PATTU RAJAN versus THE STATE OF TAMIL NADU

[2019] 5 S.C.R. 535

PATTU RAJAN

THE STATE OF TAMIL NADU

(Criminal Appeal Nos. 680-681 of 2009)

MARCH 29, 2019

[N.V. RAMANA, MOHAN M. SHANTANAGOUDAR,INDIRA BANERJEE, JJ.]

Penal Code, 1860: s.302 – Abduction and murder of husbandof complainant (PW1) – Prosecution case was that accused no.1wanted to take PW1 as his third wife knowing that she was alreadymarried to victim-deceased and made several attempts with the helpof other accused to severe the relationship between PW1 and herhusband – Prior to the day of incident, the deceased and PW1 wereabducted by accused no.1 and his henchmen but on the same daywere released for which separate complaint was lodged by PW1and separate trial was conducted – Subsequent to this event ofabduction, accused committed murder of the PW1’s husband so asto marry PW1 without any obstruction – Conviction of appellant bytrial court under ss.364, 304 Part-I and 201 – High Court modifiedconviction under s.304 Part-I to one under s.302 – Appeal againstconviction – Held: There was detailed deposition of PW-1 as tohow accused no.1 wanted to marry her and how he often tried tolure her through undue favours, role of each of the appellants inthe crime, last seen circumstance as well as the identification of thepersonal belongings of the deceased and his dead body – Theevidence of PW1 was fully supported by the evidence of PW2, themother of PW1 – Based on the confession of accused no.6, recoveryof wallet containing photograph of PW1, gold chain etc. waseffected from the house of accused no.6 and identified by PW1 andher family as belonging to the deceased – Recovery of body at theinstance of accused no.2 and the identification of body as that ofher husband by PW1, her family as well as by the accused, on thebasis of photographs, the clothes and belongings of the deceasedand his scar stood proved beyond reasonable doubt – The evidenceof PWs 1 and 2 with regard to the motive for commission of theoffence, the last seen circumstance and recovery as well as the

Aidentification of the dead body was consistent with the case of theprosecution – The superimposition test strengthened the evidenceof PWs 1 and 2 regarding the identification of the body – Therefore,no case was made out for interference with the conviction –Evidence – Circumstantial evidence.BFirst Information Report: Plea of the accused-appellant that

BFirst Information Report: Plea of the accused-appellant thatthere cannot be second FIR relating to the same incident and thatthe incident of murder reported in FIR was merely continuation ofthe earlier offence of abduction which had triggered proceedingspursuant to the FIR – Held: Plea is not sustainable – There is nodoubt that the case arising out of second FIR, if relates to aCseparate transaction, cannot be investigated along with previousFIR under the clause ‘further investigation’ as contemplated underss.8 to s.173 of the Cr.P.C. – In the instant case, the time and placeof occurrence of the two incidents were different – Even the numberof accused involved in the incidents was different – There was noDcontinuity of action from the sequence of events either – The firstoffence was committed with the intention to abduct the deceasedand PW1, the purpose for which was merely to threaten andpressurize them – In contrast, the intention behind the secondoffence was to murder the deceased with view to permanently getrid of him – Therefore, unity of purpose and design between theEtwo offences was also absent – Thus, the incident of murder wasentirely separate and distinct from the earlier incident of abduction– Further investigation, as envisaged under ss.8 of s.173 of theCr.P.C, connotes investigation of the case in continuation of anearlier investigation with respect to which the chargesheet wasFalready filed – In case fresh offence is committed during the courseof the earlier investigation, which is distinct from the offence beinginvestigated, such fresh offence cannot be investigated as part ofthe pending case, and should instead be investigated afresh – Theseparate first information lodged in this case is, therefore, just, legaland proper – Penal Code, 1860 – s.302 - Code of CriminalGProcedure, 1973 – s.173(8) – Investigation.

Evidence: Circumstantial evidence – Reliability of – Held:Human agency may be faulty in expressing the picturisation of theactual incident, but circumstances cannot fail or be ignored – Thecircumstances relied upon by the prosecution should be of aH

conclusive nature and they should be such as to exclude every otherhypothesis except the one to be proved by the prosecution regardingthe guilt of the accused – There must be chain of evidence provingthe circumstances so complete so as to not leave any reasonableground for conclusion of innocence of the accused – Circumstantialevidence – Penal Code, 1860 – s.302.

Evidence Act, 1872: s.45 – Expert evidence – DNA Evidence– Evidentiary value of – Held: DNA evidence is in the nature ofopinion evidence as envisaged in s.45 of the Evidence Act –Undoubtedly, an expert giving evidence before the Court plays acrucial role, especially since the entire purpose and object of opinionevidence is to aid the Court in forming its opinion on questionsconcerning foreign law, science, art, etc., on which the Court mightnot have the technical expertise to form an opinion on its own – Incriminal cases, such questions may pertain to aspects such asballistics, fingerprint matching, handwriting comparison, and evenDNA testing or superimposition techniques – Undoubtedly, it is theduty of an expert witness to assist the Court effectively by furnishingit with the relevant report based on his expertise along with hisreasons, so that the Court may form its independent judgment byassessing such materials and reasons furnished by the expert forcoming to an appropriate conclusion – However, the opinionevidence is advisory in nature, and the Court is not bound by theevidence of the experts – DNA Evidence.Evidence Act, 1872: s.45 – Superimposition test conductedfor identifying the deceased – Evidentiary value of – Held: Theevidence on superimposition is also based on experts’ opinion – Asuperimposition test cannot be taken as conclusive one for theidentification of dead body, because by itself it may notconclusively establish identification – In the instant case, HighCourt accepted the expert testimony on this aspect since thesuperimposition test was merely one piece of evidence relied uponby the prosecution to corroborate the evidence of PWs 1 and 2 inorder to strengthen its case – Moreover, it was evident from thetestimony of PW34, who conducted the superimposition test, thatthe test was conducted by using three different methods, i.e. videosuperimposition, visual observation, and dental trait superimposition– Therefore, the scientific evidence of PW34 was rightly believed

Aby the Trial Court as well as by the High Court, and strengthenedthe evidence of PWs 1 and 2 regarding the identification of thebody – Though DNA test would have helped the Courts immenselyin determining the reliability of the identification of the body of thedeceased, in the presence of other reliable evidence on record infavour of the prosecution version on this aspect, the contentionBthat the non-conducting of DNA test and the reliance on evidenceregarding identification through superimposition is improper isrejected – This is all the more true since no material was forthcomingto the effect that the parents of the deceased were alive during therelevant period, so as to conduct comparative DNA tests –CSuperimposition test.

Dismissing the appeals, the Court

HELD: 1. The argument for the appellants that the incidentof murder in the case in hand is merely continuation of an earlieroffence relating to the abduction of PW1 and the deceased whichDoccurred has no force. The crime of abduction commenced whenthe victims (PW1 and the deceased) were forced into captivityand was completed on the same day immediately after the victimswere released. In respect of the said incident, the first informationwas lodged by PW1. During the investigation of the said case,Ethe accused brought the deceased, PW1 and her family membersto Tirunelveli. The crime in question was committed after twodays, whereby PW1 and her husband were taken away in car,and on the direction of Accused No.1, Accused Nos. 2 to 4, 6 and7 forcibly took away the deceased by separating him from hiswife, committed his murder and threw away his body in the forestFarea. The time and place of occurrence of the two incidents weredifferent. It is evident that unity of purpose and design betweenthe two offences was also absent. [Para 15] [550-F; 551-B-D, F]

1.2 The facts and circumstances of the matter clearlyindicated that the offence of abduction committed by the appellantsGand the offence of murder were two different and distinct offences,and therefore, there is no question of further investigation to bemade in the crime of abduction by the investigating agencyrelating to the offence of murder which was committed duringthe subsistence of the investigation relating to abduction. Further

investigation, as envisaged under Sub-section 8 of Section 173of the Cr.P.C, connotes investigation of the case in continuationof an earlier investigation with respect to which the chargesheethas already been filed. In case fresh offence is committed duringthe course of the earlier investigation, which is distinct from theoffence being investigated, such fresh offence cannot beinvestigated as part of the pending case, and should instead beinvestigated afresh. The separate first information lodged in thiscase is just, legal and proper. [Paras 18, 20] [554-A-C; 556-A]Awadesh Kumar Jha v. State of Bihar (2016) 3 SCC 8 ;State of A.P. v. Cheemalapati Ganeswara Rao [1964] 3SCR 297 ; T.T. Antony v. State of Kerala (2001) 6 SCC181: [2001] 3 SCR 942; Rameshchandra NandlalParikh v. State of Gujarat (2006) 1 SCC 732; NirmalSingh Kahlon v. State of Punjab (2009) 1 SCC 441:[2008] 14 SCR 1049; Babubhai v. State of Gujarat(2010) 12 SCC 254 : [2010] 10 SCR 651 – relied on.

