S. KALEESWARAN versus STATE BY THE INSPECTOR OF POLICE POLLACHI TOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU on 3 November 2022

SUPREME COURT REPORTS[2022] 10 S.C.R. 38

[2022] 10 S.C.R.

S. KALEESWARAN

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STATE BY THE INSPECTOR OF POLICE POLLACHI TOWNEAST POLICE STATION, COIMBATORE DISTRICT, TAMILNADU

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(Criminal Appeal No. 160 of 2017)

NOVEMBER 03, 2022

[UDAY UMESH LALIT, CJI AND BELA M. TRIVEDI, J.]

Evidence: Circumstantial Evidence – Appreciation of –CAllegation that the appellants along with three others in furtheranceof the conspiracy, committed dacoity of a car, murdered its driverand buried the dead body in a pit, and also sold the car and sharedthe sale proceeds – Conviction of all of them for offences u/ss.120(B), 147, 364, 302 r/w s.120(B)/149, 201 and 396 IPC andDsentenced accordingly by the courts below – Held: Entire prosecutioncase rested on the circumstantial evidence – Extra judicial confessionof one of the accused not duly proved by the prosecution; that lastseen theory on the basis of the evidence of PW6 and PW7 cannotbe applied as their statement was recorded 6 months after the allegedincident; that in view of the huge time gap, the TIP ought to haveEassisted the police to identify the accused, however, no TIP washeld; that failure to explain as to under what circumstances thevictim suffered the death by the accused u/s 313 CrPC; and that theskeletal remains were found after almost 5 months from the date ofincident and it was identified by the skull-superimposition test whichFcannot be regarded as infallible – Thus, failure of the prosecutionto establish through clinching, clear, cogent and consistent evidence,the chain of events, on the basis of which the guilt of the appellants-accused could be established – Courts below erred in acceptingthe case of prosecution and convicting them for the alleged crime –Thus, the order of conviction and sentence by the courts below setGaside – Penal Code, 1860 – ss.120(B), 147, 364, 302 r/w s.120(B)/149, 201 and 396 – Extra judicial confession – Last seen theory.

Allowing the appeals, the Court

HELD: 1.1 Having regard to the totality of evidenceHadduced by the prosecution, the circumstances relied upon by

the prosecution did not complete the chain to dispel thehypothesis of innocence of the appellants-accused. Theprosecution having failed to establish through clinching, clear,cogent and consistent evidence, the chain of events, on the basisof which the guilt of the appellants-accused could be established,the courts below committed an error in accepting the case ofprosecution and convicting them for the alleged crime. Thejudgements and orders of conviction and sentence passed by thetrial court and confirmed by the High Court are set aside. [Para15, 16][50-A-C]

1.2 Heavy reliance was placed by the prosecution on theextra judicial confession made by the accused no.1 through anInland letter addressed to P.W.-19, former employer of theaccused no. 1 who had received the same on 29.12.2007. Itappears that the said alleged extra judicial confession of theaccused no. 1 was the trigger point which directed theInvestigating Officer to proceed further with the investigationafter about five months of the alleged incident. Apart from thefact that the extra judicial confession is a very weak piece ofevidence, the High Court in the impugned judgment refused torely upon the same on the ground that neither the handwritingexpert was examined nor any opinion of handwriting expert wasproved by the prosecution. It cannot be gainsaid that when theextra judicial confession is not duly proved, or does not inspireconfidence or is not corroborated by any other reliable evidence,the conviction could not be based solely on such weak piece ofevidence. In the instant case, the prosecution having notexamined the handwriting expert for proving the handwritings ofthe accused no.1 contained in the Inland letter allegedlyaddressed to the PW-19, nor any expert’s opinion having beenobtained, the High Court had rightly discarded the said piece ofevidence with regard to the alleged extra judicial confession madeby the accused no.1. [Para 8][46-G-H; 47-A-C]

1.3 The next circumstance on which the prosecution hadplaced heavy reliance was with regard to the theory of “last seentogether”, relying upon the evidence of PW-6 and PW-7. It isnoteworthy that both the witnesses were the taxi drivers andwere operating the taxis from the same taxi stand from where AB

