BASHEERA BEGAM versus MOHAMMED IBRAHIM & ORS. on 31 January 2020

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[2020] 3 S.C.R. 562

SUPREME COURT REPORTS

[2020] 3 S.C.R.

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BASHEERA BEGAM

v.

MOHAMMED IBRAHIM & ORS.

(Criminal Appeal No. 417 of 2010)

BJANUARY 31, 2020

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – s.120B & s.302 r/w s.34 – Case basedon circumstantial evidence – Case of prosecution that D2 (son ofA4) and D1 (nephew of A3) were friends – Brother of A3 & A4 andCuncle of D2, who lived in Malaysia, had properties in India, whichwere managed by A3 – Enmity arose between A3 & D2 after theaforesaid brother took back properties from A3 and entrusted D2with their management– D2’s demand for partition of familyproperties held and/or controlled by A4 gave rise to propertyDdisputes between D2, his brother (A1) and their father (A4) – Asper prosecution, the accused booked a room at a Hotel on 21.6.90,where they hatched conspiracy to kill D2 – A1 purchased a lorryon or about 20/21.12.90 – On 28.12.90, A1 hit the motor cycle onwhich D2 & D1 were riding, with his lorry – A2 & A7 got off thelorry and attacked D2 & D1, who had fallen from their motor cycle,Ewith iron rods and caused their death– All the accused (A1-A8)were convicted u/s.120B– A1, A2 & A7 were also convicted u/s.302r/w s.34 – High Court acquitted all the accused persons – Held:Prosecution has only been able to conclusively establish that on28.12.90 at around 8.30 p.m., D2 rode motorcycle owned by A4Fwith D1 on pillion – Two were seen lying dead on road, in a pool ofblood and their motorcycle lying close by – Prosecution miserablyfailed to prove that D2 & D1 were beaten to death with rods by A2& A7 – It was also not able to rule out the possibility of D1 & D2being killed in a ‘hit and run’ accident involving some unknownvehicle – There are inherent improbabilities and inconsistencies inGevidence – It is not the case of prosecution that the accused hadany motive to kill D1– There was no eyewitness to the incident – Itwould be preposterous to attribute the purchase of the lorry to thesinister motive of murdering D2 – To establish motive for murder,the prosecution tried to build up a case of enmity between A3 & D2and also of disputes between A1, A3 & D2 – Property disputesH

amongst family members is not uncommon – There may also bequarrels between them however, to attribute motive to a father toplot the murder of his own son, there have to be more compellingreasons – Prosecution failed to prove that there was any conspiracyto kill D2 at the hotel or anywhere else – When there is circumstantialevidence pointing to the guilt of accused, it is necessary to prove amotive for the crime – However, motive need not be proved wherethere is direct evidence – In this case, there is no direct evidence –Prosecution failed to establish the guilt of the accused personsbeyond reasonable doubt – High Court rightly acquitted the accused– Code of Criminal Procedure – ss.161, 313 – Constitution of India– Art.136.

Criminal Law – Circumstantial evidence – Proof beyondreasonable doubt – Held: Suspicion however strong cannotsubstitute proof beyond reasonable doubt – Burden of proving anaccused guilty beyond all reasonable doubt lies on the prosecution– If upon analysis of evidence two views are possible, one whichpoints to the guilt of the accused and the other which is inconsistentwith the guilt of the accused, the latter must be preferred – Whenthere is circumstantial evidence pointing to the guilt of the accused,it is necessary to prove a motive for the crime – However, motiveneed not be proved where there is direct evidence.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1.1 The Prosecution has only been able toconclusively establish that, on 28.12.1990 at around 8.30 p.m.,D2 rode out of Arsarkulam, towards Aranthangi on MotorcycleNo. TN 55/1406 owned by his father, A-4, with D1 on the pillion.The two were seen lying dead on the road, in a pool of blood, afew furlongs away from the level crossing at Sarayanenthal,Pappakulam and their motorcycle was lying close by. On a carefulanalysis of the post mortem reports and the oral evidence of thepost mortem doctors, it is found unlikely that the deceased werebeaten to death with an iron rod. PW-22 was of the opinion D2fell off the motor cycle after a collision and got run over. TheProsecution has miserably failed to prove that the deceased werebeaten to death with a rod. The Prosecution has also not beenable to rule out the possibility of D1 and D2 being killed in a ‘hitand run’ accident involving some unknown vehicle. There are AB

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Aalso inherent improbabilities and inconsistencies in the evidencewhich demolishes the case of the Prosecution that the deceasedwere beaten to death with iron rods by A2 and A7. It does notstand to reason why A2 and A7 should have risked getting off thelorry and beating D2 and D1 with iron rods, when A1 had dashedhis lorry against their motor cycle, fatally injured them and run atBleast one(D2), if not both of them over. It is not the case of theProsecution that the accused had any motive to kill D1. Moreover,while it is alleged that A2 and A7 had hit both the deceased withiron rods, only one iron rod has allegedly been recovered froman open, easily accessible pond, over a month after the incidentCon the alleged confession of A7 made before the police after arrest.There is no whisper in the evidence of any other iron rod. PW-29, the sole witness who testified that A2 made a confession tothe police in his presence, took the police to Maangudi andbrought the iron rod out of a pond in his presence, could noteven remember if there was any water in the pond. Nor could heDidentify A7. The rod was never sent for forensic examination. Itwould be dangerous to convict A2 or A7 on the basis of thetestimony of PW-29 or for that matter, any other witness. Therecan be no question of interference with the acquittal of A2 and A7from the charges against them. There was no eyewitness to theEincident. The Prosecution has made an attempt to connect thelorry No. TSL 6579 to the incident through circumstantialevidence, by examining PW-6, PW-7, PW-8, PW-11, PW-12, PW-14, PW-15, PW-16, PW-17, PW-19, PW-25, PW-27, PW-35, PW-42, PW-43, PW-44 and PW-45 and also relying on material objectssuch as broken glass pieces, broken plastic pieces, paintFscrapings seized from the place of occurrence as also the numberplate of a lorry with the number TSL 6579, an indicator with bulband a partly orange and partly transparent plastic cover, anindicator without bulb and cover, a circular lamp 14.5 cm indiameter with lamp and yellow glass cover and a circular lampGholder 14.5 cm in diameter without lamp and cover. The numberplate, indicators and lamps were not seized from the place ofoccurrence. The evidence of PW-6, PW-7 and PW-17 onlyestablishes that A1 purchased lorry No. TSL 6579 through brokersPW-6 and PW-7 with the assistance of A5 and A6 about 7/8 daysbefore the incident. About four days before the incident, the lorryH

had been brought to Karaikuddi National Battery company forgetting its battery charged. Since the battery needed replacement,but a new battery was not in stock, a serviced battery was fittedin the lorry, which was never returned. Significantly, the evidenceof PW-6 reveals that A1 had earlier, long before the allegedconspiracy at the Malar Lodge Hotel on 21.6.1990 purchased alorry with the Registration No TDB 9635 for which A5 had stoodguarantor. This lorry was sold some time in October, 1990, aboutfour months after the date of the alleged conspiracy, and in lessthan two months, on or about 20/21 December, 1990 Lorry No.TSL6579 was purchased. It is, therefore, evident that A1 used tohave a lorry, or at least had one since January 1990 with a shortbreak, possibly for the purpose of his business. It would bepreposterous to attribute the purchase of the lorry to the sinistermotive of murdering D2. The Prosecution has made no attemptto explain why A1 should have sold the lorry he already had ifthere were a conspiracy to kill D2 by hitting him or running himover with a lorry. [Paras 142, 149-154][608-F-G; 609-H; 610-A-H; 611-A-D]