2.1 There was no direct evidence in the instant matter andthe whole case rests on circumstantial evidence. In matters restingon circumstantial evidence, the Judge while deciding shouldalways tread cautiously so as to not allow conjectures or suspicion,however strong, to take the place of proof. If the allegedcircumstances are conclusively proved before the Court byleading cogent and reliable evidence, the Court need not lookany further before affirming the guilt of the accused. PW-1 deposedin detail as to how Accused No.1 wanted to marry her and how heoften tried to lure her through undue favours. She meticulouslydeposed about the role of each of the appellants in the crime. Inthe cross-examination, she also explained the delay in lodgingthe first information by deposing that she could not file thecomplaint before 20.11.2001 though her husband was abductedon 26.10.2001 because she was under the constant surveillanceof Accused No. 1 and his henchmen and could only free herselfafter 06.11.2011. Also, in the first incident (being the incident ofabduction), her husband was spared by Accused No. 1, and on asubsequent occasion also, he was spared by Accused No. 2. Thus,she was hopeful that her husband would escape on this occasion

Aas well. Though PW1 was cross-examined at length, the defencecould not discredit her evidence on material particulars. Minorvariations pointed out by the defence, as such neither affectedthe prosecution version nor PW1’s evidence in its entirety.[Paras 22, 24] [556-D-F; 558-G-H; 559-A-D]

2.2 PW1 deposed about the aspect of motive, the last seencircumstance as well as the identification of the personalbelongings of the deceased and his dead body. She was the witnesswho saw the deceased in the company of the accused for the lasttime before his death. The evidence of PW1 was fully supportedby the evidence of PW2, the mother of PW1. [Paras 25, 26]

3. The testimony of PW7, the Village Administrative Officerworking in the office of the Tehsildar, is also relevant andsignificant. In his presence, Accused No.2 confessed to theInspector of Police, that if taken to Kodaikanal, he would showthe spot at Tiger-Chola where the dead body of PW’s husbandDwas thrown. Accordingly, Accused No.2 was taken to the saidplace and he pointed out the place of disposal of the body, andalso identified the dead body of the deceased from thephotographs available with the police. Nothing material worthconsidering in favour of the defence was extracted from the cross-Eexamination of PW7. [Para 27] [560-E-G; 561-A]

4. There cannot be any dispute that confession made bythe accused in police custody is an inadmissible confession. Theconfession herein cannot even be called an extra-judicialconfession because of the presence of the police. If confessionFis made by the accused before the police and portion of theconfession leads to the recovery of any incriminating material,such portion alone is admissible under Section 27 of the IndianEvidence Act. Since only such portion of the confession relatingto the recovery of certain material objects was admitted inevidence and relied upon, such reliance was in accordance withGlaw. [Para 27] [561-B-C]

5. During the course of investigation, the records of thevarious hotels in which the accused had stayed along with thedeceased, PW1 and her family were collected. PW36, the

handwriting expert compared the handwritings in the hotelrecords with the handwritings of the accused and opined theformer to belong to Accused Nos. 4, 5, 6 and 8. This supportedthe conclusion that the accused in fact took PW1 and her familymembers to various places as deposed by them. [Para 30][562-H; 563-A-B]

6. DNA evidence is also in the nature of opinion evidenceas envisaged in Section 45 of the Evidence Act. Undoubtedly, anexpert giving evidence before the Court plays crucial role,especially since the entire purpose and object of opinion evidenceis to aid the Court in forming its opinion on questions concerningforeign law, science, art, etc., on which the Court might not havethe technical expertise to form an opinion on its own. Undoubtedly,it is the duty of an expert witness to assist the Court effectivelyby furnishing it with the relevant report based on his expertisealong with his reasons, so that the Court may form its independentjudgment by assessing such materials and reasons furnished bythe expert for coming to an appropriate conclusion. However,the opinion evidence is advisory in nature, and the Court is notbound by the evidence of the experts. It cannot be said thatabsence of DNA evidence would lead to an adverse inferenceagainst party, especially in the presence of other cogent andreliable evidence on record in favour of such party. [Paras 31-33] [563-C-D; 564-A-B, E]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Ramesh ChandraAgrawal v. Regency Hospital Limited & Ors. (2009) 9SCC 709 : [2009] 14 SCR 424; The State (DelhiAdminstration) v. Pali Ram (1979) 2 SCC 158 : [1979]1 SCR 931 ; State of H.P. v. Jai Lal & Ors. (1999) 7SCC 280 : [1999] 2 Suppl. SCR 318 ; Baso Prasad &Ors. v. State of Bihar (2006) 13 SCC 65 : [2006] 9Suppl. SCR 431 ; Malay Kumar Ganguly v. Dr. SukumarMukherjee & Ors. (2010) 2 SCC (Cri) 299– relied on.

7. The superimposition test was conducted in the instantcase for identifying the deceased. There cannot be any disputethat evidence on superimposition is also based on experts’

Aopinion. The High Court was justified in observing that asuperimposition test cannot be taken as conclusive one for theidentification of dead body, because by itself it may notconclusively establish identification. However, the High Courtrightly accepted the expert testimony on this aspect since in theinstant case, the superimposition test was merely one piece ofBevidence relied upon by the prosecution to corroborate theevidence of PWs 1 and 2 in order to strengthen its case.Moreover, it is evident from the testimony of PW34, whoconducted the superimposition test, that the test was conductedby using three different methods, i.e. video superimposition, visualCobservation, and dental trait superimposition, and in spite ofchallenges to the reliability of such evidence, the Courts, aftercarefully assessing the methodology adopted, accepted the findingreached by PW34 regarding the identification of the body, andthere was no error in such conclusion reached by the Courts.Therefore, the scientific evidence of PW34 was rightly believedDby the Trial Court as well as by the High Court, and strengthenedthe evidence of PWs 1 and 2 regarding the identification of thebody. [Paras 34, 36-38] [564-F; 565-E-G]

Shankar & Ors. v. State of Tamil Nadu (1994) 4 SCC478; Swamy Shraddananda v. State of KarnatakaE(2007) 12 SCC 288 : [2007] 7 SCR 616; Inspector ofPolice, Tamil Nadu v. John David (2011) 5 SCC 509:[2011] 7 SCR 354; Mahesh Dhanaji Shinde v. State ofMaharashtra (2014) 4 SCC 292 : [2014] 3 SCR 406 –relied onFModi, Textbook of Medical Jurisprudence andToxicology, 26th Edition, 2018 – referred to

8.1 Based on the confession of Accused No.6, recoveriesof wallet containing photograph of PW1, gold chain etc. wereeffected from his house, which also stood positively identified byGPW1 and her family as belonging to the deceased. It is evidentfrom the depositions that the recovery of the dead body was madefrom the Tiger-Chola forest area, which was the same place towhich Accused No. 2 led the investigation team based on his

confession about disposal of the dead body. At this juncture thatmerely because the actual recovery of the body happened beforethe accused lead the police to the scene, it does not, in the factsand circumstances of this case, negate the validity of the recoverybased on confession, in terms of Section 27 of the EvidenceAct. The recovery of the body of the deceased at the instance ofAccused No. 2 and the identification of the body as that of herhusband by PW1, her family as well as by the accused, on thebasis of photographs, the clothes and belongings of the deceased,and his scar, stood proved beyond all reasonable doubt.[Paras 39, 40] [566-C-G]

Rohtash Kumar v.State of Haryana (2013) 14SCC 434 : [2013] 3 SCR 884 ; Trimukh Maroti Kirkanv. State of Maharashtra (2006) 10 SCC 681 : [2006] 7Suppl. SCR 156 – relied on.

