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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1134 OF 2013  

Navaneethakrishnan   .... Appellant(s)                   Versus

The State by Inspector of Police               .... Respondent(s)

WITH

CRIMINAL APPEAL NOs. 1135-1136 OF 2013  CRIMINAL APPEAL NO. 1137 OF 2013  

J U D G M E N T

R.K. Agrawal, J.

1)  The  above  appeals  are  directed  against  the  common

judgment  and  order  dated  23.11.2009  passed  by  the  High

Court of Judicature at Madras in Criminal Appeal Nos. 639

and 688 of 2009 whereby the Division Bench of the High Court

dismissed the appeals filed by the appellants herein against

the order dated 18.09.2009 passed by the Fast Track Court

No. II, Salem, in Sessions Case No. 21 of 2009 wherein learned

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Additional District & Sessions Judge convicted the appellants

herein under Sections 302 read with Section 34, Section 364

and Section 379 of the Indian Penal Code, 1860 (in short ‘the

IPC’)  and  sentenced  to  undergo  imprisonment  for  life  with

substantive sentences under the IPC.  

2) Brief facts:

(a)   A First Information Report (FIR) bearing No. 41 of 2008 at

PS Yercaud, District Salem dated 16.02.2008 got registered by

Mahimaidoss (PW-8) stating that on 14.02.2008, John Bosco

(since deceased), who was employed as the driver in his travel

agency,  along  with  one  Madhan  (since  deceased),  took  a

Maruti Van from him but did not return for two days.   

(b) On the very next date, i.e., on 17.02.2008, one more FIR

got registered by one Asokan bearing No. 88 of 2008 stating

that  when he  went  to  irrigate  his  fields,  he  found  a  white

colour sack floating in the well.  He immediately informed the

same to the  local  police  and when the sack was opened,  a

male body with hands tied at the back was found.

(c) On the basis of FIR dated 16.02.2008, Crime No. 41 of

2008 was registered at Yercaud Police Station and during the

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pendency of investigation, FIR No. 88 of 2008 got registered

and a body was found which was identified as of John Bosco.

(d) During  investigation,  Sivashankar  (A-1  therein)  was

apprehended and he  confessed about  committing  the  crime

along with (A-2 and A-3) appellants herein stating that they

abducted John Bosco and his friend Madhan and taken them

in the Maruti Van being driven by John Bosco to one of the

relatives of Accused No. 2 therein where they caused death of

John Bosco and Madhan by strangulating them one by one

using a rope and drowned their bodies in water streams using

gunny bags.  A-1 also took the investigation officer to the place

where the body of Madhan was found in a gunny bag.   

(e) After  following  the  due  procedure,  a  charge  sheet  was

filed in the Court of Judicial Magistrate No. 5, Salem and the

case  was  committed  to  the  Court  of  Additional  District  &

Sessions Judge, Fast Track Court No. II, Salem and numbered

as Sessions Case No. 21 of 2009.  The Court framed charges

under Sections 364, 302 read with Section 34, 201 read with

Section 302 and 379 of the IPC.

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(f) Learned  Additional  District  &  Sessions  Judge,  vide

judgment  and  order  dated  18.09.2009,  convicted  all  the

accused  for  the  commission  of  crime  under  the  charging

Sections and sentenced them to undergo imprisonment for life.

(g) Being  aggrieved  by  the  judgment  and  order  dated

18.09.2009, the appellants-accused preferred Criminal Appeal

Nos. 639 and 688 of 2009 before the High Court.  The Division

Bench  of  the  High  Court,  vide  judgment  and  order  dated

23.11.2009, dismissed the appeals preferred by the appellants

herein.

(h) Being  aggrieved  by  the  judgment  and  order  dated

23.11.2009,  the  appellants  herein  have  preferred  these

appeals by way of special leave before this Court.

3) Heard  Mr.  K.K.  Mani,  learned  counsel  for  the

appellants-accused and Mr. M. Yogesh Kanna, learned counsel

for the respondent-State and perused the records.

Point(s) for consideration:-

4) The only point for consideration before this Court in the

present facts and circumstances of  the case is  whether the

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High Court was right in dismissing the appeals preferred by

the appellants-accused?