1.2 From the evidence of aforesaid witnesses as also theevidence of PW-8, PW-14, PW-15, PW-16 and PW-17 it transpiresthat the lorry was brought to Arokyam’s workshop at Mannaparaion 29.12.1990 for minor repairs. After the repairs were done PW-6 took delivery of the same and left it at a lorry shed near theoffice of A7, who had sold the lorry to A1 through A6. PW-14, theowner of the workshop deposed that PW-6 had instructed him torepair a minor dent. There is nothing in the evidence of PW-6 orPW-7 to link the lorry with the death of D2 and D1. Incidentally,PW-6 said he had not seen A1 after 20.12.1991, whereupon hewas declared hostile and subjected to cross-examination. PW-6said the lorry had been seized by the police. Even assuming forthe sake of argument that the lorry TSL 6579 had been broughtto the workshop for repair with minor dent and a broken sidelightor lamp and the colour of some broken glass pieces at the sceneof occurrence matched the colour of the side light and orindicators of the lorry, that does not prove involvement of thelorry in the same incident. Many lorries have the same kind oflamp/indicator covers. Moreover the lorry was purchased second AB

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Ahand and there is no evidence at all of the condition of the lorryat the time of its delivery to A1. [Paras 155, 163][611-E-G;614-B]

1.3. In any case, even assuming for the sake of argumentthat lorry No. TSL 6579 was the lorry, which knocked down theBmotorcycle which the deceased were riding, and ran over thedeceased, that in itself cannot lead to the conviction of any of theaccused under Section 302 of the Indian Penal Code. There isnot an iota of evidence to establish that A1, A2 or A7 were in thelorry, except for the alleged extra judicial confession of A7 madein the presence of the police, which cannot be accepted for theCreasons discussed. The mere fact that A1 might have been drivingthe lorry also does not establish that he committed murder. Toestablish motive for the murder the Prosecution has tried to buildup a case of enmity between A3 and D2 and also of disputesbetween A1 and A3 and D2. A3 was named as a possible suspectDin the FIR. There may have been enmity between D2 and A-3,but A-3 was not there at the scene of occurrence. It is not thecase of the Prosecution that A3 committed the murder. There isno evidence of his involvement in the murder of D2 and D1. Inany case, he could not have had any motive to kill D1.Furthermore, the evidence of PW-1 indicates that disputes withEA3 were compromised with the intervention of the DistrictCollector. The allegations of disputes between A1 and D2, hisown brother, are totally vague and devoid of any particulars. Thereis no evidence at all, of any specific reason for discord betweenA1 and D2, not to speak of evidence of dispute of a kind thatFcould lead to a murder. [Paras 165-167][614-E-H; 615-A]

1.4 A4 had also made a complaint to the police. The dispute

1.4 A4 had also made a complaint to the police. The dispute was apparently settled on 30.4.1990 on the advice of PW-29, andD2 promised not to quarrel with his father over property matters.There is no evidence that he breached such promise. PropertyGdisputes amongst family members is not uncommon. There mayalso be quarrels between members of a family. They may not beon talking terms. However, to attribute motive to a father to plotthe murder of his own son, there would have to be more compellingreasons. The case made out by the Prosecution is speculative H

and unsubstantiated. In any event, it is not the case of theProsecution that either A3 or A4 committed the murder, or waseven present at the place of occurrence. Furthermore, it isnobody’s case that A2, A5, A6, A7 and A8 or any of them had anyenmity with D2. [Paras 169-172][615-C-F]

1.5 The only evidence with regard to the alleged conspiracyis the absolutely inadmissible hearsay evidence of PW-44, a policeofficer who investigated the crime. PW-44 stated that he hadexamined PW-39, who had in course of his examination statedthat A1 had asked PW-39 and PW-10 to accompany him toKaraikudi for purchase of lorry spare parts. Apart from the factthat PW-10 and PW-39 have categorically denied their presenceat Karaikudi on 21.6.90, there are patent inconsistencies in theevidence of PW-44 in this regard. If A3 was present at the MalarLodge Hotel, Karaikudi at the time of the conspiracy on21.6.1990, there could be no reason for PW-10 or PW-39 to go toA3’s house and tell him about the conspiracy. Nor would A3 advisePW-10 and PW-39 not to divulge the conspiracy to others. Evenotherwise, it is inconceivable that the accused should hatch aconspiracy to commit murder, in the presence of witnesses whowere not part of the conspiracy. It is also difficult to fathom whyPW-10 and PW-39 were never arrayed as co-accused, if they werepresent at the time of the conspiracy and they chose to keepquiet about the conspiracy. No credence can be given to theevidence of PW-44. Statements made to the police under Section161 of the of the Criminal Procedure Code in course ofinvestigation are inadmissible in evidence. The evidence of PW-44 with regard to what two witnesses namely, PW-10 and PW-39told him in course of investigation is inadmissible in evidence,and of no value. Significantly, both PW-10 and PW-39 categoricallydenied having made to the police, the statements attributed tothem. [Paras 175, 182-185][616-A-B; 617-C-F]

1.6 PW-40 who had worked as Manager, Malar Lodge Hotel,Karaikudi from 1989 to 1991 denied knowing A8 or A2. Hedenied having made the statements to the police, attributed tohim. The appellants have relied on the evidence of PW-34, ahandwriting expert, to prove that the accused had taken part in a A

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Aconspiracy at the Malar Lodge Hotel on 21.6.1990. In any case,the evidence of PW-34 establishes at the highest, that one of theaccused that is A-8, who had no enmity with the deceased, hadmade entries in and signed the admission register of the MalarLodge Hotel. The evidence of PW-34, at best proves that A8may have checked into Malar Lodge Hotel, Karaikudi onB21.6.1990, six months before the incident and nothing more.There could be numerous reasons for A8 to go to Karaikudi.The Prosecution has not been able to satisfactorily explain thegap of over six months between the incident and the date onwhich the alleged meeting took place at the Malar Lodge. AnCaccused is presumed innocent, unless proved guilty beyond allreasonable doubt. For conviction on the basis of circumstantialevidence, the circumstances from which the conclusion of guiltis to be drawn should fully be established. The circumstancesshould be conclusive. The circumstances established shoulddefinitely point to the guilt of the accused, and not be explainableDon any other hypothesis. The circumstances should exclude anyother possible hypothesis except the one to be proved. [Paras186- 189][617-G-H; 618-A, C-G]

Shivaji Sahabrao Bobade v. State of Maharashtra(1973) 2 SCC 793 : [1974] 1 SCR 489 – relied on.

