Sampath Kumar Vs. Inspector
of Police, Krishnagiri
No.1950 of 2009]
[CRL. Appeal No.
66/2010 and CRL. Appeal No.1205/2010]
J U D G M E N T
T.S. THAKUR, J.
appeals by special leave call in question the correctness of an order dated
30th April 2009 passed by the High Court of Madras, whereby Criminal Appeal No.
1008 of 2007 filed by the appellants against their conviction under Section 302
read with Section 34 IPC has been dismissed and the sentence of imprisonment
for life awarded to them by the trial Court upheld.
stated, the prosecution case is as under: The appellants, namely, Shanmugam, Velu
and Sampath Kumar were close friends of the deceased-Senthil Kumar and Palani
(PW7). Appellant-Velu has a younger sister, named, Usha who, according to the prosecution
story, had fallen in love with the deceased-Senthil Kumar and wanted to marry him.
Appellant-Velu did not
approve of the said relationship and had asked appellant-Shanmugan to convey to
the deceased-Senthil Kumar to keep off Usha or else he would break his hands and
legs. In July 2002, appellant-Velu appears to have come on leave from his army
services and during this period he and his mother-Balammal are said to have
informed Murugambal (PW2)- mother of the deceased, sister-Lakshmi (PW3) and her
husband-Selvam (PW1) that they had decided to give Usha in marriage to the deceased-Senthil
Further discussion regarding
the marriage was, however, deferred till the passing of the Tamil month Adi,
considered inauspicious for finalisation of matrimonial alliance. On 27th July,
2002 i.e. two days after the marriage proposal was made, Ramesh (PW9) was employed
to paint the house of Lakshmi (PW3) when he saw the deceased-Senthil Kumar and
Usha embracing one another in one of the rooms of the house. According to Ramesh
(PW9), even the appellant-Shanmugam saw Usha and Senthil Kumar in a romantic
was also, according to the prosecution, one of the suitors of Usha and had a one-sided
affection for her. On the following day, i.e. 28th July, 2002 PWs. 1 to 3,
their neighbour and the appellant-Shanmugam went to a theatre to see a movie
and retuned home around 9.30 p.m. While Selvam (PW1), Murugambal (PW2) and
Lakshmi (PW3) retired to bed inside the house after dinner, the deceased-Senthil
Kumar and Palani (PW7) slept as usual in the verandah of the house. The
appellant-Shanmugam also used to sleep with them but for some reason he did not
turn up to do so on that day.
At about 2.45 a.m. on
the night intervening 28th and 29th July, 2002, Palani (PW7) heard the sound of
a stone being thrown. He woke up to see the appellant-Shanmugam standing near the
head of the deceased and the remaining two appellants also standing close by.
The prosecution case is that Palani (PW7) was threatened by the appellants not to
disclose to anyone regarding anything for otherwise they would kill him also.
At this, Palani (PW7) shouted and ran to hide himself on the rear side of the house.
In the meantime, PWs 1 to 3 who were sleeping inside the house also awoke upon
hearing the noise and started shouting for help.
This woke up their
neighbour (PW8) in the opposite house who went over to the house and opened the
door to help them come out. PWs 1 and 8 then went to the rear side of the house
to find the appellant-Shanmugam lying beside a plantain tree with his hands tied
with a cloth. It was also noticed on removing the blanket covering the deceased
that someone had smashed his head with a stone which was lying at his side.
When the appellant-Shanmugam was asked as to who had beaten him and thrown him
behind the house, he stated that it was some stranger who had done so. Senthil was
rushed to the hospital but died en-route. Selvam (PW1) went to the police station
and lodged an oral complaint. The police registered a case under Sections 302
and 324 IPC.
completion of the investigation the police filed a charge-sheet against the
appellants accusing them of committing the murder of Senthil Kumar. The appellants
were then committed to the Sessions Judge, where they pleaded not guilty and
claimed trial. At the trial the prosecution examined as many as 18 witnesses to
prove its case. The Sessions Judge eventually came to the conclusion that the
prosecution had proved its case beyond a reasonable doubt and accordingly convicted
the appellants for the murder of the deceased-Senthil Kumar and sentenced them to
undergo imprisonment for life under Section 302 read with Section 34 IPC.