Rival contentions:-

5) Learned counsel appearing for the appellants contended

that the courts below failed to appreciate that the conviction

cannot be based upon a retracted confession and it  can be

used only in support of other evidence.  He further contended

that the courts below erred in convicting the appellants where

the cause of death is not known.  

6) Learned counsel further contended that there are several

lacunas in the prosecution version.  In support of the same, he

contended that the lower courts failed to appreciate that the

owner of the phone recovered from Accused No. 1 therein is

not  PW-8 and some other  person and the  said person was

never examined by the prosecution.  Further, on 14.02.2008,

at about 10.30 a.m., PW-11 has seen the accused along with

the deceased whereas the dead bodies have been found after a

gap of several days and the possibility of intervention of some

other person cannot be ignored.

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7) Learned  counsel  appearing  for  the  appellants  finally

contended that the High Court ought to have appreciated the

fact  that  there  was  no  complete  chain  of  circumstantial

evidence  in  the  prosecution  case  and  there  are  various

discrepancies inherent in it, hence, the benefit of doubt should

be given in favour of  the  appellants while  setting aside  the

judgment and order passed by the High Court.

8) Per  contra,  learned counsel  appearing on the  behalf  of

Respondent-State  submitted  that  the  judgment  and  order

passed by the Division Bench of the High Court upholding the

decision of the Sessions Court is as per the terms and dictates

of  law  and  should  not  be  inferred  with  and  the  evidence

against the appellants-accused are sufficient enough to bring

home the guilt.

Discussion:-

9) It  is  the  case  of  the  prosecution  that  the

appellants-accused planned to earn quick money by robbing a

car and selling the same and for that purpose on 14.2.2008

they went to Yercaud and engaged the taxi of the John Bosco

(since deceased) under the guise of sightseeing.  John Bosco

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(since deceased) also took one Madhan (since deceased) on the

way. The appellants-accused asked the driver-John Bosco to

drop  them  at  Periyar  Nagar,  Salem  at  the  house  of  the

grandfather of  one of  the accused. After reaching there, the

appellant-accused  found  that  the  grandfather  was  not

available. The appellants-accused invited John Bosco into the

house  for  taking  liquor  and  they  killed  both  of  them  by

strangulating their necks with a rope.  Accused No. 1 therein

took the mobile phone and the Accused No. 3 therein took the

Yashika Camera of one John Bosco.   Accused No. 2 therein

concealed the said van in the house of his grandfather. The

number plate of van was changed with a sticker. Thereafter,

they wrapped the dead bodies into separate gunny bags and

threw the gunny bag containing the dead body of John Bosco

into  the  well  of  PW-1  and  threw  away  the  dead  body  of

Madhan to some other place.  

10) The  appellants-accused  were  charged  and  prosecuted

under Sections 302 read with 34, 364, 201 read with Section

379 of the IPC. As in the given case no direct evidence of the

incident is available, the prosecution heavily relied upon the

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circumstantial evidences. To prove the case, the prosecution

has examined as much as 27 witnesses and produced different

relevant documents.  

11) In the FIR, bearing No. 41 of 2008, lodged by PW-8, at

Yercaud Police Station, he had specifically mentioned that he

bought a mobile phone in the name of some other person and

handed over the same to John Bosco. PW-8 is the owner of the

vehicle which was being driven by John Bosco at the time of

the incident, and also happens to be his maternal uncle. He

further deposed that John Bosco was working as a driver on

the said vehicle at that time and on the fateful day i.e.,  on

14.02.2008, he told him that he is going to drop one of his

friends at Salem and left the place at about 11:30 and when

he did not return for two days he filed a missing complaint on

16.02.2008.  PW-8 also tried to contact John Bosco over the

mobile  phone  but  it  was  switched  off.   Mr.  Asaithambi

(PW-26), the investigation officer, stated in his deposition that

on 25.02.2008, PW-8 handed over the bill of the said mobile

phone to him.  During investigation and while tracing the IMEI

number  of  the  mobile  phone,  it  was  revealed that  the  said

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phone was being used by Accused No. 1-Sivasankaran.  On

