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REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1193  OF 2011

CHANDRU @ CHANDRASEKARAN …APPELLANT(S)

Versus

STATE REP. BY DEPUTY SUPERINTENDENT  OF POLICE CB CID AND ANR.        …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.   253   OF 2019 (@SLP (CRL.) NO.2306 OF 2011)

J U D G M E N T

Deepak Gupta, J.

1. Leave granted in appeal arising out of SLP (Crl.) No.2306 of

2011.

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2. Both the appeals are being disposed of by a common

judgment.   

3. The  undisputed facts  are that the  deceased  Arun  was  a

friend of accused Siva @ Sivaprakash, Accused No.1.   The

deceased along with Accused No. 1 and Chandru @

Chandrasekaran, Accused No. 2, travelled to Chennai on

30.10.2004.  They went to Meena Guest House, run by M. Sheik

Davood (PW­3) at about 9 p.m. where room no. 203 was allotted

to them.   At about 9.30 p.m. Venkatesh @ Venki came to the

room.  Venki injected 4 ml of Tidijesic drug into the left wrist of

deceased Arun.   Venki also used 2 ml drug for himself.

Thereafter,  Venki left the  guest  house.  Next  morning i.e. on

31.10.2004, the two appellants herein called Venki since Arun

did not get up.   The room boy of the lodge viz., Sankar (PW­4)

complained to the Manager of the lodge that a lot of people were

coming into room no. 203.   It was found that Arun was dead.

Thereafter, Iqbal (PW­2),  working  as  Manager in the  company

owned by father of the deceased  Arun and  Ponsekar (PW­1),

maternal uncle of the deceased came to the room.  

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4. PW­1 filed a complaint on 31.10.2004 at 9.45 a.m., in which

he stated that his nephew Arun  was earlier studying in an

engineering college at Chennai.   However, he was not studying

properly and had developed some bad habits and, therefore, he

was shifted to a college at Thoothukudi. The relevant portion of

the complaint is to the effect that on 31.10.2004 at about 7.30

a.m. he had received a call from Iqbal (PW­2) informing him that

his nephew Arun, who stayed the night in Room No.203 of Meena

Guest House had consumed heavy dose of a drug through

injection and is unconscious.  He immediately went to the guest

house where he found that his nephew was dead.  He thereafter

went to Triplicane Police Station and lodged the report.  

5. On  the  basis  of the  aforesaid report  a  case  being  Crime

No.1150 of 2004, was registered.  The body of the deceased was

sent for post­mortem.  Dr. A.N. Shanmugham (PW­6) conducted

the post­mortem.  He stated that he could not say with certainty

what was the cause of death but it was possible by drug

injection.   Venki was arrested in connection with the said crime

and he allegedly made a confessional statement to the police on

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08.11.2004 which led to the discovery of Tidijesic syringe, empty

ampoules, unused Tidijesic ampoule etc..   PW­1, the maternal

uncle of the deceased, filed a petition in the High Court of Madras

in February, 2005 seeking transfer of the investigation to some

other agency since he was not happy with the manner in which

the case was being investigated.  The High Court vide order dated

28.02.2005 transferred the  investigation to  the CB CID,  Tamil

Nadu. There were three suspects before the police viz., Venkatesh

@ Venki, Sivaprakash @ Siva and Chandrasekaran @ Chandru.

All three were subjected to Polygraph, Brainmapping and

Narcoanalysis tests at a Forensic Science Laboratory.  According

to the Investigating Officer (DW­4), who carried the investigation,

the two appellants herein cleared the said tests and there was no

suspicion against them since they disclosed no signs of

deception.   However, during the tests, Venki’s answers were

found deceptive.

6. In the year 2006, PW­5, father of the deceased, filed a

petition in the Madras High Court for transferring the

investigation of the case to the Central Bureau of Investigation

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(CBI).   This petition was rejected by the High Court on

08.02.2008.   Meanwhile, on 23.01.2008, more than three years

after the incident, a charge­sheet was filed by the CB CID under

Section 173 of the  Criminal  Procedure  Code  (for  short ‘CrPC’)

only against Venkatesh @ Venki under Section 304 Part II of the

Indian Penal Code (for short ‘IPC’).   The present accused

(appellants  herein)  were  cited  as  prosecution witnesses in the

said charge­sheet.  Venki died after the filing of the charge­sheet

but before trial of the case on 21.07.2008.   