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1.7 Suspicion however strong cannot substitute proofbeyond reasonable doubt. Enmity as a result of property relateddisputes may give rise to suspicion. However, conviction cannever be based on suspicion unless the prosecution clearly provescircumstances conclusively and all circumstances proved shouldFonly point to the guilt of the accused. Possibility of any conclusionother than the conclusion of guilt of the accused would vitiate aconviction. The burden of proving an accused guilty beyond allreasonable doubt lies on the prosecution. If upon analysis ofevidence two views are possible, one which points to the guilt ofGthe accused and the other which is inconsistent with the guilt ofthe accused, the latter must be preferred. Reversal of a judgmentand order of conviction and acquittal of the accused should notordinarily be interfered with unless such reversal/acquittal isvitiated by perversity. In other words, the Court might reverse H

an order of acquittal if the Court finds that no person properlyinstructed in law could have upon analysis of the evidence onrecord found the accused to be ‘not guilty’. When there iscircumstantial evidence pointing to the guilt of the accused, it isnecessary to prove a motive for the crime. However, motive neednot be proved where there is direct evidence. In this case, thereis no direct evidence of the crime. [Paras 192-193][619-E-G;620-A-B]

1.8 Before a case against an accused can be said to be fullyestablished on circumstantial evidence, the circumstances fromwhich the conclusion of guilt is to be drawn must fully beestablished and the facts so established should be consistent onlywith the hypothesis of the guilt of the accused. There has to be achain of evidence so complete as not to leave any reasonabledoubt for any conclusion consistent with the innocence of theaccused and must show that in all human probability the act musthave been done by the accused. The prosecution miserably failedto establish the guilt of the accused persons beyond reasonabledoubt. There is a strong possibility that the motorcycle whichthe deceased were riding, might have been hit by an unknownvehicle, killing the deceased. The death may have been accidental.The High Court rightly set aside the judgment and order ofconviction of the Trial Court and acquitted the accused. [Paras195, 197][620-E; 621-C]

Praful Sudhakar Parab v. State of Maharashtra (2016)12 SCC 783 – distinguished.

Satish Nirankari v. State of Rajasthan (2017) 8 SCC497 : [2017] 4 SCR 298; Sadhu Saran Singh v. State ofU.P. (2016) 4 SCC 357 : [2016] 1 SCR 913; ShantiDevi v. State of Rajasthan (2012) 12 SCC 158 : [2012]9 SCR 226 – relied on.

State of Rajasthan v. Islam & Ors. (2011) 6 SCC 343 :[2011] 6 SCR 988; Vijay Shankar v. State of Haryana(2015) 12 SCC 644 : [2015] 9 SCR 977; Murari lal v.State of Madhya Pradesh (1980) 1 SCC 704 : [1980] 2SCR 249; Sharad Birdhichand Sarda v. State ofMaharastra (1984) 4 SCC 116 : [1985] 1 SCR 88; AB

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570SUPREME COURT REPORTS

[2020] 3 S.C.R.

ABablu v. State of Rajasthan (2006) 13 SCC 116 : [2006]10 Suppl. SCR 835 – referred to.

From the Judgment and Order dated 22.11.2006 of the MaduraiBench of Madras High Court in Criminal Appeal Nos. 834, 835, 836,E895, 926, 934 and 938 of 1998.

With

Criminal Appeal Nos. 416 and 408-414 of 2010.

KTS Tulsi, R. Balasubramanian, R. Basant, Rajiv Datta, Sr. Advs.,FSiddhant Sharma, B. Ragunath, Ibhram Ali, Vijay Kumar, P.R. Kovilan,Mrs. Geetha Kovilan, Ms. Jubli Momalia, M. Yogesh Kanna, S. ParthaSarathi, Raja Rajesh Waran S., Kumar Dushyant Singh, Mukul Lather,Arun Adhlakha, Dharmendra Kumar Sinha, B. Karunakaran, MukeshVerma, Pankaj Kumar Singh, Pawan Kumar Shukla, Yash Pal Dhindra,GK.K. Mani, Ms. T. Archana, Dushant Kumar Singh, KanippaiahMeyappan, Ms. Kanika Kalaiyarasan, Ms. Yamunah Nachiar, S. RaviShankar, Advs. for the appearing parties.

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The Judgment of the Court was delivered by INDIRA BANERJEE, J.

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The Judgment of the Court was delivered by INDIRA BANERJEE, J.

1. These appeals are against the judgment and order dated21.11.2006 passed by the Madurai Bench of Madras High Court, allowingCriminal Appeal Nos. 834, 835, 836, 895, 926, 934 and 938 of 1998,setting aside the judgment and order dated 6.10.1998 of conviction passedby the Additional Sessions Judge, Pudukottai in S.C. No.108/1996, andacquitting all the eight accused persons (A1 to A8). While all the eightaccused had been convicted under Section 120B of the Indian PenalCode of criminal conspiracy, A1, A2 and A7 had also inter alia beenconvicted under Sections 302/34 of I.P.C for murder of the deceasedRaja Mohammed, hereinafter referred to as the first Deceased (‘D1’),and his friend Raj Mohammed son of Ibrahim, the Accused No.4 (A4),and hereinafter referred to as the second Deceased (‘D2’).

2. Criminal Appeal Nos.417 and 416 of 2010 have respectivelybeen filed by Basheera Begum, the wife of D2 who deposed in the trialas the 3[rd] Prosecution Witness (PW-3) and Sahul Hameedhu uncle ofD1, being the complainant, who deposed as the 1[st] Prosecution Witness(PW-1). Criminal Appeal Nos. 408-414 of 2010 have been preferred bythe State, challenging the acquittal of the eight accused.

3. The 1[st] Accused Jaffer Ali (A1) and D2 are brothers and sonsof the 4[th] Accused, Mohammad Ibrahim (A4). The 3[rd] Accused, AbdulHameedhu (A3) is younger brother of A4 and uncle of D-2 and A-1.The 5[th] Accused Sheikh Dawood (A5) and the 6[th] Accused, Basheer Ali(A6) are relatives of A1, A3, A4 and D2. The wives of A3 and A6 aresisters. The 2[nd] Accused Balu @ Balusamy (A2) and the 7[th] Accused,Krishnan (A7), both residents of Karaikudi are allegedly henchmen ofthe 8[th] Accused, Ramasamy Ambalam(A8) of Unjanai Village nearKaraikudi, a friend of A3. A4, A5 and A7 have since died. A7 had diedwhile his Appeal before the High Court was pending. The appeals againstthe acquittal of A4 and A5 in this Court, have abated.

4. It is the case of the Prosecution that D2, son of A4 and D1nephew of A3 were friends. Sultan alias Sulaiman Rowther, brother ofA3 and A4 and uncle of D2, who lived in Malaysia, had properties inIndia, which were being managed by A3. Enmity arose between A3 andD2 after the said Sulaiman took back his properties from A3 and entrustedD2 with management of the same. Fathima Beevi, daughter of Sulaiman, BC

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Aa Non-Resident Indian (NRI), had also entrusted D2 with her propertiesin India, as a result of which there was bad blood between A3 and A2.D2’s demand for partition of family properties held and/or controlled byA4 gave rise to property disputes between D2 and his father (A4) andhis brother (A1). D2 was embroiled in litigation in respect of propertiesheld and/or managed by him.B

5. As per the case of the Prosecution, the Accused had booked aroom at the Malar Lodge Hotel at Karaikudi on 21.6.1990, where theyhatched the conspiracy to kill D2. In pursuance of such conspiracy A1purchased a lorry bearing the Registration No. TSL 6579 on or about20/21 December 1990, through brokers, PW-6 and PW-7 under a saleCagreement prepared by A5. A6 and A5 were also signatories to the saleagreement.

6. According to the Prosecution, D2 and his friend D1, bothresidents of Arsarkulam, left for Aranthangi around 8.30 p.m. on28.12.1990, by Motor Cycle No.TN/1406, owned by the A4, to meet aDlawyer engaged by D2. D2 drove the motor cycle and D1 was on thepillion. At about 1.00 a.m. at night, two persons, Kannan and NagoorGani (PW2) who had come to Arsarkulam by the last bus, informed thecomplainant (PW-1), uncle of D1, that D2 and D1 were lying dead in apool of blood two or three furlongs away from the level crossing atESarayananthal, Pappakulam and a motor cycle was lying closeby.

