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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 593 OF 2010

PARAMSIVAM & ORS. … APPELLANTS

VERSUS

STATE THROUGH INSPECTOR OF POLICE … RESPONDENT

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against judgment dated 27

th

April, 2009, passed by the High Court of Judicature at Madras

in Criminal Appeal No.441 of 2007. By the impugned judgment

appeal preferred by the appellants-accused nos.1 to 3 has

been dismissed and conviction of accused nos.1 to 3 u/s 364

IPC and accused no.1 u/s 302 IPC and accused nos.2 and 3 u/s

302 r/w 34 IPC and the sentence of life imprisonment and fine

imposed upon them have been confirmed.

2.The case of the prosecution in a nutshell is as follows:

Deceased Mani alias Parai Mani took lease of the land in

S.F. No. 427/1 of Vadapudur village belonging to PW3-

Krishnasamy and PW6-Ramasamy. Accused No.6-Nagarathinam was

the neighbouring land owner. Since Accused No.1-

Paramasivam and Accused No.6-Nagarathinam threatened the

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deceased not to break the stone, deceased Mani alias Parai

Mani filed suit in O.S. No. 5/2004 before DMC, Pollachi for

Permanent Injunction restraining Accused no.6 and PWs.3 and 6

from interfering with quarrying. There was animosity between

the deceased and the family of Accused no.6-Nagarathinam.

About 10 days prior to the date of occurrence, Accused

no.1-Paramasivam, Accused no.6-Nagarathinam and Accused

no.7-Revathi threatened the deceased. About 4 days prior to

the date of occurrence, Accused no.2-Selvaraj alias Selvan

and another person approached the deceased for purchase of

stone and since it was late hours, deceased refused to

accompany them and asked them to come on some other day.

Again Accused no.2 and another person approached the

deceased on 18.1.2004 and asked for stones and deceased

accompanied the accused to the quarry. PW1-Kannaiyan and

PW2-Kala witnessed that deceased went along with Accused

no.2-Selvaraj alias Selvan and Accused no.3-Nirmal. On the

said date i.e.18.1.2004, PW8-Sivakumar and PW9-Doraisamy who

were returning from the Petrol Pump, saw white colour

Maruthi Van bearing registration No. TN-23 E 5951 (MO1) was

parked on the road side. PW9 saw the deceased and Accused

no.1 were sitting inside the Maruthi Van.

Next day on 19.1.2004, PW23-Pugazhenthi (Railway Key

Man), Thirupur saw the dead body on the railway track and

informed PW20-Ramachandran (Station Master) who in turn

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informed the Out-post Police Station, Thirupur. PW24-

Sankaralingam (Head Constable) received the report and

registered the case for 'suspicious death' in Cr. No.

12/2004 u/s 174 Cr.P.C. PW24-Head Constable went to the

scene of occurrence and found the dead body of a male on the

railway track, prepared Observation Mahazar (Ex.P15) and

Rough Plan (Ex.P16). PW24 also held Inquest on the body of

the deceased (Ex.P18) and sent the dead body for autopsy to

Government Hospital, Thirupur. On his request PW27-Nizar

Ahemad had taken photographs (MO18 series) of the body lying

on the railway track.

PW33-Dr.Parimala Devi conducted autopsy over the dead

body and noted the injuries, Dr. Devi opined that death was

due to multiple injuries on the neck and head injuries about

70 to 80 hours prior to autopsy. Since there was no clue

about the identity of the dead body, body was buried at

Chellandiamman grave yard Tirupur by PW24-Head Constable

with the aid of PW22-Murugasamy (Grave yard watch man).

Since, deceased not returned home, PWs.1 and 2 searched

for him and on 20.1.2004 PW1 lodged written complaint

[Ext.P1]. On the basis of written complaint, PW39-Rajendran

(Inspector of Police) registered the case in Cr. No. 27/2004

u/s 363 IPC. PW39 went to the scene of occurrence and

prepared Observation Mahazar and Rough Plan. He also

enquired PWs.1 to 6 and 15 and recorded their statements.

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PW41-Shahul Ahmeed (Inspector of Police) took charge of

the case on 26.1.2004 and made further investigation. On

28.1.2004 at about 1.45 P.M., PW41 arrested accused no.2-

Selvaraj near Vanjipalayam railway gate. On being

interrogated, accused no.2 voluntarily gave a confession

statement which led to the recovery of Ropes (MO10 series),

Banian (MO11), Bag (MO12), Diary (MO2) and Money purse

containing the photo of the deceased (MO3) Seizure Mahazar

(Ext.P5) was prepared. Thereafter, along with accused no.2,

PW41 went to the scene of occurrence i.e. railway track and

prepared Observation Mahazar (Ext.P34) and Rough Plan

(Ext.P35).