7. It  was only thereafter that PW­1,  maternal uncle of the

deceased, filed a private complaint before the court  which is

Exhibit P­1. In this complaint it was stated that the two accused

and the deceased had stayed in Room No. 203 and Venki came to

the room at the invitation of the accused Chandru.  Venki was a

drug peddler and Arun was not in the habit of taking drugs.  On

the request of the accused, Venki had injected 4 ml of Tidijesic

injection in the left wrist of the deceased.  It was also alleged that

Venki  was paid  Rs.50/­  by the  accused Siva for  his  services.

According to this complaint, Arun had been injected for the

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second time  in the left arm inner portion.   When this witness

went to the room  No. 203, Venki was present and told the

complainant that the accused had given excess narcotic drugs on

the left inner portion of the arm due to which the deceased died.

In the complaint it was also stated that immediately after he had

visited the guest house on 31.10.2004, he had gone to the

Triplicane Police Station, where the police forcibly obtained his

signatures on two blank papers.  It was alleged that the FIR was

lodged by the police in connivance with the two accused.  In this

complaint it is also mentioned that there were marks of injecting

two injections and, according to the report of the Forensic

Science Laboratory,  a huge amount of  narcotic substance had

been injected into the deceased which caused his death.  In this

complaint it  was also alleged that the accused Siva had close

association with PW­10 (hereinafter referred to as ‘R’).  According

to the complainant, R (PW­10) was introduced to the deceased

Arun and  they used to  regularly talk  to  each other  on phone

every day and therefore, accused Siva could not tolerate that his

girlfriend should shift loyalty to some other person.  Therefore, he

approached Chandru,  who was a student  in a medical  college

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and  with his help injected excess dose of Tidijesic with the

intention of killing Arun.   

8. After the filing of the  private  complaint, the  metropolitan

magistrate recorded the statements of seven witnesses and found

sufficient  grounds for  proceeding  with the  case  under  Section

302  IPC.  Thereafter, the case was committed to the Court  of

Sessions and charges  were framed against the accused,  who

pleaded not guilty.  The evidence of the witnesses were recorded.

Accused also examined four witnesses.  The trial court convicted

the accused for having committed the offence punishable under

Section 302 IPC read with Section 120B IPC and sentenced them

to undergo life imprisonment.   Aggrieved, the accused filed two

separate criminal appeals, which have been dismissed.   Hence,

the present appeals.

9. Admittedly, there are no eye­witnesses to the case and this

is a case based on circumstantial evidence.  The law with regard

to appreciation of circumstantial evidence has been clearly

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enunciated in the case of  Hanumant v. State of Madhya

Pradesh1, wherein this Court held as follows:

“10……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 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.”

10. This law has been consistently followed and has been

repeated in catena of authorities.  It is not necessary to refer to

all the authorities.   However, we may refer to Sir Alfred Wills

book  Wills on  Circumstantial Evidence  (Chapter VI)2, in

which he  has  laid down the following Rules specially to  be

observed in the case of circumstantial evidence:

“RULE 1. – The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum probandum............

1 AIR 1952 SC 343 2 Butterworths, Seventh Edition, Pp 296-329.

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RULE 2. – The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability................

RULE 3. – In all cases, whether of direct or circumstantial evidence, the best evidence  must be adduced which the nature of the case admits.........

RULE 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..................

RULE 5. – If there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.”

11. The law can be summarised in the following terms:

1. The  circumstances relied  upon by the  prosecution  which

lead to an  inference  to the  guilt  of the accused must be

proved beyond doubt;

2. The circumstances should unerringly point towards the

guilt of the accused;

3. The circumstances should be linked together in such a

manner that the cumulative effect of the chain formed by

joining the  links  is  so complete  that it leads  to only  one

conclusion i.e. the guilt of the accused;

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4. That there should  be  no  probability of the crime  having

been committed by a person other than the accused.

12. It is in the light of the aforesaid law that we have to

consider the evidence and the circumstances relied upon by

the courts below.

13. In a case based on circumstantial evidence it is always

better for the courts to deal with each circumstance separately

and then link the circumstances which have been proved to

arrive at a conclusion.   Unfortunately, in this case, though a

reference has been made to some circumstances, the

circumstances have not been discussed separately.  Therefore,

we propose to discuss the various circumstances relied upon

by the prosecution:

1. LAST SEEN TOGETHER –  

As far as this circumstance is concerned, the same stands

proved.   It is the case of all that Room No. 203 in Meena

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Guest House was hired by the two accused and the

deceased.   Venki came at about 9.30 p.m., but he left at

10.15 p.m.  Thereafter the lodge was locked.  Therefore, this

circumstance is proved.   Though this circumstance is

proved,  we  must  also look into the  circumstances  under

which the accused were last seen together with the

deceased.   The case of the prosecution is that it is the

accused who took the deceased to the room with the

intention of  killing him since  the accused Siva suspected

that  R (PW­10)  was  having an affair  with the deceased.