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Athe deceased was operating his taxi, however their statementswere recorded by the investigation officer almost six months afterthe alleged incident. [Para 9][47-D-E]

1.4 Having regard to the evidence of PW-6 and PW-7, itappears that apart from the fact that their statements wereBrecorded by the Investigating Officer after six months of thealleged incident, their evidence before the Court does not inspireconfidence. The PW-6 in the cross-examination had admitted thathe had come to know about the deceased having gone missingwithin one week of his having seen the deceased with the accusedno. 1. It is difficult to appreciate his behaviour not to discloseCthis crucial information for six months either to his fellow taxidrivers or to the police about he having seen the deceased lastlyin the company of the accused no.1. So far as PW 7 is concerned,he had deposed that he got to know about the deceased havinggone missing only when Police came for enquiry on 01.01.2008.DWhen the Investigating Officer was time and again coming to thetaxi stand where all the taxi drivers including the PW-6 and PW-7 used to stand, for inquiring about the deceased’s whereabouts,and when wide publicity was made in the local newspapers,television and radio about the deceased having gone missing, itis not believable that the PW-7 came to know about the deceasedEhaving gone missing only when the police came to him to makeinquiry six months after the incident in question. PW-7 had alsoadmitted that he did not know the other four accused whoaccompanied the accused no.1 and the deceased on the allegeddate of incident. When there was huge time gap of about moreFthan six months between the date of the incident and the date ofrecording of statements of witnesses by the Investigating Officer,the Test Identification Parade would have assisted the police inidentifying the accused seen by the PW-7, however no such TIParade was held by the Investigating Officer. Therefore,identification of the accused nos. 2 to 5 at the instance of theseGwitnesses also becomes very doubtful. Furthermore, if there isconsiderable time gap between the persons seeing together andthe proximate time of the crime, the circumstances of last seentogether, even if proved cannot clinchingly fasten the guilt of theaccused. [Para 10, 11][48-A-G]H

S. KALEESWARAN v. STATE BY THE INSPECTOR OF POLICE POLLACHITOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU

1.5 The failure of the accused, in a case based oncircumstantial evidence which included “last seen togethertheory”, to explain u/s. 313 Cr.PC as to under what circumstancesthe victim suffered death, would also not be a ground to arrive atan irresistible conclusion that the accused were involved in thecommission of the alleged crime. Even if the theory of “last seentogether” propounded by the prosecution is accepted, then alsoit is difficult to draw an irresistible conclusion that the accusedare guilty of the alleged offences, merely because they failed toexplain as to under what circumstances the victim suffered death.[Para 12][48-G-H; 49-A-B]

1.6 The corpus when found, was in a highly- decomposedcondition. Skeletal remains were found after almost 5 monthsfrom the date of the incident of the deceased having gone missing.The identification, thus, was done by getting the skull super-imposition test done through the forensic expert. Since the super-imposition report was not supported by any other reliable medicalevidence like a DNA report or post-mortem report, it would bevery risky to convict the accused believing the identification ofthe dead body of the victim through the super-imposition test. Itis true that in the case based on circumstantial evidence, if theentire chain is duly proved by cogent evidence, the convictioncould be recorded even if the corpus is not found, but when asper the case of prosecution, the dead body of the victim wasdiscovered from the place shown by the accused, it is imperativeon the part of the prosecution to prove that the dead body or theskeleton found at the instance of the accused was that of thevictim and of none else. [Para 13][49-B-F]

1.7 The submission that the prosecution also failed to provethe motive of the accused for committing the alleged crime, isaccepted. In the instant case, the PW-8 to whom the Ambassadorcar of the deceased was allegedly sold by the accused, had turnedhostile and not supported the case of the prosecution that themoney was received by the accused by selling the car to the PW-8. [Para 14][49-F-H]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116; Shivaji Sahabrao Bobade & Anr. v.