PW41 on the same day i.e. 28.1.2004 at 6.15 P.M.

arrested accused no.5-Gudalingam alias Lingasamy and

recorded his confession statement which led to recovery of

MO1-Maruthi omni van under Ex.P37-Seizure Mahazar. On the

same day, at about 8.50 P.M., PW41 arrested accused no.1-

Paramasivam and recorded his confession statement which led

to recovery of Lungi (MO4), Shirt (MO5) and Voters ID Card

(MO9) of deceased under Seizure Mahazar (Ext.P39).

Thereafter, PW41 went to Thirupur Out-post Police Station

and enquired PW24-Head Constable and received copy of FIR in

Cr. No. 12/2004. Thereafter, PW41-Investigating Officer

altered the FIR in Criminal No. 27/2004 from Section 363 IPC

to Sections 120-B, 364 and 302 IPC.

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On 17.2.2004, PW41 sent requisition for exhumation of

dead body of the deceased which was exhumed in the presence

of PW31-Tahsildar, PW21-R.I. and other witnesses. PW41

seized Waist Cord with Silver Amulet under Seizure Mahazar

(Ext.P12). Observation Mahazar (Ext.P13) was prepared by PW-

41 in respect of the place where body was buried. Rough Plan

(Ext.P44) was also prepared. Blood samples of the dead body

was taken. Blood samples of PW14 (Manickammal) and PW15

(Subramani) -mother and brother of the deceased were taken

and forwarded for DNA examination. PW40-Vanaja (Asst.

Chemical Examiner and Asst. Director) conducted DNA

examination and opined that "the bone pieces etc. described

belong to a human male individual". He further opined that

"the person Mani alias Parai Mani to whom the bone pieces

etc. belong is the biological offspring of

Ms.A.Manickammal."-PW14.

Accused no.3-Nirmal and Accused no.4-Sureshkumar alias

Suresh alias Pambatti surrendered before Judicial

Magistrate, Pollachi on 05.2.2004. PW41 was permitted to

take them to police custody. Confession statement recorded

from accused no.3 led to recovery of Torch (MO6), Battery

(MO17 series), Knife (MO16), Hundred rupee Note [MO13], Bag

(MO15) under Seizure Mahazar (Ext.P7). Confession statement

recorded from accused no.4 led to recovery of Watch (MO8),

Fifty rupee Note (MO14), Plastic bag (MO19) under Seizure

Mahazar (Ext.P9).

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PW38-Judicial Magistrate No. II, Pollachi conducted

Test Identification Parade in respect of Accused nos.2 and 3

on 13.2.2004. PWs.1, 2 and 5 participated in the Test

Identification Parade and identified the accused. On receipt

of chemical analysis report and DNA report and after

completion of due investigation, PW41 filed final report

u/s 147, 148, 120-B, 364 and 302 IPC.

3. To substantiate the charges against the accused,

prosecution examined 42 witnesses and brought on record

Exts.P1 to P44 and Mos.1 to 18. Accused were questioned

u/s 313 Crl.P.C. Accused denied all the charges and pleaded

not guilty and stated that a false case is foisted against

them.

4. Upon consideration of oral and documentary evidence,

the Sessions Court held that the prosecution has adduced

cogent and convincing evidence establishing that due to

previous enmity in respect of quarrying, accused nos.1 to 3

abducted the deceased and committed murder of the deceased.

The Sessions Court also held that accused nos.1 to 3 were

identified in the Test Identification Parade and

incriminating material objects recovered from them would

substantiate the charges. With regard to accused nos.4 to 7

the Sessions Court held that the prosecution failed to

establish the guilt against them and acquitted them.

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5. Learned counsel appearing on behalf of the appellants

challenged the impugned judgment mainly on the following

grounds:

(i) There is inconsistency in the prosecution

story. For example, the evidence of PW 15-

Subramani brother of the deceased is contrary

to the evidence of PW1 and 2.

(ii) The Sessions Court failed to consider the

question whether the prosecution has proved

the fact that the deceased was abducted.

(iii)There is no eye witness for the alleged

murder in absence of any contemporaneous

evidence to establish that the body found on

the railway track on Vanjipalayam is that of

the deceased-mani.

(iv) There are contradictions with regard to

exhumed body. For example, while PW 21 stated

that when the body was exhumed it was found

in pieces in a gunny bag whereas PW 23 stated

that dead body was found in pieces and no

dress was found on it.