However, the manner in which the accused reached

Chennai and the guest house in question suggests a total

different story.   The maternal uncle of the deceased (PW­1)

states that one Jeyaraj, an employee of PW­5 informed him

over the phone at about 6/7 p.m. on 30.10.2004 that the

deceased Arun along with his friend Siddharth was coming

to stay in the night with PW­1 at Chennai.   A few minutes

later, PW­1 talked to his nephew Arun, who also told him

that he would be coming to his uncle’s house but did not

come.   Siddharth is the son of Gomti Pandian (PW­7).

According to her, Siddharth told her that he was going to

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Chennai along with his friend Arun (deceased) to purchase

some clothes.   She was reluctant to send her son with his

friend but then she talked to Arun who told her that they

would be going  to  Chennai  by bus and convinced her to

send Siddharth with him.   She dropped Siddharth at the

bus stand.  Later she came to know that her son Siddharth

had  gone to  Chennai  along  with the  deceased  Arun and

three other persons in a car which had met with an

accident.  She was informed about this by Kala Devi (PW­8),

whose son  Mathesh  had also travelled in the same car.

Thus, it is clear that it was Arun (deceased), who convinced

Siddharth’s mother to send Siddharth with him.   This

witness also stated that later her son informed her that the

car had  met with an accident and, thereafter, he and

Mathesh did not proceed to Chennai and returned to their

homes.  PW­8 states that her son Mathesh had told her that

he was going to Coimbatore.   Next morning she received a

call from her  brother’s  son.  He  told her that the car in

which Mathesh was  travelling had met  with an accident.

She was also told that Mathesh along with his friends Siva,

Chandru,  Siddharth  and Arun came to the  house of  her

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brother and thereafter Mathesh returned to home.  Thus, it

is clear that Siddharth and Mathesh were also travelling in

the car and they would have also gone to Chennai but for

the fact that the car  met  with  an  accident.   Thereafter,

Siddharth and Mathesh did not proceed further and

returned to their homes.  As such, it is clear that it was not

the  accused,  who  had  organised the trip  but it  was the

deceased, who had organised the trip and, therefore, it

cannot be said that the accused had taken the deceased to

the guest  house  with the intention  of killing  him.   This

assumption by both the courts below is based on no

evidence.    

2. MEDICAL EVIDENCE  

Medical evidence led in this case clearly indicates that the

deceased died due to overdose of Tidijesic.  It is not disputed

that  4  ml of Tidijesic  was injected into the  wrist of the

deceased  by  Venki,  who administered  2  ml of the same

substance into  himself and thereafter the  deceased  died.

The evidence of Dr. R. Baskaran (PW­11), who is Professor

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and Head of the Department of Legal and Forensic

Medicines, Royapettai Government Hospital, Chennai

clearly shows that after chemical analysis it was found that

the amount of the offending substance found in the blood of

the deceased would be equal to injecting 40 ml of Tidijesic.

Therefore, there is no manner of doubt that the deceased

died due to overdosing of drug.  

PW­11 stated that if a 20 ml syringe is used then about 40

ml of Tidijesic could be injected in two attempts.  However,

if a 5 ml syringe is used, it would require 8­10 attempts.  He

clearly states that he cannot tell when and how this 40 ml

Tidijesic was injected into the body of the deceased.  He also

could not state what time the death had occurred.  He also

stated that it takes 6 to 24 hours for the drug to take effect

and this  would further  depend upon  the  quantity of the

drug, the physique and the actions of the person injected.

Therefore, his statement does not help us with regard to the

time of death or with regard to the number of attempts in

which the drug was injected into the body of the deceased.

Even in the  post­mortem report the  approximate time  of

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death has not been indicated.  Dr. A.N. Shanmugham (PW­

6), who conducted the post­mortem also could not say when

the death took place.   