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AState of Maharashtra (1973) 2 SCC 793; State of Goav. Sanjay Thakran (2007) 3 SCC 755; Pattu Rajan v.State of Tamil Nadu (2019) 2 SCC (Cri) 354; NanduSingh v. State of M.P Cri. App. No. 285 of 2022 –referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.160 of 2017.

From the Judgment and Order dated 22.07.2016 of the High Courtof Judicature at Madras in Crl. Appeal No. 482 of 2014.D

With

Criminal Appeal No. 410 of 2017

Mrs. N. S. Nappinai, Asaithambi, V. Balaji, Atul Sharma,C. Kannan, Nizamuddin, Rakesh K. Sharma, C. B. Gururaj, AnimeshEDubey, Saleem Gul, Dr. Nanda Kishore, Advs. for the Appellant.

Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi,Sanjeev Kr. Mahara, Ms. Vaidehi Rastogi, Advs. for the Respondent.

The Judgment of the Court was delivered by FBELA M. TRIVEDI, J.

1. Both the Criminal Appeal Nos. 160 of 2017 and 410 of 2017are arising out of the common judgment and order dated. 22[nd] July 2016passed by the High Court of Judicature at Madras in Criminal AppealNos. 436/2014, 482/2014, 490/2014, 175/2015 and 176/2015, wherebyGthe High Court while dismissing the said appeals has confirmed thejudgment and order dated 22[nd] July, 2014 passed by the Sessions Judge,Coimbatore (hereinafter referred to as the “Trial Court”) in SessionsCase No. 187/2008. The Trial Court had convicted the present appellantsi.e., S. Kaleeswaran (Original Accused No. 5), John Anthonisamy @John (Original Accused No.1) along with the other three Accused i.e.,H

S. KALEESWARAN v. STATE BY THE INSPECTOR OF POLICE POLLACHITOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU[BELA M. TRIVEDI, J.]

Rajesh Kumar @ Rajesh (Original Accused No. 4), R. Ganeshkumar@ Ganesh (Original Accused No.3) and Muthumanickam @ Muthu(Original Accused No. 2) for the offence under Section 120(B), 147,364 and 302 read with 120(B)/149, 201 and 396 I.P.C., and sentencedthem as detailed below:

The aggrieved appellant (Accused No.1) John Anthonisamy @John has preferred Criminal Appeal No. 410 of 2017 and appellant(Accused No. 5) S. Kaleeswaran has preferred Criminal Appeal No.160 of 2017 challenging the impugned judgement passed by High Court.The other three accused have chosen not to file any appeal.

2. As per the case of the prosecution, accused no.1 JohnAnthonisamy was a taxi driver, accused no. 2 Muthumanickam was afriend of accused no.1, and accused no. 3, 4 and 5 were the friends ofthe accused no.2. On 18.07.2007 at about 7 A.M., the accused no.1conspired with the accused no.2 and planned to commit dacoity of anAmbassador Car bearing registration No. TN-41-P-4980 and to causethe murder of John Thomas, the driver of the said car. In furtherance of A

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Athe said plan, the accused made the said John Thomas to come to theFire service car stand at Pollachi. When John Thomas arrived in theAmbassador Car at the said place, accused no.1 made the accused no.4Rajesh to hire the said Ambassador Car for two hours and requestedJohn Thomas to come by 12:30 P.M. John Thomas accordingly arrivedat the place as requested by the accused no.1 i.e., at Sakthi Hotel, Pollachi,Bwith his Ambassador Car. The accused no.1 thereafter got into the carand proceeded towards Udumalpet. On 18.07.2007 at about 01:30 P.M.,the accused no. 1 and the driver John Thomas arrived at the Udumalpetbus stand, where the accused no. 2 was waiting along with accused no.3 to 5. All the accused thereafter got into the said Ambassador Car andCproceeded towards Ammapatty and at about 02:45 P.M., all the fiveaccused made the driver John Thomas stop the car near an isolatedplace on the road between Vadaboothanam and Ammapatti Road. Allthe accused in furtherance of the conspiracy hatched by them murderedthe taxi driver John Thomas. The accused thereafter, with the intentionof causing the disappearance of the evidence, buried the dead body ofDJohn Thomas in a pit. The Ambassador Car thereafter was sold out bythem to one Rajendran of Thiruvarur and they shared the sale proceedsof the car. After John Thomas was missing for a week, a complaint wasreported by the PW-1 wife of John Thomas on 25.07.2007, which wasregistered at Pollachi (East) Police Station for missing person.E

