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Wednesday, November 9, 2016

whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged.- They are thus entitled to the benefit of doubt.=2016 Dec. - NATHIYA Vs. STATE TR.INSP.OF POLICE,VELLORE DIPAK MISRA, AMITAVA ROY


                     CRIMINAL APPEAL NO. 1015 OF 2010

NATHIYA                                                 …APPELLANT


                 CRIMINAL APPEAL NO. 1011 OF 2010

SURESH                                                  …APPELLANT

                       J U D G M E N T
            The appellants being aggrieved   by  the  affirmation  of  their
conviction  under Section 302 read with Section 34 IPC and the  sentence  of
life imprisonment and fine of Rs. 10000/-, in default R.I. for  further  six
months, by the High Court  by  its  verdict   dated  27.11.2008,  seek  this
Court's  panacean intervention for redress.
2.    We have heard Mr. Jayant Muthur Raja, learned counsel for

the appellant Nathiya,  in Criminal  Appeal  No.  1015  of  2010,  Mr.  P.R.
Kovilan, learned counsel for the appellant Suresh, in  Criminal  Appeal  No.
1011 of 2010 and Mr. M. Yogesh Kanna, learned counsel for the State.
3.    The prosecution  was set in motion by  the  First  Information  Report
lodged on 27.3.2006 at 2.30 a.m. by one Gunasekaran, the  cousin brother  of
the deceased Gurunathan, the husband of the appellant Nathiya  (accused  No.
1).  The appellant Suresh (accused No. 2 ) is  allegedly  the  paramour   of
accused No. 1.   It was averred in the FIR that  the  deceased  was  a  book
binder by occupation and owned  some  properties  located  in  his  village,
worth several lakhs.  He  also  had  his  own  house.    The  house  of  the
appellant Suresh was also situated nearby.  It had  been  alleged  that  the
appellant  Nathiya,  the  wife  of  the  deceased  had  developed    illicit
relationship with Suresh  which  was  not  only  to  the  knowledge  of  the
deceased but also of the informant.  The FIR discloses  that  this  depraved
liaison between the accused persons had also been brought to the  notice  of
the local panchayat and that though, it had advised the  appellants  against
the continuation of such alliance, they did  not  desist  therefrom.   Being
appalled, though the deceased at some  point  of  time,  had  shifted  to  a
rented house elsewhere  but had to return  under  financial  compulsions  to
his original place of abode.  This, according to the  FIR,  facilitated  the
continuance of the extra-marital  relationship of Nathiya with  Suresh.   It
was alleged in the FIR that in retaliation  to  the  persistent   endeavours
made by the deceased to make Nathiya mend her ways,  she  used  to   torture
him and threaten that she would eliminate him and would sell his  properties
and elope  with her paramour.  The informant claimed that  not  only  a  few
days prior to the incident, the deceased had confided him that his wife  had
tried to suffocate him to death  by  pressing  a  pillow  on  his  face,  on
26.3.2006, i.e.  on the eve of the incident as well,  he  had  disclosed  to
him about a  conspiracy between the two accused persons to  murder  him  and
grab his properties.
4.    The informant further mentioned  that  in  the  intervening  night  of
26.3.2006/27.3.2006, while he was asleep, Pushpa,  wife  of  Dinakaran,  his
neighbour informed him that the dead body of  the  deceased  had  been  seen
floating in a nearby well.   On  getting  this  information,  the  informant
rushed to the place of occurrence   and with the help  of   Pandurangam  and
Dinakaran, retrieved the body from the well.  On further enquries, he  could
come to learn that one Packiammal, at about 11 p.m., heard the  shrieks   of
the deceased followed by a loud thud from the well.  The informant  referred
 to the accused persons as the suspects.   It was incidentally mentioned  as
well that they were not available in their house  at  that  point  of  time.
This FIR was  registered  as   Bagayam  P.S.  Crime  No.  278  of  2006  and
investigation followed.
5.     Eventually  the  charge-sheet  was  submitted  against  the   accused
persons.  The case  was  committed   for  sessions  trial.   The  appellants
having denied the charge, were made  to  stand  trial  and  finally  by  the
judgment and order dated 13.11.2007 passed in  S.C.  No.  94  of  2007,  the
appellants were convicted under Section 302 read with  Section  34  IPC  and
sentenced as above. To reiterate, their conviction  and  sentence  has  been
