Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 466 OF 2017
John Anthonisamy @ John …Appellant(s)
Versus
State, Rep. by the Inspector of Police …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned final
judgment and order dated 22.07.2016 passed by the High
Court of Judicature at Madras in Criminal Appeal No.
171/2015, by which, the High Court has dismissed the
said appeal preferred by the appellant herein – original
accused No. 1 and has confirmed the conviction and
sentence imposed by the learned Trial Court for the
offences punishable under Section 302 read with Section
Signature Not Verified
Digitally signed by
Neetu Sachdeva
Date: 2023.01.19
16:40:12 IST
Reason:
201 of the IPC, the original accused No. 1 has preferred the
present appeal.
1
2. The prosecution case is elaborately stated by the High
Court in the 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 owned by him. On
26.06.2006 at about 06.30 a.m., the deceased left his
house after informing his wife. That thereafter, he did not
return.
2.1 That A-1 was also driving a taxi for some time and in such
a way he knew the deceased. It was alleged that all the
accused persons on 23.05.2006 hatched a conspiracy to
engage the car driven by the deceased and after taking him
to a far-off isolated place, kill him and then to steal the car
and other personal belongings owned by the deceased. As
per the prosecution case, in pursuance of the said
conspiracy, on 26.05.2006, A-2 to A-5 met A-1 at Pollachi
Thermutti Bus Stop. Then, A-1 spoke to the deceased and
fixed him for going to Udumalpet in the taxi driven by the
deceased. Accordingly, the deceased came in the taxi to
Thermutti Bus Stop. Then, all the five accused got into the
taxi. The taxi proceeded towards Udumalpet. When it was
2
nearing the village known as Ammapatti at an isolated
place, the accused wanted the deceased to stop the car for
a while. The deceased stopped the car, as soon as the car
came to a halt suddenly A-2 came to strangulate the
deceased by neck. A-3 and A-4 tied the hands of the
deceased and A-5 tied the legs of the deceased with ropes.
Then, they put the deceased 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 that the deceased was not crying. The car
was driven by A-1. The deceased died. All the five accused
put the dead body of the deceased into the pit and buried
the same. Thereafter, all the five accused ran away from
the scene of occurrence with the car.
2.2 PW-1 tried to contact the deceased on 26.06.2006 over
phone, but his phone was found to be switched off mode
and PW-1 went to the house of deceased and met PW-3
and PW-3 informed him that after 26.06.2006 at about
6.30 am deceased was not seen. After the search the
deceased was not found and therefore, PW-1 made a
complaint to the Police on 30.06.2006. PW-11, the then
3
Sub-Inspector of Police registered a case as Crime No.
363/2006 under Section 406 of IPC. That thereafter, an
FIR was assigned to the jurisdictional court. That
thereafter, PW-11 started investigation. He recorded the
statement of the relevant witnesses. However, thereafter,
PW-11 closed the case on 04.02.2007 as undetected. The
learned Magistrate accepted the closure report. However,
thereafter on the basis of a letter alleged to have been
written by A-1 addressed to PW-22 which was received by
him on 29.12.2007, by which A-1 had alleged to have
confessed that he along with other accused engaged the
taxi in question, took the driver (deceased), killed him and
buried the dead body and took away the taxi. According to
the confessional statement recorded in the said letter some
parts of the car were taken by A-2 to A-5. PW-22 went to
the Police Station along with the said letter on 30.12.2007
and handed over the letter to PW-30. On the basis of the
same, the investigation begun. On the basis of the
statement of A-1, the place where the car was hidden and
the dead body was buried came to be recovered. Thus, the
dead body was recovered at the instance of A-1. PW-30
4
altered the case into one under Sections 302 and 396 of
IPC. PW-30 arrested A-1. During the investigation, on
disclosure statement of A-1, PW-30 recovered the car
without engine and the gear box from PW-16 as identified
by A-1. On the disclosure statement of A-1, the car engine
and the gear box were also recovered. As observed
hereinabove, the dead body was exhumed 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 the chargesheet against all
the accused. The case was committed to the Sessions
Court. The accused pleaded not guilty and therefore, all of
them came to be tried for the offence under Section 302
and other offence of IPC.
2.3 The prosecution examined a number of witnesses. PW-16
can be said to be the star witness from whom the car
driven by the deceased was seized by the Police on the
disclosure statement made by A-1. After conclusion of the
prosecution evidence, further statements of the accused
under Section 313 CrPC were recorded. The accused
5
denied the allegations against them. The accused
examined DW-1 in their defence. On appreciation of
evidence the learned Trial Court convicted A-1 – appellant
herein. The judgment and order of conviction and sentence
passed by the learned Trial Court has been confirmed by
the High Court by the impugned judgment and order.
