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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 593  OF 2010

PARAMSIVAM & ORS.        … APPELLANTS

VERSUS

STATE THROUGH INSPECTOR OF POLICE        … RESPONDENT

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

This  appeal  is  directed  against  judgment  dated  27th  

April, 2009, passed by the High Court of Judicature at Madras  

in Criminal Appeal No.441 of 2007. By the impugned judgment  

appeal preferred by the appellants-accused nos.1 to 3 has  

been dismissed and conviction of accused nos.1 to 3 u/s 364  

IPC and accused no.1 u/s 302 IPC and accused nos.2 and 3 u/s  

302 r/w 34 IPC and the sentence of life imprisonment and fine  

imposed upon them have been confirmed.

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

Deceased Mani alias Parai Mani took lease of the land in  

S.F.  No.  427/1  of  Vadapudur  village  belonging  to  PW3-

Krishnasamy and PW6-Ramasamy. Accused No.6-Nagarathinam was  

the  neighbouring  land  owner.  Since  Accused  No.1-

Paramasivam and  Accused  No.6-Nagarathinam  threatened  the

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deceased not to break the stone, deceased Mani alias Parai  

Mani filed suit in O.S. No. 5/2004 before DMC, Pollachi for  

Permanent Injunction restraining Accused no.6 and PWs.3 and 6  

from interfering with quarrying. There was animosity between  

the deceased and the family of Accused no.6-Nagarathinam.

About 10 days prior to the date of occurrence, Accused  

no.1-Paramasivam,  Accused  no.6-Nagarathinam  and  Accused  

no.7-Revathi threatened the deceased. About 4 days prior to  

the date of occurrence, Accused no.2-Selvaraj alias Selvan  

and another person approached the deceased for purchase of  

stone  and  since  it  was  late  hours,  deceased  refused  to  

accompany them and asked them to come on some other day.

Again Accused no.2 and another person approached the  

deceased  on  18.1.2004  and  asked  for  stones  and  deceased  

accompanied the accused to the quarry. PW1-Kannaiyan and  

PW2-Kala witnessed that deceased went along with Accused  

no.2-Selvaraj alias Selvan and Accused no.3-Nirmal. On the  

said date i.e.18.1.2004, PW8-Sivakumar and PW9-Doraisamy who  

were  returning  from  the  Petrol  Pump,  saw  white  colour  

Maruthi Van bearing registration No. TN-23 E 5951 (MO1) was  

parked on the road side. PW9 saw the deceased and Accused  

no.1 were sitting inside the Maruthi Van.

Next day on 19.1.2004, PW23-Pugazhenthi (Railway Key  

Man), Thirupur saw the dead body on the railway track and  

informed  PW20-Ramachandran  (Station  Master)  who  in  turn

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informed  the  Out-post  Police  Station,  Thirupur.  PW24-

Sankaralingam  (Head  Constable)  received  the  report  and  

registered  the  case  for  'suspicious  death'  in  Cr.  No.  

12/2004  u/s  174 Cr.P.C.  PW24-Head  Constable  went  to  the  

scene of occurrence and found the dead body of a male on the  

railway  track,  prepared  Observation  Mahazar  (Ex.P15)  and  

Rough Plan (Ex.P16). PW24 also held Inquest on the body of  

the deceased (Ex.P18) and sent the dead body for autopsy to  

Government  Hospital,  Thirupur.  On  his  request  PW27-Nizar  

Ahemad had taken photographs (MO18 series) of the body lying  

on the railway track.

PW33-Dr.Parimala Devi conducted autopsy over the dead  

body and noted the injuries, Dr. Devi opined that death was  

due to multiple injuries on the neck and head injuries about  

70 to 80 hours prior to autopsy. Since there was no clue  

about the identity of the dead body, body was buried at  

Chellandiamman  grave  yard  Tirupur  by  PW24-Head  Constable  

with the aid of PW22-Murugasamy (Grave yard watch man).