Dr. A.N. Shanmugham (PW­6) in his statement had stated

that injuries caused by the needle due to injection of

medicine were found in fore arm, ankle of front foot, front

and middle fore arm.  He has been confronted with the post­

mortem report (PD­5), in which there is mention of only two

injection marks – one in front of left elbow joint and one in

middle of left fore arm.  It is clearly mentioned that no other

external or internal injuries seen over the body.  He has not

been able to give a proper explanation  why he did not

mention other injuries in the post­mortem report.   This

would mean that the deceased was injected only twice.    

It is the case of the prosecution that on the first occasion

the deceased was injected with 4 ml Tidijesic.  Therefore, 36

ml could not have been injected in one go on the  next

occasion.  The police has not recovered any syringe or other

material from the room.   As per the prosecution case, the

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lodge was locked at about 10.30 p.m..   The next morning

the deceased was found dead.   No recoveries of any

ampoules or syringe have been made from the accused or at

their instance to connect them with the offence.   

The prosecution, by means of the aforesaid medical

evidence, has failed to link the accused with the death of the

deceased.  The prosecution has  failed to  prove the  exact

time of death of the deceased.   The deceased  was first

injected an injection between 9.30 p.m. to 10.00 p.m..   As

per doctor, the effect of this could end in about six hours.

Therefore, the possibility of the deceased getting up himself

in the middle of the night to inject himself cannot be ruled

out.   There is also the possibility of his calling some other

person to inject him with the drug.  Even more importantly,

the prosecution has failed to prove where the balance 36 ml

of drug came from.  Who got this drug and when?  There is

no evidence that the accused purchased this drug.   No

recovery has been made from them and, therefore, we are of

the view that though it stands proved that the deceased died

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due to overdose of drug, the prosecution has  miserably

failed to link the accused with the death of the deceased.

3. MOTIVE  

The motive put forth is that R (PW­10) was close to accused

Siva, who introduced her to Arun.  According to the case set

up by the prosecution, the two had developed a close

relationship and were regularly chatting with each other on

phone and through SMS­es.  This  was not liked by  Siva

(Accused No.1), who thereafter conspired with Chandru

(Accused No. 2) to kill the deceased by overdosing him.   R

(PW­10) in her statement has not at all supported the

prosecution case and according to her, she had never met

Arun but had talked to him over phone and that too

occasionally.  She also stated that  she and the deceased

Arun would exchange SMS­es which were usual in nature.

She, in cross­examination, denied the suggestion that she

used to talk to Arun every day.  She stated that they talked

generally about matters relating to college.  She also denied

that she had any special relationship with Siva.  According

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to her, Siva was her friend being a college­mate.   No other

evidence  has  been led to  prove that  R (PW­10)  had  any

special relationship with accused Siva or that she had

developed any special relationship with deceased Arun.  The

only evidence in this regard is the statement of R (PW­10),

which does not support the prosecution case at all.   

In this regard, it would also be pertinent to mention that in

the first complaint filed by PW­1, there is no mention of R

(PW­10), much less of her having any affair with either the

accused or the deceased.  This was brought out for the first

time only in the complaint filed four years after the death of

Arun.   There is no explanation for this long silence of four

years.  Therefore, we are clearly of the view that the motive

has  not  been proved.  We must  also remember that the

accused  and the  deceased  were  good friends.  They  had

studied for many years together and there is not even an

iota of evidence about such love triangle.

4. CHANDRU WAS A MEDICAL STUDENT­

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Both  the  courts  below have  come  to the  conclusion  that

Chandru was asked by Siva to commit the crime because

Chandru was a medical student and he alone knew how to

inject the substance into the body of the deceased.  We are

constrained to observe that the inference drawn by the

courts below was totally ill founded.   Why would Chandru

kill another human being just on the asking of the accused

Siva?   Chandru was a  medical student, studying in a

profession meant to save lives and not to kill people.  From

the evidence on record it stands established that the

deceased was a drug addict and had been taking injectible

drugs for  a long  time.   It is  well  known  that  such drug

addicts can easily inject themselves.   What has happened

in this case is not clear but it cannot be said with certainty

that Chandru had injected the poisonous substance into the

body of the deceased.   There is no evidence in this regard.

As  we have discussed above, it was not only Siva and

Chandru who were coming to Chennai with deceased Arun

but Siddharth and Mathesh were also coming to Chennai in

the same car.   However, they went back only after the car

met with an accident.  All these boys were in their late teens

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or early 20s and two of them got scared after the accident

and they went to the homes of their relatives and from there

they  contacted their respective  mothers.  Since they  had

obtained permission of their mothers by giving false

excuses, they got scared and went back.   Even as per the

prosecution, Chandru had no motive to kill Arun.