7. On receiving the information, PW-1 went to the place ofoccurrence immediately with his neighbour Mohammedhu Meera andthereafter, at about 2.00 p.m. he went to the Aranthangi Police Stationand lodged a complaint.F

8. In the complaint, PW-1 stated that he suspected that thedeceased might have been murdered by Perumal, Kuzhanthaiyan andKumar, at the instigation of A3, as there was enmity between D2 andA3 over the eviction of A3 from the place of his residence. A1, brotherof D2 and A4, father of D2 were not even named as accused in theGcomplaint. Nor were any of the other accused named.

9. The sub-inspector attached to the Aranthangi Police Stationregistered the complaint, pursuant to which investigation in Crime No.668 of 1990 commenced under, inter alia, Sections 120B and 302 ofthe IPC. The Inspector reached the place of occurrence on 29[th]December, 1990 after sunrise. The bodies of the deceased were sentHfor postmortem examination.

10. PW-22, a doctor attached to the Government Hospital atAranthangi performed postmortem on the dead body of D2. Uponpostmortem, the following injuries were found on D2:- A

“EXTERNAL INJURIES:

1. Contusion injury on upper lip and right maxilla.

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2. Teeth in upper and lower jaw displaced.

3. Horizontal incised injury 3 cmx2cmx1cm on chin.

4. Blood clots from mouth and nose.

5. Irregular horizontal abrasion 3 cm diameter on chest.

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6. Reddish black, partly rectangular 3 cm x 2cm interruptedimpression, continuous from right Hypochondrium crossingsternum termination at left Hypocondrium. Similarimpressions on lower part of abdomen diminishing atumbilicus. Distance between two edges is of 27 cms.

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7. The above impressions present on front position middle ofright forearm.

8. Elliptical shaped lacerated injury on cubital region of leftforearm 4 cmx4cmx1cm. When both upper limps held closeto the body injury No.6, 7 & 8 are continuous and are in line.

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9. Bluish coloured contusion injury 5 cm diameter on rightinquinal regional.

10. Irregular abrasion just above right knee.

11. Irregular abrasion 4 cm diameter below right scapula.

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Internal injuries:

Fracture of Nasal bones body of mandible on both sides.

Ribs 3 to 7 costal region symmetrical on both sides drivinghone ends to lungs, body of sternum, lung surgace isGlacerated.

Stomach contained 200 ml of digested rice particles.

Liver posterior surface is ruptured and torn to pieces.

Other visceral organs & skull bones normal:

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Scrotum: Contained a loop of intestines.”

11. The 23[rd] Prosecution Witness (PW-23)conducted Postmortemon D1 and found the following Injuries:

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“External Injuries :

1. An ante-mortem lacerated injury over the right eye browhorizontally, size 3cmx ½ cm x ½ cm cm an examination bloodclots underneath the wound present. No bone fracture.

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2. An ante mortem larcerated injury semi circular in natureover the anterior aspect of right shoulder size 6 cm*1cm*1cm.No bone fracture.

3. An ante mortem lacerated injury over the right armanteriorly horizontal in nature 5 cm below the shoulder jointsize 3 cm*1cm* ½ cm. No bone fracture.

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4. An ante mortem lacerated injury over the right elbowposteriorly horizontal in nature size 2½ cmx1cmx ½cm.

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5. Ante mortem abrasion linear, interrupted interneath innature. Extending from right chest to right ideal fossa size25cmx5cm. On examination extra vastation of blood underneath the skin present. Present. Fracture of 4[th] and 5[th] ribanterior angle present.

6. Ante mortem lacerated injury horizontal over the left wristjoint anteromedialy size 2 cm x ½ cmx ½cm. No bone fracture.

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7. An ante mortem lacerated injury over the right knee jointantirolaterally size 3 cmx 2cm x ½cm horizontal in nature.No bone facture.

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8. Ante mortem abrasion 4 cm in number each 3 cm x 2 cmover the right leg laterally.

9. Ante mortem contusion over the right side scalp over theright temporal region size 7 cm x9 cm extravastation of bloodunder neath the scalp present. Fracture right temporal bone,Gsquemoris part present, Meninges injury subdural haematonepresent in intracerebral bleeding present.

10. Torn) bridge depressed clots in the nostril present. Nofracture. Nasal bone body not decomposed. The generalappearance do not tally with police report. Death appear tohave occurred about 16 to 20 hours prior to post mortem.

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Penis circumcised, eye lids closed, jaws clenched. Tongueinside the mouth.

Internal Injuries:

Abdomen mild distention present. Position organs normal,pale, no injury to liver Spleen, kidney no fluid or blood inthe peritoneal cavity. Stomach contains 30 ml partiallydigested food. No specific odour. Thorax-position of organsnormal pale fracture o right 4[th] and 5[th] ribs present. Heartempty, no injury lungs no injury. No foreign body in thetrachea, Larynx, Hyoid bone not broken. Pelvis no fractureskull fracture of right temporal bone membranes conjestedsubdural haematoma, intra cerebral bleeding present. Brainsolid Wt.1200 gms deceased blood preserved for chemicalanalysis.”

12. The Investigating Officer, PW-43, took up the investigationand examined witnesses. The police seized broken glass pieces, plasticpieces and other objects from the place of occurrence. The lorry waslater seized. One iron rod alleged to have been used for the murder ofD2 and D1 was allegedly recovered by the police on the confession ofA7. The passport of A1, who had gone back to Saudi Arabia, where hecarried on business, about fifteen days after the incident, was impoundedand he was arrested. PW-36, who had taken up the investigation fromPW-43 seized registers of Malar Lodge Hotel in Karaikudi (Ex.P24).Further investigation was conducted by PW-45.

13. After completion of investigation, the Inspector of the CrimeInvestigation Branch, Pudukkottai, filed a Chargesheet before the JudicialMagistrate, Aranthangi. In the chargesheet it was alleged that, on 28[th]December 1990, A1 had hit the motor cycle on which the deceasedwere riding, with his lorry bearing the registration No. TSL 6579, nearSerayanenthal, Pappakulam. A2 and A7 had got off the lorry and attackedthe deceased, who had fallen from their motor cycle, with iron rods andcaused their death in pursuance of the conspiracy which had been hatchedbetween A1 to A8 at the Malar Lodge Hotel, Karaikudi, on the night of21[st] June, 1990, owing to enmity of A3, A4 and A1 with one of thedeceased, that is, D2.

14. The accused pleaded ‘not guilty’, after which trial commenced.All the accused respondents were tried under Section 120B of the IPC

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Aon the charge of hatching a criminal conspiracy at the Malar LodgeHotel, Karaikudi on 21.6.1990, to murder D2. A1, A2 and A7 were alsocharged with offence under Section 302 read with Section 34 of theIPC, of murder of D2 and D1.

15. The prosecution examined 45 witnesses. The accused did notBexamine any defence witness. Nine Prosecution Witnesses (PWs) namelyPW-6, PW-9, PW-10, PW-11, PW-12, PW-13, PW-39, PW-40 and PW-42 were declared hostile by the Public Prosecutor and were crossexamined on behalf of the State, as they had allegedly retracted fromtheir statements made before the Police in course of investigation.

C16. By a judgment and order dated 6[th] October, 1998, the AdditionalSessions Judge, Pudukottai convicted all the accused under Section 120BIPC and further convicted A1, A2 and A7 under Section 302 read withSection 34 IPC. A1, A2 and A7 were sentenced to life imprisonmentand also to fine of Rs.20,000/- each.

