Madras High Court
Kathirvelsamy vs State Represented By on 21 September, 2021
Crl.A.(MD) No.450 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.09.2021
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.A (MD)No.450 of 2018
1.Kathirvelsamy
2.Mahesh .. Appellants/A1 & A2
-vs-
State Represented by
The Inspector of Police,
Earvadi Police Station (Circle),
Thirukurunkudi Police Station,
Crime No.139 of 2015,
Tirunelveli District. .. Respondent/Complainant
Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure against the judgment of the learned IV Additional
Sessions Judge, Tirunelveli, Tirunelveli District in S.C.No.592 of 2016,
dated 24.09.2018.
For Appellants :: Mr.V.Kathirvelu
Senior Counsel for
Mr.K.Prabhu
For Respondent :: Mr.S.Ravi
Additional Public Prosecutor
1/34
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JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
The appellants are arrayed as Accused Nos.1 & 2 in S.C.No.592 of
2016, on the file of the learned IV Additional Sessions Judge,
Tirunelveli. Totally there are eight accused, the appellants along with
other accused stood charged for the offences under Sections 120-B(1),
148, 153-A(1)(b), 364, 302 and 302 r/w 149 I.P.C. The trial Court, while
acquitting the other accused against the respective charges framed
against them, convicted A1 and A2 under Section 302 I.P.C. alone and
sentenced them to undergo Life Imprisonment and to pay a fine of Rs.
1,000/- in default to undergo one year Rigorous Imprisonment. The trial
Court acquitted the appellants/A1 and A2 from other charges.
Challenging the aforesaid conviction and sentence, the appellants are
before this Court with this Criminal Appeal.
2.The case of the prosecution in brief is as follows:
The deceased in this case, namely, Sheik Mohammed Kaja
Mohideen was an auto driver and a district office bearer in a political
party. Alleging that, earlier, some members belonging to the deceased's
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political party attempted to murder a party functionary belongs to a rival
political party, and in order to wreck vengeance, all the accused hatched a
conspiracy. In furtherence of the same, on 21.12.2015, all the accused
have formed an unlawful assembly and the appellants/A1 and A2
abducted the deceased in an auto and took him to a remote place at
Gandhinagar, A1 attacked him with knife indiscriminately and A2
attacked him with iron rod and caused his death, left the body there and
fled away. On coming to know about the same, P.W.1, mother of the
deceased, rushed to the scene of occurrence, after seeing the dead body,
she immediately lodged a complaint (Ex.P.1) before the respondent
police at about 10.30 p.m. on 21.12.2015.
3.P.W.37, Sub-Inspector of Police, on receipt of the complaint
registered a F.I.R. in Crime No.139 of 2015 under Section 302 I.P.C. and
sent the F.I.R. (Ex.P.45) to the concerned Judicial Magistrate Court, and
copy to the Inspector of Police (P.W.38) and other higher officials.
4.P.W.38, Inspector of Police of the respondent Police, on receipt
of the F.I.R. proceeded to the scene of occurrence at 11.15 p.m. on
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21.12.2015, and with the help of torch light and the head light of the
Police Jeep prepared Observation Mahazar (Ex.P.2) and Rough Sketch
(Ex.P.46) in the presence of witnesses. She engaged the services of sniper
dog and called the experts from the forensic department. Then, she sent
the body of the deceased to the Tirunelveli Government Medical College
Hospital. She recovered bloodstained sand (M.O.19), Sample Sand
(M.O.20) and the auto bearing registration No.TN-72-H-9041 (M.O.1).
On the next day morning, at about 11.30 a.m., in Tirunelveli Government
Medical College Hospital, she conducted inquest in the presence of
witnesses and panchayatars and prepared Inquest Report (Ex.P.48). Then,
she sent the body for postmortem autopsy through Head Constable –
(P.W.34) along with a memo.
4.P.W.31, Associate Professor & Head, Department of Forensic
Medicine, Tirunelveli Medical College Hospital, Tirunelveli, conducted
postmortem autopsy and prepared postmortem report (Ex.P.31). He gave
his opinion that, the deceased would have died of asphyxia due to
aspiration of blood as a consequence of stab injury to left side of neck
and injury No.10 is fatal in nature.
