Manivel & Ors. Vs.
State of Tamil Nadu [2008] INSC 1333 (8 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 473 OF 2001
Manivel & Ors. ...Appellants Versus State of Tamil Nadu ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the correctness of the judgment rendered by a Division
Bench of the Madras High Court upholding the conviction of the appellants for
offence punishable under Section 302 of the Indian Penal Code, 1860 (in short
the `IPC') and sentence of imprisonment for life as awarded by learned Sessions
Judge, Trichi.
2.
Prosecution
version as unfolded during trial was as follows:
Allegation was that
between 10 P.M. on 10.8.1989 and 4 A.M. on 11.8.1999, the appellants murdered
one Mugamuni (hereinafter referred to as the `deceased') by strangling him to
death and threw the dead body into a well to screen themselves from the
offence. The appellants hereinafter referred to as A1 to A5 for the sake of
convenience.
The deceased is the
son of PW 4. PW 5 is the younger sister of the deceased and PW 8 is the
paternal uncle of PW 4. PW 11 is the cousin of the deceased. PWs. 3 & 10
are also related to the deceased. P.W.2 is the brother of P.W.12. A.2 and A.3
are cousins and A.4 is the son of maternal aunt of A.2 and A.3. A.1 is related
to A.5. The witnesses, the deceased Magamuni and accused 1 to 5 were residing
at Mathagiri village.
2 The deceased
married one Nallangal about four months prior to the date of incident. Said Nallangal
was in illicit relationship with A.1 and continued to have the said
relationship with A.1 even after the marriage. A.1 questioned the deceased as
to why he has married Nallangal and he was also beaten by A.1. The other
accused also quarrelled with the deceased for marrying Nallangal. This is said
to be the motive for the incident which took place.
When P.W.4 was at the
shandy along with his son, Magamuni, the deceased in the case and his daughter
P.W.5, accused 1 to 4 went there and asked deceased to accompany them. P.W.4
questioned them as to why they are taking the deceased. The accused told him
that they wanted to go for hunting. The deceased in the company of A.1 to A.4
was seen by P.Ws. 4 and 5 at 6 p.m. At about 10 p.m., when PW.7 alighted at Gorimedu
from a bus, saw A.1 to A.5 and the deceased proceeding towards south from north
and an electric lamp was burning at that place. P.W.7 questioned them as to
where they were going, for which A.1 to A.5 replied that they were going for
hunting and they were in possession of sticks.
The deceased was not
seen alive thereafter. At about 4 a.m. on 11.6.1989, P.W.8 was at the bus stop
for boarding a bus and he saw A.1 to A.5 coming towards north. When he
questioned them, they told him that they are returning after hunting.
PW.2, a resident of
Gorimedu went to a well in the village to drink water and to his utter dismay
found a body of a male floating in the well. Immediately, he went to the house
of his elder brother and informed him who advised him to lay a complaint with
the village Administrative Officer. PW.2 went to the house of PW 1 the village
Administrative officer, Mathagril village and gave a statement which was
reduced into writing which stands marked as Ex.P.1 in the case. P.W.1 prepared
Ex.P.2, his report and handed over the same to his servant with a direction to
hand over both the documents at the police station. Exs. P.1 and P.2 were
handed over to P.W.16, the writer of Balaviduthi Police Station, who registered
a case in crime No. 193 of 1989 under Section 174 of the Code of Criminal
Procedure, 1973 (in short `Cr.P.C.') by preparing express reports. Ex.P.2 is
the copy of the printed First Information Report. The investigation was taken
up by PW.18, the Sub Inspector of Police. On taking up the investigation, PW.18
reached the scene of occurrence and prepared an observation mahazar Ex. P.3. He
drew a rough sketch Ex.
P.25. The body was
taken out of the well and in the presence of panchayatdars, he conducted
inquest and during the inquest he questioned and recorded the statements of
P.Ws. 1, 2, 4, 5 and 12. From the statements, he realised that it is not a case
of suspicious death, but it is a case of murder and therefore, altered the
crime from one under Section 174 Cr. P.C. to Sections 302 and 201 IPC by
sending his express reports, Ex.P.27. After the inquest, the body was handed
over to the Inspector of Police, with a requisition to conduct autopsy.
