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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

        CRIMINAL APPEAL NO. 1015 OF 2010

NATHIYA …APPELLANT

VERSUS

STATE REP. BY INSPECTOR OF POLICE,  BAGAYAM POLICE STATION, VELLORE            …RESPONDENT  

WITH

CRIMINAL APPEAL NO. 1011 OF 2010

SURESH …APPELLANT

VERSUS

STATE REP. BY INSPECTOR OF POLICE, BAGAYAM POLICE STATION, VELLORE        …RESPONDENT  

J U D G M E N T

AMITAVA ROY, J.

The appellants  being aggrieved  by the  affirmation of  their

conviction  under Section 302 read with Section 34 IPC and the

sentence of life imprisonment and fine of Rs. 10000/-, in default R.I.

for  further  six  months,  by  the  High  Court  by  its  verdict   dated

27.11.2008, seek this Court's  panacean intervention for redress.

2. We have heard Mr. Jayant Muthur Raja, learned counsel for

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the appellant Nathiya,  in Criminal Appeal No. 1015 of 2010, Mr.

P.R. Kovilan, learned counsel for the appellant Suresh, in Criminal

Appeal No. 1011 of 2010 and Mr. M. Yogesh Kanna, learned counsel

for the State.  

3. The prosecution  was set in motion by the First Information

Report lodged on 27.3.2006 at 2.30 a.m. by one Gunasekaran, the

cousin brother  of  the  deceased Gurunathan,  the  husband of  the

appellant Nathiya (accused No. 1).  The appellant Suresh (accused

No. 2 ) is allegedly the paramour  of accused No. 1.   It was averred

in the FIR that the deceased was a book binder by occupation and

owned some properties located in his village, worth several lakhs.

He also had his own house.   The house of the appellant Suresh was

also  situated  nearby.   It  had  been  alleged  that  the  appellant

Nathiya, the wife of the deceased had developed  illicit  relationship

with Suresh which was not only to the knowledge of the deceased

but also of  the informant.   The FIR discloses that  this  depraved

liaison between the accused persons had also been brought to the

notice of the local panchayat and that though, it had advised the

appellants against the continuation of such alliance, they did not

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desist  therefrom.   Being  appalled,  though  the  deceased  at  some

point of time, had shifted to a rented house elsewhere  but had to

return  under financial compulsions to his original place of abode.

This,  according  to  the  FIR,  facilitated  the  continuance  of  the

extra-marital  relationship of Nathiya with Suresh.  It was alleged in

the FIR that in retaliation to the persistent  endeavours made by the

deceased to make Nathiya mend her ways, she used to  torture him

and  threaten  that  she  would  eliminate  him  and  would  sell  his

properties and elope  with her paramour.  The informant claimed

that not only a few days prior to the incident,  the deceased had

confided him that his wife had tried to suffocate him to death by

pressing a pillow on his face, on 26.3.2006, i.e.  on the eve of the

incident  as  well,  he  had  disclosed  to  him  about  a   conspiracy

between  the  two  accused  persons  to  murder  him  and  grab  his

properties.

4. The informant further mentioned that in the intervening night

of  26.3.2006/27.3.2006,  while  he  was  asleep,  Pushpa,  wife  of

Dinakaran, his neighbour informed him that the dead body of the

deceased had been seen floating in a nearby well.  On getting this

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information, the informant rushed to the place of occurrence   and

with the help of  Pandurangam and Dinakaran, retrieved the body

from the well.  On further enquries, he could come to learn that one

Packiammal, at about 11 p.m., heard the shrieks  of the deceased

followed by a loud thud from the well.  The informant referred  to

the accused persons as the suspects.   It was incidentally mentioned

as well that they were not available in their house at that point of

time. This FIR was registered as  Bagayam P.S. Crime No. 278 of

2006 and investigation followed.

5. Eventually  the  charge-sheet  was  submitted  against  the

accused persons.  The case was committed  for sessions trial.  The

appellants having denied the charge, were made to stand trial and

finally by the judgment and order dated 13.11.2007 passed in S.C.

