# PATTU RAJAN v. THE STATE OF TAMIL NADU

- **Citation:** [2019] 5 S.C.R. 535
- **Court:** Supreme Court of India
- **Decided:** 2019-03-29
- **Case number:** Criminal Appeal Nos. 680-681 of 2009
- **Bench:** N.V. Ramana, Mohan M. Shantanagoudar, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pattu-rajan-v-the-state-of-tamil-nadu-33840
- **Pages:** 34

## Headnote

Penal Code, 1860: s.302 - Abduction and murder of husband
of complainant (PW1) - Prosecution case was that accused no.1
wanted to take PW1 as his third wife knowing that she was already
married to victim-deceased and made several attempts with the help
of other accused to severe the relationship between PW1 and her
husband - Prior to the day of incident, the deceased and PW1 were
abducted by accused no.1 and his henchmen but on the same day
were released for which a separate complaint was lodged by PW1
and separate trial was conducted - Subsequent to this event of
abduction, accused committed murder of the PW1's husband so as
to marry PW1 without any obstruction - Conviction of appellant by
trial court under ss.364, 304 Part-I and 201 - High Court modified
conviction under s.304 Part-I to one under s.302 - Appeal against
conviction - Held: There was detailed deposition of PW-1 as to
how accused no.1 wanted to marry her and how he often tried to
lure her through undue favours, role of each of the appellants in
the crime, last seen circumstance as well as the identification of the
personal belongings of the deceased and his dead body - The
evidence of PW1 was fully supported by the evidence of PW2, the
mother of PW1 - Based on the confession of accused no.6, recovery
of wallet containing photograph of PW1, gold chain etc. was
effected from the house of accused no.6 and identified by PW1 and
her family as belonging to the deceased - Recovery of body at the
instance of accused no.2 and the identification of 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 reasonable doubt - 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
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identification of the dead body was consistent with the case of the
prosecution - The superimposition test strengthened the evidence
of PWs 1 and 2 regarding the identification of the body - Therefore,
no case was made out for interference with the conviction -
Evidence - Circumstantial evidence.
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 lo

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535
 PATTU RAJAN
v.
 THE STATE OF TAMIL NADU
(Criminal Appeal Nos. 680-681 of 2009)
 MARCH 29, 2019
[N.V. RAMANA, MOHAN M. SHANTANAGOUDAR,
INDIRA BANERJEE, JJ.]
Penal Code, 1860: s.302 - Abduction and murder of husband
of complainant (PW1) - Prosecution case was that accused no.1
wanted to take PW1 as his third wife knowing that she was already
married to victim-deceased and made several attempts with the help
of other accused to severe the relationship between PW1 and her
husband - Prior to the day of incident, the deceased and PW1 were
abducted by accused no.1 and his henchmen but on the same day
were released for which a separate complaint was lodged by PW1
and separate trial was conducted - Subsequent to this event of
abduction, accused committed murder of the PW1's husband so as
to marry PW1 without any obstruction - Conviction of appellant by
trial court under ss.364, 304 Part-I and 201 - High Court modified
conviction under s.304 Part-I to one under s.302 - Appeal against
conviction - Held: There was detailed deposition of PW-1 as to
how accused no.1 wanted to marry her and how he often tried to
lure her through undue favours, role of each of the appellants in
the crime, last seen circumstance as well as the identification of the
personal belongings of the deceased and his dead body - The
evidence of PW1 was fully supported by the evidence of PW2, the
mother of PW1 - Based on the confession of accused no.6, recovery
of wallet containing photograph of PW1, gold chain etc. was
effected from the house of accused no.6 and identified by PW1 and
her family as belonging to the deceased - Recovery of body at the
instance of accused no.2 and the identification of 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 reasonable doubt - 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
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identification of the dead body was consistent with the case of the
prosecution - The superimposition test strengthened the evidence
of PWs 1 and 2 regarding the identification of the body - Therefore,
no case was made out for interference with the conviction -
Evidence - Circumstantial evidence.
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
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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
 PATTU RAJAN v. STATE OF TAMIL NADU
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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
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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
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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
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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'
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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
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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.
