REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 680681 OF 2009
Pattu Rajan .....Appellant
Versus
The State of Tamil Nadu .....Respondent
WITH
Criminal Appeal Nos. 799800 of 2009
Criminal Appeal No. 824 of 2009
Criminal Appeal Nos. 801802 of 2009
Criminal Appeal Nos. 822823 of 2009
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
The judgment dated 19.03.2009 passed in Criminal Appeal
No. 637 and 748 of 2004 passed by the High Court of Judicature at
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Madras whereby the High Court convicted the accused appellants
for the abduction and murder of one Santhakumar, husband of the
complainant Jeevajothi (PW1), is called into question in these
appeals.
2. The material facts leading to these appeals are as under:
Accused No. 1 is the proprietor of a chain of hotels (Saravana
Bhavan). Either upon the advice of an astrologer or having become
besotted with PW1, Accused No.1 had evinced a keen desire to take
PW1 as his third wife, though she was already married to
Santhakumar (the deceased). In order to fulfil his desire, Accused
No.1 used to financially help PW1, her family members and her
husband. He used to talk to PW1 over the phone frequently, and
also gave her costly gifts such as jewellery and silk sarees and even
went to the extent of paying her medical bills. In a further bid to
gain PW1’s love and affection, he frequently interfered in her
personal matters. Once when she was ill, under the pretext of
better treatment as advised by another doctor, Accused No. 1
forcefully shifted her to another hospital, where he advised her not
to have sexual relations with her husband and made her undergo a
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series of tests. The deceased Santhakumar was instructed to get
himself tested for AIDS and other such diseases, which he refused
outright.
3. On 01.10.2001, PW1 and her husband were abducted by
Accused No.1 and his henchmen (including the appellants herein),
for which a separate complaint (Ext. P3) was lodged by PW1 and a
separate trial was conducted. Some of the accused therein were
convicted. Separate appeals were also filed against the judgment of
conviction for the incident of abduction. As they have been decided
separately, we do not propose to discuss the said incident and
offence in detail in these appeals.
4. Accused No.1 took the help of the other appellants in order to
eliminate the husband of PW1, for securing PW1 as his third wife.
Subsequent to the incident of 01.10.2001 relating to abduction,
Accused No. 2 contacted PW1 and told her that he regretted the
previous events and suggested to PW1 to lodge a police complaint. A
few days prior to the murder, Accused No. 2 instructed PW1 to tell
her husband to come alone to a certain Sai Baba temple to meet a
press reporter whom Accused No.2 personally knew in order to
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highlight Accused No. 1’s wrongdoings. In other words, Accused
No.2 posed himself as a wellwisher of PW1 and the deceased.
5. On 18.10.2001, PW1 as well as her husband went to the Sai
Baba temple as instructed by Accused No. 2. Soon after, two
Ambassador cars bearing Registration Nos. TN 09 T 3224 (M.O.1)
and TN 22 5202 (M.O.2), and a Tata Sumo vehicle bearing
Registration No. TN 09 Q 1310 (M.O.3) came and halted behind the
car in which PW1 and her husband were sitting. Accused Nos. 3
and 4, armed with knives, got out of one of the cars and forced PW1
and her husband to board the car of the accused in which Accused
No.5 was sitting, and took them to Chengalpattu. At about 8.30
p.m. on the same night, a Mercedes Benz bearing Registration No.
TN 10 M 7755 (M.O.4) belonging to Accused No. 1 arrived with the
parents of PW1 along with Accused No.1. Thereafter, PW2, the
mother of PW1, informed PW1 that Accused No.1 was in the said
Benz car, and wanted PW1 to leave her husband and meet Accused
No.1 in the car. As PW1 resisted, Accused Nos. 3 and 4 forcibly took
PW1 to the Benz car, and she was taken to Tiruchirappalli in the
said car.
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6. On 19.10.2001, PW1 was taken to PW9 by Accused Nos.5 and 8
at Parappadi village, to remove the alleged influence of witchcraft
(black magic) which was allegedly the cause of her being in love
with Santhakumar. From there, she was taken to Veppankulam
village to seek the advise of an astrologer (PW8). At the said place,
an employee of Accused No.1, Janarthanam came and informed
PW1 that her husband had escaped the clutches of the henchmen
of Accused No.1 and his whereabouts were unknown.
Subsequently, after spending the night at Hotel Ariyas at
Tirunelveli, PW1 and her family, along with Accused Nos. 1, 5, 6
and 8 returned to Chennai by train.
7. After two days, Santhakumar spoke to PW1 over a phone call
and stated that Accused No. 2 had told him about being given Rs. 5
lakhs by Accused No.1 to kill him, but Accused No. 2 had let him go
unharmed out of sympathy, and had asked him to escape to
Mumbai and contact him from there after fifteen days. However,
Santhakumar returned to PW1 upon her request. Subsequently, on
21.10.2001, both of them approached Accused No.1 to seek his
mercy, thus revealing that Santhakumar was still alive. Later on
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the same day, when Accused No.2 told Accused No.1 a false story
about how he and the other accused had killed Santhakumar and
destroyed the evidence, on Accused No.1’s cue, Santhakumar and
PW1 entered the room, much to the shock of Accused No.2.
Disgraced and feeling betrayed, Accused No.2 started assaulting
Santhakumar, and was joined by Accused Nos. 3 and 4. On
24.10.2001, they took the couple to the office of the Deputy
Commissioner of Police to withdraw the complaint relating to the
incident of abduction which had been lodged earlier that month,
and also made them sign a few blank papers. On the same day,
Accused Nos. 5 and 6 took Santhakumar, PW1 and her family
members in a Tata Sumo bearing Registration No. TN 10 M 7755
belonging to Accused No. 1, again to remove the influence of black
magic on PW1, after which they reached Tirunelveli.
8. On 26.10.2001, at about 6.30 a.m., Accused No. 5 came to the
room in which PW1 and her family members were staying in
Tirunelveli and informed them that Accused No.1 had instructed
Santhakumar to be brought to him. Unwilling to send him alone,
PW1 also went along with Santhakumar and Accused No.5.
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Accused No. 1 made PW1 and her husband get into his Tata Sumo
(Registration No. TN 10 M 7755). This vehicle, being driven by
Accused No. 9, with Accused Nos. 5 and 8, PW1 and Santhakumar
seated within, was followed by another Tata Sumo (M.O.3). Upon
reaching the Karai Illupu culvert, and upon a signal by Accused No.
5, the other vehicle stopped, and Accused Nos. 2 to 4 and 6 alighted
therefrom. Accused No.1 got out and grabbed Santhakumar by the
collar, dragging him out. He pushed Santhakumar down and
handed him over to Accused Nos. 2 to 4 and 6 and ordered them to
“finish him off”. The Tata Sumo (M.O. 3) driven by Accused No. 7
took Santhakumar along with the said accused towards Dindigul.
Accused No. 1 and the other accused took PW1 back, and later
brought her and her family back to Chennai.
9. While PW1 was staying at her mother’s house at Velachery,
Accused Nos. 5, 8 and other henchmen of Accused No.1 kept a
constant vigil over the movements of PW1 and her family.
Thereafter, at the instance of Accused No.1, PW1 and her family
members were taken to an astrologer by the name of Ravi (PW4),
and later, she was made to undergo certain rituals, conducted by
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one Raghunatha Iyer, in the presence of the second wife of Accused
No.1 at K.K. Nagar. Later, much to her shock, PW1 learnt that these
rituals were traditionally conducted by the wife after the death of
her husband. Therefore, upon growing gravely suspicious, she
lodged the first information on 20.11.2001 stating that Accused
No.1 and his henchmen had murdered her husband, and the same
was registered as Crime No.1047 of 2001.
10. The motive put forth by the prosecution for the commission of
the offence is that Accused No.1 wanted to take PW1 as his third
wife despite knowing that she was already married to the deceased
Santhakumar. Accused No.1 made several failed attempts with the
help of the other accused to sever the relationship between PW1
and her husband. Ultimately, Accused No.1 committed the offence
in question in order to eliminate the deceased so as to be able to
marry PW1 without any obstruction.
11. In the meanwhile, i.e. on 31.10.2001, prior to the lodging of
the FIR, one forester by name Raman and Forest Guard Murugusen
(PW26 and 27 respectively) of the Kodaikanal Range discovered the
dead body of a male near the TigerChola forest area. On seeing the
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dead body, PW27 lodged the first information, Ext. P42, at
Kodaikanal Police Station, which was registered as C.R. No. 559 of
2001, recording the finding of an unidentified body and its
unnatural death. The postmortem was conducted on 01.11.2001
by PW35 and thereafter, as the body remained unidentified, it was
buried in the Hindu burial ground of the Kodaikanal Municipality
by PW33, Anithalai, in the presence of PW32, Head Constable
Sebastian. Meanwhile, the accused had surrendered and confessed
to the commission of Santhakumar’s murder. Based on Accused
No. 2’s confession that he and the other accused had killed the
victim and thrown the dead body in the forest area of TigerChola
near a curve on the road, the investigation team proceeded to that
place, and it was eventually determined that the dead body found
by the forest officials was that of Santhakumar. The preburial
photographs of the dead body clicked by the Kodaikanal Police
(M.O. 11, 12, 13, 14) as well as the apparel found on the body of the
deceased (M.O. 5, 6 and 8) were identified as Santhakumar’s by
PW1 and her family, as well as by some of the accused. The dead
body was exhumed by PW33 and two others, and was sent for a
second postmortem, which was conducted by PW38. During the
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course of investigation, the procedure of superimposition of the face
of the deceased was done by PW34, Dr. Jayaprakash, after which
the dead body was concluded to be that of Santhakumar. After
exhumation, the body was also identified by PWs 1 and 2 through a
scar mark still visible on the waist.
Charges were framed under various provisions of the Indian
Penal Code (hereinafter referred to as “the IPC”) including Sections
302, 364 and 201, and the trial was conducted.
12. The Trial Court, upon evaluation of the material on record,
convicted the accused appellants for the offences punishable under
Sections 364, 304 Part I and 201 of the IPC. The accused appellants
as well as the State appealed before the High Court, wherein the
High Court while confirming the finding of guilt of the accused,
modified the conviction for the offence punishable under Section
304 Part I to Section 302 of the IPC. The Trial Court as well as the
High Court concluded that the evidence of the prosecution
witnesses, particularly that of PWs 1 and 2, along with the other
supporting evidence, was believable and trustworthy; the motive for
commission of the offence had been proved; the last seen
10
circumstance had been proved by the prosecution beyond
reasonable doubt; and that the recovery of the dead body based on
the statement of Daniel (Accused No.2) had also been proved. Both
the Courts tested the evidence of PW1 on the touchstone of
consistency with the tenor of the case. The Trial Court, which had
the opportunity to observe the demeanor of PWs 1 and 2, held that
the discrepancies and contradictions, if any, were minor in nature,
and did not affect the credibility and consistency of the evidence of
PWs 1 and 2.
13. The Courts, relying on the evidence of the doctors PWs 35 and
38, who conducted the two postmortem examinations, concluded
that the death was homicidal in nature, as the cause of death was
found to be asphyxia due to throttling.
14. Shri Sushil Kumar, learned senior counsel for the appellants
took us through the entire material on record and submitted that
the circumstances relied upon by the prosecution have not been
proved in accordance with law. He argued that the High Court and
the Trial Court have merely proceeded on assumptions and
conjectures, and the motive for commission of the offence has not
11
been proved, in addition to the fact that the evidence relating to the
recovery of the dead body is shaky. He laid more stress on the
argument that the first information in the present case (Ext. P1)
registered on 20.11.2001 could not have been registered at all,
inasmuch as there cannot be a second FIR relating to the same
incident. According to him, the incident as found in the first
information report dated 20.11.2001 is merely a continuation of the
earlier offence of abduction which had taken place on 01.10.2001,
which had generated proceedings pursuant to the first information
lodged on 12.10.2001. Thus, according to him, the FIR in the
present case would only assume the character of a statement
recorded under Section 161 of the Code of Criminal Procedure
(hereinafter “the Cr.P.C”), and the proceedings in this matter would
stand vitiated. He further submitted that the first information of the
abduction case dated 12.10.2001 had been marked and relied upon
in the present matter as Ext. P3 and its use as a substantive piece
of evidence was illegal. It was also argued that the evidence relating
to the last seen circumstance as deposed by PW1 was not put to the
accused while examining them under Section 313 of the Cr.P.C,
and therefore, such portion of evidence could not be made use of by
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the prosecution against the accused. Learned counsel also
submitted that the identification of the body merely on the basis of
a superimposition test was improper, in the absence of a DNA test.
