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CASE NO.: Appeal (crl.)  841 of 2008

PETITIONER: Krishnan

RESPONDENT: State represented by Inspector of Police

DATE OF JUDGMENT: 08/05/2008

BENCH: S. B. Sinha & Lokeshwar Singh Panta

JUDGMENT: JUDGMENT

                                                           1                                                    REPORTABLE

            IN THE SUPREME COURT OF INDIA

           CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL No. 841                 OF 2008         [Arising out of S.L.P. (Crl.) No.5799 of 2007]

Krishnan                                            .....

Appellant

                            Versus

State represented by Inspector of Police   .....    Respondent

                      JUDGMENT

Lokeshwar Singh Panta, J.

1.   Leave granted.

2.   Krishnan has filed this appeal against the judgment and

order dated 07.02.2006 passed by the Division Bench of the

Madurai Bench of the High Court of Madras in Criminal

Appeal No. 826/1996, confirming the conviction and sentence

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                                                            2 for life in respect of the offence committed under Section 302

read with Section 34 of the Indian Penal Code [for short "the

IPC"] in Sessions Case No. 41/1996 dated 30.08.1996

awarded by the learned Sessions Judge, Sivaganga.

3.      Three accused - Krishnan [A-1], Tamilarasi [A-2] and her

husband Muthuraman [A-3] were charged in Sessions Case

No. 41/1996 on the file of the Court of Principal Sessions

Judge, Sivaganga. A-1 and A-2 were tried under Section 302

read with Section 34 of the IPC and Section 380 of the IPC. A-

3 was tried under Section 414 of the IPC. The learned trial

Judge held A-1 and A-2 guilty under Section 302 read with

Section 34 of the IPC and sentenced them to imprisonment for

life.   All the accused were acquitted of the charges under

Sections 380 and 414 of the IPC.              A-1 challenged his

conviction and sentence before the High Court in Criminal

Appeal No. 816/1996 whereas A-2 preferred Criminal Appeal

No. 249/1998.

4.      Briefly stated, the case of the prosecution is as under:-

       Siddiq (P.W.-1) was residing with his wife Rasitha

Begum, sisters - Amsath (Hamsath) Begum, Sabeetha Begum

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                                                                3 (P.W.-4), Faritha Begum (P.W.-5) and brother Aliyar in a rental

house at Mehbobapalayam, Minachipuram, Karaikudi. P.W.-1

is working as a Cleaner in Kalakai Vadivel Murugan Lorry. On

the southern side of the house of P.W.-1, Muthuraman (A-3),

an auto-driver, and his wife Tamilarasi (A-2) are residing. It is

the case of the prosecution that the family members of P.W.-1

on one side and A-2 and A-3 on the other had been

quarrelling frequently with each other upon trivial issues of

flow of drainage water and parking of auto-rickshaw by A-3 in

front of the house of P.W.-1.      On 28.03.1995 at about 9:45

p.m., P.W.-4 went to the lorry shed where P.W.-1 is working

and   informed   the    latter   that   since        morning   hours   of

28.03.1995 Rasitha Begum was missing from the house. He

along with P.W.-4 came to his house at about 11:00 p.m. and

started   enquiring    the   whereabouts        of    his wife   in the

neighbourhood, but he could not locate her.                    Later on,

Amsath, the second sister of P.W.-1, told him that in the

morning at about 9:30 a.m. her sister-in-law (Rasitha Begum)

had gone to the shop of a tailor master to get her blouse from

him and at that time she was wearing a new saree. P.W.-1

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                                                       4 went in search of Rasitha Begum to the shop of tailor master,

Katinivaasal,   New   Road, and house     of his in-laws     at

Devakotai, but she could not be located at any place.       On

29.03.1995 at about 9:30 a.m., P.W.-1 returned home and

again made an enquiry from Smt. Mumtaz (P.W.-3) - a

neighbour, in regard to the reason of his wife missing from the

house. P.W.-3 alleged to have told him that on 28.03.1995 at

about 10:30 a.m., she saw Rashita Begum and A-2 were

quarrelling with each other, but she did not think it proper to

intervene since it was practically their daily habits to enter

into heated exchanges upon petty issues.          P.W.-3 also

disclosed that on 29th morning when she along with Faritha

Begum (P.W.-5), Fathima Beevi, and Rakhumat Biwi had

peeped through the eastern side window of the house of A-2

and A-3, they could notice Rasitha Begum lying on the floor of

their house and her both legs and hands were tied. They also

noticed one rice bag and some household materials found

placed upon her dead body.     Thereafter, P.W.-1 went to the

Police Station and lodged complaint [Ex. P-1], on the basis of

which Sub-Inspector Murugan (P.W.-17) registered Crime No.

