JOHN ANTHONISAMY @ JOHNversusSTATE, REP. BY THE INSPECTOR OF POLICE

                         [2023] 1 S.C.R. 279                            279


                JOHN ANTHONISAMY @ JOHN                                 A
                                 v.
         STATE, REP. BY THE INSPECTOR OF POLICE
                 (Criminal Appeal No. 466 of 2017)
                        JANUARY 19, 2023                                B
          [M. R. SHAH AND C.T RAVIKUMAR, JJ.]
       Penal Code, 1860 – s.302 r/w s.201 – Murder – Circumstantial
evidence – Purported extra-judicial confession – Effect – Five
accused including appellant (A-1) – Prosecution case that in
                                                                        C
pursuance of a conspiracy, the accused persons killed the deceased
and stole/took away his car – PW11 (Sub inspector) closed the case
as undetected – However, case was subsequently re-opened and
investigation initiated by police witness (PW30) on basis of
confessional statement made in letter allegedly written by appellant
to PW22 – Trial Court convicted appellant u/s.302 r/w s.201 IPC –       D
Conviction confirmed by High Court – Challenge to – Held: It was
contended by appellant that he was convicted on confessional
statement in his letter /communication to PW22 and the instant case
being a case of circumstantial evidence, therefore, unless and until
the complete chain of events were proved and established, he could
not have been convicted on confessional statement – However, High       E
Court did not give much weightage so far as the letter /communication
by appellant addressed to PW22 is concerned and therefore, it
cannot be said that appellant was convicted on the confessional
statement made in the letter /communication concerned – Further,
as rightly observed by the High Court, by other circumstances the       F
prosecution established and proved that the deceased was killed
after his car was stolen/taken away by the appellant – First strong
circumstance against the appellant was that the dead body was
exhumed from the place identified by appellant and super imposition
test and DNA examination proved that the dead body was that of
the deceased – Second strong circumstance against the appellant         G
was that the car was recovered from the place and the person
disclosed by the appellant – Another circumstance against the
appellant was that the car engine and gear box sold by him was
recovered from PW-17 on disclosure statement made by appellant –
Conviction of appellant accordingly confirmed.
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                                279
280            SUPREME COURT REPORTS                      [2023] 1 S.C.R.


A           Dismissing the appeal, the Court
            HELD : 1. It is the case on behalf of the appellant that he
      has been convicted on the confessional statement and therefore,
      in case of circumstantial evidence and unless and until the
      complete chain of events were proved and established, he could
      not have been convicted on confessional statement. However,
B     the so-called communication by the appellant addressed to PW-
      22 is as such not believed by the High Court being secondary
      evidence and the same has not been proved. Therefore, as such
      the High Court has not given much weightage so far as the letter/
      communication is concerned. Therefore, it cannot be said that
C     the appellant has been convicted on the confessional statement
      made in the letter /communication. [Para 6.1][286-E-H; 287-A]
            2. During investigation, appellant disclosed the place where
      he had buried the dead body of the deceased. The dead body was
      exhumed from the place identified by appellant. Thereafter, the
      super imposition test was conducted and the DNA examination
D     was conducted on the bones and the skull and it was proved that
      the dead body was that of the deceased. [Para 6.2][287-B-D]
            3. There is a recovery of car driven by the deceased from
      the place and the person disclosed by appellant. The prosecution
      has successfully proved the same by examining PW-16, a
      person to whom the stolen car was sold by appellant.
E     [Para 6.3][287-E-F]
            4. The prosecution has been successful in proving that the
      car engine and gear box which were sold by the appellant was
      recovered from PW-17 on the disclosure statement made by
      appellant. [Para 6.4][287-G-H]
F           5. It is rightly observed by the High Court, by other
      circumstances the prosecution has established and proved that
      the deceased was killed after his car was stolen /taken away by
      the appellant. [Para 6.5][288-D-E]
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 466 of 2017.
G
            From the Judgment and Order dated 22.07.2016 of the High Court
      of Judicature at Madras in Criminal Appeal No.171 of 2015.
            Rakesh K. Sharma, Ms. N. S. Nappinai, V. Balaji, Asaithambi
      Msm, C. Kannan, Nizamuddin, Advs. for the Appellant.
            Dr. Joseph Aristotle S., Shobhit Dwivedi, Ms. Vaidehi Rastogi,
H     Sanjeev Kr. Mahara, Advs. for the Respondent.
   JOHN ANTHONISAMY @ JOHN v. STATE, REP. BY THE                               281
              INSPECTOR OF POLICE

