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Sunday, September 28, 2014

Murder - Circumstantial Evidence - mere Recovery of M.O. with out connection - confession before police not admissible - admissible portion cycle two knives - Apex court held that With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence and further held that It is settled position of law that suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. In our opinion, it is not safe to record a finding of guilt of the appellant and the appellant is entitled to get the benefit of doubt. We, therefore, allow the appeal and set-aside the conviction and sentence of the appellant. = CRIMINAL APPEAL NO. 639 OF 2011 Sangili @ Sanganathan …Appellant Versus State of Tamil Nadu …Respondent = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41901

Murder - Circumstantial Evidence - mere Recovery of M.O. with out connection - confession before police not admissible - admissible portion cycle two knives - Apex court held that With regard to Section 27 of the Act, what is  important  is  discovery of the material object at the disclosure of the accused but such  disclosure alone would not automatically lead to the conclusion that  the  offence  was also committed by the accused.  In fact,  thereafter,  burden  lies  on  the prosecution to establish a close link  between  discovery  of  the  material object and its use in the commission of the  offence and further held that  It is settled position of law that suspicion however strong cannot  be a substitute for proof.  In a case resting completely on the  circumstantial evidence the chain of circumstances must be so complete that they lead  only to one conclusion, that is, the guilt of the accused.  In  our  opinion,  it is not safe to record a finding of guilt of the appellant and the  appellant is entitled to get the benefit of doubt.  We, therefore,  allow  the  appeal and set-aside the conviction and sentence of the appellant. =

on 12.6.2002 at  about  5.15
p.m., there was a phone call from  the  appellant  herein  to  the  deceased
which was initially  picked  up  by  PW-1.  According  to  PW-1  the  caller
identified himself  by  his  name  (same  as  the  appellant).   After  some
conversation with the caller the deceased went out by bicycle informing  his
parents that he would return soon.  Unfortunately, he  never  returned.=

On  the  same  day,  the  appellant  was  arrested  at  about  8  p.m.
According to the prosecution, the appellant made  a  confessional  statement
which led to certain recoveries.
The admissible portion  of  the  statement
made by the appellant is Ex.P5.  On the basis of  such  a  statement,  PW-15
altered the First Information Report (FIR) and  registered  the  case  under
Section 302 IPC and dispatched the FIR to the Court.  
Thereafter,  he  went
led by the accused to the spot from where the dead body of the deceased  was
recovered around 9.45 p.m.
Thereafter, he got  the  inquest  conducted  and
prepared a report Ex.P18 around  2.30  a.m.  i.e.  in  the  early  hours  of
15.06.2002.
The dead  body  was  sent  to  the  hospital  for  post  mortem
examination.  PW-15 thereafter proceeded to the house of the  appellant  and
seized MOs 7 and 8 (two knives) from  the  backyard  of  the  house  of  the
appellant.
They proceeded further to the house of PW-9 at around 3.30  a.m.
at the instance  of  the  appellant  and  recovered  the  bicycle,  M.O.  1.
Subsequently, Nagarajan (A2 who  was  acquitted  by  the  trial  court)  was
arrested. After completion of the investigation, PW-16 Inspector  of  Police
who succeeded PW-15 (in office) filed the charge sheet.=


  Mustkeem alias Sirajudeen v. State of  Rajasthan,  (2011)
11 SCC 724, this Court observed as under:

“24.  In a most celebrated case of this Court, Sharad Birdhichand  Sarda  v.
State of  Maharashtra,  (1984)  4  SCC  116,  in  para  153,  some  cardinal
principles regarding the appreciation of circumstantial evidence  have  been
postulated.
Whenever the case  is  based  on  circumstantial  evidence  the
following  features  are  required  to  be  complied  with.  
It  would   be
beneficial to repeat the same salient  features  once  again  which  are  as
under: (SCC p.185)

“(i)  The circumstances from which the conclusion of guilt is  to  be  drawn
must or should be and not merely 'may be' fully established;

(ii)   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;

(iii)        The  circumstances  should  be  of  a  conclusive  nature   and
tendency;

(iv)  They should exclude every possible hypothesis except  the  one  to  be
proved; and

(v)   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.”

