KRISHNAN & RAMASAMY Vs STATE OF TAMILNADU
Bench: SUDHANSU JYOTI MUKHOPADHAYA,DIPAK MISRA
Case number: Crl.A. No.-000512-000512 / 2010
Diary number: 24066 / 2008
Advocates: K. V. VIJAYAKUMAR Vs
B. BALAJI
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 1
1
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,
Page 2
2
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
Page 3
3
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
Page 4
4
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
Page 5
5
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
Page 6
6
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
Page 7
7
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
Page 8
8
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.
Page 9
9
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
Page 10
10
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:
Page 11
11
“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
Page 12
12
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.
Page 13
13
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J. (DIPAK MISRA)
NEW DELHI, JULY 01 , 2014.
Page 14
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.
Page 15
(MEENAKSHI KOHLI) (USHA SHARMA) COURT MASTER COURT MASTER
[Signed reportable judgment is placed on the file]