Since, deceased not returned home, PWs.1 and 2 searched  

for  him  and  on  20.1.2004  PW1  lodged  written  complaint  

[Ext.P1]. On the basis of written complaint, PW39-Rajendran  

(Inspector of Police) registered the case in Cr. No. 27/2004  

u/s  363 IPC.  PW39  went  to  the  scene  of  occurrence  and  

prepared  Observation  Mahazar  and  Rough  Plan.  He  also  

enquired PWs.1 to 6 and 15 and recorded their statements.

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On 17.2.2004, PW41 sent requisition for exhumation of  

dead body of the deceased which was exhumed in the presence  

of  PW31-Tahsildar,  PW21-R.I.  and  other  witnesses.  PW41  

seized Waist Cord with Silver Amulet under Seizure Mahazar  

(Ext.P12). Observation Mahazar (Ext.P13) was prepared by PW-

41 in respect of the place where body was buried. Rough Plan  

(Ext.P44) was also prepared. Blood samples of the dead body  

was  taken.  Blood  samples  of  PW14  (Manickammal)  and  PW15  

(Subramani) -mother and brother of the deceased were taken  

and  forwarded  for  DNA  examination.  PW40-Vanaja  (Asst.  

Chemical  Examiner  and  Asst.  Director)  conducted  DNA  

examination and opined that "the bone pieces etc. described  

belong to a human male individual". He further opined that  

"the person Mani alias Parai Mani to whom the bone pieces  

etc.  belong  is  the  biological  offspring  of  

Ms.A.Manickammal."-PW14.

Accused no.3-Nirmal and Accused no.4-Sureshkumar alias  

Suresh  alias  Pambatti  surrendered  before  Judicial  

Magistrate, Pollachi on 05.2.2004. PW41 was permitted to  

take them to police custody. Confession statement recorded  

from accused no.3 led to recovery of Torch (MO6), Battery  

(MO17 series), Knife (MO16), Hundred rupee Note [MO13], Bag  

(MO15) under Seizure Mahazar (Ext.P7). Confession statement  

recorded from accused no.4 led to recovery of Watch (MO8),  

Fifty rupee Note (MO14), Plastic bag (MO19) under Seizure  

Mahazar (Ext.P9).

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5. Learned counsel appearing on behalf of the appellants  

challenged the impugned judgment mainly on the following  

grounds:

(i) There  is  inconsistency  in  the  prosecution  

story. For example, the evidence of PW 15-

Subramani brother of the deceased is contrary  

to the evidence of PW1 and 2.

(ii) The  Sessions  Court  failed  to  consider  the  

question whether the prosecution has proved  

the fact that the deceased was abducted.  

(iii) There  is  no  eye  witness  for  the  alleged  

murder  in  absence  of  any  contemporaneous  

evidence to establish that the body found on  

the railway track on Vanjipalayam is that of  

the deceased-mani.

(iv) There  are  contradictions  with  regard  to  

exhumed body. For example, while PW 21 stated  

that when the body was exhumed it was found  

in pieces in a gunny bag whereas PW 23 stated  

that dead body was found in pieces and no  

dress was found on it.  

6. On  the  other  hand,  the  Prosecution  relied  upon  the  

following circumstances to bring home the charges.  

(i) Existence of motive.

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(ii) Circumstance  that  deceased  was  last  seen  

alive  in  the  company  of  the  

appellants/accused nos. 1 to 3.

(iii) Death was homicidal and the body was found on  

the railway track mutilated.

(iv) Body  was  identified  as  that  of  deceased  

through DNA test.

(v) Arrest  of  the  accused  and  recovery  of  

incriminating articles at their instance.