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                                                              5 145/95 [Ex. P-14] under Section 302, IPC in Karaikudi (North)

Police Station.

5.   Balakrishnan (P.W.-18), Inspector of the Police Station,

went to the spot of incident and prepared Mahazar [Ex. P-4]

and Death Investigation Report [Ex. P-15] in the presence of

Panchayatraras.      He prepared spot map [Ex. P-16] and

recorded the statements of P.W.-1, P.W.-4, P.W.-5 and other

material witnesses. On the same day, he sent the dead body

of Rasitha Begum to the Government Hospital, Karaikudi, with

requisition   [Ex.   P-2]    for   conducting   post-mortem.       On

10.04.1995, P.W.-18 arrested A-2 and A-3 near Karaikudi

Water   Tank.        The    Investigating   Officer   recorded     the

confessional statement of A-2 in the presence of Govindam

(P.W.-12) leading to the recovery of 22 carat black beads

golden Karukumani.         He took A-3 to Thirumurugan Amman

Sannidi Jewellery Shop and recovered M.O.M. 02 [Ex. P-7]

from there in the presence of Saminathan (P.W.-13).                On

18.05.1995, A-1 was taken to the Police custody from judicial

custody.

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                                                              6 6.   Dr. Seenivasan (P.W.-2) on 29.03.1995 conducted the

post-mortem on the dead body of Rasitha Begum and as per

Post-Mortem Report         [Ex.   P-3], he   noticed   the   following

injuries:-

"External Injuries:-

    1.      Signs   of    decomposition     present   whole       body

            edematous except limbs.

    2.      Foul smelling discharge from the nostril and mouth.

    3.      Rope mark in both forearms.

    4.      Left side of the face blackish with contusion and

            oedamatous

    5.      Eye lids closed. Tongue outside.

    6.      A handkerchief seen in the mouth.

                         Teeth 8/8"

    Internal Injuries:

    Abdomen distended with gas.             Thorax - Ribs normal;

    Lungs congested; Heart empty; Neck - Echymosis and

    congested present in anterior aspect of neck; Hyoid bone

    - fracture, send for H.P.E.; Stomach contains 50 ml of

    digested food particles; Intestine distended with gas; liver

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                                                        7      congested ‘spleen congested; kindly congested; bladder

    empty; Uterus - gravid 10 weeks size; skull contains in

    the left parietal region 6cm X 4 cm in size. No evidence

    fracture of skull.   Brain partially liquefied.   Specimen

    preserved - stomach, intestine, liver, spleen, kidney,

    hyoid bone."

In the opinion of the doctor, cause of death was as a result of

strangulation of the neck of the deceased and asphyxia within

duration of 24 - 30 hours prior to the post-mortem.

7.   After completion of the investigation and on receipt of the

Post-Mortem Report [Ex. P-3] and other documents, charge

sheet was laid by P.W.-18 against A-1, A-2 and A-3 for

commission of the alleged crime.         The learned Judicial

Magistrate, Karaikudi, committed the trial to the learned

Sessions Judge, who framed the charges against A-1, A-2

under Section 302 read with Section 34 of the IPC and under

Section 380, IPC, for removing 14 gms. gold ornaments from

the body of the deceased and A-3 was charged under Section

414, IPC. The accused denied the charges and claimed to be

tried. The prosecution examined as many as 18 witnesses in

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                                                         8 support of its case.     In their statements recorded under

Section 313 of the Code of Criminal Procedure, the accused

persons denied their involvement in the commission of the

offence and stated that they have been implicated in a false

case at the instance of the Police and lastly they pleaded

innocence.   However, no defence evidence has been led by

them.

8.   It is the admitted case of the parties that there is no

direct   evidence   connecting   A-1,   A-2   and   A-3   in   the

commission of the crime. The prosecution case entirely rests

upon circumstantial evidence.     The learned Sessions Judge

relied upon the evidence of P.Ws.-1, 3, 4, 5, 17 and 18 and

held A-1 and A-2 guilty of the murder of Rasitha Begum and,

accordingly, sentenced them imprisonment for life whereas

they were acquitted under Section 380, IPC.         A-3 has been

acquitted for offence under Section 414 of the IPC for lack of

cogent and convincing evidence against him.         A-1 and A-2

filed the above mentioned two separate appeals under Section

374 of the Code of Criminal Procedure before the High Court

against their conviction and sentence. The Division Bench of

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                                                         9 the High Court dismissed both the appeals by common order

and confirmed the conviction and sentence imposed upon A-1

and A-2 under Section 302 read with Section 34 of IPC.