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5.After postmortem, since the relatives of the deceased refused to
receive the body demanding arrest of the accused, he sent the body to the
mortuary. Then, she recorded the statements of witnesses. In the mean
time, by an order passed by the Superintendent of Police, Tirunelveli, the
investigation was transferred to P.W.39.
6.P.W.39, Inspector of Police, Manoor Police Station, continued
the investigation and recorded the statements of witnesses. On
29.12.2015, he summoned A1 in this case for enquiry. At the time of
enquiry, A1 voluntarily gave a statement admitting the guilt, and P.W.39
arrested him. Based on the admissible portion of his confession, he
recovered the bloodstained knife (M.O.13), Bloodstained dhothi (M.O.7),
bloodstained Banian (M.O.8) and bloodstained Shirt (M.O.9). Based on
the confession of A1, he arrested A2 on the same day at 1.00 p.m. On
such arrest, he has also voluntarily gave a confession. Based on the
disclosure statement he recovered the bloodstained iron rod (M.O.15),
Bloodstained white shirt (M.O.9), bloodstained black pant (M.O.10),
motor cycle bearing registration No.TN-20-AM-7624 (M.O.11) and
cellphone (M.O.14). On the very same day, he arrested A3 and A4 and
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they have also voluntarily gave confessions, based on the confession
given by A3, he recovered two bill-hooks (M.O.16 series). Then, he
arrested A5 and A6 and based on the confession statement given by A5,
he recovered TN-72-AX-1933 – motorcycle (M.O.17) and the sketch to
murder the deceased (Ex.P.18). He sent all the accused to judicial
custody.
7.Based on the investigation, he altered the offence to Sections
147, 148, 302, 120(b)), 109 r/w 34 I.P.C. and filed the alteration report
(Ex.P.34). In the mean time, A7, appeared before the V.A.O. (P.W.30)
and gave an extra-judicial confession, on that, P.W.39 arrested him and
sent him for judicial custody. Once again, the offence was altered
including Sections 364 and 153-A I.P.C. and filed another alteration
report (Ex.P.52). Subsequently, on 04.01.2016, Test Identification Parade
was conducted by the learned Judicial Magistrate, Nanguneri. On
08.01.2016, he took police custody of A4 and A7, where they have given
confessions, based on the admissible portion of confession statement of
A4 he recovered another knife (M.O.18) and sent the accused for judicial
custody and sent the material objects to the Judicial Magistrate
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concerned under form 95. Then, he handed over the investigation to
P.W.40.
8.P.W.40 continued the investigation and recorded the statements
of other witnesses, collected call details of the mobile phone seized from
A2 and after completion of investigation, on 25.03.2016, filed a final
report.
9.Considering the above materials, the trial Court framed charges
as mentioned in paragraph No.1, and all the accused denied the same as
false. In order to prove its case, the prosecution examined as many as 40
witnesses, marked 56 documents and also produced 20 material objects.
10.Out of the witnesses examined, P.W.1 is the mother of the
deceased. According to her, on 21.12.2015, at about 9.00 p.m., she
received an information that her son was murdered, immediately she
rushed to the scene of occurrence, thereafter, filed a complaint (Ex.P.1)
before the respondent police and also identified the auto and the dresses
worn by the deceased.
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11.P.W.2, accompanied with P.W.1, and he wrote the complaint as
stated by P.W.1 and lodged the complaint before the respondent police
along with P.W.1. P.W.3, is running a brick kiln near the scene of
occurrence. On the date of occurrence, at about 8.45 p.m. to 9.00 p.m., he
got an information from P.W.4, his employee, that some one was found
murdered and an auto was standing near it, then he informed the same to
the police at 10.30 a.m., on the next day morning he came to know that
the deceased has been murdered. P.W.4, was working in the brick kiln. At
about 9.30 p.m. on the date of occurrence, he see a dead body and
informed the same to his owner. P.W.5 is an auto driver. According to
him, A1 called him over mobile phone and told him that A5, asked him to
contact him, but he avoided the phone call, then, he went to see A5, and
A5 told him to help A1. On the next day, he came to know about the
murder.
12.P.W.6 is an auto driver. He is known to the deceased and is also
known to A1, A2 and A5. According to him, A5, in this case is also an
auto driver and prior to the occurrence some persons attacked A5, and A1
and A2 suspected that the deceased was the man behind the occurrence.
