Supreme Court - Daily Orders
Purushothaman vs The State Rep .By Sub Inspector Of Police on 26 September, 2019
Bench: Navin Sinha, B.R. Gavai
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1136 OF 2010
PURUSHOTHAMAN Appellant(s)
VERSUS
THE STATE REP. BY SUB INSPECTOR OF POLICE Respondent(s)
O R D E R
The sole appellant is stated to have been deceased. Learned counsel for the sole appellant has produced the death certificate of the sole appellant. Let it be kept on the record.
The appeal stands abated.
…....................J. (NAVIN SINHA) .……………...............J. (B.R. GAVAI) NEW DELHI SEPTEMBER 26, 2019 Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2019.09.30 17:17:47 IST Reason: 2 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.532 OF 2017 SABU @ SABEEK APPELLANT(S) VERSUS STATE REP. BY SUB INSPECTOR OF POLICE RESPONDENT(S) O R D E R The sole surviving appellant stands convicted under Section 302 IPC and sentenced to life imprisonment. He has further been convicted under Section 120B,364,201,394 and 397 to separate terms of rigourous imprisonment. The sentences have been directed to run concurrently.
The prosecution case rests entirely on circumstantial evidence alone based on the last seen theory coupled with identification in test identification parade and recovery. There is no eye-witness to the occurrence.
Mr. Vipin Kumar, learned counsel appearing for the appellant submitted that the prosecution had failed to establish the entire chain of circumstances essential for conviction in a case of circumstantial evidence. It could not be said with certainty that the appellant alone was the assailant of the deceased. It has not been conclusively established that the appellant was last seen with the deceased. Accused No.3 has not been identified by any of the same four prosecution witnesses in the test 3 identification parade. The identification of the appellant by the very same witnesses as part of the same occurrence is therefore susceptible to doubts. The appellant is therefore entitled to acquittal by benefit of doubt. The person who brokered the car deal, alleged to have been recovered on the confession of the appellant has not been examined. The recovery of the vehicle on the alleged confession of the appellant cannot be said to have been established on basis of the statement of the purchaser, PW-24 alone. The appellant had hired the vehicle driven by the deceased as a taxi. The possibility that the appellant after completing his journey had parted ways with the hired vehicle cannot be ruled out. The prosecution has failed to establish the presence of the appellant as last seen with the deceased in the vehicle so as to lead to the only irresistible conclusion of the appellant alone being the assailant of the deceased.
Mr. Jayanth Muth Raj, learned senior counsel appearing on behalf of the respondent state, submitted that all the links in the chain of circumstances were complete pointing to the guilt of the appellant. The appellant was last seen leaving the hotel with the deceased in the hired vehicle in the evening on 24.11.1999. The dead body of the driver was found early on the next morning. The appellant has been identified in the test identification parade by four prosecution 4 witnesses. The hired vehicle driven by the deceased has been recovered on basis of the disclosure statement made by the appellant under Section 27 of the Indian Evidence Act, 1872 (hereinafter called “the Act”). The discrepancy with regard to the engine and chassis number in the recovery memo of the recovered vehicle, with that in the registration book, stands fully explained by the corrections made in the registration book by the authorities and properly authenticated. The last seen theory therefore stands conclusively established against the appellant.
We have considered the submissions on behalf of the parties and examined the evidence on record also.
The last seen theory in criminal jurisprudence is based on a presumptive theory. If the passage of time when the accused and the deceased were last seen together and the recovery of the dead body is in very close proximity, the law raises a presumption that in all probability the accused was the assailant of the deceased. The onus then shifts to the accused under Section 106 of the Act to demonstrate the special circumstances to his knowledge contrary to the presumptive theory to explain how the death took place.
In a case of circumstantial evidence, the prosecution must prove that the events in the links of chain of circumstances are complete pointing inescapably and unflinchingly towards the guilt of the accused. If there 5 are any missing links in the chain of circumstances, and the possibility cannot be ruled out that any other person may have been the assailant or that the events may have taken place in any other manner, including the possibility of the deceased having parted ways with the accused, the benefit of doubt will have to be given to the accused. It is only in cases where the circumstantial evidence leads to the only possible hypothesis of the accused being guilty with no circumstances suggesting his innocence, that conviction can safely be based on the same.
