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Judgment
A.S. Venkatachalamoorthy, J.—The learned II Additional Sessions Judge, Erode, tried the appellants in Sessions Case No. 223 of 1999
for various charges including the one u/s 302 read with Sec. 34 IPC. for causing the death of one Balasubramaniam @ Balu on the night of
28.7.1991 and found them guilty and sentenced them to undergo life imprisonment etc.
Questioning the correctness of the said Judgment, the first accused Ranganathan has preferred Cr. Appeal No. 596 of 2000 while the 2nd
accused Rajan has preferred Cr. Appeal No. 592 of 2000.
Hence, both the appeals can be disposed of by Common Judgment.
PW-1 Manickam has two sons, the first one being the deceased Balasubramaniam @ Balu and second one is by name Mohan. PW-1 resides
at Salem, while the deceased was residing at Erode with his wife PW-2, who was in advance stage of pregnancy at the relevant time. One
Sengottayan is the owner of the Ambassador Car bearing Registration No. TMR-1455 and he is operating it as a taxi. The said vehicle was driven
by deceased Balasubramaniam and he used to park the vehicle in the taxi stand near Pannerselvam Park, Erode. The other taxi drivers, who used
to park their vehicles in Pannerselvam Park, would include one Murugan, PW-3 Shanmugam and PW-4 Ponnusamy.
According to PW-2 the wife of the deceased, the latter took his lunch on 28.7.1991 and left for the taxi stand at 5 P.M. saying that he would
come back shortly, but however, the deceased did not turn up. The worried PW-2 requested one Murugesan, a taxi driver, who resides near her
house, to inform about this to her father-in-law at Salem.
PW-1, the father-in-law at Salem was informed by Murugesan as requested by PW-2, the wife of the deceased. Thereafter, PW-1 came to Erode
and met PW-2, who informed him that the deceased had not come back for the past three days. PW-1 went to the taxi stand and enquired the taxi
drivers, who informed him that on the previous Sunday at about 7.30 P.M., A-1 and others came and took the deceased in his Car forcibly. PW-
1 then gave a complaint before the Erode Town Police Station under Ex.P-1 to the effect that A.1 and 5 others had forcibly taken the deceased
with them and that he suspects some foul play and requested for further action. The said complaint was given on 1.8.1991. PW-19, the Sub
Inspector of Police (East Crimes), Erode Town Police Station, registered Cr. No. 712/1991 under Sections 364 and 379 IPC. at about 10.30
P.M. and sent express reports.
PW-20 is the Inspector of Police in Erode Town Police Station, who took over the investigation at about 11.30 P.M. on 1.8.1991 in Cr. No.
712/1991. At about 11.45 P.M., he proceeded to the taxi stand at Panneerselvam Park and examined PWs-3 & 4 and others and recorded their
statements. At about 4.30 A.M. on 2.8.1991, the Inspector arrested A-1 Ranganathan at Erode Bus-stand in the presence of Angamuthu (PW-6)
and Balasubramaniam. A-1 then came forward to give voluntary confession statement. He told the Inspector that if taken, he would show the place
where the body of the deceased is thrown and to show MO-7 the car of the deceased. Accordingly, A-1 took the police party and the witnesses
to a place south of Bhavani Sagar Dam and at Zero Point, he identified the body of the deceased. An observation mahazar Ex.P-6 was prepared
so also a sketch Ex.P-33 in the presence of witnesses. The Inspector then sought the assistance of a photographer and photographs were taken in
five different angles. Inquest over the body of the deceased was held between 9 A.M. and 12 Noon. Ex.P-34 is the inquest report. As the body
was in a decomposed state, the Inspector sent a requisition to the Doctor at the Government Hospital, Sathyamangalam, to conduct post mortem
there itself. The crime was then altered as one u/s 302 IPC etc. and Ex.P-35 Express FIR was prepared. The Inspector took steps to send the
Express F.I.R. to the Court of Judicial Magistrate No. 3, Erode and copies to his superioRs. From the body of the deceased MO-8 partly burnt
shirt; baniyan MO-3; jatti MO-5; pant MO-2; waist-cord MO-1 and a ring MO-6 were seized in the presence of witnesses. A-1 then took the
police party and witnesses to the garden of one Ponnusami at Achipatti in Pollachi Taluk and showed MO-7 Car. But however, the Inspector
found that the vehicle was carrying Registration No. TMR-7486. The car was seized under a mahazar Ex.P-4. The Inspector then sent a
requisition Ex.P-11 to the Finger Print Expert to come and see the car to find out any finger print impressions are available. The material objects
seized from the body of the deceased were shown to PW-2, who identified the same that of her husband''s.