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On 21.12.2015, at about 7.00 to 7.30 p.m., the deceased was sitting in his
auto, at the auto stand, in the opposite side A1 and A2 were standing,
when he asked them, they simply avoided him. After some time, the
deceased taken a lady passenger in the auto, both A1 and A2 followed
him in a motorcycle and he also identified the motorcycle. Prosecution
relied on his evidence to show that, A1 and A2 are last seen together with
the accused, before the occurrence.
13.P.W.7, another auto driver, turned hostile. P.W.8, another auto
driver, also known the accused. According to him, on 21.12.2015, at
about 7.45 p.m., he saw A1, A2 and other four accused standing near
Gandhi Nagar main road and discussing. P.W.9 is a tempo driver, he
spoke about the law and order problem created after the occurrence and
he was treated as hostile. P.W.10, was examined to prove the conspiracy,
he was treated as hostile to some extent. P.W.11 is the Treasurer of the
Tempo Drivers Association and he has also turned hostile. P.W.12, known
to A5, according to him, A5 belongs to a political party and he conducted
procession during Vinayar Chathoorthi, which was opposed by the
people belonging to another religion, hence, there was a dispute between
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them. Subsequently, A5, was attacked by some unknown persons, he also
spoke about the law and order problem subsequent to the occurrence, he
was also treated as hostile to certain extent.
14.P.W.13, is running a mobile shop, he knew the deceased as well
as A5 and he also spoke about the earlier quarrel between A5 and other
religion people, he was also treated as hostile witness. P.W.14 is running
a cycle shop, was known to A5 and the deceased, he spoke about the
earlier procession conducted by A5 and the quarrel between A5 and other
religion people. P.W.15, an auto driver, knew both the deceased and A5,
according to him, on 21.12.2015, at 7.00 p.m., the deceased was standing
with his auto, at that time A1 and A2 standing there in a two-wheeler, at
about 7.30 p.m. the deceased took a passenger in his auto, A1 and A2
followed him in a two wheeler, subsequent to the occurrence, he
identified both A1 and A2, in the Test Identification Parade.
15.P.W.16, a milk vendor, turned hostile. P.W.17, a driver, turned
hostile. P.W.18 also turned hostile. The evidence of P.W.19 has no
substance. P.W.20, witness to the observation mahazar, disputed the
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contents of the observation mahazar and he was treated as hostile.
P.W.21, another witness to the observation Mahazar, also turned hostile.
P.W.22, is witness to the observation mahazar. P.W.23, Motor Vehicle
Inspector, spoke about the ownership of the two wheelers, and given
owner ship certificates (Exs.P.5 and P.6). P.W.24, Assistant Engineer,
Tamil Nadu Electricity Board, spoke about the power supply in the area
and he has also given certificate (Ex.P.8). P.W.25 is the Branch Manager
of Tamil Nadu Transport Corporation, Tirunelveli. According to him,
from 22.12.2015 to 27.12.2015, no buses were operated through Ervadi,
to that effect he has issued a certificate (Ex.P.9). P.W.26, Branch
Secretary of a political party, turned hostile. P.W.27, Assistant, working
in the mortuary of Tirunelveli Government Medical College Hospital,
spoke about the body of the deceased kept in the mortuary.
16.P.W.28, Village Administrative Officer, is witness to the arrest
of A1 to A5 and confession given by them and recovery of material
objects. P.W.29, Assistant Director, in the Forensic Lab, Tirunelveli,
examined the bloodstained material objects and gave Serological Report
(Ex.P.24) and Chemical Analysis Report (Ex.P.25). P.W.30, Village
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Administrative Officer, before whom A7 appeared and has given extra-
judicial confession and he also witnessed the arrest, confession and
recovery of material objects.
17.P.W.31, Associate Professor & Head, Department of Forensic
Medicine, Tirunelveli Medical College Hospital, Tirunelveli, conducted
postmortem autopsy and issued postmortem certificate (Ex.P.31) and
found the following injuries in the dead body:
“The body was first seen by the undersigned at
2.25 PM on 22.12.2015. Its condition then was rigor
mortis present all over the body. Post-mortem
commenced at 2.25 PM on 22.12.2015.
APPEARANCES FOUND AT THE POST-MORTEM.
