Circumstantial Evidence

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
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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.
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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
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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;
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(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
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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.
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11. There cannot be any second opinion that this Court in
exercise of its jurisdiction under Article 136 does not reappreciate
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
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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.
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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
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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
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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 crossexamination
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 socalled
recoveries, there is no other circumstances worth the
name which has been proved against the appellant.
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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
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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.”
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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.”
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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)
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New Delhi;
September 10, 2014