Mani alias Parai Mani. Thus, the guilt of the
appellants-accused nos. 1 to 3 has been proved beyond all reasonable doubt.
We find no merit in this appeal and the same is accordingly dismissed.
………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(DIPAK MISRA)
NEW DELHI,
JULY 01, 2014
ITEM NO.1C 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). 593/2010
PARAMSIVAM & ORS. Appellant(s)
VERSUS
STATE TR.INSP.OF POLICE Respondent(s)
Date : 01/07/2014 This appeal was called on for pronouncement of
Judgment today.
For Appellant(s) Mr. Vijay Kumar ,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]
Section 27 of the Evidence Act reads as under:
“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.”
21. In Anil alias Raju Namdev Patil v. Administration of Daman & Diu,
Daman and another, (2006) 13 SCC 36, this Court held:
“23.The information disclosed by the evidences leading to the
discovery of a fact which is based on mental state of affair of the accused
is, thus, admissible in evidence.”
22. This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC
370 opined that when an object is discovered from an isolated place pointed
out by the accused, the same would be admissible in evidence.
23. We have noticed the confessional statement of the appellants, on the
basis of which the discovery of material evidence took place.
24. From the evidence on record, we find that the Prosecution was
successful in bringing on record the circumstantial evidences i.e.
existence of motive; the circumstances in which the deceased was last seen
alive in the company of appellants-accused nos.1 to 3; death was homicidal
and body was found on the railway track mutilated; the body of the deceased
was identified through DNA test; on arrest of accused incriminating
articles were recovered.
25. Upon analysis of evidence, we are of the view that prosecution has
succeeded in proving the facts that the accused nos.1 to 3 took away
deceased Mani alias Parai Mani. What happened thereafter to deceased is
especially within the knowledge of the appellants-accused nos.1 to 3. It
was for the appellants-accused nos. 1 to 3 to explain what happened to Mani
alias Parai Mani after they took him away but they failed to explain the
same. Mani alias Parai Mani was found dead immediately thereafter.
2014 – July. Part -http://judis.nic.in/supremecourt/filename=41714
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 593 OF 2010
PARAMSIVAM & ORS. … APPELLANTS
VERSUS
STATE THROUGH INSPECTOR OF POLICE … RESPONDENT
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against judgment dated 27th April, 2009,
passed by the High Court of Judicature at Madras in Criminal Appeal No.441
of 2007. By the impugned judgment appeal preferred by the appellants-
accused nos.1 to 3 has been dismissed and conviction of accused nos.1 to 3
u/s 364 IPC and accused no.1 u/s 302 IPC and accused nos.2 and 3 u/s 302
r/w 34 IPC and the sentence of life imprisonment and fine imposed upon them
have been confirmed.
2. The case of the prosecution in a nutshell is as follows:
Deceased Mani alias Parai Mani took lease of the land in S.F. No. 427/1 of
Vadapudur village belonging to PW3-Krishnasamy and PW6-Ramasamy. Accused
No.6-Nagarathinam was the neighbouring land owner. Since Accused No.1-
Paramasivam and Accused No.6-Nagarathinam threatened the deceased not to
break the stone, deceased Mani alias Parai Mani filed suit in O.S. No.
5/2004 before DMC, Pollachi for Permanent Injunction restraining Accused
no.6 and PWs.3 and 6 from interfering with quarrying. There was animosity
between the deceased and the family of Accused no.6-Nagarathinam.
About 10 days prior to the date of occurrence, Accused no.1-Paramasivam,
Accused no.6-Nagarathinam and Accused no.7-Revathi threatened the deceased.
About 4 days prior to the date of occurrence, Accused no.2-Selvaraj alias
Selvan and another person approached the deceased for purchase of stone and
since it was late hours, deceased refused to accompany them and asked them
to come on some other day.
Again Accused no.2 and another person approached the deceased on 18.1.2004
and asked for stones and deceased accompanied the accused to the quarry.