01.03.2008, Accused No. 1 was apprehended by PW-26 and he

voluntarily gave a confessional statement which was witnessed

by PW-13.  Based on his confessional statement, PW-26 found

the dead body of Madhan as well as the mobile phone of John

Bosco and a rope was also recovered with which they alleged

to have murdered the deceased.  The dead body was identified

by  his  mother  and  the  same  was  further  proved  by  skull

imposition test.  He further informed the whereabouts of other

accused persons on the basis of which they were arrested from

Yercaud  junction.  However,  he  retracted  from  the  given

statement in the court.

12) Accused  No.  2-Suresh  was  apprehended  by  PW-20  at

Salem  Railway  Station  based  on  the  information  given  by

Accused  No.  1  and  on  the  basis  of  his  information,  the

recovery  of  the  alleged  Omni  Van  was  affected  by  PW-26.

Further, Anbalagan (PW-11), who was a Taxi driver at Yercaud

Taxi  stand  had  deposed  that  the  appellants-accused  had

spoken  to  John  Bosco  on  14.02.2008  for  hiring  a  taxi  for

sightseeing.   Thereafter,  he  noticed  that  the

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appellants-accused  boarded  the  vehicle  of  John  Bosco  and

Madhan also boarded the same vehicle from a short distance.

In fact,  PW-11 had identified  the  appellants-accused in the

court as the persons who had accompanied John Bosco and

Madhan on 14.02.2008.      

13) Accused No.-3-Navaneethakrishnan was apprehended by

PW-20 from Salem Railway Station based on the information

given by Accused No. 1.  PW-26 deposed that on the basis of

the  confession  of  Accused  No.  3,  Yashika  Camera  was

recovered.  The dead body of John Bosco was recovered from

the farm of PW-1 on 17.02.2008 on his information and the

same was identified by the mother and father of the deceased

and was further proved by skull imposition test.  But it is also

relevant  to  mention  here  that  in  the  present  case,  the

prosecution has no direct evidence to offer.  The entire case

rests upon the circumstantial evidence as there is no witness

directly to speak about the occurrence.   

14) In the present case, there is no witness of the occurrence

and  it  is  only  based  on  circumstantial  evidence.   Before

moving further, it would be apposite to refer the law regarding

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reliability  of  circumstantial  evidence to acquit  or  convict  an

accused.  The law regarding circumstantial evidence was aptly

dealt with by this Court in Padala Veera Reddy vs. State of

Andhra Pradesh and Others 1989 Supp. 2 SCC 706 wherein

this Court has observed as under:-

“10. x x x x  (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2)  those  circumstances  should  be  of  a  definite  tendency unerringly pointing towards guilt of the accused;  (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and  (4)  the circumstantial  evidence in order to sustain conviction must be  complete  and incapable  of  explanation of  any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

15) The prosecution placed reliance before the Court mainly

on three circumstances, firstly, the last seen theory, secondly,

the recovery of  material  objects which belonged to both the

deceased  from  the  appellants-accused  and  thirdly,  the

identification of the dead body of Madhan from the river bed as

pointed out by the first accused, however, the appellant herein

has raised certain doubts regarding the same.

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16)  The pivotal evidence in the given case is the testimony of

PW-11  who  is  believed  to  have  lastly  seen  the

appellants-accused  with  the  deceased.  Learned  counsel

appearing for the appellants-accused has contended that all

the  accused  were  unknown to  PW-11  but  no  identification

parade was conducted and the said witness has identified the

said accused directly in court after a lapse of about 50 days’

and hence his evidence should not be relied upon.    

