http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  406 of 1997

PETITIONER: State of Tamil Nadu                                      

RESPONDENT: Sundar                                                   

DATE OF JUDGMENT: 11/12/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       Respondent herein was convicted by the Sessions Judge,  Dharmapuri Division at Krishnagiri for an offence punishable  under section 302 IPC and was awarded the extreme penalty of  death. In a reference made by the learned Sessions Judge for  confirmation of the said sentence and also in an appeal filed by  the respondent against the said conviction and sentence, the  High Court of Judicature at Madras by the impugned judgment  while dismissing the reference for confirmation of the sentence,  allowed the appeal, setting aside the judgment of the learned  Sessions Judge. The State of Tamil Nadu is in appeal against  the said common judgment of the High Court.  The allegation against the respondent in this case is that  he committed the murder of one D. Rathinam who was the  Incharge Sub-Post Master of K.R.P. Dam Post Office on  16.3.1984 with a view to wreak vengeance against him for  having accused him of stealing Rs.10 and also with a view to  rob the Post Office. It is the case of the prosecution that at the  relevant time the respondent was working temporarily as an  extra departmental mail carrier in place of his father who was  on leave. The prosecution alleged that since the Post Office was  found locked on a working day namely on 16.3.1984, PW-4  who was also working in the said Post Office, informed PW-1  who was then the Sub-Divisional Post Inspector about this  locking of the Post Office who, in turn, informed PW-6, the  Deputy Superintendent of Post Office over the phone as to this  unusual incident of finding the Post Office locked on a working  day. On instructions from PW-6, PW-1 made necessary  arrangements to safeguard and protect the properties of the said  Post Office and on the morning of 17.3.1984 said PW-1 went to  the Post Office and broke open the lock in the presence of the  Village Administrative Officer and other office personnel and  on taking an inventory of the said office, they found certain  cash, postal stamps, postal orders and cash certificates etc.  valued at Rs.850.55 missing. They also found Rathinam  who  was the Incharge of the office on 16.3.1984 missing but found  his shoes in the Post Office, hence on a suspicion they searched  for him during which process they found the body of said  Rathinam inside the septic tank situated in the backyard of the  said Post Office. On lodging a complaint in this regard, a case  was registered in Taluk Police Station, Krishnagiri being Crime  No.142 of 1984 under sections 302 and 380 IPC. PW-12 who  took up the investigation, came to the spot on 17.3.1984 and  inspected the scene of occurrence and drew up the inquest  Panchnama Ex. P-19. He made inquiries during the said inquest  proceedings and recorded the statements of PWs.1, 3, 6 and one

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Rajan. He made arrangement to send the dead body for autopsy.  As per the medical report it was found that the deceased died  due to injuries suffered by him on his head also due to  asphyxia. It is the further case of the prosecution that on  18.3.1984 at about 5 a.m. PW-2 arrested the respondent near  the river-bed adjacent to Kaveripattinam Travellers’ bungalow  and on a disclosure statement made by the accused in the  presence of PW-8, he recovered MO-28, a blood stained shirt  belonging to respondent kept concealed in the river-bed. He  also recovered a bunch of keys belonging to the Post Office at  the instance of the respondent, kept in a post-box kept in front  of a textile shop. On a further statement made by the respondent  the I.O. recovered MO-13 a yellow bag from a cycle shop of  one Pattu (not examined) in which he found various properties  like the inland letters, postcards, postal stamps, revenue stamps  etc. allegedly stolen by the respondent. On a further statement  made by the respondent he also recovered certain sums of  money kept concealed under a hill as also a blood stained towel  kept concealed under a tree in the backyard of the Post Office.  From the statement of PW-3, the I.O. found out that on  16.3.1984 in the afternoon the respondent was seen coming out  of the Post Office locking the same, carrying a yellow bag like  MO-13 and on an inquiry by PW-3 she was told by respondent  that he was locking the office since it was a holiday for the Post  Office. From the evidence of PW-11 he came to know that the  respondent had kept the yellow bag MO-13 in the shop of Pattu  of which PW-11 was the owner of the building. Based on this a  chargesheet was filed before the Judicial Second Class  Magistrate, Krishnagiri against the respondent for offences  under Sections 302, 201 and 381 IPC and on committal and  after trial the learned Sessions Judge found the respondent  guilty of all the 3 offences but punished him only for the  offence under Section 302 and imposed the sentence of extreme  penalty of death which as stated above was not confirmed by  the High Court and the appellant’s appeal against his conviction  was also allowed.         In the absence of any direct evidence the prosecution  case depended on various circumstances which were accepted  by the trial court but were held not proved by the High Court.  The High Court after noticing the law in regard to basing a  conviction on circumstantial evidence enumerated the various  circumstances placed by the prosecution in this case. They are : " 1.      The accused being found in the company of the deceased at    12 noon on 16.3.84 within the office premises; 2.      The accused emerging out of the said Post Office where he    was working, carrying in his hand M.O.13 yellow bag; 3.      The so called explanation given by the accused to P.W.3  that holiday had been declared to the Post Office after lunch  recess, when P.W.3 questioned him as to when the Post  Office was to commence business after lunch recess; 4.      His absconding from the Office on and from 16.3.1984; 5.      His arrest on 18.3.1984. Consequent confession he was  stated to have made and recovery of certain material objects  pursuant to such confession, viz., M.O.12 series, M.O.13  bag containing M.Os.14 to 25, M.O.26 series, M.Os.27 and  28; 6.      M.O.27 towel recovery at the instance of the accused  pursuant to Sec.27 of the Evidence Act confession- statement, containing human blood as disclosed by  Serologist report, Exhibit P.25. 7.      The motive aspect of the case of the prosection getting  reflected by the testimony of P.W.4 to whom the deceased  appeared to have told either on 14th or 15th March 1984  about the commission theft of Rs.10/- by the accused from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

the shirt pocket and on hearing the same, P.W.4  reprimanded him for his abominable conduct and requested  the deceased to pardon the accused for such an act of his and  the deceased also complied with such a request."         

