S. KALEESWARAN VERSUS STATE BY THE INSPECTOR OF POLICE POLLACHI TOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU

S. KALEESWARAN VERSUS STATE BY THE INSPECTOR OF POLICE POLLACHI TOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
REPORTABLE
 IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 160 OF 2017
S. KALEESWARAN …APPELLANT(S)
VERSUS
STATE BY THE INSPECTOR
OF POLICE POLLACHI TOWN
EAST POLICE STATION, COIMBATORE
DISTRICT, TAMIL NADU …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 410 of 2017
JOHN ANTHONISAMY @ JOHN …APPELLANT(S)
VERSUS
STATE, REP. BY THE INSPECTOR
OF POLICE POLLACHI TOWN
EAST POLICE STATION, COIMBATORE
DISTRICT, TAMIL NADU …RESPONDENT(S)
 J U D G M E N T
BELA M. TRIVEDI, J.
1. Both the Criminal Appeal Nos. 160 of 2017 and 410 of 2017 are arising
out of the common judgment and order dated. 22nd July 2016 passed by the
High Court of Judicature at Madras in Criminal Appeal Nos. 436/2014,
2
482/2014, 490/2014, 175/2015 and 176/2015, whereby the High Court
while dismissing the said appeals has confirmed the judgment and order
dated 22nd July, 2014 passed by the Sessions Judge, Coimbatore
(hereinafter referred to as the “Trial Court”) in Sessions Case No.
187/2008. The Trial Court had convicted the present appellants i.e., S.
Kaleeswaran (Original Accused No. 5), John Anthonisamy @ John
(Original Accused No.1) along with the other three Accused i.e., Rajesh
Kumar @ Rajesh (Original Accused No. 4), R. Ganeshkumar @ Ganesh
(Original Accused No.3) and Muthumanickam @ Muthu (Original
Accused No. 2) for the offence under Section 120(B), 147, 364 and 302
read with 120(B)/149, 201 and 396 I.P.C., and sentenced them as detailed
below:
S. No. Accused Section of Law Sentence
1. A.1 to A.5 120(B) I.P.C. Rigorous imprisonment for six
months each.
2. A.1 to A.5 147 I.P.C. Rigorous imprisonment for two
years each.
3. A.1 to A.5 364 I.P.C. Rigorous imprisonment for ten
years and to pay fine of Rs.
2,000/- each in default to
3
undergo simple imprisonment
for six months.
4. A.1 to A.5 302 I.P.C. Imprisonment for life and to pay
a fine of Rs. 2,000/- each in
default to undergo simple
imprisonment for six months.
5. A.1 to A.5 302 r/w
120(B)/149 I.P.C.
Imprisonment for life and to pay
fine of Rs. 2,000/- each in
default to undergo simple
imprisonment for six months.
6. A.1 to A.5 201 I.P.C. Rigorous imprisonment for
seven years each.
7. A.1 to A.5 396 I.P.C. Imprisonment for life and to pay
fine of Rs. 2,000/- each in
default to undergo simple
imprisonment for six months.
The aggrieved appellant (Accused No.1) John Anthonisamy @ John has
preferred Criminal Appeal No. 410 of 2017 and appellant (Accused No. 5)
S. Kaleeswaran has preferred Criminal Appeal No. 160 of 2017
4
challenging the impugned judgement passed by High Court. The other
three accused have chosen not to file any appeal.
2. As per the case of the prosecution, accused no.1 John Anthonisamy was a
taxi driver, accused no. 2 Muthumanickam was a friend of accused no.1,
and accused no. 3, 4 and 5 were the friends of the accused no.2. On
18.07.2007 at about 7 A.M., the accused no.1 conspired with the accused
no.2 and planned to commit dacoity of an Ambassador Car bearing
registration No. TN-41-P-4980 and to cause the murder of John Thomas,
the driver of the said car. In furtherance of the said plan, the accused made
the said John Thomas to come to the Fire service car stand at Pollachi.