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Case Law Reference
[1964] 3 SCR 297
relied on
Para 15
[2001] 3 SCR 942
relied on
Para 17
(2016) 3 SCC 8
relied on
Para 18
(2006) 1 SCC 732
relied on
Para 19
[2008] 14 SCR 1049
relied on
Para 19
[2010] 10 SCR 651
relied on
Para 20
[1985] 1 SCR 88
relied on
Para 22
[2009] 14 SCR 424
relied on
Para 32
[1979] 1 SCR 931
relied on
Para 32
[1999] 2 Suppl. SCR 318
relied on
Para 32
[2006] 9 Suppl. SCR 431
relied on
Para 32
(2010) 2 SCC (Cri) 299
relied on
Para 32
(1994) 4 SCC 478
relied on
Para 34
[2007] 7 SCR 616
relied on
Para 34
[2011] 7 SCR 354
relied on
Para 34
[2014] 3 SCR 406
relied on
Para 34
[2013] 3 SCR 884
relied on
Para 41
[2006] 7 Suppl. SCR 156
relied on
Para 41
[1978] 3 SCR 393
relied on
Para 43
[1999] 4 Suppl. SCR 286
relied on
Para 43
(2001) 6 SCC 145
relied on
Para 43
(2016) 12 SCC 76
relied on
Para 43
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 680-681 of 2009
From the Judgment and Order dated 19.03.2009 of the High Court
of Judicature at Madras in C.A. Nos. 748 of 2004 and 637 of 2004
 Wiith
Criminal Appeal Nos.799-800, 824, 801-802, 822-823 of 2009.
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Balaji Srinivasan, AAG, Sushil Kumar, Sr. Adv., Ms. Aishwarya
Bhati, K. K. Mani, Ms. T. Archana, Jaideep Singh, Aditya Kumar,
S. Ratnakaran, Bhagwan Das, Thankaih, T. Gopal, Vaidruti Misra, M.
Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshwaran, Ms. Pallavi
Sengupta, Advs. for the appearing parties.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
1. The judgment dated 19.03.2009 passed in Criminal Appeal
No. 637 and 748 of 2004 passed by the High Court of Judicature at
Madras whereby the High Court convicted the accused appellants for
the abduction and murder of one Santhakumar, husband of the
complainant Jeevajothi (PW1), is called into question in these appeals.
2. The material facts leading to these appeals are as under:
Accused No. 1 is the proprietor of a chain of hotels (Saravana
Bhavan). Either upon the advice of an astrologer or having become
besotted with PW1, Accused No.1 had evinced a keen desire to take
PW1 as his third wife, though she was already married to Santhakumar
(the deceased). In order to fulfil his desire, Accused No.1 used to
financially help PW1, her family members and her husband. He used to
talk to PW1 over the phone frequently, and also gave her costly gifts
such as jewellery and silk sarees and even went to the extent of paying
her medical bills. In a further bid to gain PW1's love and affection, he
frequently interfered in her personal matters. Once when she was ill,
under the pretext of better treatment as advised by another doctor,
Accused No. 1 forcefully shifted her to another hospital, where he advised
her not to have sexual relations with her husband and made her undergo
a series of tests. The deceased Santhakumar was instructed to get himself
tested for AIDS and other such diseases, which he refused outright.
3. On 01.10.2001, PW1 and her husband were abducted by
Accused No.1 and his henchmen (including the appellants herein), for
which a separate complaint (Ext. P3) was lodged by PW1 and a separate
trial was conducted. Some of the accused therein were convicted.
Separate appeals were also filed against the judgment of conviction for
the incident of abduction. As they have been decided separately, we do
not propose to discuss the said incident and offence in detail in these
appeals.
 PATTU RAJAN v. STATE OF TAMIL NADU
[MOHAN M. SHANTANAGOUDAR, J.]
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4. Accused No.1 took the help of the other appellants in order to
eliminate the husband of PW1, for securing PW1 as his third wife.
Subsequent to the incident of 01.10.2001 relating to abduction, Accused
No. 2 contacted PW1 and told her that he regretted the previous events
and suggested to PW1 to lodge a police complaint. A few days prior to
the murder, Accused No. 2 instructed PW1 to tell her husband to come
alone to a certain Sai Baba temple to meet a press reporter whom
Accused No.2 personally knew in order to highlight Accused No. 1's
wrongdoings. In other words, Accused No.2 posed himself as a wellwisher of PW1 and the deceased.