6. On the other hand, the Prosecution relied upon the

following circumstances to bring home the charges.

(i) Existence of motive.

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(ii) Circumstance that deceased was last seen

alive in the company of the

appellants/accused nos. 1 to 3.

(iii)Death was homicidal and the body was found on

the railway track mutilated.

(iv) Body was identified as that of deceased

through DNA test.

(v) Arrest of the accused and recovery of

incriminating articles at their instance.

7. PWs.3 and 6 are brothers and accused no.6-Nagarathinam

is brother's wife of PWs.3 and 6. Deceased Mani alias Parai

Mani took lease of PWs.3 and 6's land in S.F. No. 427/1

(Part) of Vadapudur village for quarrying. While the deceased

was carrying on quarrying work, accused no.6-Nagarathinam and

her son and daughter i.e. accused no.1-Paramasivam and

accused no.7-Revathi objected for quarrying. Alleging that

without any lawful right, accused no.6 was objecting to

quarrying, deceased filed suit in O.S. No. 5/2004 on

02.1.2004 on the file of DMC, Pollachi against accused no.6

and PWs.3 and 6. This is evident from Ext.P-22

pleadings in O.S. No. 5/2004, PWs.1 and 2 have spoken in one

voice about deceased taking quarry of lease from PWs.3 and 6

and that accused no.6, accused no.1 and accused no.7 were

raising objection to carry out quarrying work. Evidence of

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PWs.3 and 6 also strengthens prosecution version about the

grant of lease.

8. Filing of suit on 02.1.2004 about two weeks prior to

the occurrence heightens the probability of prosecution

case. In cases of circumstantial evidence proof of motive is

material consideration and a strong circumstance.

9. The case of the prosecution is that deceased was last

seen alive in the company of the accused. Evidence of PWs.1

and 2 that accused nos.2 and 3 had taken the deceased from

his house in Chikkalampalayam. Evidence of PW9-Doraisamy is

that he saw the deceased along with accused no.1-

Paramasivam in Maruthi Omni Van Registration No. TN-23 E

5951 (MO1) near Kinathukadavu Checkpost. PW5-Balan stated

that the deceased had left with accused no.1 from the quarry

in Ealoorkarar thottam.

About four days from the date of occurrence, accused

nos. 2 and 3 went to the house of the deceased asking for

size of the stones. When being asked about them, accused

no.2 disclosed his name as Selvaraj. As they appear to be

strangers and as it was very late in the evening, deceased

asked them to come on some other day. After four days

thereafter accused nos.2 and 3 went to the house of the

deceased and asked him to come along with them for seeing

the stones. Inspite of disinclination of deceased, accused

nos. 2 and 3 insisted the deceased to come along with them

stating that their owner has come and therefore, stones are

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to be seen. As it was late in the evening, deceased asked

his wife for torch and PW2-Kala gave him torch (MO6) and

deceased went along with accused nos.2 and 3.

10.The evidence of PWs.1 and 2 is cogent and consistent

which clearly brings home the circumstance that deceased

went along with accused nos. 2 and 3. In the Test

Identification Parade conducted by PW38-Judicial Magistrate,

PWs.1 and 2 have also identified accused nos. 2 and 3 which

would strengthen the stand of the prosecution.

11.Learned counsel for the appellant raised objection with

regard to non-mention of name of accused no.2-Selvaraj in

Ext.P1-Complaint and submitted that accused no.3-Nirmal

accompanied accused no.2 would throw serious doubts about

the credibility of PWs.1 and 2. But from the evidence

Ext.P1-complaint we find that PW1 has clearly stated that

two persons had come to their house and took the deceased in

Maruthi Omni Van. In Ext.P1-Complaint, though PW1 had

expressed suspicion about accused nos. 1, 6 and 7, PW1 has

clearly expressed his doubts that accused nos. 1, 6 and 7

might have engaged men for abducting the deceased. Such

doubts expressed in Ext.P1-Complaint is sufficient

incriminating circumstance against the accused nos. 2 and 3.

Credibility of PWs.1 and 2 cannot be doubted on the ground

of non-mention of name of accused no.2 in Ext.P1-Complaint.

The evidence of PW9 also established that the deceased was

last seen alive with accused no.1-Paramasivam in Maruthi

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Omni Van (TN-23 E 5951) near Kinathukadavu Checkpost. In his

evidence, PW9 has stated that after taking petrol for TVS-50

in a Petrol Pump near the Checkpost while he was proceeding

along with PW8-Sivakumar, he saw the deceased along with

accused no.1-Paramasivam in Maruthi Omni Van (MO1) and saw

the others inside the Van. Since, deceased and accused no.1-

Paramasivam were in inimical terms, PW9 wondered as to why

accused no.1 and deceased are seen together and he asked

PW8-Sivakumar about the same. Though, PW8-Sivakumar turned

hostile, evidence of PW9 is trustworthy and we do not find

any reason to take a different view.