Moderately nourished body of a male. Finger and toe
nails pale.
THE FOLLOWING ANTEMORTEM INJURIES
WERE NOTED:
1.An oblique gapping incised like laceration of size
11x15cmx Cavity deep seen in left side of forehead. It
extends from left side of root of nose to left temporal
region. On dissection underlying left side of frontal
bone found fractured and depressed of size 10x2cm,
radiating crack fracture of length 10cm extends to left
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anterior cranial fossa.
2.An oblique cut injury of size 5x1x1cm seen in middle
of left ear. It cuts underlying left ear cartilage and
underlying soft tissues.
3.An oblique cut injury of size 5x1x1cm seen in lower
part of left ear. It lies 15cm below injury no.2. It is
having a tails of length 3cm in its front.
4.Abraded contusion of size 5x1cm seen in left cheek.
On dissection underlying soft tissues contused.
5.A horizontal scratch abrasion of length 7cm seen in
left side of neck.
6.A horizontal scratch abrasion of length 3cm lies 2cm
below chin. It is in line with injury No.5.
7.A horizontal scratch abrasion of length 5cm lies 2cm
below injury no.6.
8.A horizontal scratch abrasion of length 2cm seen in
front of middle of neck.
9.A horizontal scratch abrasion of length 4cm lies in
front of lower part of left side of neck. It lies 3cm
below injury no.8.
10.An oblique gapping stab injury of size 6x1x7cm
seen in left side of neck. On dissection it passes
downwards and medially and stabs underlying vessels,
nerves and left side of larynx.
11.An oblique gapping stab injury of size 2x1x1cm lies
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1cm outer in injury no.10. It stabs underlying soft
tissues.
12.An oblique scratch abrasion of length 7cm lies
0.5cm below injury no.10.
13.An oblique scratch abrasion of length 7cm lies
0.5cm below injury no.12.
14.A cut injury of size 4x2x0.5cm seen below left ear.
15.Laceration with abraded margins of size
4x1cmxBone deep seen in left side of occipital region.
16.Abraded contusion of size 7x4cm seen in top in left
shoulder.
17.Abrasion of size 15x0.5cm seen in lower part of left
forearm.
18.Tip of left 3rd finger found missing. Tissue at the cut
end appears to be clean cut.
19.Contusion of size 14x15cm seen in outer aspect of
left thigh.
20.Abrasion of size 1x0.5cm seen in left side of middle
of back.
21.3 Small puncture wounds of size 0.5x0.5x0.5cm
seen in front of right shoulder.
22.A cut injury of size 1x0.5x0.5cm seen in right
thumb.
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OTHER FINDINGS:
Heart: Normal and coronary vessels patent.
Hyoid bone: Intact
Larynx & trachea filled with blood clots.
Stomach Contains 20gms of partially digested food
particles, no specific smell and mucosa pale.
Lungs, Liver, Spleen, Kidney & Brain: Normal c/s pale.
Small intestine: Contains 20ml of yellow colour fluid,
no specific smell and mucosa pale.
Bladder: Contains 20ml of urine.
Blood sample collected for grouping and typing.
Viscera preserved for C.A.
Death would have occurred 12 to 24 hours prior to
autopsy.
OPINION AS TO CAUSE OF DEATH:
THE DECEASED WOULD APPEAR TO HAVE
DIED OF ASPHYXIA DUE TO ASPIRATION OF
BLOOD AS A CONSEQUENCE OF STAB INJURY
TO LEFT SIDE OF NECK. INJURY NO.10 IS FATAL
IN NATURE.”
He was of the opinion that the deceased would have died of asphyxia due
to aspiration of blood as a consequence of stab injury to left side of neck
and injury No.10 is fatal in nature.
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18.P.W.32, Judicial Magistrate, Nanguneri, conducted Test
Identification Parade, for A1 and A2, and he filed a report Ex.P.36. P.W.
33 is the Head Clerk, working in Judicial Magistrate Court, Valliyoor.
P.W.34, Head Constable, identified the body of the deceased for
postmortem. P.W.35, Police Photographer, took photos in the scene of
occurrence. P.W.36, another Head Constable, handed over the First
Information Report to the Judicial Magistrate, Valliyoor on 22.12.2015 at
3.30 a.m. P.W.37 is the Sub-Inspector of Police, who registered the F.I.R.