3. The investigating officer after completing the investigation hadlaid the charge-sheet against all the five accused. All five accused werecharged by the trial court for the offences under sections 120(B), 147,364, 201, 396 I.P.C. Accused no. 3, 4 and 5 were additionally chargedfor the offence under Section 302 I.P.C. and Accused no. 1 and 2 wereFcharged for the offence under Section 302 r/w 120(B)/149 I.P.C.

4. All the accused having abjured their guilt and claimed to betried, the prosecution examined as many as 28 witnesses and adduced43 documents to prove their guilt. In their further statements recordedunder Section 313 Cr.PC, they denied the allegations levelled againstGthem and stated that they were falsely implicated in the case.

5. The learned counsel appearing for the appellants submittedthat the entire case of prosecution rested on circumstantial evidenceand the prosecution had miserably failed to prove the chain ofcircumstances beyond reasonable doubt leading to an irresistibleHconclusion of the guilt of the accused. According to them, the High Court

S. KALEESWARAN v. STATE BY THE INSPECTOR OF POLICE POLLACHITOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU

had rightly not relied upon the extra judicial confession allegedly madeby the accused no. 1, the same having not been duly proved by theprosecution, and if the said piece of evidence is discarded, the credibilityof other evidence more particularly of the witnesses PW-6 and PW-7examined by the prosecution becomes doubtful. The identity of the dead-body of the deceased was also not duly proved. The alleged recoveriesfrom an accused nos. 2 to 5 were made from the public place which hadno link to connect them with the crime. The learned counsel for theappellants further submitted that the last seen theory propounded by theprosecution also could not have been relied upon in view of the fact thatthe statements of PW-6 and PW-7, who had allegedly seen the deceasedwith the accused no.1, were recorded about six months after the allegedincident of the deceased having gone missing. However, the LearnedAdvocate Dr. Joseph Aristotle S. appearing for the respondent-Statevehemently submitted that the concurrent findings of facts as recordedby the High Court and Sessions Court, after fully appreciating theevidence adduced by the prosecution, this Court may not upset the same.According to him, though the High Court had not relied upon the extrajudicial confession made by the accused no.1, there was sufficientevidence to connect all the accused with the alleged crime. Theidentification of the dead-body of the deceased, the incriminatingrecoveries and discoveries of the articles made at the instance of theaccused having been duly proved, the entire chain of circumstancesduly proved, had led to the irresistible conclusion about the guilt of all theaccused.

6. At the outset, it may be stated that the entire case of prosecutionrested on the circumstantial evidence. The law with regard to theappreciation of evidence when the case of the prosecution hinges oncircumstantial evidence is very well-settled. The five golden principleslaid down by this Court in the case of Sharad Birdhichand Sarda v.State of Maharashtra1 and followed in a catena of decisions, are worthreproducing:

“153. A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case againstan accused can be said to be fully established:

a.the circumstances from which the conclusion of guilt is to be drawn should be fully established.

1 (1984) 4 SCC 116.

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AIt may be noted here that this Court indicated that thecircumstances concerned ‘must or should’ and not ‘maybe’ established. There is not only a grammatical but alegal distinction between ‘may be proved’ and ‘must beor should be proved’ as was held by this Court in ShivajiSahabrao Bobade & Anr. v. State of Maharashtra[2] whereBthe following observations were made:

“Certainly, it is a primary principle that the accusedmust be and not merely may be guilty before a courtcan convict and the mental distance between ‘may be’and ‘must be’ is long and divides vague conjecturesCfrom sure conclusions.”

b.the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesisexcept that the accused is guilty, D

c.the circumstances should be of a conclusive nature andtendency, d.they should exclude every possible hypothesis exceptthe one to be proved, and, Ee.there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must havebeen done by the accused.”