8.2 The bill book and cash book of petrol pump at Palani,where the Tata Sumo was refuelled, were also seized. This isvery crucial evidence to show that the Tata Sumo in which theaccused were travelling along with the deceased had in fact gonetowards Kodaikanal, as is evident from the fact that fuel was filledfrom petrol pump enroute to Kodaikanal at Palani on the relevantdate. The overwhelming, consistent and reliable testimonies ofPWs 1 and 2, along with the corroborative evidence, conclusivelyproved the prosecution case. There was no embellishment orexaggeration in the evidence of these witnesses. Moreover, theevidence of the other prosecution witnesses was homogeneous,consistent and reliable, and corroborated the testimony of PWs1 and 2, which led to conclude that the chain of circumstanceswas complete and points solely at the guilt of the accused.[Paras 42, 43] [567-G-H; 568-A-C]

Inder Singh v. State (Delhi Administration) (1978) 4 SCC161 : [1978] 3 SCR 393; State of H.P. v. Lekh Raj &Anr. (2000) 1 SCC 247 : [1999] 4 Suppl. SCR 286 ;Takhaji Hiraji v. Thakore Kubersing Chamansing &Ors.(2001) 6 SCC 145; Chaman & Anr. v. State ofUttarakhand (2016) 12 SCC 76 – relied on.

[2019] 5 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 680-681 of 2009

GFrom the Judgment and Order dated 19.03.2009 of the High Courtof Judicature at Madras in C.A. Nos. 748 of 2004 and 637 of 2004

Wiith

Criminal Appeal Nos.799-800, 824, 801-802, 822-823 of 2009.

Balaji Srinivasan, AAG, Sushil Kumar, Sr. Adv., Ms. AishwaryaBhati, K. K. Mani, Ms. T. Archana, Jaideep Singh, Aditya Kumar,S. Ratnakaran, Bhagwan Das, Thankaih, T. Gopal, Vaidruti Misra, M.Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshwaran, Ms. PallaviSengupta, Advs. for the appearing parties.

The Judgment of the Court was delivered by

MOHAN M. SHANTANAGOUDAR, J.

1. The judgment dated 19.03.2009 passed in Criminal AppealNo. 637 and 748 of 2004 passed by the High Court of Judicature atMadras whereby the High Court convicted the accused appellants forthe abduction and murder of one Santhakumar, husband of thecomplainant Jeevajothi (PW1), is called into question in these appeals.

2. The material facts leading to these appeals are as under:

Accused No. 1 is the proprietor of chain of hotels (SaravanaBhavan). Either upon the advice of an astrologer or having becomebesotted with PW1, Accused No.1 had evinced keen desire to takePW1 as his third wife, though she was already married to Santhakumar(the deceased). In order to fulfil his desire, Accused No.1 used tofinancially help PW1, her family members and her husband. He used totalk to PW1 over the phone frequently, and also gave her costly giftssuch as jewellery and silk sarees and even went to the extent of payingher medical bills. In further bid to gain PW1’s love and affection, hefrequently interfered in her personal matters. Once when she was ill,under the pretext of better treatment as advised by another doctor,Accused No. 1 forcefully shifted her to another hospital, where he advisedher not to have sexual relations with her husband and made her undergoa series of tests. The deceased Santhakumar was instructed to get himselftested for AIDS and other such diseases, which he refused outright.

3. On 01.10.2001, PW1 and her husband were abducted byAccused No.1 and his henchmen (including the appellants herein), forwhich separate complaint (Ext. P3) was lodged by PW1 and separatetrial was conducted. Some of the accused therein were convicted.Separate appeals were also filed against the judgment of conviction forthe incident of abduction. As they have been decided separately, we donot propose to discuss the said incident and offence in detail in theseappeals.

A4. Accused No.1 took the help of the other appellants in order toeliminate the husband of PW1, for securing PW1 as his third wife.Subsequent to the incident of 01.10.2001 relating to abduction, AccusedNo. 2 contacted PW1 and told her that he regretted the previous eventsand suggested to PW1 to lodge police complaint. few days prior tothe murder, Accused No. 2 instructed PW1 to tell her husband to comeBalone to certain Sai Baba temple to meet press reporter whomAccused No.2 personally knew in order to highlight Accused No. 1’swrongdoings. In other words, Accused No.2 posed himself as well-wisher of PW1 and the deceased.

5. On 18.10.2001, PW1 as well as her husband went to the SaiCBaba temple as instructed by Accused No. 2. Soon after, two Ambassadorcars bearing Registration Nos. TN 09 T 3224 (M.O.1) and TN 22 5202(M.O.2), and Tata Sumo vehicle bearing Registration No. TN 09 Q1310 (M.O.3) came and halted behind the car in which PW1 and herhusband were sitting. Accused Nos. 3 and 4, armed with knives, got outDof one of the cars and forced PW1 and her husband to board the car ofthe accused in which Accused No.5 was sitting, and took them toChengalpattu. At about 8.30 p.m. on the same night, Mercedes Benzbearing Registration No. TN 10 M 7755 (M.O.4) belonging to AccusedNo. 1 arrived with the parents of PW1 along with Accused No.1.Thereafter, PW2, the mother of PW1, informed PW1 that Accused No.1Ewas in the said Benz car, and wanted PW1 to leave her husband andmeet Accused No.1 in the car. As PW1 resisted, Accused Nos. 3 and 4forcibly took PW1 to the Benz car, and she was taken to Tiruchirappalliin the said car.6. On 19.10.2001, PW1 was taken to PW9 by Accused Nos.5Fand 8 at Parappadi village, to remove the alleged influence of witchcraft(black magic) which was allegedly the cause of her being in love withSanthakumar. From there, she was taken to Veppankulam village to seekthe advise of an astrologer (PW8). At the said place, an employee ofAccused No.1, Janarthanam came and informed PW1 that her husbandGhad escaped the clutches of the henchmen of Accused No.1 and hiswhereabouts were unknown. Subsequently, after spending the night atHotel Ariyas at Tirunelveli, PW1 and her family, along with AccusedNos. 1, 5, 6 and 8 returned to Chennai by train.

7. After two days, Santhakumar spoke to PW1 over phone callHand stated that Accused No. 2 had told him about being given Rs. 5

lakhs by Accused No.1 to kill him, but Accused No. 2 had let him gounharmed out of sympathy, and had asked him to escape to Mumbai andcontact him from there after fifteen days. However, Santhakumarreturned to PW1 upon her request. Subsequently, on 21.10.2001, both ofthem approached Accused No.1 to seek his mercy, thus revealing thatSanthakumar was still alive. Later on the same day, when AccusedNo.2 told Accused No.1 false story about how he and the other accusedhad killed Santhakumar and destroyed the evidence, on Accused No.1’scue, Santhakumar and PW1 entered the room, much to the shock ofAccused No.2. Disgraced and feeling betrayed, Accused No.2 startedassaulting Santhakumar, and was joined by Accused Nos. 3 and 4. On24.10.2001, they took the couple to the office of the Deputy Commissionerof Police to withdraw the complaint relating to the incident of abductionwhich had been lodged earlier that month, and also made them sign afew blank papers. On the same day, Accused Nos. 5 and 6 tookSanthakumar, PW1 and her family members in Tata Sumo bearingRegistration No. TN 10 M 7755 belonging to Accused No. 1, again toremove the influence of black magic on PW1, after which they reachedTirunelveli.

8. On 26.10.2001, at about 6.30 a.m., Accused No. 5 came to theroom in which PW1 and her family members were staying in Tirunelveliand informed them that Accused No.1 had instructed Santhakumar tobe brought to him. Unwilling to send him alone, PW1 also went alongwith Santhakumar and Accused No.5. Accused No. 1 made PW1 andher husband get into his Tata Sumo (Registration No. TN 10 M 7755).This vehicle, being driven by Accused No. 9, with Accused Nos. 5 and8, PW1 and Santhakumar seated within, was followed by another TataSumo (M.O.3). Upon reaching the Karai Illupu culvert, and upon signalby Accused No. 5, the other vehicle stopped, and Accused Nos. 2 to 4and 6 alighted therefrom. Accused No.1 got out and grabbed Santhakumarby the collar, dragging him out. He pushed Santhakumar down and handedhim over to Accused Nos. 2 to 4 and 6 and ordered them to “finish himoff”. The Tata Sumo (M.O. 3) driven by Accused No. 7 tookSanthakumar along with the said accused towards Dindigul. AccusedNo. 1 and the other accused took PW1 back, and later brought her andher family back to Chennai.

