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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 639 OF 2011

Sangili @ Sanganathan  …Appellant

Versus

State of Tamil Nadu …Respondent

J U D G M E N T

Chelameswar, J.

1. This appeal arises out of the judgment dated 6th January  

2010  of  the  Madurai  Bench  of  the  Madras  High  Court  in  

Criminal Appeal No.506 of 2004.  

2. By the impugned judgment, the High Court confirmed  

the appellant’s conviction and sentence of imprisonment for  

life and a fine of Rs.10000/- under Section 302 of the Indian

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Penal Code, 1860 (for short “IPC”) awarded by the Sessions  

Court, Madurai in Sessions Case No.490 of 2003.   

3. The deceased Muthuramaligam was a high school going  

child studying Plus-Two.  PWs 1 and 2 are his parents.  PW-5  

Ramathilaga another young girl  was also a student of the  

same  school  where  the  deceased  was  studying.   The  

appellant herein was working for the father of PW-5.

4. According to the case of the prosecution, on 12.6.2002  

at  about  5.15  p.m.,  there  was  a  phone  call  from  the  

appellant herein to the deceased which was initially picked  

up by PW-1. According to PW-1 the caller identified himself  

by  his  name  (same  as  the  appellant).   After  some  

conversation  with  the  caller  the  deceased  went  out  by  

bicycle  informing  his  parents  that  he  would  return  soon.  

Unfortunately, he never returned.  On 14.06.2002 at about  

10 a.m., PW-1 went to the Oomachikulam Police Station and  

lodged a complaint Ex.P1 to the effect that Muthuramaligam  

was missing.

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5. PW-12  Head  Constable  received  the  complaint  and  

registered a Crime No.204 of 2003.  PW-15 Tr. Ponnuchamy  

is  the  Inspector  of  Police  of  the  abovementioned  police  

station.

6. On the same day, the appellant was arrested at about 8  

p.m.  According to the prosecution,  the appellant  made a  

confessional statement which led to certain recoveries.  The  

admissible portion of the statement made by the appellant is  

Ex.P5.  On the basis of such a statement, PW-15 altered the  

First Information Report (FIR) and registered the case under  

Section  302  IPC  and  dispatched  the  FIR  to  the  Court.  

Thereafter,  he  went  led  by  the  accused to  the  spot  from  

where the dead body of the deceased was recovered around  

9.45  p.m.   Thereafter,  he  got  the  inquest  conducted  and  

prepared a report Ex.P18 around 2.30 a.m. i.e. in the early  

hours  of  15.06.2002.   The  dead  body  was  sent  to  the  

hospital  for  post  mortem  examination.   PW-15  thereafter  

proceeded to the house of the appellant and seized MOs 7  

and 8 (two knives) from the backyard of the house of the  

appellant.  They proceeded further to the house of PW-9 at  

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around  3.30  a.m.  at  the  instance  of  the  appellant  and  

recovered the bicycle, M.O. 1.  Subsequently, Nagarajan (A2  

who was  acquitted  by  the  trial  court)  was  arrested.  After  

completion of  the  investigation,  PW-16 Inspector  of  Police  

who succeeded PW-15 (in office) filed the charge sheet.

7. In  all  prosecution  examined  16 witnesses  apart  from  

marking 18 documents and producing 8 material objects to  

establish the guilt of the appellant herein.  The prosecution  

case  rests  on  the  circumstantial  evidence.  The  

circumstances are:

(i) That the deceased was trying to woo PW-5 which was  

objected to by the appellant herein and in that context  

there  was  an  earlier  incident  of  beating  up  of  the  

deceased by the appellant;

(ii) That the deceased left the house on the fateful day on  

receiving  call  from the  appellant  and never  returned  

thereafter;

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(iii) That the appellant knew as to where the dead body of  

the deceased was lying and also the place where the  

bicycle of the deceased was available;

(iv) The  appellant  also  knew  where  MOs  7  and  8  (two  

knifes) which are said to have been used for killing the  

deceased were hidden.

8. The  trial  Court  on  the  basis  of  the  abovementioned  

circumstances recorded a  conclusion that  the appellant  is  

guilty  of  murdering  Muthuramaligam  which  finding  is  

confirmed by the High Court.

9. Shri R. Balasubramanian, the learned senior counsel for  

the appellant argued that the evidence on record is wholly  

inadequate  to  record  the  finding  of  guilt  against  the  

appellant.  (a)  It  is submitted that PWs 3 to 5 who were  

examined to establish the motive and the background for  

the offence turned hostile.  Therefore, there is no evidence  

on record to establish the motive.  (b)  With regard to the  

fact that the deceased left his residence on the fateful day  

on receipt of a phone call from the appellant herein is not  

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clearly established as there is nothing in the evidence of PW-

1  to  indicate  that  he  knew  the  appellant  prior  to  the  

telephonic conversation and he could identify the voice of  

the appellant.  Assuming for the sake of argument that the  

caller  identified  himself  by  the  name  “Sangili”,  it  is  not  

conclusive that the caller was the appellant herein.   There is  

no evidence on record that anybody saw both the deceased  

and accused together on the evening of the fateful day.   (c)  

The recoveries made pursuant to Ex.P5 are highly doubtful  

as  the  evidence  of  PW-7  who  happens  to  be  the  Panch  

witness  both before the  arrest  of  the appellant  and  also  

various  recoveries  made  pursuant  to  Ex.P5  is  full  of  

contradictions  and does not  inspire  any confidence in  the  

truthfulness of the witness.  