P.W.38, Inspector of Police, conducted initial investigation. P.W.39,
Inspector of Police, recorded the statements of witnesses, arrested the
accused, recorded the confession and recovered material objects. P.W.40,
Inspector of Police, continued the investigation and filed the final report.
19.The above incriminating materials were put to the accused
under Section 313 Cr.P.C.. The accused denied the same as false. The
accused have not examined any witness on their side, however, they
marked the signature of P.W.2 found in the summons issued to him for
enquiry.
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20.Having considered the above materials, the trial Court
convicted the appellants/A1 and A2 under Section 302 I.P.C. and
sentenced them as stated above. Challenging the aforesaid conviction and
sentence, the appellant is before this Court with this Criminal Appeal.
21.Mr.V.Kathirvelu, learned Senior Counsel, appearing for the
appellants/A.1 and A.2, would contend that, it is a case of circumstantial
evidence, the prosecution is only relying upon the evidence of P.W.6 and
P.W.15, who said to have seen both the accused following the deceased's
auto-rickshaw at about 7.30 p.m., on 21.12.2015. Except that, there is no
other evidence available to connect the accused with the murder.
According to the learned Senior Counsel, the case of the prosecution is
that all the eight accused conspired together and in furtherance of the
conspiracy A1 and A2, attacked the deceased. Even according to the
prosecution, the motive is only against A5, who said to have been
attacked at the instance of the deceased. However, the trial Court
acquitted all the accused under the charges 120(B) and 149 I.P.C., but
convicted the appellants only under Section 302 I.P.C. based on the one
and only circumstance that the accused followed the deceased before the
occurrence.
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22.According to the learned Senior Counsel, in a case of
circumstantial evidence, the prosecution has to prove the chain of
circumstances unerringly pointing the guilt of the accused. In the instant
case except one circumstance, no other chain of circumstances available
to prove the guilt of the appellants. Even as per the evidence of P.W.6 and
P.W.15, they have not informed the same immediately to the police. Only
after 6 days they were examined by the police. Both the witnesses belong
to the deceased's religion and also close friends of the deceased and they
are interested witnesses and their testimony cannot be relied upon to
convict the accused.
23.Learned Senior Counsel further submitted that, there are lot of
discrepancies in giving information to the police. According to P.W.1, she
has given complaint to P.W.36, Sub-Inspector of Police, at 10.30 p.m.,
whereas P.W.3, owner of a brick-kiln, has informed about the occurrence
to the police at about 10.00 to 10.30 p.m. and he was informed that they
have already received a complaint. That apart, the arrest of A1, cannot be
believed as according to P.W.28, P.W.39, called A1, for enquiry and he
appeared before him and during enquiry, he voluntarily said to have
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given a statement and based on that he was arrested and that alleged
statement has not been produced before the Court.
24.Learned Senior Counsel would further submit that the trial
Court disbelieved all the witnesses and acquitted other accused except
the appellants and the appellants have been convicted based on a solitary
circumstance that, they had followed the deceased, which will not
conclusively prove the guilt of the appellants and hence, the appellants
are entitled for acquittal.
25.Mr.S.Ravi, learned Additional Public Prosecutor appearing for
the State, would submit that, it is an admitted fact that the accused and
deceased belongs to two different religions and different political parties.
The motive has been established by the prosecution that, A5 in this case
has been attacked by some unknown persons. Alleging that the deceased,
was the master mind behind that attack, and these accused are close
friends of A5, also belonging to same political party, in order to wreck
vengeance followed him and attacked him. P.W.6 and P.W.15, who are
important witnesses in this case, spoke about the last seen theory. Both of
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them, saw the appellant standing in the Erwadi Auto Stand, at about 7.30
p.m., while, the deceased took a passenger in his auto, the appellants
followed him in a two wheeler and within short time he was murdered,
for which, no explanation was forthcoming from the appellants.
Considering the said circumstance, coupled with the motive and recovery
of bloodstained weapon and the bloodstained cloths based on the
confession of A1 and A2, the trial Court has rightly convicted the
appellants.