9. While PW1 was staying at her mother’s house at Velachery,Accused Nos. 5, 8 and other henchmen of Accused No.1 kept constant

Avigil over the movements of PW1 and her family. Thereafter, at theinstance of Accused No.1, PW1 and her family members were taken toan astrologer by the name of Ravi (PW4), and later, she was made toundergo certain rituals, conducted by one Raghunatha Iyer, in thepresence of the second wife of Accused No.1 at K.K. Nagar. Later,much to her shock, PW1 learnt that these rituals were traditionallyBconducted by the wife after the death of her husband. Therefore, upongrowing gravely suspicious, she lodged the first information on 20.11.2001stating that Accused No.1 and his henchmen had murdered her husband,and the same was registered as Crime No.1047 of 2001.10. The motive put forth by the prosecution for the commission ofCthe offence is that Accused No.1 wanted to take PW1 as his third wifedespite knowing that she was already married to the deceasedSanthakumar. Accused No.1 made several failed attempts with thehelp of the other accused to sever the relationship between PW1 andher husband. Ultimately, Accused No.1 committed the offence in question

Din order to eliminate the deceased so as to be able to marry PW1 withoutany obstruction.

11. In the meanwhile, i.e. on 31.10.2001, prior to the lodging ofthe FIR, one forester by name Raman and Forest Guard Murugusen(PW26 and 27 respectively) of the Kodaikanal Range discovered theEdead body of male near the Tiger-Chola forest area. On seeing thedead body, PW27 lodged the first information, Ext. P42, at KodaikanalPolice Station, which was registered as C.R. No. 559 of 2001, recordingthe finding of an unidentified body and its unnatural death. The post-mortem was conducted on 01.11.2001 by PW35 and thereafter, as thebody remained unidentified, it was buried in the Hindu burial ground ofFthe Kodaikanal Municipality by PW33, Anithalai, in the presence of PW32,Head Constable Sebastian. Meanwhile, the accused had surrenderedand confessed to the commission of Santhakumar’s murder. Based onAccused No. 2’s confession that he and the other accused had killed thevictim and thrown the dead body in the forest area of Tiger-Chola nearGa curve on the road, the investigation team proceeded to that place, andit was eventually determined that the dead body found by the forestofficials was that of Santhakumar. The pre-burial photographs of thedead body clicked by the Kodaikanal Police (M.O. 11, 12, 13, 14) aswell as the apparel found on the body of the deceased (M.O. 5, 6 and 8)

were identified as Santhakumar’s by PW1 and her family, as well as bysome of the accused. The dead body was exhumed by PW33 and twoothers, and was sent for second post-mortem, which was conductedby PW38. During the course of investigation, the procedure ofsuperimposition of the face of the deceased was done by PW34, Dr.Jayaprakash, after which the dead body was concluded to be that ofSanthakumar. After exhumation, the body was also identified by PWs 1and 2 through scar mark still visible on the waist.

Charges were framed under various provisions of the Indian PenalCode (hereinafter referred to as “the IPC”) including Sections 302, 364and 201, and the trial was conducted.

12. The Trial Court, upon evaluation of the material on record,convicted the accused appellants for the offences punishable underSections 364, 304 Part I and 201 of the IPC. The accused appellants aswell as the State appealed before the High Court, wherein the HighCourt while confirming the finding of guilt of the accused, modified theconviction for the offence punishable under Section 304 Part I to Section302 of the IPC. The Trial Court as well as the High Court concludedthat the evidence of the prosecution witnesses, particularly that of PWs1 and 2, along with the other supporting evidence, was believable andtrustworthy; the motive for commission of the offence had been proved;the last seen circumstance had been proved by the prosecution beyondreasonable doubt; and that the recovery of the dead body based on thestatement of Daniel (Accused No.2) had also been proved. Both theCourts tested the evidence of PW1 on the touchstone of consistencywith the tenor of the case. The Trial Court, which had the opportunity toobserve the demeanor of PWs 1 and 2, held that the discrepancies andcontradictions, if any, were minor in nature, and did not affect the credibilityand consistency of the evidence of PWs 1 and 2.

13. The Courts, relying on the evidence of the doctors PWs 35and 38, who conducted the two post-mortem examinations, concludedthat the death was homicidal in nature, as the cause of death was foundto be asphyxia due to throttling.

14. Shri Sushil Kumar, learned senior counsel for the appellantstook us through the entire material on record and submitted that thecircumstances relied upon by the prosecution have not been proved in

Aaccordance with law. He argued that the High Court and the Trial Courthave merely proceeded on assumptions and conjectures, and the motivefor commission of the offence has not been proved, in addition to thefact that the evidence relating to the recovery of the dead body is shaky.He laid more stress on the argument that the first information in thepresent case (Ext. P1) registered on 20.11.2001 could not have beenBregistered at all, inasmuch as there cannot be second FIR relating tothe same incident. According to him, the incident as found in the firstinformation report dated 20.11.2001 is merely continuation of the earlieroffence of abduction which had taken place on 01.10.2001, which hadgenerated proceedings pursuant to the first information lodged onC12.10.2001. Thus, according to him, the FIR in the present case wouldonly assume the character of statement recorded under Section 161 ofthe Code of Criminal Procedure (hereinafter “the Cr.P.C”), and theproceedings in this matter would stand vitiated. He further submittedthat the first information of the abduction case dated 12.10.2001 hadbeen marked and relied upon in the present matter as Ext. P3 and its useDas substantive piece of evidence was illegal. It was also argued thatthe evidence relating to the last seen circumstance as deposed by PW1was not put to the accused while examining them under Section 313 ofthe Cr.P.C, and therefore, such portion of evidence could not be madeuse of by the prosecution against the accused. Learned counsel alsoEsubmitted that the identification of the body merely on the basis of asuperimposition test was improper, in the absence of DNA test.

Per contra, Shri Balaji Srinivasan, the learned Additional AdvocateGeneral appearing on behalf of the State, argued in support of thejudgments of the Courts below.F

15. We do not find any force in the arguments of the learnedSenior Advocate for the appellants that the incident of murder in thecase in hand is merely continuation of an earlier offence, i.e. CrimeNo. 1030 of 2001 relating to the abduction of PW1 and the deceasedSanthakumar, which occurred on 01.10.2001.G

Undoubtedly, factors such as proximity of time or place, unity ofpurpose and design and continuity of action, in respect of series ofacts, have to be considered in order to determine whether such actsform part of the same transaction or not (See State of A.P. v.Cheemalapati Ganeswara Rao, (1964) 3 SCR 297). quick overviewHof the sequence of unfolding of the incident of murder in question and

the prior incident of abduction would show that the above factors cannotbe said to be satisfied in this case. Even when the two FIRs Ext. P1 andP3 are read together, it becomes clear that the first incident of abductionbegan and ended on 01.10.2001. The crime of abduction commencedwhen the victims (PW1 and the deceased) were forced into captivity onthe said date, and was completed on the same day immediately after thevictims were released. In respect of the said incident, the first informationcame to be lodged on 12.10.2001 by PW1. During the investigation ofthe said case, on 24.10.2001, the accused brought the deceased, PW1and her family members to Tirunelveli. The present crime came to becommitted on 26.10.2001, whereby PW1 and her husband, Santhakumarwere taken away in car, and on the direction of Accused No.1, AccusedNos. 2 to 4, 6 and 7 forcibly took away Santhakumar by separating himfrom his wife, committed his murder and threw away his body at theTiger-Chola forest area within the jurisdiction of Kodaikanal Police Station.Evidently, the time and place of occurrence of the two incidentsare different. Even the number of accused involved in the incidents isdifferent. No continuity of action can be gathered from the sequence ofevents either. It may be noted that the motive for commission of both theoffences may be the same, inasmuch as they were committed to enableAccused No. 1 to marry PW1, but merely because of their commonmotive, the second offence cannot be said to be in continuation of thefirst incident, in light of there being distinct intentions behind the twooffences. The first offence was committed with the intention to abductthe deceased and PW1, the purpose for which was merely to threatenand pressurize them. In contrast, the intention behind the second offencewas to murder the deceased with view to permanently get rid of him.Therefore, it is evident that unity of purpose and design between the twooffences is also absent. Thus, it is amply clear that the incident of murderis entirely separate and distinct from the earlier incident of abduction.

