Case: Krishnan & Ramasamy  Vs. State Of Tamilnadu

Sudhansu Jyoti Mukhopadhaya, J. 1. This appeal is directed against the judgment dated 31st March, 2008 passed by the High Court of Judicature at Madras in Criminal Appeal No.1009 of 2005. By the impugned judgment the High Court dismissed the appeal and affirmed the judgment of conviction and sentence passed by the learned Sessions Judge against the appellants for the offence under Section 364, 302 and 201 read with Section 34 IPC. 2. The case of the prosecution in nutshell is as follows:Prior to 4th April, 2004, the date of incident, the deceased Manikandan expressed his love to one Rajeswari, daughter of accused No.1, Krishnan @ Ramasamy and accused No.5, Selvam. For the said reason, there was a commotion which resulted in enmity between the accused on the one side and the deceased Manikandan on the other side. The deceased was driven out of Neyveli area. Subsequently, on 4th April, 2004 during Panguni Uthram Kaavadi Festival at Veludaiyanpattu village, the deceased visited for the festival. On the said date at about 6.30 p.m., the deceased along with his friends was talking behind the school at Vadakkumelur. At that time accused No.1, Krishnan @ Ramasamy, accused No.2 Rajendiran @ Chinnu, accused No.3, Ramalingam and accused No.5, Selvam came there and took the deceased Manikandan to the place near Mariyamman Temple and attacked him. Later, they took him in an autorickshaw bearing Registration No.TN 31Y 2376 and abducted him under the pretext that the deceased was being taken to Police Station. On the way, the accused purchased brandy and at 6.15 p.m. in the cashew thope belong to one Vijeyendiran the deceased was taken out of the autorickshaw. Vijeyendiran told the accused not to assemble there. Then, accused Nos.1, 2 and 3 took the deceased Manikandan to the side of the road leading to Vadakkumelur and under a margosa tree Manikandan was compelled to drink brandy. At about 12 midnight accused Nos.1 and 2 strangulated the deceased Manikandan by putting his towel around his neck and done him to death. Thereafter, accused Nos.1, 2 and 3 put the dead body into a borewell.3. On 10th April, 2004, based on the complaint given by the mother of the deceased Manikandan a complaint was registered for an offence under Section 365 IPC. On 13th April, 2004, the Police arrested accused No.3-Ramasamy, who gave a voluntary confession statement in pursuance of which accused No.3 took the Police to the borewell where they had hidden the dead body. Upon the identification of the borewell by accused No.3 with the help of Kurinjipadi fire service personnel, the dead body was taken out by the Police from the borewell. The body was identified by Valarmathi (PW.1), Amrthavalli (PW-2) Gopal (PW-3), Murugan (PW-4) and Rajeswari (PW-5) to be that of Manikandan. The body was sent to Panruti Government Hospital where inquest was conducted by Kabbadasan (PW-13) on 14th March, 2004 at 6 a.m. in the presence of witnesses and panchayatdars. The inquest report is Ex.P.17. Ex.P.9 is the post mortem certificate and Ex.P.10 is the opinion given by the Doctor who conducted postmortem. The Investigating Officer, Kannadasan (PW-13) came to know that the other accused surrendered themselves before the Court. After concluding the enquiry, Kannadasan (PW-13) laid charge sheet against the accused before the Court on 26th May, 2004 for the offence under Sections 364, 365, 302 and 201 IPC. The Sessions Judge secured the presence of the accused, framed charges under Sections 364, 365, 302 and 201 IPC. All the accused pleaded not guilty and claimed to be tried.4. The prosecution in all examined 13 witnesses, produced Ex.P.1 to P.22 and marked MOS 1 to 4 to prove its case. When the accused were questioned under Section 313 Cr.P.C. on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to the facts. Neither any oral evidence nor any documentary evidence was produced on their behalf. After considering all the material on record and hearing the parties, the Sessions Court had come to the conclusion that the prosecution has proved its case only against accused Nos.1 to 3 for the offence under Sections 364, 302 and 201 IPC read with Section 34 IPC and acquitted accused Nos.4 and 5 of the charges levelled against them.5. To challenge their conviction and sentence accused Nos.1 to 3 moved before the High Court, which dismissed the appeal by the impugned judgment. 6. Learned counsel for the appellants would submit that the Sessions Judge accepted the testimony of the interested witness and on the basis of circumstantial evidence the appellants have been convicted. He would further submit that the prosecution case rests only upon circumstantial evidence but the prosecution has failed to prove such circumstances without any breakage of link, convicted the appellants only on the basis of last seen theory and the confession of accused No.3. He also submitted that the appellants (accused Nos.1 to 3) also stand on the same footing as that of accused Nos. 4 and 5, who were given benefit of doubt, such benefit was not extended to accused Nos.1 to 3. 7. From the judgment passed by the Sessions Judge as affirmed by the High Court, we find that the prosecution case rests only upon the circumstantial evidence. The Court mainly relied upon the evidence of Valarmathi (PW-1), mother of deceased Manikandan, confession of accused No.3 and the postmortem report. 