KRISHNAN @ RAMASAMY & Ors. v. STATE OF TAMIL NADU

only on circumstance of last seen together with the deceased A - There was unexplained delay of six days in lodging the FIR - The body of the deceased was taken from the borewell by the fire service personnel after more that) seven days - There was no other positive material to show that the deceased was last seen together with the accused and during intervening B period of seven days there was nobody in contact with the deceased - High Court erred in affirming the order of conviction passed by the trial court Evidence: Testimony qfaccomplice - Held: Cannot be C used against another accused - Penal Code, 1860: ss.364, 302, 201 rlw s.34. The prosecution case was that accused no. 1 and his wife accused no. 5 were annoyed with the victim deceased as the deceased had been in love with their D daughter and expressed his love to her. On account of this, the deceased was driven out of the village. On the fateful day, the deceased visited the village for the festival. At about 6.30 P.M., when the deceased was with his friends, accused no. 1, 2, 3 and 5 came there and took E the deceased to a place near temple and attacked him. Later at 12 midnight, accused no. 1 and 2 strangulated him to death. Thereafter, accused 1, 2 and 3 hid the dead body into a borewell. As the deceased did not return home, after about 6 days, the mother of the deceased, F PW-1 made a complaint under Section 365, IPC. Accused no. 3 was arrested who took the police to the borewell , where the dead body of the deceased was hidden. The trial court convicted accused no. 1 to 3 under Sections 364, 302_ and 201 IPC r/w section 34 IPC but acquitted G accused no. 4 and 5. The High Court dismissed the appeal by accused no. 1 to 3. The instant appeal was filed challenging the order of the High Court. Allowing the appeal, the Court H 342 SUPREME COURT REPORTS [2014] 9 S.C.R. A HELD: 1. The judgment passed by the trial court as affirmed by the High Court depicted that the prosecution case rested only upon the cir~umstantial evidence. The Court mainly relied upon the evidence of PW-1, mother of the deceased, confession of accused No.3 and the B postmortem report. The evidence of PW-1 was to the effect that her son was said to have given ii flower to the daughter of accused No.1 and since accused No.1 was very much annoyed with her son, she sent her son to Kerala for employment in order to save him from the · c accused. After sometime, the deceased had come to his native village for celebrating the Festival and when he was talking to his friends on one evening, he was taken by accused Nos. 1 to 4 for questioning and on hearing the same PW-1 went to the said place where accused 0 Nos.1 to 4 had been examining the deceased. She saw her son being beaten 'up by the accused and at that time her son was in an unconscious state. She went and brought the village headman who prevented such beating. He told the accused to leave her son at the Police E Station. The accused had kept the deceased till 7.30 p.m. They sent accused No.2 to bring the auto. Accused Nos.1, 2 and 3 tooK her son in that auto. Her son had not returned next day. Accused No.1, later on, crossed her house from whom she enquired as to the whereabouts of her son to which he replied that her son would return F within two days. When she further enquired from accused No.1, he replied that he had sent him to Kerala, on paying him Rs.100/-. On the next day, i.e. 6th day she again asked accused No.1 about her son and she told him that she would file a complaint alleging the missing G of her son. Subsequently, after a lapse of 6 days, she had filed a complaint with the Police Station. During the cross-examination, PW-1 accepted that she lodged the complaint after' tapse of six days of missing of her son. She further accepted that she ·had not stated in the H KRISHNAN@ RAMASAMY v. STATE OF TAMIL NADU 343 complaint that during the Inspector's enquiry that white_. A she had asked accused "'o.-1 about her son, he had replied that her son would return within two days. She further stated that when she dictated the complaint Ex.P .1, one auto driver had reduced it in writing. Auto driver was not examined. [Paras 7, 8 & 9] [349-F-H; 350- B A-H; 351-A] '

#2. PW-2 is the elder sister of PW-1. She stated that on the fateful day, the deceased was lying at the entrance of the house at about 6 o'clock. All the five accused came to PW-1 's house and took the deceased for enquiry. They C beat up the deceased there. Then the village head told not to beat him and asked them to hand him over to the Police Station. Subsequently, at 8 hrs accused no.2 brought the auto and accused not 1 to 4 took the deceased in that Auto. They h-ad not gone along with D them, since there was a darkness. During her cross examination, she stated that when they had made a visit to Police Station, accused No.1 had brought the deceased to Police Station. Therefore, they asked as to whether the deceased was present there. The Police had E replied that the deceased was not handed over to them. [Paras 10 and 11) [351-B-E]