5. On 18.10.2001, PW1 as well as her husband went to the Sai
Baba temple as instructed by Accused No. 2. Soon after, two Ambassador
cars bearing Registration Nos. TN 09 T 3224 (M.O.1) and TN 22 5202
(M.O.2), and a Tata Sumo vehicle bearing Registration No. TN 09 Q
1310 (M.O.3) came and halted behind the car in which PW1 and her
husband were sitting. Accused Nos. 3 and 4, armed with knives, got out
of one of the cars and forced PW1 and her husband to board the car of
the accused in which Accused No.5 was sitting, and took them to
Chengalpattu. At about 8.30 p.m. on the same night, a Mercedes Benz
bearing Registration No. TN 10 M 7755 (M.O.4) belonging to Accused
No. 1 arrived with the parents of PW1 along with Accused No.1.
Thereafter, PW2, the mother of PW1, informed PW1 that Accused No.1
was in the said Benz car, and wanted PW1 to leave her husband and
meet Accused No.1 in the car. As PW1 resisted, Accused Nos. 3 and 4
forcibly took PW1 to the Benz car, and she was taken to Tiruchirappalli
in the said car.
6. On 19.10.2001, PW1 was taken to PW9 by Accused Nos.5
and 8 at Parappadi village, to remove the alleged influence of witchcraft
(black magic) which was allegedly the cause of her being in love with
Santhakumar. From there, she was taken to Veppankulam village to seek
the advise of an astrologer (PW8). At the said place, an employee of
Accused No.1, Janarthanam came and informed PW1 that her husband
had escaped the clutches of the henchmen of Accused No.1 and his
whereabouts were unknown. Subsequently, after spending the night at
Hotel Ariyas at Tirunelveli, PW1 and her family, along with Accused
Nos. 1, 5, 6 and 8 returned to Chennai by train.
7. After two days, Santhakumar spoke to PW1 over a phone call
and stated that Accused No. 2 had told him about being given Rs. 5
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lakhs by Accused No.1 to kill him, but Accused No. 2 had let him go
unharmed out of sympathy, and had asked him to escape to Mumbai and
contact him from there after fifteen days. However, Santhakumar
returned to PW1 upon her request. Subsequently, on 21.10.2001, both of
them approached Accused No.1 to seek his mercy, thus revealing that
Santhakumar was still alive. Later on the same day, when Accused
No.2 told Accused No.1 a false story about how he and the other accused
had killed Santhakumar and destroyed the evidence, on Accused No.1's
cue, Santhakumar and PW1 entered the room, much to the shock of
Accused No.2. Disgraced and feeling betrayed, Accused No.2 started
assaulting Santhakumar, and was joined by Accused Nos. 3 and 4. On
24.10.2001, they took the couple to the office of the Deputy Commissioner
of Police to withdraw the complaint relating to the incident of abduction
which had been lodged earlier that month, and also made them sign a
few blank papers. On the same day, Accused Nos. 5 and 6 took
Santhakumar, PW1 and her family members in a Tata Sumo bearing
Registration No. TN 10 M 7755 belonging to Accused No. 1, again to
remove the influence of black magic on PW1, after which they reached
Tirunelveli.
8. On 26.10.2001, at about 6.30 a.m., Accused No. 5 came to the
room in which PW1 and her family members were staying in Tirunelveli
and informed them that Accused No.1 had instructed Santhakumar to
be brought to him. Unwilling to send him alone, PW1 also went along
with Santhakumar and Accused No.5. Accused No. 1 made PW1 and
her husband get into his Tata Sumo (Registration No. TN 10 M 7755).
This vehicle, being driven by Accused No. 9, with Accused Nos. 5 and
8, PW1 and Santhakumar seated within, was followed by another Tata
Sumo (M.O.3). Upon reaching the Karai Illupu culvert, and upon a signal
by Accused No. 5, the other vehicle stopped, and Accused Nos. 2 to 4
and 6 alighted therefrom. Accused No.1 got out and grabbed Santhakumar
by the collar, dragging him out. He pushed Santhakumar down and handed
him over to Accused Nos. 2 to 4 and 6 and ordered them to "finish him
off". The Tata Sumo (M.O. 3) driven by Accused No. 7 took
Santhakumar along with the said accused towards Dindigul. Accused
No. 1 and the other accused took PW1 back, and later brought her and
her family back to Chennai.