Per contra, Shri Balaji Srinivasan, the learned Additional
Advocate General appearing on behalf of the State, argued in
support of the judgments of the Courts below.
15. We do not find any force in the arguments of the learned
Senior Advocate for the appellants that the incident of murder in
the case in hand is merely a continuation of an earlier offence, i.e.
Crime No. 1030 of 2001 relating to the abduction of PW1 and the
deceased Santhakumar, which occurred on 01.10.2001.
Undoubtedly, factors such as proximity of time or place, unity
of purpose and design and continuity of action, in respect of a
series of acts, have to be considered in order to determine whether
such acts form part of the same transaction or not (See State of
A.P. v. Cheemalapati Ganeswara Rao, (1964) 3 SCR 297). A
quick overview of the sequence of unfolding of the incident of
murder in question and the prior incident of abduction would show
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that the above factors cannot be said to be satisfied in this case.
Even when the two FIRs Ext. P1 and P3 are read together, it
becomes clear that the first incident of abduction began and ended
on 01.10.2001. The crime of abduction commenced when the
victims (PW1 and the deceased) were forced into captivity on the
said date, and was completed on the same day immediately after
the victims were released. In respect of the said incident, the first
information came to be lodged on 12.10.2001 by PW1. During the
investigation of the said case, on 24.10.2001, the accused brought
the deceased, PW1 and her family members to Tirunelveli. The
present crime came to be committed on 26.10.2001, whereby PW1
and her husband, Santhakumar were taken away in a car, and on
the direction of Accused No.1, Accused Nos. 2 to 4, 6 and 7 forcibly
took away Santhakumar by separating him from his wife,
committed his murder and threw away his body at the TigerChola
forest area within the jurisdiction of Kodaikanal Police Station.
Evidently, the time and place of occurrence of the two
incidents are different. Even the number of accused involved in the
incidents is different. No continuity of action can be gathered from
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the sequence of events either. It may be noted that the motive for
commission of both the offences may be the same, inasmuch as
they were committed to enable Accused No. 1 to marry PW1, but
merely because of their common motive, the second offence cannot
be said to be in continuation of the first incident, in light of there
being distinct intentions behind the two offences. The first offence
was committed with the intention to abduct the deceased and PW1,
the purpose for which was merely to threaten and pressurize them.
In contrast, the intention behind the second offence was to murder
the deceased with a view to permanently get rid of him. Therefore, it
is evident that unity of purpose and design between the two
offences is also absent. Thus, it is amply clear that the incident of
murder is entirely separate and distinct from the earlier incident of
abduction.
16. Undisputedly, the first information pertaining to the incident
of abduction, after passing through various stages and various
police officers, ultimately came to be registered as an FIR on
09.11.2001 in the jurisdictional Police Station. Nevertheless, the
fact remains that the offence of abduction was completed on
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01.10.2001 itself and the first information came to be lodged on
12.10.2001.
17. There cannot be any dispute that a second FIR in respect of an
offence or different offences committed in the course of the same
transaction is not only impermissible but also violates Article 21 of
the Constitution. In T.T. Antony v. State of Kerala, (2001) 6 SCC
181, this Court has categorically held that the registration of a
second FIR (which is not a counter case) is violative of Article 21 of
the Constitution. It is relevant to note paragraphs 19, 20 and 27 of
the said decision in that regard:
“19. The scheme of CrPC is that an officer in
charge of a police station has to commence
investigation as provided in Section 156 or 157
CrPC on the basis of entry of the first information
report, on coming to know of the commission of a
cognizable offence. On completion of investigation
and on the basis of the evidence collected, he has to
form an opinion under Section 169 or 170 CrPC, as
the case may be, and forward his report to the
Magistrate concerned under Section 173(2) CrPC.
However, even after filing such a report, if he comes
into possession of further information or material,
he need not register a fresh FIR; he is empowered to
make further investigation, normally with the leave
of the court, and where during further investigation
16
he collects further evidence, oral or documentary, he
is obliged to forward the same with one or more
further reports; this is the import of subsection (8)
of Section 173 CrPC.
20. From the above discussion it follows that
under the scheme of the provisions of Sections 154,
155, 156, 157, 162, 169, 170 and 173 CrPC only
the earliest or the first information in regard to the
commission of a cognizable offence satisfies the
requirements of Section 154 CrPC. Thus there can
be no second FIR and consequently there can be no
fresh investigation on receipt of every subsequent
information in respect of the same cognizable
offence or the same occurrence or incident giving
rise to one or more cognizable offences. On receipt of
information about a cognizable offence or an
incident giving rise to a cognizable offence or
offences and on entering the FIR in the station
house diary, the officer in charge of a police station
has to investigate not merely the cognizable offence
reported in the FIR but also other connected
offences found to have been committed in the course
of the same transaction or the same occurrence and
file one or more reports as provided in Section 173
CrPC.
x x x x x x x x x x
27. A just balance between the fundamental
rights of the citizens under Articles 19 and 21 of the
Constitution and the expansive power of the police
to investigate a cognizable offence has to be struck
by the court. There cannot be any controversy that
subsection (8) of Section 173 CrPC empowers the
police to make further investigation, obtain further
evidence (both oral and documentary) and forward a
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further report or reports to the Magistrate.
In Narang case [Ram Lal Narang v. State (Delhi
Admn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479] it
was, however, observed that it would be appropriate
to conduct further investigation with the permission
of the court. However, the sweeping power of
investigation does not warrant subjecting a citizen
each time to fresh investigation by the police in
respect of the same incident, giving rise to one or
more cognizable offences, consequent upon filing of
successive FIRs whether before or after filing the
final report under Section 173(2) CrPC. It would
clearly be beyond the purview of Sections 154 and
156 CrPC, nay, a case of abuse of the statutory
power of investigation in a given case. In our view a
case of fresh investigation based on the second or
successive FIRs, not being a countercase, filed in
connection with the same or connected cognizable
offence alleged to have been committed in the
course of the same transaction and in respect of
which pursuant to the first FIR either investigation
is under way or final report under Section 173(2)
has been forwarded to the Magistrate, may be a fit
case for exercise of power under Section 482 CrPC
or under Articles 226/227 of the Constitution.”
18. However, the aforementioned principles of law may not be
applicable to the facts of the incident on hand, as the crimes
underlying the two FIRs are distinct and different. The offence
punishable under Section 302, in the present case, was committed
during the course of investigation of the case in the first FIR, i.e.
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relating to the crime of abduction. We are of the considered opinion
that the allegations and offences under this present FIR relating to
the murder of the deceased are substantially distinct from the
information lodged in Crime No. 1030 of 2001 relating to abduction.
We are unable to accept the argument of Shri Sushil Kumar that at
the most, further investigation could have been made by the police
in the earlier crime registered relating to abduction since the
murder has allegedly taken place during the subsistence of
investigation of the crime of abduction. As mentioned supra, the
facts and circumstances of the matter clearly indicate that the
offence of abduction committed by the appellants and the offence of
murder were two different and distinct offences, and therefore,
there is no question of further investigation to be made in the crime
of abduction by the investigating agency relating to the offence of
murder which was committed during the subsistence of the
investigation relating to abduction. Further investigation, as
envisaged under Subsection 8 of Section 173 of the Cr.P.C,
connotes investigation of the case in continuation of an earlier
investigation with respect to which the chargesheet has already
been filed. In case a fresh offence is committed during the course of
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the earlier investigation, which is distinct from the offence being
investigated, such fresh offence cannot be investigated as part of
the pending case, and should instead be investigated afresh. It is
pertinent to note that the facts on hand are similar to the facts in
the case of Awadesh Kumar Jha v. State of Bihar, (2016) 3 SCC
8, wherein this Court held that the case arising out of a second FIR,
if relating to a separate transaction, cannot be investigated along
with a previous FIR under the clause ‘further investigation’ as
contemplated under Subsection 8 to Section 173 of the Cr.P.C.
19. In Rameshchandra Nandlal Parikh v. State of Gujarat,
(2006) 1 SCC 732, earlier judgments of this Court including T.T.
Antony (supra) were considered, and it was held that in case the
FIRs are not in respect of the same cognizable offence or the same
occurrence giving rise to one or more cognizable offences, and have
not been alleged to have been committed in the course of the same
transaction or the same occurrence as the ones alleged in the first
FIR, there is no prohibition on accepting the second FIR. In this
respect, in the case of Nirmal Singh Kahlon v. State of Punjab,
(2009) 1 SCC 441, this Court observed thus:
20
“67. The second FIR, in our opinion, would be
maintainable not only because there were different
versions but when new discovery is made on factual
foundations. Discoveries may be made by the police
authorities at a subsequent stage. Discovery about a
larger conspiracy can also surface in another
proceeding, as for example, in a case of this nature. If
the police authorities did not make a fair
investigation and left out conspiracy aspect of the
matter from the purview of its investigation, in our
opinion, as and when the same surfaced, it was open
to the State and/or the High Court to direct
investigation in respect of an offence which is distinct
and separate from the one for which the FIR had
already been lodged.”
20. We may also refer to the following observations made by this
Court in the case of Babubhai v. State of Gujarat, (2010) 12 SCC
254, while considering a similar question:
“20. Thus, in view of the above, the law on the
subject emerges to the effect that an FIR under
Section 154 CrPC is a very important document. It is
the first information of a cognizable offence recorded
by the officer in charge of the police station. It sets
the machinery of criminal law in motion and marks
the commencement of the investigation which ends
with the formation of an opinion under Section 169
or 170 CrPC, as the case may be, and forwarding of a
police report under Section 173 CrPC. Thus, it is
quite possible that more than one piece of
information be given to the police officer in charge of
21
the police station in respect of the same incident
involving one or more than one cognizable offences.
In such a case, he need not enter each piece of
information in the diary. All other information given
orally or in writing after the commencement of the
investigation into the facts mentioned in the first
information report will be statements falling under
Section 162 CrPC.
21. In such a case the court has to examine the facts
and circumstances giving rise to both the FIRs and
the test of sameness is to be applied to find out
whether both the FIRs relate to the same incident in
respect of the same occurrence or are in regard to the
incidents which are two or more parts of the same
transaction. If the answer is in the affirmative, the
second FIR is liable to be quashed. However, in
case, the contrary is proved, where the version in
the second FIR is different and they are in
respect of the two different incidents/crimes, the
second FIR is permissible. In case in respect of
the same incident the accused in the first FIR
comes forward with a different version or
counterclaim, investigation on both the FIRs has
to be conducted.”
(emphasis supplied)
In light of the aforementioned settled legal proposition, we
have no hesitation in holding that the separate first information
lodged in this case is just, legal and proper.
21. Furthermore, it is no doubt true that the first information
relating to the crime of abduction dated 12.10.2001 was marked in
22
the case on hand relating to murder. However, we cannot accept the
contention that the same has been used as a substantive piece of
evidence in this matter. This is because the said document was
practically used only as supportive material to show the motive for
the accused to commit the crime.
22. Coming to the merits of the matter, it is pertinent to note that
the prosecution mainly relied upon three circumstances to prove
the guilt of the accused, i.e. motive, the last seen circumstance and
the recovery of the dead body at the instance of the accused. An
additional link in the chain of circumstances is the nonexplanation
by the accused about the last seen circumstance in their statement
recorded under Section 313 of the Cr.P.C. Clearly, there is no
direct evidence in this matter and the whole case rests on
circumstantial evidence.
