Case details

Court: Supreme Court of India
Decided: 19 January 2023
Bench: M.R. Shah
Citations: 2023 INSC 54[2023] 1 S.C.R. 279
Type: Judgment (Dismissed)

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Citation: [2023] 1 S.C.R. 279 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

JOHN ANTHONISAMY @ JOHN versus STATE, REP. BY THE INSPECTOR OF POLICE on 19 January 2023

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[2023] 1 S.C.R. 279

JOHN ANTHONISAMY @ JOHN

STATE, REP. BY THE INSPECTOR OF POLICE

(Criminal Appeal No. 466 of 2017)

JANUARY 19, 2023

[M. R. SHAH AND C.T RAVIKUMAR, JJ.]

Penal Code, 1860 – s.302 r/w s.201 – Murder – Circumstantialevidence – Purported extra-judicial confession – Effect – Fiveaccused including appellant (A-1) – Prosecution case that inpursuance of a conspiracy, the accused persons killed the deceasedand stole/took away his car – PW11 (Sub inspector) closed the caseas undetected – However, case was subsequently re-opened andinvestigation initiated by police witness (PW30) on basis ofconfessional statement made in letter allegedly written by appellantto PW22 – Trial Court convicted appellant u/s.302 r/w s.201 IPC –Conviction confirmed by High Court – Challenge to – Held: It wascontended by appellant that he was convicted on confessionalstatement in his letter /communication to PW22 and the instant casebeing a case of circumstantial evidence, therefore, unless and untilthe complete chain of events were proved and established, he couldnot have been convicted on confessional statement – However, HighCourt did not give much weightage so far as the letter /communicationby appellant addressed to PW22 is concerned and therefore, itcannot be said that appellant was convicted on the confessionalstatement made in the letter /communication concerned – Further,as rightly observed by the High Court, by other circumstances theprosecution established and proved that the deceased was killedafter his car was stolen/taken away by the appellant – First strongcircumstance against the appellant was that the dead body wasexhumed from the place identified by appellant and super impositiontest and DNA examination proved that the dead body was that ofthe deceased – Second strong circumstance against the appellantwas that the car was recovered from the place and the persondisclosed by the appellant – Another circumstance against theappellant was that the car engine and gear box sold by him wasrecovered from PW-17 on disclosure statement made by appellant –Conviction of appellant accordingly confirmed.

DEFGH

ADismissing the appeal, the Court

HELD : 1. It is the case on behalf of the appellant that hehas been convicted on the confessional statement and therefore,in case of circumstantial evidence and unless and until thecomplete chain of events were proved and established, he couldnot have been convicted on confessional statement. However,Bthe so-called communication by the appellant addressed to PW-22 is as such not believed by the High Court being secondaryevidence and the same has not been proved. Therefore, as suchthe High Court has not given much weightage so far as the letter/communication is concerned. Therefore, it cannot be said thatthe appellant has been convicted on the confessional statementCmade in the letter /communication. [Para 6.1][286-E-H; 287-A]

2. During investigation, appellant disclosed the place wherehe had buried the dead body of the deceased. The dead body wasexhumed from the place identified by appellant. Thereafter, thesuper imposition test was conducted and the DNA examinationDwas conducted on the bones and the skull and it was proved thatthe dead body was that of the deceased. [Para 6.2][287-B-D]

3. There is a recovery of car driven by the deceased fromthe place and the person disclosed by appellant. The prosecutionhas successfully proved the same by examining PW-16, aperson to whom the stolen car was sold by appellant.E[Para 6.3][287-E-F]

4. The prosecution has been successful in proving that thecar engine and gear box which were sold by the appellant wasrecovered from PW-17 on the disclosure statement made byappellant. [Para 6.4][287-G-H]F5. It is rightly observed by the High Court, by other

5. It is rightly observed by the High Court, by othercircumstances the prosecution has established and proved thatthe deceased was killed after his car was stolen /taken away bythe appellant. [Para 6.5][288-D-E]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 466 of 2017.G

From the Judgment and Order dated 22.07.2016 of the High Courtof Judicature at Madras in Criminal Appeal No.171 of 2015.

Rakesh K. Sharma, Ms. N. S. Nappinai, V. Balaji, AsaithambiMsm, C. Kannan, Nizamuddin, Advs. for the Appellant.

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

The Judgment of the Court was delivered by

M. R. SHAH, J.

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1. Feeling aggrieved and dissatisfied with the impugned finaljudgment and order dated 22.07.2016 passed by the High Court ofJudicature at Madras in Criminal Appeal No. 171/2015, by which, theHigh Court has dismissed the said appeal preferred by the appellantherein – original accused No. 1 and has confirmed the conviction andsentence imposed by the learned Trial Court for the offences punishableunder Section 302 read with Section 201 of the IPC, the original accusedNo. 1 has preferred the present appeal.