8. The evidence of Valarmathi (PW-1) is to the effect that her son Manikandan was said to have given a flower to the daughter of accused No.1 and since accused No.1 was very much annoyed with Manikandan, she sent her son to Kerala for employment in order to save him from the accused. After sometime, Manikandan had come to his native village for celebrating Panguni Uthiram Festival and when he was talking to his friends on one evening, he was taken by accused Nos. 1 to 4 for questioning and on hearing the same Valarmathi (PW-1) went to said place, namely, Mariyamman Temple where accused Nos.1 to 4 had been examining Manikandan. She saw her son being beaten up by the accused and at that time her son was in an unconscious state. She went and brought the village headman. Thereafter, Manikandan was taken from the said place in an autorickshaw by the accused. She immediately informed the village elder. The village Head came along with her and prevented such beating. He told the accused to leave her son at the Police Station. The accused had kept Manikandan till 7.30 p.m. They sent Chinnu @ Rajendiran, accused No.2 to bring the auto, accused Nos.1,2 and 3 had taken her son in that auto. Her son had not returned next day. Accused No.1, Ramasamy later on crossed her house from whom she enquired as to the whereabouts of her son to which he replied that her son would return within two days. When she further enquired from accused No.1, he had replied that he had sent him to Kerala, on paying him Rs.100/-. On the next day, i.e. 6th day she had again asked accused No.1 about her son and she told him that she would file a complaint alleging the missing of her son. Subsequently, after a lapse of 6 days, she had filed a complaint with the Police Station (Neyveli Township at 8th Block). The Police having come to know that they were already conducting enquiry from accused No.3 with regard to this case, on the basis of the statement given by accused No.3, Ramalingam, the dead body of her son was retrieved from a deep borewell by the fire service personnel. 9. During the cross-examination, Valarmathi (PW-1) accepted that she lodged the complaint after lapse of six days of missing of her son. She further accepted that she had not stated in the complaint that during the Inspector’s enquiry that while she had asked accused No.1 about her son, he had replied that her son would return within two days. She further stated that when she dictated the complaint Ex.P.1, one auto driver had reduced it in writing. Auto driver was not examined. 10. Amirthavalli (PW-2) is the elder sister of Valarmathi (PW-1), complainant. She stated that Manikandan went to Kerala and had returned for Panguni Uthiram Festival last year. When he was lying at the entrance of the house at about 6 o’clock, all the five accused who were present, descended down to Valarmathi’s (PW-1) house and taken Manikandan to Mariyammam Temple for enquiry. They had beaten up Manikandan there. Then the village head had told not to beat him and asked them to hand him over to the Police Station. Subsequently, at 8 hrs accused Rajendiran had brought the auto. Then accused Rajendiran, Chakkarai, Ramasamy and Ramalingam had taken Manikandan in that Auto. They had not gone along with them, since there was a darkness. 11. During her cross-examination, she stated that when they had made a visit to Police Station, accused No.1, Ramasamy had brought the deceased Manikandan to Police Station. Therefore, they asked as to whether Manikandan was present there. The Police had replied that Manikandan was not handed over to them. 12. Murugan (PW-4), a coolie at Neyveli, stated that he was a friend of Manikandan. He further stated that there was an enmity between the deceased and the accused as Manikandan had love with Rajeswari, daughter of accused Nos.1 and 5. Due to the threat from accused No.1, Manikandan had left the village. He stated that about 6 p.m., he had gone to the temple. Then all the accused and Ramasamy had found to have examined Manikandan in the Temple. When they were making such enquiry, they had beaten up Manikandan. During the cross-examination, he accepted that he has not given any information about Manikandan to anybody. He had not engaged in a search as to the disappearance of Manikandan. He had enquired with Manikandan’s mother as to his disappearance on the third day and she informed him that there was no information as to Manikandan. He further accepted that on 11th April, 2004, the Police had enquired him about Manikandan, he had not mentioned to anyone as the occurrence happened between 4th day and 11th day, with regard to Manikandan. 13. In the FIR, Valarmathi (PW-1) had not disclosed the presence of Amirthavalli (PW-2) and Murugan (PW-4) at the scene of occurrence at Mariyamman Temple. Nothing was stated with regard to Amirthavalli (PW-2) and Murugan (PW-4). Valarmathi (PW-1) did not disclose the presence of Amirthavalli (PW-2) at the scene of occurrence. The deceased was last seen with accused Nos.1 and 4 by Village headman by name, super supparayan, who said to had been present at the place where the deceased was last seen in the company of accused, was neither named as prosecution witness nor examined. There was inordinate delay of more than six days in filing the complaint about the missing of Manikandan but Valarmathi (PW-1) has not explained the delay in lodging such complaint. 14. Valarmathi (PW-1) in her statement stated that the deceased Manikandan was lastly seen with the accused Nos.1 to 4 in Mariyamman Temple. Amirthavalli (PW-2) in her statement stated that the deceased was last seen in the Police Station. The case of the prosecution is that the deceased Manikandan was last seen in the autorickshaw by which he was abducted from the house of accused No.1. 