Sampath Kumar vs Inspector Of Police,Krishnagiri

Sampath Kumar ...Appellant

Versus

Inspector of Police, Krishnagiri ...Respondent

(With Crl. Appeal No. 66/2010 and Crl. Appeal No.1205/2010)

J U D G M E N T

T.S. THAKUR, J.

1. These appeals by special leave call in question the

correctness of an order dated 30th April 2009 passed by the High

Court of Madras, whereby Criminal Appeal No. 1008 of 2007 filed

by the appellants against their conviction under Section 302 read

with Section 34 IPC has been dismissed and the sentence of

imprisonment for life awarded to them by the trial Court upheld.

2. Briefly stated, the prosecution case is as under:

The appellants, namely, Shanmugam, Velu and Sampath

Kumar were close friends of the deceased-Senthil Kumar and

Palani (PW7). Appellant-Velu has a younger sister, named, Usha

who, according to the prosecution story, had fallen in love with

the deceased-Senthil Kumar and wanted to marry him.

Appellant-Velu did not approve of the said relationship and had

asked appellant-Shanmugan to convey to the deceased-Senthil

Kumar to keep off Usha or else he would break his hands and

legs. In July 2002, appellant-Velu appears to have come on leave

from his army services and during this period he and his mother-

Balammal are said to have informed Murugambal (PW2)- mother

of the deceased, sister-Lakshmi (PW3) and her husband-Selvam

(PW1) that they had decided to give Usha in marriage to the

deceased-Senthil Kumar. Further discussion regarding the

marriage was, however, deferred till the passing of the Tamil

month Adi, considered inauspicious for finalisation of matrimonial

alliance. On 27th July, 2002 i.e. two days after the marriage

proposal was made, Ramesh (PW9) was employed to paint the

house of Lakshmi (PW3) when he saw the deceased-Senthil

Kumar and Usha embracing one another in one of the rooms of

the house. According to Ramesh (PW9), even the appellant-

Shanmugam saw Usha and Senthil Kumar in a romantic embrace.

The appellant-Shanmugam was also, according to the

prosecution, one of the suitors of Usha and had a one-sided

affection for her. On the following day, i.e. 28th July, 2002 PWs.

1 to 3, their neighbour and the appellant-Shanmugam went to a

theatre to see a movie and retuned home around 9.30 p.m. While

Selvam (PW1), Murugambal (PW2) and Lakshmi (PW3) retired to

bed inside the house after dinner, the deceased-Senthil Kumar

and Palani (PW7) slept as usual in the verandah of the house.

The appellant-Shanmugam also used to sleep with them but for

some reason he did not turn up to do so on that day. At about

2.45 a.m. on the night intervening 28th and 29th July, 2002, Palani

(PW7) heard the sound of a stone being thrown. He woke up to

see the appellant-Shanmugam standing near the head of the

deceased and the remaining two appellants also standing close

by. The prosecution case is that Palani (PW7) was threatened by

the appellants not to disclose to anyone regarding anything for

otherwise they would kill him also. At this, Palani (PW7) shouted

and ran to hide himself on the rear side of the house. In the

meantime, PWs 1 to 3 who were sleeping inside the house also

awoke upon hearing the noise and started shouting for help. This

woke up their neighbour (PW8) in the opposite house who went

over to the house and opened the door to help them come out.

PWs 1 and 8 then went to the rear side of the house to find the

appellant-Shanmugam lying beside a plantain tree with his hands

tied with a cloth.

It was also noticed on removing the blanket covering the

deceased that someone had smashed his head with a stone which

was lying at his side. When the appellant-Shanmugam was asked

as to who had beaten him and thrown him behind the house, he

stated that it was some stranger who had done so. Senthil was

rushed to the hospital but died en-route. Selvam (PW1) went to

the police station and lodged an oral complaint. The police

registered a case under Sections 302 and 324 IPC.