Before we undertake a consideration of the evidence
supporting such circumstances, we would like to note that the law
relating to circumstantial evidence is well settled. The Judge while
deciding matters resting on circumstantial evidence should always
tread cautiously so as to not allow conjectures or suspicion,
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however strong, to take the place of proof. If the alleged
circumstances are conclusively proved before the Court by leading
cogent and reliable evidence, the Court need not look any further
before affirming the guilt of the accused. Moreover, human agency
may be faulty in expressing the picturisation of the actual incident,
but circumstances cannot fail or be ignored. As aptly put in this oftquoted phrase: “Men may lie, but circumstances do not”.
As mentioned supra, the circumstances relied upon by the
prosecution should be of a conclusive nature and they should be
such as to exclude every other hypothesis except the one to be
proved by the prosecution regarding the guilt of the accused. There
must be a chain of evidence proving the circumstances so complete
so as to not leave any reasonable ground for a conclusion of
innocence of the accused. Although it is not necessary for this
Court to refer to decisions concerning this legal proposition, we
prefer to quote the following observations made in Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116
(SCC p. 185 para 153154):
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“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be or
should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra 1973 CriLJ
1783 where the following observations were made:
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a Court can convict and the mental distance
between ‘may be’ and ‘must be’ is long and divides
vague conjectures from sure conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
25
probability the act must have been done by the
accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
23. In order to satisfy our conscience, we have independently
considered the evidence on record in its entirety in view of the
aforementioned principles. However, as we do not wish to burden
this judgment by reiterating the depositions of all the witnesses on
record in detail, we deem it fit to discuss only the important aspects
highlighted by some of the prosecution witnesses in their testimony.
24. It would be appropriate to begin with the testimony of PW1,
the wife of the deceased. She has deposed in detail as to how
Accused No.1 wanted to marry her and how he often tried to lure
her through undue favours. She has deposed that as Accused No.1
wished to take her as his third wife, he wanted to separate her from
her husband. Whenever PW1 or her family were in need of money,
Accused No.1 would generously help them. He even used to talk to
PW1 over the phone regularly, and used to interfere in her personal
matters unwarrantedly. She has narrated elaborately about the
26
prior incident of abduction as well. As far as the matter on hand is
concerned, she has deposed that on 24.10.2001, PW1, her parents
and the deceased were taken by Accused No.1 and the other
accused to different places and they ultimately reached Tirunelveli.
In the early hours of 26.10.2001, Accused No.5 asked the deceased
to meet Accused No.1. PW1, being reluctant to send the deceased
alone with Accused No. 5, went along with her husband to meet
Accused No. 1, who made PW1 and the deceased get into the vehicle
bearing Registration No. TN 10 M 7755 (driven by Accused No. 9)
along with himself and Accused Nos. 5 and 8. On the way, upon
the signal of Accused No. 5, Accused Nos. 2, 4 and 6 got down from
a vehicle (M.O. 3) which had been following behind, and took away
the deceased. Accused No. 1 further instructed these accused to
“finish him off”, definitely intending to instruct them to kill the
deceased. Thereafter, PW1 was forcibly taken back by Accused No.1
and later was made to undergo different rituals, which made her
suspect the murder of her husband and led her to lodge a
complaint regarding the same.
27
PW1 has also deposed about the identification of the clothes
worn by the deceased at the time of leaving her company, on which
basis she identified the clothes on the discovered dead body to be
those of Santhakumar’s. She also identified his personal belongings
that were recovered from Accused No.6. She has deposed about the
exhumation of the dead body and her identification of the dead
body based on the scar on the left side of her husband’s waist. She
has meticulously deposed about the role of each of the appellants in
the crime. In the crossexamination, she has also explained the
delay in lodging the first information by deposing that she could not
file the complaint before 20.11.2001 though her husband was
abducted on 26.10.2001 because she was under the constant
surveillance of Accused No. 1 and his henchmen and could only
free herself after 06.11.2011. Also, importantly, in the first incident
(being the incident of abduction, i.e. Crime No. 1030 of 2001), her
husband had been spared by Accused No. 1, and on a subsequent
occasion also, he had been spared by Accused No. 2. Thus, she
was hopeful that her husband would escape on this occasion as
well. She also admitted in the crossexamination that her mother
28
had informed her that if she married Accused No.1, he would set up
a business for their family and also pay them Rs. 10 Lakhs.
Though PW1 was crossexamined at length, the defence could
not discredit her evidence on material particulars. Minor variations
pointed out by the defence, as such neither affect the prosecution
version nor PW1’s evidence in its entirety.
25. In effect, PW1 has deposed about the aspect of motive, the last
seen circumstance as well as the identification of the personal
belongings of the deceased and his dead body. She is the witness
who saw the deceased in the company of the accused for the last
time before his death. While the date on which she saw the
deceased with the accused was 26.10.2001, the dead body was
found on 31.10.2001, i.e. within five days of the incident, and as
per the postmortem report given by PW35, Dr. A. Sivakumar, the
victim appeared to have died 35 days prior to the examination,
which was conducted on 02.11.2001. This fact is well corroborated
by the examinationinchief of PW35 as well.
26. The evidence of PW1 is fully supported by the evidence of PW2,
the mother of PW1. PW2 has deposed about the conduct of
29
Accused No.1 towards her family members, as well as the
dishonourable motive of Accused No.1 to marry PW1 and make her
his third wife. She has fully corroborated the evidence of PW1
regarding the events of the day of the incident as well as the
preceding days. She has testified to the fact that Accused No.5
came to their room in Tirunelveli and asked the deceased to go
along with Accused No.1. However, PW1 also went along with them,
but she returned to the room alone, crying, and revealed that the
accused had beaten the deceased and taken him away. She has
also deposed about Accused No.1 taking PW1 to an astrologer, and
for removing the influence of black magic, etc.; and that she was
present during the exhumation of the body and had identified the
dead body of her soninlaw by the scar mark on his waist. She had
also identified the belongings of the deceased. In her crossexamination, she denied the suggestion made to her by the defence
that PW1 had falsely lodged the complaint to extract money from
Accused No.1. She has also explained the delay in filing the FIR,
stating that her house was being monitored by Accused No.1 and
his aides and that she was hoping that the deceased would return
30
safely, as he had previously. The evidence of PW2 fully corroborates
the evidence of PW1.
It is evident from the above discussion that the evidence of
PWs 1 and 2 with regard to the motive for commission of the
offence, the last seen circumstance and recovery as well as the
identification of the dead body is consistent with the case of the
prosecution. We do not find any artificiality in their evidence. On
the other hand, their evidence remains natural, consistent, cogent
and probable, and thus we do not find any reason to disagree with
the findings arrived at in that regard by the Trial Court as well as
by the High Court.
27. The testimony of PW7, the Village Administrative Officer
working in the office of the Tehsildar, is also relevant and
significant. As per the requisition of the Assistant Commissioner of
Police, PW7 went to the Chennai Kotturpuram Police Station on
30.11.2001. In his presence, Accused No.2 confessed to the
Inspector of Police, PW42, that if taken to Kodaikanal, he would
show the spot at TigerChola where the dead body of Santhakumar
was thrown. Accordingly, Accused No.2 was taken to the said place
31
on 01.12.2001 and he pointed out the place of disposal of the body,
and also identified the dead body of the deceased from the
photographs available with the police. PW7 further deposed that
PWs 1 and 2, who came the next day, i.e., on 02.12.2001, also
identified the dead body shown in the photographs, and the body
was exhumed after 2 days, after completing the formalities. He also
deposed that on 13.12.2001, Accused No.6 confessed that if taken
to his colony at Saligramam Road, he would identify and produce
the wallet (M.O.7) and gold chain (M.O.9) of the deceased, and the
same were recovered at the instance of Accused No. 6. PW7 has
also deposed about the recovery of one lungi (M.O. 15) from the
Tata Sumo in which the deceased was last seen. Nothing material
worth considering in favour of the defence has been extracted from
the crossexamination of PW7.
It was argued by Shri Sushil Kumar that the confession made
by Accused No.2 before PW7 was not admissible in evidence. There
cannot be any dispute that a confession made by the accused in
police custody is an inadmissible confession. The confession herein
cannot even be called an extrajudicial confession because of the
32
presence of the police. Be that as it may, if a confession is made by
the accused before the police and a portion of the confession leads
to the recovery of any incriminating material, such portion alone is
admissible under Section 27 of the Indian Evidence Act. Since only
such portion of the confession relating to the recovery of certain
material objects was admitted in evidence and relied upon, such
reliance was in accordance with law.
28. The testimony of PWs 26, 27, 29, 32 and 33 pertains to the
vital aspect of the recovery of the body of the deceased. PW26
Raman, the forester, has deposed that while he was working with
Forest Guard Murugesan (PW27) on 31.10.2001, they found a dead
body lying at TigerChola in an abyss in the forest. The body had a
bluecoloured checked fullsleeved shirt and sandalcoloured pant
with a blackcoloured belt. After seeing the dead body, PW26 and
PW27 went to the Kodaikanal Police Station and lodged the first
information (Ext. P42) with regard to the discovery of the
unidentified dead body. Thereafter, the police came to the spot
along with a camera and took photographs of the dead body. PW27
33
has reaffirmed what has been stated by PW26 and has deposed that
the dead body was taken to the hospital by the police for autopsy.
PW29, the SubInspector of Police of Kodaikanal Police
Station, has deposed that on 31.10.2001, PWs 26 and 27 lodged the
complaint which came to be registered on the same day. Thereafter,
PW29 along with other personnel went to the concerned spot at
TigerChola, and saw the dead body of a male aged about 30 years
wearing the aforementioned clothes. He took the photographs of the
dead body from all angles and prepared the observation mahazar
(Ext. P45) and panchnama of the dead body (Ext. P46). Thereafter,
the dead body was sent to the government hospital for postmortem
examination. Since the body was unidentified and no relatives could
be found, he asked Head Constable Sebastian (PW32) to bury the
body in the municipality burial ground. He also told PW32 to mark
the place where the dead body was buried. In the crossexamination, he has denied the suggestion that the pictures
mentioned were merely photographs of the original photographs
taken on the spot of discovery. Further, he has deposed that he
conducted an inquest of the dead body and prepared the same
34
under the light of a Petromax. Although he saw a scar on the dead
body, he did not mention the same in the observation mahazar. The
colour of the shirt was seen as brown in the light of the Petromax,
but on rechecking it in morning, he realized that it was actually
blue, and thus struck it out and corrected it accordingly in the
mahazar.
PW32, the Head Constable, has reiterated what has been
deposed by PW29. He was present during the burial of the dead
body by PW33 Anithalai, and instructed him to place an identifier
on the spot of burial. PW32 exhumed the dead body in the presence
of the Tehsildar, upon whose direction, he kept the dead body at a
place that was elevated. He also deposed that PW1, Jeevajothi,
identified the dead body to be that of her husband and had left the
place crying. PW32’s version as to the burial was corroborated by
PW33, who has deposed that he buried the body and put the
identification mark of a blue metal stone near the head to identify
the place.
29. We may also briefly discuss the testimony of PWs 35 and 38
(the doctors who conducted the postmortems of the deceased).
35
PW35 conducted the first postmortem examination. He has stated
in his examinationinchief that the hyoid bone in the neck was
found broken and the brain was found decomposed. He opined that
the person could have died 3 to 5 days prior to the postmortem
examination. The hyoid bone in the neck could have been broken
due to strangulation of the said person by using materials like a
lungi. PW38, who conducted the second postmortem examination
upon exhumation of the dead body, was also present at the spot of
exhumation. PW38 deposed that while the body was being
exhumed, he had noticed that a wooden stick had been put up
along with a small stone on the southern part of the place. He also
deposed that there was an old injury scar on the right lower
abdomen of the dead body, the hyoid bone was broken, and that the
fracture found in the hyoid bone was antemortem, which was
confirmed through a Bensidine test. He opined that the cause of
death appeared to be compression of the neck.
30. It is also relevant to note the testimony of PW36, the
handwriting expert. During the course of investigation, the records
of the various hotels in which the accused had stayed along with
36
the deceased, PW1 and her family were collected. PW36 compared
the handwritings in the hotel records with the handwritings of the
accused and opined the former to belong to Accused Nos. 4, 5, 6
and 8. This supports the conclusion that the accused in fact took
PW1 and her family members to various places as deposed by them.
