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CASE NO.: Appeal (crl.)  443 of 2006

PETITIONER: Mani

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 08/01/2008

BENCH: P.P. Naolekar & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

V.S. SIRPURKAR, J.

1.      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.

2.      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 stated  above.    3.      The 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.   

4.      The 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.   This 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 6\022O 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

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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.   

5.      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 chemical analysis.   

6.      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.   

7.      As 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.   

8.      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.

9.      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 complainant\022s  field or the subsequent altercation between Moyyasamy and P.W.1  Arunachalam wherein P.W.1 Arunachalam was allegedly injured  by

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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 High  Court.  10.     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.   Learned 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 0\022clock 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 Court.

11.     As 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.

12.     We 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 :

13.     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.   

14.     Though the Trial Court has discussed nine circumstances, the  High Court has not discussed are the circumstances in seriatum.   

15.             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.

16.      An 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

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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 house.   No such documentary evidence was collected by the prosecution.   The 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.    17.     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 \023to say that (blood stained) that house  is not Mani\022s house and it was built by Mani\022s father, cannot be  objected\024.  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.

18.     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 appellant\022s house though he,  in his examination-in-chief referred to that house as Mani\022s house.   He had to admit in his cross examination that he did not interrogate  any other residents residing  near Andiammal\022s 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 Mani\022s house, it is  difficult to hold that the prosecution had established the exclusive  ownership and possession of that house as against  the appellant.    19.     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.

20.     Same and similar is the story regarding the alleged discovery.   Both 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

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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 nobody\022s case that  at the time the discovery was made by accused no. 1, accused no. 2  also made certain discoveries.  Therefore, 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 Sivakumar\022s  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.

21.     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.   We also did not understand that if there was no motive for   Moyyasamy, how could there be any motive entertainable by the

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appellant.  Therefore, even for that circumstance has to go.    22.             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 crime.

23.     The only other circumstance left with is that Mani called  Sivakumar at 6 0\022clock 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.

24.             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.

25.             We 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 0\022clock 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.    Impugned Judgments and conviction are set aside.

    The accused be set to liberty forthwith unless required in any  other case.