3. After completion of the investigation the police filed a

charge-sheet against the appellants accusing them of committing

the murder of Senthil Kumar. The appellants were then

committed to the Sessions Judge, where they pleaded not guilty

and claimed trial. At the trial the prosecution examined as many

as 18 witnesses to prove its case. The Sessions Judge eventually

came to the conclusion that the prosecution had proved its case

beyond a reasonable doubt and accordingly convicted the

appellants for the murder of the deceased-Senthil Kumar and

sentenced them to undergo imprisonment for life under Section

302 read with Section 34 IPC. They were also sentenced to pay a

fine of Rs.2,000/- each and in default of payment of fine, to

undergo further rigorous imprisonment for two years. The

Sessions Judge based his conviction primarily on the strong

motive which appellants Shanmugam and Velu had to do away

with the deceased due to his love affair with Usha. The Sessions

Judge relied heavily upon the deposition of Palani (PW7) and the

letter Exh. P-22 allegedly written by appellant-Shanmugam to the

mother of the deceased, Murugambal (PW2) accusing appellant-

Velu to be the person responsible for the death of the deceased.

4. Aggrieved by their conviction and sentence imposed upon

them, the accused person preferred Criminal Appeal

No.1008/2007 before the High Court of Madras which appeal has

been dismissed thereby confirming the conviction and sentence

recorded by the trial Court. The High Court held that while the

deposition of Palani (PW7) was reliable, letter Exh. P-22 allegedly

written by the appellant-Shanmugam to the mother of the

deceased, Murugambal (PW2) was not. The confessional

statement was held to be inadmissible having been produced

after the statement of the accused persons had been recorded

under Section 313 Cr.P.C. Independent of the said document, the

High Court felt that the evidence on record formed a complete

chain of circumstances that unerringly pointed to the guilt of the

appellants. The present appeals assail the correctness of the said

judgment as noticed above.

5. Mr. K. Kanagaraj, learned senior counsel for the appellant

strenuously argued that the trial Court as also the High Court had

fallen in error in holding that the charge against the appellants

had been proved beyond a reasonable doubt. He urged that the

entire case was based on circumstantial evidence and that the

courts below had failed to keep in view the legal requirements

attracted to cases that are based on circumstantial evidence. He

further argued that the deposition of Palani (PW7) was not

reliable for reasons more than one and the trial Court as also the

High Court had committed an error in ignoring those reasons.

The fact that there was a motive, assuming that any such motive

had been established in the present case, was also not sufficient

by itself to justify the conclusion that the appellants were

responsible for the murder of the deceased.

6. The legal position regarding the standard of proof and the

test which the circumstantial evidence must satisfy is well-settled

by a long line of decisions of this Court. It is unnecessary to

burden this judgment by making reference to all such decisions.

We are content with reference to some of those decisions. In

Sharad Birdhichand Sarda v. State of Maharashtra (1984)

4 SCC 116, this Court laid down the following five tests to be

satisfied in a case based on circumstantial evidence:

"(1) The circumstances from which the conclusion of guilt is to

be drawn should be fully established.

(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 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."

7. The decision of this Court in Aftab Ahmad Ansari v.

State of Uttaranchal (2010) 2 SCC 583 is a timely reminder

of the abovementioned requirements in the following words:

"In cases where 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. Each

fact must be proved individually and only thereafter the court

should consider the total cumulative effect of all the proved

facts, each one of which reinforces the conclusion of the guilt.

If the combined effect of all the facts taken together is

conclusive in establishing the guilt of the accused, the

conviction would be justified even though it may be that one

or more of these facts, by itself/themselves, is/are not

decisive. The circumstances proved should be such as to

exclude every hypothesis except the one sought to be proved.

But this does not mean that before the prosecution case

succeeds in a case of circumstantial evidence alone, it must

exclude each and every hypothesis suggested by the accused,

howsoever extravagant and fanciful it might be."

8. Coming to the facts of the present case, the prosecution

relies entirely upon the deposition of PWs. 1, 2, 3 and 7. Of

these depositions PWs. 1, 2 and 3 are not admittedly eye-

witnesses to the occurrence, nor have they stated anything

against the appellants except that the deceased was fond of Usha

and wanted to marry her which was not to the liking of her

brother-Velu, the appellant before us. It is only the deposition of

Palani (PW7) that holds the key to whether the appellants are

guilty or innocent. According to this witness who was sleeping

with the deceased in the verandah of the house of PWs 1 to 3, at

about 2.45 a.m. at night he heard a sound that woke him up. He

also noticed the appellants standing near the deceased.