9.    Krishnan (A-1) is the appellant before us in this appeal.

10.   We have heard the learned counsel for the parties and

examined the material on record.

11.   Shri Yogesh Kanna, learned counsel appearing on behalf

of A-1 assailed the judgment of the High Court inter alia

contending:

       (i)    that the trial court as well as the High

              Court have committed gross error in convicting

              the appellant on the basis of highly unbelievable,

              insufficient and unconvincing evidence led by the

              prosecution;

       (ii)   that there is not an iota of evidence on record to

              prove that on the day of occurrence, A-1 had

              gone to the    house of A-2 and A-3 before the

              alleged incident of death of Rasitha Begum,

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                                                       10         whose dead body was found lying in their house

       on 29.03.1995.

(iii)   that P.W. 1 has not named A-1 in the complaint

       Exhibit P-1 on the basis of which FIR [Ex. P-14]

       was recorded by P.W. 18.

(iv)    That A-1 has been falsely implicated in the

       commission     of   the   crime    by    Sub-Inspector

       Murugan - P.W.-17 and Inspector Balakrishnan

       - P.W.-18 against whom A-1, being a Secretary of

       Silver Labour Association, had filed complaint in

       the year 1994 for unnecessarily harassing the

       workers   of   Silver     Patrai   who     joined    the

       demonstrations and agitations held against the

       owner of the Silver Patrai.        According to the

       learned counsel, A-1 is an active member and

       office bearer of Communist Party of India and in

       the year 1994 he along with other party fellows

       staged demonstrations against the Police and

       Executive authorities regarding insufficient and

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                                                            11                inadequate supply of drinking water facilities to

              Karaikudi and Tirupattur areas and for the acts

              of commission and omissions of A-17 and A-18,

              they   were   transferred    from   Police   Station,

              Karaikudi (North), but again they were posted

              back at the same Police Station.

12.       Shri V. G. Pragasam, learned counsel for the

respondent-State, on the other hand in support of the

judgment, submitted that the reasons given by the trial court

as well as the High Court for recording the order of conviction

against    A-1 are based upon proper appreciation of evidence

led by prosecution in the case.            He submitted that the

evidence of P.Ws.-1, 3, 4 and 5 coupled with the versions of

P.Ws.-17 and 18, is clear, satisfactory and with the hypothesis

of the guilt of the appellant and this Court normally should be

slow to interfere with the well-reasoned and well-merited

judgment of the High Court upholding the judgment of the

trial court.

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                                                                    12 13.         Before   adverting   to     the   above-stated    arguments

advanced by the learned counsel for the parties, we shall at

the threshold point out that in the present case there is no

direct evidence to connect the accused with the commission of

the offences and the prosecution case entirely rests on

circumstantial evidence.         This Court in a series of decisions

has   consistently       held    that    when    a   case    rests   upon

circumstantial evidence, such evidence must satisfy the

following tests:-

     (i)            the circumstances from which an inference of                      guilt is sought to be drawn, must be cogently                      and firmly established;

     (ii)           those circumstances should be of definite                      tendency unerringly pointing towards guilt of                      the accused;

     (iii)          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

     (iv)           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. [See Gambhir v. State of

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                                                        13                Maharashtra (1982) 2 SCC 351 : (AIR 1982                SC 1157)]

    See also Rama Nand v. State of Himachal Pradesh (1981) 1 SCC 511 : (AIR 1981 SC 738), Prem Thakur v. State of Punjab, (1982) 3 SCC 462 : (AIR 1983 SC 61), Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 : (AIR 1983 SC 446), Gian Singh v. State of Punjab, 1986 Suppl. SCC 676 : (AIR 1987 SC 1921), Balvinder Singh v. State of Punjab (1987) 1 SCC 1 : (AIR 1987 SC 350).

As far back as in 1952 in Hanumant Govind Nargundkar v.

State of M.P. [AIR 1952 SC 3443], 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 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."

A reference may be made to a later decision in Sharad

Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC

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                                                          14 116 : (AIR 1984 SC 1622).           Therein, while dealing with

circumstantial evidence, it has been held that the 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 (SCC pp. 185,

para 153) :

    (i)     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;

    (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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                                                           15 14.   We may also make a reference to a decision of this Court

in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193,

wherein it has been observed thus: (SCC pp.206-207, para 21)

     "21. 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."

In Sashi Jena & Ors. v. Khadal Swain & Anr. [(2004) 4

SCC 236], this Court again reiterated the well-settled principle

of law on circumstantial evidence.