PW-13 is the Doctor attached to the Government Hospital, Sathyamangalam. After receiving the requisition Ex.P-8 from the Inspector of Police,
he proceeded to the place where the body was found and conducted post mortem. Since the body of the deceased was in a decomposed state,
the Doctor could not give the identification marks of the deceased. Ex.P-9 is the post mortem certificate issued by him. In the said certificate, the
Doctor had noted as under:-
Appearances found at the post-mortem:-
Clothes were absent. The body lies on the back. Cold in temperature. Right upper limb: Only remnants of muscles and the covering skin were
present over the posterior surface of the right upper limb, exposing the humerus, radius and ulna. The hand is absent. Left upper limb: The hand is
missing. The left upper limb is covered with muscles and skin partially on the posterior surface. Head - Scalp is absent. Only skull and lower jaw
are present. Teeth 8/ (Torned). Lower jaw: Right - The central and lateral incisors are missing. Left side (Torned) Central incisor is missing. Eyes,
ears, nose and lips are absent. (Torned) The posterior 1/3 of the tongue is present. Thorax: The (Torned) half portion is present in each of the
upper eight (Torned) ribs; The posterior 3/4 portion is present in each of the (Torned) of the ribs. The last two pairs are present (Torned). The
heart and both lungs and all the viscera of the (Torned) are absent. The generative organs are absent. Abdomen: No viscera is seen. The anterior
abdominal wall is absent. Back:- Skin and muscles of the left half are present. Vertebral column. All bones are present. Brain - liquified; weight
100 gMs. The dura-matter is present. Right lower limb:- femur, tibia and fibula and calcaneum are present. All other structures are absent. Left
lower limb: - femur, tibia fibula, calcaneum and navicular bones are present. All other structures are absent. The whole pelvis is present. The hyoid
bone was found fractured on the left half. the larynx and trachea are absent. The Post-mortem concluded at 5 p.m. on 2.8.1991.
The following bones are preserved for bone analysis
I. 1) Left femur, left tibia and left fibula.
2) Right Hummers, Right radius and Right Ulna.
3) Skull and lower jaw with teeth
4) Pelvis whole.
II. 1) Hyoid bone
2) Preservative used formalin.
The Doctor had opined therein that the deceased would have died about 4 to 5 days prior to autopsy and reserved his opinion pending report of
bone analysis.
At about 11 P.M., the Inspector arrested A-2 and others near Muthukumar Theater and each of them gave separate confession statement. The
2nd accused was in possession of MO-21 belonging to the deceased and the same was seized under Ex.P-38 mahazar. On 7.8.1991, the
Inspector gave a requisition to the Magistrate to conduct identification parade. On 18.9.1991, the Inspector sent the skull and a photograph
(Ex.P-11) of the deceased to PW-18 for the purpose of Superimposition Test.
PW-17 is Judicial Magistrate No. 2, Erode, who conducted the identification parade. Ex.P. 30 is the proceedings note of the identification parade.
In the said parade, PW-3 and PW-4 identified the accused.
The Inspector of Police then proceeded with the investigation and examined various witnesses so also PW-8 viz., owner of the car bearing
Registration No. TMR-1455. Exs.P. 22 and P-23 are the chemical analysis reports while Ex.P. 24 is the report of the Serologist. After completing
the investigation, the Inspector filed his final report.
The prosecution, in its endeavor to bring home the guilt of the accused, examined PWs-1 to 23, marked Exs.P. 1 to P-42 and produced MOs-
1 to 24.