Therefore, the inference drawn by the High Court as well as

the trial court that Siva and Chandru had conspired or had

the common intention of murdering Arun is not based on

any cogent or reliable evidence.  

14. Other than the circumstances referred to above, there

are other circumstances which go against the prosecution

which we shall refer to now:

1. Inconsistency in the statement of PW­1 – PW­1 is the

maternal uncle of  the deceased.  In his  first complaint

made  in the  police  station on 31.10.2004, there is  no

reference  to R  (PW­10)  or other facts  which have been

stated at a later stage.  The private complaint filed by him

four years later is contrary to the first complaint filed by

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him immediately after the occurrence.  His explanation is

that he was asked to sign on two blank papers by the

police.  First of all, we see no reason why the police in a

case of this nature would try to help the accused and

shield the actual criminal.  Secondly, there is no material

on record to show that PW­1, the maternal uncle or PW­

5, father of the deceased, ever complained to any

authority that PW­1 had been forced to sign two blank

papers.  This is a case where the maternal uncle and the

father of the deceased had approached the High Court on

at  least  two occasions  for transfer  of the  investigation.

They succeeded once and failed on the second occasion.

In case the version of PW­1 that  his signatures  were

taken on blank papers was correct, then he would have

definitely said so much earlier.   He would have reported

the matter to the higher authorities or made mention of

this in the petitions  filed  in the High Court.  Despite a

pointed query to the counsel for the original complainant

and the informant and the State they failed to point out

whether any such complaint had been made by PW­1 or

PW­5.   Therefore, we do not accept the version of PW­1

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that his signatures  were obtained on blank sheets of

papers.   This also casts a doubt on the veracity of the

statement of PW­1.

2. Delay in filing the private complaint  ­   It is true that

PW­1 and PW­5 were moving the High Court for transfer

of the case to some other investigating agency but, at the

same time, it would be pertinent to mention that after the

charge­sheet was filed against Venki by the Investigating

Officer (DW­4), neither PW­1 nor PW­5 filed any protest

petition to the effect that the accused (appellants herein)

should also be arraigned as accused.  They let the matter

go on and it was only after Venki died that the private

complaint  was filed.   There is  no explanation  why  no

protest petition was filed when the police had only made

out  a case  against  accused  Venki  and that too  under

Section 304 IPC and not murder.

3. PW­1  and  PW­5 are  not coming to the  Court  with

clean hands – The motive has been introduced after four

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years.  The father and the maternal uncle of the deceased

never brought up the issue of the deceased having

conversations with R (PW­10) at any earlier stage.

Therefore, PW­1 and PW­5 are not coming to the court

with clean  hands.  They  have cooked  up the story  of

signing on blank papers and also cooked up the story

relating to the motive.   Therefore, their evidence is not

reliable and a person cannot be convicted on the basis of

such evidence.   

15. All that is proved is that the deceased and the accused were

sleeping in one room and the deceased died due to overdose of

drug.  The prosecution had miserably failed  to  prove  that the

accused injected this drug.  It is the case of the prosecution that

the first injection was administered by Venki, which was only 4

ml.   There is possibility of the deceased injecting himself on the

second occasion sometime in the middle of the night or early in

the morning.  In this context, we must remember that the doctor,

who conducted the post­mortem has not given any approximate

time of death of the deceased which could have helped us in the

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matter.   The circumstances proved cannot lead to the inference

that it is the accused alone who committed the offence.  In fact,

the prosecution has even failed to prove beyond reasonable doubt

that the death is homicidal in view of the inconsistencies in the

medical evidence dealt by us above.   Even otherwise,  it is not

proved that it was the accused who injected the deceased and the

possibility of the accused injecting himself or some other person

doing so cannot be ruled out.

16. In view of the above discussion we allow both the appeals,

set aside the judgment dated 30.11.2010 of the High Court in

Criminal Appeal No.592 of 2010 and 636 of 2010 and judgment

dated 24.09.2010 of the Additional District and Sessions Judge,

Fast Track Court No.V, Chennai in S.C. No.237 of 2009.   The

accused­appellants are acquitted.   They are directed to be

released immediately unless required in any other case.  Pending

application(s), if any, stand(s) disposed of.

….……………………..J.

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(SANJAY KISHAN KAUL)

.….…………………….J. (DEEPAK GUPTA)

New Delhi February  12 , 2019