16. Undisputedly, the first information pertaining to the incident ofabduction, after passing through various stages and various police officers,ultimately came to be registered as an FIR on 09.11.2001 in thejurisdictional Police Station. Nevertheless, the fact remains that theoffence of abduction was completed on 01.10.2001 itself and the firstinformation came to be lodged on 12.10.2001.

17. There cannot be any dispute that second FIR in respect ofan offence or different offences committed in the course of the same

Atransaction is not only impermissible but also violates Article 21 of theConstitution. In T.T. Antony v. State of Kerala, (2001) 6 SCC 181, thisCourt has categorically held that the registration of second FIR (whichis not counter case) is violative of Article 21 of the Constitution. It isrelevant to note paragraphs 19, 20 and 27 of the said decision in thatregard:B

“19. The scheme of CrPC is that an officer in charge of policestation has to commence investigation as provided in Section 156or 157 CrPC on the basis of entry of the first information report,on coming to know of the commission of cognizable offence.On completion of investigation and on the basis of the evidenceCcollected, he has to form an opinion under Section 169 or 170CrPC, as the case may be, and forward his report to the Magistrateconcerned under Section 173(2) CrPC. However, even after filingsuch report, if he comes into possession of further informationor material, he need not register fresh FIR; he is empowered toDmake further investigation, normally with the leave of the court,and where during further investigation he collects further evidence,oral or documentary, he is obliged to forward the same with oneor more further reports; this is the import of sub-section (8) ofSection 173 CrPC.

E20. From the above discussion it follows that under the scheme ofthe provisions of Sections 154, 155, 156, 157, 162, 169, 170 and173 CrPC only the earliest or the first information in regard to thecommission of cognizable offence satisfies the requirements ofSection 154 CrPC. Thus there can be no second FIR andconsequently there can be no fresh investigation on receipt ofFevery subsequent information in respect of the same cognizableoffence or the same occurrence or incident giving rise to one ormore cognizable offences. On receipt of information about acognizable offence or an incident giving rise to cognizable offenceor offences and on entering the FIR in the station house diary, theGofficer in charge of police station has to investigate not merelythe cognizable offence reported in the FIR but also other connectedoffences found to have been committed in the course of the sametransaction or the same occurrence and file one or more reportsas provided in Section 173 CrPC.

x x x x x x x xxx

27. just balance between the fundamental rights of the citizensunder Articles 19 and 21 of the Constitution and the expansivepower of the police to investigate cognizable offence has to bestruck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to makefurther investigation, obtain further evidence (both oral anddocumentary) and forward further report or reports to theMagistrate. In Narang case [Ram Lal Narang v. State (DelhiAdmn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however,observed that it would be appropriate to conduct furtherinvestigation with the permission of the court. However, thesweeping power of investigation does not warrant subjecting acitizen each time to fresh investigation by the police in respect ofthe same incident, giving rise to one or more cognizable offences,consequent upon filing of successive FIRs whether before or afterfiling the final report under Section 173(2) CrPC. It would clearlybe beyond the purview of Sections 154 and 156 CrPC, nay, acase of abuse of the statutory power of investigation in givencase. In our view case of fresh investigation based on the secondor successive FIRs, not being counter-case, filed in connectionwith the same or connected cognizable offence alleged to havebeen committed in the course of the same transaction and inrespect of which pursuant to the first FIR either investigation isunder way or final report under Section 173(2) has been forwardedto the Magistrate, may be fit case for exercise of power underSection 482 CrPC or under Articles 226/227 of the Constitution.”

18. However, the aforementioned principles of law may not beapplicable to the facts of the incident on hand, as the crimes underlyingthe two FIRs are distinct and different. The offence punishable underSection 302, in the present case, was committed during the course ofinvestigation of the case in the first FIR, i.e. relating to the crime ofabduction. We are of the considered opinion that the allegations andoffences under this present FIR relating to the murder of the deceasedare substantially distinct from the information lodged in Crime No. 1030of 2001 relating to abduction. We are unable to accept the argument ofShri Sushil Kumar that at the most, further investigation could have beenmade by the police in the earlier crime registered relating to abductionsince the murder has allegedly taken place during the subsistence of

Ainvestigation of the crime of abduction. As mentioned supra, the factsand circumstances of the matter clearly indicate that the offence ofabduction committed by the appellants and the offence of murder weretwo different and distinct offences, and therefore, there is no question offurther investigation to be made in the crime of abduction by theinvestigating agency relating to the offence of murder which wasBcommitted during the subsistence of the investigation relating to abduction.Further investigation, as envisaged under Sub-section 8 of Section 173of the Cr.P.C, connotes investigation of the case in continuation of anearlier investigation with respect to which the chargesheet has alreadybeen filed. In case fresh offence is committed during the course of theCearlier investigation, which is distinct from the offence being investigated,such fresh offence cannot be investigated as part of the pending case,and should instead be investigated afresh. It is pertinent to note that thefacts on hand are similar to the facts in the case of Awadesh KumarJha v. State of Bihar, (2016) 3 SCC 8, wherein this Court held that thecase arising out of second FIR, if relating to separate transaction,Dcannot be investigated along with previous FIR under the clause ‘furtherinvestigation’ as contemplated under Sub-section 8 to Section 173 of theCr.P.C.19. In Rameshchandra Nandlal Parikh v. State of Gujarat,(2006) 1 SCC 732, earlier judgments of this Court including T.T. AntonyE(supra) were considered, and it was held that in case the FIRs are not inrespect of the same cognizable offence or the same occurrence givingrise to one or more cognizable offences, and have not been alleged tohave been committed in the course of the same transaction or the sameoccurrence as the ones alleged in the first FIR, there is no prohibition onFaccepting the second FIR. In this respect, in the case of Nirmal SinghKahlon v. State of Punjab, (2009) 1 SCC 441, this Court observed thus:

“67. The second FIR, in our opinion, would be maintainable notonly because there were different versions but when new discoveryis made on factual foundations. Discoveries may be made by theGpolice authorities at subsequent stage. Discovery about largerconspiracy can also surface in another proceeding, as for example,in case of this nature. If the police authorities did not make afair investigation and left out conspiracy aspect of the matter fromthe purview of its investigation, in our opinion, as and when the

same surfaced, it was open to the State and/or the High Court todirect investigation in respect of an offence which is distinct andseparate from the one for which the FIR had already been lodged.”

20. We may also refer to the following observations made by thisCourt in the case of Babubhai v. State of Gujarat, (2010) 12 SCC 254,while considering similar question:

“20. Thus, in view of the above, the law on the subject emerges tothe effect that an FIR under Section 154 CrPC is very importantdocument. It is the first information of cognizable offencerecorded by the officer in charge of the police station. It sets themachinery of criminal law in motion and marks the commencementof the investigation which ends with the formation of an opinionunder Section 169 or 170 CrPC, as the case may be, andforwarding of police report under Section 173 CrPC. Thus, it isquite possible that more than one piece of information be given tothe police officer in charge of the police station in respect of thesame incident involving one or more than one cognizable offences.In such case, he need not enter each piece of information in thediary. All other information given orally or in writing after thecommencement of the investigation into the facts mentioned inthe first information report will be statements falling under Section162 CrPC.

21. In such case the court has to examine the facts andcircumstances giving rise to both the FIRs and the test of samenessis to be applied to find out whether both the FIRs relate to thesame incident in respect of the same occurrence or are in regardto the incidents which are two or more parts of the sametransaction. If the answer is in the affirmative, the second FIR isliable to be quashed. However, in case, the contrary is proved,where the version in the second FIR is different and theyare in respect of the two different incidents/crimes, thesecond FIR is permissible. In case in respect of the sameincident the accused in the first FIR comes forward with adifferent version or counterclaim, investigation on both theFIRs has to be conducted.”

(emphasis supplied)

AIn light of the aforementioned settled legal proposition, we haveno hesitation in holding that the separate first information lodged in thiscase is just, legal and proper.

21. Furthermore, it is no doubt true that the first information relatingto the crime of abduction dated 12.10.2001 was marked in the case onBhand relating to murder. However, we cannot accept the contention thatthe same has been used as substantive piece of evidence in this matter.This is because the said document was practically used only as supportivematerial to show the motive for the accused to commit the crime.

