TMI Blog2018 (4) TMI 1968X X X X Extracts X X X X X X X X Extracts X X X X ..... lt of the Accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the Accused, no one had committed the offence, which in the present case, the prosecution has failed to prove. Both the courts below have erred in relying that part of the statement which can be termed as confession which were given to the police officer while they were in custody and it will be hit by Section 26 of the Indian Evidence Act, 1872 and only that part of the statement which led to the discovery of various materials would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation, Sivashankar (A-1 therein) was apprehended and he confessed about committing the crime along with (A-2 and A-3) Appellants herein stating that they abducted John Bosco and his friend Madhan and taken them in the Maruti Van being driven by John Bosco to one of the relatives of Accused No. 2 therein where they caused death of John Bosco and Madhan by strangulating them one by one using a rope and drowned their bodies in water streams using gunny bags. A-1 also took the investigation officer to the place where the body of Madhan was found in a gunny bag. (e) After following the due procedure, a charge sheet was filed in the Court of Judicial Magistrate No. 5, Salem and the case was committed to the Court of Additional District Sessions Judge, Fast Track Court No. II, Salem and numbered as Sessions Case No. 21 of 2009. The Court framed charges Under Sections 364, 302 read with Section 34, 201 read with Section 302 and 379 of the Indian Penal Code. (f) Learned Additional District Sessions Judge, vide judgment and order dated 18.09.2009, convicted all the Accused for the commission of crime under the charging Sections and sentenced them to undergo imprisonment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Sessions Court is as per the terms and dictates of law and should not be inferred with and the evidence against the Appellants-Accused are sufficient enough to bring home the guilt. Discussion: 9. It is the case of the prosecution that the Appellants-Accused planned to earn quick money by robbing a car and selling the same and for that purpose on 14.2.2008 they went to Yercaud and engaged the taxi of the John Bosco (since deceased) under the guise of sightseeing. John Bosco (since deceased) also took one Madhan (since deceased) on the way. The Appellants-Accused asked the driver-John Bosco to drop them at Periyar Nagar, Salem at the house of the grandfather of one of the Accused. After reaching there, the Appellant-Accused found that the grandfather was not available. The Appellants-Accused invited John Bosco into the house for taking liquor and they killed both of them by strangulating their necks with a rope. Accused No. 1 therein took the mobile phone and the Accused No. 3 therein took the Yashika Camera of one John Bosco. Accused No. 2 therein concealed the said van in the house of his grandfather. The number plate of van was changed with a sticker. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by Accused No. 1 and on the basis of his information, the recovery of the alleged Omni Van was affected by PW-26. Further, Anbalagan (PW-11), who was a Taxi driver at Yercaud Taxi stand had deposed that the Appellants-Accused had spoken to John Bosco on 14.02.2008 for hiring a taxi for sightseeing. Thereafter, he noticed that the Appellants-Accused boarded the vehicle of John Bosco and Madhan also boarded the same vehicle from a short distance. In fact, PW-11 had identified the Appellants-Accused in the court as the persons who had accompanied John Bosco and Madhan on 14.02.2008. 13. Accused No. 3-Navaneethakrishnan was apprehended by PW-20 from Salem Railway Station based on the information given by Accused No. 1. PW-26 deposed that on the basis of the confession of Accused No. 3, Yashika Camera was recovered. The dead body of John Bosco was recovered from the farm of PW-1 on 17.02.2008 on his information and the same was identified by the mother and father of the deceased and was further proved by skull imposition test. But it is also relevant to mention here that in the present case, the prosecution has no direct evidence to offer. The entire case rests upon the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding this, reliance can be safely placed on Rafikul Alam and Ors. v. The State of West Bengal 2008 Crl.L.J. 2005 wherein it was held as under: 32.....It is accordingly considered a safe Rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the Accused who are strangers to them, in the form of earlier identification proceedings. This Rule of prudence, however, is subject to exceptions when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades do not constitute substantive evidence. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting upon corroboration 18. PW-11 was able to identify all the three Accused in the Court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which furnish a link in the chain of evidence needed for a successful prosecution. This provision reads as follows: 27. How much of information received from Accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person Accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 134. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). 20. In this view, the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Yashika Camera which was recovered at the instance of Accused No. 3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased-John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased-John Bosco or to PW-8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and given it to the deceased John-Bosco. Further, the material objects, viz., Nokia phone and Motor Bike do not have any bearing on the case itself. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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