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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 512  OF 2010

KRISHNAN @ RAMASAMY & ORS.        … APPELLANTS

VERSUS

STATE OF TAMIL NADU       … RESPONDENT

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment dated 31st  

March, 2008 passed by the High Court of Judicature at Madras  

in Criminal Appeal No.1009 of 2005. By the impugned judgment  

the High Court dismissed the appeal and affirmed the judgment  

of conviction and sentence passed by the learned Sessions  

Judge against the appellants for the offence under Section  

364, 302 and 201 read with Section 34 IPC.

2. The case of the prosecution in nutshell is as follows:

Prior  to  4th April,  2004,  the  date  of  incident,  the  

deceased  Manikandan  expressed  his  love  to  one  Rajeswari,  

daughter of accused No.1, Krishnan @ Ramasamy and accused  

No.5, Selvam. For the said reason, there was a commotion  

which resulted in enmity between the accused on the one side  

and the deceased Manikandan on the other side. The deceased  

was driven out of Neyveli area. Subsequently, on 4th April,

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2004  during  Panguni  Uthram  Kaavadi  Festival  at  

Veludaiyanpattu  village,  the  deceased  visited  for  the  

festival. On the said date at about 6.30 p.m., the deceased  

along  with  his  friends  was  talking  behind  the  school  at  

Vadakkumelur.  At  that  time   accused  No.1,  Krishnan  @  

Ramasamy,  accused No.2  Rajendiran @  Chinnu, accused  No.3,  

Ramalingam and accused No.5, Selvam came there and took the  

deceased Manikandan to the place near Mariyamman Temple and  

attacked him. Later, they took him in an autorickshaw bearing  

Registration  No.TN  31Y  2376  and  abducted  him  under  the  

pretext that the deceased was being taken to Police Station.  

On the way, the accused purchased brandy and at 6.15 p.m. in  

the cashew thope belong to one Vijeyendiran  the deceased was  

taken out of the autorickshaw. Vijeyendiran told the accused  

not to assemble there. Then, accused Nos.1, 2 and 3 took the  

deceased  Manikandan  to  the  side  of  the  road  leading  to  

Vadakkumelur  and  under  a  margosa  tree  Manikandan  was  

compelled to drink brandy. At about 12 midnight accused Nos.1  

and 2 strangulated the deceased Manikandan by putting his  

towel around his neck and done him to death. Thereafter,  

accused Nos.1, 2 and 3 put the dead body into a borewell.  

3. On 10th April, 2004, based on the complaint given by the  

mother of the deceased Manikandan a complaint was registered  

for an offence under Section 365 IPC. On 13th April, 2004, the  

Police arrested accused No.3-Ramasamy, who gave a voluntary  

confession statement in pursuance of which accused No.3 took

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the Police to the borewell where they had hidden the dead  

body. Upon the identification of the borewell by accused No.3  

with the help of Kurinjipadi fire service personnel, the dead  

body was taken out by the Police from the borewell. The body  

was identified by Valarmathi (PW.1), Amrthavalli (PW-2) Gopal  

(PW-3), Murugan (PW-4) and Rajeswari (PW-5) to be that of  

Manikandan. The body was sent to Panruti Government Hospital  

where  inquest  was  conducted  by  Kabbadasan  (PW-13)  on  14th  

March,  2004  at  6  a.m.  in  the  presence  of  witnesses  and  

panchayatdars. The inquest report is Ex.P.17. Ex.P.9 is the  

post mortem certificate and Ex.P.10 is the opinion given by  

the  Doctor  who  conducted  postmortem.  The  Investigating  

Officer,  Kannadasan  (PW-13)  came  to  know  that  the  other  

accused  surrendered  themselves  before  the  Court.  After  

concluding the enquiry, Kannadasan (PW-13) laid charge sheet  

against the accused before the Court on 26th May, 2004 for the  

offence  under  Sections  364,  365,  302  and  201  IPC.  The  

Sessions Judge secured the presence of the accused, framed  

charges under Sections 364, 365, 302 and 201 IPC. All the  

accused pleaded not guilty and claimed to be tried.  

4. The prosecution in all examined 13 witnesses, produced  

Ex.P.1 to P.22 and marked MOS 1 to 4 to prove its case. When  

the accused were questioned under Section 313 Cr.P.C. on the  

basis of the incriminating materials made available against  

them, they denied each and every circumstance put up against  

them as false and contrary to the facts. Neither any oral

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evidence nor any documentary evidence was produced on their  

behalf.  After  considering  all  the  material  on  record  and  

hearing  the  parties,  the  Sessions  Court  had  come  to  the  

conclusion  that  the  prosecution  has  proved  its  case  only  

against accused Nos.1 to 3 for the offence under Sections  

364, 302 and 201 IPC read with Section 34 IPC and acquitted  

accused Nos.4 and 5 of the charges levelled against them.  