      The Judgment of the Court was delivered by                               A
      M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned final
judgment and order dated 22.07.2016 passed by the High Court of
Judicature at Madras in Criminal Appeal No. 171/2015, by which, the
High Court has dismissed the said appeal preferred by the appellant            B
herein – original accused No. 1 and has confirmed the conviction and
sentence imposed by the learned Trial Court for the offences punishable
under Section 302 read with Section 201 of the IPC, the original accused
No. 1 has preferred the present appeal.
       2. The prosecution case is elaborately stated by the High Court in      C
the impugned judgment in paragraph 2. As per the case of the prosecution,
the deceased was employed as a driver by PW-1 to drive a taxi owned
by him. On 26.06.2006 at about 06.30 a.m., the deceased left his house
after informing his wife. That thereafter, he did not return.
      2.1    That A-1 was also driving a taxi for some time and in such        D
             a way he knew the deceased. It was alleged that all the
             accused persons on 23.05.2006 hatched a conspiracy to
             engage the car driven by the deceased and after taking him
             to a far-off isolated place, kill him and then to steal the car
             and other personal belongings owned by the deceased. As           E
             per the prosecution case, in pursuance of the said conspiracy,
             on 26.05.2006, A-2 to A-5 met A-1 at Pollachi Thermutti
             Bus Stop. Then, A-1 spoke to the deceased and fixed him
             for going to Udumalpet in the taxi driven by the deceased.
             Accordingly, the deceased came in the taxi to Thermutti
             Bus Stop. Then, all the five accused got into the taxi. The       F
             taxi proceeded towards Udumalpet. When it was nearing
             the village known as Ammapatti at an isolated place, the
             accused wanted the deceased to stop the car for a while.
             The deceased stopped the car, as soon as the car came to
             a halt suddenly A-2 came to strangulate the deceased by           G
             neck. A-3 and A-4 tied the hands of the deceased and A-5
             tied the legs of the deceased with ropes. Then, they put the
             deceased in between the front and back seats of the car.
             A-3 to A-5 sat on the back seat of the car and ensured that
             the deceased was not crying. The car was driven by A-1.
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282     SUPREME COURT REPORTS                          [2023] 1 S.C.R.


A           The deceased died. All the five accused put the dead body
            of the deceased into the pit and buried the same. Thereafter,
            all the five accused ran away from the scene of occurrence
            with the car.
      2.2   PW-1 tried to contact the deceased on 26.06.2006 over
B           phone, but his phone was found to be switched off mode
            and PW-1 went to the house of deceased and met PW-3
            and PW-3 informed him that after 26.06.2006 at about 6.30
            am deceased was not seen. After the search the deceased
            was not found and therefore, PW-1 made a complaint to
            the Police on 30.06.2006. PW-11, the then Sub-Inspector
C           of Police registered a case as Crime No. 363/2006 under
            Section 406 of IPC. That thereafter, an FIR was assigned
            to the jurisdictional court. That thereafter, PW-11 started
            investigation. He recorded the statement of the relevant
            witnesses. However, thereafter, PW-11 closed the case on
D           04.02.2007 as undetected. The learned Magistrate accepted
            the closure report. However, thereafter on the basis of a
            letter alleged to have been written by A-1 addressed to
            PW-22 which was received by him on 29.12.2007, by which
            A-1 had alleged to have confessed that he along with other
            accused engaged the taxi in question, took the driver
E           (deceased), killed him and buried the dead body and took
            away the taxi. According to the confessional statement
            recorded in the said letter some parts of the car were taken
            by A-2 to A-5. PW-22 went to the Police Station along
            with the said letter on 30.12.2007 and handed over the letter
F           to PW-30. On the basis of the same, the investigation begun.
            On the basis of the statement of A-1, the place where the
            car was hidden and the dead body was buried came to be
            recovered. Thus, the dead body was recovered at the
            instance of A-1. PW-30 altered the case into one under
            Sections 302 and 396 of IPC. PW-30 arrested A-1. During
G           the investigation, on disclosure statement of A-1, PW-30
            recovered the car without engine and the gear box from
            PW-16 as identified by A-1. On the disclosure statement
            of A-1, the car engine and the gear box were also
            recovered. As observed hereinabove, the dead body was
H           exhumed from the place identified by A-1. Post-mortem of
   JOHN ANTHONISAMY @ JOHN v. STATE, REP. BY THE                               283
         INSPECTOR OF POLICE [M. R. SHAH, J.]