They were also
sentenced to pay a fine of Rs.2,000/- each and in default of payment of fine, to
undergo further rigorous imprisonment for two years. The Sessions Judge based his
conviction primarily on the strong motive which appellants Shanmugam and Velu had
to do away with the deceased due to his love affair with Usha. The Sessions Judge
relied heavily upon the deposition of Palani (PW7) and the letter Exh. P-22
allegedly written by appellant-Shanmugam to the mother of the deceased,
Murugambal (PW2) accusing appellant-Velu to be the person responsible for the
death of the deceased.
by their conviction and sentence imposed upon them, the accused person preferred
Criminal Appeal No.1008/2007 before the High Court of Madras which appeal has been
dismissed thereby confirming the conviction and sentence recorded by the trial Court.
The High Court held that while the deposition of Palani (PW7) was reliable,
letter Exh. P-22 allegedly written by the appellant-Shanmugam to the mother of the
deceased, Murugambal (PW2) was not. The confessional statement was held to be inadmissible
having been produced after the statement of the accused persons had been recorded
under Section 313 Cr.P.C. Independent of the said document, the High Court felt
that the evidence on record formed a complete chain of circumstances that
unerringly pointed to the guilt of the appellants. The present appeals assail
the correctness of the said judgment as noticed above.
K. Kanagaraj, learned senior counsel for the appellant strenuously argued that
the trial Court as also the High Court had fallen in error in holding that the charge
against the appellants had been proved beyond a reasonable doubt. He urged that
the entire case was based on circumstantial evidence and that the courts below had
failed to keep in view the legal requirements attracted to cases that are based
on circumstantial evidence. He further argued that the deposition of Palani (PW7)
was not reliable for reasons more than one and the trial Court as also the High
Court had committed an error in ignoring those reasons. The fact that there was
a motive, assuming that any such motive had been established in the present
case, was also not sufficient by itself to justify the conclusion that the appellants
were responsible for the murder of the deceased.
legal position regarding the standard of proof and the test which the
circumstantial evidence must satisfy is well-settled by a long line of decisions
of this Court. It is unnecessary to burden this judgment by making reference to
all such decisions. We are content with reference to some of those decisions. In
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, this Court laid
down the following five tests to be satisfied in a case based on circumstantial
circumstances from which the conclusion of guilt is to be drawn should be fully
b. 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.
c. The circumstances should
be of a conclusive nature and tendency.
d. They should exclude
every possible hypothesis except the one to be proved, and
e. 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."
decision of this Court in Aftab Ahmad Ansari v. State of Uttaranchal (2010) 2
SCC 583 is a timely reminder of the abovementioned requirements in the
following words: "In cases where 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. Each fact must be proved individually and
only thereafter the court should consider the total cumulative effect of all the
proved facts, each one of which reinforces the conclusion of the guilt. If the combined
effect of all the facts taken together is conclusive in establishing the guilt of
the accused, the conviction would be justified even though it may be that one or
more of these facts, by itself/themselves, is/are not decisive. The circumstances
proved should be such as to exclude every hypothesis except the one sought to
be proved. But this does not mean that before the prosecution case succeeds in a
case of circumstantial evidence alone, it must exclude each and every
hypothesis suggested by the accused, howsoever extravagant and fanciful it
to the facts of the present case, the prosecution relies entirely upon the deposition
of PWs. 1, 2, 3 and 7. Of these depositions PWs. 1, 2 and 3 are not admittedly eye-witnesses
to the occurrence, nor have they stated anything against the appellants except
that the deceased was fond of Usha and wanted to marry her which was not to the
liking of her brother-Velu, the appellant before us. It is only the deposition
of Palani (PW7) that holds the key to whether the appellants are guilty or innocent.
