NATHIYA Vs STATE TR.INSP.OF POLICE,VELLORE
Bench: DIPAK MISRA,AMITAVA ROY
Case number: Crl.A. No.-001015-001015 / 2010
Diary number: 21748 / 2009
Advocates: RAKESH K. SHARMA Vs
B. BALAJI
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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.