9. While PW1 was staying at her mother's house at Velachery,
Accused Nos. 5, 8 and other henchmen of Accused No.1 kept a constant
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vigil over the movements of PW1 and her family. Thereafter, at the
instance of Accused No.1, PW1 and her family members were taken to
an astrologer by the name of Ravi (PW4), and later, she was made to
undergo certain rituals, conducted by one Raghunatha Iyer, in the
presence of the second wife of Accused No.1 at K.K. Nagar. Later,
much to her shock, PW1 learnt that these rituals were traditionally
conducted by the wife after the death of her husband. Therefore, upon
growing gravely suspicious, she lodged the first information on 20.11.2001
stating that Accused No.1 and his henchmen had murdered her husband,
and the same was registered as Crime No.1047 of 2001.
10. The motive put forth by the prosecution for the commission of
the offence is that Accused No.1 wanted to take PW1 as his third wife
despite knowing that she was already married to the deceased
Santhakumar. Accused No.1 made several failed attempts with the
help of the other accused to sever the relationship between PW1 and
her husband. Ultimately, Accused No.1 committed the offence in question
in order to eliminate the deceased so as to be able to marry PW1 without
any obstruction.
11. In the meanwhile, i.e. on 31.10.2001, prior to the lodging of
the FIR, one forester by name Raman and Forest Guard Murugusen
(PW26 and 27 respectively) of the Kodaikanal Range discovered the
dead body of a male near the Tiger-Chola forest area. On seeing the
dead body, PW27 lodged the first information, Ext. P42, at Kodaikanal
Police Station, which was registered as C.R. No. 559 of 2001, recording
the finding of an unidentified body and its unnatural death. The postmortem was conducted on 01.11.2001 by PW35 and thereafter, as the
body remained unidentified, it was buried in the Hindu burial ground of
the Kodaikanal Municipality by PW33, Anithalai, in the presence of PW32,
Head Constable Sebastian. Meanwhile, the accused had surrendered
and confessed to the commission of Santhakumar's murder. Based on
Accused No. 2's confession that he and the other accused had killed the
victim and thrown the dead body in the forest area of Tiger-Chola near
a curve on the road, the investigation team proceeded to that place, and
it was eventually determined that the dead body found by the forest
officials was that of Santhakumar. The pre-burial photographs of the
dead body clicked by the Kodaikanal Police (M.O. 11, 12, 13, 14) as
well as the apparel found on the body of the deceased (M.O. 5, 6 and 8)
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were identified as Santhakumar's by PW1 and her family, as well as by
some of the accused. The dead body was exhumed by PW33 and two
others, and was sent for a second post-mortem, which was conducted
by PW38. During the course of investigation, the procedure of
superimposition of the face of the deceased was done by PW34, Dr.
Jayaprakash, after which the dead body was concluded to be that of
Santhakumar. After exhumation, the body was also identified by PWs 1
and 2 through a scar mark still visible on the waist.
Charges were framed under various provisions of the Indian Penal
Code (hereinafter referred to as "the IPC") including Sections 302, 364
and 201, and the trial was conducted.
12. The Trial Court, upon evaluation of the material on record,
convicted the accused appellants for the offences punishable under
Sections 364, 304 Part I and 201 of the IPC. The accused appellants as
well as the State appealed before the High Court, wherein the High
Court while confirming the finding of guilt of the accused, modified the
conviction for the offence punishable under Section 304 Part I to Section
302 of the IPC. The Trial Court as well as the High Court concluded
that the evidence of the prosecution witnesses, particularly that of PWs
1 and 2, along with the other supporting evidence, was believable and
trustworthy; the motive for commission of the offence had been proved;
the last seen circumstance had been proved by the prosecution beyond
reasonable doubt; and that the recovery of the dead body based on the
statement of Daniel (Accused No.2) had also been proved. Both the
Courts tested the evidence of PW1 on the touchstone of consistency
with the tenor of the case. The Trial Court, which had the opportunity to
observe the demeanor of PWs 1 and 2, held that the discrepancies and
contradictions, if any, were minor in nature, and did not affect the credibility
and consistency of the evidence of PWs 1 and 2.
13. The Courts, relying on the evidence of the doctors PWs 35
and 38, who conducted the two post-mortem examinations, concluded
that the death was homicidal in nature, as the cause of death was found
to be asphyxia due to throttling.