F7. Keeping in mind the above set of principles, let us examinewhether the prosecution had proved beyond reasonable doubt, the entirechain of circumstances, not leaving any link missing for the accused toescape from the clutches of law.

8. Heavy reliance was placed by the prosecution on the extraGjudicial confession made by the accused no.1 through an Inland letteraddressed to P.W.-19 Karthikeyan, former employer of the accused no.1 who had received the same on 29.12.2007. It appears that the saidalleged extra judicial confession of the accused no. 1 was the triggerpoint which directed the Investigating Officer to proceed further with the investigation after about five months of the alleged incident, whichhad taken place on 18.07.2007. Apart from the fact that the extra judicialconfession is a very weak piece of evidence, the High Court in theimpugned judgment had refused to rely upon the same on the groundthat neither the handwriting expert was examined nor any opinion ofhandwriting expert was proved by the prosecution. It cannot be gainsaidthat when the extra judicial confession is not duly proved, or does notinspire confidence or is not corroborated by any other reliable evidence,the conviction could not be based solely on such weak piece of evidence.In the instant case, the prosecution having not examined the handwritingexpert for proving the handwritings of the accused no.1 contained in theInland letter allegedly addressed to the PW-19, nor any expert’s opinionhaving been obtained, in our opinion, the High Court had rightly discardedthe said piece of evidence with regard to the alleged extra judicialconfession made by the accused no.1.

9. The next circumstance on which the prosecution had placedheavy reliance was with regard to the theory of “last seen together”,relying upon the evidence of PW-6 and PW-7. It is noteworthy that boththe witnesses were the taxi drivers and were operating the taxis fromthe same taxi stand from where the deceased was operating his taxi,however their statements were recorded by the investigation officeralmost six months after the alleged incident. The PW-6 had deposedbefore the Trial Court inter-alia that on 18.07.2007, he was standingnear Durai Cinema Theatre at Pollachi to meet his friend and at about12:45 pm the accused no.1 was seen standing near the Sakthi Hotel,which was situated near the place where he (PW-6) was standing. Hefurther stated that within a short time, John Thomas (the deceased)came to the said place driving his taxi bearing registration no. TN-41-P-4980. He (PW-6) noticed that the accused no.1 was talking to thedeceased for a while, and thereafter the accused no.1 got into the frontseat of the car and then both went away in the car. According to thiswitness he did not see the deceased John Thomas thereafter. The PW-7 was also a taxi driver. He stated in his deposition before the Court thaton 18.07.2007 when he was returning from Palani via Udumalpet busstand, he saw the taxi driven by John Thomas. He therefore sloweddown his taxi and saw that he (John Thomas) was at the driver’s seat,and the accused no.1 whom he knew was in the front seat. According tohim, he also saw four other persons siting in the car but he did not knowthem at that time.

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A10. Having regard to the evidence of PW-6 and PW-7, it appearsthat apart from the fact that their statements were recorded by theInvestigating Officer after six months of the alleged incident, their evidencebefore the Court does not inspire confidence. The PW-6 in the cross-examination had admitted that he had come to know about the deceasedhaving gone missing within one week of his having seen the deceasedBwith the accused no. 1. It is difficult to appreciate his behaviour not todisclose this crucial information for six months either to his fellow taxidrivers or to the police about he having seen the deceased lastly in thecompany of the accused no.1. So far as PW 7 is concerned, he haddeposed that he got to know about the deceased having gone missingConly when Police came for enquiry on 01.01.2008. In our opinion, whenthe Investigating Officer was time and again coming to the taxi standwhere all the taxi drivers including the PW-6 and PW-7 used to stand,for inquiring about the deceased’s whereabouts, and when wide publicitywas made in the local newspapers, television and radio about the deceasedhaving gone missing, it is not believable that the PW-7 came to knowDabout the deceased having gone missing only when the police came tohim to make inquiry six months after the incident in question. PW-7 hadalso admitted that he did not know the other four accused who wereaccompanied the accused no.1 and the deceased on the alleged date ofincident. When there was huge time gap of about more than six monthsEbetween the date of the incident and the date of recording of statementsof witnesses by the Investigating Officer, the Test Identification Paradewould have assisted the police in identifying the accused seen by thePW-7, however no such TI Parade was held by the Investigating Officer.Therefore, identification of the accused nos. 2 to 5 at the instance ofthese witnesses also becomes very doubtful.F