2. The prosecution case is elaborately stated by the High Court inthe impugned judgment in paragraph 2. As per the case of the prosecution,the deceased was employed as a driver by PW-1 to drive a taxi ownedby him. On 26.06.2006 at about 06.30 a.m., the deceased left his houseafter informing his wife. That thereafter, he did not return.

2.1That A-1 was also driving a taxi for some time and in sucha way he knew the deceased. It was alleged that all theaccused persons on 23.05.2006 hatched a conspiracy toengage the car driven by the deceased and after taking himto a far-off isolated place, kill him and then to steal the carand other personal belongings owned by the deceased. Asper the prosecution case, in pursuance of the said conspiracy,on 26.05.2006, A-2 to A-5 met A-1 at Pollachi ThermuttiBus Stop. Then, A-1 spoke to the deceased and fixed himfor going to Udumalpet in the taxi driven by the deceased.Accordingly, the deceased came in the taxi to ThermuttiBus Stop. Then, all the five accused got into the taxi. Thetaxi proceeded towards Udumalpet. When it was nearingthe village known as Ammapatti at an isolated place, theaccused wanted the deceased to stop the car for a while.The deceased stopped the car, as soon as the car came toa halt suddenly A-2 came to strangulate the deceased byneck. A-3 and A-4 tied the hands of the deceased and A-5tied the legs of the deceased with ropes. Then, they put thedeceased in between the front and back seats of the car.A-3 to A-5 sat on the back seat of the car and ensured thatthe deceased was not crying. The car was driven by A-1.

The deceased died. All the five accused put the dead bodyof the deceased into the pit and buried the same. Thereafter,all the five accused ran away from the scene of occurrencewith the car.

2.2PW-1 tried to contact the deceased on 26.06.2006 overphone, but his phone was found to be switched off modeand PW-1 went to the house of deceased and met PW-3and PW-3 informed him that after 26.06.2006 at about 6.30am deceased was not seen. After the search the deceasedwas not found and therefore, PW-1 made a complaint tothe Police on 30.06.2006. PW-11, the then Sub-Inspectorof Police registered a case as Crime No. 363/2006 underSection 406 of IPC. That thereafter, an FIR was assignedto the jurisdictional court. That thereafter, PW-11 startedinvestigation. He recorded the statement of the relevantwitnesses. However, thereafter, PW-11 closed the case on04.02.2007 as undetected. The learned Magistrate acceptedthe closure report. However, thereafter on the basis of aletter alleged to have been written by A-1 addressed toPW-22 which was received by him on 29.12.2007, by whichA-1 had alleged to have confessed that he along with otheraccused engaged the taxi in question, took the driver(deceased), killed him and buried the dead body and tookaway the taxi. According to the confessional statementrecorded in the said letter some parts of the car were takenby A-2 to A-5. PW-22 went to the Police Station alongwith the said letter on 30.12.2007 and handed over the letterto PW-30. On the basis of the same, the investigation begun.On the basis of the statement of A-1, the place where thecar was hidden and the dead body was buried came to berecovered. Thus, the dead body was recovered at theinstance of A-1. PW-30 altered the case into one underSections 302 and 396 of IPC. PW-30 arrested A-1. Duringthe investigation, on disclosure statement of A-1, PW-30recovered the car without engine and the gear box fromPW-16 as identified by A-1. On the disclosure statementof A-1, the car engine and the gear box were alsorecovered. As observed hereinabove, the dead body wasexhumed from the place identified by A-1. Post-mortem of the deceased was conducted. Several injuries were found.On completion of the investigation, PW-30 filed thechargesheet against all the accused. The case wascommitted to the Sessions Court. The accused pleaded notguilty and therefore, all of them came to be tried for theoffence under Section 302 and other offence of IPC.

2.3The prosecution examined a number of witnesses. PW-16can be said to be the star witness from whom the car drivenby the deceased was seized by the Police on the disclosurestatement made by A-1. After conclusion of the prosecutionevidence, further statements of the accused under Section313 CrPC were recorded. The accused denied theallegations against them. The accused examined DW-1 intheir defence. On appreciation of evidence the learned TrialCourt convicted A-1 – appellant herein. The judgment andorder of conviction and sentence passed by the learned TrialCourt has been confirmed by the High Court by theimpugned judgment and order. Hence, the present appealat the instance of the appellant – original accused No. 1.

3. Ms. N.S. Nappinai, learned counsel has appeared on behalf ofthe appellant – accused and Dr. Joseph Aristotle S., learned counsel hasappeared on behalf of the State.

