State of Tamil Nadu  Insc 20 (8 January 2008)
Naolekar & V.S. Sirpurkar V.S. Sirpurkar, J.
This appeal challenges the judgment of the High Court whereby the conviction of
the appellant- Mani for an offence under Section 302 Indian Penal Code, 1860
read with Section 34 as also the conviction under Section 201 I.P.C. have been
confirmed by the High Court.
Originally, there were two accused persons, however, accused No.2 Moyyasamy has
been acquitted by the High Court. State has not challenged the acquittal of
accused Moyyasamy. We have to therefore consider only whether the High Court
was justified in confirming the conviction of the appellant for the offences
prosecution case was that the two accused persons had murdered one deceased Sivakumar
who had strained relationship with Accused No. 2 Moyyasamy. The relationship
was strained on account of the cattle belonging to the father of the deceased
namely P.W.1 Arunachalam having grazed in the field belonging to accused Moyyasamy.
In fact, both P.W.1 Arunachalam and accused Moyyasamy are the real brothers
while deceased Sivakumar and P.W.2 Amulnathan were the sons of Arunachalam. On
account of the cattle trespass into the field of A.2 Moyyasamy, there was a
quarrel. This trespass incident, seems to have taken place on 19.9.1996. Since
there was an altercation between accused Moyyasamy and his brother in which
accused Moyyasamy had stabbed on the neck of Arunachalam, he (Arunachalam) had
reported the matter to the police.
occurrence in question, according to the prosecution, took place about two
months thereafter on 24.11.1996. It seems that according to the prosecution,
P.W.1 Arunachalam and deceased Sivakumar were chatting with the family members
when accused no. 1- Mani came there and had a cup of coffee with P.W.1 Arunachalam
and his family. Mani is said to have taken Sivakumar to his house.
was at about 6.00 p.m.. Since Mani did not turn up till 10.00 p.m., P.W.1 went to the house of the appellant Mani and
found that blood was oozing from the house through the water passage underneath
the door frame. The house was found locked. P.W.1 Arunachalam therefore came
back and he was informed by PW.2 Amulnathan that Sivakumar was found in the
company of appellant Mani and acquitted accused Moyyasamy at about 7.00 p.m. Though P.W.1 Arunachalam was disturbed on account of
this, he did nothing and only on the next morning at 6O clock he went to
the house of the accused and found trail of blood near the house of Mani and
ultimately from that he traced out the body of the deceased which was lying
down in the nearby field belonging to one P.W.5 Chinnammal. It is then that
P.W.1 Moyyasamy rushed to Yercaud policestation and gave a complaint. The case
was registered under Section 302 I.P.C.
During investigation which was done on 25.11.1996 the house of appellant which
was locked was broken open by the police and the house was searched. Some blood
stained materials like cement flooring, human hair and blood stained brass lock
were seized by the investigating officer. It was found in the post-mortem
examination that the deceased had suffered six injuries on various parts of the
body including the neck and that he had died due to the injuries to the vital
organs and also due to the hemorrhage. The seized material was sent for the
investigating officer came to know that accused appellant had surrendered
before the Court. He, therefore, filed an application for the police custody on
28.11.1996 and ultimately obtained the same on 06.12.1996. The prosecution
further contended that on the same day on the basis of the discovery statement
made by the accused appellant, blood stained clothes of the accused namely M.Os
15-17 and blood stained Koduval namely M.O. 18 were recovered from the place
pointed out by the accused. The second accused (Moyyasamy) was arrested on
08.12.1996 and his blood stained clothes were also recovered. On the basis of
the investigation, charge sheet came to be filed.
many as 15 witnesses were examined. The accused had denied their guilt. The
Trial Court concluded that the prosecution established its case beyond
reasonable doubt and convicted both the accused of the offences as aforesaid.
