KRISHNAN @ RAMASAMY & ORS.versusSTATE OF TAMIL NADU

                       [2014] 9 S.C.R. 340


A              KRISHNAN @ RAMASAMY & ORS.
                                v.
                     STATE OF TAMIL NADU
                (Crimnal Appeal No. 512 of 2010)

                          JULY 01, 2014
B
          [SUDHANSU JYOTI MUKHOPADHAYA AND
                   DIPAK MISRA, JJ.]

        Penal Code, ·1860: ss.364, 302, 201 r/w s.34- Conviction
C based on circumstantial evidence - Last seen theory - PW-
  1, mother of victim-deceased lodged FIR alleging that seven
  days back, accused persons picked up her son, beat him up
  and took him away and her son did not return home after that
  day - Accused no. 3 was arrested who took the police to the
D borewell where the dead body of deceased was hidden -
  Courts below convicted accused no. 1 to 3 but acquitted
                    •
  accused no.4 and 5 - On appeal, held: As per PW-1,
  deceased was last seen in temple in the company of accused
  Nos. 1 to 4 - As per PW-2, maternal aunt of the deceased,
E deceased was last seen in the Police Station along with
  accused no. 1, who had brought the deceased there. -
  Prosecution failed to explain the statement given by PW-2 ·
  during her cross-examination wherein she stated that when
  she asked the Police about the deceased, they replied that ;
F the deceased was not handed over to them - Therefore,
  presence of PW-2 at the scene of occurrence was doubtful - .
  She being the highly interested witness and in view of
  contradictions, her statement cannot be relied upon - Further,
  if dead body was recovered at the instance of accused No.3,
  on that basis itself accused nos. 1 and 2 cannot be convicted
G - If accused no.4 was also last seen with deceased along with
  accused nos. 1 to 3, trial court having given benefit of doubt
  to accused no.4, there is no reason why same benefit be not
  given to accused Nos. 1 to 3 - Conviction cannot be based

H                              340
    KRISHNAN@ RAMASAMY v. STATE OF TAMIL                  341
     .            NADU

 only on circumstance of last seen together with the deceased     A
 - There was unexplained delay of six days in lodging the FIR
 - The body of the deceased was taken from the borewell by
 the fire service personnel after more that) seven days - There
 was no other positive material to show that the deceased was
 last seen together with the accused and during intervening       B
 period of seven days there was nobody in contact with the
 deceased - High Court erred in affirming the order of
 conviction passed by the trial court

      Evidence: Testimony qfaccomplice - Held: Cannot be          C
 used against another accused - Penal Code, 1860: ss.364,
 302, 201 rlw s.34.

       The prosecution case was that accused no. 1 and his
  wife accused no. 5 were annoyed with the victim-
  deceased as the deceased had been in love with their            D
  daughter and expressed his love to her. On account of
  this, the deceased was driven out of the village. On the
  fateful day, the deceased visited the village for the
  festival. At about 6.30 P.M., when the deceased was with
  his friends, accused no. 1, 2, 3 and 5 came there and took      E
  the deceased to a place near temple and attacked him.
  Later at 12 midnight, accused no. 1 and 2 strangulated
  him to death. Thereafter, accused 1, 2 and 3 hid the dead
  body into a borewell. As the deceased did not return
  home, after about 6 days, the mother of the deceased,           F
  PW-1 made a complaint under Section 365, IPC. Accused
  no. 3 was arrested who took the police to the borewell
, where the dead body of the deceased was hidden. The
  trial court convicted accused no. 1 to 3 under Sections
  364, 302_ and 201 IPC r/w section 34 IPC but acquitted          G
  accused no. 4 and 5. The High Court dismissed the
  appeal by accused no. 1 to 3. The instant appeal was filed
  challenging the order of the High Court.

      Allowing the appeal, the Court
                                                                  H
    342     SUPREME COURT REPORTS [2014] 9 S.C.R.