As the other accused are absconding, the case was split up and trial went on against the above appellants.
When questioned u/s 313 Cr. P.C., the accused denied having any complicity in the commission of the offence and pleaded complete
innocence.
This is a case of circumstantial evidence. It is settled law that in a case based on circumstantial evidence, before the Court can record
conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable
evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully
as to unerringly point only towards the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the
guilt of the accused.
It is on the basis of these principles that we shall examine the circumstantial evidence relied on by the prosecution in this case.
The relevant circumstances in respect of A-1 are:-
(I) PWs-3 and 4 saw A-1 and others came to the taxi stand and engaged the taxi of the deceased at 7 P.M. on 28.7.1991.
(II) A-1, on arrest, made a confession before the Inspector of Police and he took them to the place where he had thrown the body of the
deceased at Bhavani Sagar Dam and also produced MO-7 Car of the deceased.
(III) PW-1 identified the deceased by seeing the arrangement of teeth. PW-1 also identified the waist cord MO-1 and also the clothes viz., shirt,
Baniyan and drawer so also MO-6 covering ring.
(IV) Finger print of A-1 found in the car MO-7 and one of which tallied with his right middle finger.
(V) The evidence of PW-18 viz., the Scientific Officer in Physics Division of the Forensic Sciences Department, is to the effect that the
superimposition test revealed that the skull ie., item 7 (number assigned by the Forensic Sciences Department) should be that of the deceased.
The circumstances in respect of A-2 are:-
(I) PWs-3 and 4 saw A-2 also along with A-1 when the taxi of the deceased was taken.
(II) The evidence of PWs-3 and 4 to the recovery of MO-21 ring from the person of the accused.
Let us proceed to consider as to whether the prosecution has succeeded in establishing these circumstances.
The deceased was residing at Erode in the area known as Kaikolan Thottam. He was carrying on the profession of taxi-driver and he used to
park the taxi in the taxi-stand near Panneerselvam Park. PWs-3 and 4 are also taxi drivers, who used to park their taxis in the very same taxi-
stand. These two witnesses knew A-1 very well since he is also a driver. Both these witnesses have clearly stated that on a Sunday at about 7
P.M., A-1 and others came and engaged the taxi of the deceased to go to Sathyamangalam. The deceased, A-1 and others left in the taxi. Even
though PW-4 has been treated as hostile, this part of the prosecution case has been clearly spoken to by him. In fact, he has made it clear that
since A-1 was also a taxi driver, who used to park his car in the very same taxi-stand, he knows him very well. As far as PW-3 is concerned, in
the identification parade, he identified A-1. In fact, there was no necessity at all to conduct parade in view of the fact that both PWs-3 and 4 have
clearly deposed that they knew A-1, since he was also a taxi driver, very well. We went through the cross examination and we do not find anything
which would persuade this Court to disbelieve their testimonies.
As the deceased did not come back home, PW-2 the wife of the deceased requested one Murugesan, another taxi driver, who resides near her
house to inform her father-in-law at Salem about this and accordingly, the father-in-law was informed. He came down to Erode, enquired the taxi
drivers including PWs-3 and 4 and gave the complaint Ex.P-1.
From the above, it is amply clear that on Sunday at about 7.30 P.M., the deceased went in his car along with A-1 and others and thereafter, he
did not come back.
PW-20, the Inspector of Police, arrested A-1 at Erode Bus-stand where buses of Coimbatore destination are parked, in the presence of
Angamuthu and Balasubramaniam. When enquired, the accused gave voluntary confession statement. Ex.P-3 is the admissible portion in the said
confession statement. A-1 had stated that he would show the place where they murdered the deceased and burnt him and would also identify the
body. He further offerred to take them to a garden and to identify the car of the deceased.
The accused (A-1) then took the police party and witnesses to a place south of Bhavani Sagar Dam viz., at Zero Point and identified the body of
the deceased in the presence of witnesses. Thereafter, A-1 took the police party and witnesses to Achipatti village near Pollachi and showed the
Car MO-7 and the same was seized under Ex.P-4 mahazar.