15. In the complaint, Ex.P.1, Valarmathi (PW-1) intimated that Manikandan was sleeping in the night. In the FIR, Ex.P.13, the motive of the accused was not disclosed. The accused No.3 was not even named in the FIR. 16. The manner in which Valarmathi (PW-1), mother of deceased Manikandan gave the detail of occurrence which took place on 4th April, 2004 shows as if she had seen every stage, the manner in which the accused abducted the deceased Manikandan, beaten up in the Mariyamman Temple, taken in the autorickshaw, reached from one place to another place and then went to the Police Station. The statement of Valarmathi (PW-1) about accused No.3 is an improvement which was not explained. The story of accused to the deceased in the autorickshaw as narrated in the deposition of Valarmathi (PW-1) is another improvement which she has not disclosed in the FIR, Ex.P.13.17. Referring to the material on record, learned counsel for the appellants submitted that there is a doubt about the place where the deceased Manikandan was last seen and the time when he was last seen along with the accused. 18. The case of the prosecution rests mainly on the scene of occurrence; the deceased Manikandan was last seen in the company of accused Nos.1 to 3. As per Valarmathi (PW-1), deceased Manikandan was last seen in Mariyamman Temple in the company of accused Nos. 1 to 4. Amirthavalli (PW-2) is maternal aunt of the deceased. Valarmathi (PW-1) did not disclose the presence of Amirthavalli (PW-2) at the scene of occurrence where the deceased was last seen in the company of accused Nos.1 to 4. Even if the statement of Amirthavalli (PW-2) is accepted, then according to her the deceased was last seen in the Police Station along with accused No.1, Ramasamy who had brought the deceased Manikandan there. 19. The prosecution has failed to explain the statement given by Amrithavalli (PW-2) during her cross-examination wherein she stated that when she asked the Police about Manikandan, they replied that Manikandan was not handed over to them. Therefore, the presence of Amrithavalli (PW-2) at the scene of occurrence is doubtful. She being the highly interested witness and in view of contradictions aforesaid, her statement cannot be relied upon. 20. The testimony of an accomplice cannot be used against another accused. On the basis of testimony of accused No.3, if dead body was recovered, on that basis the accused Nos.1 and 2 cannot be convicted. If accused No.4, Rajendiran @ Sakkarai was also last seen with the deceased Manikandan along with accused Nos. 1 to 3, the Trial Court having given benefit of doubt to accused No.4 it is not clear as to why the same benefit has not been given to accused Nos.1 to 3. 21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik and others vs. State of Bihar, (1994) Supp.(2) SCC 372, this Court held as follows: “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 22. This Court in Bodhraj vs. State of Jammu and Kashmir, (2002) 8 SCC 45 , held that the last seen theory comes into play where time-gap between the point of time when the accused and the deceased were seen last alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. 23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4th April, 2004 at Vadakkumelur village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and intervening period of seven days there was nobody in contact with the deceased. 24. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438 , this Court held that in absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed. 25. In the present case as noticed above, the Sessions Judge convicted the accused Nos.1 to 3 on the basis of last seen evidence, the correctness of last seen version emanating from Valarmathi (PW-1), Amirthavalli (PW-3) and Murugan (PW-4) and as per the prosecution case is also doubtful, there being contradiction about place where the accused were last seen with the deceased Manikandan. The High Court had failed to appreciate the aforesaid fact and erred in affirming the order of conviction passed by the Sessions Judge.

Decision:
1[ds]7. From the judgment passed by the Sessions Judge as affirmed by the High Court, we find that the prosecution case rests only upon the circumstantial evidence. The Court mainly relied upon the evidence of Valarmathi (PW-1), mother of deceased Manikandan, confession of accused No.3 and the postmortem report.The prosecution has failed to explain the statement given by Amrithavalli (PW-2) during her cross-examination wherein she stated that when she asked the Police about Manikandan, they replied that Manikandan was not handed over to them. Therefore, the presence of Amrithavalli (PW-2) at the scene of occurrence is doubtful. She being the highly interested witness and in view of contradictions aforesaid, her statement cannot be relied upon.The testimony of an accomplice cannot be used against another accused. On the basis of testimony of accused No.3, if dead body was recovered, on that basis the accused Nos.1 and 2 cannot be convicted. If accused No.4, Rajendiran @ Sakkarai was also last seen with the deceased Manikandan along with accused Nos. 1 to 3, the Trial Court having given benefit of doubt to accused No.4 it is not clear as to why the same benefit has not been given to accused Nos.1 to 3.There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4th April, 2004 at Vadakkumelur village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and intervening period of seven days there was nobody in contact with the deceased.In the present case as noticed above, the Sessions Judge convicted the accused Nos.1 to 3 on the basis of last seen evidence, the correctness of last seen version emanating from Valarmathi (PW-1), Amirthavalli (PW-3) and Murugan (PW-4) and as per the prosecution case is also doubtful, there being contradiction about place where the accused were last seen with the deceased Manikandan. The High Court had failed to appreciate the aforesaid fact and erred in affirming the order of conviction passed by the Sessions Judge.