A      HELD: 1. The judgment passed by the trial court as
  affirmed by the High Court depicted that the prosecution
  case rested only upon the cir~umstantial evidence. The
  Court mainly relied upon the evidence of PW-1, mother
  of the deceased, confession of accused No.3 and the
B postmortem report. The evidence of PW-1 was to the
  effect that her son was said to have given ii flower to the
  daughter of accused No.1 and since accused No.1 was
  very much annoyed with her son, she sent her son to
  Kerala for employment in order to save him from the ·
c accused. After sometime, the deceased had come to his
  native village for celebrating the Festival and when he
  was talking to his friends on one evening, he was taken
  by accused Nos. 1 to 4 for questioning and on hearing
  the same PW-1 went to the said place where accused
0 Nos.1 to 4 had been examining the deceased. She saw
  her son being beaten 'up by the accused and at that time
  her son was in an unconscious state. She went and
  brought the village headman who prevented such
  beating. He told the accused to leave her son at the Police
E Station. The accused had kept the deceased till 7.30 p.m.
  They sent accused No.2 to bring the auto. Accused
  Nos.1, 2 and 3 tooK her son in that auto. Her son had not
  returned next day. Accused No.1, 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
F within two days. When she further enquired from
  accused No.1, he replied that he had sent him to Kerala,
  on paying him Rs.100/-. On the next day, i.e. 6th day she
  again asked accused No.1 about her son and she told
  him that she would file a complaint alleging the missing
G of her son. Subsequently, after a lapse of 6 days, she had
  filed a complaint with the Police Station. During the
  cross-examination, PW-1 accepted that she lodged the
  complaint after' tapse of six days of missing of her son.
  She further accepted that she ·had not stated in the
H
   KRISHNAN@ RAMASAMY v. STATE OF TAMIL             343
                 NADU
                                                     '
complaint that during the Inspector's enquiry that white_. A
she had asked accused "'o.-1 about her son, he had
replied that her son would return within two days. She
further stated that when she dictated the complaint
Ex.P .1, one auto driver had reduced it in writing. Auto
driver was not examined. [Paras 7, 8 & 9] [349-F-H; 350- B
A-H; 351-A]

     2. PW-2 is the elder sister of PW-1. She stated that
on the fateful day, the deceased was lying at the entrance
of the house at about 6 o'clock. All the five accused came
to PW-1 's house and took the deceased for enquiry. They C
beat up the deceased there. Then the village head told
not to beat him and asked them to hand him over to the
Police Station. Subsequently, at 8 hrs accused no.2
brought the auto and accused not 1 to 4 took the
deceased in that Auto. They h-ad not gone along with D
them, since there was a darkness. During her cross-
examination, she stated that when they had made a visit
to Police Station, accused No.1 had brought the
deceased to Police Station. Therefore, they asked as to
whether the deceased was present there. The Police had E
replied that the deceased was not handed over to them.
[Paras 10 and 11) [351-B-E]

     3. PW-4, a coolie stated that he was a friend of the
deceased. He further stated that there was an enmity F
between the deceased and the accused as the deceased
had love with the daughter of accused Nos.1 and 5. Due
to the threat from accused No.1, the deceased had left the
village. He stated that about 6 p.m., he had gone to the
temple. Then all the accused had found to have examined G
the deceased in the Temple. When they were making
such enquiry, they had beaten up the deceased. During
the cross-examination, he accepted that he has not given
any information about the deceased to anybody. He had
not engaged in a search as to the disappearance of the H
    344      SUPREME COURT REPORTS [2014) 9 S.C.R.


A   deceased. He had enquired with the deceased's mother
    as to his dis~ppearance on the third day and she
    informed him that there was no information as to the
    deceased. He further accepted that on 11th April, 2004,
    the Police had enquired him about the deceased, he had
B   not mentioned to anyone as the occurrence happened
    between 4th day and 11th day, with regard to the
    deceased. [Para 12] [351-G-H; 352-A-B]

