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TMI Blog2014 (7) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Nos.1 to 3 on the basis of last seen evidence, the correctness of last seen version emanating from eye witness Valarmathi (PW-1), Amirthavalli (PW-3) and Murugan (PW-4) and as per the prosecution case is also doubtful, there being contradiction about place where the accused were last seen with the deceased Manikandan. The High Court had failed to appreciate the aforesaid fact and erred in affirming the order of conviction passed by the Sessions Judge. For the reasons aforesaid, we set aside the impugned judgment passed by the High Court of Judicature at Madras and impugned order of conviction and sentence passed by the Sessions Judge. The appeal is allowed. The appellants are directed to be released forthwith, if not required in any other case. - Criminal Appeal No. 512 of 2010 - - - Dated:- 1-7-2014 - Sudhansu Jyoti Mukhopadhaya And Dipak Misra, JJ. JUDGMENT Sudhansu Jyoti Mukhopadhaya, J. This appeal is directed against the judgment dated 31st March, 2008 passed by the High Court of Judicature at Madras in Criminal Appeal No.1009 of 2005. By the impugned judgment the High Court dismissed the appeal and affirmed the judgment of conviction and sentence passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthavalli (PW-2) Gopal (PW-3), Murugan (PW-4) and Rajeswari (PW-5) to be that of Manikandan. The body was sent to Panruti Government Hospital where inquest was conducted by Kabbadasan (PW-13) on 14th March, 2004 at 6 a.m. in the presence of witnesses and panchayatdars. The inquest report is Ex.P.17. Ex.P.9 is the post mortem certificate and Ex.P.10 is the opinion given by the Doctor who conducted postmortem. The Investigating Officer, Kannadasan (PW-13) came to know that the other accused surrendered themselves before the Court. After concluding the enquiry, Kannadasan (PW-13) laid charge sheet against the accused before the Court on 26th May, 2004 for the offence under Sections 364, 365, 302 and 201 IPC. The Sessions Judge secured the presence of the accused, framed charges under Sections 364, 365, 302 and 201 IPC. All the accused pleaded not guilty and claimed to be tried. 4. The prosecution in all examined 13 witnesses, produced Ex.P.1 to P.22 and marked MOS 1 to 4 to prove its case. When the accused were questioned under Section 313 Cr.P.C. on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, Manikandan was taken from the said place in an autorickshaw by the accused. She immediately informed the village elder. The village Head came along with her and prevented such beating. He told the accused to leave her son at the Police Station. The accused had kept Manikandan till 7.30 p.m. They sent Chinnu @ Rajendiran, accused No.2 to bring the auto, accused Nos.1,2 and 3 had taken her son in that auto. Her son had not returned next day. Accused No.1, Ramasamy later on crossed her house from whom she enquired as to the whereabouts of her son to which he replied that her son would return within two days. When she further enquired from accused No.1, he had replied that he had sent him to Kerala, on paying him ₹ 100/-. On the next day, i.e. 6th day she had again asked accused No.1 about her son and she told him that she would file a complaint alleging the missing of her son. Subsequently, after a lapse of 6 days, she had filed a complaint with the Police Station (Neyveli Township at 8th Block). The Police having come to know that they were already conducting enquiry from accused No.3 with regard to this case, on the basis of the statement given by accused No.3, Ramalingam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the third day and she informed him that there was no information as to Manikandan. He further accepted that on 11th April, 2004, the Police had enquired him about Manikandan, he had not mentioned to anyone as the occurrence happened between 4th day and 11th day, with regard to Manikandan. 13. In the FIR, Valarmathi (PW-1) had not disclosed the presence of Amirthavalli (PW-2) and Murugan (PW-4) at the scene of occurrence at Mariyamman Temple. Nothing was stated with regard to Amirthavalli (PW-2) and Murugan (PW-4). Valarmathi (PW-1) did not disclose the presence of Amirthavalli (PW-2) at the scene of occurrence. The deceased was last seen with accused Nos.1 and 4 by Village headman by name, super supparayan, who said to had been present at the place where the deceased was last seen in the company of accused, was neither named as prosecution witness nor examined. There was inordinate delay of more than six days in filing the complaint about the missing of Manikandan but Valarmathi (PW-1) has not explained the delay in lodging such complaint. 14. Valarmathi (PW-1) in her statement stated that the deceased Manikandan was lastly seen with the accused Nos.1 to 4 in Mariyamman Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . She being the highly interested witness and in view of contradictions aforesaid, her statement cannot be relied upon. 20. The testimony of an accomplice cannot be used against another accused. On the basis of testimony of accused No.3, if dead body was recovered, on that basis the accused Nos.1 and 2 cannot be convicted. If accused No.4, Rajendiran @ Sakkarai was also last seen with the deceased Manikandan along with accused Nos. 1 to 3, the Trial Court having given benefit of doubt to accused No.4 it is not clear as to why the same benefit has not been given to accused Nos.1 to 3. 21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik and others vs. State of Bihar, (1994) Supp.(2) SCC 372, this Court held as follows: 31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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