No. 94 of 2007, the appellants were convicted under Section 302

read with Section 34 IPC and sentenced as above. To reiterate, their

conviction and sentence has been upheld by the High Court by the

judgment and order impugned herein.

6. Before  adverting  to  the  rival  submissions  advanced,  apt  it

would be  to undertake an analysis  of the evidence on record  to the

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extent indispensable.      

PW1  Gunasekaran,  the  informant  while  substantially

reiterating his version in the FIR stated on oath that the deceased

was a   dwarf in structure and that though being  exasperated   with

the incorrigible conduct of his wife in indulging in the extra-marital

relationship  with  the  Suresh,  he  had  shifted  his  family  to

Idaiyamsathu Village,  because of his meager means, he could not

afford  to  stay  there  and  returned  to  Kollaimedu   within  three

months.  The witness stated that the deceased inspite of  his best

efforts could not stop the unwholly alliance  between the accused

persons and  used to very often share his distress with him.  He

stated that on receiving the information about the dead body of the

deceased in the  well,  he  rushed to  the  place  of  occurrence  and,

amongst others,  saw that  chappals of the deceased  lying by the

side of the well.  He owned the FIR lodged by him and reiterated the

suspicion  about the culpability of the two appellants.

In cross-examination, he denied the defence suggestion that

the the grand-father of the deceased had executed a will in favour of

him as well as the deceased. He admitted that the appellant Nathiya

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and her daughter were the only legal heirs of the deceased  and that

no  incriminating material  was recovered  by the police from the

house of Nathiya.  He admitted  as well to have not disclosed  the

illicit relationship between the appellants to the police.  He admitted

too  that the well  was located at a distance of 2.5 feet from the

house of  Packiammal and that there were other houses situated

within 200 feets from there.

PW2 Rajan, who was also a resident of Idaiyamsathu Village,

deposed that the appellant Nathiya did not respect the deceased  as

her husband,  who did not know  swimming  and cycling.  He stated

that on 26/27.3.2006, while  he was sleeping, he heard that the

deceased had fallen in the well and on reaching the spot, found his

dead  body  floating  in  the  well  with  his  face  downwards.  He

mentioned  too  about  the  illicit  relationship  between  the  two

appellants for which time and again, the deceased  had warned his

wife Nathiya.  He also claimed that the deceased had disclosed to

him about the immoral character of his wife for which he used to

console him.  He stated as well that few days prior to the incident,

the deceased had disclosed  to him that Nathiya had tried to murder

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him by covering his face with a pillow.

In cross-examination, however he conceded  that he had not

disclosed to the police about the incident of the attempt to murder

the deceased by his wife.  The witness admitted that PW1 and the

deceased  had  equal  shares  in  the  well.  He  also  admitted  of  not

having  disclosed  to  the  police  about  the  immoral  relationship

between the appellants.

PW3 Packiammal stated  on  oath  to  have  heard   in  the

intervening night of 26/27.3.2006, cries of someone  and then  a

sound from the well.  She thereafter raised alarm apprehending that

some  body  might  have  fallen  in  the  well  and  that   in  the  next

morning, she heard that Gurunathan had died.  She stated that the

house of the deceased  and that of the Suresh were near that of

hers.

PW4 Dinakaran testified that in the night of the occurrence,

Packiammal  (PW3)  had  raised  alarm  whereupon  he  went  to  the

place of occurrence and found that the deceased had fallen into the

well  whereafter  his body was taken out therefrom.  According to

him, though the police reached the place of occurrence some time

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thereafter,  he was not interrogated.  He, however mentioned about

the presence of both the appellants  at the time when the dead body

was  retrieved from the well at about 11 p.m.  He stated as well that

the appellant Nathiya was weeping, sitting near the dead body.

PW5  Dr.  Anbalagan,  who  performed  the  post-mortem

examination  of the dead body  on 27.3.2006 at about 6.30 p.m.

detected the following extrenal injuries:

1. Lacerated wound 2 cm x  1 cm x ½ cm. deep on

the right side and back.

