Pattu Rajan vs The State of Tamil Nadu

First Information Report: Plea of the accused-appellant that there cannot be a second FIR relating to the same incident and that the incident of murder reported in FIR was merely a continuation of the earlier offence of abduction which had triggered proceedings pursuant to the FIR – Held: Plea is not sustainable – There is no doubt that the case arising out of a second FIR, if relates to a separate transaction, cannot be investigated along with a previous FIR under the clause ‘further investigation’ as contemplated under ss.8 to s.173 of the Cr.P.C. – In the instant case, the time and place of occurrence of the two incidents were different – Even the number of accused involved in the incidents was different – There was no continuity of action from the sequence of events either – The first offence was committed with the intention to abduct the deceased and PW1, the purpose for which was merely to threaten and pressurize them – In contrast, the intention behind the second offence was to murder the deceased with a view to permanently get rid of him – Therefore, unity of purpose and design between the two offences was also absent – Thus, the incident of murder was entirely separate and distinct from the earlier incident of abduction – Further investigation, as envisaged under ss.8 of s.173 of the Cr.P.C, connotes investigation of the case in continuation of an earlier investigation with respect to which the chargesheet was already filed – In case a fresh offence is committed during the course of the earlier investigation, which is distinct from the offence being investigated, such fresh offence cannot be investigated as part of the pending case, and should instead be investigated afresh – The separate first information lodged in this case is, therefore, just, legal and proper – Penal Code, 1860 – s.302 - Code of Criminal Procedure, 1973 – s.173(8) – Investigation.

Evidence: Circumstantial evidence – Reliability of – Held: Human agency may be faulty in expressing the picturisation of the actual incident, but circumstances cannot fail or be ignored – The circumstances relied upon by the prosecution should be of a conclusive nature and they should be such as to exclude every other hypothesis except the one to be proved by the prosecution regarding the guilt of the accused – There must be a chain of evidence proving the circumstances so complete so as to not leave any reasonable ground for a conclusion of innocence of the accused – Circumstantial evidence – Penal Code, 1860 – s.302.

Evidence Act, 1872: s.45 – Expert evidence – DNA Evidence – Evidentiary value of – Held: DNA evidence is in the nature of opinion evidence as envisaged in s.45 of the Evidence Act – Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own – In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques – Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion – However, the opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts – DNA Evidence.

Evidence Act, 1872: s.45 – Superimposition test conducted for identifying the deceased – Evidentiary value of – Held: The evidence on superimposition is also based on experts’ opinion – A superimposition test cannot be taken as a conclusive one for the identification of a dead body, because by itself it may not conclusively establish identification – In the instant case, High Court accepted the expert testimony on this aspect since the superimposition test was merely one piece of evidence relied upon by the prosecution to corroborate the evidence of PWs 1 and 2 in order to strengthen its case – Moreover, it was evident from the testimony of PW34, who conducted the superimposition test, that the test was conducted by using three different methods, i.e. video superimposition, visual observation, and dental trait superimposition – Therefore, the scientific evidence of PW34 was rightly believed by the Trial Court as well as by the High Court, and strengthened the evidence of PWs 1 and 2 regarding the identification of the body – Though a DNA test would have helped the Courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, the contention that the non-conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper is rejected – This is all the more true since no material was forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to conduct comparative DNA tests – Superimposition test.

Dismissing the appeals, the Court

HELD: 1. The argument for the appellants that the incident of murder in the case in hand is merely a continuation of an earlier offence relating to the abduction of PW1 and the deceased which occurred has no force. The crime of abduction commenced when the victims (PW1 and the deceased) were forced into captivity and was completed on the same day immediately after the victims were released. In respect of the said incident, the first information was lodged by PW1. During the investigation of the said case, the accused brought the deceased, PW1 and her family members to Tirunelveli. The crime in question was committed after two days, whereby PW1 and her husband were taken away in a car, and on the direction of Accused No.1, Accused Nos. 2 to 4, 6 and

7 forcibly took away the deceased by separating him from his wife, committed his murder and threw away his body in the forest area. The time and place of occurrence of the two incidents were different. It is evident that unity of purpose and design between the two offences was also absent. [Para 15] [550-F; 551-B-D, F]

