The division judge bench of Hon’ble Chief Justice of India Uday Umesh Lalit and Justice Bela M. Trivedi of the apex court in the case of S. Kaleeswaran Vs State By the Inspector of Police Pollachi Town East Police Station, Coimbatore District, Tamil Nadu held that, 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 offenses, merely because they failed to explain as to under what circumstances the victim suffered death.
BRIEF FACTS
The factual matrix of the case is that accused no. 1 was a Taxi Driver, accused no. 2 was the friend of accused no. 2 and accused no. 3, 4, and 5 were the friends of accused no. 2. The accused no. 1 conspired with the accused no. 2 and planned to commit a dacoity of an ambassador car and to cause the murder of the driver of that car. Thereafter, the accused made the driver come to the fire service car in the furtherance of the said plan. The accused no.1 made the accused no.4 hire the said Ambassador Car for two hours and requested the driver to come by 12:30 P.M. The driver accordingly arrived at the place as requested by the accused no.1 with his Ambassador Car.
Thereafter, the accused no. 1 and the driver reached the place where accused no. 3 to 5 were waiting. All the accused thereafter got into the said Ambassador Car and all the five accused made the driver stop the car near an isolated place. All the accused in furtherance of the conspiracy hatched by them murdered the taxi driver John Thomas. Furthermore, the accused buried the dead body of the accused in the pit. The trial court convicted the accused 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.
The learned counsel appearing on behalf of the appellant has contended that the prosecution has failed to prove the chain of circumstances beyond the reasonable doubt leading to an irresistible conclusion of the guilt of the accused. It was also submitted that the high court has rightly not relied upon the extra judicial confession and further, the identity of the dead- body of the deceased was also not duly proved.
Further, it was argued that the prosecution's last saw theory could not have been relied upon because the statements of PWs 6 and 7, who claimed to have seen the deceased with accused No. 1, were taken roughly six months after the alleged incident in which the deceased went missing. The learned counsel appearing on behalf of the state has contended that the High Court and Sessions Court, after fully appreciating the evidence adduced by the prosecution, this Court may not upset the same. It was further submitted that there was enough evidences to connect all the accused with the alleged crime.
COURT’S OBSERVATION
The hon’ble apex court held that 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.
The court further relied upon the judgment titled Pattu Rajan v. State of Tamil Nadu in which it was held 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 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.
The top court observed that the circumstances relied upon by the prosecution did not complete the chain to dispel the hypothesis of innocence of the appellants -accused. 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.
CASE NAME- S. Kaleeswaran Vs State By the Inspector of Police Pollachi Town East Police Station, Coimbatore District, Tamil Nadu
CITATION- CRIMINAL APPEAL NO. 160 OF 2017
CORUM- Hon’ble Chief Justice of India Uday Umesh Lalit and Justice Bela M. Trivedi
DATE- 3.11.22
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