D17. Being aggrieved by the judgment and order dated 6[th] October,1998 of the Additional Sessions Judge, Pudukottai in SC No.108 of 1996,all the accused filed Criminal Appeals in the High Court, which werenumbered as Criminal Appeal Nos.834, 835, 836, 895, 926, 934 and 938of 1998.

E18. By the judgment and order under appeal, the Hon’ble HighCourt allowed the Criminal Appeals, set aside the judgment and orderdated 6[th] October, 1998 of the Trial Court, of conviction of the accusedin SC No.108 of 1996 and acquitted the accused of the charges levelledagainst them. Since A7 had died while the proceedings in the High Courtwere pending, the fine amount if any, paid by A7, was directed to beFrefunded to his legal heirs.

19. The High Court, on consideration of the evidence adduced bythe Prosecution, found that the entire prosecution case suffered fromserious infirmities, inconsistencies and inherent improbabilities. Therewere several missing links in the circumstances put forward by theGProsecution and the Prosecution had miserably failed to complete thechain of circumstances by conclusively establishing that each and everycircumstance unerringly pointed to the guilt of the accused. Beingaggrieved by the judgment and order of the High Court, reversing theconviction of the accused and acquitting all of them, the State, as alsothe complainants are in appeal.H

20. Mr. K.T.S. Tulsi, Senior Advocate appearing on behalf of theappellant in Criminal Appeal No.417 of 2010 submitted that the HighCourt clearly erred in law as well as facts, in setting aside the judgmentand order of conviction of the Trial Court and acquitting the accused ofall the charges levelled against them.

21. There can be no doubt, as argued by Mr. Tulsi, that eventhough the Supreme Court exercises discretionary jurisdiction underArticle 136 of the Constitution, such discretion has to be exercised inorder to ensure that there is no miscarriage of justice. If the decision ofthe High Court is mis-conceived and perverse, there is nothing in lawwhich prevents the Supreme Court from exercising its jurisdiction underArticle 136 against an order of acquittal, as observed by this Court inState of Rajasthan vs. Islam & Ors.[1]. When acquittal cannot besustained at all, in view of the evidence on record, this Court is dutybound to set aside the acquittal. The question is whether the acquittal inthis case, is liable to be set aside.

22. Mr. Tulsi argued that there was evidence of property disputesbetween D2 and A3 and also of property disputes between D2 and A4.A police complaint had been lodged in this regard. However, acompromise was entered on the intervention of the District Collector.On 30.4.1990, A4 had lodged a complaint against D2 which had beencompromised in the Civil Court.

23. There was evidence that on 21.6.1990 the accused booked aroom at the Malar Lodge Hotel, Karaikudi and conspired to kill D2 withthe help of a lorry. Accordingly A1 purchased the lorry No. TSL 6579with the sinister motive of murdering D2.

24. Mr. Tulsi submitted that on 28.12.1990, D2 and D1 left forAranthangi. At around 1.00 a.m. complainant was informed of the deathof the deceased. As per the post mortem report the deceased died ofshock and haemorrhage due to injury on skull, brain and multiple injuries.

25. Mr. Tulsi submitted that where specific roles had been attributedto each of the accused persons, a chain of circumstances linking them tothe commission of offence was complete. The High Court ought not tohave reversed the Trial Court’s judgment. The High Court overlookedthe fact that in most cases of circumstantial evidence, direct evidence of 1 2011 (6) SCC 343

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Aconspiracy is never available and existence of conspiracy has to beinferred from the circumstances of the crime.

26. Mr. Tulsi submitted that apart from complete chain ofcircumstances linking the accused with the crime, expert opinion wasalso available. The depositions of PW-22 to PW-27 led to irresistibleBinference of the guilt of the accused. Mr. Tulsi submitted that the HighCourt ignored the fact that the accused persons alone had the motiveand opportunity to commit the offence as established from the testimonyof PW-1, PW-3 and PW-29.

27. Mr. Tulsi submitted that depositions of PWs 8, 16, 21, 23 andC24 clearly established that D1 and D2 were killed by the accused persons.They did not die as a result of an accident. PW-8 deposed that the lorrywas repaired in his workshop at Arokyam. On the intervening night of28/29.12.1990 the lorry was brought to the workshop of PW-7 for repairs.Its left bottom light was broken. On 3.1.1991 PW-16 had sold threebulbs for the lorry in question against receipt and on the same day PW-D15 had sold a front side light of a heavy motor vehicle.

28. Mr. Tulsi further submitted that there was evidence of PW-21who deposed that an iron rod was recovered from A7 on 13.2.1991 inhis presence. On the basis of the statement of PW-24, the Trial Courtrightly came to the conclusion that D2 did not die because of the collisionEbut was murdered. Even PW-23 stated that D1 and D2 had beenmurdered with the rod( MO-23). Counsel appearing for the Statesupported Mr. Tulsi.

29. There can be no doubt that direct evidence of conspiracy isalmost never available and that existence of conspiracy has necessarilyFto be inferred from the circumstances of the crime, as held by this Courtin Vijay Shankar vs. State of Haryana[2], Praful Sudhakar Parab vs.State of Maharashtra[3 ]and Satish Nirankari vs. State of Rajasthan[4]cited by Mr. Tulsi. It is however doubtful, whether existence of conspiracycan at all be inferred from the circumstances in this case, consideringGthe evidence adduced by the prosecution.

30. The 1[st] Prosecution Witness M. Sahul Hameed (PW-1), beingthe complainant deposed that D1 was his sister’s son. When the incident 2 2015 (12) SCC 644

3 2016 (12) SCC 783H4 2017 (8) SCC 497

occurred Mohamed Meerasa, father of D1, was in Malaysia. D1 hadbeen staying with his mother Aiyeesha @ Aiyeesammal at Aroorkulam.PW-1 deposed that D2 was a friend of his sister’s son, D1. D2 wasmarried to PW-3, Basheera Begum.

31. In a nutshell, PW-1 said that he knew all the accused persons.A4 (father of D2), A3, and Sultan @ Sulaimaan Rowthar living in Malaysiawere brothers. A3 had been managing the properties of Sulaimaan inIndia. Disputes however arose between A3 and D2 when Sulaimaantook back his properties from A3 and entrusted the management thereofwith D2. Properties in the name of Fathima Beevi, daughter of Sulaimaanwere also entrusted to A3 for management.

32. PW-1 has stated that there were 10 to 12 patta holders, andalso unauthorised occupants in occupation of land purchased in the nameof Fathima Beevi. The occupants were being evicted by payment ofmoney. However, A3 who was associated with the ruling party at thattime, and a Vice-president of the Aranthangi Panchayat Union, instigatedoccupants not to vacate, and many of them refused to vacate. Accordingto this witness, this gave rise to a quarrel between D2 and A3 and acomplaint was filed with the police. The District Collector conducted aninquiry and the disputes were compromised through his intervention.

33. This witness also said that there was a civil case pending inthe District Munsif Court at Aranthangi against some occupants of thePalaa Thopu land of Fathima Beevi. D2 used to often go to Aranthangiwith D1, being the complainant’s sister’s son, in connection with the civilcase. From the evidence of PW-1 it only transpires that A1, A3 and A4had property disputes with D2.

34. This witness stated that A4, father of D2 owned a Bajaj MotorCycle bearing the Registration No.TN55/1406. On 28[th] December, 1990at about 8.30 p.m. when this witness was in his rice mill, D2 left forAranthangi along with D1, being his sister’s son, on the said Bajaj motorcycle bearing the registration No.TN55/1406 owned by A4, to meet hisadvocate. D2 drove the motor cycle and D1 was the pillion rider.