When John Thomas arrived in the Ambassador Car at the said place,
accused no.1 made the accused no.4 Rajesh to hire the said Ambassador
Car for two hours and requested John Thomas to come by 12:30 P.M. John
Thomas accordingly arrived at the place as requested by the accused no.1
i.e., at Sakthi Hotel, Pollachi, with his Ambassador Car. The accused no.1
thereafter got into the car and proceeded towards Udumalpet. On
18.07.2007 at about 01:30 P.M., the accused no. 1 and the driver John
Thomas arrived at the Udumalpet bus stand, where the accused no. 2 was
waiting along with accused no. 3 to 5. All the accused thereafter got into
the said Ambassador Car and proceeded towards Ammapatty and at about
02:45 P.M., all the five accused made the driver John Thomas stop the car
near an isolated place on the road between Vadaboothanam and Ammapatti
5
Road. All the accused in furtherance of the conspiracy hatched by them
murdered the taxi driver John Thomas. The accused thereafter, with the
intention of causing the disappearance of the evidence, buried the dead
body of John Thomas in a pit. The Ambassador Car thereafter was sold out
by them to one Rajendran of Thiruvarur and they shared the sale proceeds
of the car. After John Thomas was missing for a week, a complaint was
reported by the PW-1 wife of John Thomas on 25.07.2007, which was
registered at Pollachi (East) Police Station for missing person.
3. The investigating officer after completing the investigation had laid the
charge-sheet against all the five accused. All five accused were charged by
the trial court for the offences under sections 120(B), 147, 364, 201, 396
I.P.C. Accused no. 3, 4 and 5 were additionally charged for the offence
under Section 302 I.P.C. and Accused no. 1 and 2 were charged for the
offence under Section 302 r/w 120(B)/149 I.P.C.
4. All the accused having abjured their guilt and claimed to be tried, the
prosecution examined as many as 28 witnesses and adduced 43 documents
to prove their guilt. In their further statements recorded under Section 313
Cr.PC, they denied the allegations levelled against them and stated that
they were falsely implicated in the case.
5. The learned counsel appearing for the appellants submitted that the entire
case of prosecution rested on circumstantial evidence and the prosecution
had miserably failed to prove the chain of circumstances beyond
6
reasonable doubt leading to an irresistible conclusion of the guilt of the
accused. According to them, the High Court had rightly not relied upon
the extra judicial confession allegedly made by the accused no. 1, the same
having not been duly proved by the prosecution, and if the said piece of
evidence is discarded, the credibility of other evidence more particularly
of the witnesses PW-6 and PW-7 examined by the prosecution becomes
doubtful. The identity of the dead-body of the deceased was also not duly
proved. The alleged recoveries from an accused nos. 2 to 5 were made
from the public place which had no link to connect them with the crime.
The learned counsel for the appellants further submitted that the last seen
theory propounded by the prosecution also could not have been relied upon
in view of the fact that the statements of PW-6 and PW-7, who had
allegedly seen the deceased with the accused no.1, were recorded about six
months after the alleged incident of the deceased having gone missing.
However, the Learned Advocate Dr. Joseph Aristotle S. appearing for the
respondent-State vehemently submitted that the concurrent findings of
facts as recorded by the High Court and Sessions Court, after fully
appreciating the evidence adduced by the prosecution, this Court may not
upset the same. According to him, though the High Court had not relied
upon the extra judicial confession made by the accused no.1, there was
sufficient evidence to connect all the accused with the alleged crime. The
identification of the dead-body of the deceased, the incriminating
7
recoveries and discoveries of the articles made at the instance of the
accused having been duly proved, the entire chain of circumstances duly
proved, had led to the irresistible conclusion about the guilt of all the
accused.
6. At the outset, it may be stated that the entire case of prosecution rested on
the circumstantial evidence. The law with regard to the appreciation of
evidence when the case of the prosecution hinges on circumstantial
evidence is very well-settled. The five golden principles laid down by this
Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra1
and followed in a catena of decisions, are worth reproducing:
“153. A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
a. the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned 'must or should' and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may be
proved' and 'must be or should be proved' as was
held by this Court in Shivaji Sahabrao Bobade &
Anr. v. State of Maharashtra2 where the following
observations were made:
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between 'may
be' and 'must be' is long and divides vague
conjectures from sure conclusions."