In the present case, it stands conclusively established from the evidence of the receptionist (PW-5) and the attendant (PW-6) of the hotel in question where the appellant had stayed that he had hired the vehicle in question driven by the deceased and had left the hotel in the same vehicle. The appellant had checked into the hotel on 23.11.1999 and departed on 24.11.1999. PW-5, therefore, had the benefit of seeing the appellant in the hotel for nearly 48 hours. The attendant (PW-6) is stated to have gone out for breakfast with the appellant and then to see a movie. The identification by PW-6, therefore, cannot be doubted by any stretch of imagination. Likewise PW-7 and PW-8, the other taxi drivers who had come to the hotel room of the appellant to negotiate hiring of their vehicles, also had sufficient opportunity to notice the features of the 6 appellant for identification. Our attention has not been drawn to any infirmity in the test identification so as to vitiate the same. The fact that another accused may not have been held to have been identified in the test identification parade because his photograph had been shown to the witnesses earlier cannot vitiate the identification of the appellant. We therefore find no reason to doubt or suspect the identification of the appellant in the test identification parade by the four prosecution witnesses.
The appellant left the hotel with the deceased in the hired vehicle on 24.11.1999 in the evening at about 6:00 p.m. for Palani at a distance of approximately 170 kilometers. The dead was discovered on the same route at an estimated travel distance of 130 kilometers in the morning of 25.11.1999 with the hands and legs of the deceased tied with a jute rope. The post mortem was held on 25.11.1999 at about noon opining that death had taken place approximately 48 hours ago. The appellant was arrested on 21.04.2000. He made a disclosure statement under Section 27 of the Indian Evidence Act, 1872 on 22.04.2004. The vehicle in question was recovered on 22.04.2000 from the motor garage of PW-24 who deposed having purchased it from the appellant through a broker named Balu. Once PW-24 has confirmed purchase of the vehicle from the appellant, having paid part of the purchase price and the rest was to be paid after transfer 7 of registration, the failure to examine the broker is inconsequential. PW1, the owner of the vehicle identified the recovered taxi as belonging to him.
The engine and the chassis number of the recovered vehicle having been recorded incorrectly in the recovery memo is inconsequential. Once it is found that the engine and chassis number embossed on the vehicle was in consonance with that contained in the registration book duly corrected under authentication, nothing is left to doubt that the vehicle recovered on the confession of the appellant was the very same vehicle hired by the appellant and being driven by the deceased.
At this stage, we may only notice that the registration plate found on the vehicle at the time of its recovery from the garage was replaced by a fictitious registration number patently to conceal the stolen nature of the vehicle.
We therefore find no reason to interfere with the order of conviction.
The appellant is stated to be on bail. His bail bonds are cancelled and he is directed to surrender forthwith to serve out the remaining period of his sentence.
It has been submitted that the appellant has completed more than 15 years of custody. It shall be open for him after surrender, to apply for remission and which shall be considered on its own merits in accordance 8 with law without being prejudiced by the present order. The appeal is dismissed.
................................J. [Navin Sinha] ................................J. [B.R. Gavai] New Delhi;
September 26, 2019
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ITEM NO.103 COURT NO.12 SECTION II-C
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). 1136/2010
PURUSHOTHAMAN Appellant(s)
VERSUS
THE STATE REP .BY SUB INSPECTOR OF POLICE Respondent(s)
(WITH IA No. 5512/2013 - EXEMPTION FROM FILING O.T., IA No.
5511/2013 - PERMISSION TO FILE ANNEXURES) WITH Crl.A. No. 532/2017 (II-C) Date : 26-09-2019 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE NAVIN SINHA HON'BLE MR. JUSTICE B.R. GAVAI For Appellant(s) Mr. B. Ragunath, Adv.
Mr. P. Arun Kumar, Adv.
Mr. Vijay Kumar, AOR Mr. Vipin Kumar, Adv.
Mr. V.K. Sharma, Adv.
Mr. Miihir, Adv.
Mr. Deepak Goel, AOR Dr. Swati Garg, Adv.
For Respondent(s) Mr. Jayanth Muth Raj, Sr. Adv.
Mr. M. Yogesh Kanna, AOR UPON hearing the counsel the Court made the following O R D E R CRIMINAL APPEAL NO. 1136 OF 2010 The appeal is abated in terms of the signed order. CRIMINAL APPEAL No.532 OF 2017 The appeal is dismissed in terms of the signed order.10
Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER
(Two Signed orders are placed on the file)