Malaichamy vs The State Of Tamil Nadu

MALAICHAMY & ANR. … APPELLANTS

Versus

THE STATE OF TAMIL NADU … RESPONDENT

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Heard learned counsel for the parties.

2. The judgment dated 23.09.2008 passed by the Madurai Bench

of the Madras High Court in Crl.A.No.884 of 2001 confirming the

judgment dated 29.08.2001, passed in S.C.No.250 of 2000 by the

First Additional District and Sessions Judge-cum-Chief Judicial

Magistrate, Madurai is called in question in this appeal by

Accused Nos.1 and 2. It is relevant to mention here that

Accused No.3 was a juvenile and was dealt with by a different

forum under the provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2015.

3. The case of the prosecution in brief is that the deceased,

Harish Kumar, is the son of P.W.1 Velusamy and at the time of

the offence Velusamy was a member of the Tamil Nadu Legislative

1 Assembly. Accused Nos.1 and 2 are distantly related to P.W.1.

One Mr. Pattai Muniasamy, the paternal uncle of Accused Nos.1

and 2, had given a sum of Rs.13,00,000/- (Rupees thirteen lakhs

only) to P.W.1 for safe custody, which he got back in

instalments. There was a relationship between Mohankumar (the

son of Pattai Muniasamy) and one Kalaiselvi, who is the

daughter of P.W.1’s cousin Kannuchamy (P.W.12). Though attempts

were made to get them married, Mohankumar’s family refused the

proposal. P.W.1 was requested by the father of Kalaiselvi to

intervene and settle the matter and hence P.W.1 intervened and

attempted settlement, but the same proved to be a futile

exercise. In that regard, Kalaiselvi had lodged a complaint

against Mohankumar under Section 417 of the Indian Penal Code

(for short ‘the IPC’)and Section 4 of the Dowry Prohibition

Act.

4. It is also the case of the prosecution that Muniasamy

requested P.W.1 to take him as a partner in his liquor shop

business but the same was refused by P.W.1. Accused No.2 got

employment in a Fair Price Shop run by the Tamil Nadu Civil

Supplies Corporation on the recommendation of P.W.1. However,

the service of Accused No.2 was terminated due to misconduct,

and though P.W.1 was requested to intervene yet again, he

declined to do so.

5. In view of the aforementioned motive, Accused Nos.1 to 3

grouped together and committed the murder of P.W.1’s son,

namely, Harish Kumar, aged about 17 years. The accused

2 allegedly committed the offence during the early hours of

21.06.1998 by trespassing into the house of P.W.1.

6. The Accused Nos.1 and 2 were tried and convicted for the

offences under Sections 449 and 302 of the IPC read with

Section 34 of the IPC, and sentenced to 3 years of rigorous

imprisonment under Section 449 of the IPC and life imprisonment

under Section 302 read with Section 34 of the IPC. The High

Court confirmed the judgment of conviction.

7. There are no eye witnesses to the incident in question and

the case of the prosecution rests solely upon circumstantial

evidence.

8. Before we proceed further, it would be worthwhile to

recall that it has been settled through a catena of decisions

that the Court should satisfy itself that the various

circumstances in the chain of evidence must have been

established clearly and that the completed chain is such as to

rule out a reasonable likelihood of the innocence of the

accused. (For example, see: Jaharlal Das v. State of Orissa,

(1991) 3 SCC 27; Vijay Kumar Arora v. State Government of Delhi

NCT, (2010) 2 SCC 353; Munish Mubar v. State of Haryana, (2012)

10 SCC 464; Dhan Raj v. State of Haryana, (2014) 6 SCC 745;

Nizam v. State of Rajasthan, (2016) 1 SCC 550). It is in light

of this position of law that the circumstantial evidence in the

instant case needs to be examined.

9. The circumstances relied upon by the prosecution are as

follows:

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(a) The last seen circumstance;

(b) motive for the commission of the offence; and

(c) the recovery of two knives based on the

confession made by Accused No.1 before the Police

Officer, as per Section 27 of the Indian Evidence Act,

1872.

10. The first of the above, i.e. “the last seen circumstance”

is spoken to by P.W.4, P.W.5, P.W.8 and P.W.9. The High Court

rightly disbelieved the evidence of P.W.8 and P.W.9. However,

believing the evidence of P.W.s 4 and 5, the High Court held

the “last seen circumstance” proved.

11. We have perused the evidence of P.W.4 and P.W.5

meticulously. P.W.4 has deposed that after he secured an

interview for the post of Conductor in the Marudhupandi

Transport Corporation, in order to get a recommendation from

P.W.1, who happened to be an M.L.A. at that point of time,

P.W.4 along with P.W.5 had come to the house of P.W.1 at 10.00

P.M. on 20.06.1998 and found that P.W.1 was not available.

Hoping to meet P.W.1 the next morning, P.W.4 and P.W.5 had

proceeded to the house of P.W.12, which was situated on the

same street as P.W.1’s house, and stayed there for the night.

