S. Kaleeswaran vs State By The Inspector Of Police

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 160 OF 2017

S. KALEESWARAN …APPELLANT(S)

VERSUS

STATE BY THE INSPECTOR OF POLICE POLLACHI TOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU …RESPONDENT(S)

WITH CRIMINAL APPEAL NO. 410 of 2017

JOHN ANTHONISAMY @ JOHN …APPELLANT(S)

VERSUS

STATE, REP. BY THE INSPECTOR OF POLICE POLLACHI TOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU …RESPONDENT(S)

J U D G M E N T

BELA M. TRIVEDI, J.

1. Both the Criminal Appeal Nos. 160 of 2017 and 410 of 2017 are arising Signature Not Verified Digitally signed by BABITA PANDEY out of the common judgment and order dated. 22nd July 2016 passed by the Date: 2022.11.03 15:21:11 IST Reason:

High Court of Judicature at Madras in Criminal Appeal Nos. 436/2014,

1 482/2014, 490/2014, 175/2015 and 176/2015, whereby the High Court

while dismissing the said appeals has confirmed the judgment and order

dated 22nd July, 2014 passed by the Sessions Judge, Coimbatore

(hereinafter referred to as the “Trial Court”) in Sessions Case No.

187/2008. The Trial Court had convicted the present appellants i.e., S.

Kaleeswaran (Original Accused No. 5), John Anthonisamy @ John

(Original Accused No.1) along with the other three Accused i.e., Rajesh

Kumar @ Rajesh (Original Accused No. 4), R. Ganeshkumar @ Ganesh

(Original Accused No.3) and Muthumanickam @ Muthu (Original

Accused No. 2) for the offence under Section 120(B), 147, 364 and 302

read with 120(B)/149, 201 and 396 I.P.C., and sentenced them as detailed

below:

S. No. Accused Section of Law Sentence

1. A.1 to A.5 120(B) I.P.C. Rigorous imprisonment for six

months each.

2. A.1 to A.5 147 I.P.C. Rigorous imprisonment for two

years each.

3. A.1 to A.5 364 I.P.C. Rigorous imprisonment for ten

years and to pay fine of Rs.

2,000/- each in default to

2 undergo simple imprisonment

for six months.

4. A.1 to A.5 302 I.P.C. Imprisonment for life and to pay

a fine of Rs. 2,000/- each in

default to undergo simple

imprisonment for six months.

5. A.1 to A.5 302 r/w Imprisonment for life and to pay

120(B)/149 I.P.C. fine of Rs. 2,000/- each in

default to undergo simple

imprisonment for six months.

6. A.1 to A.5 201 I.P.C. Rigorous imprisonment for

seven years each.

7. A.1 to A.5 396 I.P.C. Imprisonment for life and to pay

fine of Rs. 2,000/- each in

default to undergo simple

imprisonment for six months.

The aggrieved appellant (Accused No.1) John Anthonisamy @ John has

preferred Criminal Appeal No. 410 of 2017 and appellant (Accused No. 5)

S. Kaleeswaran has preferred Criminal Appeal No. 160 of 2017

3 challenging the impugned judgement passed by High Court. The other

three accused have chosen not to file any appeal.

2. As per the case of the prosecution, accused no.1 John Anthonisamy was a

taxi driver, accused no. 2 Muthumanickam was a friend of accused no.1,

and accused no. 3, 4 and 5 were the friends of the accused no.2. On

18.07.2007 at about 7 A.M., the accused no.1 conspired with the accused

no.2 and planned to commit dacoity of an Ambassador Car bearing

registration No. TN-41-P-4980 and to cause the murder of John Thomas,

the driver of the said car. In furtherance of the said plan, the accused made

the said John Thomas to come to the Fire service car stand at Pollachi.

