PATTU RAJAN versus THE STATE OF TAMIL NADU
[2019] 5 S.C.R. 535, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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    PATTU RAJAN
v.
    THE STATE OF TAMIL NADU
(Criminal Appeal Nos. 680-681 of 2009)
 MARCH 29, 2019
[N.V. RAMANA, MOHAN M. SHANTANAGOUDAR,
INDIRA BANERJEE, JJ.]
Penal Code, 1860: s.302 – Abduction and murder of husband
of complainant (PW1) – Prosecution case was that accused no.1
wanted to take PW1 as his third wife knowing that she was already
married to victim-deceased and made several attempts with the help
of other accused to severe the relationship between PW1 and her
husband – Prior to the day of incident, the deceased and PW1 were
abducted by accused no.1 and his henchmen but on the same day
were released for which a separate complaint was lodged by PW1
and separate trial was conducted – Subsequent to this event of
abduction, accused committed murder of the PW1’s husband so as
to marry PW1 without any obstruction – Conviction of appellant by
trial court under ss.364, 304 Part-I and 201 – High Court modified
conviction under s.304 Part-I  to one under s.302 – Appeal against
conviction – Held: There was detailed deposition of PW-1 as to
how accused no.1 wanted to marry her and how he often tried to
lure her through undue favours, role of each of the appellants in
the crime, last seen circumstance as well as the identification of the
personal belongings of the deceased and his dead body – The
evidence of PW1 was fully supported by the evidence of PW2, the
mother of PW1 – Based on the confession of accused no.6, recovery
of wallet containing
photograph of PW1, gold chain etc. was
effected from the house of accused no.6 and identified by PW1 and
her family as belonging to the deceased – Recovery of body at the
instance of accused no.2 and the identification of body as that of
her husband by PW1, her family as well as by the accused, on the
basis of photographs, the clothes and belongings of the deceased
and his scar stood proved beyond reasonable doubt – 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
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identification of the dead body was consistent with the case of the
prosecution – The superimposition test strengthened the evidence
of PWs 1 and 2 regarding the identification of the body – Therefore,
no case was made out for interference with the conviction –
Evidence – Circumstantial evidence.
First Information Report: Plea of the accused-appellant that
there cannot be a second FIR relating to the same incident and that
the incident of murder reported in FIR was merely a continuation of
the earlier offence of abduction which had triggered proceedings
pursuant to the FIR – Held: Plea is not sustainable – There is no
doubt that the case arising out of a second FIR, if relates to a
separate transaction, cannot be investigated along with a previous
FIR under the clause ‘further investigation’ as contemplated under
ss.8 to s.173 of the Cr.P.C. – In the instant case, the time and place
of occurrence of the two incidents were different – Even the number
of accused involved in the incidents was different – There was no
continuity of action from the sequence of events either – 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, unity of purpose and design between the
two offences was also
absent  –  Thus, the incident of murder was
entirely separate and distinct from the earlier incident of abduction
– Further investigation, as envisaged under ss.8 of s.173 of the
Cr.P.C, connotes investigation of the case in continuation of an
earlier investigation with respect to which the chargesheet was
already filed – In case a fresh offence is committed during the course
of 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 – The
separate first information lodged in this case is, therefore, just, legal
and proper – Penal Code, 1860 – s.302  - Code of Criminal
Procedure, 1973 – s.173(8) – Investigation.
Evidence: Circumstantial evidence – Reliability of – Held:
Human agency may be faulty in expressing the picturisation of the
actual incident, but circumstances cannot fail or be ignored – The
circumstances relied upon by the prosecution should be of a
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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 – Circumstantial
evidence – Penal Code, 1860 – s.302.
Evidence Act, 1872: s.45 – Expert evidence – DNA Evidence
– Evidentiary value of – Held:  DNA evidence is in the nature of
opinion evidence as envisaged in s.45 of the 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 comparison, and even
DNA testing or superimposition techniques – 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 – However,  the opinion
evidence is advisory in nature, and the Court is not bound
by the
evidence of the experts – DNA Evidence.