7. PWs.3 and 6 are brothers and accused no.6-Nagarathinam  

is brother's wife of PWs.3 and 6. Deceased Mani alias Parai  

Mani took lease of PWs.3 and 6's land in S.F. No. 427/1  

(Part) of Vadapudur village for quarrying. While the deceased  

was carrying on quarrying work, accused no.6-Nagarathinam and  

her  son  and  daughter  i.e.  accused  no.1-Paramasivam and  

accused no.7-Revathi objected for quarrying. Alleging that  

without  any  lawful  right,  accused  no.6  was  objecting  to  

quarrying,  deceased  filed  suit  in  O.S.  No.  5/2004  on  

02.1.2004 on the file of DMC, Pollachi against accused no.6  

and PWs.3 and 6. This is evident from Ext.P-22

pleadings in O.S. No. 5/2004, PWs.1 and 2 have spoken in one  

voice about deceased taking quarry of lease from PWs.3 and 6  

and that accused no.6, accused no.1 and accused no.7 were  

raising objection to carry out quarrying work. Evidence of

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PWs.3 and 6 also strengthens prosecution version about the  

grant of lease.  

8. Filing of suit on 02.1.2004 about two weeks prior to  

the  occurrence  heightens  the  probability  of  prosecution  

case. In cases of circumstantial evidence proof of motive is  

material consideration and a strong circumstance.  

9. The case of the prosecution is that deceased was last  

seen alive in the company of the accused. Evidence of PWs.1  

and 2 that accused nos.2 and 3 had taken the deceased from  

his house in Chikkalampalayam. Evidence of PW9-Doraisamy is  

that  he  saw  the  deceased  along  with  accused  no.1-

Paramasivam in Maruthi Omni Van Registration No. TN-23 E  

5951 (MO1) near Kinathukadavu Checkpost. PW5-Balan stated  

that the deceased had left with accused no.1 from the quarry  

in Ealoorkarar thottam.

About four days from the date of occurrence, accused  

nos. 2 and 3 went to the house of the deceased asking for  

size of the stones. When being asked about them, accused  

no.2 disclosed his name as Selvaraj. As they appear to be  

strangers and as it was very late in the evening, deceased  

asked  them  to  come  on  some  other  day.  After  four  days  

thereafter accused nos.2 and 3 went to the house of the  

deceased and asked him to come along with them for seeing  

the stones. Inspite of disinclination of deceased, accused  

nos. 2 and 3 insisted the deceased to come along with them  

stating that their owner has come and therefore, stones are

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to be seen. As it was late in the evening, deceased asked  

his wife for torch and PW2-Kala gave him torch (MO6) and  

deceased went along with accused nos.2 and 3.

10. The evidence of PWs.1 and 2 is cogent and consistent  

which clearly brings home the circumstance that deceased  

went  along  with  accused  nos.  2  and  3.  In  the  Test  

Identification Parade conducted by PW38-Judicial Magistrate,  

PWs.1 and 2 have also identified accused nos. 2 and 3 which  

would strengthen the stand of the prosecution.

11. Learned counsel for the appellant raised objection with  

regard to non-mention of name of accused no.2-Selvaraj in  

Ext.P1-Complaint  and  submitted  that  accused  no.3-Nirmal  

accompanied accused no.2 would throw serious doubts about  

the  credibility  of  PWs.1  and  2.  But  from  the  evidence  

Ext.P1-complaint we find that PW1 has clearly stated that  

two persons had come to their house and took the deceased in  

Maruthi  Omni  Van.  In  Ext.P1-Complaint,  though  PW1  had  

expressed suspicion about accused nos. 1, 6 and 7, PW1 has  

clearly expressed his doubts that accused nos. 1, 6 and 7  

might  have  engaged  men  for  abducting  the  deceased.  Such  

doubts  expressed  in  Ext.P1-Complaint  is  sufficient  

incriminating circumstance against the accused nos. 2 and 3.  

Credibility of PWs.1 and 2 cannot be doubted on the ground  

of non-mention of name of accused no.2 in Ext.P1-Complaint.  