22. Coming to the merits of the matter, it is pertinent to note thatCthe prosecution mainly relied upon three circumstances to prove theguilt of the accused, i.e. motive, the last seen circumstance and therecovery of the dead body at the instance of the accused. An additionallink in the chain of circumstances is the non-explanation by the accusedabout the last seen circumstance in their statement recorded under Section313 of the Cr.P.C. Clearly, there is no direct evidence in this matter andDthe whole case rests on circumstantial evidence.

Before we undertake consideration of the evidence supportingsuch circumstances, we would like to note that the law relating tocircumstantial evidence is well settled. The Judge while deciding mattersresting on circumstantial evidence should always tread cautiously so asEto not allow conjectures or suspicion, however strong, to take the placeof proof. If the alleged circumstances are conclusively proved beforethe Court by leading cogent and reliable evidence, the Court need notlook any further before affirming the guilt of the accused. Moreover,human agency may be faulty in expressing the picturisation of the actualFincident, but circumstances cannot fail or be ignored. As aptly put in thisoft-quoted phrase: “Men may lie, but circumstances do not”.

As mentioned supra, the circumstances relied upon by theprosecution should be of conclusive nature and they should be such asto exclude every other hypothesis except the one to be proved by theGprosecution regarding the guilt of the accused. There must be chain ofevidence proving the circumstances so complete so as to not leave anyreasonable ground for conclusion of innocence of the accused. Althoughit is not necessary for this Court to refer to decisions concerning thislegal proposition, we prefer to quote the following observations made in

Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC116 (SCC p. 185 para 153-154):

“153. close analysis of this decision would show that the followingconditions must be fulfilled before case against an accused canbe said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra 1973 CriLJ 1783 where the following observationswere made:

“Certainly, it is primary principle that the accused must beand not merely may be guilty before Court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of conclusive nature andtendency,

(4) they should exclude every possible hypothesis except theone to be proved, and

(5) there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of case based on circumstantialevidence.”

A23. In order to satisfy our conscience, we have independentlyconsidered the evidence on record in its entirety in view of theaforementioned principles. However, as we do not wish to burden thisjudgment by reiterating the depositions of all the witnesses on record indetail, we deem it fit to discuss only the important aspects highlighted bysome of the prosecution witnesses in their testimony.B

24. It would be appropriate to begin with the testimony of PW1,the wife of the deceased. She has deposed in detail as to how AccusedNo.1 wanted to marry her and how he often tried to lure her throughundue favours. She has deposed that as Accused No.1 wished to takeher as his third wife, he wanted to separate her from her husband.CWhenever PW1 or her family were in need of money, Accused No.1would generously help them. He even used to talk to PW1 over thephone regularly, and used to interfere in her personal mattersunwarrantedly. She has narrated elaborately about the prior incident ofabduction as well. As far as the matter on hand is concerned, she hasDdeposed that on 24.10.2001, PW1, her parents and the deceased weretaken by Accused No.1 and the other accused to different places andthey ultimately reached Tirunelveli. In the early hours of 26.10.2001,Accused No.5 asked the deceased to meet Accused No.1. PW1, beingreluctant to send the deceased alone with Accused No. 5, went alongwith her husband to meet Accused No. 1, who made PW1 and theEdeceased get into the vehicle bearing Registration No. TN 10 M 7755(driven by Accused No. 9) along with himself and Accused Nos. 5 and8. On the way, upon the signal of Accused No. 5, Accused Nos. 2, 4and 6 got down from vehicle (M.O. 3) which had been following behind,and took away the deceased. Accused No. 1 further instructed theseFaccused to “finish him off”, definitely intending to instruct them to killthe deceased. Thereafter, PW1 was forcibly taken back by AccusedNo.1 and later was made to undergo different rituals, which made hersuspect the murder of her husband and led her to lodge complaintregarding the same.

PW1 has also deposed about the identification of the clothes wornby the deceased at the time of leaving her company, on which basis sheidentified the clothes on the discovered dead body to be those ofSanthakumar’s. She also identified his personal belongings that wererecovered from Accused No.6. She has deposed about the exhumation

of the dead body and her identification of the dead body based on thescar on the left side of her husband’s waist. She has meticulously deposedabout the role of each of the appellants in the crime. In the cross-examination, she has also explained the delay in lodging the firstinformation by deposing that she could not file the complaint before20.11.2001 though her husband was abducted on 26.10.2001 becauseshe was under the constant surveillance of Accused No. 1 and hishenchmen and could only free herself after 06.11.2011. Also, importantly,in the first incident (being the incident of abduction, i.e. Crime No. 1030of 2001), her husband had been spared by Accused No. 1, and on asubsequent occasion also, he had been spared by Accused No. 2. Thus,she was hopeful that her husband would escape on this occasion aswell. She also admitted in the cross-examination that her mother hadinformed her that if she married Accused No.1, he would set up businessfor their family and also pay them Rs. 10 Lakhs.Though PW1 was cross-examined at length, the defence couldnot discredit her evidence on material particulars. Minor variations pointedout by the defence, as such neither affect the prosecution version norPW1’s evidence in its entirety.

25. In effect, PW1 has deposed about the aspect of motive, thelast seen circumstance as well as the identification of the personalbelongings of the deceased and his dead body. She is the witness whosaw the deceased in the company of the accused for the last time beforehis death. While the date on which she saw the deceased with the accusedwas 26.10.2001, the dead body was found on 31.10.2001, i.e. within fivedays of the incident, and as per the post-mortem report given by PW35,Dr. A. Sivakumar, the victim appeared to have died 3-5 days prior to theexamination, which was conducted on 02.11.2001. This fact is wellcorroborated by the examination-in-chief of PW35 as well.

26. The evidence of PW1 is fully supported by the evidence ofPW2, the mother of PW1. PW2 has deposed about the conduct ofAccused No.1 towards her family members, as well as the dishonourablemotive of Accused No.1 to marry PW1 and make her his third wife. Shehas fully corroborated the evidence of PW1 regarding the events of theday of the incident as well as the preceding days. She has testified to thefact that Accused No.5 came to their room in Tirunelveli and asked the

Adeceased to go along with Accused No.1. However, PW1 also wentalong with them, but she returned to the room alone, crying, and revealedthat the accused had beaten the deceased and taken him away. She hasalso deposed about Accused No.1 taking PW1 to an astrologer, and forremoving the influence of black magic, etc.; and that she was presentduring the exhumation of the body and had identified the dead body ofBher son-in-law by the scar mark on his waist. She had also identified thebelongings of the deceased. In her cross-examination, she denied thesuggestion made to her by the defence that PW1 had falsely lodged thecomplaint to extract money from Accused No.1. She has also explainedthe delay in filing the FIR, stating that her house was being monitored byCAccused No.1 and his aides and that she was hoping that the deceasedwould return safely, as he had previously. The evidence of PW2 fullycorroborates the evidence of PW1.

It is evident from the above discussion that the evidence of PWs1 and 2 with regard to the motive for commission of the offence, the lastDseen circumstance and recovery as well as the identification of the deadbody is consistent with the case of the prosecution. We do not find anyartificiality in their evidence. On the other hand, their evidence remainsnatural, consistent, cogent and probable, and thus we do not find anyreason to disagree with the findings arrived at in that regard by the TrialCourt as well as by the High Court.E

27. The testimony of PW7, the Village Administrative Officerworking in the office of the Tehsildar, is also relevant and significant. Asper the requisition of the Assistant Commissioner of Police, PW7 wentto the Chennai Kotturpuram Police Station on 30.11.2001. In his presence,Accused No.2 confessed to the Inspector of Police, PW42, that if takenFto Kodaikanal, he would show the spot at Tiger-Chola where the deadbody of Santhakumar was thrown. Accordingly, Accused No.2 was takento the said place on 01.12.2001 and he pointed out the place of disposalof the body, and also identified the dead body of the deceased from thephotographs available with the police. PW7 further deposed that PWs 1Gand 2, who came the next day, i.e., on 02.12.2001, also identified thedead body shown in the photographs, and the body was exhumed after 2days, after completing the formalities. He also deposed that on13.12.2001, Accused No.6 confessed that if taken to his colony atSaligramam Road, he would identify and produce the wallet (M.O.7)and gold chain (M.O.9) of the deceased, and the same were recoveredHat the instance of Accused No. 6. PW7 has also deposed about therecovery of one lungi (M.O. 15) from the Tata Sumo in which thedeceased was last seen. Nothing material worth considering in favourof the defence has been extracted from the cross-examination of PW7.