25.  With regard to Section 27 of the Act,
what is  important  is  discovery
of the material object at the disclosure of the accused but such  disclosure
alone would not automatically lead to the conclusion that  the  offence  was
also committed by the accused.
In fact,  thereafter,  burden  lies  on  the
prosecution to establish a close link  between  discovery  of  the  material
object and its use in the commission of the  offence.  
What  is  admissible
under Section 27 of the Act is the information leading to discovery and  not
any opinion formed on it by the prosecution.”
                                                         (emphasis supplied)
26.   It is settled position of law that suspicion however strong cannot  be
a substitute for proof.  In a case resting completely on the  circumstantial
evidence the chain of circumstances must be so complete that they lead  only
to one conclusion, that is, the guilt of the accused.  In  our  opinion,  it
is not safe to record a finding of guilt of the appellant and the  appellant
is entitled to get the benefit of doubt.  We, therefore,  allow  the  appeal
and set-aside the conviction and sentence of the appellant.   The  appellant
be set at liberty unless required in any other case.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41901
                                                                Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 639 OF 2011

Sangili @ Sanganathan                        …Appellant

            Versus

State of Tamil Nadu                                …Respondent





                               J U D G M E N T


Chelameswar, J.

1.    This appeal arises out of the judgment dated 6th January 2010  of  the
Madurai Bench of the Madras High Court in Criminal Appeal No.506 of 2004.

2.    By the impugned judgment, the High  Court  confirmed  the  appellant’s
conviction and sentence of imprisonment for life and a  fine  of  Rs.10000/-
under Section 302 of the Indian Penal Code, 1860 (for short  “IPC”)  awarded
by the Sessions Court, Madurai in Sessions Case No.490 of 2003.

3.    The deceased Muthuramaligam was a high  school  going  child  studying
Plus-Two.  PWs 1 and 2 are his  parents.   PW-5  Ramathilaga  another  young
girl was also a student of the same school where the deceased was  studying.
 The appellant herein was working for the father of PW-5.

4.    According to the case of the prosecution, on 12.6.2002 at  about  5.15
p.m., there was a phone call from  the  appellant  herein  to  the  deceased
which was initially  picked  up  by  PW-1.  According  to  PW-1  the  caller
identified himself  by  his  name  (same  as  the  appellant).   After  some
conversation with the caller the deceased went out by bicycle informing  his
parents that he would return soon.  Unfortunately, he  never  returned.   On
14.06.2002 at about 10 a.m., PW-1 went to the  Oomachikulam  Police  Station
and lodged a complaint Ex.P1 to the effect that Muthuramaligam was missing.

5.    PW-12 Head Constable received the complaint  and  registered  a  Crime
No.204 of 2003.  PW-15 Tr. Ponnuchamy is the  Inspector  of  Police  of  the
abovementioned police station.

6.    On  the  same  day,  the  appellant  was  arrested  at  about  8  p.m.
According to the prosecution, the appellant made  a  confessional  statement
which led to certain recoveries.  The admissible portion  of  the  statement
made by the appellant is Ex.P5.  On the basis of  such  a  statement,  PW-15
altered the First Information Report (FIR) and  registered  the  case  under
Section 302 IPC and dispatched the FIR to the Court.   Thereafter,  he  went
led by the accused to the spot from where the dead body of the deceased  was
recovered around 9.45 p.m.  Thereafter, he got  the  inquest  conducted  and
prepared a report Ex.P18 around  2.30  a.m.  i.e.  in  the  early  hours  of
15.06.2002.  The dead  body  was  sent  to  the  hospital  for  post  mortem
examination.  PW-15 thereafter proceeded to the house of the  appellant  and
seized MOs 7 and 8 (two knives) from  the  backyard  of  the  house  of  the
appellant.  They proceeded further to the house of PW-9 at around 3.30  a.m.
at the instance  of  the  appellant  and  recovered  the  bicycle,  M.O.  1.
Subsequently, Nagarajan (A2 who  was  acquitted  by  the  trial  court)  was
arrested. After completion of the investigation, PW-16 Inspector  of  Police
who succeeded PW-15 (in office) filed the charge sheet.

