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CASE NO.: Appeal (civil)  1107 of 2005

PETITIONER: K.T. Palanisamy

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 11/01/2008

BENCH: S.B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

1.      Appellant with two others, namely, A2, Vellingiri, and A3, Officer @  Paramasivam, were prosecuted for commission of the offence of murder of  one Somasundaram.            Appellant was an astrologer.   The deceased was passing through  tough times.   His son had also remained ill for long time.   He allegedly was  advised by the appellant to perform some poojas on the bed of the river  Bhavani situated at Nanjaipuliyampatti on or about 29.4.1996.   He went to  the place for the said purpose along with the accused persons.   The deceased  at that time was said to be wearing a gold chain (M.O.1) and two gold rings  (M.Os.2 & 3) engraved with the letters \023P.Mani\024.    The deceased was  allegedly last seen by PW-3 and PW-4 namely, Nallasamy and K.Devaraj  respectively and his brother-in-law PW-5, Muthusamy.   He, however, did  not come back.  On inquiries having been made from the appellant, the  family members of the deceased were informed that he had gone away after  performing the said pooja for attending some function.         He was even thereafter not heard of for a long time.         An advertisement was issued in a local newspaper on 12.5.1996.    Poongodi (PW-1), the wife of the deceased, in order to search out her  husband, in turn, sought for the assistance of the appellant, who advised  them to perform a pooja at Bannavi Amman Temple.         However, when the parents of the deceased and his grand-mother left  for Bannavi Amman Temple for performing the pooja in the company of the  appellant, they also did not return home.   From a report which appeared in a  local newspaper on 3.6.1996 PW-1 came to learn that the said three persons  have been found murdered at Erode.   He went to Erode and lodged first  information report before the Erode, South Police Station, which was  recorded by Manoharan (PW16).   A first information report was registered  being crime No.415/96 under the caption \023man missing\024.   On 4.7.1996 the  statement of PW-1 was recorded by the Investigating Officer PW-18.   The  Banglaputhur police station which had the jurisdiction to investigate into the  said matter received the said first information report on 2.9.1996, on the  basis whereof PW-17 the Head Constable of the said police station  registered a case as Crime No.406/96  against the accused under Sections  302 and 379 of the Indian Penal Code (for short the \021IPC\022).  Accused Nos.1  & 2 were arrested on 6.7.1996 at a bus stop at Erode in the presence of  Abdulhasan Ansari (PW-11).  Allegedly, on the basis of a purported  confessional statement made by the appellant, the Investigating Officer and  others went to Coimbatore for recovery of a gold chain which is said to have  been sold to one Dhanasekaran.     The said gold chain and some bangles,  however,  were seized in connection with the murder of the deceased\022s  parents and grand-mother.  He also took the police party to a jewellery shop  belonging to one  Dhanasekaran who produced a long golden chain.   The  same was seized and marked as M.O.1 2.      Accused No.2 allegedly was having a gold ring in his finger which