It was argued by Shri Sushil Kumar that the confession made byAccused No.2 before PW7 was not admissible in evidence. There cannotbe any dispute that confession made by the accused in police custodyis an inadmissible confession. The confession herein cannot even becalled an extra-judicial confession because of the presence of the police.Be that as it may, if confession is made by the accused before thepolice and portion of the confession leads to the recovery of anyincriminating material, such portion alone is admissible under Section 27of the Indian Evidence Act. Since only such portion of the confessionrelating to the recovery of certain material objects was admitted inevidence and relied upon, such reliance was in accordance with law.

28. The testimony of PWs 26, 27, 29, 32 and 33 pertains to thevital aspect of the recovery of the body of the deceased. PW26 Raman,the forester, has deposed that while he was working with Forest GuardMurugesan (PW27) on 31.10.2001, they found dead body lying atTiger-Chola in an abyss in the forest. The body had blue-colouredchecked full-sleeved shirt and sandal-coloured pant with black-colouredbelt. After seeing the dead body, PW26 and PW27 went to the KodaikanalPolice Station and lodged the first information (Ext. P42) with regard tothe discovery of the unidentified dead body. Thereafter, the police cameto the spot along with camera and took photographs of the dead body.PW27 has reaffirmed what has been stated by PW26 and has deposedthat the dead body was taken to the hospital by the police for autopsy.

PW29, the Sub-Inspector of Police of Kodaikanal Police Station,has deposed that on 31.10.2001, PWs 26 and 27 lodged the complaintwhich came to be registered on the same day. Thereafter, PW29 alongwith other personnel went to the concerned spot at Tiger-Chola, andsaw the dead body of male aged about 30 years wearing theaforementioned clothes. He took the photographs of the dead body fromall angles and prepared the observation mahazar (Ext. P45) andpanchnama of the dead body (Ext. P46). Thereafter, the dead body wassent to the government hospital for post-mortem examination. Since thebody was unidentified and no relatives could be found, he asked HeadConstable Sebastian (PW32) to bury the body in the municipality burialground. He also told PW32 to mark the place where the dead body was

Aburied. In the cross-examination, he has denied the suggestion that thepictures mentioned were merely photographs of the original photographstaken on the spot of discovery. Further, he has deposed that he conductedan inquest of the dead body and prepared the same under the light of aPetromax. Although he saw scar on the dead body, he did not mentionthe same in the observation mahazar. The colour of the shirt was seenBas brown in the light of the Petromax, but on re-checking it in morning,he realized that it was actually blue, and thus struck it out and correctedit accordingly in the mahazar.

PW32, the Head Constable, has reiterated what has been deposedby PW29. He was present during the burial of the dead body by PW33CAnithalai, and instructed him to place an identifier on the spot of burial.PW32 exhumed the dead body in the presence of the Tehsildar, uponwhose direction, he kept the dead body at place that was elevated. Healso deposed that PW1, Jeevajothi, identified the dead body to be that ofher husband and had left the place crying. PW32’s version as to theDburial was corroborated by PW33, who has deposed that he buried thebody and put the identification mark of blue metal stone near the headto identify the place.29. We may also briefly discuss the testimony of PWs 35 and 38(the doctors who conducted the post-mortems of the deceased). PW35Econducted the first post-mortem examination. He has stated in hisexamination-in-chief that the hyoid bone in the neck was found brokenand the brain was found decomposed. He opined that the person couldhave died 3 to 5 days prior to the post-mortem examination. The hyoidbone in the neck could have been broken due to strangulation of the saidperson by using materials like lungi. PW38, who conducted the secondFpost-mortem examination upon exhumation of the dead body, was alsopresent at the spot of exhumation. PW38 deposed that while the bodywas being exhumed, he had noticed that wooden stick had been put upalong with small stone on the southern part of the place. He alsodeposed that there was an old injury scar on the right lower abdomen ofGthe dead body, the hyoid bone was broken, and that the fracture found inthe hyoid bone was ante-mortem, which was confirmed through aBensidine test. He opined that the cause of death appeared to becompression of the neck.

30. It is also relevant to note the testimony of PW36, the handwritingHexpert. During the course of investigation, the records of the various

hotels in which the accused had stayed along with the deceased, PW1and her family were collected. PW36 compared the handwritings in thehotel records with the handwritings of the accused and opined the formerto belong to Accused Nos. 4, 5, 6 and 8. This supports the conclusionthat the accused in fact took PW1 and her family members to variousplaces as deposed by them.

31. Shri Sushil Kumar also argued that DNA test should havebeen conducted in order to identify the dead body, and identificationmerely on the basis of superimposition test, which is not tangiblepiece of evidence, may not be proper.

One cannot lose sight of the fact that DNA evidence is also in thenature of opinion evidence as envisaged in Section 45 of the IndianEvidence Act. Undoubtedly, an expert giving evidence before the Courtplays crucial role, especially since the entire purpose and object ofopinion evidence is to aid the Court in forming its opinion on questionsconcerning foreign law, science, art, etc., on which the Court might nothave the technical expertise to form an opinion on its own. In criminalcases, such questions may pertain to aspects such as ballistics, fingerprintmatching, handwriting comparison, and even DNA testing orsuperimposition techniques, as seen in the instant case.

32. The role of an expert witness rendering opinion evidencebefore the Court may be explained by referring to the followingobservations of this Court in Ramesh Chandra Agrawal v. RegencyHospital Limited & Ors., (2009) 9 SCC 709:

“16. The law of evidence is designed to ensure that the courtconsiders only that evidence which will enable it to reach reliableconclusion. The first and foremost requirement for an expertevidence to be admissible is that it is necessary to hear the expertevidence. The test is that the matter is outside the knowledge andexperience of the lay person. Thus, there is need to hear anexpert opinion where there is medical issue to be settled. Thescientific question involved is assumed to be not within the court’sknowledge. Thus cases where the science involved, is highlyspecialized and perhaps even esoteric, the central role ofan expert cannot be disputed…”

(emphasis supplied)

AUndoubtedly, it is the duty of an expert witness to assist the Courteffectively by furnishing it with the relevant report based on his expertisealong with his reasons, so that the Court may form its independentjudgment by assessing such materials and reasons furnished by the expertfor coming to an appropriate conclusion. Be that as it may, it cannot beforgotten that opinion evidence is advisory in nature, and the Court is notBbound by the evidence of the experts. (See The State (DelhiAdminstration) v. Pali Ram, (1979) 2 SCC 158; State of H.P. v. JaiLal & Ors., (1999) 7 SCC 280; Baso Prasad & Ors. v. State of Bihar,(2006) 13 SCC 65; Ramesh Chandra Agrawal v. Regency HospitalLtd. & Ors. (supra); Malay Kumar Ganguly v. Dr. SukumarCMukherjee & Ors., (2010) 2 SCC (Cri) 299).

33. Like all other opinion evidence, the probative value accordedto DNA evidence also varies from case to case, depending on facts andcircumstances and the weight accorded to other evidence on record,whether contrary or corroborative. This is all the more important toDremember, given that even though the accuracy of DNA evidence maybe increasing with the advancement of science and technology withevery passing day, thereby making it more and more reliable, we havenot yet reached juncture where it may be said to be infallible. Thus, itcannot be said that the absence of DNA evidence would lead to anadverse inference against party, especially in the presence of otherEcogent and reliable evidence on record in favour of such party.

34. This leads us to the question of the propriety of relying uponthe superimposition test conducted in the instant case for identifying thedeceased. As noted supra, the learned counsel for the appellants hasargued that evidence pertaining to the use of the superimposition techniqueFis not tangible piece of evidence. We find ourselves unable to agreewith this view. There cannot be any dispute that evidence onsuperimposition is also based on experts’ opinion. We would like to notethat the use of the superimposition technique in Indian investigations foridentification purposes is not new phenomenon. Notably, it has beenGemployed in the investigations pertaining to the Nithari murders, theRussian murder incident in Goa in 2008, and even before that in theMorni Hill murder case and the Paharganj bomb blast case as far backas in 1996, and the Udhampur murder case in 2005 (See Modi, Textbookof Medical Jurisprudence and Toxicology, 26[th ]edn., 2018, pp. 267-271). This Court itself has placed reliance on identification of the deceasedH

through superimposition on several occasions (see Shankar & Ors. v.State of Tamil Nadu, (1994) 4 SCC 478; Swamy Shraddananda v.State of Karnataka, (2007) 12 SCC 288; Inspector of Police, TamilNadu v. John David, (2011) 5 SCC 509; Mahesh Dhanaji Shinde v.State of Maharashtra, (2014) 4 SCC 292), clearly indicating that it is anacceptable piece of opinion evidence.

