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SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, JJ.
KRISHNAN @ RAMASAMY & ORS. – APPELLANTS
VERSUS
STATE OF TAMIL NADU – RESPONDENT
CRIMINAL APPEAL NO. 512 OF 2010
Decided On : 01-07-2014
(b) Criminal trial – Testimony of co-accused – Cannot be basis for convicting other accused – Dead body recovered at the testimony of A 3 – A1 and A2 cannot be convicted on that basis – A 4 was last seen with A1 to A3 – A4 given benefit of doubt – A1 to A3 also entitled to same treatment. (Para 20)
1994 Supp.(2) SCC 372; (2002) 8 SCC 45 – Relied upon
(c) Code of Criminal procedure, 1973 – Section 154 – Undue delay of 6 days in lodging FIR – Fatal to prosecution case. (Para 23)
(d) Criminal trial – Circumstantial evidence – Last seen theory – Conviction cannot be based only on last seen theory. (Para 24)
(2005) 12 SCC 438 – Relied upon
Facts of the case:
Appellants were convicted and sentenced under Section 364, 302 and 201 read with Section 34 IPC.
High Court affirmed the conviction and sentence.
Finding of the Court:
Impugned judgment is not sustainable.
Result:
Appeal allowed.
JUDGMENT
Sudhansu Jyoti Mukhopadhaya, J.
1. 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, 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 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 evidence nor any documentary evidence was produced on
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