upheld by the High Court by the judgment and order impugned herein.
6.    Before adverting to the rival submissions advanced, apt  it  would  be
to undertake  an  analysis   of  the  evidence  on  record   to  the  extent
            PW1 Gunasekaran, the informant while  substantially  reiterating
his version in the FIR stated on oath that the deceased  was  a    dwarf  in
structure  and  that  though  being   exasperated    with  the  incorrigible
conduct of his wife in indulging in  the  extra-marital   relationship  with
the Suresh, he had shifted his family to Idaiyamsathu Village,   because  of
his meager means, he  could  not  afford  to  stay  there  and  returned  to
Kollaimedu  within three  months.  The  witness  stated  that  the  deceased
inspite of his best efforts could not stop the  unwholly  alliance   between
the accused persons and  used to very often share  his  distress  with  him.
He stated that on receiving the information  about  the  dead  body  of  the
deceased in the well, he rushed to the  place  of  occurrence  and,  amongst
others,  saw that  chappals of the deceased  lying by the side of the  well.
 He owned the FIR lodged by him and  reiterated  the  suspicion   about  the
culpability of the two appellants.
            In cross-examination, he denied the defence suggestion that  the
the grand-father of the deceased had executed a will in  favour  of  him  as
well as the deceased.  He  admitted  that  the  appellant  Nathiya  and  her
daughter  were  the  only  legal  heirs  of  the  deceased   and  that    no
incriminating material was recovered   by  the  police  from  the  house  of
Nathiya.   He  admitted   as  well  to  have  not  disclosed   the   illicit
relationship between the appellants to the police.  He  admitted  too   that
the well  was  located  at  a  distance  of  2.5  feet  from  the  house  of
Packiammal and that there were other houses situated within 200  feets  from
            PW2 Rajan, who was also  a  resident  of  Idaiyamsathu  Village,
deposed that the appellant Nathiya did not  respect  the  deceased   as  her
husband,  who did not know   swimming   and  cycling.   He  stated  that  on
26/27.3.2006, while  he was sleeping, he heard that the deceased had  fallen
in the well and on reaching the spot, found his dead body  floating  in  the
well  with  his  face  downwards.  He  mentioned  too  about   the   illicit
relationship between the two  appellants  for  which  time  and  again,  the
deceased  had warned his wife Nathiya.  He also claimed  that  the  deceased
had disclosed to him about the immoral character of his wife  for  which  he
used to console him.   He  stated  as  well  that  few  days  prior  to  the
incident, the deceased had disclosed  to  him  that  Nathiya  had  tried  to
murder him by covering his face with a pillow.
            In cross-examination, however  he  conceded   that  he  had  not
disclosed to the police about the incident of  the  attempt  to  murder  the
deceased by his wife.  The witness admitted that PW1 and  the  deceased  had
equal shares in the well. He also admitted of not having  disclosed  to  the
police about the immoral relationship between the appellants.
            PW3 Packiammal stated on oath to have heard  in the  intervening
night of 26/27.3.2006, cries of someone  and then  a sound  from  the  well.
She thereafter raised alarm apprehending that some body  might  have  fallen
in the well and that  in the next morning, she  heard  that  Gurunathan  had
died.  She stated that the house of the deceased  and  that  of  the  Suresh
were near that of hers.
            PW4 Dinakaran testified that in the  night  of  the  occurrence,
Packiammal (PW3) had  raised  alarm  whereupon  he  went  to  the  place  of
occurrence and found that the deceased had fallen into the  well  whereafter
his body was taken out therefrom.   According  to  him,  though  the  police
reached  the  place  of  occurrence  some  time  thereafter,   he  was   not
interrogated.   He,  however  mentioned  about  the  presence  of  both  the
appellants  at the time when the dead body was  retrieved from the  well  at
about 11 p.m.  He stated as well that the  appellant  Nathiya  was  weeping,
sitting near the dead body.
            PW5 Dr. Anbalagan, who  performed  the  post-mortem  examination
of the dead body  on 27.3.2006 at about 6.30 p.m.   detected  the  following
extrenal injuries:
1.    Lacerated wound 2 cm x  1 cm x ½ cm. deep on the right side and back.
2.    One cut injury measuring 2 cm x 1 cm x ½ cm. deep on the rear part  of
the head.