35. On 29.12.1990 at 1.00 a.m. this witness received informationof the death of D1 and D2. He was told that D1 and D2 were lying onthe road side with injuries and the motor cycle was also lying nearby.

36. On getting this information PW-1 left for the scene ofoccurrence along with his neighbour one Mohamed Meera and thereafter A

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Ahe lodged a complaint, stating he suspected that his sister’s son beingD1 and D2 had been murdered at the instigation of A3.

37. From his evidence, it appears that the motor cycle was identifiedat the place of occurrence. There were tyre marks of a four wheeler.Broken yellow glass pieces were found at the place of occurrence whichBappeared to be broken pieces from the side light of a vehicle. Therewere also broken plastic pieces, which appeared to be the broken piecesof the indicator of a four wheeler.

38. This witness (PW-1) stated that fifteen days after the incident,A1, Jaffar Ali, left for Saudi Arabia, where he had been running a business.CPW-1 came to know about the departure of A1, from Mohamed AliJinnah and Akbar who had been working in the shop of A1 in SaudiArabia. The aforesaid employees of A1 gave the xerox copy of thepassport of A1 to the police, who later arrested A1.

39. In cross-examination, this witness admitted that he did notDmention any names, except the name of A3 in his complaint. Duringcross-examination, he said he had suspected that P.L. Subbiah, Perumal,Kumar, Kulanthian and some others could have committed the murder.In other words, on his own admission, his complaint was based onsuspicion.

E40. This witness could not say how many pieces of plastic werefound but confirmed that plastic pieces were found scattered. He couldnot remember whether plastic pieces were seized in his presence or not.He also could not remember whether the glass pieces were recoveredin his presence or not, but stated that the glass pieces were yellow incolour. The plastic pieces were yellow and white coloured. He statedFthat he had not observed Material Object M.O.3 exhibited by the policein Court.

41. It is true that no witness is likely to notice details such as thenumber of glass pieces found at the site of an accident which left humanbeings dead. Inability to recall such details does not in itself affect theGcredibility of the witness. However, in this case, there is nothing at all inthe evidence of PW-1, to establish the guilt of the accused persons orany of them, and certainly not beyond reasonable doubt.

42. All that PW-1 has said is that there were disputes between A3and D2 with regard to the properties of Sulaimaan Rowthar and hisH

daughter. No specific reason for enmity between A1 and D2 or betweenA4 and D2 has emerged from the evidence of this witness.

43. The 2[nd] Prosecution Witness (PW-2) M. Nagoor Gani, statedthat he had travelled to Arasarkulam from Aranthangi by the last MPTCbus. This witness deposed that on the way he had seen that there weretwo dead bodies lying at about a distance of one kilometer to the north ofPaapankulam, some distance away from the railway gate. The deadbodies were of PW-1’s sister’s son and A4’s son. There was a motorcyclenearby. The Driver stopped the bus at the roadside after which thepassengers got down and saw the bodies. Thereafter PW-2 along withone Ganapathy, who had also been travelling in the same bus, went andinformed PW-1 of the death. PW-2 said that the police had examinedhim 1½ years after the incident. Nothing has emerged from the evidenceof this witness to establish the guilt of the accused.

44. The 3[rd] Prosecution Witness, (PW-3), Basheera Begum, widowof D2 (PW-3), confirmed that there were property disputes giving riseto enmity between her husband and A3 over the properties of Sulaimanand his daughter Fathima which had been taken back from A3 andentrusted to D2. She also stated that there were disputes between herhusband and his father (A4) regarding family properties, of which D2had been demanding partition. D2 had also been insisting upon transferto him of a petrol bunkheld by A4. A4 refused to accede to his demand.PW3 said her husband and his father had not been talking to each otherfor about two years prior to the incident.

45. PW-3 stated that on the date of the incident, D2 leftArasarkulam along with D1, saying he wanted to meet his lawyer inAranthangi. He did not return. On 29[th] December, 1990, at about 8.00a.m., she was told that her husband, that is D2, had been found deadnear the railway level crossing near Paapankulam, on the road fromAranthangi. She said she told the police that she suspected the involvementof A3 and A4 in view of the disputes over family property. On her ownadmission what she deposed was based on suspicion. The evidence ofPW-3 does not establish any motive to murder D2.

46. The 4[th] Prosecution Witness, R. Raju (PW-4), is the conductorof the MPTC bus in which PW-2 had been travelling. His evidence onlyestablishes that two bodies were found at a distance of about two furlongsfrom the railway crossing, near a pond, and a motorcycle was lying onthe tar road, near the two dead bodies.

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A47. The 5[th] Prosecution Witness, M. Shanmuga Sundaram, apractising advocate in Aranthangi (PW-5), said that he knew D2, whobelonged to his neighbouring village. He deposed that PW-5 and A4were in the same political party in 1990. He denied having conductedany civil case for D2, son of A4. He also asserted that he had not beenin Aranthangi on the date of the incident. He had gone to Chennai.BNothing has emerged from the evidence of this witness to establish theguilt of the accused.

48. The 6[th] Prosecution Witness, M. Balakrishnan alias Chinappu(PW-6), deposed that he was a lorry broker at Puddukotai, who used toarrange for purchase and hire of lorries. He said he knew A5 who hadCbeen introduced to him by A1. He stated that in 1990 he had purchaseda lorry bearing TDB 9635 for A1 for which A5 had stood as guarantor.A1 had paid the entire money for purchase of the said lorry. PW-6 saidthat A5 had also helped him to sell that lorry.

49. PW-6 further stated that he had purchased the lorry bearingDthe Registration No.TSL 6579 from one K. Mayilsami, a broker of Karur(PW-7) for a sum of Rs.3,35,000/-. This witness said that A5 came toKarur on 20.12.1990, that is, the date of purchase of the lorry and signedthe agreement for purchase of the lorry, which was drafted by A5. PW-6 signed the agreement as a witness. PW-6 denied knowledge of whatEhad happened to the lorry after its delivery to A1. PW-6 stated that A1had paid Rs.25,000/- on the date of agreement. He had agreed to paythe balance amount within 15 days, but he did not do so. PW-6 statedthat the lorry purchased for A1 was parked outside the Court in acompletely changed condition.

F50. PW-6 further deposed that he had gone to Arokyam’sworkshop, near the broker’s office at Manapparai, to see the lorry. Hesaid he had gone there alone. PW-6 deposed that the owner of theworkshop had asked him to take the lorry away from the workshop.

51. PW-6 said that he contacted Mayilsami (PW-7) throughGtelephone, but he was not in the village. PW-6 took the lorry to thebroker’s shop. A few days later, the Police came in a car, went to theRVS lorry shed, where the lorry was parked, and seized the lorry. A5had also come with the police. PW-6 said that he had not seen A1 after20.12.1990, whereupon he was declared hostile and cross-examined. Inhis cross-examination he categorically denied having told the police thatHA1 had come to his house before 6.30 a.m. on 29.12.1990. PW-6

categorically denied as incorrect, the statements to the police attributedto him.

52. The 7[th] Prosecution Witness N. Mayilsami (PW-7), a brokerof Karur engaged in the business of purchase and sale of lorry under thename and style of S.R.N Lorry Service, deposed that he had purchasedthe lorry with Registration No.TSL 6579 from one Kamakshi of Chennai.On 20.12.1990, A1, A5 and A6 had come to Karur to purchase a lorryfor a sum of Rs.3,35,000/-. PW-6 received Rs. 25,000/- from A1 andadvanced the aforesaid amount to PW-7. A further amount ofRs. 25,000/- was to be paid within 4 days. This amount was paid on24.12.1990. As per agreement, the balance had to be paid before4.01.1991/-.

53. This witness deposed that the agreement was drafted by A5and executed between A1 and PW-7, who signed it. PW-6 witnessedthe agreement and A5 signed the agreement as scribe.

54. PW-7 deposed that possession of the lorry was given to A1and A5 on 20.12.1990. However, as full amount had not been paid, PW-7 had only delivered photo copies of the Registration Certificate(RC),Fitness Certificate (FC) and permit to them. PW-7 deposed that as peragreement the balance was to be paid before 4.01.1991 but this was notdone. PW-7 stated that when he came back to Karur, he was told thatPW-6 had contacted him over telephone. He soon contacted PW-6whereupon PW-6 told him that Aranthangi police had seized the lorry.PW-7 gave photocopies of the RC, FC and permit to the police.

55. The 8[th] Prosecution Witness, S. Kumar (PW-8) stated that hehad been doing welding work with the welding machine installed at theworkshop of Arokyam of Manapparai. One night in 1990 when PW-8was doing welding work at the said workshop of Arokyam, Arokyaminformed him that he was going out of town. He instructed PW-8 torepair a lorry which had been brought to the workshop for repair. PW-8 said that after repairing the lorry he went to sleep. The next morning,a Leyland lorry was brought to the workshop for repair before 4.00 a.m.PW-8 could not say what was the registration Number of the lorry.PW-8 said he was not in a position to identify the lorry as eight years hadelapsed.

56. PW-8 stated that A1 had come in the said lorry and claimed tobe the driver of the lorry. PW-8, had obviously not known the person A

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Awho had brought the lorry, as otherwise that person would not haveasserted that he was the driver of the lorry. PW-8 however, identifiedA1. It is incredible that PW-8 should be able to recognize the driver ofthe lorry as A1 after so many years, when he could not identify the lorry.

57. PW-8 said that A1 had told him that the lorry had been hit byBa bull. When PW-8 saw the lorry in the morning, he found the frontbottom light on the left was broken. A1 gave him Rs.100/- for repairwork and asked him to give the lorry to PW-6 after finishing the work.

58. PW-8 said that he had handed over the amount of Rs.100/- toArokyam and asked Arokyam to hand over the lorry to A6. Four daysClater he went to the workshop and enquired about the lorry. He was toldthat A6 had come and taken the lorry.

59. In cross-examination PW-8 testified that a job card wasprepared whenever vehicles were given to the workshop for repair. Hedid not prepare a job card in this case, as he had been sleeping when theDlorry was brought to the workshop. PW-8 stated for the first time, incross examination, that the man who had brought the lorry was with himtill the forenoon. He said he had never seen the man again. The policedid not take him for identification parade. He said that there was noevidence of the specific repair carried out in the lorry.

E60. The evidence of PW-8, if accepted, would at best, establishthat a lorry with a broken side light on the left, had been brought forrepair to Arokyam’s workshop, early one morning before 4.00 a.m. inthe year 1990.

61. PW-8’s evidence that A1 had brought the lorry cannot beFaccepted, because it is virtually impossible that A1 should be able torecognize A1 after so many years, and that too when he has himself saidthat he had been sleeping when the lorry was brought to the workshop.When confronted in cross-examination, PW-8 tried to improve upon hisevidence by saying that the person who had brought the lorry was withhim till the forenoon, thereby contradicting his answer to an earlierGquestion, that he could not prepare the job card for repair because hehad been sleeping when the lorry was brought. Moreover, if as deposedby PW-8 the driver of the lorry had given him Rs.100/- towards repaircharges and instructed him that delivery of the lorry be given to PW-6,there was no reason for the driver to stay at the workshop till forenoon.

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62. The 9[th] Prosecution Witness, Kuppusami (PW-9) deniedknowledge of the death of D1 and D2 and stated that he was not in thevillage on the day of the incident. He said that he had not been examinedby the police. This witness was declared hostile and permitted to becross-examined. In cross-examination by the prosecution this witnessrefuted the suggestions put to him. He denied having made the statementsto the police attributed to him. He denied his presence at the place ofoccurrence and also denied having been examined by the police. Nothingemerged from the cross examination of PW-9 to establish the guilt ofthe accused.

63. The 10[th] Prosecution Witness, M. Abdul Jaffar (PW-10)deposed that he knew A1 and A3 to A6, but did not know A2, A7 andA8. He stated that the prosecution wanted him to be a witness and saysomething about the death of two persons on the road. This witness wasdeclared hostile and cross-examined by the prosecution. He denied allthe material suggestions put to him and denied having made to the police,the statements attributed to him. Nothing emerged from his cross-examination.

64. The 11[th] Prosecution Witness, P. Raju (PW-11) engaged in thebusiness of flowers at Kattumavadi deposed that he did not know A1,A3 or A4. He said he had never seen A7 before. He said he did notknow how D1 and D2 had died. He, however, knew they had died. Hefurther said that he had not been examined by the police.

65. PW-11 was declared hostile and permitted to be cross-examined. He denied the suggestions put to him in cross-examination.In particular he denied the suggestion that he knew there was enmitybetween A3 and A4 and D2. In cross-examination, he also denied havingseen A1 and two other persons get off from a lorry and go to a tea shop.He denied the statements to the police attributed to him by way ofsuggestions in cross-examination. He specifically denied having told thepolice that A1 was in the lorry with A7.

66. The 12[th] Prosecution Witness A.R. Kittu alias Krishnamoorty(PW-12), who was a resident of Karaikkudi and ran business in thename of Arun Auto for repairing two wheelers, deposed that he did notknow A1. He further deposed that from 28.12.1990 to 31.12.1990 hewas not in his town. He had gone to Pondicherry to buy a car. When hereturned home on 31.12.1990, one of the boys working in the workshop A

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Atold him that a man had brought a Suzuki motorcycle for repairs and leftit at the workshop. Two days later, the police came to the workshop andasked this witness to identify the person who had kept the two wheelerin the workshop. On 1[st] or 2[nd] January, 1991, two mechanics came tothe workshop and asked for return of the motorcycle. Suspecting theremight be a police case, this witness asked the mechanics to get a consentBletter from the person who had left the motor cycle at the workshop.Accordingly, they obtained and brought the consent letter, whereuponthis witness returned the motor cycle. The letter was handed over tothe police.

67. This witness deposed that he did not know A2. This witnessCwas also declared hostile and cross-examined by the prosecution. Hedenied having made to the police the statements attributed to him. Inparticular, he denied having told the police that a Leyland lorry was keptnear National Battery Works from 24.12.1990. He denied that he hadseen or spoken to A2. The material suggestions made to him have beenDdenied. Nothing has emerged in his examination to establish the guilt ofthe accused.

68. The 13[th] Prosecution Witness V. Marimuthu (PW-13) onlystated that he knew the deceased and that the police had examined himabout the death of the deceased as he had been looking at the deadEbodies. He stated that the police wanted him to fix his thumb impressionand he accordingly put his thumb impression on some Paper. This witnesswas declared hostile and cross-examined by the Prosecution. He flatlyrefuted all the suggestions made to him.

69. The 14[th] Prosecution Witness S. Arokyam Raj (PW-14)Fdeposed that he had been running National Welding Works at Manapparaifor the last 20 years. He stated that he had known PW-8 who had workedas a tinker in his workshop. He stated that when he remained out ofstation, his brother managed the workshop and sometimes his employeesalso managed the workshop.