1.2 The facts and circumstances of the matter clearly indicated that the offence of abduction committed by the appellants and the offence of murder were two different and distinct offences, and therefore, there is no question of further investigation to be made in the crime of abduction by the investigating agency relating to the offence of murder which was committed during the subsistence of the investigation relating to abduction. Further investigation, as envisaged under Sub-section 8 of Section 173 of the Cr.P.C, connotes investigation of the case in continuation of an earlier investigation with respect to which the chargesheet has already been filed. In case a fresh offence is committed during the course of the earlier investigation, which is distinct from the offence being investigated, such fresh offence cannot be investigated as part of the pending case, and should instead be investigated afresh. The separate first information lodged in this case is just, legal and proper. [Paras 18, 20] [554-A-C; 556-A]

Awadesh Kumar Jha v. State of Bihar (2016) 3 SCC 8 ; State of A.P. v. Cheemalapati Ganeswara Rao [1964] 3 SCR 297 ; T.T. Antony v. State of Kerala (2001) 6 SCC 181: [2001] 3 SCR 942; Rameshchandra Nandlal

Parikh v. State of Gujarat (2006) 1 SCC 732; Nirmal Singh Kahlon v. State of Punjab (2009) 1 SCC 441: [2008] 14 SCR 1049; Babubhai v. State of Gujarat (2010) 12 SCC 254 : [2010] 10 SCR 651 – relied on.

2.1 There was no direct evidence in the instant matter and the whole case rests on circumstantial evidence. In matters resting on circumstantial evidence, the Judge while deciding should always tread cautiously so as to not allow conjectures or suspicion, however strong, to take the place of proof. If the alleged circumstances are conclusively proved before the Court by leading cogent and reliable evidence, the Court need not look any further before affirming the guilt of the accused. PW-1 deposed in detail as to how Accused No.1 wanted to marry her and how he often tried to lure her through undue favours. She meticulously deposed about the role of each of the appellants in the crime. In the cross-examination, she also explained the delay in lodging the first information by deposing that she could not file the complaint before 20.11.2001 though her husband was abducted on 26.10.2001 because she was under the constant surveillance of Accused No. 1 and his henchmen and could only free herself after 06.11.2011. Also, in the first incident (being the incident of abduction), her husband was spared by Accused No. 1, and on a subsequent occasion also, he was spared by Accused No. 2. Thus, she was hopeful that her husband would escape on this occasion as well. Though PW1 was cross-examined at length, the defence could not discredit her evidence on material particulars. Minor variations pointed out by the defence, as such neither affected the prosecution version nor PW1’s evidence in its entirety. [Paras 22, 24] [556-D-F; 558-G-H; 559-A-D]

2.2 PW1 deposed about the aspect of motive, the last seen circumstance as well as the identification of the personal belongings of the deceased and his dead body. She was the witness who saw the deceased in the company of the accused for the last time before his death. The evidence of PW1 was fully supported by the evidence of PW2, the mother of PW1. [Paras 25, 26]

3. The testimony of PW7, the Village Administrative Officer working in the office of the Tehsildar, is also relevant and significant. In his presence, Accused No.2 confessed to the Inspector of Police, that if taken to Kodaikanal, he would show the spot at Tiger-Chola where the dead body of PW’s husband was thrown. Accordingly, Accused No.2 was taken to the said place and he pointed out the place of disposal of the body, and also identified the dead body of the deceased from the photographs available with the police. Nothing material worth considering in favour of the defence was extracted from the crossexamination of PW7. [Para 27] [560-E-G; 561-A]

4. There cannot be any dispute that a confession made by the accused in police custody is an inadmissible confession. The confession herein cannot even be called an extra-judicial confession because of the presence of the police. If a confession is made by the accused before the police and a portion of the confession leads to the recovery of any incriminating material, such portion alone is admissible under Section 27 of the Indian Evidence Act. Since only such portion of the confession relating to the recovery of certain material objects was admitted in evidence and relied upon, such reliance was in accordance with law. [Para 27] [561-B-C]