         4. In the FIR, PW-1 did not disclose the presence of
    PW-2 and PW-4 at the scene of occurrence. The deceased
C   was last seen with accused Nos.1 and 4 by Village
    headman who said to have 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
D   days in filing the complaint about the missing of the
    deceased but ·PW-1 did not explain the delay in lodging
    such complaint. PW-1 in her statement stated that the
    deceased was lastly seen with the accused Nos.1 to 4 in
    Mariyamman Temple. PW-2 in her statement stated that
E   the deceased was last seen in the Police Station. The
    case of the prosecution was that the deceased was last
    seen in the autorickshaw by which he was abducted from
    the house of accused No.1. In the complaint, PW-1
    intimated that the deceased was sleeping in the night. In
F   the FIR, the motive of the accused was not disclosed. The
    accused No.3 was not even named in the FIR. The
    manner in which PW-1, mother of deceased gave the
    detail of occurrence which took place on 4th April, 2004
    showed as if she had seen every stage, the manner in
G   which the accused abducted the deceased, beaten up in
    the temple, taken in the autorickshaw, reached from one
    place to another place and then went to the Police
    Station. The statement of PW-1 about accused No.3 was
    an improvement which was not explained. The story of
H   accused to the deceased in the autorickshaw as· narrated
   KRfSHNAN@ RAMASAMY v. STATE OF TAMIL              345
                 NADU
  in the deposition of PW-1 was anotncr improvement A
·which she has not disclosed in the FIR. [Paras 13 to 16]
· [352-C-H; 353-A-B]
     5. The case of the prosec"!tion rested mainly on the
scene of occurrence; the deceased was last seen in the 8
company of accused Nos.1 to 3. As per PW-1, deceased
was last seen iri the temple in the company of accused
Nos. 1 to '4. PW-2 is maternal aunt of the deceased. PW-
1 did not disclose the presence of PW-2 at the scene of
occurrence where the de~eased was last seen in the . C
company of accused Nos.1 to 4. Even if the statement of
PW-2 is accepted, then according to her the deceased
was iast seen in the Police Station along with accused
No.1, who had brought the deceased there. The
prosecution has failed to explain the statement given by
PW-2 during her cross-examination wherein she stated 0
that when she asked the Police about the deceased, they
replied that the deceased was not handed over to them.
Therefore, the presence of PW-2 at the scene of
occurrence was doubtful. She being the highly interested
witness and in view of contradictions, her statement E
cannot be relied upon. [Paras 18 ·and 19] [353-D-H] ·

     6. The testimony of an accomplice cannot be used
 against another accused. Oh .the basis of testimony of
 accused No.3, if dead body was recovered, on that basis F
 the accused Nos.1 and 2 cannot be convicted. If accused
 No.4 was also last seen with· the deceased along with
 accused Nos. 1 to 3, the trial c~urt 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. G
 The conviction cannot be based only on circumstance of
 last seen together with the deceased. There is
 unexplained delay of six days in lodging the FIR. As per
 prosecution story the deceased was last seen on 4th
 April, 2004 during the Festival at the temple. The body of H
    346        SUPREME COURT REPORTS [2014] 9 S.C.R.


A the deceased was taken from the borewell by the fire
  service personnel after more than seven days. There was
  no other positive material on record to show that the
  deceased was last seen together with the accused and
  intervening period of seven days there was nobody in
B contact with the deceased. The Sessions Judge
  convicted. the accused Nos.1 to 3 on the basis of last
  seen evidence, the correctness of last seen version
  emanating from PW-1, PW-3 and PW-4 and as the
  prosecution case is also doubtful, there being
c contradiction about place where the accused were last
  seen with the deceased. The High Court had failed to
  appreciate the said fac~ and erred in affirming the order
  of conviction passed by the Sessions Judge. [Paras 20,
  21, 23, 25] [354-A-C, H; 355-A-B, D-EJ
D     · Arjun Marik and Ors. v. State of Bihar (1994) Supp. (2)
    SCC 372: 1994 (2) SCR 265; Bodhraj v. State of Jammu
    and Kashmir (2002) 8 SCC 45: 2002 (2) Suppl. SCR. 67;
    Jaswant Gir v: State of Punjab (2005) 12 SCC 438 - relied
    on.
E
                        Case Law Reference:
       1994 (2) SCR 265           Relied on        Para 21
       2002 (2) Suppl. SCR 67     Relied on        Para 22
F         c2005) 12 sec 438       Relied on        Para 24
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 512 of 2010.

G      From the Judgment and Order dated 31.03.2008 in Crl
    Appeal No: 1009/2005 of the High Court of Judicature at
    Madras.

         R. Balasubramaniam, T.R.B. Sivakumar, Karvnakar, K.V.
    Vijayakumar for the Appellant.
H
   KRISHNAN@ RAMASAMY v. STATE OF TAMIL                    347
                 NADU
     M. Yogesh Kanna, A. Santha Kumaran, Vanita C. Giri for      A
the Respondent.

    The Judgment of the Court was delivered by

     SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This appeal
 is directed against the judgment dated 31st March, 2008 8
 passed by the High Court of Judicature at Madras in Criminal
 Appeal No.1009 of 2<:l05. By the impugned judgment the High
·Court dismissed the appeal and affirmed the judgment of
 conviction and sentence passed by the learned Sessions Judge
 against the appellants for the offence under Section 364, 302 C
 and 201 read with Section 34 IPC.