PW1-Kannaiyan and PW2-Kala witnessed that deceased went along with Accused
no.2-Selvaraj alias Selvan and Accused no.3-Nirmal. On the said date
i.e.18.1.2004, PW8-Sivakumar and PW9-Doraisamy who were returning from the
Petrol Pump, saw white colour Maruthi Van bearing registration No. TN-23 E
5951 (MO1) was parked on the road side. PW9 saw the deceased and Accused
no.1 were sitting inside the Maruthi Van.
Next day on 19.1.2004, PW23-Pugazhenthi (Railway Key Man), Thirupur saw the
dead body on the railway track and informed PW20-Ramachandran (Station
Master) who in turn informed the Out-post Police Station, Thirupur. PW24-
Sankaralingam (Head Constable) received the report and registered the case
for 'suspicious death' in Cr. No. 12/2004 u/s 174 Cr.P.C. PW24-Head
Constable went to the scene of occurrence and found the dead body of a male
on the railway track, prepared Observation Mahazar (Ex.P15) and Rough Plan
(Ex.P16). PW24 also held Inquest on the body of the deceased (Ex.P18) and
sent the dead body for autopsy to Government Hospital, Thirupur. On his
request PW27-Nizar Ahemad had taken photographs (MO18 series) of the body
lying on the railway track.
PW33-Dr.Parimala Devi conducted autopsy over the dead body and noted the
injuries, Dr. Devi opined that death was due to multiple injuries on the
neck and head injuries about 70 to 80 hours prior to autopsy. Since there
was no clue about the identity of the dead body, body was buried at
Chellandiamman grave yard Tirupur by PW24-Head Constable with the aid of
PW22-Murugasamy (Grave yard watch man).
Since, deceased not returned home, PWs.1 and 2 searched for him and on
20.1.2004 PW1 lodged written complaint [Ext.P1]. On the basis of written
complaint, PW39-Rajendran (Inspector of Police) registered the case in Cr.
No. 27/2004 u/s 363 IPC. PW39 went to the scene of occurrence and prepared
Observation Mahazar and Rough Plan. He also enquired PWs.1 to 6 and 15 and
recorded their statements.
PW41-Shahul Ahmeed (Inspector of Police) took charge of the case on
26.1.2004 and made further investigation. On 28.1.2004 at about 1.45 P.M.,
PW41 arrested accused no.2-Selvaraj near Vanjipalayam railway gate. On
being interrogated, accused no.2 voluntarily gave a confession statement
which led to the recovery of Ropes (MO10 series), Banian (MO11), Bag
(MO12), Diary (MO2) and Money purse containing the photo of the deceased
(MO3) Seizure Mahazar (Ext.P5) was prepared. Thereafter, along with accused
no.2, PW41 went to the scene of occurrence i.e. railway track and prepared
Observation Mahazar (Ext.P34) and Rough Plan (Ext.P35).
PW41 on the same day i.e. 28.1.2004 at 6.15 P.M. arrested accused
no.5-Gudalingam alias Lingasamy and recorded his confession statement which
led to recovery of MO1-Maruthi omni van under Ex.P37-Seizure Mahazar. On
the same day, at about 8.50 P.M., PW41 arrested accused no.1-
Paramasivam and recorded his confession statement which led to recovery of
Lungi (MO4), Shirt (MO5) and Voters ID Card (MO9) of deceased under Seizure
Mahazar (Ext.P39). Thereafter, PW41 went to Thirupur Out-post Police
Station and enquired PW24-Head Constable and received copy of FIR in Cr.
No. 12/2004. Thereafter, PW41-Investigating Officer altered the FIR in
Criminal No. 27/2004 from Section 363 IPC to Sections 120-
B, 364 and 302 IPC.