During the appeal, the High Court came to the conclusion that there was no
evidence worth the name against accused no. 2 Moyyasamy. The High Court further
held that the motive attributed by the prosecution to Moyyasamy was not
established. Thus, the High Court held on the basis of the fact that the
prosecution had not placed any material to show that subsequent to 19.9.1996,
any incident took place so as to provide motive for murder of the deceased. The
High Court also held that there was no evidence led in to show that appellant Mani
and accused no. 2 Moyyasamy were the close associates and that accused Moyyasamy
had set up the present appellant to commit the murder of the deceased. Thus,
the High Court held that there was nothing to link the accused Moyyasamy with
the crime particularly because there could be no motive suggested to it. The
High Court also disbelieved the discovery made by accused Moyyasamy of the
blood stained clothes on the ground that the discovery was belated. For these
reasons, accused Moyyasamy was acquitted. However, the High Court dismissed the
appeal in so far as the present appellant is concerned.
Challenging the judgment of the High Court, learned counsel points out that
firstly there could be no motive whatsoever on the part of the appellant. Our
attention was invited to the finding that there was no thick relationship
between the two accused persons so that the present appellant could take up the
cause of the acquitted accused Moyyasamy and go to the extent of murdering the
deceased. It is further pointed out that if at all, there was any motive, it
could be on the part of the acquitted accused since it was he who had fought on
19.9.1996 with the father of the deceased and it was he who was reported
against by P.W.1 Arunachalam. Learned Counsel was at pains to point out that
the appellant had nothing to do either in the first incident of the cattle
straying into the complainants field or the subsequent altercation between
Moyyasamy and P.W.1 Arunachalam wherein P.W.1 Arunachalam was allegedly injured
by accused Moyyasamy. Learned counsel further pointed out that the theory of
last seen together if at all was to be believed, then it applied with equal
force to the second accused also. At any rate, the theory was unworkable as the
exact time of death was not established by the medical evidence. Learned
counsel argued that at any rate, this could not be a clinching circumstance
against the appellant particularly when the second accused was acquitted by the
The counsel further urged that the High Court erred in relying upon the
discovery evidence as admittedly the so called discovered articles were found
from the open ground barely 300 feet away from the body and that it was nothing
but a farce. Learned counsel pointed out that the investigating officer was
bound to know about the so called blood stained clothes (Koduval) as those
articles were lying barely within three hundred feet from the body. Lastly,
learned counsel urged that the evidence of discovery could not be held to be
sufficient and could not be relied upon to convict the appellant.
counsel also urged that the prosecution had miserably failed to establish that
the alleged house which was visited by P.W.1 Arunachalam at about 10
0clock at night actually belonged to and was possessed by the appellant.
The learned counsel also pointed out that though P.W.1 Arunachalam had found
the body at night in the field of P.W.5, Chinnamal he did not even bother to
report the matter to the police and in fact the First Information Report was hopelessly
delayed. He pointed out that this delay was also not considered by the High
against this, learned senior counsel appearing for the State supported the
prosecution and tried to point out that though this was a case of
circumstantial evidence, the prosecution has not only established each
circumstance but had also discharged its burden to show that the circumstances
pointed out only to the guilt of the appellant and also suggested that he alone
and nobody else was responsible for the murder.
have closely examined the evidence as also the original records of the matter
and we are convinced that the prosecution has not been able to establish the
guilt of the appellant beyond reasonable doubt and that the High Court as well
as the Trial Court have erred in convicting the accused. Our reasons are as follows
There can be no dispute that deceased Sivakumar had died homicidal death. The
question is whether the prosecution has been able to connect the present
appellant with the crime? The case undoubtedly depends upon circumstantial
evidence. It will be therefore our task to examine all the circumstances relied
upon by the courts below.
Though the Trial Court has discussed nine circumstances, the High Court has not
discussed are the circumstances in seriatum.
