Case: Krishnan &amp; Ramasamy  Vs. State Of Tamilnadu

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.

Reasoning:
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.