On 17.2.2004, PW41 sent requisition for exhumation of dead body of the
deceased which was exhumed in the presence of PW31-Tahsildar, PW21-R.I. and
other witnesses. PW41 seized Waist Cord with Silver Amulet under Seizure
Mahazar (Ext.P12). Observation Mahazar (Ext.P13) was prepared by PW-41 in
respect of the place where body was buried. Rough Plan (Ext.P44) was also
prepared. Blood samples of the dead body was taken. Blood samples of PW14
(Manickammal) and PW15 (Subramani) -mother and brother of the deceased were
taken and forwarded for DNA examination. PW40-Vanaja (Asst. Chemical
Examiner and Asst. Director) conducted DNA examination and opined that "the
bone pieces etc. described belong to a human male individual". He further
opined that "the person Mani alias Parai Mani to whom the bone pieces etc.
belong is the biological offspring of Ms.A.Manickammal."-PW14.
Accused no.3-Nirmal and Accused no.4-Sureshkumar alias Suresh alias
Pambatti surrendered before Judicial Magistrate, Pollachi on 05.2.2004.
PW41 was permitted to take them to police custody. Confession statement
recorded from accused no.3 led to recovery of Torch (MO6), Battery (MO17
series), Knife (MO16), Hundred rupee Note [MO13], Bag (MO15) under Seizure
Mahazar (Ext.P7). Confession statement recorded from accused no.4 led to
recovery of Watch (MO8), Fifty rupee Note (MO14), Plastic bag (MO19) under
Seizure Mahazar (Ext.P9).
PW38-Judicial Magistrate No. II, Pollachi conducted Test Identification
Parade in respect of Accused nos.2 and 3 on 13.2.2004. PWs.1, 2 and 5
participated in the Test Identification Parade and identified the accused.
On receipt of chemical analysis report and DNA report and after completion
of due investigation, PW41 filed final report u/s 147, 148, 120-B, 364 and
302 IPC.
3. To substantiate the charges against the accused, prosecution examined
42 witnesses and brought on record Exts.P1 to P44 and Mos.1 to 18. Accused
were questioned u/s 313 Crl.P.C. Accused denied all the charges and pleaded
not guilty and stated that a false case is foisted against them.
4. Upon consideration of oral and documentary evidence, the Sessions
Court held that the prosecution has adduced cogent and convincing evidence
establishing that due to previous enmity in respect of quarrying, accused
nos.1 to 3 abducted the deceased and committed murder of the deceased. The
Sessions Court also held that accused nos.1 to 3 were identified in the
Test Identification Parade and incriminating material objects recovered
from them would substantiate the charges. With regard to accused nos.4 to 7
the Sessions Court held that the prosecution failed to establish the guilt
against them and acquitted them.
5. Learned counsel appearing on behalf of the appellants challenged the
impugned judgment mainly on the following grounds:
There is inconsistency in the prosecution story. For example, the evidence
of PW 15-Subramani brother of the deceased is contrary to the evidence of
PW1 and 2.
The Sessions Court failed to consider the question whether the prosecution
has proved the fact that the deceased was abducted.
There is no eye witness for the alleged murder in absence of any
contemporaneous evidence to establish that the body found on the railway
track on Vanjipalayam is that of the deceased-mani.
There are contradictions with regard to exhumed body. For example, while PW
21 stated that when the body was exhumed it was found in pieces in a gunny
bag whereas PW 23 stated that dead body was found in pieces and no dress
was found on it.
6. On the other hand, the Prosecution relied upon the following
circumstances to bring home the charges.
(i) Existence of motive.
(ii) Circumstance that deceased was last seen alive in the company
of the appellants/accused nos. 1 to 3.
(iii) Death was homicidal and the body was found on the railway track
mutilated.
(iv) Body was identified as that of deceased through DNA test.
(v) Arrest of the accused and recovery of incriminating articles at their
instance.
