Venkatesan vs State Of Tamil Nadu

were responsible for murder of Rajendran

(hereinafter referred to as the `deceased') on

19.4.1988 at about 10 PM. Trial court acquitted A1

while holding appellant guilty of offence punishable

under Section 302 IPC. Background facts as

projected in a nutshell are as follows:

PW.2 is the father and PW.3 is the younger brother of the

deceased Rajendran. They were residents of Valluvampakkam.

The accused were also residing in the same village. The

deceased was having illicit relationship with the wife of A1 and

PW.2 took his son to task and advised him not to have any

relationship with the wife of A1. It is also the case of the

prosecution that the deceased tried to molest PW.5 the wife of

A2. This is said to be the motive for the occurrence.

On 19.4.1988, PW.2 left Vallugampakkam for Madras to

see his daughter and when returned at 8.00 p.m. on

2 21.4.1988 to the house he found his son Rajendran missing

from the house. He questioned his other son PW.3 who then

told him that the deceased left in the company of A2 for

Ranipet and did not return. PW.2 thereafter advised PW.3 to

go and search for the deceased at Ranipet. Accordingly, PW.3

went to Ranipet and searched for the deceased, but could not

trace him.

Meanwhile, on 22.4.1988 at 7.0 a.m. PW.1, the Village

Administrative Officer of Bagaveli, was informed by his menial

that a body is lying in a field. PW.1 went to the spot and

found the body. Around the neck of the body, a torn lungi,

M.O.5, was seen tied. PW.1 thereafter went to Kaveripakkam

Police Station where he gave a complaint to PW.14, the Sub-

Inspector of Police, at 11.45 a.m. and the same stands marked

as Ex.P1 in this case. PW.14 on the basis of Ex.P-1,

registered a case in Crime No.160 of 1988 under Section 174

Cr.P.C. Ex. P-14 is a copy of printed First Information Report.

P.W.14 reached the scene of occurrence where at 12.10 p.m.

he prepared an observation mahasar, Ex.P-2 in the presence

3 of PW.1 and also drew a rough sketch, Ex.P-15. the dead

body was caused to be photographed and M.O.4 series are the

photographs. He also seized M.Os 1 to 3, a shirt, a lungi, and

a banian respectively, from the scene under a mahasar Ex. P-

3. He has converted the crime to one of suspicious death and

sent copies of express report, Ex. P-16, to the court and to the

higher officials. He conducted inquest between 12.30 p.m.

and 2.30 p.m. over the dead body of Rajendran in the

presence of Panchayatdars during which he examined and

recorded the statements of PW.1 and others. Ex. P-17 is the

inquest report. After the inquest, PW.14 sent the dead body

with his requisition through PW.12 for post-mortem.

On completion of investigation the charge sheet was filed,

case was committed to the court of Sessions for trial. Accused

persons pleaded innocence. Undisputedly the case at hand is

a case of circumstantial evidence. While finding that the

evidence is inadequate to fasten the guilt on A1, the trial court

held A2, the appellant herein guilty based on the evidence of

PWs 3,4,8& 9 who claimed to have seen the deceased last in

4 the company of the appellant. The conviction, as noted above,

was challenged before the High Court. By the impugned

judgment the appeal was dismissed.

In support of the appeal learned counsel for the

appellant submitted that the evidence of PWs 3, 4, 8 & 9

should not have been relied upon. It is pointed out that all

these witnesses were examined after considerable length of

time. Further there was considerable gap between the time

the witnesses alleged to have seen the accused appellant in

the company of the deceased and the discovery of the dead

body on 22.4.1988. The Doctor PW 11 who examined the

dead body found that the same was in an extremely

decomposed state. There was no reason for PWs. 8 & 9 to

remember that appellant was in the company of the deceased

on a particular day. PW 4 did not also speak of the date but

only said that he had seen the appellant and the deceased on

a Tuesday. It is pointed out that in view of the nature of the

evidence adduced the trial court and the High Court should

not have convicted the appellant.

5

2. Before analyzing factual aspects it may be stated that for

a crime to be proved it is not necessary that the crime must be

seen to have been committed and must, in all circumstances

be proved by direct ocular evidence by examining before the

Court those persons who had seen its commission. The

offence can be proved by circumstantial evidence also. The

principal fact or factum probandum may be proved indirectly

by means of certain inferences drawn from factum probans,

that is, the evidentiary facts. To put it differently

circumstantial evidence is not direct to the point in issue but

consists of evidence of various other facts which are so closely

associated with the fact in issue that taken together they form

a chain of circumstances from which the existence of the

principal fact can be legally inferred or presumed.