According to the witness, the appellants threatened him not to

disclose anything to anyone otherwise he would meet the same

fate. The witness, however, made no disclosure to PWs. 1, 2 and

3 who were inside the house, even when they had been woken

up because of the sound and wanted to come out but could not

because the door was bolted from outside. He made no

disclosure of what he had seen even after the police had arrived

at the scene after the registration of the case. In his statement

before the police under Section 161 Cr.P.C., Palani (PW7) made

no such accusations against the appellants nor did he disclose to

anyone that he had seen the accused persons on the spot around

the time of the commission of the offence. It was only five years

after the occurrence that the witness for the first time disclosed

in the Court the story about his having seen the appellants

standing near the deceased when the former woke up on account

of the noise of a stone falling hard on the ground. The witness

did not offer any explanation, much less a cogent and acceptable

one for his silence for such a long period. His assertion that he

was scared by the appellants even after they had been taken into

custody by the police and, therefore, did not reveal anything

about the actual events till he had the courage to come to the

Court to make a statement, is hard to believe. At any rate,

reliance upon the deposition of a witness who has made such a

material improvement in his version is wholly unsafe unless it is

corroborated by some other independent evidence that may

probabilize his version.

9. In Narayan Chetanram Chaudhary & Anr. v. State of

Maharashtra (AIR 2000 SC 3352), this Court held that while

discrepancies in the testimony of a witness which may be caused

by memory lapses were acceptable, contradictions in the

testimony were not. This Court observed:

"Only such omissions which amount to contradiction in

material particulars can be used to discredit the testimony of

the witness. The omission in the police statement by itself

would not necessarily render the testimony of witness

unreliable. When the version given by the witness in the Court

is different in material particulars from that disclosed in his

earlier statements, the case of the prosecution become

doubtful and not otherwise. Minor contradictions are bound to

appear in the statements of truthful witnesses as memory

sometimes plays false and the sense of observation differ

from person to person."

10. The difference between discrepancies and contradictions

was explained by this Court in State of Himachal Pradesh v.

Lekh Raj and Anr. (AIR 1999 SC 3916). Reference may also

be made to the decision of this Court in State of Haryana v.

Gurdial Singh & Pargat Singh (AIR 1974 SC 1871), where

the prosecution witness had come out with two inconsistent

versions of the occurrence. One of these versions was given in

the Court while the other was contained in the statement made

before the Police. This Court held that these are contradictory

versions on which the conclusion of fact could not be safely

based. This Court observed:

"The present is a case wherein the prosecution witnesses have

come out with two inconsistent versions of the occurrence.

One version of the occurrence is contained in the evidence of

the witnesses in court, while the other version is contained in

their statements made before the police...In view of these

contradictory versions, the High Court, in our opinion, rightly

came to the conclusion that the conviction of the accused

could not be sustained."

11. Reference may also be made to the decision of this Court

in Kehar Singh and Ors. v. State (Delhi Administration) AIR

1988 SC 1883. This Court held that if the discrepancies between

the first version and the evidence in Court were material, it was

safer to err in acquitting than in convicting the accused.

12. In the present case the statement made by Palani (PW7)

is in complete contrast with the statement made by him before

the Police where the witness stated nothing about having seen

the appellants standing near the deceased around the time of the

incident. This omission is of very vital character. What affects

the credibility of the witness is that he did not in his version to

the police come out with what according him is the truth, but

withheld it for a period of five years till he was examined as a

prosecution witness in the Court. This Court in Vadivelu Thevar

v. The State of Madras (AIR 1957 SC 614) classified

witnesses into three categories, namely, (i) those that are wholly

reliable, (ii) those that are wholly unreliable and (iii) who are

neither wholly reliable nor wholly unreliable. In the case of the

first category the Courts have no difficulty in coming to the

conclusion either way. It can convict or acquit the accused on the

deposition of a single witness if it is found to be fully reliable. In

the second category also there is no difficulty in arriving at an

appropriate conclusion for there is no question of placing any

reliance upon the deposition of a wholly unreliable witness. It is

only in the case of witnesses who are neither wholly reliable nor

wholly unreliable that the Courts have to be circumspect and

have to look for corroboration in material particulars by reliable

testimony direct or circumstantial.