7. PWs.3 and 6 are brothers and accused no.6-Nagarathinam is brother's
wife of PWs.3 and 6. Deceased Mani alias Parai Mani took lease of PWs.3 and
6's land in S.F. No. 427/1 (Part) of Vadapudur village for quarrying. While
the deceased was carrying on quarrying work, accused no.6-Nagarathinam and
her son and daughter i.e. accused no.1-Paramasivam and accused no.7-Revathi
objected for quarrying. Alleging that without any lawful right, accused
no.6 was objecting to quarrying, deceased filed suit in O.S. No. 5/2004 on
02.1.2004 on the file of DMC, Pollachi against accused no.6 and PWs.3 and
6. This is evident from Ext.P-22
pleadings in O.S. No. 5/2004, PWs.1 and 2 have spoken in one voice about
deceased taking quarry of lease from PWs.3 and 6 and that accused no.6,
accused no.1 and accused no.7 were raising objection to carry out quarrying
work. Evidence of PWs.3 and 6 also strengthens prosecution version about
the grant of lease.
8. Filing of suit on 02.1.2004 about two weeks prior to the occurrence
heightens the probability of prosecution case. In cases of circumstantial
evidence proof of motive is material consideration and a strong
circumstance.
9. The case of the prosecution is that deceased was last seen alive in
the company of the accused. Evidence of PWs.1 and 2 that accused nos.2 and
3 had taken the deceased from his house in Chikkalampalayam. Evidence of
PW9-Doraisamy is that he saw the deceased along with accused no.1-
Paramasivam in Maruthi Omni Van Registration No. TN-23 E 5951 (MO1) near
Kinathukadavu Checkpost. PW5-Balan stated that the deceased had left with
accused no.1 from the quarry in Ealoorkarar thottam.
About four days from the date of occurrence, accused nos. 2 and 3 went to
the house of the deceased asking for size of the stones. When being asked
about them, accused no.2 disclosed his name as Selvaraj. As they appear to
be strangers and as it was very late in the evening, deceased asked them to
come on some other day. After four days thereafter accused nos.2 and 3 went
to the house of the deceased and asked him to come along with them for
seeing the stones. Inspite of disinclination of deceased, accused nos. 2
and 3 insisted the deceased to come along with them stating that their
owner has come and therefore, stones are to be seen. As it was late in the
evening, deceased asked his wife for torch and PW2-Kala gave him torch
(MO6) and deceased went along with accused nos.2 and 3.
10. The evidence of PWs.1 and 2 is cogent and consistent which clearly
brings home the circumstance that deceased went along with accused nos. 2
and 3. In the Test Identification Parade conducted by PW38-Judicial
Magistrate, PWs.1 and 2 have also identified accused nos. 2 and 3 which
would strengthen the stand of the prosecution.
11. Learned counsel for the appellant raised objection with regard to non-
mention of name of accused no.2-Selvaraj in Ext.P1-Complaint and submitted
that accused no.3-Nirmal accompanied accused no.2 would throw serious
doubts about the credibility of PWs.1 and 2. But from the evidence Ext.P1-
complaint we find that PW1 has clearly stated that two persons had come to
their house and took the deceased in Maruthi Omni Van. In Ext.P1-Complaint,
though PW1 had expressed suspicion about accused nos. 1, 6 and 7, PW1 has
clearly expressed his doubts that accused nos. 1, 6 and 7 might have
engaged men for abducting the deceased. Such doubts expressed in Ext.P1-
Complaint is sufficient incriminating circumstance against the accused nos.
2 and 3. Credibility of PWs.1 and 2 cannot be doubted on the ground of non-
mention of name of accused no.2 in Ext.P1-Complaint. The evidence of PW9
also established that the deceased was last seen alive with accused no.1-
Paramasivam in Maruthi Omni Van (TN-23 E 5951) near Kinathukadavu
Checkpost. In his evidence, PW9 has stated that after taking petrol for TVS-
50 in a Petrol Pump near the Checkpost while he was proceeding along with
PW8-Sivakumar, he saw the deceased along with accused no.1-Paramasivam in
Maruthi Omni Van (MO1) and saw the others inside the Van. Since, deceased
and accused no.1-Paramasivam were in inimical terms, PW9 wondered as to why
accused no.1 and deceased are seen together and he asked PW8-Sivakumar
about the same. Though, PW8-Sivakumar turned hostile, evidence of PW9 is
trustworthy and we do not find any reason to take a different view.