2. One cut injury measuring 2 cm x 1 cm x ½ cm.

deep on the rear part of the head.

PW5 mentioned that  the  occipital  bone was broken measuring  3

c.m. on rear part of the head and that  blood clot was also found on

the  broken  bone.   Amongst  the  internal  injuries  detected,  he

mentioned about traverse fracture of the occipital bone.  He opined

that  the  deceased  had  died  due  to  grievous  head  injuries,

suffocation  and  heart  failure.  According  to  him,  the  deceased

appeared   to  have  died  because  of  drowning   in  the  water.  He

admitted  that if a person becomes  unconscious out of suffocation

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and  is thrown into a well, he is  likely to die of the above injuries.

 In cross-examination, he however opined as well that if a

person falls from a very high height, he is likely to sustain injuries

on the rear part of the head.     

PW9  Kamalakannan,  Village  Administrative  Officer,  at  the

relevant time, testified that on 27.3.2006, both the appellants had

appeared  at his office and had voluntarily confessed that they had

smothered  the deceased and that thereafter had pushed him down

in the well.  This witness stated that the confessional statements of

the appellants were recorded by him in the presence of  Kothandan,

his  assistant  and  Palavansathukuppam  Gunasekaran,  Village

Administrative Officer, Virupatchipuram Village  and that  thereafter

he  had handed over  the  accused persons  with the  confessional

statements to the police.  He denied the suggestion that the accused

persons had not appeared before him at his office or had not made

any  confessional statement.

PW10 Kothandan, who at the relevant time, was the Village

Assistant at Palavansathu Village, deposed that on 27.3.2006, while

he,  Kamalakannan,  Village  Administrative  Officer  and

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Palavansathukuppam Gunasekaran, Village Administrative Officer,

Virupatchipuram   were  present  in  their  office,  the  appellants

appeared there and voluntarily gave their confessional statements

admitting to have killed the deceased and thrown him in the well.

The witness affirmed  as well that their statements were recorded by

PW9 Kamalakannan, whereafter they had  taken the appellants to

the police station  following which they were arrested. He also stated

that  the confessional  statements were handed over  to the police.

According  to  this  witness,   appellant  Nathiya  also  produced  the

saree gifted to her by  Suresh and the witness identified the said

article as MO1.  He also referred to a photograph of the appellants

produced by Suresh before the police and exhibited the same as

MO2.        

In cross-examination, this witness admitted to have signed

the  voluntary  statement  along  with  PW9  Kamalakannan.  He

however admitted that he did not disclose about the confessional

statements to anybody. He denied the suggestion that neither the

appellants had appeared  at the office of the Village Administrative

Officer nor had made any confessional statement.

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PW11  Kumar  Devikan, the  Investigating  Officer,   amongst

others, admitted that on 27.3.2006 at about 2 p.m.,  the  appellants

were  produced  before  him  at  the  police  station  by  the  Village

Administrative Officer of Palavansathu and Virupatchipuram along

with their confessional statements.   

7. The learned counsel  for the appellants have argued  that  the

circumstantial evidence adduced by the prosecution, in absence of

any eye witness to the incident, is extremely shaky, incomplete and

incoherent so as to warrant conviction of the appellants and  they

are thus entitled in law to be exonerated from the charge of murder

levelled against them.   While  repudiating the alleged disclosures

by the deceased about the infidel  character of his wife to PW1 and

PW2, as  reproduced by them, to be hearsay evidence  and thus of

no significance, it has been urged that  the prosecution case stands

discredited as well on the ground of  suppression of  the alleged

confessional statement  of the appellants recorded  by the Village

Administrative Officer.  Apart from the fact that the deceased was

not seen in the company of the appellants  immediately prior to the

incident  and that thus the “last seen theory” is not applicable to the

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facts of the case,  they have urged that  the medical evidence as well

does not conclusively  prove  that  the death of the deceased was

homicidal and not suicidal.  Dismissing the recovery of saree  and

the photograph of the appellants to be wholly inconsequential  in

the face of  want of any  credible evidence to establish the complicity

of the appellants with the crime, it has been insistently argued  that

the possibility of PW1, the cousin brother of the deceased, who had

been interested in this property, falsely  implicating the appellant

Nathiya in particular for illegal gain,  cannot be wholly ruled out.