At about 5.15 A.M. on 21.06.1998, P.W. 4 looked down from the

terrace to see whether the door of the house of P.W.1 was open,

but found the door closed. However, soon after, he saw Accused

Nos.1 to 3 in front of the house of P.W.1. P.W.5 has deposed

that he saw the accused outside the victim’s house on the

4 morning of the incident, when he was leaving the house of

P.W.12 with P.W.4. It has not been deposed by P.W.4 and P.W.5

that they saw the victim in the company of these accused;

rather, it is their specific deposition that they only saw the

accused in front of the house of P.W.1. Curiously, the

Investigating Officer (P.W.22), in his cross-examination, has

deposed that the statements of P.W.4, P.W.5, P.W.8 and P.W.9

were recorded on 22.06.1998, which is corroborated by the

testimony of P.W. 4 and P.W. 5. But the depositions of P.W.22,

P.W.4 and P.W.5 in this respect are belied by the fact that the

seal and signature of the Judicial Magistrate found on the

statements of P.W.4 and P.W.5 is dated 01.07.1998. P.W.22, on

being confronted with the date of receipt during his cross

examination, admitted these dates and failed to give a

satisfactory explanation as to the delay in receipt of these

statements by the Court. This strongly suggests that the

statements of P.W.4 and P.W.5 were in fact recorded around

01.07.1998, and not on 22.06.1998 as they have deposed.

The above conclusion also casts serious doubts on the

veracity of the testimony of P.W.s 4 and 5 as a whole, since a

delay of one week in giving their statements to the police

amounts to highly unnatural conduct on their part. Moreover,

P.W. 5 also gave contradictory statements as to whether or not

he stayed in P.W. 12’s house on the relevant night. If P.W.4

and P.W.5 had really stayed at P.W. 12’s house and seen

Accused Nos.1 to 3 in front of the house of the victim at about

5 5.15 A.M. on 21.06.1998, they would not have missed the

opportunity to state this vital fact before the M.L.A. or the

Investigating Officer immediately, upon the discovery of the

offence, more particularly when they wanted a recommendation

from the M.L.A. Thus, it appears that though the news of the

murder of the victim became known to the public at large

immediately, P.W.4 and P.W.5, instead of intimating the same to

the family members of the victim, gave their statements only on

01.07.1998. Additionally, in the cross-examination of P.W.22,

he has given certain answers in favour of the accused based on

the material on record which clearly reveal that vital

improvements were made by P.W. 4 and P.W. 5 during the course

of their evidence. Hence, in our considered opinion, the

testimony of P.W.4 and P.W.5 is unreliable, and therefore

cannot be held to have been proved by the prosecution

satisfactorily.

12. The evidence to prove the `circumstance of motive’ is also

very shaky.

13. All the alleged facts indicating motive relied upon by the

prosecution, i.e. the affair of Mohankumar with Kalaiselvi, the

money transaction, the dismissal of Accused No.2 from temporary

service, etc. are not directly connected to the victim and are

merely projected as grouses against his father leading to the

murder of the son. Even if it is possible that a person might

be murdered by an individual on account of a grouse against his

parents, the circumstances on hand do not disclose strong

6 enough reasons to do so. Firstly, even according to the case of

the prosecution, the money given by Pattai Muniasamy to P.W.1

for safe custody, i.e., Rs.13,00,000/- (Rupees thirteen lakhs

only), had already been returned in instalments. Secondly, the

alleged relationship between Kalaiselvi and Mohankumar does not

directly concern the family of P.W.1 or the victim. Though

P.W.1 admitted that he intervened to convince the boy’s family

to get the couple married, this does not in any way amount to a

motive for killing his son when the marriage did not come

through and problems arose therefrom. The third alleged

motive, that P.W.1 had failed to intervene after Accused No.2

was fired from his job due to misconduct, is also unconvincing.

Similar is the case for the alleged motive that P.W.1 had

refused to make Muniasamy a partner in his liquor business.

14. Hence, considering the aforesaid facts and circumstances,

the aspect of `motive’, as put forth by the prosecution,

appears to be very weak, and the same cannot be believed as a

reason to commit the murder of the victim.

15. So far as the recovery of two knives is concerned, it is

based on the alleged statement made by Accused No.1. The

Investigating Officer deposed that after the seizure of the

knives, the same were not sealed at all, and he merely put them

in a box and sent the same to the Judicial Magistrate. Such

procedure adopted by the prosecution is highly improper and

illegal, inasmuch as the box could have been opened at any

stage by anybody and the weapon tampered with or replaced.

7 Hence, the aspect of recovery is also not proved in accordance

with law. Even otherwise, the circumstance of recovery from

Accused No.1 alone will not be sufficient to convict him for

the offence punishable under Section 302 of the IPC, when all

the remaining evidence of the prosecution is unbelievable.

16. Thus, the accused are entitled to get the benefit of doubt

and are entitled to be acquitted.

17. Accordingly, the appeal is allowed, and the judgment dated

29.08.2001 passed by the First Additional District and Sessions

Judge-cum-Chief Judicial Magistrate, Madurai in S.C.No.250 of

2000 as affirmed by the High Court is set aside, and the

appellants are acquitted of the charges levelled against them.

The appellants are directed to be released forthwith if not

required in any other case.

.........................J. (MOHAN M.SHANTANAGOUDAR)

........................J. (DINESH MAHESHWARI)

NEW DELHI;

JANUARY 23, 2019.

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