Evidence Act, 1872: s.45 – Superimposition test conducted
for identifying the deceased – Evidentiary value of – Held: The
evidence on superimposition is also based on experts’ opinion – 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 – In the instant case, High
Court accepted the expert testimony on this aspect since 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 – Moreover, it was evident from the
testimony of PW34, 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
– Therefore, the scientific evidence of PW34 was rightly believed
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by the Trial Court as well as by the High Court, and strengthened
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, the contention
that the non-conducting of a DNA test and the reliance on evidence
regarding identification through superimposition is improper is
rejected – This is all the more true since no material was forthcoming
to the effect that the parents of the deceased were alive during the
relevant period, so as to conduct comparative DNA tests –
Superimposition test.
Dismissing the appeals, the Court
HELD: 1. The argument for the appellants that the incident
of murder in the case in hand is merely a continuation of an earlier
offence relating to the abduction of PW1 and the deceased which
occurred has no force.  The crime of abduction commenced when
the victims (PW1 and the deceased) were forced into captivity
and was completed on the same day immediately after the victims
were released. In respect of the said incident, the first information
was lodged by PW1. During the investigation of the said case,
the accused brought the deceased, PW1 and her family members
to Tirunelveli. The crime in question was committed after two
days, whereby PW1 and
her husband 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 the deceased by separating him from his
wife, committed his murder and threw away his body in the forest
area. The time and place of occurrence of the two incidents were
different. It is evident that unity of purpose and design between
the two offences was also absent. [Para 15] [550-F; 551-B-D, F]
1.2  The facts and circumstances of the matter clearly
indicated 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
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investigation, as envisaged under Sub-section 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 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.  The separate first information lodged in this
case is just, legal and proper. [Paras 18, 20] [554-A-C; 556-A]
Awadesh Kumar Jha v. State of Bihar (2016) 3 SCC 8 ;
State of A.P. v. Cheemalapati Ganeswara Rao [1964] 3
SCR 297 ; T.T. Antony v. State of Kerala (2001) 6 SCC
181: [2001] 3 SCR 942; Rameshchandra Nandlal
Parikh v. State of Gujarat (2006) 1 SCC 732; Nirmal
Singh Kahlon v. State of Punjab (2009) 1 SCC 441:
[2008] 14 SCR 1049; Babubhai v. State of Gujarat
(2010) 12 SCC 254 : [2010] 10 SCR 651 – relied on.
2.1 There was no direct evidence in the instant matter and
the whole case rests on circumstantial evidence. In matters resting
on circumstantial evidence, the Judge while deciding should
always tread cautiously so as to not allow conjectures or suspicion,
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.  PW-1 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 meticulously
deposed about the role of each of the appellants in the crime. In
the cross-examination, she 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, in the first incident (being the incident of
abduction), her husband was spared by Accused No. 1, and on a
subsequent occasion also, he was  spared by Accused No. 2.  Thus,
she was hopeful that her husband would escape on this occasion
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as well.  Though PW1 was cross-examined at length, the defence
could not discredit her evidence on material particulars.  Minor
variations pointed out by the defence, as such neither affected
the prosecution version nor PW1’s evidence in its entirety.
[Paras 22, 24] [556-D-F; 558-G-H; 559-A-D]
2.2 PW1 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 was the witness
who saw the deceased in the company of the accused for the last
time before his death.  The evidence of PW1 was fully supported
by the evidence of PW2, the mother of PW1. [Paras 25, 26]
3.  The testimony of PW7, the Village Administrative Officer
working in the office of the Tehsildar, is also relevant and
significant. In his presence, Accused No.2 confessed to the
Inspector of Police, that if taken to Kodaikanal, he would show
the spot at Tiger-Chola where the dead body of PW’s husband
was thrown. Accordingly, Accused No.2 was taken to the said
place 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. Nothing material worth
considering in favour of the defence was extracted from the cross-
examination of PW7. [Para 27] [560-E-G; 561-A]
4. 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 extra-judicial
confession because of the presence of the police.  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. [Para 27] [561-B-C]
5. During the course of investigation, the records of the
various hotels in which the accused had stayed along with the
deceased, PW1 and her family were collected. PW36, the
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handwriting expert 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 supported
the conclusion that the accused in fact took PW1 and her family
members to various places as deposed by them. [Para 30]
[562-H; 563-A-B]
6.  DNA evidence is also in the nature of opinion evidence
as envisaged in Section 45 of the 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.  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. However,
the opinion evidence is advisory in nature, and the Court is not
bound by the evidence of the experts.  It cannot be said that
absence of DNA evidence would lead to an adverse inference
against a party, especially in the presence of other cogent and
reliable evidence on record in favour of such party. [Paras 31-
33] [563-C-D; 564-A-B, E]
Sharad Birdhichand Sarda v. State of
Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Ramesh Chandra
Agrawal v. Regency Hospital Limited & Ors. (2009) 9
SCC 709 : [2009] 14 SCR 424; The State (Delhi
Adminstration) v. Pali Ram (1979) 2 SCC 158 : [1979]
1 SCR  931 ; State of H.P. v. Jai Lal & Ors. (1999) 7
SCC 280 : [1999] 2 Suppl.  SCR  318 ; Baso Prasad &
Ors. v. State of Bihar (2006) 13 SCC 65 : [2006] 9
Suppl. SCR 431 ; Malay Kumar Ganguly v. Dr. Sukumar
Mukherjee & Ors. (2010) 2 SCC (Cri) 299
– relied on.