26.Learned Additional Public Prosecutor further submitted, even
though the trial Court disbelieved the evidence of witnesses regarding
the conspiracy, relied upon the above circumstances, rightly convicted
the appellants. He would further submit that merely because the other
accused were acquitted, it will not automatically absolve these accused
from involvement in the offence. According to him, 'man may lie, but
circumstance will not lie' and considering the same, the trial Court
convicted the appellants, which requires no interference by this Court.
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27.We have considered the rival submissions and the materials
available on record carefully.
28.This is a case of circumstantial evidence. It is trite law that, in
the case of circumstantial evidence, the prosecution should fully establish
the circumstances, and the facts so established should be consistent only
with the hypothesis of the guilt of the accused; the circumstances should
be of conclusive in nature and tendency, should exclude every possible
hypothesis except the one to be proved. The prosecution also must prove
the chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused.
29.The Hon'ble Supreme Court in Hanumant Govind Narsundkar
v. State of M.P. [AIR 1952 SC 343], has held as follows:
10. .. It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should
in the first instance be fully established, and all the facts
so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
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tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused.”
30.The above judgment has been followed in Anjan Kumar
Sarma v. State of Assam [(2017) 14 SCC 359], wherein it is held as
follows:
“13. Admittedly, this is a case of circumstantial
evidence. Factors to be taken into account in adjudication
of cases of circumstantial evidence laid down by this
Court are:
(1) The circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned `must' or `should' and not `may
be' established;
(2) The facts so established should be consistent
only with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive
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nature and tendency;
(4) They should exclude every possible hypothesis
except the one to be proved; and
(5) There must be a chain of evidence so complete
as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused. (See: Sharad Birdhichand Sarda v.
State of Maharashtra [(1984) 4 SCC 116] SCC p. 185,
para 153; M.G. Agarwal v. State of Maharashtra [AIR
1963 SC 200] AIR SC para 18)”
31.In the instant case, the prosecution has strongly relied upon one
circumstance i.e., last seen theory. P.W.6 and P.W.15 are the witnesses to
support that circumstance. According to them, P.W.6, the deceased was
an auto-driver and on the date of occurrence i.e., on 21.12.2015, at about
7.30 p.m., the deceased was in the auto-stand and in the opposite
direction the appellants were standing. While P.W.6, approached them
and asked as to whether they need any auto, they replied that they do not
require any help. Thereafter, the deceased engaged a lady passenger and
left the auto-stand, the appellants followed the auto-rickshaw in a two-
wheeler. P.W.15, is another auto-driver. According to him, both the
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appellants were standing near the auto-stand and at about 7.30 p.m., the
deceased took a passenger in his auto and left the place, the appellant
followed the auto. Thereafter, he identified both the accused in the test
identification parade. According to the prosecution, the accused found in
the company of the deceased shortly before the occurrence, and they
have not given any plausible explanation, and this is a strong
circumstance against them.
32.The next circumstance relied on by the prosecution is the
recovery of bloodstained weapon and also bloodstained dresses of the
deceased. According to P.W.39, Inspector of Police/Investigation Officer,
on 29.12.2015, A1, was summoned to appear for enquiry in the police
station, where he voluntarily gave a statement, admitting his guilt.
Thereafter, he was arrested and after arrest, he voluntarily gave
confession statement and based on the disclosure statement recovery was
made. P.W.28, Village Administrative Officer of Nambithalaivanpattayam
Village, is witness to the arrest and recovery.
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Crl.A.(MD) No.450 of 2018
33.These are the two strong circumstances, apart from motive,
relied upon by the prosecution to prove the guilt of the accused. Now, we
have to see whether those circumstances relied upon are fully
established, from which, the conclusion of guilt of the accused can be
drawn, and it forms a complete chain of circumstances, to show that in all
probability the murder has been done by the accused.
34.So far as the first circumstance i.e., the last seen together is
concerned, from the evidence of P.W.6 and P.W.15, it could be seen that
both accused were not found in the company of the deceased. Prior to the
occurrence, both of them were found near the auto-stand, where the
deceased parked his auto. Thereafter, they were said to have followed the
auto-rickshaw of the deceased. Apart from that, no other evidence is
available to show that accused has followed the auto till the scene of
occurrence. Even though the deceased said to have took a lady passenger
in the auto, that lady was not examined by the prosecution. Merely
following the accused for some distance before the occurrence, cannot
lead to the inference that, it is the appellants/A1 and A2 committed the
crime, there must be some more evidence connecting the appellants with
the crime.