7.    In all  prosecution  examined  16  witnesses  apart  from  marking  18
documents and producing 8 material objects to establish  the  guilt  of  the
appellant  herein.   The  prosecution  case  rests  on  the   circumstantial
evidence. The circumstances are:
(i)   That the deceased was trying to woo PW-5 which was objected to by  the
appellant herein and in that  context  there  was  an  earlier  incident  of
beating up of the deceased by the appellant;

(ii)  That the deceased left the house on the fateful day on receiving  call
from the appellant and never returned thereafter;

(iii) That the appellant knew as to where the dead body of the deceased  was
lying and also the place where the bicycle of the deceased was available;

(iv)  The appellant also knew where MOs 7 and 8 (two knifes) which are  said
to have been used for killing the deceased were hidden.

8.    The trial Court on  the  basis  of  the  abovementioned  circumstances
recorded  a  conclusion  that  the  appellant   is   guilty   of   murdering
Muthuramaligam which finding is confirmed by the High Court.

9.    Shri R. Balasubramanian, the learned senior counsel for the  appellant
argued that the evidence on  record  is  wholly  inadequate  to  record  the
finding of guilt against the appellant.  (a)  It is submitted that PWs 3  to
5 who were examined to establish the  motive  and  the  background  for  the
offence turned hostile.  Therefore,  there  is  no  evidence  on  record  to
establish the motive.  (b)  With regard to the fact that the  deceased  left
his residence on the fateful day  on  receipt  of  a  phone  call  from  the
appellant herein is not clearly established  as  there  is  nothing  in  the
evidence of PW-1 to indicate  that  he  knew  the  appellant  prior  to  the
telephonic conversation and he could identify the voice  of  the  appellant.
Assuming for the sake of argument that the caller identified himself by  the
name “Sangili”, it is not conclusive  that  the  caller  was  the  appellant
herein.   There is no evidence on record that anybody saw both the  deceased
and accused  together  on  the  evening  of  the  fateful  day.    (c)   The
recoveries made pursuant to Ex.P5 are highly doubtful as the evidence of PW-
7 who happens to be  the  Panch  witness  both  before  the  arrest  of  the
appellant and  also various recoveries made pursuant to  Ex.P5  is  full  of
contradictions and does not inspire any confidence in  the  truthfulness  of
the witness.

10.   On the other hand, Mr. M. Yogesh Kanna, learned counsel appearing  for
the State argued that the concurrent findings of fact recorded by  both  the
courts below ought not to be interfered with and this Court  would  not  re-
appreciate evidence in exercising its jurisdiction under Article 136.

11.   There cannot be any second opinion that this Court in exercise of  its
jurisdiction under Article 136 does not re-appreciate evidence.    But  when
the submission is that it is a case of no evidence at all, we are  bound  to
examine the matter.

12.   We have gone through the judgments of the trial  court  and  the  High
Court.  We are sorry to place on record that both the judgments  leave  much
to be desired.

13.   There is no discussion as to the  basis  on  which  the  courts  below
reached the conclusion that there was a motive for  the  appellant  to  kill
Muthuramaligam. PWs 3 to 5 who are examined  to  prove  the  motive,  turned
hostile.  PW-1 is the only other witness who spoke about the motive  but  he
does not claim any personal knowledge of the motive.  At best  the  evidence
of PW-1 with respect to motive is only hearsay evidence.

