IMPORTANT POINTS
Test Identification Parade is only a corroborative piece of evidence.
Accused cannot be convicted only on basis of last seen theory in absence of any other evidence.
Information given by accused to police leading to discovery of a fact is admissible but its relevance is limited to the discovery of fact.
Statement given to police by accused while in custody is not admissible.

JUDGMENT

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 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 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.

(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 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