3. It has been consistently laid down by this Court that

where a case rests squarely on circumstantial evidence, the

inference of guilt can be justified only when all the

6 incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of

any other person. (See Hukam Singh v. State of Rajasthan AIR

(1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR

1956 SC 316); Earabhadrappa v. State of Karnataka (AIR

1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985

SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC

350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC

1890). The circumstances from which an inference as to the

guilt of the accused is drawn have to be proved beyond

reasonable doubt and have to be shown to be closely

connected with the principal fact sought to be inferred from

those circumstances. In Bhagat Ram v. State of Punjab (AIR

1954 SC 621), it was laid down that where the case depends

upon the conclusion drawn from circumstances the

cumulative effect of the circumstances must be such as to

negative the innocence of the accused and bring the offences

home beyond any reasonable doubt.

7

4. We may also make a reference to a decision of this Court

in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC

193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

5. In Padala Veera Reddy v. State of A.P. and Ors. (AIR

1990 SC 79), it was laid down that when a case rests upon

circumstantial evidence, such evidence must satisfy the

following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

8 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

6. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ

1104), it was pointed out that great care must be taken in

evaluating circumstantial evidence and if the evidence relied

on is reasonably capable of two inferences, the one in favour

of the accused must be accepted. It was also pointed out that

the circumstances relied upon must be found to have been

fully established and the cumulative effect of all the facts so

established must be consistent only with the hypothesis of

guilt.

9

7. Sir Alfred Wills in his admirable book "Wills'

Circumstantial Evidence" (Chapter VI) lays down the following

rules specially to be observed in the case of circumstantial

evidence: (1) the facts alleged as the basis of any legal

inference must be clearly proved and beyond reasonable

doubt connected with the factum probandum; (2) the burden

of proof is always on the party who asserts the existence of

any fact, which infers legal accountability; (3) in all cases,

whether of direct or circumstantial evidence the best evidence

must be adduced which the nature of the case admits; (4) in

order to justify the inference of guilt, the inculpatory facts

must be incompatible with the innocence of the accused and

incapable of explanation, upon any other reasonable

hypothesis than that of his guilt, (5) if there be any reasonable

doubt of the guilt of the accused, he is entitled as of right to

be acquitted".

10

8. There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touch-

stone of law relating to circumstantial evidence laid down by

the this Court as far back as in 1952.

9. In Hanumant Govind Nargundkar and Anr. V. State of

Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed

thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

11 10. A reference may be made to a later decision in Sharad

Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC

1622). Therein, while dealing with circumstantial evidence, it

has been held that onus was on the prosecution to prove that

the chain is complete and the infirmity of lacuna in

prosecution cannot be cured by false defence or plea. The

conditions precedent in the words of the this Court, before

conviction could be based on circumstantial evidence, must be

fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be 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

12 (5) there must be a chain of evidence so compete 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.

11. Coming to the factual scenario it is to be noted that as

rightly contented by learned counsel for the appellant, that

PW 4 did not say that he had seen the appellant and the

deceased on any particular date. He had merely stated that he

had seen them on a Tuesday. The trial court and the High

Court without anything further came to hold that he meant

19.4.1988, because he stated that he saw them on Tuesday.

Similarly PW 9 has stated that he did not know as to which of

the accused i.e. whether A1 or A2 came with the deceased.

Interestingly he stated that only after an enquiry by the

inspector, he came to know the name of the appellant. He has

also stated that on a Tuesday night he had seen him. He

does not speak of any date. He also admitted in cross

examination that he does not remember who comes for taking

drinks as several persons were coming for taking drinks. It

13 was not explained as to how he remembered at the time of his

examination in Court which was after about 2 = years of the

alleged date of occurrence to have seen accused and the

deceased together. So far as the PW 8 is concerned he had

identified A2 for the first time in Court. In his cross

examination he accepted that he saw the appellant for the first

time after the day on which he had seen him. Before that he

did not see A2 and he did not give any identification mark of

A2 to police.

12. He has further admitted that after pointing out the

appellant, the police enquired as to whether he had seen the

person.

13. So far as the last seen aspect is concerned it is necessary

to take note of two decisions of this court. In State of U.P. v.

Satish [2005(3) SCC 114] it was noted as follows:

"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen

14 last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."

14. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006

(10 SCC 172] it was noted as follows:

"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.

28. In State of U.P. v. Satish [ 2005(3)SCC 114] this Court observed: (SCC p. 123, para 22) "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the

15 crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2."

(See also Bodhraj v. State of J&K (2002(8) SCC 45).)"

15. A similar view was also taken in Jaswant Gir v. State of

Punjab [2005(12) SCC 438].

16. Above being the position, the inevitable conclusion is

that the trial court and the High Court were not justified in

directing conviction of the appellant. He is acquitted of the

charges. The bail bonds executed pursuant to the order

granting bail shall stand discharged.

17. The appeal is allowed.

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

16 (Dr. ARIJIT PASAYAT)

..........................................J. (P. SATHASIVAM)

..........................................J. (AFTAB ALAM)

New Delhi, May 16, 2008

17