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was seized and marked before the learned Trial Judge as M.O.3. 3.      Accused No.3 was arrested near a municipal guest house at Erode on  7th July, 1996.   Two Criminal cases were instituted against the appellants; \026  one for commission of murder of Somasundaram; and the other for murder  of his parents and grand-mother.         Whereas the first case was registered as S.C No.70/97, the second one  was registered as S.C No. 100/97.     4.      The learned Sessions Judge convicted the appellant and other two  accused persons for commission of offence under Section 120B, 302 read  with Section 34 and 109 of the IPC as also Section 379 and 201 thereof.    They were sentenced to undergo rigorous imprisonment for life under  Section 120B, 302 read with Section 34 and Section 109 of the IPC and one  year\022s rigorous imprisonment under Section 379 and three years rigorous  imprisonment under Section 201 of the IPC.    5.      Before the learned Trial judge,  a large number of witnesses were  examined on behalf of the prosecution.  PW1 is the widow  of the deceased.    Her evidence centered around the fact that the deceased used to consult him  as he was an astrologer.   She further stated that the deceased  had gone with   the accused for performing the said pooja and never came back thereafter.    She identified Material Objects 1, 2 & 3.    According to her,  a letter was  received from one Bala in the name of the first accused stating that her  husband was keeping well but was in a depressed mind and that within a  month he would go back home.   6.      Allegedly, on the hope generated from the said letter,   no first  information report was lodged. As noticed hereinbefore,   she went back to  the appellant and requested him to find out her husband, who in turn advised  her to perform a pooja at Pannari Mariamman temple.   Her in-laws and  mother of her mother-in-law went there on 28.6.1996 and the news about  their murder appeared in the newspaper on 30th June, 1996.   According to  her, she became suspicious on learning that her in-laws have been murdered  and as her husband was also missing, she filed a first information report on  3.7.1996 at Erode.         In the cross-examination of the said witness, several discrepancies  have been brought on record particularly the omissions in her statement  under Section 161 of the Code of Criminal Procedure,   that her husband had  been putting on M.Os. 1 to 3.  She accepted that there used to be quarrel  between her and her husband.   The distance between her residence and that  of her in-laws was 5 to 6 kms.   They were living separately.   She admitted  that her husband had not been in sound mental health.   She had been  informed that her husband was to go to a function after performance of the  said pooja and the same statement was made by her before the police.   Loganathan (PW-2) was to be the brother-in-law of the deceased appellant.    According to him, he used to run an electrical shop with the deceased  Somasundaram and one Nallasamy.   The deceased, according to him, used  to come to the appellant to discuss astrological aspects as regards his child  who had not been keeping good health.   He deposed that on 29.4.1996  Somasundaram came to his shop along with the appellant and informed him  that they were going to perform a pooja in the Vannan temple whereafter he  would go to some function.   Although according to him the deceased was  wearing gold ornaments (viz. the rings and the chain) but he did not know to  whom they belonged to.    7.      PW-3 was also a partner in the said electrical shop in which the  deceased and PW-2 were running.   According to him on 29/4/1996 he met  the deceased at Gobi Chettipalayam when he informed him that he had been  coming from Nanjai Pulliampatti after performing the pooja.   He  furthermore informed that they were going to a temple whereupon he came  back by bus.   He could not remember the date when Somasundaram brought  the three accused to his shop. 8.      PW-4 is K.Devaraj.   He was a    valuer working at the Veerappan  Chattiram Co-operative Bank.   He also saw the deceased going to perform  pooja with the accused.         PW-5 is Muthusamy.   He is an electrician.   He is the brother in-law  of the deceased.   Allegedly, he saw the deceased and the other accused  sitting in the bus and on a query made by him, they informed that they were  going to the temple at Nanjaipulimpatti and at about 8.30 P.M. on that day

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when he was returning from Bangalaputhur, all the three accused also  boarded the same bus.   On a query again made by him in regard to  whereabouts of the deceased, he was told that he had gone to attend some  function.   Although he is a resident of the area he did not know as whether  there was a river bridge at Puliampatty or not.    9.      PW-6 is Thangavel.   He is the brother-in-law of the deceased.   He is   said to have given advance of  a sum of Rs.10,000/-  on execution of a  pronote to accused No.3, at the instance of the deceased.   The letter which  was marked as Ex.A6, according to him, contained some zig-zag lines at the  time of his deposition which were not there when it was received.    10.     PW-7 is Marisamy.    According to him, Dhanasakarn had paid a sum  of Rs.15,000/- to the accused persons.   He accepted that he was a police  informer and had been appearing for them as a witness.         PW-8 has, however, denied that he was a Jeweler or that he had a  shop. 11.     On analysis of the entire materials brought on records by the  prosecution,  the only relevant evidence is the purported recovery of chain  (M.O.1) at the instance of the appellant.         The dead body of the deceased was not recovered.   There is no  evidence in regard to death.   Nothing has been brought on record to show  that there was enough water in the river or the current in the water was such  so as to take a dead body away.           All the prosecution witnesses are related to the deceased.   It is  difficult for us to believe that all the witnesses saw the deceased  accompanying the accused persons one after the other at different places.   Therefore,  chances of their deposing falsely cannot be ruled out.   Be that as  it may, when the offence is said to have been committed and the  circumstantial evidence is made the basis for establishing the charge against  the appellant, indisputably all the links must be completed to form the basis  for his conviction.   12.     It is now well settled that in a case where an offence is said to have  been established on circumstantial evidence alone, indisputably all the links  in the chain must be found to be complete as has been held in Sharad  Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622] in the  following terms : \023A close analysis of this decision would show that  the following conditions must be fulfilled before a  case against an accused can be said to be fully  established: (1) the circumstances from which the conclusion  of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that  the circumstances concerned ’must or should’ and  not ’may be’ established. There is not only a  grammatical but a legal distinction between ’may  be proved’ and ’must be or should be proved as was  held by this Court in Shivaji Sahebrao Bobade v.  State of Maharashtra where the following  observations were made: certainly, it is a primary principle that the accused  must be and not merely may be guilty before a  Court can convict, and the mental distance  between ’may be’ and ’must be’ is long and divides  vague conjectures from sure conclusions. (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

