NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1932 OF 2010

MALAICHAMY & ANR. … APPELLANTS

Versus

THE STATE OF TAMIL NADU … RESPONDENT

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Heard learned counsel for the parties.

2. The judgment dated 23.09.2008 passed by the Madurai Bench

of the Madras High Court in Crl.A.No.884 of 2001 confirming the

judgment dated 29.08.2001, passed in S.C.No.250 of 2000 by the

First Additional District and Sessions Judge-cum-Chief Judicial

Magistrate, Madurai is called in question in this appeal by

Accused  Nos.1  and  2.  It  is  relevant  to  mention  here  that

Accused No.3 was a juvenile and was dealt with by a different

forum under the provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2015.   

3. The case of the prosecution in brief is that the deceased,

Harish Kumar, is the son of P.W.1 Velusamy and at the time of

the offence Velusamy was a member of the Tamil Nadu Legislative

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Assembly. Accused Nos.1 and 2 are distantly related to P.W.1.

One Mr. Pattai Muniasamy, the paternal uncle of Accused Nos.1

and 2, had given a sum of Rs.13,00,000/- (Rupees thirteen lakhs

only)  to  P.W.1  for  safe  custody,  which  he  got  back  in

instalments. There was a relationship between Mohankumar (the

son  of  Pattai  Muniasamy)  and  one  Kalaiselvi,  who  is  the

daughter of P.W.1’s cousin Kannuchamy (P.W.12). Though attempts

were made to get them married, Mohankumar’s family refused the

proposal. P.W.1 was requested by the father of Kalaiselvi to

intervene and settle the matter and hence P.W.1 intervened and

attempted  settlement,  but  the  same  proved  to  be  a  futile

exercise.  In that regard, Kalaiselvi had lodged a complaint

against Mohankumar under Section 417 of the Indian Penal Code

(for short ‘the IPC’)and Section 4 of the Dowry Prohibition

Act.     

4. It  is  also  the  case  of  the  prosecution  that  Muniasamy

requested P.W.1 to take him as a partner in his liquor shop

business but the same was refused by P.W.1.  Accused No.2 got

employment in a Fair Price Shop run by the Tamil Nadu Civil

Supplies Corporation on the recommendation of P.W.1.  However,

the service of Accused No.2 was terminated due to misconduct,

and  though  P.W.1  was  requested  to  intervene  yet  again,  he

declined to do so.

5. In view of the aforementioned motive, Accused Nos.1 to 3

grouped  together  and  committed  the  murder  of  P.W.1’s  son,

namely,  Harish  Kumar,  aged  about  17  years.   The  accused

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allegedly  committed  the  offence  during  the  early  hours  of

21.06.1998 by trespassing into the house of P.W.1.   

6. The Accused Nos.1 and 2 were tried and convicted for the

offences  under  Sections  449  and  302  of  the  IPC  read  with

Section 34 of the IPC, and sentenced to 3 years of rigorous

imprisonment under Section 449 of the IPC and life imprisonment

under Section 302 read with Section 34 of the IPC. The High

Court confirmed the judgment of conviction.

7. There are no eye witnesses to the incident in question and

the case of the prosecution rests solely upon circumstantial

evidence.  

8. Before  we  proceed  further,  it  would  be  worthwhile  to

recall that it has been settled through a catena of decisions

that  the  Court  should  satisfy  itself  that  the  various

circumstances  in  the  chain  of  evidence  must  have  been

established clearly and that the completed chain is such as to

rule  out  a  reasonable  likelihood  of  the  innocence  of  the

accused. (For example, see:  Jaharlal Das v. State of Orissa,

(1991) 3 SCC 27; Vijay Kumar Arora v. State Government of Delhi

NCT, (2010) 2 SCC 353; Munish Mubar v. State of Haryana, (2012)

10 SCC 464; Dhan Raj v. State of Haryana, (2014) 6 SCC 745;

Nizam v. State of Rajasthan, (2016) 1 SCC 550). It is in light

of this position of law that the circumstantial evidence in the

instant case needs to be examined.

9.  The  circumstances  relied  upon  by  the  prosecution  are  as

follows:

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(a) The last seen circumstance;

(b) motive for the commission of the offence; and

(c) the  recovery  of  two  knives  based  on  the

confession  made  by  Accused  No.1  before  the  Police

Officer, as per Section 27 of the Indian Evidence Act,

1872.

10. The first of the above, i.e. “the last seen circumstance”

is spoken to by P.W.4, P.W.5, P.W.8 and P.W.9.  The High Court

rightly disbelieved the evidence of P.W.8 and P.W.9.  However,

believing the evidence of P.W.s 4 and 5, the High Court held

the “last seen circumstance” proved.   

11. We  have  perused  the  evidence  of  P.W.4  and  P.W.5

meticulously.   P.W.4  has  deposed  that  after  he  secured  an

interview  for  the  post  of  Conductor  in  the  Marudhupandi

Transport Corporation, in order to get a recommendation from

P.W.1, who happened to be an M.L.A. at that point of time,

P.W.4 along with P.W.5 had come to the house of P.W.1 at 10.00

P.M.  on  20.06.1998  and  found  that  P.W.1  was  not  available.

Hoping to meet P.W.1 the next morning, P.W.4 and P.W.5 had

proceeded to the house of P.W.12, which was situated on the

same street as P.W.1’s house, and stayed there for the night.