5. During the course of investigation, the records of the various hotels in which the accused had stayed along with the deceased, PW1 and her family were collected. PW36, the handwriting expert compared the handwritings in the hotel records with the handwritings of the accused and opined the former to belong to Accused Nos. 4, 5, 6 and 8. This supported the conclusion that the accused in fact took PW1 and her family members to various places as deposed by them. [Para 30] [562-H; 563-A-B]

6. DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. However, the opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. It cannot be said that absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party. [Paras 3133] [563-C-D; 564-A-B, E] Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors. (2009) 9 SCC 709 : [2009] 14 SCR 424; The State (Delhi

Adminstration) v. Pali Ram (1979) 2 SCC 158 : [1979]

1 SCR 931 ; State of H.P. v. Jai Lal & Ors. (1999) 7 SCC 280 : [1999] 2 Suppl. SCR 318 ; Baso Prasad & Ors. v. State of Bihar (2006) 13 SCC 65 : [2006] 9 Suppl. SCR 431 ; Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors. (2010) 2 SCC (Cri) 299

– relied on.

7. The superimposition test was conducted in the instant case for identifying the deceased. There cannot be any dispute that evidence on superimposition is also based on experts’ opinion. The High Court was justified in observing that a superimposition test cannot be taken as a conclusive one for the identification of a dead body, because by itself it may not conclusively establish identification. However, the High Court rightly accepted the expert testimony on this aspect since in the instant case, the superimposition test was merely one piece of evidence relied upon by the prosecution to corroborate the evidence of PWs 1 and 2 in order to strengthen its case. Moreover, it is evident from the testimony of PW34, who conducted the superimposition test, that the test was conducted by using three different methods, i.e. video superimposition, visual observation, and dental trait superimposition, and in spite of challenges to the reliability of such evidence, the Courts, after carefully assessing the methodology adopted, accepted the finding reached by PW34 regarding the identification of the body, and there was no error in such conclusion reached by the Courts. Therefore, the scientific evidence of PW34 was rightly believed by the Trial Court as well as by the High Court, and strengthened the evidence of PWs 1 and 2 regarding the identification of the body. [Paras 34, 36-38] [564-F; 565-E-G]

Shankar & Ors. v. State of Tamil Nadu (1994) 4 SCC 478; Swamy Shraddananda v. State of Karnataka

(2007) 12 SCC 288 : [2007] 7 SCR 616; Inspector of Police, Tamil Nadu v. John David (2011) 5 SCC 509: [2011] 7 SCR 354; Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292 : [2014] 3 SCR 406 – relied on

Modi, A Textbook of Medical Jurisprudence and

Toxicology, 26th Edition, 2018 – referred to

8.1 Based on the confession of Accused No.6, recoveries of a wallet containing a photograph of PW1, gold chain etc. were effected from his house, which also stood positively identified by PW1 and her family as belonging to the deceased. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which was the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. At this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidence Act. The recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of her husband by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stood proved beyond all reasonable doubt. [Paras 39, 40] [566-C-G]

Rohtash Kumar v.State of Haryana (2013) 14

SCC 434 : [2013] 3 SCR 884 ; Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 : [2006] 7 Suppl. SCR 156 – relied on.

8.2 The bill book and cash book of a petrol pump at Palani, where the Tata Sumo was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date. The overwhelming, consistent and reliable testimonies of PWs 1 and 2, along with the corroborative evidence, conclusively proved the prosecution case. There was no embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses was homogeneous, consistent and reliable, and corroborated the testimony of PWs

1 and 2, which led to conclude that the chain of circumstances was complete and points solely at the guilt of the accused. [Paras 42, 43] [567-G-H; 568-A-C]

Inder Singh v. State (Delhi Administration) (1978) 4 SCC

161 : [1978] 3 SCR 393; State of H.P. v. Lekh Raj & Anr. (2000) 1 SCC 247 : [1999] 4 Suppl. SCR 286 ; Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors.(2001) 6 SCC 145; Chaman & Anr. v. State of Uttarakhand (2016) 12 SCC 76 – relied on.