11. It is well settled that if there is considerable time gap betweenthe persons seeing together and the proximate time of the crime, thecircumstances of last seen together, even if proved cannot clinchinglyfasten the guilt of the accused. (State of Goa vs. Sanjay Thakran[3]).

G12. The failure of the accused, in a case based on circumstantialevidence which included “last seen together theory”, to explain underSection 313 Cr.PC as to under what circumstances the victim suffereddeath, would also not be a ground to arrive at an irresistible conclusionthat the accused were involved in the commission of the alleged crime.

In the instant case, even if the theory of “last seen together” propoundedby the prosecution is accepted, then also it is difficult to draw an irresistibleconclusion that the accused are guilty of the alleged offences, merelybecause they failed to explain as to under what circumstances the victimsuffered death.

13. The next circumstance relied upon by the prosecution isidentification of the body. It may be noted that the corpus when found,was in a highly-decomposed condition. Skeletal remains were found afteralmost 5 months from the date of the incident of the deceased havinggone missing. The identification, therefore, was done by getting the skullsuper-imposition test done through the PW-16, forensic expert. InPattuRajan v. State of Tamil Nadu4, this Court has explained that thoughidentification of the deceased through superimposition is an acceptablepiece of opinion evidence, however the courts generally do not rely uponopinion evidence as the sole incriminating circumstances, given itsfallibility, and the superimposition technique cannot be regarded asinfallible. In the present case, since the super-imposition report was notsupported by any other reliable medical evidence like a DNA report orpost-mortem report, it would be very risky to convict the accused believingthe identification of the dead body of the victim through the super-imposition test. It is true that in the case based on circumstantial evidence,if the entire chain is duly proved by cogent evidence, the convictioncould be recorded even if the corpus is not found, but when as per thecase of prosecution, the dead body of the victim was discovered fromthe place shown by the accused, it is imperative on the part of theprosecution to prove that the dead body or the skeleton found at theinstance of the accused was that of the victim and of none else.

14. The Court also finds substance in the submission made by thelearned counsel for the appellants that the prosecution had also failed toprove the motive of the accused for committing the alleged crime. Asheld inNandu Singh v. State of M.P.[5], though in a case of direct evidence,motive would not be relevant, in a case of circumstantial evidence, motiveplays an important link to complete the chain of circumstances. In theinstant case, the PW-8 Mr. Rajendran to whom the Ambassador car ofthe deceased was allegedly sold by the accused, had turned hostile andnot supported the case of the prosecution that the money was receivedby the accused by selling the car to the PW-8.

4 (2019) 2 SCC (Cri) 354.

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

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A15. Thus, having regard to the totality of evidence adduced by theprosecution, in our opinion, the circumstances relied upon by theprosecution did not complete the chain to dispel the hypothesis ofinnocence of the appellants-accused. The prosecution having failed toestablish through clinching, clear, cogent and consistent evidence, thechain of events, on the basis of which the guilt of the appellants-accusedBcould be established, in our opinion, the Courts below had committed anerror in accepting the case of prosecution and convicting them for thealleged crime.

16. In that view of the matter, the judgements and orders ofconviction and sentence passed by the Trial Court and confirmed by theCHigh Court are set aside. Both the appellants-accused, and the otherthree accused who have not filed any appeal, are directed to be set freeforthwith, if not required in any other case.

17. The appeals stand allowed accordingly.

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(Assisted by : Shashwat Jain, LCRA)

Appeals allowed.

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