4. Learned counsel appearing on behalf of the accused hasvehemently submitted that in the present case the prosecution case isbased solely on the circumstantial evidence. It is submitted that it issettled law that before convicting an accused each link in the chainought to be established such that it leads to the irresistible conclusion ofguilt of the accused.

4.1It is submitted that in the present case, the prosecution hasnot established that the death of the deceased was homicidal.It is submitted that as such the doctor who performed thepost-mortem was not able to give any definite opinion as toGthe cause of the death.

4.2It is submitted that in the present case both, learned TrialCourt as well as the High Court has convicted the accusedbased on the confessional statement/extra judicialconfession. It is submitted that as per the settled proposition H

of law extra judicial confession is weak evidence. It issubmitted that recovery pursuant to the confession ofaccused does not establish anything beyond possession ofstolen goods and it does not implicate accused of committingmurder.

B4.3It is submitted by the learned counsel appearing on behalfof the accused that in the present case the recovery of thedead body from the place shown by A-1 and that recoveryof car without engine and gear box from the place identifiedby A-1 and thereafter, recovery of gear box of the car fromPW-16 cannot be believed as the same was on the basis ofCthe confessional statement/disclosure statement. It issubmitted that therefore, the circumstances set out by theHigh Court do not support the prosecution case.

4.4It is further submitted that so far as the recovery of thedead body from the place identified by A-1 is concerned, itDis submitted that as such on 31.12.2007, after the arrest, A-2 gave a voluntary confessional statement before Police inwhich he disclosed the place of burial. It is submitted thatthe place of burial was disclosed by A-2. It is submittedthat therefore the place of burial of the dead body wasEwithin the prior knowledge of Police.

4.5It is further submitted that when PW-22 received the extrajudicial confession letter on 29.12.2007, which he handedover to the Police on 30.12.2007 in that letter place of burialof the dead body was mentioned. It is submitted that theFplace of burial was disclosed on 29.12.2007 itself. It issubmitted that the Police arrested A-1 at the instance ofPW-22 on 30.12.2007. It is submitted that as such the allegedextra judicial confession letter addressed to PW-22 receivedon 29.12.2007 is not believable at all and as such the Courtsbelow has not believed the same. It is submitted that theGsaid letter has been rejected by the High Court. It issubmitted that therefore, the entire investigation can be saidto be tainted and cannot be relied upon.

4.6It is vehemently submitted that the place of burial was notdiscovered from A-1’s confessional statement but it was H

discovered already from A-2’s confession and extra judicialconfession. It is submitted that therefore, the appellant –accused could not have been convicted on the basis ofrecovery of the dead body on the alleged disclosure madeby the A-1.

4.7Now so far as the recovery of the car without engine andgear box recovered from the place identified by A-1 isconcerned, it is submitted that for the aforesaid the HighCourt has relied upon PW-16 evidence. It is submitted thathowever, the learned Trial Court rejected the PW-16evidence and suspected the recovery of M.O.1, M.O.2 andM.O.3 i.e., the car, engine, and gear box, respectively. It issubmitted that while accepting PW-16 evidence, the HighCourt has failed to consider and/or discuss the evidencerecorded by the learned Trial Court.

4.8Now so far as the recovery of engine and gear box of thecar recovered from PW-17 is concerned, it is submittedthat all the witnesses in connection with the recovery ofstolen objects like PW-17 and PW-23 did not support therecovery of car – M.O.1. It is submitted that therefore, thealleged recovery of gear box, engine and car speakers statedto have been recovered in pursuance of alleged confessionare not acceptable.

4.9It is submitted that therefore when the prosecution caserests only on the above circumstantial evidence, each ofwhich is demonstrably untrustworthy and inadequate tosustain the serious charges against the accused, theprosecution is required to establish the guilt of the accusedbeyond reasonable doubt and/or to substantiate each link tosustain the conviction, which the prosecution has failed.

4.10It is further submitted by the learned counsel appearing onbehalf of the accused – appellant that A-1 has alreadyundergone 15 years in prison for a crime which he did notcommit and therefore, it is prayed to allow the presentappeal and acquit the accused.

5. Learned counsel appearing on behalf of the State while opposingthe present appeal has vehemently submitted that in the present case, A

Athe dead body was exhumed from the place shown and identified by A-1. It is submitted that the place of burial shown by A-1 and the identificationof the body by him has been duly proved by the prosecution. The evidenceof anthropology of expert is accepted. It is submitted that even the stolencar was also recovered on the basis of disclosure statement made by A-1. It is submitted that engine and gear box were found to be in custodyBof PW-17 on the basis of disclosure statement made by A-1. It is submittedthat PW-17 has deposed that some parts were sold by A-1. It is submittedthat aforesaid crucial circumstances have not at all been explained bythe accused in his further statement under Section 313 CrPC.