5. To challenge their conviction and sentence accused Nos.1  

to 3 moved before the High Court, which dismissed the appeal  

by the impugned judgment.  

6. Learned counsel for the appellants would submit that the  

Sessions  Judge  accepted  the  testimony  of  the  interested  

witness  and  on  the  basis  of  circumstantial  evidence  the  

appellants have been convicted. He would further submit that  

the prosecution case rests only upon circumstantial evidence  

but the prosecution has failed to prove such circumstances  

without any breakage of link, convicted the appellants only  

on  the  basis  of  last  seen  theory  and  the  confession  of  

accused No.3. He also submitted that the appellants (accused  

Nos.1 to 3) also stand on the same footing as that of accused  

Nos. 4 and 5, who were given benefit of doubt, such benefit  

was not extended to accused Nos.1 to 3.

7. From  the  judgment  passed  by  the  Sessions  Judge  as  

affirmed by the High Court, we find that the prosecution case  

rests only upon the circumstantial evidence. The Court mainly  

relied  upon  the  evidence  of  Valarmathi  (PW-1),  mother  of

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deceased  Manikandan,  confession  of  accused  No.3  and  the  

postmortem report.  

8. The evidence of Valarmathi (PW-1) is to the effect that  

her son Manikandan was said to have given a flower to the  

daughter of accused No.1 and since accused No.1 was very much  

annoyed  with  Manikandan,  she  sent  her  son  to  Kerala  for  

employment  in  order  to  save  him  from  the  accused.  After  

sometime,  Manikandan  had  come  to  his  native  village  for  

celebrating Panguni Uthiram Festival and when he was talking  

to his friends on one evening, he was taken by accused Nos. 1  

to 4 for questioning and on hearing the same Valarmathi (PW-

1)  went  to  said  place,  namely,  Mariyamman  Temple  where  

accused Nos.1 to 4 had been examining Manikandan. She saw her  

son being beaten up by the accused and at that time her son  

was in an unconscious state. She went and brought the village  

headman. Thereafter, Manikandan was taken from the said place  

in an autorickshaw by the accused. She immediately informed  

the village elder. The village Head came along with her and  

prevented such beating. He told the accused to leave her son  

at the Police Station. The accused had kept Manikandan till  

7.30 p.m. They sent Chinnu @ Rajendiran, accused No.2 to  

bring the auto, accused Nos.1,2 and 3 had taken her son in  

that auto. Her son had not returned next day.  Accused No.1,  

Ramasamy later on crossed her house from whom she enquired as  

to the whereabouts of her son to which he replied that her  

son would return within two days. When she further enquired

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from accused No.1, he had replied that he had sent him to  

Kerala, on paying him Rs.100/-. On the next day, i.e. 6th day  

she had again asked accused No.1 about her son and she told  

him that she would file a complaint alleging the missing of  

her son. Subsequently, after a lapse of 6 days, she had filed  

a complaint with the Police Station (Neyveli Township at 8th  

Block). The Police having come to know that they were already  

conducting  enquiry  from  accused  No.3  with  regard  to  this  

case, on the basis of the statement given by accused No.3,  

Ramalingam, the dead body of her son was retrieved from a  

deep borewell by the fire service personnel.  

9. During the cross-examination, Valarmathi (PW-1) accepted  

that she lodged the complaint after lapse of six days of  

missing of her son. She further accepted that she had not  

stated in the complaint that during the Inspector’s enquiry  

that while she had asked accused No.1 about her son, he had  

replied  that  her  son  would  return  within  two  days.  She  

further stated that when she dictated the complaint Ex.P.1,  

one auto driver had reduced it in writing. Auto driver was  

not examined.

10. Amirthavalli (PW-2) is the elder sister of Valarmathi  

(PW-1),  complainant.  She  stated  that  Manikandan  went  to  

Kerala and had returned for Panguni Uthiram Festival last  

year. When he was lying at the entrance of the house at about  

6 o’clock, all the five accused who were present, descended  

down to Valarmathi’s (PW-1) house and taken Manikandan to

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Mariyammam Temple for enquiry. They had beaten up Manikandan  

there. Then the village head had told not to beat him and  

asked  them  to  hand  him  over  to  the  Police  Station.  

Subsequently, at 8 hrs accused Rajendiran had brought the  

auto.  Then  accused  Rajendiran,  Chakkarai,  Ramasamy  and  

Ramalingam had taken Manikandan in that Auto. They had not  

gone along with them, since there was a darkness.  

11. During her cross-examination, she stated that when they  

had made a visit to Police Station, accused No.1, Ramasamy  

had  brought  the  deceased  Manikandan  to  Police Station.  