The learned counsel  have maintained in unison that even assuming

that  the  imputation  of  illicit  relationship  between  the  appellants

had  been  proved,  the  same  per  se,   even  if  at  the  best  is  a

suspicious  circumstance,  does  not  establish  beyond  reasonable

doubt  the culpability of the appellants.   In the prevalent facts and

circumstances, the possibility of  the deceased committing suicide

cannot be excluded and that on that count as well, the appellants

are entitled to the benefit of doubt .

As against this, the learned  counsel for the respondent has

argued  that the  evidence adduced on behalf of the prosecution  is

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adequately cogent, persuasive and clinching  and thus  in the face of

concurrent findings of the guilt of the appellants, this Court  would

not  upturn the same.  According to him,  the  factum of  sustained

illicit  relationship between the appellants has been proved beyond

doubt and  in the face of the revelation made by the deceased about

the previous attempts to eliminate him,  the charge  against the

appellants  stands proved on the basis of the materials on record.

Referring to the medical evidence, the learned counsel has argued

that  it  is  apparent  therefrom   that   the  deceased  was   first

smothered and then thrown into  a  well  in  an unconscious state

whereupon he died due to the head injuries sustained.  According to

the learned counsel, the omission on the part of the prosecution to

produce the recorded confessional statements of the appellants  is

wholly insignificant in the face of  the sworn testimony of  PW9  and

PW10 to that effect.  

8.   The competing arguments and the materials on record have

received  our  due  scrutiny.   It  is   patent   in  the  present  factual

setting that there is no eye witness to the occurrence and that the

prosecution case is based wholly on circumstantial evidence.  The

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genesis   of  the  suspicion  against  the  appellants,  being  their

amorous association to the anguish disliking of  the deceased,  he

being  almost reduced to a helpless entity, having failed to prevent

such liaison  inspite of his best endeavours.  There is indeed  some

evidence suggestive of such an alliance between the appellants at

the  relevant  point  of  time.   This,  per  se,  in  our  comprehension,

however, cannot be accepted as a decisive incriminating factor to

deduce  their culpability qua the charge of murder of the deceased

Gurunathan.   

9. The place of  occurrence is a well, away from the residence of

the deceased for which any  definitive presumption against his wife

Nathiya, as a conspirator of the crime,  cannot be drawn without the

risk of   going wrong to cast   a  burden on her,  as  contemplated

under Section 106 of the Evidence Act.

The    closest  circumstance  bearing   on  the  incident  is,

discernible from  the testimony of PW3  Packiammal  who stated to

have heard the shrieks  of the deceased, followed by a loud sound of

a  fall  inside  the  well.   There  is  no  evidence  that  immediately

thereafter,  the  appellants  were  seen  in  the  vicinity  of  the  well.

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Noticeably, the chappals of the deceased were  found  by the side of

the well.  The evidence of PW4 Dinakaran is, however, to the effect

that  when the dead body  was recovered  thereafter from the well,

both  the  appellants  were  present  and  Nathiya,  the  wife  of  the

deceased, was seen weeping by his side.     

The medical evidence  does not  refer to any external injury

indicative of  use of any external force on the deceased, resulting in

his  ante-mortem  suffocation  and  loss  of  consciousness,  to  be

thereafter dispatched into the well. The possibility that the cause of

death i.e. grievous head injury, suffocation and heart failure were

post fall  manifestations,  also cannot be ruled out as the medical

evidence admits  of such an eventuality as well.