31. Shri Sushil Kumar also argued that a DNA test should have
been conducted in order to identify the dead body, and
identification merely on the basis of a superimposition test, which is
not a tangible piece of evidence, may not be proper.
One cannot lose sight of the fact that DNA evidence is also in
the nature of opinion evidence as envisaged in Section 45 of the
Indian Evidence Act. Undoubtedly, an expert giving evidence before
the Court plays a crucial role, especially since the entire purpose
and object of opinion evidence is to aid the Court in forming its
opinion on questions concerning foreign law, science, art, etc., on
which the Court might not have the technical expertise to form an
opinion on its own. In criminal cases, such questions may pertain
to aspects such as ballistics, fingerprint matching, handwriting
37
comparison, and even DNA testing or superimposition techniques,
as seen in the instant case.
32. The role of an expert witness rendering opinion evidence before
the Court may be explained by referring to the following
observations of this Court in Ramesh Chandra Agrawal v.
Regency Hospital Limited & Ors., (2009) 9 SCC 709:
“16. The law of evidence is designed to ensure that the
court considers only that evidence which will enable it to
reach a reliable conclusion. The first and foremost
requirement for an expert evidence to be admissible is
that it is necessary to hear the expert evidence. The test
is that the matter is outside the knowledge and
experience of the lay person. Thus, there is a need to
hear an expert opinion where there is a medical issue to
be settled. The scientific question involved is assumed to
be not within the court's knowledge. Thus cases where
the science involved, is highly specialized and
perhaps even esoteric, the central role of an expert
cannot be disputed…”
(emphasis supplied)
Undoubtedly, it is the duty of an expert witness to assist the
Court effectively by furnishing it with the relevant report based on
his expertise along with his reasons, so that the Court may form its
independent judgment by assessing such materials and reasons
furnished by the expert for coming to an appropriate conclusion. Be
38
that as it may, it cannot be forgotten that opinion evidence is
advisory in nature, and the Court is not bound by the evidence of
the experts. (See The State (Delhi Adminstration) v. Pali Ram,
(1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC
280; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65;
Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors.
(supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee &
Ors., (2010) 2 SCC (Cri) 299).
33. Like all other opinion evidence, the probative value accorded to
DNA evidence also varies from case to case, depending on facts and
circumstances and the weight accorded to other evidence on record,
whether contrary or corroborative. This is all the more important to
remember, given that even though the accuracy of DNA evidence
may be increasing with the advancement of science and technology
with every passing day, thereby making it more and more reliable,
we have not yet reached a juncture where it may be said to be
infallible. Thus, it cannot be said that the absence of DNA evidence
would lead to an adverse inference against a party, especially in the
39
presence of other cogent and reliable evidence on record in favour of
such party.
34. This leads us to the question of the propriety of relying upon
the superimposition test conducted in the instant case for
identifying the deceased. As noted supra, the learned counsel for
the appellants has argued that evidence pertaining to the use of the
superimposition technique is not a tangible piece of evidence. We
find ourselves unable to agree with this view. There cannot be any
dispute that evidence on superimposition is also based on experts’
opinion. We would like to note that the use of the superimposition
technique in Indian investigations for identification purposes is not
a new phenomenon. Notably, it has been employed in the
investigations pertaining to the Nithari murders, the Russian
murder incident in Goa in 2008, and even before that in the Morni
Hill murder case and the Paharganj bomb blast case as far back as
in 1996, and the Udhampur murder case in 2005 (See Modi, A
Textbook of Medical Jurisprudence and Toxicology, 26th edn., 2018,
pp. 267271). This Court itself has placed reliance on identification
of the deceased through superimposition on several occasions (see
40
Shankar & Ors. v. State of Tamil Nadu, (1994) 4 SCC 478;
Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC
288; Inspector of Police, Tamil Nadu v. John David, (2011) 5
SCC 509; Mahesh Dhanaji Shinde v. State of Maharashtra,
(2014) 4 SCC 292), clearly indicating that it is an acceptable piece
of opinion evidence.
35. It is relevant to note that all of the decisions of this Court cited
in the above paragraph were based on circumstantial evidence,
involving aspects such as the last seen circumstance, motive,
recovery of personal belongings of the deceased, and so on, and
therefore in none of the cases was the superimposition technique
the sole incriminating factor relied upon to reach a conclusion of
guilt of the accused. Indeed, in Mahesh Dhanaji Shinde (supra),
the Court also had the advantage of referring to a DNA test, and in
John David (supra), of referring to a DNA test as well as dental
examination of the deceased, to determine the identity of the victim.
This is in line with the settled practice of the Courts, which
generally do not rely upon opinion evidence as the sole
incriminating circumstance, given its fallibility. This is particularly
41
true for the superimposition technique, which cannot be regarded
as infallible.
36. In view of the above discussion, we hold that the High Court
was justified in observing that a superimposition test cannot be
taken as a conclusive one for the identification of a dead body,
because by itself it may not conclusively establish identification.
However, the High Court rightly accepted the expert testimony on
this aspect since in the instant case, the superimposition test was
merely one piece of evidence relied upon by the prosecution to
corroborate the evidence of PWs 1 and 2 in order to strengthen its
case.
37. Moreover, it is evident from the testimony of PW34, Dr.
Jayaprakash, who conducted the superimposition test, that the test
was conducted by using three different methods, i.e. video
superimposition, visual observation, and dental trait
superimposition, and in spite of challenges to the reliability of such
evidence, the Courts, after carefully assessing the methodology
adopted, accepted the finding reached by PW34 regarding the
42
identification of the body, and we see no error in such conclusion
reached by the Courts.
38. Therefore, we are of the opinion that the scientific evidence of
PW34 was rightly believed by the Trial Court as well as by the High
Court, and strengthens the evidence of PWs 1 and 2 regarding the
identification of the body. Though a DNA test would have helped the
Courts immensely in determining the reliability of the identification
of the body of the deceased, in the presence of other reliable
evidence on record in favour of the prosecution version on this
aspect, we reject the contention that the nonconducting of a DNA
test and the reliance on evidence regarding identification through
superimposition is improper. This is all the more true since no
material is forthcoming to the effect that the parents of the
deceased were alive during the relevant period, so as to conduct
comparative DNA tests.
39. It is noteworthy to emphasise that based on the confession of
Accused No.6, recoveries of a wallet containing a photograph of
PW1, gold chain etc. were effected from his house, which, as
43
mentioned supra, also stand positively identified by PW1 and her
family as belonging to the deceased.
40. From the evidence of the witnesses discussed supra, it is amply
clear that the dead body recovered from TigerChola was identified
by PW1 and her family members as Santhakumar’s, and the same
body was exhumed from the burial grounds. It is evident from the
depositions that the recovery of the dead body was made from the
TigerChola forest area, which is the same place to which Accused
No. 2 led the investigation team based on his confession about
disposal of the dead body. It is relevant to note at this juncture that
merely because the actual recovery of the body happened before the
accused lead the police to the scene, it does not, in the facts and
circumstances of this case, negate the validity of the recovery based
on a confession, in terms of Section 27 of the Evidence Act.
In our considered view, the recovery of the body of the
deceased at the instance of Accused No. 2 and the identification of
the body as that of Santhakumar by PW1, her family as well as by
the accused, on the basis of photographs, the clothes and
44
belongings of the deceased, and his scar, stand proved beyond all
reasonable doubt.
41. As mentioned supra, the evidence of PWs 1 and 2 proves the
circumstance relating to the last seen evidence beyond reasonable
doubt, apart from other circumstances. Both of them in their
evidence (especially PW1), as mentioned supra, have consistently
and cogently deposed that the deceased was last seen along with
the accused, who took the deceased away upon the orders of
Accused No. 1. No explanation, much less any plausible
explanation has come from the accused in their statements under
Section 313 of the Cr.P.C rebutting the strong evidence against
them. Though the burden had shifted onto the accused to explain
the said circumstance as to when they left the company of the
deceased, no explanation was adduced in that regard by the
accused herein. Hence, an adverse inference has to be drawn
against the accused. It may be noted that such nonexplanation by
the accused provides an additional link in the chain of
circumstances.
45
Furthermore, although it was argued by Shri Sushil Kumar
that the evidence relating to the last seen circumstance as deposed
by PW1 was not put to the accused while recording their statement
under Section 313, such an argument cannot be accepted, since
Question No. 22 and Question No. 30 specifically relate to the
evidence of the last seen circumstance, and were put to Accused
No.1. Same is the case with the other appellants. A perusal of the
statements of the accused recorded under Section 313 also reveals
that the relevant questions pertaining to taking Santhakumar along
with PW1 in the car on 26.10.2001, detection of the decomposed
dead body and the postmortem thereof were all put to the accused
so as to fully enable them to explain all the incriminating
circumstances appearing against them in the evidence adduced by
the prosecution. It is needless to observe that it has been
established through a catena of judgments of this Court that the
doctrine of last seen, if proved, shifts the burden of proof onto the
accused, placing on him the onus to explain how the incident
occurred and what happened to the victim who was last seen with
him. Failure on part of the accused to furnish any explanation in
this regard, as in the case in hand, or furnishing false explanation
46
would give rise to a strong presumption against him, and in favour
of his guilt, and would provide an additional link in the chain of
circumstances. (See Rohtash Kumar v. State of Haryana, (2013)
14 SCC 434; Trimukh Maroti Kirkan v. State of Maharashtra,
(2006) 10 SCC 681).
42. It is also relevant to note that the bill book and cash book of a
petrol pump at Palani (Ext. P32), where the Tata Sumo bearing
Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also
seized. This is very crucial evidence to show that the Tata Sumo in
which the accused were travelling along with the deceased had in
fact gone towards Kodaikanal, as is evident from the fact that fuel
was filled from a petrol pump enroute to Kodaikanal at Palani on
the relevant date.
43. In our considered opinion, the overwhelming, consistent,
cogent and reliable testimonies of PWs 1 and 2, along with the
aforementioned corroborative evidence, conclusively prove the
prosecution case. We reiterate that PWs 1 and 2 were steadfast in
their testimony about the motive, the last seen circumstance,
recovery of the dead body based on the confession of Accused No.2,
47
and about the identification of the dead body. We do not find any
embellishment or exaggeration in the evidence of these witnesses.
Moreover, the evidence of the other prosecution witnesses
(especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous,
consistent and reliable, and corroborates the testimony of PWs 1
and 2, which leads us to conclude that the chain of circumstances
is complete and points solely at the guilt of the accused. In our
considered opinion, the prosecution has proved the complicity of all
the appellants in murdering Santhakumar by strangulating him
and thereafter throwing the dead body at TigerChola. It is worth
recalling that while it is necessary that proof beyond reasonable
doubt should be adduced in all criminal cases, it is not necessary
that such proof should be perfect, and someone who is guilty
cannot get away with impunity only because the truth may develop
some infirmity when projected through human processes. The
traditional dogmatic hypertechnical approach has to be replaced by
a rational, realistic and genuine approach for administering justice
in a criminal trial. Justice cannot be made sterile by exaggerated
adherence to the rule of proof, inasmuch as the benefit of doubt
48
must always be reasonable and not fanciful. (See Inder Singh v.
State (Delhi Administration), (1978) 4 SCC 161; State of H.P. v.
Lekh Raj & Anr., (2000) 1 SCC 247; Takhaji Hiraji v. Thakore
Kubersing Chamansing & Ors., (2001) 6 SCC 145; Chaman &
Anr. v. State of Uttarakhand, (2016) 12 SCC 76).
44. Having regard to the entire material on record and the totality
of the facts and circumstances, we find that the evidence on record
fully proves the case of the prosecution and that the Trial Court as
well as the High Court evaluated the material on record in its
proper prospective while coming to their conclusion. Thus, the
judgment of the Trial Court as modified by the High Court need not
be interfered with. Hence these appeals fail and stand dismissed.
...........................................J.
(N.V. Ramana)
............................................J.
(Mohan M. Shantanagoudar)
……………………………………..J.
(Indira Banerjee)
New Delhi;
March 29, 2019.