At about 5.15 A.M. on 21.06.1998, P.W. 4 looked down from the

terrace to see whether the door of the house of P.W.1 was open,

but found the door closed. However, soon after, he saw Accused

Nos.1 to 3 in front of the house of P.W.1. P.W.5 has deposed

that  he  saw  the  accused  outside  the  victim’s  house  on  the

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morning  of  the  incident,  when  he  was  leaving  the  house  of

P.W.12 with P.W.4. It has not been deposed by P.W.4 and P.W.5

that  they  saw  the  victim  in  the  company  of  these  accused;

rather, it is their specific deposition that they only saw the

accused  in  front  of  the  house  of  P.W.1.  Curiously,  the

Investigating Officer (P.W.22), in his cross-examination, has

deposed that the statements of P.W.4, P.W.5, P.W.8 and P.W.9

were  recorded  on  22.06.1998,  which  is  corroborated  by  the

testimony of P.W. 4 and P.W. 5. But the depositions of P.W.22,

P.W.4 and P.W.5 in this respect are belied by the fact that the

seal  and  signature  of  the  Judicial  Magistrate  found  on  the

statements of P.W.4 and P.W.5 is dated 01.07.1998. P.W.22, on

being  confronted  with  the  date  of  receipt  during  his  cross

examination,  admitted  these  dates  and  failed  to  give  a

satisfactory explanation as to the delay in receipt of these

statements  by  the  Court.  This  strongly  suggests  that  the

statements  of  P.W.4  and  P.W.5  were  in  fact  recorded  around

01.07.1998, and not on 22.06.1998 as they have deposed.

The  above  conclusion  also  casts  serious  doubts  on  the

veracity of the testimony of P.W.s 4 and 5 as a whole, since a

delay of one week in giving their statements to the police

amounts to highly unnatural conduct on their part. Moreover,

P.W. 5 also gave contradictory statements as to whether or not

he stayed in P.W. 12’s house on the relevant night. If P.W.4

and P.W.5  had really stayed at P.W. 12’s house and  seen

Accused Nos.1 to 3 in front of the house of the victim at about

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5.15  A.M.  on  21.06.1998,  they  would  not  have  missed  the

opportunity to state this vital fact before the M.L.A. or the

Investigating Officer immediately, upon the discovery of the

offence, more particularly when they wanted a recommendation

from the M.L.A. Thus, it appears that though the news of the

murder  of  the  victim  became  known  to  the  public  at  large

immediately, P.W.4 and P.W.5, instead of intimating the same to

the family members of the victim, gave their statements only on

01.07.1998. Additionally, in the cross-examination of P.W.22,

he has given certain answers in favour of the accused based on

the  material  on  record  which  clearly  reveal  that  vital

improvements were made by P.W. 4 and P.W. 5 during the course

of  their  evidence.   Hence,  in  our  considered  opinion,  the

testimony  of  P.W.4  and  P.W.5  is  unreliable,  and  therefore

cannot  be  held  to  have  been  proved  by  the  prosecution

satisfactorily.

12. The evidence to prove the `circumstance of motive’ is also

very shaky.  

13. All the alleged facts indicating motive relied upon by the

prosecution, i.e. the affair of Mohankumar with Kalaiselvi, the

money transaction, the dismissal of Accused No.2 from temporary

service, etc. are not directly connected to the victim and are

merely projected as grouses against his father leading to the

murder of the son. Even if it is possible that a person might

be murdered by an individual on account of a grouse against his

parents,  the  circumstances  on  hand  do  not  disclose  strong

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enough reasons to do so. Firstly, even according to the case of

the prosecution, the money given by Pattai Muniasamy to P.W.1

for safe custody, i.e., Rs.13,00,000/- (Rupees thirteen lakhs

only), had already been returned in instalments. Secondly, the

alleged relationship between Kalaiselvi and Mohankumar does not

directly  concern  the  family  of  P.W.1  or  the  victim.  Though

P.W.1 admitted that he intervened to convince the boy’s family

to get the couple married, this does not in any way amount to a

motive  for  killing  his  son  when  the  marriage  did  not  come

through  and  problems  arose  therefrom.   The  third  alleged

motive, that P.W.1 had failed to intervene after Accused No.2

was fired from his job due to misconduct, is also unconvincing.

Similar  is  the  case  for  the  alleged  motive  that  P.W.1  had

refused to make Muniasamy a partner in his liquor business.   

14. Hence, considering the aforesaid facts and circumstances,

the  aspect  of  `motive’,  as  put  forth  by  the  prosecution,

appears to be very weak, and the same cannot be believed as a

reason to commit the murder of the victim.

15. So far as the recovery of two knives is concerned, it is

based  on  the  alleged  statement  made  by  Accused  No.1.   The

Investigating  Officer  deposed  that  after  the  seizure  of  the

knives, the same were not sealed at all, and he merely put them

in a box and sent the same to the Judicial Magistrate. Such

procedure  adopted  by  the  prosecution  is  highly  improper  and

illegal, inasmuch as the box could have been opened at any

stage  by  anybody  and  the  weapon  tampered  with  or  replaced.

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Hence, the aspect of recovery is also not proved in accordance

with  law.  Even  otherwise,  the  circumstance  of  recovery  from

Accused No.1 alone will not be sufficient to convict him for

the offence punishable under Section 302 of the IPC, when all

the remaining evidence of the prosecution is unbelievable.   

16. Thus, the accused are entitled to get the benefit of doubt

and are entitled to be acquitted.   

17. Accordingly, the appeal is allowed, and the judgment dated

29.08.2001 passed by the First Additional District and Sessions

Judge-cum-Chief Judicial Magistrate, Madurai in S.C.No.250 of

2000  as  affirmed  by  the  High  Court  is  set  aside,  and  the

appellants are acquitted of the charges levelled against them.

The appellants are directed to be released forthwith if not

required in any other case.

.........................J. (MOHAN M.SHANTANAGOUDAR)

........................J.    (DINESH MAHESHWARI)

NEW DELHI; JANUARY 23, 2019.

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