S. KALEESWARAN versus STATE BY THE INSPECTOR OF POLICE POLLACHI TOWN EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL NADU

Citation: [2022] 10 S.C.R. 38 · Decided: 03-11-2022 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 10 S.C.R.
S. KALEESWARAN
v.
STATE BY THE INSPECTOR OF POLICE POLLACHI TOWN
EAST POLICE STATION, COIMBATORE DISTRICT, TAMIL
NADU
(Criminal Appeal No. 160 of 2017)
NOVEMBER 03, 2022
[UDAY UMESH LALIT, CJI AND BELA M. TRIVEDI, J.]
Evidence: Circumstantial Evidence – Appreciation of –
Allegation that the appellants along with three others in furtherance
of the conspiracy, committed dacoity of a car, murdered its driver
and buried the dead body in a pit, and also sold the car and shared
the sale proceeds – Conviction of all of them for offences u/ss.
120(B), 147, 364, 302 r/w s.120(B)/149, 201 and 396 IPC and
sentenced accordingly by the courts below – Held: Entire prosecution
case rested on the circumstantial evidence – Extra judicial confession
of one of the accused not duly proved by the prosecution; that last
seen theory on the basis of the evidence of PW6 and PW7 cannot
be applied as their statement was recorded 6 months after the alleged
incident; that in view of the huge time gap, the TIP ought to have
assisted the police to identify the accused, however, no TIP was
held; that failure to explain as to under what circumstances the
victim suffered the death by the accused u/s 313 CrPC; and that the
skeletal remains were found after almost 5 months from the date of
incident and it was identified by the skull-superimposition test which
cannot be regarded as infallible – Thus, failure of the prosecution
to establish through clinching, clear, cogent and consistent evidence,
the chain of events, on the basis of which the guilt of the appellants-
accused could be established – Courts below erred in accepting
the case of prosecution and convicting them for the alleged crime –
Thus, the order of conviction and sentence by the courts below set
aside – Penal Code, 1860 – ss.120(B), 147, 364, 302 r/w s.120(B)/
149, 201 and 396 – Extra judicial confession – Last seen theory.
Allowing the appeals, the Court
HELD: 1.1 Having regard to the totality of evidence
adduced by the prosecution, the circumstances relied upon by
[2022] 10 S.C.R. 38
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the prosecution did not complete the chain to dispel the
hypothesis of innocence of the appellants-accused. The
prosecution having failed to establish through clinching, clear,
cogent and consistent evidence, the chain of events, on the basis
of which the guilt of the appellants-accused could be established,
the courts below committed an error in accepting the case of
prosecution and convicting them for the alleged crime. The
judgements and orders of conviction and sentence passed by the
trial court and confirmed by the High Court are set aside. [Para
15, 16][50-A-C]
1.2 Heavy reliance was placed by the prosecution on the
extra judicial confession made by the accused no.1 through an
Inland letter addressed to P.W.-19, former employer of the
accused no. 1 who had received the same on 29.12.2007. It
appears that the said alleged extra judicial confession of the
accused no. 1 was the trigger point which directed the
Investigating Officer to proceed further with the investigation
after about five months of the alleged incident. Apart from the
fact that the extra judicial confession is a very weak piece of
evidence, the High Court in the impugned judgment refused to
rely upon the same on the ground that neither the handwriting
expert was examined nor any opinion of handwriting expert was
proved by the prosecution. It cannot be gainsaid that when the
extra judicial confession is not duly proved, or does not inspire
confidence or is not corroborated by any other reliable evidence,
the conviction could not be based solely on such weak piece of
evidence. In the instant case, the prosecution having not
examined the handwriting expert for proving the handwritings of
the accused no.1 contained in the Inland letter allegedly
addressed to the PW-19, nor any expert’s opinion having been
obtained, the High Court had rightly discarded the said piece of
evidence with regard to the alleged extra judicial confession made
by the accused no.1. [Para 8][46-G-H; 47-A-C]
1.3 The next circumstance on which the prosecution had
placed heavy reliance was with regard to the theory of “last seen
together”, relying upon the evidence of PW-6 and PW-7. It is
noteworthy that both the witnesses were the taxi drivers and
were operating the taxis from the same taxi stand from where
S. KALEESWARAN v. STATE BY THE INSPECTOR OF POLICE POLLACHI
TOWN EAST POLICE STATION

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