12.Another circumstances relied upon by the prosecution is

evidence of PW15-Subramani (brother of the deceased) that

accused no. 1 and another person came to the quarry to see

stones. When they were crushing the stones, deceased went

with them to see the stones. No doubt evidence of PW15 as to

how deceased went with the accused might appear to be

slightly different but due to variation of time narrating

the events cannot be said in manner the PW15 narrated his

statement. We are of the view that evidence of PW15 does not

make any dent upon the consistent version of PWs.1 and 2 and

the case of prosecution.

13.Dr. Perimaladevi-PW33 conducted autopsy and noted the

following injuries:

→ Crush injury over the front of head and

part of brain comes out [liquified].

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→ Fracture of left arm bone [upper] and left

shoulder joint bones.

→ Fracture of right upper arm bone and cut

off from the shoulder joint.

→ Fracture of left leg bones [middle].

→ Fracture of right thigh bone and leg bones.

14.Dr. Perimaladevi opined that deceased died of 'shock

and haemorrhage' due to multiple injuries and head injuries

about 70-80 hours prior to the autopsy. Since identity of

the body was not known, body was buried in Thirupur

Chellandiamman burial ground. Later at the request of

Investigating Officer, body was exhumed in the presence of

PW21-Tahsildar. After the body was exhumed, PW34-

Dr.Vallinayagam collected the blood for DNA test. Blood

samples of PW14-Manickammal and PW15-Subramani (mother and

brother of the deceased) were also collected. After

conducting DNA test and upon analysis of results of DNA

typing for the samples, PW40-Asst. Director gave Ext.P32-

Report and opined that "bone pieces etc. described belong to

a human male individual". PW40 further opined that "the

person Mani alias Paraimani to whom the bone pieces etc.

belong is the biological offspring of Ms. A. Manickammal.".

Evidence of PW40 would amply establish identity of body

recovered from the railway track as that of the deceased

Mani alias Parai Mani who is the son of PW14-Manickammal.

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15.When deceased is shown to be abducted, it is for the

abductors to explain how they dealt with the abducted

victim. In the absence of explanation, Court is to draw

inference that abductors are the murderers.

16.In State of W.B. v. Mir Mohammad Omar and others (2000)

8 SCC 382, this Court held:

“34. When it is proved to the satisfaction of the

Court that Mahesh was abducted by the accused and

they took him out of that area, the accused alone

knew what happened to him until he was with them.

If he was found murdered within a short time

after the abduction the permitted reasoning

process would enable the Court to draw the

presumption that the accused have murdered him.

Such inference can be disrupted if the accused

would tell the Court what else happened to Mahesh

at least until he was in their custody.”

17.In Sucha Singh v. State of Punjab (2001) 4 SCC 375 ,

this Court held:

“15. The abductors alone could tell the court as

to what happened to the deceased after they were

abducted. When the abductors withheld that

information from the court there is every

justification for drawing the inference, in the

light of all the preceding and succeeding

circumstances adverted to above, that the

abductors are the murderers of the deceased.”

“19. We pointed out that Section 106 of the

Evidence Act is not intended to relieve the

prosecution of its burden to prove the guilt of

the accused beyond reasonable doubt, but the

section would apply to cases where the

prosecution has succeeded in proving facts for

which a reasonable inference can be drawn

regarding the existence of certain other facts,

unless the accused by virtue of special knowledge

regarding such facts failed to offer any

explanation which might drive the court to draw a

different inference.”

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“21. We are mindful of what is frequently

happening during these days. Persons are

kidnapped in the sight of others and are forcibly

taken out of the sight of all others and later

the kidnapped are killed. If a legal principle is

to be laid down that for the murder of such

kidnapped there should necessarily be independent

evidence apart from the circumstances enumerated

above, we would be providing a safe jurisprudence

for protecting such criminal activities. India

cannot now afford to lay down any such legal

principle insulating the marauders of their

activities of killing kidnapped innocents outside

the ken of others.”

18.In the present case, the prosecution brought on record

the evidences that accused no.1 to 3 had abducted the

deceased. Therefore, it is accused nos.1 to 3 alone knew

what happened to him as the deceased was found murdered

within a short time after abduction. The accused nos.1 to 3

have failed to give any explanation and the Court rightly

draw presumption that the accused have murdered the deceased

Mani alias Parai Mani.