3.
After
the investigation was completed charge sheet was filed, the accused persons
abjured guilt and therefore, they were put on trial.
4.
The
trial court placed reliance on the evidence of PWs 4, 5, 7 & 9 to hold the
accused appellant guilty.
5.
In
appeal the primary stand was that the concept of last seen theory cannot be
applied in the present case. The High Court found that the evidence of PWs 4,
5, 7 & 8 clearly established the accusations and therefore, found no
infirmity in the judgment of the trial Court.
6.
The
primary stand for learned counsel for the appellant in this appeal was that
since accused persons were inimically deposed towards the deceased, it is
highly improbable that he would have gone out in their company.
7.
Learned
counsel for the respondent-State on the other hand submitted that though PWs 4
& 5 were relatives of the deceased yet PW 7 is independent witness who saw
the deceased in the company of the accused persons on 10.8.1989 in the evening
and early next morning his dead body was found in the water of a well. There is
no reason why they would falsely implicate the accused.
8.
It
has been consistently laid down by this Court that where a case rests squarely
on circumstantial evidence, the inference of guilt can be justified only when
all the incriminating facts and circumstances are found to be incompatible with
the innocence of the accused or the guilt of any other person. (See Hukam Singh
v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad
(AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State
of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of
Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC
1890). The circumstances from which an inference as to the guilt of the accused
is drawn have to be proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred from those
circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid
down that where the case depends upon the conclusion drawn from circumstances
the cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring the offences home beyond any reasonable
doubt.
9.
We
may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based
on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover, all the circumstances
should be complete and there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent only with the hypothesis of
the guilt of the accused and totally inconsistent with his innocence....".
10.
In
Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down
that when a case rests upon circumstantial evidence, such evidence must satisfy
the following tests:
8 "(1) the
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
(2) those
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
(3) the
circumstances, taken cumulatively should form a chain so complete that there is
no escape from the conclusion that within all human probability the crime was
committed by the accused and none else; and (4) the circumstantial evidence in
order to sustain conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence.
11.
In
State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out
that great care must be taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the
hypothesis of guilt.
12.
Sir
Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other reasonable hypothesis than
that of his guilt, (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted".
13.
There
is no doubt that conviction can be based solely on circumstantial evidence but
it should be tested by the touch- stone of law relating to circumstantial
evidence laid down by the this Court as far back as in 1952.
14.
In
Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"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 be 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 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."
15.
A
reference may be made to a later decision in Sharad Birdhichand Sarda v. State
of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that onus was on the prosecution to prove that the
chain is complete and the infirmity of lacuna in prosecution cannot be cured by
false defence or plea. The conditions precedent in the words of this Court,
before conviction could be based on circumstantial evidence, must be fully
established. They 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 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.
16.
These
aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180),
State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and Kusuma Ankama
Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)
17.
So
far as the last seen aspect is concerned it is necessary to take note of two
decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was
noted as follows:
"22. The last
seen theory comes into play where the time-gap between the point of time when
the accused and the deceased were seen last alive and when the deceased is found
dead is so small that possibility of any person other than the accused being
the author of the crime becomes impossible. It would be difficult in some cases
to positively establish that the deceased was last seen with the accused when
there is a long gap and possibility of other persons coming in between exists.
In the absence of any other positive evidence to conclude that the accused and
the deceased were last seen together, it would be hazardous to come to a
conclusion of guilt in those cases.
In this case there is
positive evidence that the deceased and the accused were seen together 13 by
witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
18.
In
Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted
as follows:
"27. The
last-seen theory, furthermore, comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any person other than
the accused being the author of the crime becomes impossible. Even in such a
case the courts should look for some corroboration".
(See also Bodh Raj v.
State of J&K (2002(8) SCC 45).)"
19.
A
similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC
438] and Kusuma Ankama Rao's case (supra).
20.
When
the background facts are considered in the light of evidence on record, it is
clear that the trial court and the High Court were justified in holding the
appellants guilty. The appeal is therefore without any merit, deserves
dismissal, which we direct.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
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