49
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 680681 OF 2009
Pattu Rajan .....Appellant
Versus
The State of Tamil Nadu .....Respondent
WITH
Criminal Appeal Nos. 799800 of 2009
Criminal Appeal No. 824 of 2009
Criminal Appeal Nos. 801802 of 2009
Criminal Appeal Nos. 822823 of 2009
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
The judgment dated 19.03.2009 passed in Criminal Appeal
No. 637 and 748 of 2004 passed by the High Court of Judicature at
1
Madras whereby the High Court convicted the accused appellants
for the abduction and murder of one Santhakumar, husband of the
complainant Jeevajothi (PW1), is called into question in these
appeals.
2. The material facts leading to these appeals are as under:
Accused No. 1 is the proprietor of a chain of hotels (Saravana
Bhavan). Either upon the advice of an astrologer or having become
besotted with PW1, Accused No.1 had evinced a keen desire to take
PW1 as his third wife, though she was already married to
Santhakumar (the deceased). In order to fulfil his desire, Accused
No.1 used to financially help PW1, her family members and her
husband. He used to talk to PW1 over the phone frequently, and
also gave her costly gifts such as jewellery and silk sarees and even
went to the extent of paying her medical bills. In a further bid to
gain PW1’s love and affection, he frequently interfered in her
personal matters. Once when she was ill, under the pretext of
better treatment as advised by another doctor, Accused No. 1
forcefully shifted her to another hospital, where he advised her not
to have sexual relations with her husband and made her undergo a
2
series of tests. The deceased Santhakumar was instructed to get
himself tested for AIDS and other such diseases, which he refused
outright.
3. On 01.10.2001, PW1 and her husband were abducted by
Accused No.1 and his henchmen (including the appellants herein),
for which a separate complaint (Ext. P3) was lodged by PW1 and a
separate trial was conducted. Some of the accused therein were
convicted. Separate appeals were also filed against the judgment of
conviction for the incident of abduction. As they have been decided
separately, we do not propose to discuss the said incident and
offence in detail in these appeals.
4. Accused No.1 took the help of the other appellants in order to
eliminate the husband of PW1, for securing PW1 as his third wife.
Subsequent to the incident of 01.10.2001 relating to abduction,
Accused No. 2 contacted PW1 and told her that he regretted the
previous events and suggested to PW1 to lodge a police complaint. A
few days prior to the murder, Accused No. 2 instructed PW1 to tell
her husband to come alone to a certain Sai Baba temple to meet a
press reporter whom Accused No.2 personally knew in order to
3
highlight Accused No. 1’s wrongdoings. In other words, Accused
No.2 posed himself as a wellwisher of PW1 and the deceased.
5. On 18.10.2001, PW1 as well as her husband went to the Sai
Baba temple as instructed by Accused No. 2. Soon after, two
Ambassador cars bearing Registration Nos. TN 09 T 3224 (M.O.1)
and TN 22 5202 (M.O.2), and a Tata Sumo vehicle bearing
Registration No. TN 09 Q 1310 (M.O.3) came and halted behind the
car in which PW1 and her husband were sitting. Accused Nos. 3
and 4, armed with knives, got out of one of the cars and forced PW1
and her husband to board the car of the accused in which Accused
No.5 was sitting, and took them to Chengalpattu. At about 8.30
p.m. on the same night, a Mercedes Benz bearing Registration No.
TN 10 M 7755 (M.O.4) belonging to Accused No. 1 arrived with the
parents of PW1 along with Accused No.1. Thereafter, PW2, the
mother of PW1, informed PW1 that Accused No.1 was in the said
Benz car, and wanted PW1 to leave her husband and meet Accused
No.1 in the car. As PW1 resisted, Accused Nos. 3 and 4 forcibly took
PW1 to the Benz car, and she was taken to Tiruchirappalli in the
said car.
4
6. On 19.10.2001, PW1 was taken to PW9 by Accused Nos.5 and 8
at Parappadi village, to remove the alleged influence of witchcraft
(black magic) which was allegedly the cause of her being in love
with Santhakumar. From there, she was taken to Veppankulam
village to seek the advise of an astrologer (PW8). At the said place,
an employee of Accused No.1, Janarthanam came and informed
PW1 that her husband had escaped the clutches of the henchmen
of Accused No.1 and his whereabouts were unknown.
Subsequently, after spending the night at Hotel Ariyas at
Tirunelveli, PW1 and her family, along with Accused Nos. 1, 5, 6
and 8 returned to Chennai by train.
7. After two days, Santhakumar spoke to PW1 over a phone call
and stated that Accused No. 2 had told him about being given Rs. 5
lakhs by Accused No.1 to kill him, but Accused No. 2 had let him go
unharmed out of sympathy, and had asked him to escape to
Mumbai and contact him from there after fifteen days. However,
Santhakumar returned to PW1 upon her request. Subsequently, on
21.10.2001, both of them approached Accused No.1 to seek his
mercy, thus revealing that Santhakumar was still alive. Later on
5
the same day, when Accused No.2 told Accused No.1 a false story
about how he and the other accused had killed Santhakumar and
destroyed the evidence, on Accused No.1’s cue, Santhakumar and
PW1 entered the room, much to the shock of Accused No.2.
Disgraced and feeling betrayed, Accused No.2 started assaulting
Santhakumar, and was joined by Accused Nos. 3 and 4. On
24.10.2001, they took the couple to the office of the Deputy
Commissioner of Police to withdraw the complaint relating to the
incident of abduction which had been lodged earlier that month,
and also made them sign a few blank papers. On the same day,
Accused Nos. 5 and 6 took Santhakumar, PW1 and her family
members in a Tata Sumo bearing Registration No. TN 10 M 7755
belonging to Accused No. 1, again to remove the influence of black
magic on PW1, after which they reached Tirunelveli.
8. On 26.10.2001, at about 6.30 a.m., Accused No. 5 came to the
room in which PW1 and her family members were staying in
Tirunelveli and informed them that Accused No.1 had instructed
Santhakumar to be brought to him. Unwilling to send him alone,
PW1 also went along with Santhakumar and Accused No.5.
6
Accused No. 1 made PW1 and her husband get into his Tata Sumo
(Registration No. TN 10 M 7755). This vehicle, being driven by
Accused No. 9, with Accused Nos. 5 and 8, PW1 and Santhakumar
seated within, was followed by another Tata Sumo (M.O.3). Upon
reaching the Karai Illupu culvert, and upon a signal by Accused No.
5, the other vehicle stopped, and Accused Nos. 2 to 4 and 6 alighted
therefrom. Accused No.1 got out and grabbed Santhakumar by the
collar, dragging him out. He pushed Santhakumar down and
handed him over to Accused Nos. 2 to 4 and 6 and ordered them to
“finish him off”. The Tata Sumo (M.O. 3) driven by Accused No. 7
took Santhakumar along with the said accused towards Dindigul.
Accused No. 1 and the other accused took PW1 back, and later
brought her and her family back to Chennai.
9. While PW1 was staying at her mother’s house at Velachery,
Accused Nos. 5, 8 and other henchmen of Accused No.1 kept a
constant vigil over the movements of PW1 and her family.
Thereafter, at the instance of Accused No.1, PW1 and her family
members were taken to an astrologer by the name of Ravi (PW4),
and later, she was made to undergo certain rituals, conducted by
7
one Raghunatha Iyer, in the presence of the second wife of Accused
No.1 at K.K. Nagar. Later, much to her shock, PW1 learnt that these
rituals were traditionally conducted by the wife after the death of
her husband. Therefore, upon growing gravely suspicious, she
lodged the first information on 20.11.2001 stating that Accused
No.1 and his henchmen had murdered her husband, and the same
was registered as Crime No.1047 of 2001.
10. The motive put forth by the prosecution for the commission of
the offence is that Accused No.1 wanted to take PW1 as his third
wife despite knowing that she was already married to the deceased
Santhakumar. Accused No.1 made several failed attempts with the
help of the other accused to sever the relationship between PW1
and her husband. Ultimately, Accused No.1 committed the offence
in question in order to eliminate the deceased so as to be able to
marry PW1 without any obstruction.
11. In the meanwhile, i.e. on 31.10.2001, prior to the lodging of
the FIR, one forester by name Raman and Forest Guard Murugusen
(PW26 and 27 respectively) of the Kodaikanal Range discovered the
dead body of a male near the TigerChola forest area. On seeing the
8
dead body, PW27 lodged the first information, Ext. P42, at
Kodaikanal Police Station, which was registered as C.R. No. 559 of
2001, recording the finding of an unidentified body and its
unnatural death. The postmortem was conducted on 01.11.2001
by PW35 and thereafter, as the body remained unidentified, it was
buried in the Hindu burial ground of the Kodaikanal Municipality
by PW33, Anithalai, in the presence of PW32, Head Constable
Sebastian. Meanwhile, the accused had surrendered and confessed
to the commission of Santhakumar’s murder. Based on Accused
No. 2’s confession that he and the other accused had killed the
victim and thrown the dead body in the forest area of TigerChola
near a curve on the road, the investigation team proceeded to that
place, and it was eventually determined that the dead body found
by the forest officials was that of Santhakumar. The preburial
photographs of the dead body clicked by the Kodaikanal Police
(M.O. 11, 12, 13, 14) as well as the apparel found on the body of the
deceased (M.O. 5, 6 and 8) were identified as Santhakumar’s by
PW1 and her family, as well as by some of the accused. The dead
body was exhumed by PW33 and two others, and was sent for a
second postmortem, which was conducted by PW38. During the
9
course of investigation, the procedure of superimposition of the face
of the deceased was done by PW34, Dr. Jayaprakash, after which
the dead body was concluded to be that of Santhakumar. After
exhumation, the body was also identified by PWs 1 and 2 through a
scar mark still visible on the waist.
Charges were framed under various provisions of the Indian
Penal Code (hereinafter referred to as “the IPC”) including Sections
302, 364 and 201, and the trial was conducted.
12. The Trial Court, upon evaluation of the material on record,
convicted the accused appellants for the offences punishable under
Sections 364, 304 Part I and 201 of the IPC. The accused appellants
as well as the State appealed before the High Court, wherein the
High Court while confirming the finding of guilt of the accused,
modified the conviction for the offence punishable under Section
304 Part I to Section 302 of the IPC. The Trial Court as well as the
High Court concluded that the evidence of the prosecution
witnesses, particularly that of PWs 1 and 2, along with the other
supporting evidence, was believable and trustworthy; the motive for
commission of the offence had been proved; the last seen
10
circumstance had been proved by the prosecution beyond
reasonable doubt; and that the recovery of the dead body based on
the statement of Daniel (Accused No.2) had also been proved. Both
the Courts tested the evidence of PW1 on the touchstone of
consistency with the tenor of the case. The Trial Court, which had
the opportunity to observe the demeanor of PWs 1 and 2, held that
the discrepancies and contradictions, if any, were minor in nature,
and did not affect the credibility and consistency of the evidence of
PWs 1 and 2.
13. The Courts, relying on the evidence of the doctors PWs 35 and
38, who conducted the two postmortem examinations, concluded
that the death was homicidal in nature, as the cause of death was
found to be asphyxia due to throttling.
14. Shri Sushil Kumar, learned senior counsel for the appellants
took us through the entire material on record and submitted that
the circumstances relied upon by the prosecution have not been
proved in accordance with law. He argued that the High Court and
the Trial Court have merely proceeded on assumptions and
conjectures, and the motive for commission of the offence has not
11
been proved, in addition to the fact that the evidence relating to the
recovery of the dead body is shaky. He laid more stress on the
argument that the first information in the present case (Ext. P1)
registered on 20.11.2001 could not have been registered at all,
inasmuch as there cannot be a second FIR relating to the same
incident. According to him, the incident as found in the first
information report dated 20.11.2001 is merely a continuation of the
earlier offence of abduction which had taken place on 01.10.2001,
which had generated proceedings pursuant to the first information
lodged on 12.10.2001. Thus, according to him, the FIR in the
present case would only assume the character of a statement
recorded under Section 161 of the Code of Criminal Procedure
(hereinafter “the Cr.P.C”), and the proceedings in this matter would
stand vitiated. He further submitted that the first information of the
abduction case dated 12.10.2001 had been marked and relied upon
in the present matter as Ext. P3 and its use as a substantive piece
of evidence was illegal. It was also argued that the evidence relating
to the last seen circumstance as deposed by PW1 was not put to the
accused while examining them under Section 313 of the Cr.P.C,
and therefore, such portion of evidence could not be made use of by
12
the prosecution against the accused. Learned counsel also
submitted that the identification of the body merely on the basis of
a superimposition test was improper, in the absence of a DNA test.