14.   Coming to the circumstance that the deceased  left  his  residence  on
the fateful day after receiving the call allegedly  made  by  the  appellant
herein, the prosecution sought to establish the said fact on  the  basis  of
the evidence of PW-1 and PW-8, of whom PW-8 turned hostile. PW-1 the  father
of the deceased stated in his evidence that on the fateful day the  deceased
received a phone call from the appellant herein at  about  5.15  p.m.  which
call was  initially  picked  up  by  him  and  on  his  enquiry  the  caller
identified himself by his  name  “Sangili”.   In  his  cross-examination  he
clearly admitted that he neither saw  nor  knew  the  appellant  before  his
arrest by the police.  He did not know anything about the appellant’s  place
of residence, father’s name etc.  The only other witness  who  was  examined
in this context was PW-8 who allegedly  stated  before  PW-15  Inspector  of
Police that on the fateful day the appellant accompanied by  another  person
went to the telephone booth where PW-8 was said to be  working  and  made  a
phone  call  to  the  deceased.   As  noticed,  PW-8  did  not  support  the
prosecution case.  That being the  case,  there  is  no  legally  admissible
evidence on record to come to the conclusion  that  the  deceased  left  the
house only after being called up by the appellant herein.

15.   The other circumstance relied upon  by  the  prosecution  accepted  by
both the Courts is the recovery of MOs 1 (bicycle) and 7 &  8  (two  knives)
at the instance of the  appellant  pursuant  to  the  statement  before  the
police, the admissible portion which is Ex.P5.

16.   PW-7 Mathivanan is the Panch witness along with  Shenbagamoorthy  (who
was not examined), for  the  arrest  of  the  appellant  and  also  for  the
recovery of abovementioned material objects.

17.   PW-9 Chinnathambi  is  the  person  according  to  whose  evidence  on
12.6.2002 at about 7 p.m. the appellant herein  left  MO-1  bicycle  at  his
residence.  However, the appellant never went back to take the bicycle.   On
the other hand, in the early hours of 15.6.2002 at around  3.30  a.m.  PW-15
and others came to his residence and seized the bicycle MO-1.

18.    The  learned  counsel  for  the  appellant  argued  that  there   are
discrepancies in the evidence of PW-7 and, therefore,  his  evidence  cannot
be relied upon and his evidence should be discarded.  There is nothing  else
on record to establish the trustworthiness of the  recovery  of  the  MOs  1
(bicycle) and 7 & 8 (two knives) at the instance of the appellant.

19.   The learned counsel also argued that PW-9 never stated that  when  the
police party led by PW-15 came to seize MO-1 from his residence, the  police
party was accompanied by the appellant and, therefore, the recovery  of  the
bicycle is also unreliable piece of evidence.

20.   We have carefully scrutinized the evidence of PWs 7 and  9.   We  find
one aspect, which  is  material,  and  is  quite  intriguing.   As  per  the
prosecution, the appellant had  made  confessional  statement;  there  is  a
recovery of blood; recovery of knife;  and  recovery  of  bicycle.   In  the
panchnama drawn for these recoveries, there  is  only  one  person  who  has
allegedly  witnessed  these  recoveries,  namely  PW-7  Mathivanan,  son  of
Thangamani.  Though this by itself may  not  be  very  suspicious,  when  we
examine this aspect in conjunction with other evidence emerging  on  record,
such recoveries become little doubtful.  The Investigating Officer  himself,
who appeared as PW-15, has stated in his deposition  that  the  witness  who
signed the confessional statement of the appellant is  not  Mathivanan,  son
of Thangamani, thereby doubting the identity of PW-7.  The manner  in  which
PW-7 reached the spot and  was  allegedly  requested  by  the  Investigating
Officer to accompany him to witness  the  recoveries  is  also  shrouded  in
mystery.  Further, in his chief-examination he stated that on that day  from
8.00 p.m. to the next morning 3.30 a.m.  he  was  with  the  Police  on  the
request of PW-15.  In his cross-examination he stated that he was  taken  to
the police station at about 6.00 p.m. for a short while and let off  by  the
Police  thereafter.   All  these  facts  taken  together,  which   are   not
considered by the Courts below, make the recoveries little doubtful.

21.   It is to be  emphasized  at  this  stage  that  except  the  so-called
recoveries, there is no other circumstances worth the name  which  has  been
proved against the appellant.


