John Anthonisamy @ John vs State Rep. By The Inspector Of Police

John Anthonisamy @ John …Appellant(s) Versus State, Rep. by the Inspector of Police …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned final

judgment and order dated 22.07.2016 passed by the High

Court of Judicature at Madras in Criminal Appeal No.

171/2015, by which, the High Court has dismissed the

said appeal preferred by the appellant herein – original

accused No. 1 and has confirmed the conviction and

sentence imposed by the learned Trial Court for the

Signature Not Verified offences punishable under Section 302 read with Section Digitally signed by Neetu Sachdeva Date: 2023.01.19 16:40:12 IST Reason: 201 of the IPC, the original accused No. 1 has preferred the

present appeal.

1

2. The prosecution case is elaborately stated by the High

Court in the impugned judgment in paragraph 2. As per

the case of the prosecution, the deceased was employed as

a driver by PW-1 to drive a taxi owned by him. On

26.06.2006 at about 06.30 a.m., the deceased left his

house after informing his wife. That thereafter, he did not

return.

2.1 That A-1 was also driving a taxi for some time and in such

a way he knew the deceased. It was alleged that all the

accused persons on 23.05.2006 hatched a conspiracy to

engage the car driven by the deceased and after taking him

to a far-off isolated place, kill him and then to steal the car

and other personal belongings owned by the deceased. As

per the prosecution case, in pursuance of the said

conspiracy, on 26.05.2006, A-2 to A-5 met A-1 at Pollachi

Thermutti Bus Stop. Then, A-1 spoke to the deceased and

fixed him for going to Udumalpet in the taxi driven by the

deceased. Accordingly, the deceased came in the taxi to

Thermutti Bus Stop. Then, all the five accused got into the

taxi. The taxi proceeded towards Udumalpet. When it was

2 nearing the village known as Ammapatti at an isolated

place, the accused wanted the deceased to stop the car for

a while. The deceased stopped the car, as soon as the car

came to a halt suddenly A-2 came to strangulate the

deceased by neck. A-3 and A-4 tied the hands of the

deceased and A-5 tied the legs of the deceased with ropes.

Then, they put the deceased in between the front and back

seats of the car. A-3 to A-5 sat on the back seat of the car

and ensured that the deceased was not crying. The car

was driven by A-1. The deceased died. All the five accused

put the dead body of the deceased into the pit and buried

the same. Thereafter, all the five accused ran away from

the scene of occurrence with the car.

2.2 PW-1 tried to contact the deceased on 26.06.2006 over

phone, but his phone was found to be switched off mode

and PW-1 went to the house of deceased and met PW-3

and PW-3 informed him that after 26.06.2006 at about

6.30 am deceased was not seen. After the search the

deceased was not found and therefore, PW-1 made a

complaint to the Police on 30.06.2006. PW-11, the then

3 Sub-Inspector of Police registered a case as Crime No.

363/2006 under Section 406 of IPC. That thereafter, an

FIR was assigned to the jurisdictional court. That

thereafter, PW-11 started investigation. He recorded the

statement of the relevant witnesses. However, thereafter,

PW-11 closed the case on 04.02.2007 as undetected. The

learned Magistrate accepted the closure report. However,

thereafter on the basis of a letter alleged to have been

written by A-1 addressed to PW-22 which was received by

him on 29.12.2007, by which A-1 had alleged to have

confessed that he along with other accused engaged the

taxi in question, took the driver (deceased), killed him and

buried the dead body and took away the taxi. According to

the confessional statement recorded in the said letter some

parts of the car were taken by A-2 to A-5. PW-22 went to

the Police Station along with the said letter on 30.12.2007

and handed over the letter to PW-30. On the basis of the

same, the investigation begun. On the basis of the

statement of A-1, the place where the car was hidden and

the dead body was buried came to be recovered. Thus, the

dead body was recovered at the instance of A-1. PW-30

4 altered the case into one under Sections 302 and 396 of

IPC. PW-30 arrested A-1. During the investigation, on

disclosure statement of A-1, PW-30 recovered the car

without engine and the gear box from PW-16 as identified

by A-1. On the disclosure statement of A-1, the car engine

and the gear box were also recovered. As observed

hereinabove, the dead body was exhumed from the place

identified by A-1. Post-mortem of the deceased was

conducted. Several injuries were found. On completion of

the investigation, PW-30 filed the chargesheet against all

the accused. The case was committed to the Sessions

Court. The accused pleaded not guilty and therefore, all of

them came to be tried for the offence under Section 302

and other offence of IPC.

2.3 The prosecution examined a number of witnesses. PW-16

can be said to be the star witness from whom the car

driven by the deceased was seized by the Police on the

disclosure statement made by A-1. After conclusion of the

prosecution evidence, further statements of the accused

under Section 313 CrPC were recorded. The accused

5 denied the allegations against them. The accused

examined DW-1 in their defence. On appreciation of

evidence the learned Trial Court convicted A-1 – appellant

herein. The judgment and order of conviction and sentence

passed by the learned Trial Court has been confirmed by

the High Court by the impugned judgment and order.