When John Thomas arrived in the Ambassador Car at the said place,

accused no.1 made the accused no.4 Rajesh to hire the said Ambassador

Car for two hours and requested John Thomas to come by 12:30 P.M. John

Thomas accordingly arrived at the place as requested by the accused no.1

i.e., at Sakthi Hotel, Pollachi, with his Ambassador Car. The accused no.1

thereafter got into the car and proceeded towards Udumalpet. On

18.07.2007 at about 01:30 P.M., the accused no. 1 and the driver John

Thomas arrived at the Udumalpet bus stand, where the accused no. 2 was

waiting along with accused no. 3 to 5. All the accused thereafter got into

the said Ambassador Car and proceeded towards Ammapatty and at about

02:45 P.M., all the five accused made the driver John Thomas stop the car

near an isolated place on the road between Vadaboothanam and Ammapatti

4 Road. All the accused in furtherance of the conspiracy hatched by them

murdered the taxi driver John Thomas. The accused thereafter, with the

intention of causing the disappearance of the evidence, buried the dead

body of John Thomas in a pit. The Ambassador Car thereafter was sold out

by them to one Rajendran of Thiruvarur and they shared the sale proceeds

of the car. After John Thomas was missing for a week, a complaint was

reported by the PW-1 wife of John Thomas on 25.07.2007, which was

registered at Pollachi (East) Police Station for missing person.

3. The investigating officer after completing the investigation had laid the

charge-sheet against all the five accused. All five accused were charged by

the trial court for the offences under sections 120(B), 147, 364, 201, 396

I.P.C. Accused no. 3, 4 and 5 were additionally charged for the offence

under Section 302 I.P.C. and Accused no. 1 and 2 were charged for the

offence under Section 302 r/w 120(B)/149 I.P.C.

4. All the accused having abjured their guilt and claimed to be tried, the

prosecution examined as many as 28 witnesses and adduced 43 documents

to prove their guilt. In their further statements recorded under Section 313

Cr.PC, they denied the allegations levelled against them and stated that

they were falsely implicated in the case.

5. The learned counsel appearing for the appellants submitted that the entire

case of prosecution rested on circumstantial evidence and the prosecution

had miserably failed to prove the chain of circumstances beyond

5 reasonable doubt leading to an irresistible conclusion of the guilt of the

accused. According to them, the High Court had rightly not relied upon

the extra judicial confession allegedly made by the accused no. 1, the same

having not been duly proved by the prosecution, and if the said piece of

evidence is discarded, the credibility of other evidence more particularly

of the witnesses PW-6 and PW-7 examined by the prosecution becomes

doubtful. The identity of the dead-body of the deceased was also not duly

proved. The alleged recoveries from an accused nos. 2 to 5 were made

from the public place which had no link to connect them with the crime.

The learned counsel for the appellants further submitted that the last seen

theory propounded by the prosecution also could not have been relied upon

in view of the fact that the statements of PW-6 and PW-7, who had

allegedly seen the deceased with the accused no.1, were recorded about six

months after the alleged incident of the deceased having gone missing.

However, the Learned Advocate Dr. Joseph Aristotle S. appearing for the

respondent-State vehemently submitted that the concurrent findings of

facts as recorded by the High Court and Sessions Court, after fully

appreciating the evidence adduced by the prosecution, this Court may not

upset the same. According to him, though the High Court had not relied

upon the extra judicial confession made by the accused no.1, there was

sufficient evidence to connect all the accused with the alleged crime. The

identification of the dead-body of the deceased, the incriminating

6 recoveries and discoveries of the articles made at the instance of the

accused having been duly proved, the entire chain of circumstances duly

proved, had led to the irresistible conclusion about the guilt of all the

accused.

6. At the outset, it may be stated that the entire case of prosecution rested on

the circumstantial evidence. The law with regard to the appreciation of

evidence when the case of the prosecution hinges on circumstantial

evidence is very well-settled. The five golden principles laid down by this

Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra1

and followed in a catena of decisions, are worth reproducing:

“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:

a. 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 & Anr. v. State of Maharashtra 2 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."

1 (1984) 4 SCC 116.

2 (1973) 2 SCC 793.

7 b. 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,

c. the circumstances should be of a conclusive nature and tendency,

d. they should exclude every possible hypothesis except the one to be proved, and,

e. 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 probability the act must have been done by the accused.”