7.  The superimposition test was conducted in the instant
case for identifying the deceased. There cannot be any dispute
that evidence on superimposition is also based on experts’
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opinion. 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.
Moreover, it is evident from the testimony of PW34, 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 identification of the body, and
there was no error in such conclusion reached by the Courts.
Therefore, the scientific evidence of PW34 was rightly believed
by the Trial Court as well as by the High Court, and strengthened
the evidence of PWs 1 and 2 regarding the identification of the
body. [Paras 34, 36-38] [564-F; 565-E-G]
Shankar & Ors. v. State of Tamil Nadu (1994) 4 SCC
478; Swamy Shraddananda v. State of Karnataka
(2007) 12 SCC 288 : [2007] 7 SCR 616; Inspector of
Police, Tamil Nadu v. John David (2011) 5 SCC 509:
[2011] 7
SCR 354; Mahesh Dhanaji Shinde v. State of
Maharashtra (2014) 4 SCC 292 : [2014] 3 SCR 406 –
relied on
Modi, A Textbook of Medical Jurisprudence and
Toxicology, 26th Edition, 2018 – referred to
8.1 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 also stood positively identified by
PW1 and her family as belonging to the deceased.  It is evident
from the depositions that the recovery of the dead body was made
from the Tiger-Chola forest area, which was the same place to
which Accused No. 2 led the investigation team based on his
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confession about disposal of the dead body.  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. The recovery of the body of the deceased at the instance of
Accused No. 2 and the identification of the body as that of her
husband by PW1, her family as well as by the accused, on the
basis of photographs, the clothes and belongings of the deceased,
and his scar, stood proved beyond all reasonable doubt.
[Paras 39, 40] [566-C-G]
Rohtash Kumar v.State of Haryana (2013) 14
SCC 434 : [2013] 3 SCR 884 ; Trimukh Maroti Kirkan
v. State of Maharashtra (2006) 10 SCC 681 : [2006] 7
Suppl. SCR 156 – relied on.
8.2 The bill book and cash book of a petrol pump at Palani,
where the Tata Sumo  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. The overwhelming, consistent and reliable testimonies of
PWs 1 and 2, along with the corroborative evidence, conclusively
proved the prosecution case. There was no embellishment or
exaggeration in the evidence of these witnesses. Moreover, the
evidence of the other prosecution witnesses was homogeneous,
consistent and reliable, and corroborated the testimony of PWs
1 and 2, which led to conclude that the chain of circumstances
was complete and points solely at the guilt of the accused.
[Paras 42, 43] [567-G-H; 568-A-C]
Inder Singh v. State (Delhi Administration) (1978) 4 SCC
161 : [1978] 3 SCR 393; State of H.P. v. Lekh Raj &
Anr. (2000) 1 SCC 247 : [1999] 4 Suppl. SCR 286 ;
Takhaji Hiraji v. Thakore Kubersing Chamansing &
Ors.(2001) 6 SCC 145; Chaman & Anr. v. State of
Uttarakhand (2016) 12 SCC 76 – relied on.