13. To the same effect is the decision of this Court in Lallu

Manjhi v. State of Jharkhand, (AIR 2003 SC 854) where this

Court felt that the testimony of the witness Mannu (PW9) could

neither be totally discarded nor implicitly accepted. Mannu was a

witness who could have been naturally present with his brother

while ploughing the field. However, his testimony was found to

have been improved substantially at the trial. He was considered

neither wholly reliable nor wholly unreliable.

14. In the present case the testimony cannot be wholly

reliable or wholly unreliable. He is not a chance witness who had

no reason to be found near the deceased at the time of the

occurrence. There is evidence to show that Palani (PW7) used to

sleep with the deceased-Senthil in the verandah of the house.

What makes it suspect is that the witness has, despite being a

natural witness, made a substantial improvement in the version

without their being any acceptable explanation for his silence in

regard to the fact and matters which was in his knowledge and

which would make all the difference in the case. The Court would,

therefore, look for independent corroboration to his version,

which corroboration is not forthcoming. All that is brought on

record by the prosecution is the presence of a strong motive but

that by itself is not enough to support a conviction especially in a

case where the sentence can be capital punishment. In N.J.

Suraj v. State represented by Inspector of Police (2004)

11 SCC 346, the prosecution case was based entirely upon

circumstantial evidence and a motive. Having discussed the

circumstances relied upon by the prosecution, this Court rejected

motive which was the only remaining circumstance relied upon by

the prosecution stating that the presence of a motive was not

enough for supporting a conviction, for it is well-settled that the

chain of circumstances should be such as to lead to an irresistible

conclusion, that is incompatible with the innocence of the

accused. To the same effect is the decision of this Court in

Santosh Kumar Singh v. State through CBI. (2010) 9 SCC

747 and Rukia Begum v. State of Karnataka AIR 2011 SC

1585 where this Court held that motive alone in the absence of

any other circumstantial evidence would not be sufficient to

convict the appellant. Reference may also be made to the

decision of this Court in Sunil Rai @ Paua and Ors. v. Union

Territory, Chandigarh (AIR 2011 SC 2545). This Court

explained the legal position as follows :

"In any event, motive alone can hardly be a ground for

conviction. On the materials on record, there may be some

suspicion against the accused but as is often said suspicion,

howsoever, strong cannot take the place of proof."

15. Suffice it to say although, according to the appellants the

question of the appellant-Velu having the motive to harm the

deceased-Senthil for falling in love with his sister, Usha did not

survive once the family had decided to offer Usha in matrimony

to the deceased-Senthil. Yet even assuming that the appellant-

Velu had not reconciled to the idea of Usha getting married to the

deceased-Senthil, all that can be said was that the appellant-Velu

had a motive for physically harming the deceased. That may be

an important circumstance in a case based on circumstantial

evidence but cannot take the place of conclusive proof that the

person concerned was the author of the crime. One could even

say that the presence of motive in the facts and circumstances of

the case creates a strong suspicion against the appellant but

suspicion, howsoever strong, also cannot be a substitute for proof

of the guilt of the accused beyond a reasonable doubt.

16. In the totality of the circumstances, we are of the view

that the prosecution has not proved its case against the

appellants who are, in our opinion, entitled to acquittal giving

them the benefit of doubt. In the result, these appeals succeed

and are hereby allowed. The appellants shall stand acquitted of

the charges framed against them giving them the benefit of

doubt.

..........................................J.

(T.S. THAKUR)

..........................................J.

(GYAN SUDHA MISRA)

New Delhi

March 2, 2012