17) It  is  a settled proposition of  law that the identification

parade of the accused before the court of law is not the only

main  and  substantive  piece  of  evidence,  but  it  is  only  a

corroborative piece of evidence.  Regarding this, reliance can

be safely placed on Rafikul Alam & Others vs. The State of

West  Bengal  2008 Crl.  L.J.  2005  wherein  it  was  held  as

under:-

“32…..It  is  accordingly  considered  a  safe  rule  of  prudence  to generally  look  for  corroboration  of  the  sworn  testimony  of witnesses  in  Court  as  to  the  identity  of  the  accused  who  are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades do not constitute substantive evidence. Failure  to  hold  a  test  identification  parade  would  not  make inadmissible the evidence of identification in Court. The weight to

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be  attached  to  such  identification  should  be  a  matter  for  the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting upon corroboration”

18) PW-11 was able to identify all the three accused in the

Court  itself  by  recapitulating  his  memory  as  those  persons

who came at the time when he was washing his car along with

John Bosco  and  further  that  he  had last  seen all  of  them

sitting in the Omni van on that day and his testimony to that

effect remains intact even during the cross examination in the

light  of  the  fact  that  the  said  witness  has  no  enmity

whatsoever  against  the  appellants  herein  and  he  is  an

independent  witness.   Once  the  testimony  of  PW-11  is

established and inspires full confidence, it is well established

that it is the accused who were last seen with the deceased

specially in the circumstances when there is nothing on record

to show that they parted from the accused and since then no

activity of the deceased can be traced and their dead bodies

were recovered later on. It is a settled legal position that the

law presumes that it is the person, who was last seen with the

deceased, would have killed the deceased and the burden to

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rebut the same lies  on the  accused to prove that  they had

departed.   Undoubtedly, the last seen theory is an important

event  in  the  chain  of  circumstances  that  would  completely

establish and/or could point to the guilt of the accused with

some certainty. However, this evidence alone can’t discharge

the  burden  of  establishing  the  guilt  of  accused  beyond

reasonable doubt and requires corroboration.  

19) Learned  counsel  for  the  appellants-accused  contended

that  the  statements  given  by  the  appellants-accused  are

previous  statements  made  before  the  police  and  cannot  be

therefore relied upon by both the appellant-accused as well as

the prosecution.  In this view of the matter, it is pertinent to

mention here the following decision of this Court in Selvi and

Others vs. State of Karnataka (2010) 7 SCC 263 wherein it

was held as under:-

“133. We have already referred to the language of Section 161 CrPC which protects the accused as well  as suspects and  witnesses  who  are  examined  during  the  course  of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 CrPC which lay down procedural  safeguards  in  respect  of  statements  made  by persons during the course of investigation. However, Section 27  of  the  Evidence  Act  incorporates  the  “theory  of confirmation by subsequent facts” i.e.  statements made in custody are admissible to the extent that they can be proved

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by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery  through  independent  means.  Hence  such statements could also be described as those which “furnish a link  in  the  chain  of  evidence”  needed  for  a  successful prosecution. This provision reads as follows:

“27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a  confession or  not,  as relates  distinctly  to  the  fact thereby discovered, may be proved.

134. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been  extracted  through  compulsion.  In  short,  there  is  no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3).”

20) In this view, the information given by an accused person

to a police officer leading to the discovery of a fact which may

or  may  not  prove  incriminatory  has  been  made  admissible

under Section 27 of the Evidence Act, 1872.  Further, in Selvi

(supra), this Court held as under:-

“264. In  light  of  these  conclusions,  we  hold  that  no individual  should  be  forcibly  subjected  to  any  of  the techniques  in  question,  whether  in  the  context  of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice

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provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the  responses  during  the  administration  of  the  test. However, any information or material that is subsequently discovered  with  the  help  of  voluntary  administered  test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.”

21) In  Madhu vs.  State of Kerala (2012) 2 SCC 399, this

Court  while  discussing  the  mandate  of  Section  27  of  the

Evidence Act held as under:-

“49. As an exception, Section 27 of the Evidence Act provides that  a  confessional  statement  made  to  a  police  officer  or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the  discovery  of  some  new fact.  The  relevance  under  the exception postulated by Section 27 aforesaid, is limited “… as relates distinctly to the fact thereby discovered….”. The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act.”

22) Section 27 of the Evidence Act is applicable only if the

confessional  statement  leads  to  the  discovery  of  some  new

fact.  The relevance is limited as relates distinctly to the fact

thereby discovered.  In the case at hand, the Yashika Camera

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which was recovered at the instance of Accused No. 3 was not

identified by the father as well as the mother of the deceased.