The inexplicable omission on the part of the prosecution to

produce and prove the alleged confessional statements made by the

appellants and reduced into writing by PW9 and witnessed by PW10

substantially denudes  its case  of necessary credence to incriminate

them.  The oral testimony of these witnesses to the effect that such

confessional  statements  had  been  recorded,  ipso  facto  is  of  no

consequence.  Not only the contention that the  supposed disclosure

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by the deceased to PWs 1 and 2 about the immoral conduct of the

appellants is discardable being hearsay in nature, deserves  some

reflection, it is noticeable  that PW2, in his cross-examination, did

admit that he had not divulged the above fact to the police. PW10,

as well, did concede  that he had not revealed to anybody about the

confessional  statements  made  by  the  accused  persons.   The

recovery of a saree  produced by Nathiya said to have been gifted  to

her by Suresh and their joint  photograph, in the attendant facts

and circumstances and in the face of the other evidence on record,

does not clinch the issue in favour of the prosecution.   

10. The defence proposition that PW1 being the cousin brother of

the  deceased   had   framed  the  appellants  so  as  to  wrest   his

property in absence of his legal heirs in the above factual premise,

also cannot be lost sight of.  The imputation of sustained unchaste

conduct and the activities of the wife, if true, the possibility of the

deceased committing  suicide as an extreme step in  a unbearable

anguished state of mind also cannot be wholly excluded.

11. On an analysis  of  the overall  fact situation, we are of  the

considered opinion  that the  chain of circumstantial  evidence relied

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upon by the prosecution to prove the charge is visibly incomplete

and incoherent to permit  conviction of the appellants on the basis

thereof without any trace of doubt.  Though the materials on record

do raise a needle of suspicion towards them, the prosecution has

failed to  elevate  its case from the realm  of “may be true” to  the

plane of  “must be true” as  is  indispensably required in law for

conviction  on a  criminal  charge.   It  is  trite   to  state  that   in  a

criminal trial, suspicion, howsoever grave, cannot substitute proof.

12. The   classic  enunciation   of  the  law  pertaining  to

circumstantial evidence, its relevance and decisiveness, as a proof of

charge  of  a  criminal  offence,  is  amongst  others  traceable  to  the

decision of this Court in Sharad Birdhichand Sarda vs. State of

Maharashtra (1984) 4 SCC 116.   The  relevant   excerpts   from

paragraph 153 of the decision  is assuredly apposite:

“153.(2) The facts  so established  should be consistent only  with  the  hypothesis  of  the  guilt   of  the accused...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.

*                  *                    * (5) there  must be a chain of evidence  so complete as

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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.”

As recently as in Sujit Biswas vs. State of Assam (2013) 12

SCC 406 and  Raja @ Rajendra vs. State of Haryaya (2015) 11

SCC  43,  it  has  been  propounded  that  in  scrutinizing   the

circumstantial evidence, a court is required  to evaluate it  to ensure

that the chain of events is established clearly and completely to rule

out any  reasonable likelihood of innocence of the accused.  It was

underlined  that   whether  the  chain  is  complete  or  not   would

depend on the facts of each case emanating from the evidence and

no universal yardstick should ever be attempted. That in judging the

culpability  of  the  accused,  the  circumstances  adduced  when

collectively considered, must lead only to the irresistible conclusion

that the accused alone is  the perpetrator of the crime alleged. That

the  circumstances   established  must  be  of   a  conclusive  nature

consistent only with the hypothesis  of the guilt of the accused, was

emphatically propounded.

13. Tested   on  the  touchstone  of  the  above  judicially    laid

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parameters, defining  the quality  and content of the circumstantial

evidence, essential to bring home the guilt of an accused person on

a  criminal  charge,  we  are  of  the  unhesitant   opinion  that  the

prosecution, in the case in hand, has failed to meet  the same. The

materials  on  record  admit  of  substantial  doubt  vis-a-vis  the

complicity  of the  appellants in the crime.

14. Having regard to the  evidence adduced, it would be wholly

unsafe to sustain their conviction.  They are thus entitled to the

benefit of doubt.  The appeals thus succeed  and are allowed. The

bail bonds of appellant Nathiya, who is on bail, stands discharged.

Appellant  Suresh  be  released  from  the  jail  immediately,  if  not

required in any other case.  

             …...........................................J.

      (DIPAK MISRA)

         …...........................................J. (AMITAVA ROY)

NEW DELHI; NOVEMBER 8, 2016.