Hence, the present appeal at the instance of the appellant
– original accused No. 1.
3. Ms. N.S. Nappinai, learned counsel has appeared on behalf
of the appellant – accused and Dr. Joseph Aristotle S.,
learned counsel has appeared on behalf of the State.
4. Learned counsel appearing on behalf of the accused has
vehemently submitted that in the present case the
prosecution case is based solely on the circumstantial
evidence. It is submitted that it is settled law that before
convicting an accused each link in the chain ought to be
established such that it leads to the irresistible conclusion
of guilt of the accused.
6
4.1 It is submitted that in the present case, the prosecution
has not established that the death of the deceased was
homicidal. It is submitted that as such the doctor who
performed the post-mortem was not able to give any
definite opinion as to the cause of the death.
4.2 It is submitted that in the present case both, learned Trial
Court as well as the High Court has convicted the accused
based on the confessional statement/extra judicial
confession. It is submitted that as per the settled
proposition of law extra judicial confession is weak
evidence. It is submitted that recovery pursuant to the
confession of accused does not establish anything beyond
possession of stolen goods and it does not implicate
accused of committing murder.
4.3 It is submitted by the learned counsel appearing on behalf
of the accused that in the present case the recovery of the
dead body from the place shown by A-1 and that recovery
of car without engine and gear box from the place
identified by A-1 and thereafter, recovery of gear box of the
car from PW-16 cannot be believed as the same was on the
7
basis of the confessional statement/disclosure statement.
It is submitted that therefore, the circumstances set out by
the High Court do not support the prosecution case.
4.4 It is further submitted that so far as the recovery of the
dead body from the place identified by A-1 is concerned, it
is submitted that as such on 31.12.2007, after the arrest,
A-2 gave a voluntary confessional statement before Police
in which he disclosed the place of burial. It is submitted
that the place of burial was disclosed by A-2. It is
submitted that therefore the place of burial of the dead
body was within the prior knowledge of Police.
4.5 It is further submitted that when PW-22 received the extra
judicial confession letter on 29.12.2007, which he handed
over to the Police on 30.12.2007 in that letter place of
burial of the dead body was mentioned. It is submitted
that the place of burial was disclosed on 29.12.2007 itself.
It is submitted that the Police arrested A-1 at the instance
of PW-22 on 30.12.2007. It is submitted that as such the
alleged extra judicial confession letter addressed to PW-22
received on 29.12.2007 is not believable at all and as such
8
the Courts below has not believed the same. It is
submitted that the said letter has been rejected by the
High Court. It is submitted that therefore, the entire
investigation can be said to be tainted and cannot be relied
upon.
4.6 It is vehemently submitted that the place of burial was not
discovered from A-1’s confessional statement but it was
discovered already from A-2’s confession and extra judicial
confession. It is submitted that therefore, the appellant –
accused could not have been convicted on the basis of
recovery of the dead body on the alleged disclosure made
by the A-1.
4.7 Now so far as the recovery of the car without engine and
gear box recovered from the place identified by A-1 is
concerned, it is submitted that for the aforesaid the High
Court has relied upon PW-16 evidence. It is submitted that
however, the learned Trial Court rejected the PW-16
evidence and suspected the recovery of M.O.1, M.O.2 and
M.O.3 i.e., the car, engine, and gear box, respectively. It is
submitted that while accepting PW-16 evidence, the High
9
Court has failed to consider and/or discuss the evidence
recorded by the learned Trial Court.
4.8 Now so far as the recovery of engine and gear box of the
car recovered from PW-17 is concerned, it is submitted
that all the witnesses in connection with the recovery of
stolen objects like PW-17 and PW-23 did not support the
recovery of car – M.O.1. It is submitted that therefore, the
alleged recovery of gear box, engine and car speakers
stated to have been recovered in pursuance of alleged
confession are not acceptable.
4.9 It is submitted that therefore when the prosecution case
rests only on the above circumstantial evidence, each of
which is demonstrably untrustworthy and inadequate to
sustain the serious charges against the accused, the
prosecution is required to establish the guilt of the
accused beyond reasonable doubt and/or to substantiate
each link to sustain the conviction, which the prosecution
has failed.
10
4.10 It is further submitted by the learned counsel appearing
on behalf of the accused – appellant that A-1 has already
undergone 15 years in prison for a crime which he did not
commit and therefore, it is prayed to allow the present
appeal and acquit the accused.
5. Learned counsel appearing on behalf of the State while
opposing the present appeal has vehemently submitted
that in the present case, the 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 identification of
the body by him has been duly proved by the prosecution.