     2. The case of the prosecution in nutshell is as follows:

      Prior to 4th April, 2004, the date of incident, the deceased
Manikandan expressed his love to one Rajeswari, daughter of D
accused No.1, Krishnan @ Ramasamy and accused No.5,
Selvam. For the said reason, there was a commotion which
resulted in enmity between the accused on the one side and
the deceased Manikandan on the other side. The deceased
was driven out of Neyveli area. Subsequently, on 4th April, 2004 E
during Panguni Uthram Kaavadi Festival at Veludaiyanpattu
village, the deceased visited for the festival. On the said date
at about 6.30 p.m., the deceased along with his friends was
talking behind the school at Vadakkumelur. At that time
accused No.1, Krishnan @ Ramasamy, accused No.2 F
Rajendiran @ Chinnu, accused No.3, Ramalingam and
accused No.5, Selvam came there and took the deceased
Manikandan to the place near Mariyamman Temple and
attacked him. Later, they took him in an autorickshaw bearing
Registration No.TN 31Y 2376 and abducted him under the G
pretext that the deceased was being taken to Police Station.
On the way, the accused purchased brandy and at 6.15 p.m.
 in the cashew thope belong to one Vijeyendiran the deceased
was taken out of the autorickshaw. Vijeyendiran told the
accused not to assemble there. Then, accused Nos.1, 2 and 3 H
    348       SUPREME COURT REPORTS (2014] 9 S.C.R.


A   took the deceased Manikandan to the side of the road leading
    to Vadakkumelur and under a margosa tree Manikandan was
    compelled to drink brandy. At about 12 midnight accused Nos.1
    and 2 strangulated the deceased Man!kandan by putting his
    towel around his neck and done him to death. Thereafter,
B   accused Nos.1, 2 and 3 put the dead body into a borewell.

       3. On 10th April, 2004, based on the complaint given by
  the mother of the deceased Manikandan. a complaint was
  registered for an offence under Section 365 IPC. On 13th April,
  2004, the Police arrested accused No.3-Ramasamy, who gave
C a voluntary confession statement in pursuance of which
  accused No.3 took the Police to the borewell where they had
  hidden the dead· body. Upon the identification of the borewell
  by accused No.3 with the help of Kurinjipadi fire service
  personnel, the dead body was taken out by the Police from the
D borewell. The body was identified by Valarmathi (PW.1),
  Amrthavalli (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
E 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
F 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
G 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
H
   KRISHNAN @ RAMASAMY v. STATE OF TAMIL                   349
   NADU [SUDHANSU JYOTI MUKHOPADHAYA, J.]

  the basis of the incriminating materials made available against A
  them, they denied each and every circumstance put up against
  them as false and contrary to the facts. Neither any oral
· evidence nor any documentary evidence was produced on their
· behalf. After considering all the material on record and hearing
  the parties, the Sessions Court had come to the conclusion that B
  the prosecution has proved its case only against accused Nos.1
  to 3 for the offence under Sections 364, 302 and 201 IPC read
  with Section 34 IPC and acquitted accused Nos.4 and 5 of the
· charges levelled against them.

      5. To challenge their conviction and sentence accused
                                                                 c
· Nos.1 to 3 moved before the High Court, which dismissed the
· appe'al by the impugned judgment.

     6. Learned counsel for the appellants would submit that the
Sessions Judge accepted the testimony of the interested D
witness and on the basis of circumstantial evidence the
appellants have been convicted. He would further submit that
the prosecution case rests only upon circumstantial evidence
but the prosecution has failed to prove such circumstances
without any breakage of link, convicted the appellants only on E
the basis of last seen theory and the confession of accused
No.3. He also submitted that the appellants (accused Nos.1 to
3) also stand on the same footing as that of accused Nos. 4
and 5, who were given benefit of doubt, such benefit was not
extended to accused Nos.1 to 3.                                  F

       7. From the judgment passed by the Sessions Judge as
  affirmed by the High Court, we find that the prosecution case
  rests only upon the circumstantial evidence. The Court mainly
  relied upon the evidence of Valarmathi (PW-1), mother of
  deceased Manikandan, confession of accused No.3 and the G
1 postmortem report.