Hence, the present appeal at the instance of the appellant

– original accused No. 1.

3. Ms. N.S. Nappinai, learned counsel has appeared on behalf

of the appellant – accused and Dr. Joseph Aristotle S.,

learned counsel has appeared on behalf of the State.

4. Learned counsel appearing on behalf of the accused has

vehemently submitted that in the present case the

prosecution case is based solely on the circumstantial

evidence. It is submitted that it is settled law that before

convicting an accused each link in the chain ought to be

established such that it leads to the irresistible conclusion

of guilt of the accused.

6 4.1 It is submitted that in the present case, the prosecution

has not established that the death of the deceased was

homicidal. It is submitted that as such the doctor who

performed the post-mortem was not able to give any

definite opinion as to the cause of the death.

4.2 It is submitted that in the present case both, learned Trial

Court as well as the High Court has convicted the accused

based on the confessional statement/extra judicial

confession. It is submitted that as per the settled

proposition of law extra judicial confession is weak

evidence. It is submitted that recovery pursuant to the

confession of accused does not establish anything beyond

possession of stolen goods and it does not implicate

accused of committing murder.

4.3 It is submitted by the learned counsel appearing on behalf

of the accused that in the present case the recovery of the

dead body from the place shown by A-1 and that recovery

of car without engine and gear box from the place

identified by A-1 and thereafter, recovery of gear box of the

car from PW-16 cannot be believed as the same was on the

7 basis of the confessional statement/disclosure statement.

It is submitted that therefore, the circumstances set out by

the High Court do not support the prosecution case.

4.4 It is further submitted that so far as the recovery of the

dead body from the place identified by A-1 is concerned, it

is submitted that as such on 31.12.2007, after the arrest,

A-2 gave a voluntary confessional statement before Police

in which he disclosed the place of burial. It is submitted

that the place of burial was disclosed by A-2. It is

submitted that therefore the place of burial of the dead

body was within the prior knowledge of Police.

4.5 It is further submitted that when PW-22 received the extra

judicial confession letter on 29.12.2007, which he handed

over to the Police on 30.12.2007 in that letter place of

burial of the dead body was mentioned. It is submitted

that the place of burial was disclosed on 29.12.2007 itself.

It is submitted that the Police arrested A-1 at the instance

of PW-22 on 30.12.2007. It is submitted that as such the

alleged extra judicial confession letter addressed to PW-22

received on 29.12.2007 is not believable at all and as such

8 the Courts below has not believed the same. It is

submitted that the said letter has been rejected by the

High Court. It is submitted that therefore, the entire

investigation can be said to be tainted and cannot be relied

upon.

4.6 It is vehemently submitted that the place of burial was not

discovered from A-1’s confessional statement but it was

discovered already from A-2’s confession and extra judicial

confession. It is submitted that therefore, the appellant –

accused could not have been convicted on the basis of

recovery of the dead body on the alleged disclosure made

by the A-1.

4.7 Now so far as the recovery of the car without engine and

gear box recovered from the place identified by A-1 is

concerned, it is submitted that for the aforesaid the High

Court has relied upon PW-16 evidence. It is submitted that

however, the learned Trial Court rejected the PW-16

evidence and suspected the recovery of M.O.1, M.O.2 and

M.O.3 i.e., the car, engine, and gear box, respectively. It is

submitted that while accepting PW-16 evidence, the High

9 Court has failed to consider and/or discuss the evidence

recorded by the learned Trial Court.

4.8 Now so far as the recovery of engine and gear box of the

car recovered from PW-17 is concerned, it is submitted

that all the witnesses in connection with the recovery of

stolen objects like PW-17 and PW-23 did not support the

recovery of car – M.O.1. It is submitted that therefore, the

alleged recovery of gear box, engine and car speakers

stated to have been recovered in pursuance of alleged

confession are not acceptable.

4.9 It is submitted that therefore when the prosecution case

rests only on the above circumstantial evidence, each of

which is demonstrably untrustworthy and inadequate to

sustain the serious charges against the accused, the

prosecution is required to establish the guilt of the

accused beyond reasonable doubt and/or to substantiate

each link to sustain the conviction, which the prosecution

has failed.

10 4.10 It is further submitted by the learned counsel appearing

on behalf of the accused – appellant that A-1 has already

undergone 15 years in prison for a crime which he did not

commit and therefore, it is prayed to allow the present

appeal and acquit the accused.

5. Learned counsel appearing on behalf of the State while

opposing the present appeal has vehemently submitted

that in the present case, the dead body was exhumed from

the place shown and identified by A-1. It is submitted that

the place of burial shown by A-1 and the identification of

the body by him has been duly proved by the prosecution.