             the deceased was conducted. Several injuries were found.          A
             On completion of the investigation, PW-30 filed the
             chargesheet against all the accused. The case was
             committed to the Sessions Court. The accused pleaded not
             guilty and therefore, all of them came to be tried for the
             offence under Section 302 and other offence of IPC.
                                                                               B
      2.3    The prosecution examined a number of witnesses. PW-16
             can be said to be the star witness from whom the car driven
             by the deceased was seized by the Police on the disclosure
             statement made by A-1. After conclusion of the prosecution
             evidence, further statements of the accused under Section
             313 CrPC were recorded. The accused denied the                    C
             allegations against them. The accused examined DW-1 in
             their defence. On appreciation of evidence the learned Trial
             Court convicted A-1 – appellant herein. The judgment and
             order of conviction and sentence passed by the learned Trial
             Court has been confirmed by the High Court by the                 D
             impugned judgment and order. Hence, the present appeal
             at the instance of the appellant – original accused No. 1.
      3. Ms. N.S. Nappinai, learned counsel has appeared on behalf of
the appellant – accused and Dr. Joseph Aristotle S., learned counsel has
appeared on behalf of the State.                                               E
       4. Learned counsel appearing on behalf of the accused has
vehemently submitted that in the present case the prosecution case is
based solely on the circumstantial evidence. It is submitted that it is
settled law that before convicting an accused each link in the chain
ought to be established such that it leads to the irresistible conclusion of   F
guilt of the accused.
      4.1    It is submitted that in the present case, the prosecution has
             not established that the death of the deceased was homicidal.
             It is submitted that as such the doctor who performed the
             post-mortem was not able to give any definite opinion as to       G
             the cause of the death.
      4.2    It is submitted that in the present case both, learned Trial
             Court as well as the High Court has convicted the accused
             based on the confessional statement/extra judicial
             confession. It is submitted that as per the settled proposition
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284     SUPREME COURT REPORTS                            [2023] 1 S.C.R.


A           of law extra judicial confession is weak evidence. It is
            submitted that recovery pursuant to the confession of
            accused does not establish anything beyond possession of
            stolen goods and it does not implicate accused of committing
            murder.
B     4.3   It is submitted by the learned counsel appearing on behalf
            of the accused that in the present case the recovery of the
            dead body from the place shown by A-1 and that recovery
            of car without engine and gear box from the place identified
            by A-1 and thereafter, recovery of gear box of the car from
            PW-16 cannot be believed as the same was on the basis of
C           the confessional statement/disclosure statement. It is
            submitted that therefore, the circumstances set out by the
            High Court do not support the prosecution case.
      4.4   It is further submitted that so far as the recovery of the
            dead body from the place identified by A-1 is concerned, it
D           is submitted that as such on 31.12.2007, after the arrest, A-
            2 gave a voluntary confessional statement before Police in
            which he disclosed the place of burial. It is submitted that
            the place of burial was disclosed by A-2. It is submitted
            that therefore the place of burial of the dead body was
E           within the prior knowledge of Police.
      4.5   It is further submitted that when PW-22 received the extra
            judicial confession letter on 29.12.2007, which he handed
            over to the Police on 30.12.2007 in that letter place of burial
            of the dead body was mentioned. It is submitted that the
F           place of burial was disclosed on 29.12.2007 itself. It is
            submitted that the Police arrested A-1 at the instance of
            PW-22 on 30.12.2007. It is submitted that as such the alleged
            extra judicial confession letter addressed to PW-22 received
            on 29.12.2007 is not believable at all and as such the Courts
            below has not believed the same. It is submitted that the
G           said letter has been rejected by the High Court. It is
            submitted that therefore, the entire investigation can be said
            to be tainted and cannot be relied upon.
      4.6   It is vehemently submitted that the place of burial was not
            discovered from A-1’s confessional statement but it was
H
   JOHN ANTHONISAMY @ JOHN v. STATE, REP. BY THE                              285
         INSPECTOR OF POLICE [ M. R. SHAH, J.]

