PATTU RAJAN versus THE STATE OF TAMIL NADU

25. In effect, PW1 has 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 is the witness who saw the deceased in the company of the accused for the last time before his death. While the date on which she saw the deceased with the accused was 26.10.2001, the dead body was found on 31.10.2001, i.e. within five days of the incident, and as per the post-mortem report given by PW35, Dr. A. Sivakumar, the victim appeared to have died 3-5 days prior to the examination, which was conducted on 02.11.2001. This fact is well corroborated by the examination-in-chief of PW35 as well.

26. The evidence of PW1 is fully supported by the evidence of PW2, the mother of PW1. PW2 has deposed about the conduct of Accused No.1 towards her family members, as well as the dishonourable motive of Accused No.1 to marry PW1 and make her his third wife. She has fully corroborated the evidence of PW1 regarding the events of the day of the incident as well as the preceding days. She has testified to the fact that Accused No.5 came to their room in Tirunelveli and asked the deceased to go along with Accused No.1. However, PW1 also went along with them, but she returned to the room alone, crying, and revealed that the accused had beaten the deceased and taken him away. She has also deposed about Accused No.1 taking PW1 to an astrologer, and for removing the influence of black magic, etc.; and that she was present during the exhumation of the body and had identified the dead body of her son-in-law by the scar mark on his waist.

She had also identified the belongings of the deceased. In her cross-examination, she denied the suggestion made to her by the defence that PW1 had falsely lodged the complaint to extract money from Accused No.1. She has also explained the delay in filing the FIR, stating that her house was being monitored by Accused No.1 and his aides and that she was hoping that the deceased would return safely, as he had previously. The evidence of PW2 fully corroborates the evidence of PW1. It is evident from the above discussion that the evidence of PWs 1 and 2 with regard to the motive for commission of the offence, the last seen circumstance and recovery as well as the identification of the dead body is consistent with the case of the prosecution. We do not find any artificiality in their evidence. On the other hand, their evidence remains natural, consistent, cogent and probable, and thus we do not find any reason to disagree with the findings arrived at in that regard by the Trial Court as well as by the High Court.

27. The testimony of PW7, the Village Administrative Officer working in the office of the Tehsildar, is also relevant and significant. As per the requisition of the Assistant Commissioner of Police, PW7 went to the Chennai Kotturpuram Police Station on 30.11.2001. In his presence, Accused No.2 confessed to the Inspector of Police, PW42, that if taken to Kodaikanal, he would show the spot at Tiger-Chola where the dead body of Santhakumar was thrown. Accordingly, Accused No.2 was taken to the said place on 01.12.2001 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. PW7 further deposed that PWs 1 and 2, who came the next day, i.e., on 02.12.2001, also identified the dead body shown in the photographs, and the body was exhumed after 2 days, after completing the formalities. He also deposed that on 13.12.2001, Accused No.6 confessed that if taken to his colony at Saligramam Road, he would identify and produce the wallet (M.O.7) and gold chain (M.O.9) of the deceased, and the same were recovered at the instance of Accused No. 6.

PW7 has also deposed about the recovery of one lungi (M.O. 15) from the Tata Sumo in which the deceased was last seen. Nothing material worth considering in favour of the defence has been extracted from the cross-examination of PW7. It was argued by Shri Sushil Kumar that the confession made by Accused No.2 before PW7 was not admissible in evidence. 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. Be that as it may, 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.

28. The testimony of PWs 26, 27, 29, 32 and 33 pertains to the vital aspect of the recovery of the body of the deceased. PW26 Raman, the forester, has deposed that while he was working with Forest Guard Murugesan (PW27) on 31.10.2001, they found a dead body lying at Tiger-Chola in an abyss in the forest. The body had a blue-coloured checked full-sleeved shirt and sandal-coloured pant with a black-coloured belt. After seeing the dead body, PW26 and PW27 went to the Kodaikanal Police Station and lodged the first information (Ext. P42) with regard to the discovery of the unidentified dead body. Thereafter, the police came to the spot along with a camera and took photographs of the dead body. PW27 has reaffirmed what has been stated by PW26 and has deposed that the dead body was taken to the hospital by the police for autopsy. PW29, the Sub-Inspector of Police of Kodaikanal Police Station, has deposed that on 31.10.2001, PWs 26 and 27 lodged the complaint which came to be registered on the same day.

Thereafter, PW29 along with other personnel went to the concerned spot at Tiger-Chola, and saw the dead body of a male aged about 30 years wearing the aforementioned clothes. He took the photographs of the dead body from all angles and prepared the observation mahazar (Ext. P45) and panchnama of the dead body (Ext. P46). Thereafter, the dead body was sent to the government hospital for post-mortem examination. Since the body was unidentified and no relatives could be found, he asked Head Constable Sebastian (PW32) to bury the body in the municipality burial ground. He also told PW32 to mark the place where the dead body was buried. In the cross-examination, he has denied the suggestion that the pictures mentioned were merely photographs of the original photographs taken on the spot of discovery. Further, he has deposed that he conducted an inquest of the dead body and prepared the same under the light of a Petromax.