It is submitted that deposition of DW-1 has been rejected by theCCourt(s). It is submitted that therefore, no error has been committed bythe Courts below in convicting the accused for the offence punishableunder Section 302 and other offence of IPC.

5.1Making the above submissions, it is prayed to dismiss thepresent appeal.

6. We have heard learned counsel appearing on behalf of accusedas well as the State. We have gone through the findings recorded by thelearned Trial Court as well as the High Court while holding the appellant– accused No. 1 guilty for the offence punishable under Sections 302and 201 of IPC.

6.1It is the case on behalf of the appellant – accused No. 1that he has been convicted on the confessional statementand therefore, in case of circumstantial evidence and unlessand until the complete chain of events were proved andestablished, he could not have been convicted onFconfessional statement.

However, from the judgment(s) and order(s) passed by thelearned Trial Court as well as the High Court, it cannot besaid that the appellant has been convicted on the basis ofconfessional statement. In the present case, there is noGconfession by the accused that he committed the offence,which has been relied upon by the Court. It is required tobe noted that the so-called communication by the accusedNo. 1 addressed to PW-22 is as such not believed by theHigh Court being secondary evidence and the same hasnot been proved. Therefore, as such the High Court hasH

not given much weightage so far as the letter/communicationis concerned. Therefore, it cannot be said that the appellant– accused No. 1 has been convicted on the confessionalstatement made in the letter/communication.

6.2However, at the same time, it can be seen that thecommunication/letter received by Police on 30.12.2007 wasthe cause for reopening of the case, as earlier the casewas closed on 04.02.2007 as untraceable. That thereafter,the actual investigation began by PW-30. That thereafter,during investigation A-1 disclosed the place where he hadburied the dead body of the deceased. The dead body wasexhumed from the place identified by A-1. Thus, it was acase of recovery of the dead body at the instance of theaccused from the place which was disclosed by the accusedwho can be said to be in exclusive knowledge of the placewhere the dead body was buried. That thereafter, the superimposition test was conducted and the DNA examinationwas conducted on the bones and the skull and it was provedthat the dead body was that of the deceased. This is thefirst strong circumstance against the appellant – A-1 whichhas led to his conviction.

6.3That thereafter, even the car which was driven by thedeceased at the relevant time was recovered from PW-16which was at the instance of the accused himself. Thatthere is a recovery of car driven by the deceased from theplace and the person disclosed by the accused No. 1 –appellant. The prosecution has successfully proved the sameby examining PW-16, a person to whom the stolen car wassold by the appellant – accused No. 1. This is the secondstrong circumstance against the appellant – accusedNo. 1.

6.4That thereafter, the prosecution has been successful inproving that the engine and gear box which were sold bythe appellant – accused No. 1 was recovered from PW-17.The engine and gear box of the stolen car were found fromthe custody of PW-17 on the disclosure statement made byA-1. Though, PW-17 has turned hostile, however, at thesame time, the recovery of engine and gear box from PW- A

17 which were recovered on the disclosure statement madeby A-1 has been established and proved by the prosecutionby examining Police witness – PW-30, we see no reason todisbelieve PW-30 on the aforesaid. This is anothercircumstance against the appellant – accused No. 1. Thuson the basis of the aforesaid strong circumstances whenthe learned Trial Court as well as the High Court hasconvicted the accused – appellant for the offences underSections 302 and 201 of IPC, we see no reason to interferewith the same in exercise of powers under Article 136 ofthe Constitution of India.

6.5Now so far as the submissions made on behalf of theappellant that the prosecution has failed to prove that thedeath of deceased was the homicidal as in the post- mortemreport the cause of death was unascertainable is concerned,it is required to be noted that as the dead body was buriedDand was found after numbers of months, it may not bepossible for the prosecution to prove that the death was ahomicidal death. However, at the same time and as rightlyobserved by the High Court, by other circumstances theprosecution has established and proved that the deceasedwas killed after his car was stolen/taken away by theEappellant – accused No. 1.

7. Considering the aforesaid facts and circumstances, we are morethan satisfied that the High Court has not committed any error indismissing the appeal and confirming the judgment and order of convictionand sentence imposed by the learned Trial Court convicting the appellantF– accused No. 1 for the offences punishable under Sections 302 and201 of IPC.

7.1In view of the above and for the reasons stated above, nointerference of this Court is called for. The appeal deservesto be dismissed and is accordingly dismissed.