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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. 153. These five golden principles, if we may say  so, constitute the panchsheel of the proof of a case  based on circumstantial evidence.\024

13.     In this case, corpus delicti has not been proved.   The same  need not  be but the death as a fact must be proved.  Even death has not been proved in  this case.   No piece of mortal remains of the deceased was found.   If the  prosecution witnesses are to be believed they had no reason to suspect the  appellant herein at the relevant point of time.   They knew that the deceased  was to attend another function.   We fail to understand as to why the  deceased would take all the accused to the shop of PW2 or   allowed to be  found in their company by all of his relations and partners.   None of the  witnesses testified that they were seen near the place of worship.  None said  that they were found to be performing any pooja.  No evidence was addnced  to show that any pooja was performed in a temple.   14.     In a situation of this nature, it is difficult to hold that a judgment  of  conviction can be founded on the sole circumstance of the deceased\022s having  been last seen with the appellant by the prosecution witnesses who are all  interested and partisan witnesses.   More significant is the conduct of the  prosecution witnesses.   On the day of the alleged crime, they did not suspect  the appellant in any manner whatsoever.   They did not even  go to the place  of the occurrence.  Despite the fact that he was missing, the purported  explanation of the appellant was taken for granted.  Even no missing report  was lodged.   It was expected that such missing report should have  been  lodged immediately and  that details of his wearing apparels as also the fact  that he had  two rings on his finger and one gold chain would have been  mentioned.          The fact that the deceased was last seen with  the appellant should  have been specifically disclosed in the first information report.     Suspicion  was raised about the involvement of the appellant only because   three other  dead bodies were recovered.   We do not know the nature of evidence that  has been adduced in that case.   We need not enter into any surmise in this  behalf. 15.     In any event,   the circumstancial evidence  which  formed part of the  records of SC 100 of 1997 could not be relied upon for arriving at the  conclusion that the appellant herein   is guilty of commission of the said  offence.     16.     The only other circumstance is recovery of the golden chain.   It was  allegedly sold to PW8.   He, however, has denied his involvement.   Even  assuming that golden chain was recovered at the instance of the appellant  herein, the same by itself, in our considered view, would be sufficient for  upholding the judgment and conviction under Section 302 of the IPC. 17.     Mr. V.Kanakaraj, learned senior counsel appearing on behalf of the  respondent, has placed strong reliance on a decision of this Court in Sevaka  Perumal and Anr. V. State of Tamil Nadu reported in [1991 (3) SCC 471].    Therein also it was held that the fact of the death of the deceased must be  established like any other fact.  In that case it was not done.   This Court in  that case gave an instance where a corpus delicti is not possible to be traced  or recovered.   The same being that the murder was committed and the dead  body was thrown into the river, stream or burnt out. Even such is not the  case here.        As indicated herein before, the fact that the river was a tidal one had  not been proved.          There is, thus, no reliable or acceptable evidence that the offence has  been committed by the appellant. Neither any direct nor circumstantial  evidence had been brought on record to establish the guilt on the part of the  appellant herein. 18.     We, therefore, are of the opinion that the impugned judgment cannot  be sustained, which is set aside accordingly.    The appeal is allowed.   The  appellant is in jail.   He is directed to be set at liberty unless wanted in  connection with any other case.