Therefore, they asked as to whether Manikandan was present  

there. The Police had replied that Manikandan was not handed  

over to them.  

12. Murugan (PW-4), a coolie at Neyveli, stated that he was  

a friend of Manikandan. He further stated that there was an  

enmity between the deceased and the accused as Manikandan had  

love with Rajeswari, daughter of accused Nos.1 and 5. Due to  

the  threat  from  accused  No.1,  Manikandan  had  left  the  

village. He stated that about 6 p.m., he had gone to the  

temple. Then all the accused and Ramasamy had found to have  

examined Manikandan in the Temple. When they were making such  

enquiry, they had beaten up Manikandan. During the cross-

examination,  he  accepted  that  he  has  not  given  any  

information about Manikandan to anybody. He had not engaged  

in a search as to the disappearance of Manikandan. He had  

enquired with Manikandan’s mother as to his disappearance on  

the  third  day  and  she  informed  him  that  there  was  no

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information as to Manikandan. He further accepted that on 11th  

April, 2004, the Police had enquired him about Manikandan, he  

had  not  mentioned  to  anyone  as  the  occurrence  happened  

between 4th day and 11th day, with regard to Manikandan.

13. In  the  FIR,  Valarmathi  (PW-1)  had  not  disclosed  the  

presence of Amirthavalli (PW-2) and Murugan (PW-4) at the  

scene of occurrence at Mariyamman Temple. Nothing was stated  

with  regard  to  Amirthavalli  (PW-2)  and  Murugan  (PW-4).  

Valarmathi  (PW-1)  did  not  disclose  the  presence  of  

Amirthavalli (PW-2) at the scene of occurrence. The deceased  

was last seen with accused Nos.1 and 4 by Village headman by  

name, super supparayan, who said to had been present at the  

place where the deceased was last seen in the company of  

accused,  was  neither  named  as  prosecution  witness  nor  

examined. There was inordinate delay of more than six days in  

filing  the  complaint  about  the  missing  of  Manikandan  but  

Valarmathi (PW-1) has not explained the delay in lodging such  

complaint.

14. Valarmathi  (PW-1)  in  her  statement  stated  that  the  

deceased Manikandan was lastly seen with the accused Nos.1 to  

4 in Mariyamman Temple. Amirthavalli (PW-2) in her statement  

stated that the deceased was last seen in the Police Station.  

The case of the prosecution is that the deceased Manikandan  

was last seen in the autorickshaw by which he was abducted  

from the house of accused No.1.

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15. In the complaint, Ex.P.1, Valarmathi (PW-1) intimated  

that  Manikandan  was  sleeping  in  the  night.  In  the  FIR,  

Ex.P.13, the motive of the accused was not disclosed. The  

accused No.3 was not even named in the FIR.  

16. The  manner  in  which  Valarmathi  (PW-1),  mother  of  

deceased Manikandan gave the detail of occurrence which took  

place on 4th April, 2004 shows as if she had seen every stage,  

the  manner  in  which  the  accused  abducted  the  deceased  

Manikandan, beaten up in the Mariyamman Temple, taken in the  

autorickshaw, reached from one place to another place and  

then went to the Police Station. The statement of Valarmathi  

(PW-1) about accused No.3 is an improvement which was not  

explained.  The  story  of  accused  to  the  deceased  in  the  

autorickshaw as narrated in the deposition of Valarmathi (PW-

1) is another improvement which she has not disclosed in the  

FIR, Ex.P.13.

17. Referring to the material on record, learned counsel for  

the appellants submitted that there is a doubt about the  

place where the deceased Manikandan was last seen and the  

time when he was last seen along with the accused.  

18. The case of the prosecution rests mainly on the scene of  

occurrence;  the  deceased  Manikandan  was  last  seen  in  the  

company of accused Nos.1 to 3. As per Valarmathi (PW-1),  

deceased Manikandan was last seen in Mariyamman Temple in the  

company  of  accused  Nos.  1  to  4.  Amirthavalli  (PW-2)  is  

maternal  aunt  of  the  deceased.  Valarmathi  (PW-1)  did  not

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disclose the presence of Amirthavalli (PW-2) at the scene of  

occurrence where the deceased was last seen in the company of  

accused Nos.1 to 4. Even if the statement of Amirthavalli  

(PW-2) is accepted, then according to her the deceased was  

last seen in the Police Station along with accused No.1,  

Ramasamy who had brought the deceased Manikandan there.  

19. The  prosecution  has  failed  to  explain  the  statement  

given  by  Amrithavalli  (PW-2)  during  her  cross-examination  

wherein  she  stated  that  when  she  asked  the  Police  about  

Manikandan, they replied that Manikandan was not handed over  

to them. Therefore, the presence of Amrithavalli (PW-2) at  

the scene of occurrence is doubtful. She being the highly  

interested witness and in view of contradictions aforesaid,  

her statement cannot be relied upon.  