15.    Bearing the above principles of law enunciated by this

Court, we have scrutinized and examined carefully the

circumstances appearing in this case against A-1. P.W.-1, the

husband of Rasitha Begum-deceased had not named A-1 as

an assailant of the murder of his wife in the complaint [Ex. P-

1] lodged by him in the Police Station on the basis of which

FIR [Ex. P-14] came to be registered by P.W.-18.        It is his

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                                                      16 evidence that he disclosed the names of the assailants and

other material details of the crime to P.W.-6, who scribed the

complaint at his instance. P.W.-1 went to the Police Station

with his brother, brother-in-law and P.W.-6 and reported the

matter to P.W.-18, but he again did not name A-1 as an

accused along with A-2 and A-3 against whom complaint was

made. The testimony of this witness has not established that

A-1 was present in the house of A-2 and A-3 at the time and

on the day of the murder of his wife.

16.   P.W.-6 in his deposition stated that at about 10:00 or

10:30 a.m. on the day of incident of murder of Rasitha Begum,

he was standing near Ambedkar statue at Karaikudi when

P.W.-1 and his brother-in-law Jagir Hussain came to him and

told that his wife was dead and her dead body was lying in the

house of A-2 and A-3. He scribed complaint [Ex. P-1] at the

instance of P.W.-1 in the latter’s house. He admitted in his

cross-examination that after writing complaint [Ex. P-1], the

same was read over to P.W. 1 who after accepting the contents

thereof as correct signed it.   This witness is a member of

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                                                        17 Jammat. He admitted that in the year 1994 the Communist

Party   leaders   and   workers   staged   demonstrations   and

agitations against the administration for not arranging proper

and timely supply of drinking water from Karaikudi to

Tirupattur in which many party workers were assaulted by the

police officials of Police Station, Karaikudi, where P.Ws.-17

and 18 at the relevant time were posted.    He also stated that

during the said agitations and demonstrations, several cases

were filed against some members of the Communist Party. It

has come in his evidence that complaint [Ex. P-1] was written

by him in the house of P.W.-1, whereas it was the specific case

of P.W.-1 that Ex. P-1 was got scribed by him from P.W.-6 on

the way when he along with his brother Aliyar and brother-in-

law Jagir Hussain was going to the Police Station to lodge the

complaint. Both these witnesses are not consistent and have

given different and contradictory version in regard to the place

of scribing of the complainant, on the basis of which the police

machinery swung into action.

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                                                       18 17.     The evidence of P.W.-3 - Mumtaz would show that the

family members of P.W.-1 on one side and A-2 and A-3 on the

other had been quarrelling frequently with each other over

flow of drainage water and parking of auto-rickshaw by A-3 in

front of the house of P.W.-1. Her evidence would also reveal

that at about 10:00 a.m. on the day of incident of murder, the

deceased and A-2 had heated exchanges over throwing of

drainage water in front of the house of A-2 and it was on the

intervention of A-3 that the matter was got settled. She stated

that around 3:00 p.m., it came to the notice of the family

members of P.W.-1 that Rasitha Begum was not found present

in her house.    The intimation about the missing of Rasitha

Begum was sent to P.W.-1, who was away from his house in

connection with his employment at the lorry shed. It is her

evidence that on the morning of 29.03.1995, dead body of

Rasitha Begum was found lying inside the house of A-2 and

her both hands and legs were tied with ropes and one rice bag

and other household materials were found placed upon her

body.    She along with P.W.-Faritha, Fathima Bibi and some

more persons informed P.W.-1 about the incident, who rushed

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                                                     19 to the place of occurrence and on seeing the dead body of his

wife inside the house of A-2, he went to police station for

reporting the incident of murder. In cross-examination, she

admitted that P.W. 1 is her cousin.    This witness admitted

that the death of Rasitha Begum was discussed in Jammat

meeting. She admitted having joined the demonstration and

procession on the leadership of Palani Baba.        On close

scrutiny of the testimony of P.W.-4, we find that she has not

proved the presence of A-1 in the house of A-2 and A-3 when

this witness saw Rasitha Begum going to their house in the

morning at about 10:30 a.m. on the day of incident of murder.

18.   P.W.-4 stated to have informed her brother P.W.-1 at

about 9:00 p.m. on 28.03.1995 about missing of her sister-in-

law from their house.   She claimed to have seen A-1 in his

Silver Workshop on the day of incident of murder.      P.W.-5

Faritha Begum is residing nearby the house of P.W.-1 and her

house is adjacent to the house of A-3. She also stated that

A-1 is running a workshop nearby her house. On the morning

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                                                       20 of 29.03.1995, she noticed dead body of Rasitha Begum in the

house of A-2 and A-3.