         The very same circumstances were considered by the trial  court also, which held that these circumstances were proved and  were sufficient to bring home the guilt of the accused. While  the High Court on a re-appreciation of the evidence led by the  prosecution to prove the abovesaid circumstances, came to the  conclusion that the prosecution evidence led in support of these  circumstances cannot be said to have been proved beyond all  reasonable doubt. It also came to the conclusion that some of  the circumstances cannot be treated as circumstances indicating  the guilt of the accused. They are the circumstances like the  presence of the accused in the Post Office and he being found in  the company of the deceased on 16.3.1984. According to the  High Court, it is the prosecution’s own case that the respondent  accused was an employee of the said post office, though a  temporary one, at the relevant time, therefore, these  circumstances do not implicate the respondent. In regard to the  other circumstances, the High Court came to the conclusion that  the witnesses who have spoken about the same, are either  chance witnesses and there being contradictions in their  evidence, it is not safe to place reliance on the same.

       We have heard learned counsel for the parties and  perused the records. The appeal before us arises out of a  reversing judgment of the High Court which having considered  the material adduced by the prosecution, took a view contrary  to the one taken by the trial court, therefore, in the normal  course unless we are satisfied that the said finding of the High  Court is either arbitrary or perverse, this Court would not  interfere with the said finding. In this process, we find most of  the reasoning of the High Court while rejecting the evidence of  the prosecution witnesses cannot be said to be either perverse or  the one that cannot be arrived at by any prudent person.  However, we must notice that so far as the rejection of the  evidence of PW-3 by the High Court is concerned, we do not  think the reason given by the High Court is proper. The High  Court came to the conclusion that since PW-3 did not complain  to anybody else about the fishy conduct of the accused  immediately after he was seen coming out of the Post Office  and locking the same, in our opinion, cannot be the sole reason  to reject her evidence on the facts of this case. Be that as it may,  there is yet another very good reason to discard the evidence of  PW-3. PW-12, the I.O., in his evidence has stated that he  recorded the statement of this witness on 17.3.1984 during the  inquest proceedings but this witness in her evidence before the  court has stated that her evidence was recorded a day after the  inquest proceedings were conducted. This is a material  contradiction in regard to which the prosecution has not taken  any step to clarify this part of her evidence when PW-3 was in  the witness box by way of re-examination, therefore, if PW-3’s  evidence is to be accepted then the inquest proceedings must  have taken place on 16.3.1984 itself but that is not the case of  the prosecution. Since the time and date of the incident are very  material facts in this case, the contradiction in the evidence of  PW-3 in this regard cannot be brushed aside. That apart, it has  come in evidence that the job of the accused was to carry the  mail bag daily from the K.R.P. Dam Post Office to  Sundekuppam Post Office and it is not the case of the  prosecution that this job was entrusted to anybody else on  17.3.1984. In this context, if we examine the evidence of PW-8,  the Post Master of Sundekuppam, he states in his evidence that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

even on 17.3.1984 the post bag was taken from K.R.P. Dam  Post Office to Sundekuppam. No explanation whatsoever is  rendered by the prosecution as to how this was possible if the  respondent-accused was absconding on that day, and when the  murder was detected on that day. These suspicions surrounding  circumstances pleaded by the prosecution remain unexplained.  That apart, we also notice some other materials from the  prosecution case which compounds our suspicion in regard to  the prosecution case. It is the case of the prosecution that on  18.3.1984 after the arrest of the accused, he led them to a tree  just behind the Post Office building whereunder a blood-stained  towel was recovered. The prosecution had earlier alleged that  the body of the deceased was found in a septic tank behind the  Post Office on 17.3.1984. The tree under which blood stained  towel was recovered is also behind the Post Office, therefore,  the septic tank and the tree must be close to each other. If that  be so, how the investigating agency missed noticing the blood- stained towel under the tree on the day of inquest is not  explained by the prosecution. From the evidence in this regard  led by the prosecution, there is nothing to show that this blood- stained towel was concealed in such a manner that the I.O.  could not have noticed it on 17.3.1984 itself. There is also one  other circumstance to be taken note of. It is the case of the  prosecution that the respondent-accused made a disclosure  statement at the time when he was arrested at Kaveripattinam,  and as per the statement, a blood-stained shirt was recovered.  According to the prosecution, this is the same shirt which was  worn by the accused when he committed the murder but there is  no material to show that he had changed this shirt when he  came out of the Post Office. Therefore, if really this blood- stained shirt is the one that was worn by the accused at the time  of the murder then PW-3 would not have failed to notice the  blood-stains on his shirt when she saw him and also spoke to  him on 16.3.1984. This circumstance also, in our opinion, goes  against the prosecution. As observed by the High Court, non- examination of Pattu who was the owner of the cycle-shop from  where most important of the recoveries i.e. MO-13 containing  stamps etc. were made, also goes against the prosecution. All  the above lacunae in the prosecution case, in our opinion, make  the prosecution case doubtful, i.e. in addition to the reasons  cited by the High Court.         For the reasons stated above, we find no merit in this  appeal and the same is hereby dismissed.