             discovered already from A-2’s confession and extra judicial      A
             confession. It is submitted that therefore, the appellant –
             accused could not have been convicted on the basis of
             recovery of the dead body on the alleged disclosure made
             by the A-1.
      4.7    Now so far as the recovery of the car without engine and         B
             gear box recovered from the place identified by A-1 is
             concerned, it is submitted that for the aforesaid the High
             Court has relied upon PW-16 evidence. It is submitted that
             however, the learned Trial Court rejected the PW-16
             evidence and suspected the recovery of M.O.1, M.O.2 and
             M.O.3 i.e., the car, engine, and gear box, respectively. It is   C
             submitted that while accepting PW-16 evidence, the High
             Court has failed to consider and/or discuss the evidence
             recorded by the learned Trial Court.
      4.8    Now so far as the recovery of engine and gear box of the
             car recovered from PW-17 is concerned, it is submitted           D
             that all the witnesses in connection with the recovery of
             stolen objects like PW-17 and PW-23 did not support the
             recovery of car – M.O.1. It is submitted that therefore, the
             alleged recovery of gear box, engine and car speakers stated
             to have been recovered in pursuance of alleged confession        E
             are not acceptable.
      4.9    It is submitted that therefore when the prosecution case
             rests only on the above circumstantial evidence, each of
             which is demonstrably untrustworthy and inadequate to
             sustain the serious charges against the accused, the             F
             prosecution is required to establish the guilt of the accused
             beyond reasonable doubt and/or to substantiate each link to
             sustain the conviction, which the prosecution has failed.
      4.10 It is further submitted by the learned counsel appearing on
           behalf of the accused – appellant that A-1 has already             G
           undergone 15 years in prison for a crime which he did not
           commit and therefore, it is prayed to allow the present
           appeal and acquit the accused.
      5. Learned counsel appearing on behalf of the State while opposing
the present appeal has vehemently submitted that in the present case,
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286             SUPREME COURT REPORTS                             [2023] 1 S.C.R.


A     the dead body was exhumed from the place shown and identified by A-
      1. It is submitted that the place of burial shown by A-1 and the identification
      of the body by him has been duly proved by the prosecution. The evidence
      of anthropology of expert is accepted. It is submitted that even the stolen
      car was also recovered on the basis of disclosure statement made by A-
      1. It is submitted that engine and gear box were found to be in custody
B
      of PW-17 on the basis of disclosure statement made by A-1. It is submitted
      that PW-17 has deposed that some parts were sold by A-1. It is submitted
      that aforesaid crucial circumstances have not at all been explained by
      the accused in his further statement under Section 313 CrPC.
            It is submitted that deposition of DW-1 has been rejected by the
C     Court(s). It is submitted that therefore, no error has been committed by
      the Courts below in convicting the accused for the offence punishable
      under Section 302 and other offence of IPC.
             5.1    Making the above submissions, it is prayed to dismiss the
                    present appeal.
D
            6. We have heard learned counsel appearing on behalf of accused
      as well as the State. We have gone through the findings recorded by the
      learned Trial Court as well as the High Court while holding the appellant
      – accused No. 1 guilty for the offence punishable under Sections 302
      and 201 of IPC.
E
             6.1    It is the case on behalf of the appellant – accused No. 1
                    that he has been convicted on the confessional statement
                    and therefore, in case of circumstantial evidence and unless
                    and until the complete chain of events were proved and
                    established, he could not have been convicted on
F                   confessional statement.
                    However, from the judgment(s) and order(s) passed by the
                    learned Trial Court as well as the High Court, it cannot be
                    said that the appellant has been convicted on the basis of
                    confessional statement. In the present case, there is no
G                   confession by the accused that he committed the offence,
                    which has been relied upon by the Court. It is required to
                    be noted that the so-called communication by the accused
                    No. 1 addressed to PW-22 is as such not believed by the
                    High Court being secondary evidence and the same has
                    not been proved. Therefore, as such the High Court has
H
JOHN ANTHONISAMY @ JOHN v. STATE, REP. BY THE                           287
      INSPECTOR OF POLICE [M. R. SHAH, J.]