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Crl.A.(MD) No.450 of 2018
35.In similar circumstance, the Hon'ble Supreme Court in
Kanhaiya Lal v. State of Rajasthan [(2014) 4 SCC 715], in paragraph 12
and 15 held as follows:
"12. The circumstance of last seen together does not
by itself and necessarily lead to the inference that it was
the accused who committed the crime. There must be
something more establishing connectivity between the
accused and the crime. Mere non-explanation on the part
of the appellant, in our considered opinion, by itself
cannot lead to proof of guilt against the appellant.
..........
15. The theory of last seen – the appellant having
gone with the deceased in the manner noticed
hereinbefore, is the singular piece of circumstantial
evidence available against him. The conviction of the
appellant cannot be maintained merely on suspicion,
however strong it may be, or on his conduct. These facts
assume further importance on account of absence of proof
of motive particularly when it is proved that there was
cordial relationship between the accused and the deceased
for a long time. The fact situation bears great similarity to
that in Madho Singh v. State of Rajasthan [(2010) 15 SCC
588]."
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Crl.A.(MD) No.450 of 2018
36.The circumstance of last seen together cannot by itself be held
that the accused is guilty of the offence. It is settled that the only
circumstance of last seen together, will not complete the chain of
circumstances and it is not consistent only with the hypothesis of the
guilt of the accused. The Hon'ble Supreme Court in Arjun Marik v. State
of Bihar [1994 Supp (2) SCC 372], in paragraph No.31, it is 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 will not complete the chain of circumstances
to record the finding that it is consistent only with the
hypothesis of the guilt of the accused and, therefore, no
conviction on that basis alone can be founded."
37.It is the contention of the learned Additional Public Prosecutor
that the burden is on the accused to explain under Section 106 of
Evidence Act, how that occurrence took place, and in the absence of any
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Crl.A.(MD) No.450 of 2018
explanation from the accused, adverse inference has to be drawn against
them. That contention cannot be countenanced for the simple reason that,
the primary burden is on the prosecution prima facie establish the guilt of
the accused by letting in evidence, then only, the burden shifts on the
accused. Here, in this case, the prosecution did not discharge their initial
burden. The Hon'ble Supreme Court in Gargi v. State of Haryana
[(2019) 9 SCC 738] has held as follows:
“33.1. Insofar as the ‘last seen theory’ is concerned,
there is no doubt that the appellant being none other than
the wife of the deceased and staying under the same roof,
was the last person the deceased was seen with. However,
such companionship of the deceased and the appellant, by
itself, does not mean that a presumption of guilt of the
appellant is to be drawn. The Trial Court and the High
Court have proceeded on the assumption that Section 106
of the Indian Evidence Act directly operates against the
appellant. In our view, such an approach has also not been
free from error where it was omitted to be considered that
Section 106 of the Indian Evidence Act does not absolve
the prosecution of its primary burden. This Court has
explained the principle in Sawal Das (supra) in the
following:-
“10. Neither an application of Section 103 nor
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Crl.A.(MD) No.450 of 2018
of 106 of the Evidence Act could, however, absolve
the prosecution from the duty of discharging its
general or primary burden of proving the prosecution
case beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed, will
sustain a conviction, or which makes out a prima
facie case, that the question arises of considering
facts of which the burden of proof may lie upon the
accused.”
38.Mere non-explanation on the part of the accused alone would
not be sufficient to establish the charge against the accused. Absence of
explanation would only provide an additional link to complete the chain
of circumstances. In the absence of proof of other circumstances, the only
circumstance of last seen together cannot be made the basis of the
conviction.
39.The Hon'ble Apex Court in Anjan Kumar Sarma v. State of
Assam [(2017) 14 SCC 369], held as follows:
“23. It is clear from the above that in a case where
the other links have been satisfactorily made out and the
circumstances point to the guilt of the accused, the
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Crl.A.(MD) No.450 of 2018
circumstance of last seen together and absence of
explanation would provide an additional link which
completes the chain. In the absence of proof of other
circumstances, the only circumstance of last seen together
and absence of satisfactory explanation cannot be made
the basis of conviction. ...”