According to this witness
who was sleeping with the deceased in the verandah of the house of PWs 1 to 3,
at about 2.45 a.m. at night he heard a sound that woke him up. He also noticed the
appellants standing near the deceased. According to the witness, the appellants
threatened him not to disclose anything to anyone otherwise he would meet the
same fate. The witness, however, made no disclosure to PWs. 1, 2 and 3 who were
inside the house, even when they had been woken up because of the sound and
wanted to come out but could not because the door was bolted from outside. He made
no disclosure of what he had seen even after the police had arrived at the
scene after the registration of the case.
In his statement before
the police under Section 161 Cr.P.C., Palani (PW7) made no such accusations
against the appellants nor did he disclose to anyone that he had seen the
accused persons on the spot around the time of the commission of the offence.
It was only five years after the occurrence that the witness for the first time
disclosed in the Court the story about his having seen the appellants standing
near the deceased when the former woke up on account of the noise of a stone
falling hard on the ground.
The witness did not
offer any explanation, much less a cogent and acceptable one for his silence
for such a long period. His assertion that he was scared by the appellants even
after they had been taken into custody by the police and, therefore, did not reveal
anything about the actual events till he had the courage to come to the Court to
make a statement, is hard to believe. At any rate, reliance upon the deposition
of a witness who has made such a material improvement in his version is wholly
unsafe unless it is corroborated by some other independent evidence that may probabilize
Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra (AIR 2000 SC
3352), this Court held that while discrepancies in the testimony of a witness
which may be caused by memory lapses were acceptable, contradictions in the testimony
were not. This Court observed: "Only such omissions which amount to contradiction
in material particulars can be used to discredit the testimony of the witness. The
omission in the police statement by itself would not necessarily render the testimony
of witness unreliable. When the version given by the witness in the Court is different
in material particulars from that disclosed in his earlier statements, the case
of the prosecution become doubtful and not otherwise. Minor contradictions are
bound to appear in the statements of truthful witnesses as memory sometimes plays
false and the sense of observation differ from person to person."
difference between discrepancies and contradictions was explained by this Court
in State of Himachal Pradesh v. Lekh Raj and Anr. (AIR 1999 SC 3916). Reference
may also be made to the decision of this Court in State of Haryana v. Gurdial Singh
& Pargat Singh (AIR 1974 SC 1871), where the prosecution witness had come out
with two inconsistent versions of the occurrence. One of these versions was given
in the Court while the other was contained in the statement made before the Police.
This Court held that these are contradictory versions on which the conclusion of
fact could not be safely based. This Court observed:
"The present is
a case wherein the prosecution witnesses have come out with two inconsistent versions
of the occurrence. One version of the occurrence is contained in the evidence
of the witnesses in court, while the other version is contained in their statements
made before the police...In view of these contradictory versions, the High
Court, in our opinion, rightly came to the conclusion that the conviction of the
accused could not be sustained."
may also be made to the decision of this Court in Kehar Singh and Ors. v. State
(Delhi Administration) AIR 1988 SC 1883. This Court held that if the
discrepancies between the first version and the evidence in Court were
material, it was safer to err in acquitting than in convicting the accused.
the present case the statement made by Palani (PW7) is in complete contrast
with the statement made by him before the Police where the witness stated nothing
about having seen the appellants standing near the deceased around the time of
the incident. This omission is of very vital character. What affects the
credibility of the witness is that he did not in his version to the police come
out with what according him is the truth, but withheld it for a period of five years
till he was examined as a prosecution witness in the Court.
This Court in
Vadivelu Thevar v. The State of Madras (AIR 1957 SC 614) classified witnesses
into three categories, namely, (i) those that are wholly reliable, (ii) those that
are wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable.