12. Another circumstances relied upon by the prosecution is evidence of
PW15-Subramani (brother of the deceased) that accused no. 1 and another
person came to the quarry to see stones. When they were crushing the
stones, deceased went with them to see the stones. No doubt evidence of
PW15 as to how deceased went with the accused might appear to be slightly
different but due to variation of time narrating the events cannot be said
in manner the PW15 narrated his statement. We are of the view that evidence
of PW15 does not make any dent upon the consistent version of PWs.1 and 2
and the case of prosecution.
13. Dr. Perimaladevi-PW33 conducted autopsy and noted the following
injuries:
? Crush injury over the front of head and part of brain comes out
[liquified].
? Fracture of left arm bone [upper] and left shoulder joint bones.
? Fracture of right upper arm bone and cut off from the shoulder joint.
? Fracture of left leg bones [middle].
? Fracture of right thigh bone and leg bones.
14. Dr. Perimaladevi opined that deceased died of 'shock and haemorrhage'
due to multiple injuries and head injuries about 70-80 hours prior to the
autopsy. Since identity of the body was not known, body was buried in
Thirupur Chellandiamman burial ground. Later at the request of
Investigating Officer, body was exhumed in the presence of PW21-Tahsildar.
After the body was exhumed, PW34-Dr.Vallinayagam collected the blood for
DNA test. Blood samples of PW14-Manickammal and PW15-Subramani (mother and
brother of the deceased) were also collected. After conducting DNA test and
upon analysis of results of DNA typing for the samples, PW40-Asst. Director
gave Ext.P32-Report and opined that "bone pieces etc. described belong to a
human male individual". PW40 further opined that "the person Mani alias
Paraimani to whom the bone pieces etc. belong is the biological offspring
of Ms. A. Manickammal.". Evidence of PW40 would amply establish identity of
body recovered from the railway track as that of the deceased Mani alias
Parai Mani who is the son of PW14-Manickammal.
15. When deceased is shown to be abducted, it is for the abductors to
explain how they dealt with the abducted victim. In the absence of
explanation, Court is to draw inference that abductors are the murderers.
16. In State of W.B. v. Mir Mohammad Omar and others (2000) 8 SCC 382,
this Court held:
“34. When it is proved to the satisfaction of the Court that Mahesh was
abducted by the accused and they took him out of that area, the accused
alone knew what happened to him until he was with them. If he was found
murdered within a short time after the abduction the permitted reasoning
process would enable the Court to draw the presumption that the accused
have murdered him. Such inference can be disrupted if the accused would
tell the Court what else happened to Mahesh at least until he was in their
custody.”
17. In Sucha Singh v. State of Punjab (2001) 4 SCC 375, this Court held:
“15. The abductors alone could tell the court as to what happened to the
deceased after they were abducted. When the abductors withheld that
information from the court there is every justification for drawing the
inference, in the light of all the preceding and succeeding circumstances
adverted to above, that the abductors are the murderers of the deceased.”
“19. We pointed out that Section 106 of the Evidence Act is not intended to
relieve the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt, but the section would apply to cases where the
prosecution has succeeded in proving facts for which a reasonable inference
can be drawn regarding the existence of certain other facts, unless the
accused by virtue of special knowledge regarding such facts failed to offer
any explanation which might drive the court to draw a different inference.”
“21. We are mindful of what is frequently happening during these days.
Persons are kidnapped in the sight of others and are forcibly taken out of
the sight of all others and later the kidnapped are killed. If a legal
principle is to be laid down that for the murder of such kidnapped there
should necessarily be independent evidence apart from the circumstances
enumerated above, we would be providing a safe jurisprudence for protecting
such criminal activities. India cannot now afford to lay down any such
legal principle insulating the marauders of their activities of killing
kidnapped innocents outside the ken of others.”