PW-6 Angamuthu is a taxi driver, who used to park his car in the taxi-stand near Panneerselvam Park. He speaks about the arrest of A-1 so also
the seizure of MO-7 and also MOs-1 to 6 viz., clothes, waist-cord and ring found on the body of the deceased. We examined his testimony
carefully and we find him to be a natural witness, who has spoken only the truth. In fact, the only suggestion put to this witness is that he is
deposing falsely before Court. We are inclined to accept his testimony as we found him to be trustworthy.
Learned counsel appearing for the appellants contended that even according to the prosecution, the body was found in a open space. Hence, it
cannot be said that the statement of A-1 has led to the discovery of something and that being so, even if the accused had made such statement that
he would show the place where the body was burnt, it would not be admissible in evidence.
Secondly, he contended that the body that was found is not the body of the deceased.
Thirdly, a submission is made that the car seized is a different one and not the one used for the alleged commission of offence. In this context, the
learned counsel would submit that on an application made by PW-8 one Suresh, MO-7 had been returned to him. On the other hand, the
deceased was operating the car owned by one Sengottayan.
True, according to the prosecution, A-1 had stated,
vd;idf; Tl;of; bfhz;L nghdhy; ghYit bfhiy bra;J vhpj;j , lj;ija[k;/ gpzj;ija[k; milahsk; fhl;Lfpnwd;.
According to the prosecution, it was A-1, who took the police party and witnesses to a place south of Bhavani Sagar Dam ie., at Zero Point and
showed the body. Even though Section 27 is not attracted, this part of the statement is admissible in evidence u/s 9 of the Evidence Act, since it is
a fact which establishes the identity of person, whose identity is relevant and also fixes the time at which the fact in issue has happened.
As already mentioned, PW-6 by name Angamuthu was present at the time of arrest of A-1 so also at the time when he showed the body and
also the car MO-7. He has clearly deposed that from the body of the deceased MOs-1 to 6 were seized. MO-1 is a waist-cord; MO-6 is a ring;
MO-4 is a citizen wrist watch and other MOs are clothes. PW-1, the father of the deceased has clearly stated in his chief examination that MOs-1
to 6 belong to the deceased. We saw the material objects and we are of the view that one cannot make out anything from the burnt clothes viz.,
MOs-2, 3 and 5. MO-1 is a waist cord, commonly worn by almost every male member. Then, the other two left items are MO-4 citizen wrist
watch and MO-6 covering ring. MO-4 wrist watch and MO-6 ring with a design would have helped PW-1 to recognise the deceased. Of course,
apart from this, PW-1 has deposed that he could also recognise his son from the arrangement of teeth. But however, PW-1 has not pointed out
any peculiar or special feature and hence, we do not consider it a piece of evidence which would have helped PW-1 to identify the body of the
deceased.
We have another piece of evidence to be considered. As the body was in a decomposed state, the Inspector of Police made a requisition to
the Doctor at the Government Hospital, Sathyamangalam to conduct post mortem at the place where the body was found. Responding to the
request, PW-3 Dr. Rudra Arunagiri conducted post mortem. The Doctor preserved the following bones for analysis:-
I. 1) Left femur, left tibia and left fibula.
2) Right Humerus, Right radius and Right Ulna.
3) Skull and lower jaw with teeth
4) Pelvis whole.
II. 1) Hyoid bone
2) Preservative used formalin.
These bones were sent to the Forensic Sciences Department along with a requisition to conduct necessary superimposition test. A photograph of
the deceased was also sent. PW-18, the Scientific Officer in the Physics Division of the Forensic Sciences Department, gave number for each of
the bones and No. 7 was assigned to the skull. In Ex.P-19, he has opined that the skull viz., Item No. 7 should be that of the person found in the
photograph. In fact, PW-18 was not cross examined except a suggestion that his opinion is only a guess work and the same has been emphatically
denied.