The evidence of anthropology of expert is accepted. It is

submitted that even the stolen car was also recovered on

the basis of disclosure statement made by A-1. It is

submitted that engine and gear box were found to be in

custody of PW-17 on the basis of disclosure statement

made by A-1. It is submitted that PW-17 has deposed that

some parts were sold by A-1. It is submitted that aforesaid

crucial circumstances have not at all been explained by the

accused in his further statement under Section 313 CrPC.

11 It is submitted that deposition of DW-1 has been rejected

by the Court(s). It is submitted that therefore, no error has

been committed by the Courts below in convicting the

accused for the offence punishable under Section 302 and

other offence of IPC.

5.1 Making the above submissions, it is prayed to dismiss the

present appeal.

6. We have heard learned counsel appearing on behalf of

accused as well as the State. We have gone through the

findings recorded by the learned Trial Court as well as the

High Court while holding the appellant – accused No. 1

guilty for the offence punishable under Sections 302 and

201 of IPC.

6.1 It is the case on behalf of the appellant – accused No. 1

that he has been convicted on the confessional statement

and therefore, in case of circumstantial evidence and

unless and until the complete chain of events were proved

and established, he could not have been convicted on

confessional statement.

12 However, from the judgment(s) and order(s) passed by the

learned Trial Court as well as the High Court, it cannot be

said that the appellant has been convicted on the basis of

confessional statement. In the present case, there is no

confession by the accused that he committed the offence,

which has been relied upon by the Court. It is required to

be noted that the so-called communication by the accused

No. 1 addressed to PW-22 is as such not believed by the

High Court being secondary evidence and the same has

not been proved. Therefore, as such the High Court has

not given much weightage so far as the

letter/communication is concerned. Therefore, it cannot be

said that the appellant – accused No. 1 has been convicted

on the confessional statement made in the

letter/communication.

6.2 However, at the same time, it can be seen that the

communication/letter received by Police on 30.12.2007

was the cause for reopening of the case, as earlier the case

was closed on 04.02.2007 as untraceable. That thereafter,

the actual investigation began by PW-30. That thereafter,

13 during investigation A-1 disclosed the place where he had

buried the dead body of the deceased. The dead body was

exhumed from the place identified by A-1. Thus, it was a

case of recovery of the dead body at the instance of the

accused from the place which was disclosed by the

accused who can be said to be in exclusive knowledge of

the place where the dead body was buried. That thereafter,

the super imposition test was conducted and the DNA

examination was conducted on the bones and the skull

and it was proved that the dead body was that of the

deceased. This is the first strong circumstance against the

appellant – A-1 which has led to his conviction.

6.3 That thereafter, even the car which was driven by the

deceased at the relevant time was recovered from PW-16

which was at the instance of the accused himself. That

there is a recovery of car driven by the deceased from the

place and the person disclosed by the accused No. 1 –

appellant. The prosecution has successfully proved the

same by examining PW-16, a person to whom the stolen

car was sold by the appellant – accused No. 1. This is the

14 second strong circumstance against the appellant –

accused No. 1.

6.4 That thereafter, the prosecution has been successful in

proving that the engine and gear box which were sold by

the appellant – accused No. 1 was recovered from PW-17.

The engine and gear box of the stolen car were found from

the custody of PW-17 on the disclosure statement made by

A-1. Though, PW-17 has turned hostile, however, at the

same time, the recovery of engine and gear box from PW-

17 which were recovered on the disclosure statement made

by A-1 has been established and proved by the prosecution

by examining Police witness – PW-30, we see no reason to

disbelieve PW-30 on the aforesaid. This is another

circumstance against the appellant – accused No. 1. Thus

on the basis of the aforesaid strong circumstances when

the learned Trial Court as well as the High Court has

convicted the accused – appellant for the offences under

Sections 302 and 201 of IPC, we see no reason to interfere

with the same in exercise of powers under Article 136 of

the Constitution of India.

15 6.5 Now so far as the submissions made on behalf of the

appellant that the prosecution has failed to prove that the

death of deceased was the homicidal as in the post-

mortem report the cause of death was unascertainable is

concerned, it is required to be noted that as the dead body

was buried and was found after numbers of months, it

may not be possible for the prosecution to prove that the

death was a homicidal death. However, at the same time

and as rightly observed by the High Court, by other

circumstances the prosecution has established and proved

that the deceased was killed after his car was stolen/taken

away by the appellant – accused No. 1.

7. Considering the aforesaid facts and circumstances, we are

more than satisfied that the High Court has not committed

any error in dismissing the appeal and confirming the

judgment and order of conviction and sentence imposed by

the learned Trial Court convicting the appellant – accused

No. 1 for the offences punishable under Sections 302 and

201 of IPC.

16 7.1 In view of the above and for the reasons stated above, no

interference of this Court is called for. The appeal deserves

to be dismissed and is accordingly dismissed.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. JANUARY 19, 2023 [C.T. RAVIKUMAR]

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