The evidence of anthropology of expert is accepted. It is
submitted that even the stolen car 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
custody of PW-17 on the basis of disclosure statement
made by A-1. It is submitted that PW-17 has deposed that
some parts were sold by A-1. It is submitted that aforesaid
crucial circumstances have not at all been explained by the
accused in his further statement under Section 313 CrPC.
11
It is submitted that deposition of DW-1 has been rejected
by the Court(s). It is submitted that therefore, no error has
been committed by the Courts below in convicting the
accused for the offence punishable under Section 302 and
other offence of IPC.
5.1 Making the above submissions, it is prayed to dismiss the
present appeal.
6. We have heard learned counsel appearing on behalf of
accused as well as the State. We have gone through the
findings recorded by the learned Trial Court as well as the
High Court while holding the appellant – accused No. 1
guilty for the offence punishable under Sections 302 and
201 of IPC.
6.1 It is the case on behalf of the appellant – accused No. 1
that he has been convicted on the confessional statement
and therefore, in case of circumstantial evidence and
unless and until the complete chain of events were proved
and established, he could not have been convicted on
confessional statement.
12
However, from the judgment(s) and order(s) passed by the
learned Trial Court as well as the High Court, it cannot be
said that the appellant has been convicted on the basis of
confessional statement. In the present case, there is no
confession by the accused that he committed the offence,
which has been relied upon by the Court. It is required to
be noted that the so-called communication by the accused
No. 1 addressed to PW-22 is as such not believed by the
High Court being secondary evidence and the same has
not been proved. Therefore, as such the High Court has
not given much weightage so far as the
letter/communication is concerned. Therefore, it cannot be
said that the appellant – accused No. 1 has been convicted
on the confessional statement made in the
letter/communication.
6.2 However, at the same time, it can be seen that the
communication/letter received by Police on 30.12.2007
was the cause for reopening of the case, as earlier the case
was closed on 04.02.2007 as untraceable. That thereafter,
the actual investigation began by PW-30. That thereafter,
13
during investigation A-1 disclosed the place where he had
buried the dead body of the deceased. The dead body was
exhumed from the place identified by A-1. Thus, it was a
case of recovery of the dead body at the instance of the
accused from the place which was disclosed by the
accused who can be said to be in exclusive knowledge of
the place where the dead body was buried. That thereafter,
the super imposition test was conducted and the DNA
examination was conducted on the bones and the skull
and it was proved that the dead body was that of the
deceased. This is the first strong circumstance against the
appellant – A-1 which has led to his conviction.
6.3 That thereafter, even the car which was driven by the
deceased at the relevant time was recovered from PW-16
which was at the instance of the accused himself. That
there is a recovery of car driven by the deceased from the
place and the person disclosed by the accused No. 1 –
appellant. The prosecution has successfully proved the
same by examining PW-16, a person to whom the stolen
car was sold by the appellant – accused No. 1. This is the
14
second strong circumstance against the appellant –
accused No. 1.
6.4 That thereafter, the prosecution has been successful in
proving that the engine and gear box which were sold by
the appellant – accused No. 1 was recovered from PW-17.
The engine and gear box of the stolen car were found from
the custody of PW-17 on the disclosure statement made by
A-1. Though, PW-17 has turned hostile, however, at the
same time, the recovery of engine and gear box from PW-
17 which were recovered on the disclosure statement made
by A-1 has been established and proved by the prosecution
by examining Police witness – PW-30, we see no reason to
disbelieve PW-30 on the aforesaid. This is another
circumstance against the appellant – accused No. 1. Thus
on the basis of the aforesaid strong circumstances when
the learned Trial Court as well as the High Court has
convicted the accused – appellant for the offences under
Sections 302 and 201 of IPC, we see no reason to interfere
with the same in exercise of powers under Article 136 of
the Constitution of India.
15
6.5 Now so far as the submissions made on behalf of the
appellant that the prosecution has failed to prove that the
death of deceased was the homicidal as in the post-
mortem report the cause of death was unascertainable is
concerned, it is required to be noted that as the dead body
was buried and was found after numbers of months, it
may not be possible for the prosecution to prove that the
death was a homicidal death. However, at the same time
and as rightly observed by the High Court, by other
circumstances the prosecution has established and proved
that the deceased was killed after his car was stolen/taken
away by the appellant – accused No. 1.
7. Considering the aforesaid facts and circumstances, we are
more than satisfied that the High Court has not committed
any error in dismissing the appeal and confirming the
judgment and order of conviction and sentence imposed by
the learned Trial Court convicting the appellant – accused
No. 1 for the offences punishable under Sections 302 and
201 of IPC.
16
7.1 In view of the above and for the reasons stated above, no
interference of this Court is called for. The appeal deserves
to be dismissed and is accordingly dismissed.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
JANUARY 19, 2023 [C.T. RAVIKUMAR]
17