10. On  the  other  hand,  Mr.  M.  Yogesh  Kanna,  learned  

counsel appearing for the State argued that the concurrent  

findings of fact recorded by both the courts below ought not  

to be interfered with and this Court would not re-appreciate  

evidence in exercising its jurisdiction under Article 136.

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11. There cannot be any second opinion that this Court in  

exercise  of  its  jurisdiction  under  Article  136  does  not  re-

appreciate evidence.   But when the submission is that it is a  

case of  no evidence at  all,  we are bound to examine the  

matter.

12. We have gone through the judgments of the trial court  

and the High Court.  We are sorry to place on record that  

both the judgments leave much to be desired.

13. There  is  no  discussion  as  to  the  basis  on  which  the  

courts below reached the conclusion that there was a motive  

for the appellant to kill Muthuramaligam. PWs 3 to 5 who are  

examined to prove the motive, turned hostile.  PW-1 is the  

only other witness who spoke about the motive but he does  

not claim any personal knowledge of the motive.  At best the  

evidence  of  PW-1  with  respect  to  motive  is  only  hearsay  

evidence.

14. Coming to the circumstance that the deceased left his  

residence on the fateful day after receiving the call allegedly  

made  by  the  appellant  herein,  the  prosecution  sought  to  

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establish the said fact on the basis of the evidence of PW-1  

and PW-8, of whom PW-8 turned hostile. PW-1 the father of  

the deceased stated in his evidence that on the fateful day  

the  deceased  received  a  phone  call  from  the  appellant  

herein at about 5.15 p.m. which call was initially picked up  

by him and on his enquiry the caller identified himself by his  

name “Sangili”.  In his cross-examination he clearly admitted  

that he neither saw nor knew the appellant before his arrest  

by  the  police.   He  did  not  know  anything  about  the  

appellant’s place of residence, father’s name etc.  The only  

other witness who was examined in this context was PW-8  

who allegedly stated before PW-15 Inspector of Police that  

on  the  fateful  day  the  appellant  accompanied  by  another  

person went to the telephone booth where PW-8 was said to  

be  working  and made a  phone call  to  the  deceased.   As  

noticed, PW-8 did not support the prosecution case.  That  

being the case, there is no legally admissible evidence on  

record to come to the conclusion that the deceased left the  

house only after being called up by the appellant herein.

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15. The other circumstance relied upon by the prosecution  

accepted  by  both  the  Courts  is  the  recovery  of  MOs  1  

(bicycle)  and  7  &  8  (two  knives)  at  the  instance  of  the  

appellant pursuant to the statement before the police, the  

admissible portion which is Ex.P5.

16. PW-7  Mathivanan  is  the  Panch  witness  along  with  

Shenbagamoorthy (who was not examined), for the arrest of  

the appellant and also for the recovery of abovementioned  

material objects.  

 17. PW-9 Chinnathambi is the person according to whose  

evidence on 12.6.2002 at about 7 p.m. the appellant herein  

left MO-1 bicycle at his residence.  However, the appellant  

never went back to take the bicycle.  On the other hand, in  

the early hours of 15.6.2002 at around 3.30 a.m. PW-15 and  

others came to his residence and seized the bicycle MO-1.

18. The learned counsel for the appellant argued that there  

are discrepancies in the evidence of PW-7 and, therefore, his  

evidence cannot be relied upon and his evidence should be  

discarded.  There is nothing else on record to establish the  

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trustworthiness of the recovery of the MOs 1 (bicycle) and 7  

& 8 (two knives) at the instance of the appellant.

19. The learned counsel also argued that PW-9 never stated  

that when the police party led by PW-15 came to seize MO-1  

from his residence, the police party was accompanied by the  

appellant and, therefore, the recovery of the bicycle is also  

unreliable piece of evidence.

20. We have carefully  scrutinized the evidence of  PWs 7  

and 9.  We find one aspect, which is material, and is quite  

intriguing.  As per the prosecution, the appellant had made  

confessional  statement;  there  is  a  recovery  of  blood;  

recovery  of  knife;  and  recovery  of  bicycle.   In  the  

panchnama  drawn for  these  recoveries,  there  is  only  one  

person  who  has  allegedly  witnessed  these  recoveries,  

namely PW-7 Mathivanan, son of Thangamani.  Though this  

by itself may not be very suspicious, when we examine this  

aspect  in  conjunction  with  other  evidence  emerging  on  

record,  such  recoveries  become  little  doubtful.   The  

Investigating Officer himself,  who appeared as PW-15, has  

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stated  in  his  deposition  that  the  witness  who  signed  the  

confessional statement of the appellant is not Mathivanan,  

son of Thangamani, thereby doubting the identity of PW-7.  