Learned counsel for the appellants contended that the testimony of PW-18 and his report Ex.P-19 should not be taken into consideration for
various reasons. Learned counsel, in elaborating his submission, contended that the superimposed photograph is not a photograph admissible
under any Section of the Indian Evidence Act and for that reason it is not admissible in evidence. In fact, the above objections were considered by
the Supreme Court in Ram Lochan Ahir Vs. State of West Bengal, and it will be more fitting, if we quote the relevant portion from the said
Judgment,
The question at issue in the case is the identity of the skeleton. That identity could be established by its physical or visual examination with
reference to any peculiar features in it which would mark it out as belonging to the person whose bones or skeleton it is stated to be. Similarly the
size of the bones, their angularity or curvature, the prominences or the recessions would be features which on examination and comparison might
serve to establish the ""identity of a thing"" within the meaning of S. 9 What we have in the present case is first a photograph of that skull. That the
skull would be admissible in evidence for establishing the identity of the deceased was not disputed and similarly a photograph of that skull. That a
photograph of the deceased was admissible in evidence to prove his facial features, where these are facts in issue or relevant fact is also beyond
controversy. Now what P.W. 18 with the assistance of P.W. 19 has done is to combine these two.. The outlines of the skull which is seen in the
superimposed photograph show the nasion prominences, the width of the jaw bones and their shape, the general contours of the cheek bones, the
position of the eye cavity and the comparison of these with the contour etc. of the face of the deceased as seen in the photograph serve to prove
that features found in the skull and the features in the bones of the face of the deceased are identical or at least not dissimilar. It appears to us that
such evidence would clearly be within S. 9 of the Evidence Act.
The learned Counsel for the appellant urged that the superimposed photograph was not a photograph of any thing in existence and was for that
reason not admissible in evidence. This arguments proceeds on a fallacy. In the first place, a superimposed photograph is not any trick photograph
seeking to make something appear different from what it is in reality. There is no distortion of truth involved in it or attempted by it. A
superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other. Both the photographs are
of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison. Possibly
some illustrations might make this point clear. For instance, if the photo of the deceased when alive were printed on a transparent medium and that
there were placed above a photograph of the skull - both being of the same size - the visual picture seen of the two together would approximate to
the document objected as inadmissible. In the above, it would be seen both the photographs would be admissible in evidence and no objection
could be taken to their being examined together. Again for instance, if instead of two - dimensional photograph we had first a hollow model of the
head of the deceased say of transparent or semi-transparent material - constructed or made from a photograph, that certainly would be admissible
in evidence provided there was proof that the model was exactly and accurately made. If the model were dismantled into segments and placed
upon the skull with a view to show that the curves and angles, the prominence or depression etc., exactly corresponded there could be no dispute
that it would be a perfect method of establishing identity. If this were granted the superimposed photograph which is merely a substitute for the
experiment with the model which we have just now described would be equally admissible as evidence to establish the identity of a thing. It was
pointed out that this was the first occasion that in India an identity of skeleton was sought to be established by means of superimposed photographs
and that P.W. 18 had done this experiment by reference to what he had read in the books on the subject and that on the ground the evidence
could not be accepted. Any deficiency in scientific accuracy might go to the weight of evidence which in the case on hand was a matter for the jury
to consider but we are now only on a very narrow question as to whether it is excluded from evidence as inadmissible. Our answer is that it was
admissible in evidence.
There is yet another Ruling, again by the Supreme Court, reported in 1994 SCC 1252 (Shankar v. State of Tamil Nadu). It was a case where
super imposition test was conducted. The Court accepted and acted on that report.
Thus, for all the above reasons, we hold that the dead body found at the Zero Point south of Bhavani Sagar Dam is that of the deceased by name
Balasubramaniam @ Balu.
The accused (A-1) took the police party and witnesses including PW-6 to the garden of one Ponnusamy at Achipatti in Pollachi and showed
the car used by him for the commission of offence. PW-6 has spoken to this effect. In fact, earlier, we have referred to his evidence and found that
his testimony infuses confidence. The registration number of the car involved in the commission of the crime is TMR-1455.