        not given much weightage so far as the letter/communication     A
        is concerned. Therefore, it cannot be said that the appellant
        – accused No. 1 has been convicted on the confessional
        statement made in the letter/communication.
  6.2   However, at the same time, it can be seen that the
        communication/letter received by Police on 30.12.2007 was       B
        the cause for reopening of the case, as earlier the case
        was closed on 04.02.2007 as untraceable. That thereafter,
        the actual investigation began by PW-30. That thereafter,
        during investigation A-1 disclosed the place where he had
        buried the dead body of the deceased. The dead body was
        exhumed from the place identified by A-1. Thus, it was a        C
        case of recovery of the dead body at the instance of the
        accused from the place which was disclosed by the accused
        who can be said to be in exclusive knowledge of the place
        where the dead body was buried. That thereafter, the super
        imposition test was conducted and the DNA examination           D
        was conducted on the bones and the skull and it was proved
        that the dead body was that of the deceased. This is the
        first strong circumstance against the appellant – A-1 which
        has led to his conviction.
  6.3   That thereafter, even the car which was driven by the           E
        deceased at the relevant time was recovered from PW-16
        which was at the instance of the accused himself. That
        there is a recovery of car driven by the deceased from the
        place and the person disclosed by the accused No. 1 –
        appellant. The prosecution has successfully proved the same
        by examining PW-16, a person to whom the stolen car was         F
        sold by the appellant – accused No. 1. This is the second
        strong circumstance against the appellant – accused
        No. 1.
  6.4   That thereafter, the prosecution has been successful in
        proving that the engine and gear box which were sold by         G
        the appellant – accused No. 1 was recovered from PW-17.
        The engine and gear box of the stolen car were found from
        the custody of PW-17 on the disclosure statement made by
        A-1. Though, PW-17 has turned hostile, however, at the
        same time, the recovery of engine and gear box from PW-         H
288              SUPREME COURT REPORTS                          [2023] 1 S.C.R.


A                    17 which were recovered on the disclosure statement made
                     by A-1 has been established and proved by the prosecution
                     by examining Police witness – PW-30, we see no reason to
                     disbelieve PW-30 on the aforesaid. This is another
                     circumstance against the appellant – accused No. 1. Thus
                     on the basis of the aforesaid strong circumstances when
B
                     the learned Trial Court as well as the High Court has
                     convicted the accused – appellant for the offences under
                     Sections 302 and 201 of IPC, we see no reason to interfere
                     with the same in exercise of powers under Article 136 of
                     the Constitution of India.
C            6.5     Now so far as the submissions made on behalf of the
                     appellant that the prosecution has failed to prove that the
                     death of deceased was the homicidal as in the post- mortem
                     report the cause of death was unascertainable is concerned,
                     it is required to be noted that as the dead body was buried
D                    and was found after numbers of months, it may not be
                     possible for the prosecution to prove that the death was a
                     homicidal death. However, at the same time and as rightly
                     observed by the High Court, by other circumstances the
                     prosecution has established and proved that the deceased
                     was killed after his car was stolen/taken away by the
E                    appellant – accused No. 1.
            7. Considering the aforesaid facts and circumstances, we are more
      than satisfied that the High Court has not committed any error in
      dismissing the appeal and confirming the judgment and order of conviction
      and sentence imposed by the learned Trial Court convicting the appellant
F     – accused No. 1 for the offences punishable under Sections 302 and
      201 of IPC.
             7.1     In view of the above and for the reasons stated above, no
                     interference of this Court is called for. The appeal deserves
                     to be dismissed and is accordingly dismissed.
G

      Bibhuti Bhushan Bose                                         Appeal dismissed.
      (Assisted by : Abhishek Pratap Singh, LCRA)



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