22.   To sum up what is discussed above, it  is  a  case  of  blind  murder.
There are no  eyewitnesses.   Conviction  is  based  on  the  circumstantial
evidence.  In such a case, complete chain of events has  to  be  established
pointing out the culpability of the accused person.   The  chain  should  be
such that no other conclusion, except the guilt of the  accused  person,  is
discernible without any doubt.  In the present case, we find, in  the  first
instance, that the appellant was roped in with suspicion that it was a  case
of triangular love and since he also loved PW-3, he eliminated the  deceased
when he found that the deceased and  PW-3  are  in  love  with  each  other.
However, we are of the view that this  motive  has  not  been  proved.   The
evidence of last seen is also not established.  Father of the deceased  only
said that the deceased had received a call and after receiving that call  he
left the house.  In his deposition, he admitted that he  had  not  seen  the
appellant before and he did not recognize his voice either.   Therefore,  he
was unable to say as to whether the phone call  received  was  that  of  the
appellant.  Proceeding further, we find that the deceased was  not  seen  by
anybody after he left the house.  When we  look  into  all  these  facts  in
entirety in the aforesaid context, we  find  that  not  only  the  chain  of
events  is  incomplete,  it  becomes  somewhat  difficult  to  convict   the
appellant only on the basis of the aforesaid recoveries.

23.   In Mani v. State of Tamil Nadu, (2009) 17 SCC  273,  this  Court  made
following pertinent observation on this very aspect:
“26.  The discovery is a weak kind of evidence and cannot be  wholly  relied
upon and conviction in such a  serious  matter  cannot  be  based  upon  the
discovery.  Once the discovery  fails,  there  would  be  literally  nothing
which would support the prosecution case....”

24.   There is a  reiteration  of  the  same  sentiment  in  Manthuri  Laxmi
Narsaiah v. State of Andhra Pradesh, (2011) 14  SCC  117  in  the  following
manner:
“6.  It is by now well settled that in a  case  relating  to  circumstantial
evidence the chain of circumstances has to be spelt out by  the  prosecution
and if even one link in the  chain  is  broken  the  accused  must  get  the
benefit thereof.  We are of the opinion that the present is in fact  a  case
of no evidence.”

25.   Likewise, in Mustkeem alias Sirajudeen v. State of  Rajasthan,  (2011)
11 SCC 724, this Court observed as under:

“24.  In a most celebrated case of this Court, Sharad Birdhichand  Sarda  v.
State of  Maharashtra,  (1984)  4  SCC  116,  in  para  153,  some  cardinal
principles regarding the appreciation of circumstantial evidence  have  been
postulated.  Whenever the case  is  based  on  circumstantial  evidence  the
following  features  are  required  to  be  complied  with.   It  would   be
beneficial to repeat the same salient  features  once  again  which  are  as
under: (SCC p.185)

“(i)  The circumstances from which the conclusion of guilt is  to  be  drawn
must or should be and not merely 'may be' fully established;

(ii)   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;

(iii)        The  circumstances  should  be  of  a  conclusive  nature   and
tendency;

(iv)  They should exclude every possible hypothesis except  the  one  to  be
proved; and

(v)   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.”

25.  With regard to Section 27 of the Act, what is  important  is  discovery
of the material object at the disclosure of the accused but such  disclosure
alone would not automatically lead to the conclusion that  the  offence  was
also committed by the accused.  In fact,  thereafter,  burden  lies  on  the
prosecution to establish a close link  between  discovery  of  the  material
object and its use in the commission of the  offence.   What  is  admissible
under Section 27 of the Act is the information leading to discovery and  not
any opinion formed on it by the prosecution.”
                                                         (emphasis supplied)
26.   It is settled position of law that suspicion however strong cannot  be
a substitute for proof.  In a case resting completely on the  circumstantial
evidence the chain of circumstances must be so complete that they lead  only
to one conclusion, that is, the guilt of the accused.  In  our  opinion,  it
is not safe to record a finding of guilt of the appellant and the  appellant
is entitled to get the benefit of doubt.  We, therefore,  allow  the  appeal
and set-aside the conviction and sentence of the appellant.   The  appellant
be set at liberty unless required in any other case.

                                                               ………………………….J.
                                                          (J. Chelameswar)



                                                              ……………………..….J.
                                                   (A.K. Sikri)
New Delhi;
September 10, 2014


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