Per contra, Shri Balaji Srinivasan, the learned Additional
Advocate General appearing on behalf of the State, argued in
support of the judgments of the Courts below.
15. We do not find any force in the arguments of the learned
Senior Advocate for the appellants that the incident of murder in
the case in hand is merely a continuation of an earlier offence, i.e.
Crime No. 1030 of 2001 relating to the abduction of PW1 and the
deceased Santhakumar, which occurred on 01.10.2001.
Undoubtedly, factors such as proximity of time or place, unity
of purpose and design and continuity of action, in respect of a
series of acts, have to be considered in order to determine whether
such acts form part of the same transaction or not (See State of
A.P. v. Cheemalapati Ganeswara Rao, (1964) 3 SCR 297). A
quick overview of the sequence of unfolding of the incident of
murder in question and the prior incident of abduction would show
13
that the above factors cannot be said to be satisfied in this case.
Even when the two FIRs Ext. P1 and P3 are read together, it
becomes clear that the first incident of abduction began and ended
on 01.10.2001. The crime of abduction commenced when the
victims (PW1 and the deceased) were forced into captivity on the
said date, and was completed on the same day immediately after
the victims were released. In respect of the said incident, the first
information came to be lodged on 12.10.2001 by PW1. During the
investigation of the said case, on 24.10.2001, the accused brought
the deceased, PW1 and her family members to Tirunelveli. The
present crime came to be committed on 26.10.2001, whereby PW1
and her husband, Santhakumar were taken away in a car, and on
the direction of Accused No.1, Accused Nos. 2 to 4, 6 and 7 forcibly
took away Santhakumar by separating him from his wife,
committed his murder and threw away his body at the TigerChola
forest area within the jurisdiction of Kodaikanal Police Station.
Evidently, the time and place of occurrence of the two
incidents are different. Even the number of accused involved in the
incidents is different. No continuity of action can be gathered from
14
the sequence of events either. It may be noted that the motive for
commission of both the offences may be the same, inasmuch as
they were committed to enable Accused No. 1 to marry PW1, but
merely because of their common motive, the second offence cannot
be said to be in continuation of the first incident, in light of there
being distinct intentions behind the two offences. The first offence
was committed with the intention to abduct the deceased and PW1,
the purpose for which was merely to threaten and pressurize them.
In contrast, the intention behind the second offence was to murder
the deceased with a view to permanently get rid of him. Therefore, it
is evident that unity of purpose and design between the two
offences is also absent. Thus, it is amply clear that the incident of
murder is entirely separate and distinct from the earlier incident of
abduction.
16. Undisputedly, the first information pertaining to the incident
of abduction, after passing through various stages and various
police officers, ultimately came to be registered as an FIR on
09.11.2001 in the jurisdictional Police Station. Nevertheless, the
fact remains that the offence of abduction was completed on
15
01.10.2001 itself and the first information came to be lodged on
12.10.2001.
17. There cannot be any dispute that a second FIR in respect of an
offence or different offences committed in the course of the same
transaction is not only impermissible but also violates Article 21 of
the Constitution. In T.T. Antony v. State of Kerala, (2001) 6 SCC
181, this Court has categorically held that the registration of a
second FIR (which is not a counter case) is violative of Article 21 of
the Constitution. It is relevant to note paragraphs 19, 20 and 27 of
the said decision in that regard:
“19. The scheme of CrPC is that an officer in
charge of a police station has to commence
investigation as provided in Section 156 or 157
CrPC on the basis of entry of the first information
report, on coming to know of the commission of a
cognizable offence. On completion of investigation
and on the basis of the evidence collected, he has to
form an opinion under Section 169 or 170 CrPC, as
the case may be, and forward his report to the
Magistrate concerned under Section 173(2) CrPC.
However, even after filing such a report, if he comes
into possession of further information or material,
he need not register a fresh FIR; he is empowered to
make further investigation, normally with the leave
of the court, and where during further investigation
16
he collects further evidence, oral or documentary, he
is obliged to forward the same with one or more
further reports; this is the import of subsection (8)
of Section 173 CrPC.
20. From the above discussion it follows that
under the scheme of the provisions of Sections 154,
155, 156, 157, 162, 169, 170 and 173 CrPC only
the earliest or the first information in regard to the
commission of a cognizable offence satisfies the
requirements of Section 154 CrPC. Thus there can
be no second FIR and consequently there can be no
fresh investigation on receipt of every subsequent
information in respect of the same cognizable
offence or the same occurrence or incident giving
rise to one or more cognizable offences. On receipt of
information about a cognizable offence or an
incident giving rise to a cognizable offence or
offences and on entering the FIR in the station
house diary, the officer in charge of a police station
has to investigate not merely the cognizable offence
reported in the FIR but also other connected
offences found to have been committed in the course
of the same transaction or the same occurrence and
file one or more reports as provided in Section 173
CrPC.
x x x x x x x x x x
27. A just balance between the fundamental
rights of the citizens under Articles 19 and 21 of the
Constitution and the expansive power of the police
to investigate a cognizable offence has to be struck
by the court. There cannot be any controversy that
subsection (8) of Section 173 CrPC empowers the
police to make further investigation, obtain further
evidence (both oral and documentary) and forward a
17
further report or reports to the Magistrate.
In Narang case [Ram Lal Narang v. State (Delhi
Admn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479] it
was, however, observed that it would be appropriate
to conduct further investigation with the permission
of the court. However, the sweeping power of
investigation does not warrant subjecting a citizen
each time to fresh investigation by the police in
respect of the same incident, giving rise to one or
more cognizable offences, consequent upon filing of
successive FIRs whether before or after filing the
final report under Section 173(2) CrPC. It would
clearly be beyond the purview of Sections 154 and
156 CrPC, nay, a case of abuse of the statutory
power of investigation in a given case. In our view a
case of fresh investigation based on the second or
successive FIRs, not being a countercase, filed in
connection with the same or connected cognizable
offence alleged to have been committed in the
course of the same transaction and in respect of
which pursuant to the first FIR either investigation
is under way or final report under Section 173(2)
has been forwarded to the Magistrate, may be a fit
case for exercise of power under Section 482 CrPC
or under Articles 226/227 of the Constitution.”
18. However, the aforementioned principles of law may not be
applicable to the facts of the incident on hand, as the crimes
underlying the two FIRs are distinct and different. The offence
punishable under Section 302, in the present case, was committed
during the course of investigation of the case in the first FIR, i.e.
18
relating to the crime of abduction. We are of the considered opinion
that the allegations and offences under this present FIR relating to
the murder of the deceased are substantially distinct from the
information lodged in Crime No. 1030 of 2001 relating to abduction.
We are unable to accept the argument of Shri Sushil Kumar that at
the most, further investigation could have been made by the police
in the earlier crime registered relating to abduction since the
murder has allegedly taken place during the subsistence of
investigation of the crime of abduction. As mentioned supra, the
facts and circumstances of the matter clearly indicate that the
offence of abduction committed by the appellants and the offence of
murder were two different and distinct offences, and therefore,
there is no question of further investigation to be made in the crime
of abduction by the investigating agency relating to the offence of
murder which was committed during the subsistence of the
investigation relating to abduction. Further investigation, as
envisaged under Subsection 8 of Section 173 of the Cr.P.C,
connotes investigation of the case in continuation of an earlier
investigation with respect to which the chargesheet has already
been filed. In case a fresh offence is committed during the course of
19
the earlier investigation, which is distinct from the offence being
investigated, such fresh offence cannot be investigated as part of
the pending case, and should instead be investigated afresh. It is
pertinent to note that the facts on hand are similar to the facts in
the case of Awadesh Kumar Jha v. State of Bihar, (2016) 3 SCC
8, wherein this Court held that the case arising out of a second FIR,
if relating to a separate transaction, cannot be investigated along
with a previous FIR under the clause ‘further investigation’ as
contemplated under Subsection 8 to Section 173 of the Cr.P.C.
19. In Rameshchandra Nandlal Parikh v. State of Gujarat,
(2006) 1 SCC 732, earlier judgments of this Court including T.T.
Antony (supra) were considered, and it was held that in case the
FIRs are not in respect of the same cognizable offence or the same
occurrence giving rise to one or more cognizable offences, and have
not been alleged to have been committed in the course of the same
transaction or the same occurrence as the ones alleged in the first
FIR, there is no prohibition on accepting the second FIR. In this
respect, in the case of Nirmal Singh Kahlon v. State of Punjab,
(2009) 1 SCC 441, this Court observed thus:
20
“67. The second FIR, in our opinion, would be
maintainable not only because there were different
versions but when new discovery is made on factual
foundations. Discoveries may be made by the police
authorities at a subsequent stage. Discovery about a
larger conspiracy can also surface in another
proceeding, as for example, in a case of this nature. If
the police authorities did not make a fair
investigation and left out conspiracy aspect of the
matter from the purview of its investigation, in our
opinion, as and when the same surfaced, it was open
to the State and/or the High Court to direct
investigation in respect of an offence which is distinct
and separate from the one for which the FIR had
already been lodged.”
20. We may also refer to the following observations made by this
Court in the case of Babubhai v. State of Gujarat, (2010) 12 SCC
254, while considering a similar question:
“20. Thus, in view of the above, the law on the
subject emerges to the effect that an FIR under
Section 154 CrPC is a very important document. It is
the first information of a cognizable offence recorded
by the officer in charge of the police station. It sets
the machinery of criminal law in motion and marks
the commencement of the investigation which ends
with the formation of an opinion under Section 169
or 170 CrPC, as the case may be, and forwarding of a
police report under Section 173 CrPC. Thus, it is
quite possible that more than one piece of
information be given to the police officer in charge of
21
the police station in respect of the same incident
involving one or more than one cognizable offences.
In such a case, he need not enter each piece of
information in the diary. All other information given
orally or in writing after the commencement of the
investigation into the facts mentioned in the first
information report will be statements falling under
Section 162 CrPC.
21. In such a case the court has to examine the facts
and circumstances giving rise to both the FIRs and
the test of sameness is to be applied to find out
whether both the FIRs relate to the same incident in
respect of the same occurrence or are in regard to the
incidents which are two or more parts of the same
transaction. If the answer is in the affirmative, the
second FIR is liable to be quashed. However, in
case, the contrary is proved, where the version in
the second FIR is different and they are in
respect of the two different incidents/crimes, the
second FIR is permissible. In case in respect of
the same incident the accused in the first FIR
comes forward with a different version or
counterclaim, investigation on both the FIRs has
to be conducted.”
(emphasis supplied)
In light of the aforementioned settled legal proposition, we
have no hesitation in holding that the separate first information
lodged in this case is just, legal and proper.
21. Furthermore, it is no doubt true that the first information
relating to the crime of abduction dated 12.10.2001 was marked in
22
the case on hand relating to murder. However, we cannot accept the
contention that the same has been used as a substantive piece of
evidence in this matter. This is because the said document was
practically used only as supportive material to show the motive for
the accused to commit the crime.
22. Coming to the merits of the matter, it is pertinent to note that
the prosecution mainly relied upon three circumstances to prove
the guilt of the accused, i.e. motive, the last seen circumstance and
the recovery of the dead body at the instance of the accused. An
additional link in the chain of circumstances is the nonexplanation
by the accused about the last seen circumstance in their statement
recorded under Section 313 of the Cr.P.C. Clearly, there is no
direct evidence in this matter and the whole case rests on
circumstantial evidence.