Learned counsel appearing for the appellants would contend that the Car that was seized was not TMR-1455 but TMR-7486 and that the
Inspector failed to seize and produce the registration book relating to TMR-1455. Or in other words, learned counsel submitted that there is
nothing in evidence before Court to show that TMR-1455 was changed as TMR-7486 by A-1. He would also contend that the real owner of the
Car is one Sengottayan while the car has been returned to one Suresh ie., PW-8.
Ex.P-4 mahazar clearly shows that the Engine Number in the Car was found erased. In the dicky of the seized car, original number plate was
available ie., TMR-1455. It was PW-8 by name Suresh, who applied for the return of MO-7 and the same was returned. In fact, the father of the
said Suresh is one Sengottayan. It is clear from this that A-1 and others used to refer to only the father''s name as the owner while the registration
stands in the name of his son Suresh. If Sengottayan is not the father of Suresh, certainly he would have objected to the return of the vehicle. That
apart, if really Sengottayan is a different person, then he would have lodged a complaint with police saying that his car TMR-1455 is missing. Of
course, had the Investigating Officer produced the registration book of the vehicle TMR-1455, things would have been much clear. Even
otherwise, from the circumstances and materials available on record, we are satisfied that the car seized MO-7 is TMR-1455 and its owner is one
Suresh, whose father''s name is Sengottayan. So, nothing turns on this in favour of A-1.
The Inspector sought the assistance of the Finger Print Expert to find out any finger print is available.
PW-15, the Finger Print Expert could locate three finger print impressions in the glass of the car. He compared the same with the specimen finger
print impressions given to him and on such comparison, he found one impression which he has described as S-1 tallied with A-1''s right hand
middle finger impression.
Learned counsel for the appellants contended that since the specimen finger prints were not taken after getting permission from the Court, this
piece of evidence has to be eschewed from consideration.
Learned counsel for the State, referred to the decision reported in Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, . and submitted
that the Supreme Court has only pointed out that it is only desirable that specimen finger prints are taken after getting permission of the Court and it
is not mandatory. However, it has to be pointed out that in a subsequent Ruling reported in Paramasivam @ Paraman @ Kottiyan and Another
Vs. State of Tamil Nadu, , the Supreme Court has made it clear that it is mandatory that the finger prints can be taken only after getting permission
of the Court. Hence, this circumstance cannot be taken note of.
Thus, we find that the prosecution has relied on the circumstances viz., the deceased was seen by PWs-3 and 4 in the company of A-1 and
others; it was the first accused who showed the place where the body was burnt and thrown; pursuant to the statement of A-1 the vehicle used for
the commission of offence (MO-7) was seized; the ring and wrist watch, that were seized from the body of the deceased, were identified by PW-1
and the Superimposition Test revealed that the skull found is that of the deceased And established the same. We are of the considered view that
these established circumstances lead to the one and only irresistible conclusion that it was only A-1 along with others caused the death of the
deceased.
Coming to A-2, there are only two circumstances viz.,
(i) the evidence of PWs-3 and 4 that they saw A-2 along with A-1 and others went in the taxi of the deceased ie., the deceased was found in the
company of A-2 and others; and
(ii) recovery of MO-21 ring from A-2 belonging to the deceased.
As far as the first circumstance is concerned, it could be seen that both the witnesses PWs-3 and 4 have, before Court, deposed that they are
not able to identify him (A-2). Hence, nothing turns on the first circumstance.
As far as the recovery of M0-21 ring from A-2 is concerned, it is relevant to point out that the same has not been identified either by the father
PW-1 or PW-2, the wife of the deceased. This circumstance also has not been established. Thus, there is no iota of evidence so far as A-2 is
concerned. Consequently, A-2 must be held to be not guilty.
In the result,
(i) Criminal Appeal No. 596 filed by A-1 is dismissed. The conviction and sentence imposed on A-1 are confirmed.
(ii) Criminal Appeal No. 592/2000 filed by A-2 is allowed. The conviction and sentence imposed on A-2 are hereby set aside and he is acquitted
of all the charges. A-2 (Appellant in C.A. No. 592/2000) shall be set at liberty forthwith unless he is required in connection with any other case.