PW5 mentioned that the occipital bone was broken measuring 3  c.m.  on  rear
part of the head and that  blood clot was also found  on  the  broken  bone.
Amongst  the  internal  injuries  detected,  he  mentioned  about   traverse
fracture of the occipital bone.  He opined  that the deceased had  died  due
to grievous head injuries, suffocation and heart failure. According to  him,
the deceased appeared  to have died because of drowning  in  the  water.  He
admitted  that if a person becomes  unconscious out of suffocation  and   is
thrown into a well, he is  likely to die of the above injuries.
              In cross-examination, he however opined  as  well  that  if  a
person falls from a very high height, he is likely to  sustain  injuries  on
the rear part of the head.
             PW9  Kamalakannan,  Village  Administrative  Officer,  at   the
relevant  time,  testified  that  on  27.3.2006,  both  the  appellants  had
appeared  at  his  office  and  had  voluntarily  confessed  that  they  had
smothered  the deceased and that thereafter  had  pushed  him  down  in  the
well.   This  witness  stated  that  the  confessional  statements  of   the
appellants  were  recorded  by  him  in  the  presence  of   Kothandan,  his
assistant  and  Palavansathukuppam   Gunasekaran,   Village   Administrative
Officer, Virupatchipuram Village  and that  thereafter he  had  handed  over
the accused persons  with the confessional statements  to  the  police.   He
denied the suggestion that the accused persons had not appeared  before  him
at his office or had not made any  confessional statement.
            PW10 Kothandan, who  at  the  relevant  time,  was  the  Village
Assistant at Palavansathu Village, deposed  that  on  27.3.2006,  while  he,
Kamalakannan,  Village   Administrative   Officer   and   Palavansathukuppam
Gunasekaran, Village Administrative Officer, Virupatchipuram   were  present
in their office, the appellants appeared there and  voluntarily  gave  their
confessional statements admitting to have killed  the  deceased  and  thrown
him in the well.  The witness affirmed  as well that their  statements  were
recorded by PW9 Kamalakannan, whereafter they had  taken the  appellants  to
the police station  following which they were arrested. He also stated  that
the confessional statements were handed over to the  police.   According  to
this witness,  appellant Nathiya also produced the saree gifted  to  her  by
Suresh and the  witness  identified  the  said  article  as  MO1.   He  also
referred to a photograph of the appellants produced  by  Suresh  before  the
police and exhibited the same as MO2.
             In cross-examination, this witness admitted to have signed  the
voluntary statement along with PW9 Kamalakannan. He  however  admitted  that
he did not disclose about the confessional statements to anybody. He  denied
the suggestion that neither the appellants had appeared  at  the  office  of
the Village Administrative Officer nor had made any confessional statement.
            PW11 Kumar Devikan, the Investigating Officer,  amongst  others,
admitted that on 27.3.2006 at about 2 p.m.,  the  appellants  were  produced
before him at the police station by the Village  Administrative  Officer  of
Palavansathu and Virupatchipuram along with their  confessional  statements.