1
(1984) 4 SCC 116.
2
(1973) 2 SCC 793.
8
b. the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
c. the circumstances should be of a conclusive nature
and tendency,
d. they should exclude every possible hypothesis
except the one to be proved, and,
e. there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act
must have been done by the accused.”
7. Keeping in mind the above set of principles, let us examine whether the
prosecution had proved beyond reasonable doubt, the entire chain of
circumstances, not leaving any link missing for the accused to escape from
the clutches of law.
8. Heavy reliance was placed by the prosecution on the extra judicial
confession made by the accused no.1 through an Inland letter addressed to
P.W.-19 Karthikeyan, former employer of the accused no. 1 who had
received the same on 29.12.2007. It appears that the said alleged extra
judicial confession of the accused no. 1 was the trigger point which
directed the Investigating Officer to proceed further with the investigation
after about five months of the alleged incident, which had taken place on
18.07.2007. Apart from the fact that the extra judicial confession is a very
9
weak piece of evidence, the High Court in the impugned judgment had
refused to rely upon the same on the ground that neither the handwriting
expert was examined nor any opinion of handwriting expert was proved
by the prosecution. It cannot be gainsaid that when the extra judicial
confession is not duly proved, or does not inspire confidence or is not
corroborated by any other reliable evidence, the conviction could not be
based solely on such weak piece of evidence. In the instant case, the
prosecution having not examined the handwriting expert for proving the
handwritings of the accused no.1 contained in the Inland letter allegedly
addressed to the PW-19, nor any expert’s opinion having been obtained, in
our opinion, the High Court had rightly discarded the said piece of
evidence with regard to the alleged extra judicial confession made by the
accused no.1.
9. The next circumstance on which the prosecution had placed heavy reliance
was with regard to the theory of “last seen together”, relying upon the
evidence of PW-6 and PW-7. It is noteworthy that both the witnesses were
the taxi drivers and were operating the taxis from the same taxi stand from
where the deceased was operating his taxi, however their statements were
recorded by the investigation officer almost six months after the alleged
incident. The PW-6 had deposed before the Trial Court inter-alia that on
18.07.2007, he was standing near Durai Cinema Theatre at Pollachi to
meet his friend and at about 12:45 pm the accused no.1 was seen standing
10
near the Sakthi Hotel, which was situated near the place where he (PW-6)
was standing. He further stated that within a short time, John Thomas (the
deceased) came to the said place driving his taxi bearing registration no.
TN-41-P-4980. He (PW-6) noticed that the accused no.1 was talking to
the deceased for a while, and thereafter the accused no.1 got into the front
seat of the car and then both went away in the car. According to this witness
he did not see the deceased John Thomas thereafter. The PW-7 was also a
taxi driver. He stated in his deposition before the Court that on 18.07.2007
when he was returning from Palani via Udumalpet bus stand, he saw the
taxi driven by John Thomas. He therefore slowed down his taxi and saw
that he (John Thomas) was at the driver’s seat, and the accused no.1 whom
he knew was in the front seat. According to him, he also saw four other
persons siting in the car but he did not know them at that time.
10. Having regard to the evidence of PW-6 and PW-7, it appears that apart
from the fact that their statements were recorded by the Investigating
Officer after six months of the alleged incident, their evidence before the
Court does not inspire confidence. The PW-6 in the cross-examination had
admitted that he had come to know about the deceased having gone
missing within one week of his having seen the deceased with the accused
no. 1. It is difficult to appreciate his behaviour not to disclose this crucial
information for six months either to his fellow taxi drivers or to the police
about he having seen the deceased lastly in the company of the accused
11
no.1. So far as PW 7 is concerned, he had deposed that he got to know
about the deceased having gone missing only when Police came for
enquiry on 01.01.2008. In our opinion, when the Investigating Officer was
time and again coming to the taxi stand where all the taxi drivers including
the PW-6 and PW-7 used to stand, for inquiring about the deceased’s
whereabouts, and when wide publicity was made in the local newspapers,
television and radio about the deceased having gone missing, it is not
believable that the PW-7 came to know about the deceased having gone
missing only when the police came to him to make inquiry six months after
the incident in question. PW-7 had also admitted that he did not know the
other four accused who were accompanied the accused no.1 and the
deceased on the alleged date of incident. When there was huge time gap of
about more than six months between the date of the incident and the date
of recording of statements of witnesses by the Investigating Officer, the
Test Identification Parade would have assisted the police in identifying the
accused seen by the PW-7, however no such TI Parade was held by the
Investigating Officer. Therefore, identification of the accused nos. 2 to 5
at the instance of these witnesses also becomes very doubtful.