40.That apart, both P.W.6 and P.W.15 are close friends of the
deceased and also belong to his religion. Admittedly, there is a long
standing enmity between the two religions in that area and frequent law
and order problem was created. In that circumstance, they are interested
witnesses. Even though the occurrence has taken place on 21.12.2015,
both of them did not disclose the same to anybody. Only after a week,
they appeared before the respondent police and informed the police about
the story and there is no plausible explanation for not exposing the same
to anybody immediately after the occurrence. It also create a strong
suspicion regarding the truthfulness of their testimony. Hence, it is not
safe to rely upon their evidence to convict the accused.
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Crl.A.(MD) No.450 of 2018
41.The next circumstance is recovery of the weapon and
bloodstained dresses of the appellants based on their confession under
Section 27 of the Evidence Act. It is the evidence of P.W.39,
investigating officer, that on 29.12.2015. Eight days after the occurrence,
A1 was called to the police station for enquiry, where he said to have
given a statement, based on that statement, he was arrested and after
arrest, he has voluntarily given a confession in the presence of P.W.28,
Village Administrative Officer, and based on the admissible portion of
confession, the material objects were recovered. Thereafter, on his
confession, A2 was arrested. This story is highly unbelievable. There is
no reason why that accused has appeared before the police and admitted
his guilt. That apart, the alleged statement, said to have been given by A1
also was not marked before this Court. It creates a strong suspicion
regarding arrest of A1. That apart P.W.28, Village Administrative Officer,
witness to the confession and recovery stated that police recorded
confession statements of five persons in the police station on that day. It
is also his evidence that at about 7.30 a.m., the Inspector of Police asked
him to come to police station, as he wants to examine an accused. It is
not known, when there are independent witnesses available in that area,
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Crl.A.(MD) No.450 of 2018
why he asked P.W.28, who is said to be residing far away from the police
station to be a witness for arrest and confession of the accused. That
apart another Village Menial, accompanied P.W.28 and present along
with him, was not examined, which creates doubt on the arrest and
recovery.
42.Another circumstance relied on by the prosecution is motive.
Admittedly, the motive is against A5 alone, as he was attacked by some
unknown persons, suspecting that the deceased was master mind behind
it. Absolutely, there is no material available to show that the appellants
have any motive against the deceased except saying that the appellants
and A5 belongs to some political outfit. It is the case of the prosecution
that, totally 8 accused hatched conspiracy and in furtherance of the same
A1 and A2 attacked the deceased and caused his death. Now, the trial
Court disbelieved that story and acquitted all the accused including the
accused/appellant from every charge, and the appellants/A1 and A2 were
convicted only for offence under Section 302 I.P.C. In the said
circumstance, motive is also not proved against the accused.
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Crl.A.(MD) No.450 of 2018
43.Considering all those circumstances, we are of the considered
view that, the prosecution has failed to prove the guilt of the appellants
beyond reasonable doubt and the Court below without considering those
aspects has convicted the appellants believing the last seen together
theory, which alone is not sufficient for convicting the appellants/A1 and
A2. Hence, the conviction and sentence imposed by the trial Court on
the appellants are liable to be set aside and the appellants are entitled for
acquittal.
44.In the result, Crl.A.(MD) No.450 of 2018 is allowed and the
conviction and sentence imposed on the appellants/A1 & A2, by the
learned IV Additional Sessions Judge, Tirunelveli, in S.C.No.592 of
2016, by the judgment dated 24.09.2018, are hereby set aside. The
appellants/A1 & A2 are acquitted of the charges levelled against them.
Fine amounts, if any, paid by the appellants/A1 & A2 shall be refunded to
them. Bail bonds executed by them also shall stand cancelled.
(V.B.D.J.,) (J.N.B.,J)
21.09.2021
Internet: yes/no
Index : yes/no
sj
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Crl.A.(MD) No.450 of 2018
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
sj
Note: In view of the present lock down
owing to COVID-19 pandemic, a web copy
of the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To
1. The IV Additional and Sessions Judge,
Tirunelveli.
2.The Judicial Magistrate,
Valliyoor.
3.The Inspector of Police,
Earvadi Police Station (Circle),
Thirukurunkudi Police Station,
Tirunelveli District.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to
The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment in
Criminal Appeal No.(MD) No.450 of 2018
Delivered on
21.09.2021
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