7.    The learned  counsel   for  the  appellants  have  argued   that   the
circumstantial evidence adduced by the prosecution, in absence  of  any  eye
witness to the incident, is extremely shaky, incomplete  and  incoherent  so
as to warrant conviction of the appellants and  they are  thus  entitled  in
law to be exonerated from  the  charge  of  murder  levelled  against  them.
While  repudiating the  alleged  disclosures   by  the  deceased  about  the
infidel  character of his wife to PW1 and PW2, as  reproduced  by  them,  to
be hearsay evidence  and thus of no significance, it  has  been  urged  that
the  prosecution  case  stands  discredited  as  well  on  the   ground   of
suppression of   the  alleged  confessional  statement   of  the  appellants
recorded  by the Village Administrative Officer.  Apart from the  fact  that
the deceased was not seen in the  company  of  the  appellants   immediately
prior to the  incident   and  that  thus  the  “last  seen  theory”  is  not
applicable to the facts of the case,  they  have  urged  that   the  medical
evidence as well  does not conclusively   prove   that   the  death  of  the
deceased was  homicidal and not suicidal.  Dismissing the recovery of  saree
 and the photograph of the appellants to be wholly inconsequential   in  the
face of  want of any  credible evidence to establish the complicity  of  the
appellants with the  crime,  it  has  been  insistently  argued   that   the
possibility of PW1, the  cousin  brother  of  the  deceased,  who  had  been
interested in this property, falsely  implicating the appellant  Nathiya  in
particular for illegal gain,  cannot be  wholly  ruled  out.    The  learned
counsel  have maintained in unison that even assuming  that  the  imputation
of illicit relationship between the appellants  had been  proved,  the  same
per se,  even if  at  the  best  is  a  suspicious  circumstance,  does  not
establish beyond reasonable doubt  the culpability of the  appellants.    In
the prevalent facts and circumstances,  the  possibility  of   the  deceased
committing suicide  cannot be excluded and that on that count as  well,  the
appellants are entitled to the benefit of doubt .
            As against this, the learned  counsel  for  the  respondent  has
argued  that  the   evidence  adduced  on  behalf  of  the  prosecution   is
adequately cogent, persuasive and  clinching   and  thus   in  the  face  of
concurrent findings of the guilt of the appellants, this  Court   would  not
upturn the same.  According to him,   the   factum  of   sustained   illicit
relationship between the appellants has been proved  beyond  doubt  and   in
the face of the revelation made by the deceased about the previous  attempts
to eliminate him,  the charge  against the appellants  stands proved on  the
basis of the materials on record.   Referring to the medical  evidence,  the
learned counsel  has  argued  that  it  is  apparent  therefrom   that   the
deceased was  first smothered and then thrown into a well in an  unconscious
state whereupon he died due to the head injuries  sustained.   According  to
the learned counsel, the omission on the part of the prosecution to  produce
the  recorded  confessional  statements  of  the  appellants    is    wholly
insignificant in the face of  the sworn testimony of  PW9  and PW10 to  that
8.      The competing arguments and the materials on  record  have  received
our due scrutiny.  It is  patent  in the present factual setting that  there
is no eye witness to the occurrence and that the prosecution case  is  based
wholly on circumstantial evidence.  The genesis  of  the  suspicion  against
the appellants, being their amorous association to the anguish disliking  of
the deceased, he being  almost reduced to a helpless entity,  having  failed
to prevent such liaison  inspite of his best endeavours.   There  is  indeed
some evidence suggestive of such an alliance between the appellants  at  the
relevant point of time.   This,  per  se,  in  our  comprehension,  however,
cannot be accepted as a  decisive  incriminating  factor  to  deduce   their
culpability qua the charge of murder of the deceased Gurunathan.
      9.    The place of  occurrence is a well, away from the  residence  of
the  deceased  for  which  any   definitive  presumption  against  his  wife
Nathiya, as a conspirator of the crime,  cannot be drawn  without  the  risk
of  going wrong to cast  a burden on her, as  contemplated    under  Section
106 of the Evidence Act.
             The    closest  circumstance  bearing   on  the  incident   is,
discernible from  the testimony of PW3 Packiammal who stated to  have  heard
the shrieks  of the deceased, followed by a loud sound of    a  fall  inside
the well.  There is no evidence that immediately thereafter, the  appellants
were seen in the vicinity of the  well.  Noticeably,  the  chappals  of  the
deceased were  found  by  the  side  of  the  well.   The  evidence  of  PW4
Dinakaran is,  however,  to  the  effect  that   when  the  dead  body   was
recovered  thereafter from the well, both the appellants  were  present  and
Nathiya, the wife of the deceased, was seen weeping by his side.
            The medical evidence  does not  refer  to  any  external  injury
indicative of  use of any external force on the deceased, resulting  in  his
ante-mortem  suffocation  and  loss  of  consciousness,  to  be   thereafter
dispatched into the well. The possibility  that  the  cause  of  death  i.e.
grievous  head  injury,  suffocation  and  heart  failure  were  post   fall
manifestations, also cannot be ruled out as the medical evidence admits   of
such an eventuality as well.
             The inexplicable omission on the part  of  the  prosecution  to
produce  and  prove  the  alleged  confessional  statements  made   by   the
appellants  and  reduced  into  writing  by  PW9  and  witnessed   by   PW10
substantially denudes  its case  of necessary credence to incriminate  them.
 The oral testimony of these witnesses to the effect that such  confessional
statements had been recorded, ipso facto is of  no  consequence.   Not  only
the contention that the  supposed disclosure by the deceased to PWs 1 and  2
about the immoral conduct of the appellants is discardable being hearsay  in
nature, deserves  some reflection, it is noticeable  that PW2, in his cross-
examination, did admit that he had  not  divulged  the  above  fact  to  the
police. PW10, as well, did concede  that he  had  not  revealed  to  anybody
about  the  confessional  statements  made  by  the  accused  persons.   The
recovery of a saree  produced by Nathiya said to have been  gifted   to  her
by  Suresh  and  their  joint   photograph,  in  the  attendant  facts   and
circumstances and in the face of the other evidence  on  record,   does  not
clinch the issue in favour of the prosecution.
10.   The defence proposition that PW1  being  the  cousin  brother  of  the
deceased  had  framed the  appellants  so  as  to  wrest   his  property  in
absence of his legal heirs in the above  factual  premise,  also  cannot  be
lost sight of.  The  imputation  of  sustained  unchaste   conduct  and  the
activities of the wife, if true, the possibility of the deceased  committing
 suicide as an extreme step in  a unbearable  anguished state of  mind  also
cannot be wholly excluded.
11.   On an  analysis   of  the  overall  fact  situation,  we  are  of  the
considered opinion  that the  chain of circumstantial  evidence relied  upon
by the prosecution to prove the charge is visibly incomplete and  incoherent
to permit  conviction of the appellants on the  basis  thereof  without  any
trace of doubt.  Though the  materials  on  record  do  raise  a  needle  of
suspicion towards them, the prosecution has failed  to   elevate   its  case
from the realm  of “may be true” to  the plane of  “must  be  true”  as   is
indispensably required in law for conviction on a criminal  charge.   It  is
trite  to state that  in  a  criminal  trial,  suspicion,  howsoever  grave,
cannot substitute proof.
12.   The  classic enunciation  of  the  law  pertaining  to  circumstantial
evidence, its relevance  and  decisiveness,  as  a  proof  of  charge  of  a
criminal offence, is amongst others  traceable  to  the   decision  of  this
Court in Sharad Birdhichand Sarda vs. State  of  Maharashtra  (1984)  4  SCC
116.   The  relevant   excerpts   from
paragraph 153 of the decision  is assuredly apposite:
“153.(2) The facts  so established   should  be  consistent  only  with  the
hypothesis of the guilt  of the accused...they  should  not  be  explainable
on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