The first circumstance held by the High Court against the appellant is that the
Koduval (M.O.18) was found with sticking hair and it is proved that the scalp
hair of the deceased was found similar to the hair sticking to the Koduval and
that M.Os 15, 16 and 17 were the clothes found with strained blood. In our
opinion, this circumstance by itself is of no consequence unless those material
objects are connected with appellant.
interesting statement was made by the High Court suggesting that if the
appellant took the deceased at 6.00 p.m. on
24.11.1996 to his house where the deceased was done away with, the burden
shifted on the first accused to show how the deceased died in his house. In our
opinion, this is not the correct position of law. In order to hold this
circumstance, the High Court has recorded the finding that the house belonged
to the present appellant. The appellant had very clearly stated in his
examination under Section 313 Cr.P.C. that the house did not belong to his
father and that it was lying vacant and nobody had occupied it. In our opinion,
atleast from the evidence on record, it cannot be concluded that the house
belonged to the appellant. There is no evidence worth the name lead by the
prosecution to suggest the exclusive ownership or the possession of the house
belonged to the appellant. Both the courts have proceeded on the presumption
that the house was owned or possessed exclusively by the appellant. Much could
have been done to establish its ownership by filing the revenue record of that
such documentary evidence was collected by the prosecution.
High court has not discussed this aspect of exclusive ownership and possession
at all and has proceeded on the presumption that the house belonged to and was
possessed by the appellant herein.
The Panch witness P.W.6 Ganesan, though had referred to the said house as the
house of the appellant, has clearly admitted in his cross-examination that he
did not know as to in whose name stood the said house. It is very significant
to note that he has lastly given the admission to the effect to say that
(blood stained) that house is not Manis house and it was built by Manis
father, cannot be objected. This witness was a Village Administrative
Officer through whom the investigating officer could have easily obtained the
records of this house. Unfortunately, that was not done.
The only other evidence in this behalf is that of PW-14 Karunakaran who was one
of the Investigating Officer. He has never asserted that the concerned house
was appellants house though he, in his examination-in-chief referred to
that house as Manis house.
to admit in his cross examination that he did not interrogate any other
residents residing near Andiammals house. He also had admitted that he had
never questioned the Village Administrative Officer as to in whose name was the
said house. Though this witness commonly referred to that house as Manis
house, it is difficult to hold that the prosecution had established the
exclusive ownership and possession of that house as against the appellant.
The High Court has undoubtedly referred to the written statement filed by the
accused under Section 313 Cr.P.C. but has chosen not to discuss the matter further.
It is therefore difficult to hold that the said house where allegedly the blood
stains were found belonged to the appellant.
Same and similar is the story regarding the alleged discovery.
the witnesses namely P.W. 8 Dilip Kumar and P.W.9 Loganathan had turned
hostile. They completely disowned the prosecution case that the appellant was
examined by the Inspector and during that examination, Mani was enquired and he
gave confessional statement and that he would show the hidden clothes which he
worn at the time of the incident and also the koduval which was used at the
time of the incident. They only accepted that they had signed the said
statement. Now, when we consider the evidence regarding the discovery, a very
important circumstance was missed by both the Trial Court as well as by the
High Court about the place where the articles were found. P.W. 15 Govindan who
was the Investigating Officer in respect of this discovery deposed that the
accused Mani had made voluntary confession statement which he had recorded in
presence of the two witnesses namely P.W. 8- Dilip Kumar and Loganathan. We are
already seen that both the witnesses had completely disowned the stouts There
is no cross examination worth the name to these witnesses by the public prosecutor.
Both these witnesses were chance witnesses, they being the regular visitors to
the police station, and it appears that they were merely used by the
investigating agency. In fact, there is no explanation on how these two
witnesses reached the police station at all. P.W. 15 Govindan did assert that
he recovered one blood stained rose colour full sleeve shirt, blood stained
green coloured sweater, blood stained lungi having green, red and black stripes
and one blood stained Koduval with human hair produced by the accused at 11.30
a.m. near the sloppy rock on the way to Chinnammal Coffee Estate in Salaipara
village. Accordingly, the witness asserts that he recovered M.Os 15, 16, 17 and
18 under Exhibit P.26 Mahazar. Now, unfortunately, the High Court has missed a
very important of evidence in his cross examination where the witness very
specifically admitted that the material objects said to have been produced by
Accused No. 1 and Accused No. 2 were recovered about 300 feet away from the
dead body of Sivakumar. Now, it is nobodys case that at the time the
discovery was made by accused no. 1, accused no. 2 also made certain
the witness was not certain as to who made the discovery. This is apart from
the fact that discovery admittedly was made from 300 feet away from the dead
body of Sivakumar and after Sivakumars body was inspected by P.W.14 as
early as on 25.11.1996. It would be impossible to believe that the inspector
did not search the nearby Spots and that all the articles would remain in open
unguarded till 6th December, 1996 when the discovery had allegedly been made.