20. The testimony of an accomplice cannot be used against  

another accused. On the basis of testimony of accused No.3,  

if dead body was recovered, on that basis the accused Nos.1  

and 2 cannot be convicted. If accused No.4, Rajendiran @  

Sakkarai  was  also  last  seen  with  the  deceased  Manikandan  

along with accused Nos. 1 to 3, the Trial Court having given  

benefit of doubt to accused No.4 it is not clear as to why  

the same benefit has not been given to accused Nos.1 to 3.

21. The conviction cannot be based only on circumstance of  

last seen together with the deceased. In  Arjun Marik and  

others vs. State of Bihar, (1994) Supp.(2) SCC 372, this  

Court held as follows:

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“31. Thus  the  evidence  that  the  appellant  had gone to Sitaram in the evening of 19-7-1985  and had stayed in the night at the house of  deceased  Sitaram  is  very  shaky  and  inconclusive. Even if it is accepted that they  were there it would at best amount to be the  evidence  of  the  appellants  having  been  seen  last  together  with  the  deceased.  But  it  is  settled law that the only circumstance of last  seen  will  not  complete  the  chain  of  circumstances to record the finding that it is  consistent  only  with  the  hypothesis  of  the  guilt  of  the  accused  and,  therefore,  no  conviction on that basis alone can be founded.”

22. This Court in  Bodhraj vs. State of Jammu and Kashmir,  

(2002) 8 SCC 45, held that the last seen theory comes into  

play  where  time-gap  between  the  point  of  time  when  the  

accused  and  the  deceased  were  seen  last  alive  and  the  

deceased is found dead is so small that possibility of any  

person other than the accused being the author of the crime  

becomes  impossible.  It  will  be  hazardous  to  come  to  a  

conclusion of guilt in cases where there is no other positive  

evidence to conclude that the accused and the deceased were  

last seen together.

23. There is unexplained delay of six days in lodging the  

FIR. As per prosecution story the deceased Manikandan was  

last seen on 4th April, 2004 at Vadakkumelur village during  

Panguni Uthiram Festival at Mariyamman Temple. The body of  

the deceased was taken from the borewell by the fire service  

personnel  after  more  than  seven  days.  There  is  no  other  

positive material on record to show that the deceased was

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last seen together with the accused and intervening period of  

seven days there was nobody in contact with the deceased.  

24. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438,  

this Court held that in absence of any other links in the  

chain  of circumstantial  evidence, the  appellant cannot  be  

convicted solely on the basis of “last seen together” even if  

version  of  the  prosecution  witness  in  this  regard  is  

believed.

25. In the present case as noticed above, the Sessions Judge  

convicted the accused Nos.1 to 3 on the basis of last seen  

evidence, the correctness of last seen version emanating from  

Valarmathi (PW-1), Amirthavalli (PW-3) and Murugan (PW-4) and  

as per the prosecution case is also doubtful, there being  

contradiction about place where the accused were last seen  

with the deceased Manikandan. The High Court had failed to  

appreciate  the  aforesaid  fact  and  erred  in  affirming  the  

order of conviction passed by the Sessions Judge.

26. For the reasons aforesaid, we set aside the impugned  

judgment dated 31st March, 2008 passed by the High Court of  

Judicature at Madras in Criminal Appeal No.1009 of 2005 and  

impugned order of conviction and sentence dated 17th November,  

2005 passed by the Sessions Judge in Session Case No.61 of  

2005. The appeal is allowed. The appellants are directed to  

be released forthwith, if not required in any other case.

………………………………………………J.

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                 (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.                (DIPAK MISRA)

NEW DELHI, JULY 01  , 2014.  

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ITEM NO.1H               COURT NO.6                 SECTION IIA (For Judgment)

              S U P R E M E  C O U R T  O F  I N D I A                           RECORD OF PROCEEDINGS

Criminal Appeal No(s). 512/2010

KRISHNAN & RAMASAMY & ORS.                         Appellant(s)

                               VERSUS

STATE OF TAMILNADU                                 Respondent(s)

Date : 01/07/2014 This appeal was called on for pronouncement of  Judgment today.

For Appellant(s) Mr. K. V. Vijayakumar ,Adv.

For Respondent(s) Mr. M. Yogesh Kanna ,Adv.

Hon'ble  Mr.  Justice Sudhansu  Jyoti  Mukhopadhaya  pronounced  the reportable judgment of the Bench comprising His Lordship and  Hon'ble Mr. Justice Dipak Misra.

The  appeal  is  allowed  in  terms  of  the  signed  reportable  judgment.

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(MEENAKSHI KOHLI)                               (USHA SHARMA)   COURT MASTER                                   COURT MASTER  

[Signed reportable judgment is placed on the file]