7. Keeping in mind the above set of principles, let us examine whether the

prosecution had proved beyond reasonable doubt, the entire chain of

circumstances, not leaving any link missing for the accused to escape from

the clutches of law.

8. Heavy reliance was placed by the prosecution on the extra judicial

confession made by the accused no.1 through an Inland letter addressed to

P.W.-19 Karthikeyan, former employer of the accused no. 1 who had

received the same on 29.12.2007. It appears that the said alleged extra

judicial confession of the accused no. 1 was the trigger point which

directed the Investigating Officer to proceed further with the investigation

after about five months of the alleged incident, which had taken place on

18.07.2007. Apart from the fact that the extra judicial confession is a very

8 weak piece of evidence, the High Court in the impugned judgment had

refused to rely upon the same on the ground that neither the handwriting

expert was examined nor any opinion of handwriting expert was proved

by the prosecution. It cannot be gainsaid that when the extra judicial

confession is not duly proved, or does not inspire confidence or is not

corroborated by any other reliable evidence, the conviction could not be

based solely on such weak piece of evidence. In the instant case, the

prosecution having not examined the handwriting expert for proving the

handwritings of the accused no.1 contained in the Inland letter allegedly

addressed to the PW-19, nor any expert’s opinion having been obtained, in

our opinion, the High Court had rightly discarded the said piece of

evidence with regard to the alleged extra judicial confession made by the

accused no.1.

9. The next circumstance on which the prosecution had placed heavy reliance

was with regard to the theory of “last seen together”, relying upon the

evidence of PW-6 and PW-7. It is noteworthy that both the witnesses were

the taxi drivers and were operating the taxis from the same taxi stand from

where the deceased was operating his taxi, however their statements were

recorded by the investigation officer almost six months after the alleged

incident. The PW-6 had deposed before the Trial Court inter-alia that on

18.07.2007, he was standing near Durai Cinema Theatre at Pollachi to

meet his friend and at about 12:45 pm the accused no.1 was seen standing

9 near the Sakthi Hotel, which was situated near the place where he (PW-6)

was standing. He further stated that within a short time, John Thomas (the

deceased) came to the said place driving his taxi bearing registration no.

TN-41-P-4980. He (PW-6) noticed that the accused no.1 was talking to

the deceased for a while, and thereafter the accused no.1 got into the front

seat of the car and then both went away in the car. According to this witness

he did not see the deceased John Thomas thereafter. The PW-7 was also a

taxi driver. He stated in his deposition before the Court that on 18.07.2007

when he was returning from Palani via Udumalpet bus stand, he saw the

taxi driven by John Thomas. He therefore slowed down his taxi and saw

that he (John Thomas) was at the driver’s seat, and the accused no.1 whom

he knew was in the front seat. According to him, he also saw four other

persons siting in the car but he did not know them at that time.

10. Having regard to the evidence of PW-6 and PW-7, it appears that apart

from the fact that their statements were recorded by the Investigating

Officer after six months of the alleged incident, their evidence before the

Court does not inspire confidence. The PW-6 in the cross-examination had

admitted that he had come to know about the deceased having gone

missing within one week of his having seen the deceased with the accused

no. 1. It is difficult to appreciate his behaviour not to disclose this crucial

information for six months either to his fellow taxi drivers or to the police

about he having seen the deceased lastly in the company of the accused

10 no.1. So far as PW 7 is concerned, he had deposed that he got to know

about the deceased having gone missing only when Police came for

enquiry on 01.01.2008. In our opinion, when the Investigating Officer was

time and again coming to the taxi stand where all the taxi drivers including

the PW-6 and PW-7 used to stand, for inquiring about the deceased’s

whereabouts, and when wide publicity was made in the local newspapers,

television and radio about the deceased having gone missing, it is not

believable that the PW-7 came to know about the deceased having gone

missing only when the police came to him to make inquiry six months after

the incident in question. PW-7 had also admitted that he did not know the

other four accused who were accompanied the accused no.1 and the

deceased on the alleged date of incident. When there was huge time gap of

about more than six months between the date of the incident and the date

of recording of statements of witnesses by the Investigating Officer, the

Test Identification Parade would have assisted the police in identifying the

accused seen by the PW-7, however no such TI Parade was held by the

Investigating Officer. Therefore, identification of the accused nos. 2 to 5

at the instance of these witnesses also becomes very doubtful.