18. In the present case, the prosecution brought on record the evidences
that accused no.1 to 3 had abducted the deceased. Therefore, it is accused
nos.1 to 3 alone knew what happened to him as the deceased was found
murdered within a short time after abduction. The accused nos.1 to 3 have
failed to give any explanation and the Court rightly draw presumption that
the accused have murdered the deceased Mani alias Parai Mani.
19. The prosecution relied upon the statement of accused persons leading
to discovery of facts as envisaged u/s 27 of Indian Evidence Act. Accused
Nos. 1, 2 and 5 were arrested on 28.1.2004 at different times. Confession
statement of accused no.1 led to recovery of Voter ID Card of Mani (MO9)
and other articles i.e. MOs.4 and 5. Confession statement recorded from
accused no.2-Selvaraj alias Selvan] led to recovery of Pocket Diary (MO2),
Money purse (MO3) with photo of deceased and other articles-MOs.10 to 12.
Confession statement of accused no.5 Driver Lingasamy led to seizure of
Taxi MO1-Maruthi Omni Van (TN-23 E 5951). Accused no.3-Nirmal and accused
no.4-Sureshkumar alias Suresh alias Pambatti were surrendered before the
Court and on application, PW41-Investigating Officer took them for police
custody. Confession statement recorded from accused no.3 led to recovery of
Torch light(MO6) which was handed over to the deceased by PW2 at the time
when he left the house. PW2 also identified MO6 as the torch light handed
over by her at the time when the deceased left the house. Recovery of
various articles of the deceased from accused nos.1 to 3 is a strong
incriminating circumstance connecting the appellants with the crime.
20. Section 27 of the Evidence Act reads as under:
“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.”
21. In Anil alias Raju Namdev Patil v. Administration of Daman & Diu,
Daman and another, (2006) 13 SCC 36, this Court held:
“23.The information disclosed by the evidences leading to the
discovery of a fact which is based on mental state of affair of the accused
is, thus, admissible in evidence.”
22. This Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC
370 opined that when an object is discovered from an isolated place pointed
out by the accused, the same would be admissible in evidence.
23. We have noticed the confessional statement of the appellants, on the
basis of which the discovery of material evidence took place.
24. From the evidence on record, we find that the Prosecution was
successful in bringing on record the circumstantial evidences i.e.
existence of motive; the circumstances in which the deceased was last seen
alive in the company of appellants-accused nos.1 to 3; death was homicidal
and body was found on the railway track mutilated; the body of the deceased
was identified through DNA test; on arrest of accused incriminating
articles were recovered.
25. Upon analysis of evidence, we are of the view that prosecution has
succeeded in proving the facts that the accused nos.1 to 3 took away
deceased Mani alias Parai Mani. What happened thereafter to deceased is
especially within the knowledge of the appellants-accused nos.1 to 3. It
was for the appellants-accused nos. 1 to 3 to explain what happened to Mani
alias Parai Mani after they took him away but they failed to explain the
same. Mani alias Parai Mani was found dead immediately thereafter.
Therefore, it is clear that the accused nos.1 to 3 who abducted deceased
Mani alias Parai Mani intentionally withhold the information from the Court
and, therefore, there is every justification for drawing inference that
appellants-accused nos.1 to 3 murdered Mani alias Parai Mani. Stand of the
appellants is a bare denial of prosecution case. In the absence of any
explanation, the inevitable inference is that appellants are responsible
for the death of deceased Mani alias Parai Mani. Thus, the guilt of the
appellants-accused nos. 1 to 3 has been proved beyond all reasonable doubt.
We find no merit in this appeal and the same is accordingly dismissed.
………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(DIPAK MISRA)
NEW DELHI,
JULY 01, 2014
ITEM NO.1C 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). 593/2010
PARAMSIVAM & ORS. Appellant(s)
VERSUS
STATE TR.INSP.OF POLICE Respondent(s)
Date : 01/07/2014 This appeal was called on for pronouncement of
Judgment today.
For Appellant(s) Mr. Vijay Kumar ,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]