#3. PW-4, a coolie stated that he was a friend of the deceased. He further stated that there was an enmity F between the deceased and the accused as the deceased had love with the daughter of accused Nos.1 and 5. Due to the threat from accused No.1, the deceased had left the village. He stated that about 6 p.m., he had gone to the temple. Then all the accused had found to have examined G the deceased in the Temple. When they were making such enquiry, they had beaten up the deceased. During the cross-examination, he accepted that he has not given any information about the deceased to anybody. He had not engaged in a search as to the disappearance of the H 344 SUPREME COURT REPORTS [2014) 9 S.C.R. A deceased. He had enquired with the deceased's mother as to his dis~ppearance on the third day and she informed him that there was no information as to the deceased. He further accepted that on 11th April, 2004, the Police had enquired him about the deceased, he had B not mentioned to anyone as the occurrence happened between 4th day and 11th day, with regard to the deceased. [Para 12] [351-G-H; 352-A-B] E

#4. In the FIR, PW-1 did not disclose the presence of PW-2 and PW-4 at the scene of occurrence. The deceased C was last seen with accused Nos.1 and 4 by Village headman who said to have been present at the place where the deceased was last seen in the company of accused, was neither named as prosecution witness nor . examined. There was inordinate delay of more than six D days in filing the complaint about the missing of the deceased but ·PW-1 did not explain the delay in lodging such complaint. PW-1 in her statement stated that the deceased was lastly seen with the accused Nos.1 to 4 in Mariyamman Temple. PW-2 in her statement stated that the deceased was last seen in the Police Station. The case of the prosecution was that the deceased was last seen in the autorickshaw by which he was abducted from the house of accused No.1. In the complaint, PW-1 intimated that the deceased was sleeping in the night. In the FIR, the motive of the accused was not disclosed. The accused No.3 was not even named in the FIR. The manner in which PW-1, mother of deceased gave the detail of occurrence which took place on 4th April, 2004 showed as if she had seen every stage, the manner in G which the accused abducted the deceased, beaten up in the temple, taken in the autorickshaw, reached from one place to another place and then went to the Police Station. The statement of PW-1 about accused No.3 was an improvement which was not explained. The story of H accused to the deceased in the autorickshaw as· narrated F KRfSHNAN@ RAMASAMY v. STATE OF TAMIL NADU 345 in the deposition of PW-1 was anotncr improvement A ·which she has not disclosed in the FIR. [Paras 13 to 16] · [352-C-H; 353-A-B]

#5. The case of the prosec"!tion rested mainly on the scene of occurrence; the deceased was last seen in the 8 company of accused Nos.1 to 3. As per PW-1, deceased was last seen iri the temple in the company of accused Nos. 1 to '4. PW-2 is maternal aunt of the deceased. PW- 1 did not disclose the presence of PW-2 at the scene of occurrence where the de~eased was last seen in the . C company of accused Nos.1 to 4. Even if the statement of PW-2 is accepted, then according to her the deceased was iast seen in the Police Station along with accused No.1, who had brought the deceased there. The prosecution has failed to explain the statement given by PW-2 during her cross-examination wherein she stated that when she asked the Police about the deceased, they replied that the deceased was not handed over to them. Therefore, the presence of PW-2 at the scene of occurrence was doubtful. She being the highly interested witness and in view of contradictions, her statement E cannot be relied upon. [Paras 18 ·and 19] [353-D-H] · 0

#6. The testimony of an accomplice cannot be used against another accused. Oh .the basis of testimony of accused No.3, if dead body was recovered, on that basis F the accused Nos.1 and 2 cannot be convicted. If accused No.4 was also last seen with· the deceased along with accused Nos. 1 to 3, the trial c~urt having given benefit of doubt to accused No.4 it is not clear as to why the same benefit has not been given to accused Nos.1 to 3. G The conviction cannot be based only on circumstance of last seen together with the deceased. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased was last seen on 4th April, 2004 during the Festival at the temple. The body of H 346 SUPREME COURT REPORTS [2014] 9 S.C.R. A the deceased was taken from the borewell by the fire service personnel after more than seven days. There was no other positive material on record to show that the deceased was last seen together with the accused and intervening period of seven days there was nobody in B contact with the deceased. The Sessions Judge convicted. the accused Nos.1 to 3 on the basis of last seen evidence, the correctness of last seen version emanating from PW-1, PW-3 and PW-4 and as the prosecution case is also doubtful, there being c contradiction about place where the accused were last seen with the deceased. The High Court had failed to appreciate the said fac~ and erred in affirming the order of conviction passed by the Sessions Judge. [Paras 20, 21, 23, 25] [354-A-C, H; 355-A-B, D-EJ D E F