In the case of the first category the Courts have no difficulty in coming to the
conclusion either way. It can convict or acquit the accused on the deposition
of a single witness if it is found to be fully reliable.
In the second category
also there is no difficulty in arriving at an appropriate conclusion for there is
no question of placing any reliance upon the deposition of a wholly unreliable
witness. It is only in the case of witnesses who are neither wholly reliable
nor wholly unreliable that the Courts have to be circumspect and have to look
for corroboration in material particulars by reliable testimony direct or
the same effect is the decision of this Court in Lallu Manjhi v. State of
Jharkhand, (AIR 2003 SC 854) where this Court felt that the testimony of the
witness Mannu (PW9) could neither be totally discarded nor implicitly accepted.
Mannu was a witness who could have been naturally present with his brother while
ploughing the field. However, his testimony was found to have been improved
substantially at the trial. He was considered neither wholly reliable nor
the present case the testimony cannot be wholly reliable or wholly unreliable. He
is not a chance witness who had no reason to be found near the deceased at the time
of the occurrence. There is evidence to show that Palani (PW7) used to sleep with
the deceased-Senthil in the verandah of the house.
What makes it suspect
is that the witness has, despite being a natural witness, made a substantial improvement
in the version without their being any acceptable explanation for his silence
in regard to the fact and matters which was in his knowledge and which would
make all the difference in the case. The Court would, therefore, look for independent
corroboration to his version, which corroboration is not forthcoming. All that is
brought on record by the prosecution is the presence of a strong motive but that
by itself is not enough to support a conviction especially in a case where the sentence
can be capital punishment.
In N.J. Suraj v. State
represented by Inspector of Police (2004) 11 SCC 346, the prosecution case was based
entirely upon circumstantial evidence and a motive. Having discussed the circumstances
relied upon by the prosecution, this Court rejected motive which was the only
remaining circumstance relied upon by the prosecution stating that the presence
of a motive was not enough for supporting a conviction, for it is well-settled
that the chain of circumstances should be such as to lead to an irresistible conclusion,
that is incompatible with the innocence of the accused.
To the same effect is
the decision of this Court in Santosh Kumar Singh v. State through CBI. (2010)
9 SCC 747 and Rukia Begum v. State of Karnataka AIR 2011 SC 1585 where this
Court held that motive alone in the absence of any other circumstantial evidence
would not be sufficient to convict the appellant. Reference may also be made to
the decision of this Court in Sunil Rai @ Paua and Ors. v. Union Territory, Chandigarh
(AIR 2011 SC 2545). This Court explained the legal position as follows: "In
any event, motive alone can hardly be a ground for conviction. On the materials
on record, there may be some suspicion against the accused but as is often said
suspicion, howsoever, strong cannot take the place of proof."
it to say although, according to the appellants the question of the appellant-Velu
having the motive to harm the deceased-Senthil for falling in love with his
sister, Usha did not survive once the family had decided to offer Usha in
matrimony to the deceased-Senthil. Yet even assuming that the appellant-Velu
had not reconciled to the idea of Usha getting married to the deceased-Senthil,
all that can be said was that the appellant-Velu had a motive for physically
harming the deceased. That may be an important circumstance in a case based on circumstantial
evidence but cannot take the place of conclusive proof that the person
concerned was the author of the crime. One could even say that the presence of
motive in the facts and circumstances of the case creates a strong suspicion against
the appellant but suspicion, howsoever strong, also cannot be a substitute for
proof of the guilt of the accused beyond a reasonable doubt.
the totality of the circumstances, we are of the view that the prosecution has not
proved its case against the appellants who are, in our opinion, entitled to acquittal
giving them the benefit of doubt. In the result, these appeals succeed and are hereby
allowed. The appellants shall stand acquitted of the charges framed against them
giving them the benefit of doubt.
(GYAN SUDHA MISRA)