11. It is well settled that if there is considerable time gap between the persons
seeing together and the proximate time of the crime, the circumstances of
12
last seen together, even if proved cannot clinchingly fasten the guilt of the
accused. (State of Goa vs. Sanjay Thakran3
).
12. The failure of the accused, in a case based on circumstantial evidence
which included “last seen together theory”, to explain under Section 313
Cr.PC as to under what circumstances the victim suffered death, would
also not be a ground to arrive at an irresistible conclusion that the accused
were involved in the commission of the alleged crime. In the instant case,
even if the theory of “last seen together” propounded by the prosecution is
accepted, then also it is difficult to draw an irresistible conclusion that the
accused are guilty of the alleged offences, merely because they failed to
explain as to under what circumstances the victim suffered death.
13. The next circumstance relied upon by the prosecution is identification of
the body. It may be noted that the corpus when found, was in a highlydecomposed condition. Skeletal remains were found after almost 5 months
from the date of the incident of the deceased having gone missing. The
identification, therefore, was done by getting the skull super-imposition
test done through the PW-16, forensic expert. In Pattu Rajan v. State of
Tamil Nadu4
, this Court has explained that though identification of the
deceased through superimposition is an acceptable piece of opinion
evidence, however the courts generally do not rely upon opinion evidence

3
(2007) 3 SCC 755
4
(2019) 2 SCC (Cri) 354.
13
as the sole incriminating circumstances, given its fallibility, and the
superimposition technique cannot be regarded as infallible. In the present
case, since the super-imposition report was not supported by any other
reliable medical evidence like a DNA report or post-mortem report, it
would be very risky to convict the accused believing the identification of
the dead body of the victim through the super-imposition test. It is true that
in the case based on circumstantial evidence, if the entire chain is duly
proved by cogent evidence, the conviction could be recorded even if the
corpus is not found, but when as per the case of prosecution, the dead body
of the victim was discovered from the place shown by the accused, it is
imperative on the part of the prosecution to prove that the dead body or the
skeleton found at the instance of the accused was that of the victim and of
none else.
14. The Court also finds substance in the submission made by the learned
counsel for the appellants that the prosecution had also failed to prove the
motive of the accused for committing the alleged crime. As held in Nandu
Singh v. State of M.P.
5
, though in a case of direct evidence, motive would
not be relevant, in a case of circumstantial evidence, motive plays an
important link to complete the chain of circumstances. In the instant case,
the PW-8 Mr .Rajendran to whom the Ambassador car of the deceased was

5 Cri. App. No. 285 of 2022 (Feb 25, 2022).
14
allegedly sold by the accused, had turned hostile and not supported the case
of the prosecution that the money was received by the accused by selling
the car to the PW-8.
15. Thus, having regard to the totality of evidence adduced by the prosecution,
in our opinion, the circumstances relied upon by the prosecution did not
complete the chain to dispel the hypothesis of innocence of the appellantsaccused. The prosecution having failed to establish through clinching,
clear, cogent and consistent evidence, the chain of events, on the basis of
which the guilt of the appellants-accused could be established, in our
opinion, the Courts below had committed an error in accepting the case of
prosecution and convicting them for the alleged crime.
16. In that view of the matter, the judgements and orders of conviction and
sentence passed by the Trial Court and confirmed by the High Court are
set aside. Both the appellants-accused, and the other three accused who
have not filed any appeal, are directed to be set free forthwith, if not
required in any other case.
17. The appeals stand allowed accordingly.
 ……….…………………CJI.
 [UDAY UMESH LALIT]
NEW DELHI …………………………..J.
03.11.2022 [BELA M. TRIVEDI]

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर