REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1950 OF 2009

Sampath Kumar …Appellant

Versus

Inspector of Police, Krishnagiri …Respondent

 (With Crl. Appeal No. 66/2010 and Crl. Appeal No.1205/2010)

J U D G M E N T

T.S. THAKUR, J.

1. These  appeals  by  special  leave  call  in  question  the  

correctness of an order dated 30th April 2009 passed by the High  

Court of Madras, whereby Criminal Appeal No. 1008 of 2007 filed  

by the appellants against their conviction under Section 302 read  

with  Section  34  IPC  has  been  dismissed  and  the  sentence  of  

imprisonment for life awarded to them by the trial Court upheld.

2. Briefly stated, the prosecution case is as under:

The  appellants,  namely,  Shanmugam,  Velu  and  Sampath  

Kumar  were  close  friends  of  the  deceased-Senthil  Kumar  and  

Palani (PW7). Appellant-Velu has a younger sister, named, Usha  

who, according to the prosecution story, had fallen in love with

the  deceased-Senthil  Kumar  and  wanted  to  marry  him.  

Appellant-Velu did not approve of the said relationship and had  

asked appellant-Shanmugan to convey to the deceased-Senthil  

Kumar to keep off Usha or else he would break his hands and  

legs. In July 2002, appellant-Velu appears to have come on leave  

from his army services and during this period he and his mother-

Balammal are said to have informed Murugambal (PW2)- mother  

of the deceased, sister-Lakshmi (PW3) and her husband-Selvam  

(PW1) that  they had decided to give Usha in  marriage  to the  

deceased-Senthil  Kumar.  Further  discussion  regarding  the  

marriage  was,  however,  deferred  till  the  passing  of  the  Tamil  

month Adi, considered inauspicious for finalisation of matrimonial  

alliance.  On  27th July,  2002  i.e.  two  days  after  the  marriage  

proposal was made, Ramesh (PW9) was employed to paint the  

house  of  Lakshmi  (PW3)  when  he  saw  the  deceased-Senthil  

Kumar and Usha embracing one another in one of the rooms of  

the  house.  According  to  Ramesh  (PW9),  even  the  appellant-

Shanmugam saw Usha and Senthil Kumar in a romantic embrace.  

The  appellant-Shanmugam  was  also,  according  to  the  

prosecution,  one  of  the  suitors  of  Usha  and  had  a  one-sided

affection for her.  On the following day, i.e. 28th July, 2002 PWs.  

1 to 3, their neighbour and the appellant-Shanmugam went to a  

theatre to see a movie and retuned home around 9.30 p.m. While  

Selvam (PW1), Murugambal (PW2) and Lakshmi (PW3) retired to  

bed inside the house after dinner, the deceased-Senthil  Kumar  

and Palani (PW7) slept as usual in the verandah of the house.  

The appellant-Shanmugam also used to sleep with them but for  

some reason he did not turn up to do so on that day. At about  

2.45 a.m. on the night intervening 28th and 29th July, 2002, Palani  

(PW7) heard the sound of a stone being thrown. He woke up to  

see  the  appellant-Shanmugam standing  near  the  head  of  the  

deceased and the remaining two appellants also standing close  

by. The prosecution case is that Palani (PW7) was threatened by  

the appellants not to disclose to anyone regarding anything for  

otherwise they would kill him also. At this, Palani (PW7) shouted  

and ran to hide himself  on the rear side of  the house.  In the  

meantime, PWs 1 to 3 who were sleeping inside the house also  

awoke upon hearing the noise and started shouting for help. This  

woke up their neighbour (PW8) in the opposite house who went  

over to the house and opened the door to help them come out.

PWs 1 and 8 then went to the rear side of the house to find the  

appellant-Shanmugam lying beside a plantain tree with his hands  

tied with a cloth.

It was also noticed on removing the blanket covering the  

deceased that someone had smashed his head with a stone which  

was lying at his side. When the appellant-Shanmugam was asked  

as to who had beaten him and thrown him behind the house, he  

stated that it was some stranger who had done so. Senthil was  

rushed to the hospital but died en-route. Selvam (PW1) went to  

the  police  station  and  lodged  an  oral  complaint.  The  police  

registered a case under Sections 302 and 324 IPC.   

3. After  completion  of  the  investigation  the  police  filed  a  

charge-sheet against the appellants accusing them of committing  

the  murder  of  Senthil  Kumar.  The  appellants  were  then  

committed to the Sessions Judge, where they pleaded not guilty  

and claimed trial. At the trial the prosecution examined as many  

as 18 witnesses to prove its case. The Sessions Judge eventually  

came to the conclusion that the prosecution had proved its case  

beyond  a  reasonable  doubt  and  accordingly  convicted  the  

appellants  for  the  murder  of  the  deceased-Senthil  Kumar  and

sentenced them to undergo imprisonment for life under Section  

302 read with Section 34 IPC. They were also sentenced to pay a  

fine  of  Rs.2,000/-  each  and in  default  of  payment  of  fine,  to  

undergo  further  rigorous  imprisonment  for  two  years.  The  

Sessions  Judge  based  his  conviction  primarily  on  the  strong  

motive which appellants Shanmugam and Velu had to do away  

with the deceased due to his love affair with Usha. The Sessions  

Judge relied heavily upon the deposition of Palani (PW7) and the  

letter Exh. P-22 allegedly written by appellant-Shanmugam to the  

mother of the deceased, Murugambal (PW2) accusing appellant-

Velu to be the person responsible for the death of the deceased.  

4. Aggrieved by their conviction and sentence imposed upon  

them,  the  accused  person  preferred  Criminal  Appeal  

No.1008/2007 before the High Court of Madras which appeal has  

been dismissed thereby confirming the conviction and sentence  

recorded by the trial Court. The High Court held that while the  

deposition of Palani (PW7) was reliable, letter Exh. P-22 allegedly  

written  by  the  appellant-Shanmugam  to  the  mother  of  the  

deceased,  Murugambal  (PW2)  was  not.  The  confessional  

statement  was  held  to  be  inadmissible  having  been  produced

after the statement of the accused persons had been recorded  

under Section 313 Cr.P.C. Independent of the said document, the  

High Court felt that the evidence on record formed a complete  

chain of circumstances that unerringly pointed to the guilt of the  

appellants. The present appeals assail the correctness of the said  

judgment as noticed above.

5. Mr. K. Kanagaraj, learned senior counsel for the appellant  

strenuously argued that the trial Court as also the High Court had  

fallen in error in holding that the charge against the appellants  

had been proved beyond a reasonable doubt. He urged that the  

entire case was based on circumstantial  evidence and that the  

courts below had failed to keep in view the legal requirements  

attracted to cases that are based on circumstantial evidence. He  

further  argued  that  the  deposition  of  Palani  (PW7)  was  not  

reliable for reasons more than one and the trial Court as also the  

High Court had committed an error in ignoring those reasons.  

The fact that there was a motive, assuming that any such motive  

had been established in the present case, was also not sufficient  

by  itself  to  justify  the  conclusion  that  the  appellants  were  

responsible for the murder of the deceased.  

6. The legal position regarding the standard of proof and the  

test which the circumstantial evidence must satisfy is well-settled  

by a long line of decisions of this Court.   It is unnecessary to  

burden this judgment by making reference to all such decisions.  

We are content with reference to some of those decisions.  In  

Sharad Birdhichand Sarda v. State of Maharashtra (1984)  

4 SCC 116, this Court laid down the following five tests to be  

satisfied in a case based on circumstantial evidence:

“(1) The circumstances from which the conclusion of guilt is to   be drawn should be fully established. (2) 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.  (3) The circumstances should be of a conclusive nature and  tendency. (4) They should exclude every possible hypothesis except the   one to be proved, and  (5) 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.”

7. The  decision  of  this  Court  in  Aftab  Ahmad Ansari  v.  

State of Uttaranchal (2010) 2 SCC 583 is a timely reminder  

of the abovementioned requirements in the following words:

“In cases where 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. Each   fact must be proved individually and only thereafter the court   should consider the total cumulative effect of all the proved   facts, each one of which reinforces the conclusion of the guilt.  

If  the  combined  effect  of  all  the  facts  taken  together  is   conclusive  in  establishing  the  guilt  of  the  accused,  the   conviction would be justified even though it may be that one   or  more  of  these  facts,  by  itself/themselves,  is/are  not   decisive.  The  circumstances  proved  should  be  such  as  to   exclude every hypothesis except the one sought to be proved.   But  this  does  not  mean  that  before  the  prosecution  case  succeeds in a case of circumstantial evidence alone, it must   exclude each and every hypothesis suggested by the accused,   howsoever extravagant and fanciful it might be.”

8. Coming to the facts of the present case, the prosecution  

relies entirely upon the deposition of PWs. 1, 2, 3 and 7.  Of  

these  depositions  PWs.  1,  2  and  3  are  not  admittedly  eye-

witnesses  to  the  occurrence,  nor  have  they  stated  anything  

against the appellants except that the deceased was fond of Usha  

and  wanted  to  marry  her  which  was  not  to  the  liking  of  her  

brother-Velu, the appellant before us. It is only the deposition of  

Palani  (PW7) that holds the key to whether the appellants are  

guilty or innocent.  According to this  witness who was sleeping  

with the deceased in the verandah of the house of PWs 1 to 3, at  

about 2.45 a.m. at night he heard a sound that woke him up. He  

also  noticed  the  appellants  standing  near  the  deceased.  

According to the witness, the appellants threatened him not to  

disclose anything to anyone otherwise he would meet the same  

fate. The witness, however, made no disclosure to PWs. 1, 2 and  

3 who were inside the house, even when they had been woken

up because of the sound and wanted to come out but could not  

because  the  door  was  bolted  from  outside.   He  made  no  

disclosure of what he had seen even after the police had arrived  

at the scene after the registration of the case.  In his statement  

before the police under Section 161 Cr.P.C., Palani (PW7) made  

no such accusations against the appellants nor did he disclose to  

anyone that he had seen the accused persons on the spot around  

the time of the commission of the offence. It was only five years  

after the occurrence that the witness for the first time disclosed  

in  the  Court  the  story  about  his  having  seen  the  appellants  

standing near the deceased when the former woke up on account  

of the noise of a stone falling hard on the ground.  The witness  

did not offer any explanation, much less a cogent and acceptable  

one for his silence for such a long period.  His assertion that he  

was scared by the appellants even after they had been taken into  

custody  by  the  police  and,  therefore,  did  not  reveal  anything  

about the actual events till he had the courage to come to the  

Court  to  make a  statement,  is  hard to  believe.   At  any rate,  

reliance upon the deposition of a witness who has made such a  

material improvement in his version is wholly unsafe unless it is

corroborated  by  some  other  independent  evidence  that  may  

probabilize his version.

9. In Narayan Chetanram Chaudhary & Anr. v. State of  

Maharashtra (AIR 2000 SC 3352), this Court held that while  

discrepancies in the testimony of a witness which may be caused  

by  memory  lapses  were  acceptable,  contradictions  in  the  

testimony were not. This Court observed:

“Only  such  omissions  which  amount  to  contradiction  in   material particulars can be used to discredit the testimony of   the  witness.  The omission in  the  police  statement  by itself   would  not  necessarily  render  the  testimony  of  witness   unreliable. When the version given by the witness in the Court   is different in material particulars from that disclosed in his   earlier  statements,  the  case  of  the  prosecution  become  doubtful and not otherwise. Minor contradictions are bound to   appear  in  the  statements  of  truthful  witnesses  as  memory   sometimes  plays  false  and  the  sense  of  observation  differ   from person to person.”

10. The difference  between  discrepancies  and contradictions  

was explained by this Court in  State of Himachal Pradesh  v.  

Lekh Raj and Anr. (AIR 1999 SC 3916).  Reference may also  

be made to the decision of this Court in  State of Haryana  v.  

Gurdial Singh & Pargat Singh (AIR 1974 SC 1871), where  

the  prosecution  witness  had  come  out  with  two  inconsistent  

versions of the occurrence. One of these versions was given in  

the Court while the other was contained in the statement made

before the Police.  This Court  held that these are contradictory  

versions  on  which  the  conclusion  of  fact  could  not  be  safely  

based. This Court observed:

“The present is a case wherein the prosecution witnesses have   come out with two inconsistent versions of  the occurrence.   One version of the occurrence is contained in the evidence of   the witnesses in court, while the other version is contained in   their  statements  made  before  the  police...In  view of  these   contradictory versions, the High Court, in our opinion, rightly   came  to  the  conclusion  that  the  conviction  of  the  accused   could not be sustained.”

11. Reference may also be made to the decision of this Court  

in Kehar Singh and Ors. v. State (Delhi Administration) AIR  

1988 SC 1883. This Court held that if the discrepancies between  

the first version and the evidence in Court were material, it was  

safer to err in acquitting than in convicting the accused.   

12. In the present case the statement made by Palani (PW7)  

is in complete contrast with the statement made by him before  

the Police where the witness stated nothing about having seen  

the appellants standing near the deceased around the time of the  

incident.  This omission is of very vital character. What affects  

the credibility of the witness is that he did not in his version to  

the police come out with what according him is the truth, but  

withheld it for a period of five years till he was examined as a  

prosecution witness in the Court.  This Court in Vadivelu Thevar

v. The  State  of  Madras  (AIR  1957  SC  614) classified  

witnesses into three categories, namely, (i) those that are wholly  

reliable,  (ii)  those that are wholly  unreliable  and (iii)  who are  

neither wholly reliable nor wholly unreliable. In the case of the  

first  category  the  Courts  have  no  difficulty  in  coming  to  the  

conclusion either way. It can convict or acquit the accused on the  

deposition of a single witness if it is found to be fully reliable. In  

the second category also there is no difficulty in arriving at an  

appropriate  conclusion  for  there  is  no question  of  placing  any  

reliance upon the deposition of a wholly unreliable witness. It is  

only in the case of witnesses who are neither wholly reliable nor  

wholly  unreliable  that  the  Courts  have  to  be  circumspect  and  

have to look for corroboration in material particulars by reliable  

testimony direct or circumstantial.  

13. To the same effect is the decision of this Court in  Lallu  

Manjhi v. State of Jharkhand, (AIR 2003 SC 854) where this  

Court felt that the testimony of the witness Mannu (PW9) could  

neither be totally discarded nor implicitly accepted. Mannu was a  

witness who could have been naturally present with his brother  

while ploughing the field. However, his testimony was found to

have been improved substantially at the trial. He was considered  

neither wholly reliable nor wholly unreliable.   

14. In  the  present  case  the  testimony  cannot  be  wholly  

reliable or wholly unreliable.  He is not a chance witness who had  

no  reason  to  be  found  near  the  deceased  at  the  time  of  the  

occurrence. There is evidence to show that Palani (PW7) used to  

sleep with the deceased-Senthil  in the verandah of the house.  

What makes it suspect is that the witness has, despite being a  

natural witness, made a substantial improvement in the version  

without their being any acceptable explanation for his silence in  

regard to the fact and matters which was in his knowledge and  

which would make all the difference in the case. The Court would,  

therefore,  look  for  independent  corroboration  to  his  version,  

which corroboration is not forthcoming.  All  that is brought on  

record by the prosecution is the presence of a strong motive but  

that by itself is not enough to support a conviction especially in a  

case  where  the  sentence  can  be  capital  punishment.  In  N.J.  

Suraj  v. State represented by Inspector of Police (2004)  

11  SCC  346,  the  prosecution  case  was  based  entirely  upon  

circumstantial  evidence  and  a  motive.  Having  discussed  the

circumstances relied upon by the prosecution, this Court rejected  

motive which was the only remaining circumstance relied upon by  

the prosecution stating that the presence of a motive was not  

enough for supporting a conviction, for it is well-settled that the  

chain of circumstances should be such as to lead to an irresistible  

conclusion,  that  is  incompatible  with  the  innocence  of  the  

accused.  To  the  same  effect  is  the  decision  of  this  Court  in  

Santosh Kumar Singh v. State through CBI. (2010) 9 SCC  

747 and  Rukia Begum v. State of Karnataka AIR 2011 SC  

1585 where this Court held that motive alone in the absence of  

any  other  circumstantial  evidence  would  not  be  sufficient  to  

convict  the  appellant.  Reference  may  also  be  made  to  the  

decision of this Court in  Sunil Rai @ Paua and Ors.  v. Union  

Territory,  Chandigarh  (AIR  2011  SC  2545).    This  Court  

explained the legal position as follows :

“In  any  event, motive alone can  hardly  be  a  ground  for   conviction. On the materials on record, there may be some  suspicion against the accused but as is often said suspicion,   howsoever, strong cannot take the place of proof.”

15. Suffice it to say although, according to the appellants the  

question  of  the  appellant-Velu  having the  motive  to  harm the  

deceased-Senthil for falling in love with his sister, Usha did not

survive once the family had decided to offer Usha in matrimony  

to the deceased-Senthil. Yet even assuming that the appellant-

Velu had not reconciled to the idea of Usha getting married to the  

deceased-Senthil, all that can be said was that the appellant-Velu  

had a motive for physically harming the deceased. That may be  

an  important  circumstance  in  a  case  based  on  circumstantial  

evidence but cannot take the place of conclusive proof that the  

person concerned was the author of the crime.  One could even  

say that the presence of motive in the facts and circumstances of  

the  case  creates  a  strong  suspicion  against  the  appellant  but  

suspicion, howsoever strong, also cannot be a substitute for proof  

of the guilt of the accused beyond a reasonable doubt.   

16. In the totality of the circumstances, we are of the view  

that  the  prosecution  has  not  proved  its  case  against  the  

appellants  who are,  in our opinion,  entitled  to acquittal  giving  

them the benefit of doubt. In the result, these appeals succeed  

and are hereby allowed. The appellants shall stand acquitted of  

the  charges  framed  against  them  giving  them  the  benefit  of  

doubt.                                                         

……………………….……..……J.

      (T.S. THAKUR)

………………………….…..……J. (GYAN SUDHA MISRA)

New Delhi March 2, 2012