     8. The evidence of Valarmathi (PW-.1) is to the effect that
 her son Manikandan was said to have given a flower to the
 daughter of accused No.1 and since accused No.1 was very H
    350       SUPREME COURT REPORTS [2014) 9 S.C.R.

A much annoyed with Manikandan, she sent her son to Kerala for
  employment in order to save him from the accused. After
  sometime, Manikandan had come to his native village for
  celebrating Panguni Uthiram Festival and when he was talking
  to his friends on one evening, he was taken by accused Nos.
B 1 to 4 for questiolling and on hearing the same Valarmathi
  (PW-1) went to said place, namely, Mariyamman Temple where
  accused Nos.1 to 4 had been examining Manikandan. She saw
  her son being beaten up by the accused and at that time her
  son was iri an unconscious state. She went and brought the
C village headman. Thereafter, 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,
D 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
E further enquired from accused No.1, he had replied that he had
  sent him to Kerala, on paying him Rs.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
F 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, the dead body of her son was retrieved from a
G deep borewell by the fire service personnel.

         9. During the cross-examination, Valarmathi (PW.:1)
    accepted that she !odged the complaint after lapse of six days
    of missing of her son. She further accepted that she had not
H   stated in the complaint that during the Inspector's enquiry that
   KRISHNAN@ RAMASAMY v. STATE OF TAMIL                     351
   NADU [SUDHANSU JYOTI MUKHOPADHAYA, J.]
while she had asked accused No.1 about her son, he had A
replied that her son would return within two days. She further
stated that when she dictated the complaint Ex. P.1, one auto
driver had reduced it in writing. Auto driver was not examined.

     10. Amirthavalli (PW-2) is the elder sister of Valarmathi
                                                                8
(PW-1 ), complainant. She stated that Manikandan went to
Kerala and had returned for Panguni Uthiram Festival last year.
When he was lying at the entrance of the house at about 6
o'clock, all the five accused who were present, descended down
to Valarmathi's (PW-1) house and taken Manikandan to C
Mariyammam Temple for enquiry. They had beaten up
Manikandan there. Then the village head had told not to beat
him and asked them to hand· him over to the Police Station.
Subsequently, at 8 hrs accused Rajendiran had brought the auto.
Then accused Rajendiran, Chakkarai, Ramasamy and
Ramalingam had taken Manikandan in that Auto. They had not D
gone along with them, since there was a darkness.

    11. During her cross-examination, she stated that when they
had made a visit to Police Station, accused No.1, Ramasamy
had brought the deceased Manikandan to Police Station.             E

    Therefore, they asked as to whether Manikandan was
present there. The Police had replied that Manikandan was not
handed over to them.

        12. Murugan (PW-4), a coolie at Neyveli, stated that he was F
  a friend of Manikandan. He further stated that there was an
  enmity between the deceased and the accused as Manikandan
  had love with Rajeswari, daughter of accused Nos.1 and 5. Due
  to the threat from accused No.1, Manikandan had left the village.
  He stated that about 6 p.m., he had gone to the temple. Then G
  all the accused and Ramasamy had found to have examinea
  Manikandan in the Temple. When they were making such
  enquiry, they had beaten up Manikandan. During the cross-
. examination, he accepted that he has not given any information
  about Manikandan to anybody. He had not engaged in a search H
    352       SUPREME COURT REPORTS (2014] 9 S.C.R.


A   as to the disappearance of Manikandan. He had enquired with
    Manikandan's mother as to his disappearance 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
B   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
C 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
D 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 d~ys
   in filing the complaint about the missing of Manikandan but
   Valarmathi (PW-1) has not explained the delay in lodging such
E 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 Temple. Amirthavalli (PW:2) in her
F . statement stated that the deceased was last seen in the Police
    Station. The case of the prosecution is that the deceased
    Manikandan was last seen in the autorickshaw by which he was
    abducted from the house of accused No.1.

         15. In the complaint, Ex.P.1, Valarmathi (PW-1) intimated
G   that Manikandan was sleeping in the night. In the FIR, Ex.P.13,
    the motive of the accused was not disclosed. The accused No.3
    was not even named in the FIR.