The  manner  in  which  PW-7  reached  the  spot  and  was  

allegedly  requested  by  the  Investigating  Officer  to  

accompany him to witness the recoveries is also shrouded in  

mystery.  Further, in his chief-examination he stated that on  

that day from 8.00 p.m. to the next morning 3.30 a.m. he  

was with the Police on the request of PW-15.  In his cross-

examination  he  stated  that  he  was  taken  to  the  police  

station at about 6.00 p.m. for a short while and let off by the  

Police thereafter.  All these facts taken together, which are  

not  considered by  the  Courts  below,  make the recoveries  

little doubtful.

21. It is to be emphasized at this stage that except the so-

called recoveries, there is no other circumstances worth the  

name which has been proved against the appellant.

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22. To sum up what is discussed above, it is a case of blind  

murder.  There are no eyewitnesses.  Conviction is based on  

the circumstantial evidence.  In such a case, complete chain  

of events has to be established pointing out the culpability of  

the accused person.  The chain should be such that no other  

conclusion,  except  the  guilt  of  the  accused  person,  is  

discernible without any doubt.  In the present case, we find,  

in the first  instance,  that the appellant  was roped in with  

suspicion that it was a case of triangular love and since he  

also loved PW-3, he eliminated the deceased when he found  

that  the deceased and PW-3 are in  love  with  each other.  

However, we are of the view that this motive has not been  

proved.  The evidence of last seen is also not established.  

Father  of  the  deceased  only  said  that  the  deceased  had  

received a call and after receiving that call he left the house.  

In  his  deposition,  he  admitted  that  he  had  not  seen  the  

appellant before and he did not recognize his voice either.  

Therefore, he was unable to say as to whether the phone call  

received was that of the appellant.  Proceeding further, we  

find that the deceased was not seen by anybody after he left  

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the house.  When we look into all these facts in entirety in  

the  aforesaid  context,  we find  that  not  only  the  chain  of  

events  is  incomplete,  it  becomes  somewhat  difficult  to  

convict  the  appellant  only  on  the  basis  of  the  aforesaid  

recoveries.

23. In Mani v. State of Tamil Nadu, (2009) 17 SCC 273,  

this Court made following pertinent observation on this very  

aspect:

“26.   The  discovery  is  a  weak  kind  of  evidence  and  cannot be wholly  relied upon and conviction in such a  serious  matter  cannot  be  based  upon  the  discovery.  Once the discovery fails, there would be literally nothing  which would support the prosecution case....”

24. There  is  a  reiteration  of  the  same  sentiment  in  

Manthuri Laxmi Narsaiah v. State of Andhra Pradesh,  

(2011) 14 SCC 117 in the following manner:

“6.  It is by now well settled that in a case relating to  circumstantial evidence the chain of circumstances has  to be spelt out by the prosecution and if even one link in  the  chain  is  broken the  accused  must  get  the  benefit  thereof.  We are of the opinion that the present is in fact  a case of no evidence.”

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25. Likewise, in Mustkeem alias Sirajudeen v. State of  

Rajasthan,  (2011)  11  SCC  724,  this  Court  observed  as  

under:

“24.   In  a  most  celebrated case of  this  Court,  Sharad  Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC  116, in para 153, some cardinal principles regarding the  appreciation  of  circumstantial  evidence  have  been  postulated.   Whenever  the  case  is  based  on  circumstantial  evidence  the  following  features  are  required to be complied with.  It would be beneficial to  repeat the same salient features once again which are as  under: (SCC p.185)

“(i) The  circumstances  from  which  the  conclusion of guilt is to be drawn must or  should be and not merely 'may be' fully  established;

(ii) 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;

(iii) The  circumstances  should  be  of  a  conclusive nature and tendency;

(iv) They  should  exclude  every  possible  hypothesis except the one to be proved;  and

(v) 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.”

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25.   With  regard  to  Section  27  of  the  Act,  what  is  important  is  discovery  of  the  material  object  at  the  disclosure  of  the  accused  but  such  disclosure  alone  would not automatically lead to the conclusion that the  offence  was  also  committed  by  the  accused.   In  fact,  thereafter, burden lies on the prosecution to establish a  close link between discovery of the material object and  its  use  in  the  commission  of  the  offence.   What  is  admissible under Section 27 of the Act is the information  leading to discovery and not any opinion formed on it by  the prosecution.”

(emphasis supplied) 26. It  is  settled  position  of  law  that  suspicion  however  

strong cannot be a substitute for proof.  In a case resting  

completely  on  the  circumstantial  evidence  the  chain  of  

circumstances must be so complete that they lead only to  

one  conclusion,  that  is,  the  guilt  of  the  accused.   In  our  

opinion,  it  is  not  safe  to  record  a  finding  of  guilt  of  the  

appellant and the appellant is entitled to get the benefit of  

doubt.   We, therefore,  allow the appeal  and set-aside the  

conviction and sentence of the appellant.  The appellant be  

set at liberty unless required in any other case.

………………………….J.                                                           (J. Chelameswar)

……………………..….J.                              (A.K. Sikri)

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New Delhi; September 10, 2014

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