19.   P.W.-17-Sub Inspector and P.W.-18-Inspector of Police

in their testimony stated that A-1 being a member of Indian

Communist Party, was involved in several demonstrations and

agitations staged in Karaikudi area by the Communist Party

against the administration. It is the evidence of P.W.-18 that

in the year 1994 all political parties had demonstrated against

the civil administration for inadequate and improper supply of

drinking water facility from Karaikudi to Tirupattur and in the

said agitation, members of Indian Communist Party including

A-1, had also participated in which one Kannan, a member of

Congress Party, received beatings.   He admitted that a case

was registered against him regarding handcuffing of Kannan

and in the said case A-1 appeared as a witness and deposed

against him. P.W.-18 then stated that RTO also held enquiry

about the same incident in which one Ramachandran, a

member of Indian Communist Party, Karaikudi, deposed

against him. P.W.-17 has admitted in cross-examination that

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                                                        21 during strike staged by all political parties in 1994, some

demonstrators received injuries at the hands of Police Force.

For the said incident, an inquiry was held by RTO against him

and PW-18, who at the relevant time were Incharge of the

Police Station and later on they were transferred from the

Police Station, Karaikudi. He then stated that a criminal case

was also registered against him and PW-18 for the same

incident, in which A-1 appeared as a witness and deposed

against them. In the teeth of the evidence of PW-17 and PW-

18, undoubtedly they are hostile witnesses deposing against

A-1, who appears to have been framed later on in the crime by

these witnesses mainly on suspicion and improbability. The

learned trail Judge observed that even though there was no

direct evidence to prove that A-1, in connivance with A-2,

committed the murder of Rashita Begum, but since A-1 had

illicit relations with A-2 and on the day of incident of murder,

after A-3 had left his house, A-1 was seen by the deceased

going to the house of A-2 and out of curiosity, the deceased

went to the house of A-2 where she was jointly killed by A-1

and A-2.    This finding of the learned trial Judge and as

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                                                       22 accepted by the High Court, in our view, is wholly untenable

and cannot be sustained.     There is absolutely no evidence

appearing on the record to establish that A-1 had illicit

relations with A-2 and in the absence of any cogent, believable

and satisfactory evidence, A-1 could not be held guilty of the

murder of the deceased only on hypothesis and suspicion. If

the entire incident was narrated by PW-4 to her brother PW-1

before lodging a complaint (Ext. P-1) by him, it was but

natural for PW-1 to have disclosed the name of A-1 in the

complaint as an assailant, on the basis of which FIR (Ext. P-

14) was registered by PW-18. The evidence of P.W.-3, P.W.-4

and P.W.-5 regarding removing of jewellery from the dead body

of Rasitha Begum by A-1 and A-2 coupled with the version of

P.Ws.-14 and 18 and the confessional statement allegedly

made by A-1, was not found believable and reliable by the

learned trial Judge and accordingly they were acquitted of the

charge under Section 380, IPC. On the same set of evidence,

no acceptable evidence was found against A-3 for holding him

guilty of offence under Section 414, IPC, and he has been

given benefit of doubt.

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                                                       23 20.    On independent analysis of the entire evidence on

record, we find that the prosecution has failed to prove the

charge of murder of Rasitha Begum against A-1 beyond

reasonable doubt.       As noticed in the earlier part of the

judgment, we find material discrepancies, inconsistency and

vital improvements in the testimony of P.Ws.-1, 3, 4 and 5 in

regard to the presence of A-1 at the house of A-2 and A-3 at

the relevant time on the day of occurrence. Having given our

careful consideration to the submissions made by the learned

counsel for the parties and in the light of the evidence

discussed above and tested in the light of principles of law

highlighted above, it must be held that the evaluation of the

findings recorded by the trial court and affirmed by the High

Court suffers from manifest error and improper appreciation

of evidence on record.     Thus, on the basis of the evidence

appearing on record, two views are possible, A-1 is entitled to

the benefit of doubt.

21.   In the result, the appeal is allowed. The conviction and

sentence of A-1 is set aside and he is acquitted of the charge

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                                                                24 of murder of Rasitha Begum by giving him benefit of doubt.

Appellant-Krishnan is in custody and he is directed to be

released forthwith if his detention is not required in any other

case.

                                ........................................J.                                   (S. B. Sinha)

                                ........................................J.                                   (Lokeshwar Singh Panta)

New Delhi, May 08, 2008