This was nothing but a farce of discovery and could never have been accepted
particularly because all the discovered articles were lying bare open barely
300 feet away from the body of the deceased Sivakumar. Even this witness had to
admit that he never enquired as to in whose name the house of Mani stand. He
claims that P.W.14 had done the same whereas P.W.14 is completely silent about
such investigation. It is, therefore, obvious this discovery could have never
been accepted by both the courts below & both the court have completely
ignored this vital admission. It need not be stated that where the discovery of
the relevant articles have been made from the open ground though under the
bush, that too after more than 10 days of the incident, such discovery would be
without any credence. It does not stand to any reasons that the concerned
investigating officer did not even bother to look hither and thither when the
dead body was found. We are, therefore, not prepared to accept such kind of
farcical discovery which has been relied by the courts below without even
taking into consideration the vital facts which we have shown above.
The discovery is a weak kind of evidence and cannot be wholly relied upon on
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. We have already held that the prosecution has failed to
prove that the house where alleged blood stains were found belonged exclusively
or was possessed exclusively by the appellant, we have further pointed out that
the discovery was absolutely farcical. There is one other very relevant factor
ignored by both the courts that the prosecution never made any attempts to
prove that the clothes belonged to the appellants. There is literally no
evidence to suggest anything to that effect. Therefore, even if we accept the
discovery, it does not take us anywhere near the crime. Both the Courts below
have ignored this very important aspect. Once these two important circumstances
are disbelieved, there is nothing which would remain to support the prosecution
theory. We also fail to understand the finding of the High Court in respect of
the motive. In our opinion, there was no motive whatsoever much less entertainable
by the present appellant. He had nothing to do with the straying cattle nor was
he a party to subsequent altercation between P.W.1 Arunachalam and the accused
No. 2 Moyyasamy. Lastly, there is nothing on record to show that he was a
henchman set up to take revenge by accused no. 2 Moyyasamy and he was set up by
the accused no. 1 to revenge.
also did not understand that if there was no motive for Moyyasamy, how could
there be any motive entertainable by the appellant. Therefore, even for that
circumstance has to go.
Even if we accept that the Koduval and the alleged clothes, i.e. the material
object nos. 15-18 had the blood stains that does not connect the appellant with
The only other circumstance left with is that Mani called Sivakumar at 6
0clock and took him away in the absence of any other clinching
circumstances, this circumstance by itself cannot lead to the only conclusion
that Mani murdered Sivakumar. Therefore, we have to ignore that circumstance.
Lastly, the Trial Court has obviously committed an error in suggesting that the
appellant was absconding and that he was surrendered before the Court on 06.12.1996.
It is mentioned in sub- para 6 of the judgment of the Trial Court of para 28.
We are afraid this is a factual mistake because it has come in he evidence of
the prosecution witnesses that the accused had surrendered before the
Magistrate much earlier to that , i.e. on the very next day or so and that it
took the investigating officer almost 10 days to obtain his custody. That has
clearly come in the evidence of P.W. 14.
are also not impressed by the evidence of P.W.1 Arunachalam who had though
found the corpse at night or atleast had realized that something unusual had
happened, did not bother to go till next day at 10 0clock for reporting
the matter. We cannot ignore the evidence of P.W.5 Chinamal in whose field the
body was found. She had specifically claimed that this fact was known to P.W. 1
Arunachalam. Having seen all the evidence and having considered both the
judgments very carefully, we are of the clear opinion that this cannot be a
case where the prosecution has proved the guilt of the accused beyond
reasonable doubts. We would therefore accept the plea of the accused raised by
the defence counsel that this is clearly a case for benefit of doubt. We would
therefore chose to grant the benefit of doubt to the accused holding that the
prosecution has not been able to prove its case beyond the reasonable doubt. We
therefore, allow the appeal. Accordingly the appeal is allowed.
Judgments and conviction are set aside.
accused be set to liberty forthwith unless required in any other case.
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