14. Shri Sushil Kumar, learned senior counsel for the appellants
took us through the entire material on record and submitted that the
circumstances relied upon by the prosecution have not been proved in
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accordance with law. He argued that the High Court and the Trial Court
have merely proceeded on assumptions and conjectures, and the motive
for commission of the offence has not been proved, in addition to the
fact that the evidence relating to the recovery of the dead body is shaky.
He laid more stress on the argument that the first information in the
present case (Ext. P1) registered on 20.11.2001 could not have been
registered at all, inasmuch as there cannot be a second FIR relating to
the same incident. According to him, the incident as found in the first
information report dated 20.11.2001 is merely a continuation of the earlier
offence of abduction which had taken place on 01.10.2001, which had
generated proceedings pursuant to the first information lodged on
12.10.2001. Thus, according to him, the FIR in the present case would
only assume the character of a statement recorded under Section 161 of
the Code of Criminal Procedure (hereinafter "the Cr.P.C"), and the
proceedings in this matter would stand vitiated. He further submitted
that the first information of the abduction case dated 12.10.2001 had
been marked and relied upon in the present matter as Ext. P3 and its use
as a substantive piece of evidence was illegal. It was also argued that
the evidence relating to the last seen circumstance as deposed by PW1
was not put to the accused while examining them under Section 313 of
the Cr.P.C, and therefore, such portion of evidence could not be made
use of by the prosecution against the accused. Learned counsel also
submitted that the identification of the body merely on the basis of a
superimposition test was improper, in the absence of a DNA test.
Per contra, Shri Balaji Srinivasan, the learned Additional Advocate
General appearing on behalf of the State, argued in support of the
judgments of the Courts below.
15. We do not find any force in the arguments of the learned
Senior Advocate for the appellants that the incident of murder in the
case in hand is merely a continuation of an earlier offence, i.e. Crime
No. 1030 of 2001 relating to the abduction of PW1 and the deceased
Santhakumar, which occurred on 01.10.2001.
 Undoubtedly, factors such as proximity of time or place, unity of
purpose and design and continuity of action, in respect of a series of
acts, have to be considered in order to determine whether such acts
form part of the same transaction or not (See State of A.P. v.
Cheemalapati Ganeswara Rao, (1964) 3 SCR 297). A quick overview
of the sequence of unfolding of the incident of murder in question and
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the prior incident of abduction would show that the above factors cannot
be said to be satisfied in this case. Even when the two FIRs Ext. P1 and
P3 are read together, it becomes clear that the first incident of abduction
began and ended on 01.10.2001. The crime of abduction commenced
when the victims (PW1 and the deceased) were forced into captivity on
the said date, and was completed on the same day immediately after the
victims were released. In respect of the said incident, the first information
came to be lodged on 12.10.2001 by PW1. During the investigation of
the said case, on 24.10.2001, the accused brought the deceased, PW1
and her family members to Tirunelveli. The present crime came to be
committed on 26.10.2001, whereby PW1 and her husband, Santhakumar
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 Santhakumar by separating him
from his wife, committed his murder and threw away his body at the
Tiger-Chola forest area within the jurisdiction of Kodaikanal Police Station.
Evidently, the time and place of occurrence of the two incidents
are different. Even the number of accused involved in the incidents is
different. No continuity of action can be gathered from the sequence of
events either. It may be noted that the motive for commission of both the
offences may be the same, inasmuch as they were committed to enable
Accused No. 1 to marry PW1, but merely because of their common
motive, the second offence cannot be said to be in continuation of the
first incident, in light of there being distinct intentions behind the two
offences. 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, it is evident that unity of purpose and design between the two
offences is also absent. Thus, it is amply clear that the incident of murder
is entirely separate and distinct from the earlier incident of abduction.
16. Undisputedly, the first information pertaining to the incident of
abduction, after passing through various stages and various police officers,
ultimately came to be registered as an FIR on 09.11.2001 in the
jurisdictional Police Station. Nevertheless, the fact remains that the
offence of abduction was completed on 01.10.2001 itself and the first
information came to be lodged on 12.10.2001.
17. There cannot be any dispute that a second FIR in respect of
an offence or different offences committed in the course of the same
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transaction is not only impermissible but also violates Article 21 of the
Constitution. In T.T. Antony v. State of Kerala, (2001) 6 SCC 181, this
Court has categorically held that the registration of a second FIR (which
is not a counter case) is violative of Article 21 of the Constitution. It is
relevant to note paragraphs 19, 20 and 27 of the said decision in that
regard:
"19.