35. It is relevant to note that all of the decisions of this Court citedin the above paragraph were based on circumstantial evidence, involvingaspects such as the last seen circumstance, motive, recovery of personalbelongings of the deceased, and so on, and therefore in none of thecases was the superimposition technique the sole incriminating factorrelied upon to reach conclusion of guilt of the accused. Indeed, inMahesh Dhanaji Shinde (supra), the Court also had the advantage ofreferring to DNA test, and in John David (supra), of referring to aDNA test as well as dental examination of the deceased, to determinethe identity of the victim. This is in line with the settled practice of theCourts, which generally do not rely upon opinion evidence as the soleincriminating circumstance, given its fallibility. This is particularly truefor the superimposition technique, which cannot be regarded as infallible.36. In view of the above discussion, we hold that the High Courtwas justified in observing that superimposition test cannot be taken asa conclusive one for the identification of dead body, because by itselfit may not conclusively establish identification. However, the High Courtrightly accepted the expert testimony on this aspect since in the instantcase, the superimposition test was merely one piece of evidence reliedupon by the prosecution to corroborate the evidence of PWs 1 and 2 inorder to strengthen its case.

37. Moreover, it is evident from the testimony of PW34, Dr.Jayaprakash, who conducted the superimposition test, that the test wasconducted by using three different methods, i.e. video superimposition,visual observation, and dental trait superimposition, and in spite ofchallenges to the reliability of such evidence, the Courts, after carefullyassessing the methodology adopted, accepted the finding reached byPW34 regarding the identification of the body, and we see no error insuch conclusion reached by the Courts.

38. Therefore, we are of the opinion that the scientific evidenceof PW34 was rightly believed by the Trial Court as well as by the High

ACourt, and strengthens the evidence of PWs 1 and 2 regarding theidentification of the body. Though DNA test would have helped theCourts immensely in determining the reliability of the identification ofthe body of the deceased, in the presence of other reliable evidence onrecord in favour of the prosecution version on this aspect, we reject thecontention that the non-conducting of DNA test and the reliance onBevidence regarding identification through superimposition is improper.This is all the more true since no material is forthcoming to the effectthat the parents of the deceased were alive during the relevant period,so as to conduct comparative DNA tests.

39. It is noteworthy to emphasise that based on the confession ofCAccused No.6, recoveries of wallet containing photograph of PW1,gold chain etc. were effected from his house, which, as mentioned supra,also stand positively identified by PW1 and her family as belonging tothe deceased.

40. From the evidence of the witnesses discussed supra, it is amplyDclear that the dead body recovered from Tiger-Chola was identified byPW1 and her family members as Santhakumar’s, and the same bodywas exhumed from the burial grounds. It is evident from the depositionsthat the recovery of the dead body was made from the Tiger-Cholaforest area, which is the same place to which Accused No. 2 led theEinvestigation team based on his confession about disposal of the deadbody. It is relevant to note at this juncture that merely because the actualrecovery of the body happened before the accused lead the police to thescene, it does not, in the facts and circumstances of this case, negate thevalidity of the recovery based on confession, in terms of Section 27 ofthe Evidence Act.F

In our considered view, the recovery of the body of the deceasedat the instance of Accused No. 2 and the identification of the body asthat of Santhakumar by PW1, her family as well as by the accused, onthe basis of photographs, the clothes and belongings of the deceased,and his scar, stand proved beyond all reasonable doubt.G

41. As mentioned supra, the evidence of PWs 1 and 2 proves thecircumstance relating to the last seen evidence beyond reasonable doubt,apart from other circumstances. Both of them in their evidence (especiallyPW1), as mentioned supra, have consistently and cogently deposed thatthe deceased was last seen along with the accused, who took theHdeceased away upon the orders of Accused No. 1. No explanation,

much less any plausible explanation has come from the accused in theirstatements under Section 313 of the Cr.P.C rebutting the strong evidenceagainst them. Though the burden had shifted onto the accused to explainthe said circumstance as to when they left the company of the deceased,no explanation was adduced in that regard by the accused herein. Hence,an adverse inference has to be drawn against the accused. It may benoted that such non-explanation by the accused provides an additionallink in the chain of circumstances.

Furthermore, although it was argued by Shri Sushil Kumar thatthe evidence relating to the last seen circumstance as deposed by PW1was not put to the accused while recording their statement under Section313, such an argument cannot be accepted, since Question No. 22 andQuestion No. 30 specifically relate to the evidence of the last seencircumstance, and were put to Accused No.1. Same is the case with theother appellants. perusal of the statements of the accused recordedunder Section 313 also reveals that the relevant questions pertaining totaking Santhakumar along with PW1 in the car on 26.10.2001, detectionof the decomposed dead body and the post-mortem thereof were all putto the accused so as to fully enable them to explain all the incriminatingcircumstances appearing against them in the evidence adduced by theprosecution. It is needless to observe that it has been established througha catena of judgments of this Court that the doctrine of last seen, ifproved, shifts the burden of proof onto the accused, placing on him theonus to explain how the incident occurred and what happened to thevictim who was last seen with him. Failure on part of the accused tofurnish any explanation in this regard, as in the case in hand, or furnishingfalse explanation would give rise to strong presumption against him,and in favour of his guilt, and would provide an additional link in thechain of circumstances. (See Rohtash Kumar v. State of Haryana,(2013) 14 SCC 434; Trimukh Maroti Kirkan v. State of Maharashtra,(2006) 10 SCC 681).

42. It is also relevant to note that the bill book and cash book of apetrol pump at Palani (Ext. P32), where the Tata Sumo bearingRegistration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized.This is very crucial evidence to show that the Tata Sumo in which theaccused were travelling along with the deceased had in fact gone towardsKodaikanal, as is evident from the fact that fuel was filled from petrolpump enroute to Kodaikanal at Palani on the relevant date.

A43. In our considered opinion, the overwhelming, consistent, cogentand reliable testimonies of PWs 1 and 2, along with the aforementionedcorroborative evidence, conclusively prove the prosecution case. Wereiterate that PWs 1 and 2 were steadfast in their testimony about themotive, the last seen circumstance, recovery of the dead body based onthe confession of Accused No.2, and about the identification of the deadBbody. We do not find any embellishment or exaggeration in the evidenceof these witnesses. Moreover, the evidence of the other prosecutionwitnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous,consistent and reliable, and corroborates the testimony of PWs 1 and 2,which leads us to conclude that the chain of circumstances is completeCand points solely at the guilt of the accused. In our considered opinion,the prosecution has proved the complicity of all the appellants in murderingSanthakumar by strangulating him and thereafter throwing the dead bodyat Tiger-Chola. It is worth recalling that while it is necessary that proofbeyond reasonable doubt should be adduced in all criminal cases, it is not

necessary that such proof should be perfect, and someone who is guiltyDcannot get away with impunity only because the truth may develop someinfirmity when projected through human processes. The traditionaldogmatic hypertechnical approach has to be replaced by rational,realistic and genuine approach for administering justice in criminaltrial. Justice cannot be made sterile by exaggerated adherence to theErule of proof, inasmuch as the benefit of doubt must always be reasonableand not fanciful. (See Inder Singh v. State (Delhi Administration),(1978) 4 SCC 161; State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC247; Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., (2001)6 SCC 145; Chaman & Anr. v. State of Uttarakhand, (2016) 12 SCC76).F

44. Having regard to the entire material on record and the totalityof the facts and circumstances, we find that the evidence on record fullyproves the case of the prosecution and that the Trial Court as well as theHigh Court evaluated the material on record in its proper prospectivewhile coming to their conclusion. Thus, the judgment of the Trial CourtGas modified by the High Court need not be interfered with. Hence theseappeals fail and stand dismissed.

Devika Gujral Appeals dismissed.