11. It is well settled that if there is considerable time gap between the persons

seeing together and the proximate time of the crime, the circumstances of

11 last seen together, even if proved cannot clinchingly fasten the guilt of the

accused. (State of Goa vs. Sanjay Thakran3).

12. The failure of the accused, in a case based on circumstantial evidence

which included “last seen together theory”, to explain under Section 313

Cr.PC as to under what circumstances the victim suffered death, would

also not be a ground to arrive at an irresistible conclusion that the accused

were involved in the commission of the alleged crime. In the instant case,

even if the theory of “last seen together” propounded by the prosecution is

accepted, then also it is difficult to draw an irresistible conclusion that the

accused are guilty of the alleged offences, merely because they failed to

explain as to under what circumstances the victim suffered death.

13. The next circumstance relied upon by the prosecution is identification of

the body. It may be noted that the corpus when found, was in a highly-

decomposed condition. Skeletal remains were found after almost 5 months

from the date of the incident of the deceased having gone missing. The

identification, therefore, was done by getting the skull super-imposition

test done through the PW-16, forensic expert. In Pattu Rajan v. State of

Tamil Nadu4, this Court has explained that though identification of the

deceased through superimposition is an acceptable piece of opinion

evidence, however the courts generally do not rely upon opinion evidence

3 (2007) 3 SCC 755 4 (2019) 2 SCC (Cri) 354.

12 as the sole incriminating circumstances, given its fallibility, and the

superimposition technique cannot be regarded as infallible. In the present

case, since the super-imposition report was not supported by any other

reliable medical evidence like a DNA report or post-mortem report, it

would be very risky to convict the accused believing the identification of

the dead body of the victim through the super-imposition test. It is true that

in the case based on circumstantial evidence, if the entire chain is duly

proved by cogent evidence, the conviction could be recorded even if the

corpus is not found, but when as per the case of prosecution, the dead body

of the victim was discovered from the place shown by the accused, it is

imperative on the part of the prosecution to prove that the dead body or the

skeleton found at the instance of the accused was that of the victim and of

none else.

14. The Court also finds substance in the submission made by the learned

counsel for the appellants that the prosecution had also failed to prove the

motive of the accused for committing the alleged crime. As held in Nandu

Singh v. State of M.P.5, though in a case of direct evidence, motive would

not be relevant, in a case of circumstantial evidence, motive plays an

important link to complete the chain of circumstances. In the instant case,

the PW-8 Mr .Rajendran to whom the Ambassador car of the deceased was

5 Cri. App. No. 285 of 2022 (Feb 25, 2022).

13 allegedly sold by the accused, had turned hostile and not supported the case

of the prosecution that the money was received by the accused by selling

the car to the PW-8.

15. Thus, having regard to the totality of evidence adduced by the prosecution,

in our opinion, the circumstances relied upon by the prosecution did not

complete the chain to dispel the hypothesis of innocence of the appellants-

accused. The prosecution having failed to establish through clinching,

clear, cogent and consistent evidence, the chain of events, on the basis of

which the guilt of the appellants-accused could be established, in our

opinion, the Courts below had committed an error in accepting the case of

prosecution and convicting them for the alleged crime.

16. In that view of the matter, the judgements and orders of conviction and

sentence passed by the Trial Court and confirmed by the High Court are

set aside. Both the appellants-accused, and the other three accused who

have not filed any appeal, are directed to be set free forthwith, if not

required in any other case.

17. The appeals stand allowed accordingly.

……….…………………CJI.

[UDAY UMESH LALIT]

NEW DELHI …………………………..J. 03.11.2022 [BELA M. TRIVEDI]

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