Although he saw a scar on the dead body, he did not mention the same in the observation mahazar. The colour of the shirt was seen as brown in the light of the Petromax, but on re-checking it in morning, he realized that it was actually blue, and thus struck it out and corrected it accordingly in the mahazar. PW32, the Head Constable, has reiterated what has been deposed by PW29. He was present during the burial of the dead body by PW33 Anithalai, and instructed him to place an identifier on the spot of burial. PW32 exhumed the dead body in the presence of the Tehsildar, upon whose direction, he kept the dead body at a place that was elevated. He also deposed that PW1, Jeevajothi, identified the dead body to be that of her husband and had left the place crying. PW32’s version as to the burial was corroborated by PW33, who has deposed that he buried the body and put the identification mark of a blue metal stone near the head to identify the place.

29. We may also briefly discuss the testimony of PWs 35 and 38 (the doctors who conducted the post-mortems of the deceased). PW35 conducted the first post-mortem examination. He has stated in his examination-in-chief that the hyoid bone in the neck was found broken and the brain was found decomposed. He opined that the person could have died 3 to 5 days prior to the post-mortem examination. The hyoid bone in the neck could have been broken due to strangulation of the said person by using materials like a lungi. PW38, who conducted the second post-mortem examination upon exhumation of the dead body, was also present at the spot of exhumation. PW38 deposed that while the body was being exhumed, he had noticed that a wooden stick had been put up along with a small stone on the southern part of the place. He also deposed that there was an old injury scar on the right lower abdomen of the dead body, the hyoid bone was broken, and that the fracture found in the hyoid bone was ante-mortem, which was confirmed through a Bensidine test. He opined that the cause of death appeared to be compression of the neck.

30. It is also relevant to note the testimony of PW36, the handwriting expert. 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 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 supports the conclusion that the accused in fact took PW1 and her family members to various places as deposed by them.

31. Shri Sushil Kumar also argued that a DNA test should have been conducted in order to identify the dead body, and identification merely on the basis of a superimposition test, which is not a tangible piece of evidence, may not be proper. One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian 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, as seen in the instant case.

32. The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors., (2009) 9 SCC 709: “16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed…” (emphasis supplied) 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. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. (See The State (Delhi Adminstration) v. Pali Ram, (1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. (supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors., (2010) 2 SCC (Cri) 299).

33. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the 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.

34. This leads us to the question of the propriety of relying upon the superimposition test conducted in the instant case for identifying the deceased. As noted supra, the learned counsel for the appellants has argued that evidence pertaining to the use of the superimposition technique is not a tangible piece of evidence. We find ourselves unable to agree with this view. There cannot be any dispute that evidence on superimposition is also based on experts’ opinion. We would like to note that the use of the superimposition technique in Indian investigations for identification purposes is not a new phenomenon. Notably, it has been employed in the investigations pertaining to the Nithari murders, the Russian murder incident in Goa in 2008, and even before that in the Morni Hill murder case and the Paharganj bomb blast case as far back as in 1996, and the Udhampur murder case in 2005 (See Modi, A Textbook of Medical Jurisprudence and Toxicology, 26th edn., 2018, pp. 267- 271). This Court itself has placed reliance on identification of the deceased through superimposition on several occasions (see Shankar & Ors. v. State of Tamil Nadu, (1994) 4 SCC 478; Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288; Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509; Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292), clearly indicating that it is an acceptable piece of opinion evidence.

35. It is relevant to note that all of the decisions of this Court cited in the above paragraph were based on circumstantial evidence, involving aspects such as the last seen circumstance, motive, recovery of personal belongings of the deceased, and so on, and therefore in none of the cases was the superimposition technique the sole incriminating factor relied upon to reach a conclusion of guilt of the accused. Indeed, in Mahesh Dhanaji Shinde (supra), the Court also had the advantage of referring to a DNA test, and in John David (supra), of referring to a DNA test as well as dental examination of the deceased, to determine the identity of the victim. This is in line with the settled practice of the Courts, which generally do not rely upon opinion evidence as the sole incriminating circumstance, given its fallibility. This is particularly true for the superimposition technique, which cannot be regarded as infallible.

36. In view of the above discussion, we hold that 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.

37. Moreover, it is evident from the testimony of PW34, Dr. Jayaprakash, 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 we see no error in such conclusion reached by the Courts.

38. Therefore, we are of the opinion that the scientific evidence of PW34 was rightly believed by the Trial Court as well as by the High Court, and strengthens 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, we reject the contention that the non-conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since no material is forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to conduct comparative DNA tests.

39. It is noteworthy to emphasise that 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, as mentioned supra, also stand positively identified by PW1 and her family as belonging to the deceased.

40. From the evidence of the witnesses discussed supra, it is amply clear that the dead body recovered from Tiger-Chola was identified by PW1 and her family members as Santhakumar’s, and the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note 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. In our considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar 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, stand proved beyond all reasonable doubt.

41. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non-explanation by the accused provides an additional link in the chain of circumstances.

Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him.

Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. (See Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681).

42. It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) 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.

43. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger-Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. (See Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161; State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC 247; Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., (2001) 6 SCC 145; Chaman & Anr. v. State of Uttarakhand, (2016) 12 SCC 76).

44. Having regard to the entire material on record and the totality of the facts and circumstances, we find that the evidence on record fully proves the case of the prosecution and that the Trial Court as well as the High Court evaluated the material on record in its proper prospective while coming to their conclusion. Thus, the judgment of the Trial Court as modified by the High Court need not be interfered with. Hence these appeals fail and stand dismissed. Devika Gujral Appeals dismissed.