In  fact,  the  prosecution  is  unable  to  prove  that  the  said

camera actually belongs to the deceased-John Bosco.  Though

the  mobile  phone  is  recovered  from  A-1,  but  there  is  no

evidence on record establishing the fact that the cell  phone

belongs to the deceased-John Bosco or to PW-8 as the same

was not  purchased in their  name.  Further,  the  prosecution

failed to examine the person on whose name the cell phone

was purchased to show that it originally belongs to PW-8 to

prove the theory of PW-8 that he had purchased and given it

to the deceased John-Bosco.   Further,  the material  objects,

viz., Nokia phone and Motor Bike do not have any bearing on

the case itself.  The Nokia phone was recovered from Accused

No.  1  and  it  is  not  the  case  that  it  was  used  for  the

commission  of  crime  and  similarly  the  motor  cycle  so

recovered was of the father of Accused No. 3 and no evidence

has been adduced or produced by the prosecution as to how

these objects have a bearing on the case.  In fact, none of the

witnesses have identified the camera or stated the belongings

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of John Bosco.  The said statements are inadmissible in spite

of the mandate contained in Section 27 for the simple reason

that it cannot be stated to have resulted in the discovery of

some  new  fact.   The  material  objects  which  the  police  is

claimed to  have  recovered from the  accused may well  have

been  planted  by  the  police.  Hence,  in  the  absence  of  any

connecting link between the crime and the things recovered,

there  recovery  on  the  behest  of  accused  will  not  have  any

material bearing on the facts of the case.   

23) The law is well settled that each and every incriminating

circumstance  must  be  clearly  established  by  reliable  and

clinching  evidence  and  the  circumstances  so  proved  must

form  a  chain  of  events  from  which  the  only  irresistible

conclusion about the guilt of the accused can be safely drawn

and no other hypothesis against the guilt  is possible.  In a

case depending largely upon circumstantial evidence, there is

always a danger  that  conjecture or  suspicion may take the

place of legal proof.  The court must satisfy itself that various

circumstances in the chain of events must be such as to rule

out a reasonable likelihood of the innocence of the accused.

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When the important link goes, the chain of circumstances gets

snapped and the other circumstances cannot, in any manner,

establish the guilt of the accused beyond all reasonable doubt.

The court has to be watchful and avoid the danger of allowing

the suspicion to take the place of legal proof for sometimes,

unconsciously it may happen to be a short step between moral

certainty  and legal  proof.   There  is  a  long  mental  distance

between  “may  be  true”  and  “must  be  true”  and  the  same

divides  conjectures  from  sure  conclusions.   The  Court  in

mindful  of  caution by the  settled principles  of  law and the

decisions rendered by this Court that in a given case like this,

where the prosecution rests on the circumstantial  evidence,

the  prosecution  must  place  and  prove  all  the  necessary

circumstances,  which  would  constitute  a  complete  chain

without a snap and pointing to the hypothesis that except the

accused,  no  one  had  committed  the  offence,  which  in  the

present case, the prosecution has failed to prove.

Conclusion:-

24) In  view  of  the  foregoing  discussion,  we  are  of  the

considered opinion that both the courts below have erred in

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relying  that  part  of  the  statement  which can be  termed as

confession which were given to the  police  officer  while  they

were in custody and it will be hit by Section 26 of the Indian

Evidence Act,1872 and only that part of the statement which

led to the discovery of various materials would be permissible.

Hence, in the absence of any other material evidence against

the appellants-accused, they cannot be convicted solely on the

basis of evidence of last seen together with the deceased.

25)  In the  light  of  the  above  discussion,  the  judgment  and

order dated 23.11.2009 passed by the High Court is set aside.

The appeals are allowed. The appellants who are in custody

shall be set at liberty forthwith, if they are not required in any

other criminal case.

...…………….………………………J.                (A.K. SIKRI)                                  

.…....…………………………………J.         (R.K. AGRAWAL)                         

NEW DELHI; APRIL 16, 2018.