 PATTU RAJAN v. STATE OF TAMIL NADU
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Case Law Reference
[1964] 3 SCR 297
relied on
Para 15
[2001] 3 SCR 942
relied on
Para 17
(2016) 3 SCC 8
relied on
Para 18
(2006) 1 SCC 732
relied on
Para 19
[2008] 14 SCR 1049
relied on
Para 19
[2010] 10 SCR 651
relied on
Para 20
[1985] 1 SCR 88
relied on
Para 22
[2009] 14 SCR 424
relied on
Para 32
[1979] 1 SCR 931
relied on
Para 32
[1999] 2 Suppl. SCR 318
relied on
Para 32
[2006] 9 Suppl. SCR 431
relied on
Para 32
(2010) 2 SCC (Cri) 299
relied on
Para 32
(1994) 4 SCC 478
relied on
Para 34
[2007] 7 SCR 616
relied on
Para 34
[2011] 7 SCR 354
relied on
Para 34
[2014] 3 SCR 406
relied on
Para 34
[2013] 3 SCR 884
relied on
Para 41
[2006] 7 Suppl. SCR 156
relied on
Para 41
[1978] 3 SCR 393
relied on
Para 43
[1999] 4 Suppl. SCR 286
relied on
Para 43
(2001) 6 SCC 145
relied on
Para 43
(2016) 12 SCC 76
relied on
Para 43
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 680-681 of 2009
From the Judgment and Order dated 19.03.2009 of the High Court
of Judicature at Madras in C.A. Nos. 748 of 2004 and 637 of 2004
         Wiith
Criminal Appeal Nos.799-800, 824, 801-802, 822-823 of 2009.
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Balaji Srinivasan, AAG, Sushil Kumar, Sr. Adv., Ms. Aishwarya
Bhati, K. K. Mani, Ms. T. Archana, Jaideep Singh, Aditya Kumar,
S. Ratnakaran, Bhagwan Das, Thankaih, T. Gopal, Vaidruti Misra, M.
Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshwaran, Ms. Pallavi
Sengupta,  Advs. for the appearing parties.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
1. The judgment dated 19.03.2009 passed in Criminal Appeal
No. 637 and 748 of 2004 passed by the High Court of Judicature at
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 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.
 PATTU RAJAN v. STATE OF TAMIL NADU
[MOHAN M. SHANTANAGOUDAR, J.]
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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 highlight Accused No. 1’s
wrongdoings. In other words, Accused No.2 posed himself as a well-
wisher 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.
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
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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 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.  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
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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 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 Tiger-Chola forest area. On seeing the
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 post-
mortem 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 Tiger-Chola 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 pre-burial 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)
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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 post-mortem, which was conducted
by PW38. During the 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 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 post-mortem 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
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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 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 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
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the prior incident of abduction would show 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
Tiger-Chola 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 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 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
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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 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 sub-section (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
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x
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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 sub-
section (8) of Section 173 CrPC empowers the police to make
further investigation, obtain further evidence (both oral and
documentary) and forward a 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 counter-case, 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. 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
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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 Sub-section 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 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 Sub-section 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:
“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
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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 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)
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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 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 non-explanation 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, 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
oft-quoted 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
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Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC
116 (SCC p. 185 para 153-154):
“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
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.”
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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 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.
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
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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 cross-
examination, 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 cross-examination that her mother 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 cross-examined 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 post-mortem report given by PW35,
Dr. A. Sivakumar, the victim appeared to have died 3-5 days prior to the
examination, which was conducted on 02.11.2001. This fact is well
corroborated by the examination-in-chief 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
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
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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 son-in-law by the scar mark on his waist. She had also identified the
belongings of the deceased. In her cross-examination, 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 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 Tiger-Chola where the dead
body of Santhakumar was thrown. Accordingly, Accused No.2 was taken
to the said place 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
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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 cross-examination 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 extra-judicial confession because of the 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
Tiger-Chola in an abyss in the forest. The body had a blue-coloured
checked full-sleeved shirt and sandal-coloured pant with a black-coloured
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 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 Sub-Inspector 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 Tiger-Chola, 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 post-mortem 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
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buried. In the cross-examination, 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 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 re-checking 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 post-mortems of the deceased). PW35
conducted the first post-mortem examination. He has
stated in his
examination-in-chief 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 post-mortem 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
post-mortem 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 ante-mortem, 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
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hotels in which the accused had stayed along with 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 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)
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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 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 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. 267-
271). This Court itself has placed reliance on identification of the deceased
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through superimposition on several occasions (see 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 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 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
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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 non-conducting 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 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 Tiger-Chola 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 Tiger-Chola
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 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,
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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 non-explanation by the accused provides an additional
link in the chain of circumstances.
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 post-mortem 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 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.
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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, 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 Tiger-Chola.  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 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.
Devika Gujral                                                                                          Appeals dismissed.