Before we undertake a consideration of the evidence
supporting such circumstances, we would like to note that the law
relating to circumstantial evidence is well settled. The Judge while
deciding matters resting on circumstantial evidence should always
tread cautiously so as to not allow conjectures or suspicion,
23
however strong, to take the place of proof. If the alleged
circumstances are conclusively proved before the Court by leading
cogent and reliable evidence, the Court need not look any further
before affirming the guilt of the accused. Moreover, human agency
may be faulty in expressing the picturisation of the actual incident,
but circumstances cannot fail or be ignored. As aptly put in this oftquoted phrase: “Men may lie, but circumstances do not”.
As mentioned supra, the circumstances relied upon by the
prosecution should be of a conclusive nature and they should be
such as to exclude every other hypothesis except the one to be
proved by the prosecution regarding the guilt of the accused. There
must be a chain of evidence proving the circumstances so complete
so as to not leave any reasonable ground for a conclusion of
innocence of the accused. Although it is not necessary for this
Court to refer to decisions concerning this legal proposition, we
prefer to quote the following observations made in Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116
(SCC p. 185 para 153154):
24
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be or
should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra 1973 CriLJ
1783 where the following observations were made:
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a Court can convict and the mental distance
between ‘may be’ and ‘must be’ is long and divides
vague conjectures from sure conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
25
probability the act must have been done by the
accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
23. In order to satisfy our conscience, we have independently
considered the evidence on record in its entirety in view of the
aforementioned principles. However, as we do not wish to burden
this judgment by reiterating the depositions of all the witnesses on
record in detail, we deem it fit to discuss only the important aspects
highlighted by some of the prosecution witnesses in their testimony.
24. It would be appropriate to begin with the testimony of PW1,
the wife of the deceased. She has deposed in detail as to how
Accused No.1 wanted to marry her and how he often tried to lure
her through undue favours. She has deposed that as Accused No.1
wished to take her as his third wife, he wanted to separate her from
her husband. Whenever PW1 or her family were in need of money,
Accused No.1 would generously help them. He even used to talk to
PW1 over the phone regularly, and used to interfere in her personal
matters unwarrantedly. She has narrated elaborately about the
26
prior incident of abduction as well. As far as the matter on hand is
concerned, she has deposed that on 24.10.2001, PW1, her parents
and the deceased were taken by Accused No.1 and the other
accused to different places and they ultimately reached Tirunelveli.
In the early hours of 26.10.2001, Accused No.5 asked the deceased
to meet Accused No.1. PW1, being reluctant to send the deceased
alone with Accused No. 5, went along with her husband to meet
Accused No. 1, who made PW1 and the deceased get into the vehicle
bearing Registration No. TN 10 M 7755 (driven by Accused No. 9)
along with himself and Accused Nos. 5 and 8. On the way, upon
the signal of Accused No. 5, Accused Nos. 2, 4 and 6 got down from
a vehicle (M.O. 3) which had been following behind, and took away
the deceased. Accused No. 1 further instructed these accused to
“finish him off”, definitely intending to instruct them to kill the
deceased. Thereafter, PW1 was forcibly taken back by Accused No.1
and later was made to undergo different rituals, which made her
suspect the murder of her husband and led her to lodge a
complaint regarding the same.
27
PW1 has also deposed about the identification of the clothes
worn by the deceased at the time of leaving her company, on which
basis she identified the clothes on the discovered dead body to be
those of Santhakumar’s. She also identified his personal belongings
that were recovered from Accused No.6. She has deposed about the
exhumation of the dead body and her identification of the dead
body based on the scar on the left side of her husband’s waist. She
has meticulously deposed about the role of each of the appellants in
the crime. In the crossexamination, she has also explained the
delay in lodging the first information by deposing that she could not
file the complaint before 20.11.2001 though her husband was
abducted on 26.10.2001 because she was under the constant
surveillance of Accused No. 1 and his henchmen and could only
free herself after 06.11.2011. Also, importantly, in the first incident
(being the incident of abduction, i.e. Crime No. 1030 of 2001), her
husband had been spared by Accused No. 1, and on a subsequent
occasion also, he had been spared by Accused No. 2. Thus, she
was hopeful that her husband would escape on this occasion as
well. She also admitted in the crossexamination that her mother
28
had informed her that if she married Accused No.1, he would set up
a business for their family and also pay them Rs. 10 Lakhs.
Though PW1 was crossexamined at length, the defence could
not discredit her evidence on material particulars. Minor variations
pointed out by the defence, as such neither affect the prosecution
version nor PW1’s evidence in its entirety.
25. In effect, PW1 has deposed about the aspect of motive, the last
seen circumstance as well as the identification of the personal
belongings of the deceased and his dead body. She is the witness
who saw the deceased in the company of the accused for the last
time before his death. While the date on which she saw the
deceased with the accused was 26.10.2001, the dead body was
found on 31.10.2001, i.e. within five days of the incident, and as
per the postmortem report given by PW35, Dr. A. Sivakumar, the
victim appeared to have died 35 days prior to the examination,
which was conducted on 02.11.2001. This fact is well corroborated
by the examinationinchief of PW35 as well.
26. The evidence of PW1 is fully supported by the evidence of PW2,
the mother of PW1. PW2 has deposed about the conduct of
29
Accused No.1 towards her family members, as well as the
dishonourable motive of Accused No.1 to marry PW1 and make her
his third wife. She has fully corroborated the evidence of PW1
regarding the events of the day of the incident as well as the
preceding days. She has testified to the fact that Accused No.5
came to their room in Tirunelveli and asked the deceased to go
along with Accused No.1. However, PW1 also went along with them,
but she returned to the room alone, crying, and revealed that the
accused had beaten the deceased and taken him away. She has
also deposed about Accused No.1 taking PW1 to an astrologer, and
for removing the influence of black magic, etc.; and that she was
present during the exhumation of the body and had identified the
dead body of her soninlaw by the scar mark on his waist. She had
also identified the belongings of the deceased. In her crossexamination, she denied the suggestion made to her by the defence
that PW1 had falsely lodged the complaint to extract money from
Accused No.1. She has also explained the delay in filing the FIR,
stating that her house was being monitored by Accused No.1 and
his aides and that she was hoping that the deceased would return
30
safely, as he had previously. The evidence of PW2 fully corroborates
the evidence of PW1.
It is evident from the above discussion that the evidence of
PWs 1 and 2 with regard to the motive for commission of the
offence, the last seen circumstance and recovery as well as the
identification of the dead body is consistent with the case of the
prosecution. We do not find any artificiality in their evidence. On
the other hand, their evidence remains natural, consistent, cogent
and probable, and thus we do not find any reason to disagree with
the findings arrived at in that regard by the Trial Court as well as
by the High Court.
27. The testimony of PW7, the Village Administrative Officer
working in the office of the Tehsildar, is also relevant and
significant. As per the requisition of the Assistant Commissioner of
Police, PW7 went to the Chennai Kotturpuram Police Station on
30.11.2001. In his presence, Accused No.2 confessed to the
Inspector of Police, PW42, that if taken to Kodaikanal, he would
show the spot at TigerChola where the dead body of Santhakumar
was thrown. Accordingly, Accused No.2 was taken to the said place
31
on 01.12.2001 and he pointed out the place of disposal of the body,
and also identified the dead body of the deceased from the
photographs available with the police. PW7 further deposed that
PWs 1 and 2, who came the next day, i.e., on 02.12.2001, also
identified the dead body shown in the photographs, and the body
was exhumed after 2 days, after completing the formalities. He also
deposed that on 13.12.2001, Accused No.6 confessed that if taken
to his colony at Saligramam Road, he would identify and produce
the wallet (M.O.7) and gold chain (M.O.9) of the deceased, and the
same were recovered at the instance of Accused No. 6. PW7 has
also deposed about the recovery of one lungi (M.O. 15) from the
Tata Sumo in which the deceased was last seen. Nothing material
worth considering in favour of the defence has been extracted from
the crossexamination of PW7.
It was argued by Shri Sushil Kumar that the confession made
by Accused No.2 before PW7 was not admissible in evidence. There
cannot be any dispute that a confession made by the accused in
police custody is an inadmissible confession. The confession herein
cannot even be called an extrajudicial confession because of the
32
presence of the police. Be that as it may, if a confession is made by
the accused before the police and a portion of the confession leads
to the recovery of any incriminating material, such portion alone is
admissible under Section 27 of the Indian Evidence Act. Since only
such portion of the confession relating to the recovery of certain
material objects was admitted in evidence and relied upon, such
reliance was in accordance with law.
28. The testimony of PWs 26, 27, 29, 32 and 33 pertains to the
vital aspect of the recovery of the body of the deceased. PW26
Raman, the forester, has deposed that while he was working with
Forest Guard Murugesan (PW27) on 31.10.2001, they found a dead
body lying at TigerChola in an abyss in the forest. The body had a
bluecoloured checked fullsleeved shirt and sandalcoloured pant
with a blackcoloured belt. After seeing the dead body, PW26 and
PW27 went to the Kodaikanal Police Station and lodged the first
information (Ext. P42) with regard to the discovery of the
unidentified dead body. Thereafter, the police came to the spot
along with a camera and took photographs of the dead body. PW27
33
has reaffirmed what has been stated by PW26 and has deposed that
the dead body was taken to the hospital by the police for autopsy.
PW29, the SubInspector of Police of Kodaikanal Police
Station, has deposed that on 31.10.2001, PWs 26 and 27 lodged the
complaint which came to be registered on the same day. Thereafter,
PW29 along with other personnel went to the concerned spot at
TigerChola, and saw the dead body of a male aged about 30 years
wearing the aforementioned clothes. He took the photographs of the
dead body from all angles and prepared the observation mahazar
(Ext. P45) and panchnama of the dead body (Ext. P46). Thereafter,
the dead body was sent to the government hospital for postmortem
examination. Since the body was unidentified and no relatives could
be found, he asked Head Constable Sebastian (PW32) to bury the
body in the municipality burial ground. He also told PW32 to mark
the place where the dead body was buried. In the crossexamination, he has denied the suggestion that the pictures
mentioned were merely photographs of the original photographs
taken on the spot of discovery. Further, he has deposed that he
conducted an inquest of the dead body and prepared the same
34
under the light of a Petromax. Although he saw a scar on the dead
body, he did not mention the same in the observation mahazar. The
colour of the shirt was seen as brown in the light of the Petromax,
but on rechecking it in morning, he realized that it was actually
blue, and thus struck it out and corrected it accordingly in the
mahazar.
PW32, the Head Constable, has reiterated what has been
deposed by PW29. He was present during the burial of the dead
body by PW33 Anithalai, and instructed him to place an identifier
on the spot of burial. PW32 exhumed the dead body in the presence
of the Tehsildar, upon whose direction, he kept the dead body at a
place that was elevated. He also deposed that PW1, Jeevajothi,
identified the dead body to be that of her husband and had left the
place crying. PW32’s version as to the burial was corroborated by
PW33, who has deposed that he buried the body and put the
identification mark of a blue metal stone near the head to identify
the place.
29. We may also briefly discuss the testimony of PWs 35 and 38
(the doctors who conducted the postmortems of the deceased).
35
PW35 conducted the first postmortem examination. He has stated
in his examinationinchief that the hyoid bone in the neck was
found broken and the brain was found decomposed. He opined that
the person could have died 3 to 5 days prior to the postmortem
examination. The hyoid bone in the neck could have been broken
due to strangulation of the said person by using materials like a
lungi. PW38, who conducted the second postmortem examination
upon exhumation of the dead body, was also present at the spot of
exhumation. PW38 deposed that while the body was being
exhumed, he had noticed that a wooden stick had been put up
along with a small stone on the southern part of the place. He also
deposed that there was an old injury scar on the right lower
abdomen of the dead body, the hyoid bone was broken, and that the
fracture found in the hyoid bone was antemortem, which was
confirmed through a Bensidine test. He opined that the cause of
death appeared to be compression of the neck.
30. It is also relevant to note the testimony of PW36, the
handwriting expert. During the course of investigation, the records
of the various hotels in which the accused had stayed along with
36
the deceased, PW1 and her family were collected. PW36 compared
the handwritings in the hotel records with the handwritings of the
accused and opined the former to belong to Accused Nos. 4, 5, 6
and 8. This supports the conclusion that the accused in fact took
PW1 and her family members to various places as deposed by them.