        16. The manner in which Valarmathi (PW-1), mother of
H   deceased Manikandan gave the detail of occurrence which took
   KRISHNAN @ RAMASAMY v. STATE OF TAMIL                     353
   NADU [SUDHANSU JYOTI MUKHOPADHAYA, J.]
place on 4th April, 2004 shows as if she had seen every stage,       A
the manner in which the accused abducted the deceased
Manikandan, beaten up in the Mariyamman Temple, taken in
the autorickshaw, reached from one place to another place and
then went to the Police Station. The statement of Valarmathi
(PW-1) about accused No.3 is an improvement.which was not            B.
explained. The story of accused to the deceased in the
autorickshaw as narrated in the deposition of Valarmathi (PW-
1) is another improvement whi°ch she has not disclosed in the
FIR, Ex.P.13.

      17. Referring to the material on record, learned counsel       C
for the appellants submitted that there is a doubt about the place
where the deceased Manikandan was last seen and the time
when he was last seen along with the accused.

       18. The case of the prosecution rests mainly on tl)e scene D
  of occurrence; the deceased Manikandan was last seen in the
  company of accused Nos.1 to 3. As per Valarmathi (PW-1 ),
  deceased Manikandan was last seen in Mariyamman Temple
  in the company of accused Nos. 1 to 4. Amirthavalli (PW-2) is
  maternal aunt of the deceased. Valarmathi (PW-1) did not E
  disclose the presence of Amirthavalli (PW-2) at the scene of
  occurrence where the deceased was last seen in the com~ny .
  of accused Nos.1 to 4. Even if the statement of Amirthavaili
· (PW-2) is accepted, then according to her the deceased was
  last seen in the Police Station along with accused No. 1, F
  Ramasamy who had brought the deceased Manikandan there.

     19. The prosecution has failed to explain the statement
given by Amrithavalli (PW-2) during her cross-examination
wherein she stated that when she asked the Police about
Manikandan, they replied that Manikandan was not handed over         G
to them. Therefore, the presence of AmrithavalU (PW-2) at the
scene of occurrence is doubtful. She being the highly interested
witness and in view of contradictions aforesaid, her statement
cannot be relied upon.
                                                                     H
    354        SUPREME COURT REPORTS [2014] 9 S.C.R.


A     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
B 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
C 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
D         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
E         of last seen will not complete the chain of circumstances
          to record the finding that it is consistent on/y with the
          hypothesis of the guilt of the accused and, therefore, no
          conviction on that basis alone can be founded."

       22. This Court in Bodhraj vs. State of Jammu. and
F Kashmir, (2002) 8 sec 45, held that the last seen theory comes
  into play where time-gap between the point of time when the
  accused and the deceased were seen last alive and the
  deceased is found dead is so small that possibility of any
  person other than the accused being the author of the crime
G becomes impossible. It will be hazardous to come to a
  conclusion of guilt in cases where there is no other positive
  evidence to conclude that the accused and the deceased were
  last seen together.

H         23. There is unexplained delay of six days in lodging the
    KRISHNAN @ RAMASAMY v. STATE OF TAMIL                     355
    NADU [SUDHANSU JYOTI MUKHOPADHAYA, J.]
 FIR. As per prosecution story the deceased Manikandan was            A
 last seen on 4th April, 2004 at Vadakkumelur village during
 Panguni Uthiram Festival at Mariyamman Temple. The body of
 the deceased was taken from the borewell by the fire service
 personnel after more than seven days. There is no other
 positive material on record to show that the deceased was last       B
 seen together with the accused and intervening period of seven
·days there was nobody in contact with the deceased.

     24. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC
438, this Court held that in absence of any other links in the
chain of circumstantial evidence, the appellant cannot be             C
convicted solely on the basis of "last seen together" even· if
version of the prosecution witness in this regard is believed.

     25. In the present case as noticed above, the Sessions
Judge convicted the accused Nos.1 to 3 on the bas·is of last          D
seen evidence, the correctness of last seen version emanating
from 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          E
to appreciate the aforesaid fact and erred in affirming the order
of conviction passed by the Sessions Judge.

     26. For the reasons aforesaid, we set aside the impugned
judgment dated 31st March, 2008 passed by the High Court
of Judicature at Madras in Criminal Appeal No.1009 of 2005            F
and impugned order of conviction and sentence dated 17th
November, 2005 passed by the Sessions Judge in Session
Case No.61 of 2005. The appeal is allowed. The appellants
are directed to be released forthwith, if not required in any other
case.                                                                 G

 Devika Gujral                                      Appeal allowed.