The evidence of PW9 also established that the deceased was  

last  seen  alive  with  accused  no.1-Paramasivam in  Maruthi

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Omni Van (TN-23 E 5951) near Kinathukadavu Checkpost. In his  

evidence, PW9 has stated that after taking petrol for TVS-50  

in a Petrol Pump near the Checkpost while he was proceeding  

along with PW8-Sivakumar, he saw the deceased along with  

accused no.1-Paramasivam in Maruthi Omni Van (MO1) and saw  

the others inside the Van. Since, deceased and accused no.1-

Paramasivam were in inimical terms, PW9 wondered as to why  

accused no.1 and deceased are seen together and he asked  

PW8-Sivakumar about the same. Though, PW8-Sivakumar turned  

hostile, evidence of PW9 is trustworthy and we do not find  

any reason to take a different view.

12. Another circumstances relied upon by the prosecution is  

evidence of PW15-Subramani (brother of the deceased) that  

accused no. 1 and another person came to the quarry to see  

stones. When they were crushing the stones, deceased went  

with them to see the stones. No doubt evidence of PW15 as to  

how  deceased  went  with  the  accused  might  appear  to  be  

slightly different but due to variation of time narrating  

the events cannot be said in manner the PW15 narrated his  

statement. We are of the view that evidence of PW15 does not  

make any dent upon the consistent version of PWs.1 and 2 and  

the case of prosecution.   

13. Dr. Perimaladevi-PW33 conducted autopsy and noted the  

following injuries:

→ Crush  injury  over  the  front  of  head  and  

part of brain comes out [liquified].

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→ Fracture of left arm bone [upper] and left  

shoulder joint bones.

→ Fracture of right upper arm bone and cut  

off from the shoulder joint.

→ Fracture of left leg bones [middle].

→ Fracture of right thigh bone and leg bones.

14. Dr. Perimaladevi opined that deceased died of 'shock  

and haemorrhage' due to multiple injuries and head injuries  

about 70-80 hours prior to the autopsy. Since identity of  

the  body  was  not  known,  body  was  buried  in  Thirupur  

Chellandiamman  burial  ground.  Later  at  the  request  of  

Investigating Officer, body was exhumed in the presence of  

PW21-Tahsildar.  After  the  body  was  exhumed,  PW34-

Dr.Vallinayagam  collected  the  blood  for  DNA  test.  Blood  

samples of PW14-Manickammal and PW15-Subramani (mother and  

brother  of  the  deceased)  were  also  collected.  After  

conducting DNA test and upon analysis of results of DNA  

typing for the samples, PW40-Asst. Director gave Ext.P32-

Report and opined that "bone pieces etc. described belong to  

a  human  male  individual".  PW40  further  opined  that  "the  

person Mani alias Paraimani to whom the bone pieces etc.  

belong is the biological offspring of Ms. A. Manickammal.".  

Evidence  of  PW40  would  amply  establish  identity  of  body  

recovered from the railway track as that of the deceased  

Mani alias Parai Mani who is the son of PW14-Manickammal.

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15. When deceased is shown to be abducted, it is for the  

abductors  to  explain  how  they  dealt  with  the  abducted  

victim. In the absence of explanation, Court is to draw  

inference that abductors are the murderers.

16. In State of W.B. v. Mir Mohammad Omar and others (2000)  

8 SCC 382, this Court held:

“34. When it is proved to the satisfaction of the  Court that Mahesh was abducted by the accused and  they took him out of that area, the accused alone  knew what happened to him until he was with them.  If  he  was  found  murdered  within  a  short  time  after  the  abduction  the  permitted  reasoning  process  would  enable  the  Court  to  draw  the  presumption that the accused have murdered him.  Such inference can be disrupted if the accused  would tell the Court what else happened to Mahesh  at least until he was in their custody.”

17. In  Sucha Singh v. State of Punjab (2001) 4 SCC 375,  

this Court held:

“15. The abductors alone could tell the court as  to what happened to the deceased after they were  abducted.  When  the  abductors  withheld  that  information  from  the  court  there  is  every  justification for drawing the inference, in the  light  of  all  the  preceding  and  succeeding  circumstances  adverted  to  above,  that  the  abductors are the murderers of the deceased.”  