31. Shri Sushil Kumar also argued that a DNA test should have
been conducted in order to identify the dead body, and
identification merely on the basis of a superimposition test, which is
not a tangible piece of evidence, may not be proper.
One cannot lose sight of the fact that DNA evidence is also in
the nature of opinion evidence as envisaged in Section 45 of the
Indian Evidence Act. Undoubtedly, an expert giving evidence before
the Court plays a crucial role, especially since the entire purpose
and object of opinion evidence is to aid the Court in forming its
opinion on questions concerning foreign law, science, art, etc., on
which the Court might not have the technical expertise to form an
opinion on its own. In criminal cases, such questions may pertain
to aspects such as ballistics, fingerprint matching, handwriting
37
comparison, and even DNA testing or superimposition techniques,
as seen in the instant case.
32. The role of an expert witness rendering opinion evidence before
the Court may be explained by referring to the following
observations of this Court in Ramesh Chandra Agrawal v.
Regency Hospital Limited & Ors., (2009) 9 SCC 709:
“16. The law of evidence is designed to ensure that the
court considers only that evidence which will enable it to
reach a reliable conclusion. The first and foremost
requirement for an expert evidence to be admissible is
that it is necessary to hear the expert evidence. The test
is that the matter is outside the knowledge and
experience of the lay person. Thus, there is a need to
hear an expert opinion where there is a medical issue to
be settled. The scientific question involved is assumed to
be not within the court's knowledge. Thus cases where
the science involved, is highly specialized and
perhaps even esoteric, the central role of an expert
cannot be disputed…”
(emphasis supplied)
Undoubtedly, it is the duty of an expert witness to assist the
Court effectively by furnishing it with the relevant report based on
his expertise along with his reasons, so that the Court may form its
independent judgment by assessing such materials and reasons
furnished by the expert for coming to an appropriate conclusion. Be
38
that as it may, it cannot be forgotten that opinion evidence is
advisory in nature, and the Court is not bound by the evidence of
the experts. (See The State (Delhi Adminstration) v. Pali Ram,
(1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC
280; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65;
Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors.
(supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee &
Ors., (2010) 2 SCC (Cri) 299).
33. Like all other opinion evidence, the probative value accorded to
DNA evidence also varies from case to case, depending on facts and
circumstances and the weight accorded to other evidence on record,
whether contrary or corroborative. This is all the more important to
remember, given that even though the accuracy of DNA evidence
may be increasing with the advancement of science and technology
with every passing day, thereby making it more and more reliable,
we have not yet reached a juncture where it may be said to be
infallible. Thus, it cannot be said that the absence of DNA evidence
would lead to an adverse inference against a party, especially in the
39
presence of other cogent and reliable evidence on record in favour of
such party.
34. This leads us to the question of the propriety of relying upon
the superimposition test conducted in the instant case for
identifying the deceased. As noted supra, the learned counsel for
the appellants has argued that evidence pertaining to the use of the
superimposition technique is not a tangible piece of evidence. We
find ourselves unable to agree with this view. There cannot be any
dispute that evidence on superimposition is also based on experts’
opinion. We would like to note that the use of the superimposition
technique in Indian investigations for identification purposes is not
a new phenomenon. Notably, it has been employed in the
investigations pertaining to the Nithari murders, the Russian
murder incident in Goa in 2008, and even before that in the Morni
Hill murder case and the Paharganj bomb blast case as far back as
in 1996, and the Udhampur murder case in 2005 (See Modi, A
Textbook of Medical Jurisprudence and Toxicology, 26th edn., 2018,
pp. 267271). This Court itself has placed reliance on identification
of the deceased through superimposition on several occasions (see
40
Shankar & Ors. v. State of Tamil Nadu, (1994) 4 SCC 478;
Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC
288; Inspector of Police, Tamil Nadu v. John David, (2011) 5
SCC 509; Mahesh Dhanaji Shinde v. State of Maharashtra,
(2014) 4 SCC 292), clearly indicating that it is an acceptable piece
of opinion evidence.
35. It is relevant to note that all of the decisions of this Court cited
in the above paragraph were based on circumstantial evidence,
involving aspects such as the last seen circumstance, motive,
recovery of personal belongings of the deceased, and so on, and
therefore in none of the cases was the superimposition technique
the sole incriminating factor relied upon to reach a conclusion of
guilt of the accused. Indeed, in Mahesh Dhanaji Shinde (supra),
the Court also had the advantage of referring to a DNA test, and in
John David (supra), of referring to a DNA test as well as dental
examination of the deceased, to determine the identity of the victim.
This is in line with the settled practice of the Courts, which
generally do not rely upon opinion evidence as the sole
incriminating circumstance, given its fallibility. This is particularly
41
true for the superimposition technique, which cannot be regarded
as infallible.
36. In view of the above discussion, we hold that the High Court
was justified in observing that a superimposition test cannot be
taken as a conclusive one for the identification of a dead body,
because by itself it may not conclusively establish identification.
However, the High Court rightly accepted the expert testimony on
this aspect since in the instant case, the superimposition test was
merely one piece of evidence relied upon by the prosecution to
corroborate the evidence of PWs 1 and 2 in order to strengthen its
case.
37. Moreover, it is evident from the testimony of PW34, Dr.
Jayaprakash, who conducted the superimposition test, that the test
was conducted by using three different methods, i.e. video
superimposition, visual observation, and dental trait
superimposition, and in spite of challenges to the reliability of such
evidence, the Courts, after carefully assessing the methodology
adopted, accepted the finding reached by PW34 regarding the
42
identification of the body, and we see no error in such conclusion
reached by the Courts.
38. Therefore, we are of the opinion that the scientific evidence of
PW34 was rightly believed by the Trial Court as well as by the High
Court, and strengthens the evidence of PWs 1 and 2 regarding the
identification of the body. Though a DNA test would have helped the
Courts immensely in determining the reliability of the identification
of the body of the deceased, in the presence of other reliable
evidence on record in favour of the prosecution version on this
aspect, we reject the contention that the nonconducting of a DNA
test and the reliance on evidence regarding identification through
superimposition is improper. This is all the more true since no
material is forthcoming to the effect that the parents of the
deceased were alive during the relevant period, so as to conduct
comparative DNA tests.
39. It is noteworthy to emphasise that based on the confession of
Accused No.6, recoveries of a wallet containing a photograph of
PW1, gold chain etc. were effected from his house, which, as
43
mentioned supra, also stand positively identified by PW1 and her
family as belonging to the deceased.
40. From the evidence of the witnesses discussed supra, it is amply
clear that the dead body recovered from TigerChola was identified
by PW1 and her family members as Santhakumar’s, and the same
body was exhumed from the burial grounds. It is evident from the
depositions that the recovery of the dead body was made from the
TigerChola forest area, which is the same place to which Accused
No. 2 led the investigation team based on his confession about
disposal of the dead body. It is relevant to note at this juncture that
merely because the actual recovery of the body happened before the
accused lead the police to the scene, it does not, in the facts and
circumstances of this case, negate the validity of the recovery based
on a confession, in terms of Section 27 of the Evidence Act.
In our considered view, the recovery of the body of the
deceased at the instance of Accused No. 2 and the identification of
the body as that of Santhakumar by PW1, her family as well as by
the accused, on the basis of photographs, the clothes and
44
belongings of the deceased, and his scar, stand proved beyond all
reasonable doubt.
41. As mentioned supra, the evidence of PWs 1 and 2 proves the
circumstance relating to the last seen evidence beyond reasonable
doubt, apart from other circumstances. Both of them in their
evidence (especially PW1), as mentioned supra, have consistently
and cogently deposed that the deceased was last seen along with
the accused, who took the deceased away upon the orders of
Accused No. 1. No explanation, much less any plausible
explanation has come from the accused in their statements under
Section 313 of the Cr.P.C rebutting the strong evidence against
them. Though the burden had shifted onto the accused to explain
the said circumstance as to when they left the company of the
deceased, no explanation was adduced in that regard by the
accused herein. Hence, an adverse inference has to be drawn
against the accused. It may be noted that such nonexplanation by
the accused provides an additional link in the chain of
circumstances.
45
Furthermore, although it was argued by Shri Sushil Kumar
that the evidence relating to the last seen circumstance as deposed
by PW1 was not put to the accused while recording their statement
under Section 313, such an argument cannot be accepted, since
Question No. 22 and Question No. 30 specifically relate to the
evidence of the last seen circumstance, and were put to Accused
No.1. Same is the case with the other appellants. A perusal of the
statements of the accused recorded under Section 313 also reveals
that the relevant questions pertaining to taking Santhakumar along
with PW1 in the car on 26.10.2001, detection of the decomposed
dead body and the postmortem thereof were all put to the accused
so as to fully enable them to explain all the incriminating
circumstances appearing against them in the evidence adduced by
the prosecution. It is needless to observe that it has been
established through a catena of judgments of this Court that the
doctrine of last seen, if proved, shifts the burden of proof onto the
accused, placing on him the onus to explain how the incident
occurred and what happened to the victim who was last seen with
him. Failure on part of the accused to furnish any explanation in
this regard, as in the case in hand, or furnishing false explanation
46
would give rise to a strong presumption against him, and in favour
of his guilt, and would provide an additional link in the chain of
circumstances. (See Rohtash Kumar v. State of Haryana, (2013)
14 SCC 434; Trimukh Maroti Kirkan v. State of Maharashtra,
(2006) 10 SCC 681).
42. It is also relevant to note that the bill book and cash book of a
petrol pump at Palani (Ext. P32), where the Tata Sumo bearing
Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also
seized. This is very crucial evidence to show that the Tata Sumo in
which the accused were travelling along with the deceased had in
fact gone towards Kodaikanal, as is evident from the fact that fuel
was filled from a petrol pump enroute to Kodaikanal at Palani on
the relevant date.
43. In our considered opinion, the overwhelming, consistent,
cogent and reliable testimonies of PWs 1 and 2, along with the
aforementioned corroborative evidence, conclusively prove the
prosecution case. We reiterate that PWs 1 and 2 were steadfast in
their testimony about the motive, the last seen circumstance,
recovery of the dead body based on the confession of Accused No.2,
47
and about the identification of the dead body. We do not find any
embellishment or exaggeration in the evidence of these witnesses.
Moreover, the evidence of the other prosecution witnesses
(especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous,
consistent and reliable, and corroborates the testimony of PWs 1
and 2, which leads us to conclude that the chain of circumstances
is complete and points solely at the guilt of the accused. In our
considered opinion, the prosecution has proved the complicity of all
the appellants in murdering Santhakumar by strangulating him
and thereafter throwing the dead body at TigerChola. It is worth
recalling that while it is necessary that proof beyond reasonable
doubt should be adduced in all criminal cases, it is not necessary
that such proof should be perfect, and someone who is guilty
cannot get away with impunity only because the truth may develop
some infirmity when projected through human processes. The
traditional dogmatic hypertechnical approach has to be replaced by
a rational, realistic and genuine approach for administering justice
in a criminal trial. Justice cannot be made sterile by exaggerated
adherence to the rule of proof, inasmuch as the benefit of doubt
48
must always be reasonable and not fanciful. (See Inder Singh v.
State (Delhi Administration), (1978) 4 SCC 161; State of H.P. v.
Lekh Raj & Anr., (2000) 1 SCC 247; Takhaji Hiraji v. Thakore
Kubersing Chamansing & Ors., (2001) 6 SCC 145; Chaman &
Anr. v. State of Uttarakhand, (2016) 12 SCC 76).
44. Having regard to the entire material on record and the totality
of the facts and circumstances, we find that the evidence on record
fully proves the case of the prosecution and that the Trial Court as
well as the High Court evaluated the material on record in its
proper prospective while coming to their conclusion. Thus, the
judgment of the Trial Court as modified by the High Court need not
be interfered with. Hence these appeals fail and stand dismissed.
...........................................J.
(N.V. Ramana)
............................................J.
(Mohan M. Shantanagoudar)
……………………………………..J.
(Indira Banerjee)
New Delhi;
March 29, 2019.
49