            *                  *                    *
(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.”

            As recently as in Sujit Biswas vs. State of Assam (2013) 12  SCC
406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43, it  has  been
propounded that in scrutinizing  the circumstantial  evidence,  a  court  is
required  to evaluate it  to ensure that the chain of events is  established
clearly and completely to rule out any  reasonable likelihood  of  innocence
of the accused.  It was underlined that  whether the chain  is  complete  or
not  would depend on the facts of each case emanating from the evidence  and
no universal yardstick  should  ever  be  attempted.  That  in  judging  the
culpability of the accused,  the  circumstances  adduced  when  collectively
considered, must lead only to the irresistible conclusion that  the  accused
alone is  the perpetrator of  the  crime  alleged.  That  the  circumstances
established must be  of   a  conclusive  nature  consistent  only  with  the
hypothesis  of the guilt of the accused, was emphatically propounded.
13.   Tested  on the touchstone of the above judicially    laid  parameters,
defining   the  quality   and  content  of  the   circumstantial   evidence,
essential to bring home the  guilt  of  an  accused  person  on  a  criminal
charge, we are of the unhesitant  opinion that the prosecution, in the  case
in hand, has failed to meet  the same. The  materials  on  record  admit  of
substantial doubt vis-a-vis  the  complicity   of  the   appellants  in  the
14.   Having regard to the  evidence adduced, it would be wholly  unsafe  to
sustain their conviction.  They are thus entitled to the benefit  of  doubt.
The appeals thus succeed  and are  allowed.  The  bail  bonds  of  appellant
Nathiya, who is on bail, stands discharged.  Appellant  Suresh  be  released
from the jail immediately, if not required in any other case.

                                   (DIPAK MISRA)

                                  (AMITAVA ROY)
NOVEMBER 8, 2016.

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