“19. We  pointed  out  that  Section  106  of  the  Evidence  Act  is  not  intended  to  relieve  the  prosecution of its burden to prove the guilt of  the  accused  beyond  reasonable  doubt,  but  the  section  would  apply  to  cases  where  the  prosecution has succeeded in proving facts for  which  a  reasonable  inference  can  be  drawn  regarding the existence of certain other facts,  unless the accused by virtue of special knowledge  regarding  such  facts  failed  to  offer  any  explanation which might drive the court to draw a  different inference.”

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Taxi  MO1-Maruthi  Omni  Van  (TN-23  E  5951).  Accused  no.3-

Nirmal  and  accused  no.4-Sureshkumar  alias  Suresh  alias  

Pambatti  were  surrendered  before  the  Court  and  on  

application, PW41-Investigating Officer took them for police  

custody. Confession statement recorded from accused no.3 led  

to recovery of Torch light(MO6) which was handed over to the  

deceased by PW2 at the time when he left the house. PW2 also  

identified MO6 as the torch light handed over by her at the  

time when the deceased left the house. Recovery of various  

articles of the deceased from accused nos.1 to 3 is a strong  

incriminating  circumstance  connecting  the  appellants  with  

the crime.

20. Section 27 of the Evidence Act reads as under:

“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.”

21. In  Anil alias Raju Namdev Patil v. Administration of  

Daman & Diu, Daman and another, (2006) 13 SCC 36, this Court  

held:

“23.The  information  disclosed  by  the  evidences  leading to the discovery of a fact which is based  on  mental  state  of  affair  of  the  accused  is,  thus, admissible in evidence.”

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22. This Court in State of Himachal Pradesh v. Jeet Singh,  

(1999) 4 SCC 370  opined that when an object is discovered  

from an isolated place pointed out by the accused, the same  

would be admissible in evidence.  

23. We  have  noticed  the  confessional  statement  of  the  

appellants, on the basis of which the discovery of material  

evidence took place.  

24. From  the  evidence  on  record,  we  find  that  the  

Prosecution  was  successful  in  bringing  on  record  the  

circumstantial  evidences  i.e.  existence  of  motive;  the  

circumstances in which the deceased was last seen alive in  

the  company  of  appellants-accused  nos.1  to  3;  death  was  

homicidal and body was found on the railway track mutilated;  

the body of the deceased was identified through DNA test; on  

arrest of accused incriminating articles were recovered.

25. Upon analysis of evidence, we are of the view that  

prosecution  has  succeeded  in  proving  the  facts  that  the  

accused nos.1 to 3 took away deceased Mani alias Parai Mani.  

What happened thereafter to deceased is especially within  

the knowledge of the appellants-accused nos.1 to 3. It was  

for  the  appellants-accused  nos.  1  to  3  to  explain  what  

happened to Mani alias Parai Mani after they took him away  

but they failed to explain the same. Mani alias Parai Mani  

was  found  dead  immediately  thereafter.  Therefore,  it  is  

clear that the accused nos.1 to 3 who abducted deceased Mani

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alias Parai Mani intentionally withhold the information from  

the Court and, therefore, there is every justification for  

drawing  inference  that  appellants-accused  nos.1  to  3  

murdered Mani alias Parai Mani. Stand of the appellants is a  

bare  denial  of  prosecution  case.  In  the  absence  of  any  

explanation, the inevitable inference is that appellants are  

responsible for the death of deceased Mani alias Parai Mani.  

Thus, the guilt of the appellants-accused nos. 1 to 3 has  

been proved beyond all reasonable doubt. We find no merit in  

this appeal and the same is accordingly dismissed.  

………………………………………………J.                   (SUDHANSU JYOTI MUKHOPADHAYA)

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

NEW DELHI, JULY 01, 2014

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ITEM NO.1C               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). 593/2010

PARAMSIVAM & ORS.                                  Appellant(s)

                               VERSUS

STATE TR.INSP.OF POLICE                            Respondent(s)

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

For Appellant(s) Mr. Vijay Kumar ,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]