2018 (4) TMI 1968

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....n Penal Code, 1860 (in short 'the IPC') and sentenced to undergo imprisonment for life with substantive sentences under the Indian Penal Code. 2. Brief facts: (a) A First Information Report (FIR) bearing No. 41 of 2008 at PS Yercaud, District Salem dated 16.02.2008 got registered by Mahimaidoss (PW-8) stating that on 14.02.2008, John Bosco (since deceased), who was employed as the driver in his travel agency, along with one Madhan (since deceased), took a Maruti Van from him but did not return for two days. (b) On the very next date, i.e., on 17.02.2008, one more FIR got registered by one Asokan bearing No. 88 of 2008 stating that when he went to irrigate his fields, he found a white colour sack floating in the well. He immediately informed the same to the local police and when the sack was opened, a male body with hands tied at the back was found. (c) On the basis of FIR dated 16.02.2008, Crime No. 41 of 2008 was registered at Yercaud Police Station and during the pendency of investigation, FIR No. 88 of 2008 got registered and a body was found which was identified as of John Bosco. (d) During investigation, Sivashankar (A-1 therein) ....

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....s not known. 6. Learned Counsel further contended that there are several lacunas in the prosecution version. In support of the same, he contended that the lower courts failed to appreciate that the owner of the phone recovered from Accused No. 1 therein is not PW-8 and some other person and the said person was never examined by the prosecution. Further, on 14.02.2008, at about 10.30 a.m., PW-11 has seen the Accused along with the deceased whereas the dead bodies have been found after a gap of several days and the possibility of intervention of some other person cannot be ignored. 7. Learned Counsel appearing for the Appellants finally contended that the High Court ought to have appreciated the fact that there was no complete chain of circumstantial evidence in the prosecution case and there are various discrepancies inherent in it, hence, the benefit of doubt should be given in favour of the Appellants while setting aside the judgment and order passed by the High Court. 8. Per contra, learned Counsel appearing on the behalf of Respondent-State submitted that the judgment and order passed by the Division Bench of the High Court upholding the decision of the Sessions Court i....

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....wo days he filed a missing complaint on 16.02.2008. PW-8 also tried to contact John Bosco over the mobile phone but it was switched off. Mr. Asaithambi (PW-26), the investigation officer, stated in his deposition that on 25.02.2008, PW-8 handed over the bill of the said mobile phone to him. During investigation and while tracing the IMEI number of the mobile phone, it was revealed that the said phone was being used by Accused No. 1-Sivasankaran. On 01.03.2008, Accused No. 1 was apprehended by PW-26 and he voluntarily gave a confessional statement which was witnessed by PW-13. Based on his confessional statement, PW-26 found the dead body of Madhan as well as the mobile phone of John Bosco and a rope was also recovered with which they alleged to have murdered the deceased. The dead body was identified by his mother and the same was further proved by skull imposition test. He further informed the whereabouts of other Accused persons on the basis of which they were arrested from Yercaud junction. However, he retracted from the given statement in the court. 12. Accused No. 2-Suresh was apprehended by PW-20 at Salem Railway Station based on the information given by Accused No. 1 and ....

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....nly be consistent with the guilt of the Accused but should be inconsistent with his innocence. 15. The prosecution placed reliance before the Court mainly on three circumstances, firstly, the last seen theory, secondly, the recovery of material objects which belonged to both the deceased from the Appellants-Accused and thirdly, the identification of the dead body of Madhan from the river bed as pointed out by the first Accused, however, the Appellant herein has raised certain doubts regarding the same. 16. The pivotal evidence in the given case is the testimony of PW-11 who is believed to have lastly seen the Appellants-Accused with the deceased. Learned Counsel appearing for the Appellants-Accused has contended that all the Accused were unknown to PW-11 but no identification parade was conducted and the said witness has identified the said Accused directly in court after a lapse of about 50 days' and hence his evidence should not be relied upon. 17. It is a settled proposition of law that the identification parade of the Accused before the court of law is not the only main and substantive piece of evidence, but it is only a corroborative piece of evidence. Regarding t....

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..... 19. Learned Counsel for the Appellants-Accused contended that the statements given by the Appellants-Accused are previous statements made before the police and cannot be therefore relied upon by both the Appellant-Accused as well as the prosecution. In this view of the matter, it is pertinent to mention here the following decision of this Court in Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263 wherein it was held as under: 133. We have already referred to the language of Section 161 Code of Criminal Procedure which protects the Accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 Code of Criminal Procedure which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the "theory of confirmation by subsequent facts" i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent....

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.... SCC 399, this Court while discussing the mandate of Section 27 of the Evidence Act held as under: 49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an Accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated Under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "... as relates distinctly to the fact thereby discovered....". The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the Accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Ev....