19.The prosecution relied upon the statement of accused

persons leading to discovery of facts as envisaged u/s 27 of

Indian Evidence Act. Accused Nos. 1, 2 and 5 were arrested

on 28.1.2004 at different times. Confession statement of

accused no.1 led to recovery of Voter ID Card of Mani (MO9)

and other articles i.e. MOs.4 and 5. Confession statement

recorded from accused no.2-Selvaraj alias Selvan] led to

recovery of Pocket Diary (MO2), Money purse (MO3) with photo

of deceased and other articles-MOs.10 to 12. Confession

statement of accused no.5 Driver Lingasamy led to seizure of

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Taxi MO1-Maruthi Omni Van (TN-23 E 5951). Accused no.3-

Nirmal and accused no.4-Sureshkumar alias Suresh alias

Pambatti were surrendered before the Court and on

application, PW41-Investigating Officer took them for police

custody. Confession statement recorded from accused no.3 led

to recovery of Torch light(MO6) which was handed over to the

deceased by PW2 at the time when he left the house. PW2 also

identified MO6 as the torch light handed over by her at the

time when the deceased left the house. Recovery of various

articles of the deceased from accused nos.1 to 3 is a strong

incriminating circumstance connecting the appellants with

the crime.

20.Section 27 of the Evidence Act reads as under:

“27. How much of information received from

accused may be proved. —Provided that, when any

fact is deposed to as discovered in consequence

of information received from a person accused of

any offence, in the custody of a police officer,

so much of such information, whether it amounts

to a confession or not, as relates distinctly to

the fact thereby discovered, may be proved.”

21.In Anil alias Raju Namdev Patil v. Administration of

Daman & Diu, Daman and another, (2006) 13 SCC 36, this Court

held:

“23.The information disclosed by the evidences

leading to the discovery of a fact which is based

on mental state of affair of the accused is,

thus, admissible in evidence.”

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22.This Court in State of Himachal Pradesh v. Jeet Singh,

(1999) 4 SCC 370 opined that when an object is discovered

from an isolated place pointed out by the accused, the same

would be admissible in evidence.

23.We have noticed the confessional statement of the

appellants, on the basis of which the discovery of material

evidence took place.

24.From the evidence on record, we find that the

Prosecution was successful in bringing on record the

circumstantial evidences i.e. existence of motive; the

circumstances in which the deceased was last seen alive in

the company of appellants-accused nos.1 to 3; death was

homicidal and body was found on the railway track mutilated;

the body of the deceased was identified through DNA test; on

arrest of accused incriminating articles were recovered.

25.Upon analysis of evidence, we are of the view that

prosecution has succeeded in proving the facts that the

accused nos.1 to 3 took away deceased Mani alias Parai Mani.

What happened thereafter to deceased is especially within

the knowledge of the appellants-accused nos.1 to 3. It was

for the appellants-accused nos. 1 to 3 to explain what

happened to Mani alias Parai Mani after they took him away

but they failed to explain the same. Mani alias Parai Mani

was found dead immediately thereafter. Therefore, it is

clear that the accused nos.1 to 3 who abducted deceased Mani

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alias Parai Mani intentionally withhold the information from

the Court and, therefore, there is every justification for

drawing inference that appellants-accused nos.1 to 3

murdered Mani alias Parai Mani. Stand of the appellants is a

bare denial of prosecution case. In the absence of any

explanation, the inevitable inference is that appellants are

responsible for the death of deceased Mani alias Parai Mani.

Thus, the guilt of the appellants-accused nos. 1 to 3 has

been proved beyond all reasonable doubt. We find no merit in

this appeal and the same is accordingly dismissed.

………………………………………………J.

(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.

(DIPAK MISRA)

NEW DELHI,

JULY 01, 2014

Page 18 ITEM NO.1C COURT NO.6 SECTION IIA

(For Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 593/2010

PARAMSIVAM & ORS. Appellant(s)

VERSUS

STATE TR.INSP.OF POLICE Respondent(s)

Date : 01/07/2014 This appeal was called on for pronouncement of

Judgment today.

For Appellant(s) Mr. Vijay Kumar ,Adv.

For Respondent(s) Mr. M. Yogesh Kanna ,Adv.

Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced

the reportable judgment of the Bench comprising His Lordship and

Hon'ble Mr. Justice Dipak Misra.

The appeal is allowed in terms of the signed reportable

judgment.

Page 19 (MEENAKSHI KOHLI) (USHA SHARMA)

COURT MASTER COURT MASTER

[Signed reportable judgment is placed on the file]