G70. PW-14 deposed that he had gone to Trichy on 28.12.1990 andcame back to Manapparai on 29.12.1990. During his absence his brotherand PW-8 had managed the workshop. This witness stated that whenhe returned to his workshop, he saw the lorry TSL 6579 there. Thiswitness (PW-14) stated that PW-6, who used to bring lorries to hisworkshop for repairs, had requested him to repair the lorry, which had aHsmall dent in the front left side. The bolts and nuts were loose. The repairs were duly carried out. However, nobody turned up to take thelorry back.

71. This deponent stated that 4 or 5 days later, he went to Trichy,where he saw PW-6 at the bus stand. He told PW-6 that nobody hadtaken back the lorry, which had been left in his workshop for repairs.On the next day PW-6 came to the workshop, identified the lorry, sayingthat it had been sold by him, gave him the repair charges and took thelorry away. This witness said that receipts were issued for major but notminor work carried out at the workshop. For minor work, money used tobe taken, but no receipt issued.

72. The 15[th] Prosecution Witness, R. Ramamoorthy (PW-15) whohad been running Sri Lakshmi Automobiles Spare Parts Shop atManapparai, stated that he had issued cash receipt No.1253 dated3.01.1991. He said a front sidelight of a heavy motorcycle had been soldunder the said bill, issued in respect of the lorry TSL 6579, for Rs.75/-.No one had signed or initialled the Bill.

73. The 16[th] Prosecution Witness, J. Chinnasami (PW-16) whohad been running Sri Ganesh Agencies Automobiles Spare Parts Shopat Manapparai deposed that on 3.01.1991, he had sold three bulbs forthe front side light of a lorry, for Rs.55/- against cash receipt No.5232dated 3.01.1991. He identified the said cash receipt. The cash receiptrecords that bulbs were sold for lorry TSL 6579. PW-16 said he hadwritten the particulars of the lorry and signed the bill and had beenexamined by police.

74. The 17[th] Prosecution Witness, G. Baskaran (PW-17) deposedthat 4 or 5 years ago he had been the manager of the karaikkudi NationalBattery Company, where batteries were sold and also recharged andserviced. PW-17 stated that on 24.12.1990, when he was working aLeyland lorry with registration No.TSL 6579 was brought to the shopfor getting its battery charged and a cash bill of Rs.10/- was issued tohim. PW-17 stated that the counterfoil of the receipt (Ex.P6) had beenfilled and initialled by him. He, however, could not remember who hadcome to get the battery charged, since many years had elapsed. He saidthat even after charging the battery, the lorry did not start. He said thathe had told the person who had brought the lorry, that the old batteryshould be replaced by a new one. However, as no new battery was instock, a serviced battery was fitted in the lorry. He said that the servicedbattery was never returned. The evidence of PW-17 only proves that A

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Athe lorry was brought to the battery shop for getting its battery chargedfour days before the incident. His evidence is of no help to theProsecution.

75. The 18[th] Prosecution Witness, Rasappan (PW-18) stated thatat the time of the occurrence he had been working as V.A.O. (VillageBAdministrative Officer) of Thirukkokarnam, holding additional chargeas V.A.O. Pudukkottai south. On 4.2.1991, when he was returning fromthe Pudukkottai Taluk office, with his Assistant, Kaliamoorthy, he foundthe Crime Branch Inspector, Aranthangi and two constables makingenquiries about the accused Abdul Hameed (A3) and the accusedMohammed Ibrahim (A4) after arresting them in connection with a doubleCmurder. He stated that the two accused were separately making oralstatements at around 3.00 p.m. PW-18 said that he and his Assistantsigned both the statements.

76. The 19[th] Prosecution Witness (PW-19) Chitravelu, V.A.O.Athani village, Aranthangi (PW-19) deposed that on 8.2.1991, at aroundD1.00 p.m. he was going to a hotel along with his Assistant Mariappan.Opposite the Avudayarkoil temple, he saw the Crime Branch Inspectorof Aranthangi and some other policemen talking to Sheikh Dawood (A5).A5 told the police that if he were taken to Manapparai, he would showthe vehicle. His statement was recorded. PW-19 said that Ex.P7 wasEthe admissible portion of the confessional statement made by A5. Thiswitness said that he and his Assistant had put their signatures in thestatement. The number of the lorry was TSL 6579 and the make of thelorry was Leyland. By 3.00 p.m. this witness, along with his Assistant,accompanied the Crime Branch Inspector, Manapparai to the R.V.S.lorry broker shed, where lorry TSL 6579 was parked. A5 identified theFlorry and the police seized it. By 7.45 p.m. the recovery Mahazar wasprepared and the same was signed by this witness and his Assistant.This witness stated that the lorry which had been seized was Parkedoutside the Court premises. This witness denied the suggestion made tohim in course of his cross examination on behalf of the accused, that hisGsignatures in Exs. P4, P5 and P9, as also the confessional statement hadbeen obtained at the Police Station.

77. The 20[th] Prosecution Witness Rajendran (PW-20), deposedthat at the time of the occurrence he had been VAO Thoothukkudi.Early in the morning on 29.12.1990, his Assistant, Karuppan, came toHhim and told him that two dead bodies had been found near Paapankulam

on the road. On hearing this, he immediately went to the place ofoccurrence with his Assistant, in a TVS 50 vehicle. He said that thedead bodies were lying on the tar road in Sendurayanendal village, northof Paapankulam and at a short distance there was a black colouredmotor cycle. The deceased were PW-1’s sister’s son and elder son ofA4. Bloodstains were spilt on the road. There were glass pieces. Therear view mirror was broken into pieces. To the north of the scene ofoccurrence, there was a mile stone with the number 8. There werebroken teeth, a Reynold ball point pen and some coins on the road. Thiswitness stated that they were at the place of occurrence by 6.00 a.m. inthe morning. The police were also there. As it was dark, it was difficultto detect things. The Inspector came at around 8.00 a.m. and prepareda rough sketch. PW-20 said he had helped in preparing the sketch. Theplace of occurrence was photographed and an observation Mahazarprepared. By 3.00 p.m. the police seized the motor cycle, the glass andplastic pieces found on the road, the coins, broken teeth, a watch, a ballpoint pen and prepared a Mahazar which was signed by this witness.PW-20 said that he was with the police when they recovered the objects.By 5.00 p.m. the police collected bloodstained soil and small pieces ofblood stained tar from the road. PW-20 identified the left side mirror ofthe motor cycle, left side indicator of the motor cycle, white plastic pieces,orange plastic pieces, ball point pen and other similar articles. Nothinghas emerged in the evidence of this witness to establish the guilt of theaccused.

78. The 21[st] Prosecution Witness, Chidambaram (PW-21) statedthat at the time of the occurrence he had been VAO, Kummangadu,Aranthangi. One Ramanthan was his Village Assistant. He stated thaton 3.2.1991 at around 3.00 a.m. when he had been sleeping in his office,a policeman sent by Inspector of police, Aranthangi came to him andtold him that the Inspector wanted him to assist the Inspector to arrestthe persons involved in a double murder. He stated that he went to thepolice station and from there he went to Kattumavadi corner. The policearrested Krishnan (A7) opposite the Plato TV centre. This witness couldnot, however, identify A7 in the Court. He was handed over the portionof the confessional statement of the accused Krishnan, marked Ex.P-13claimed by the Prosecution to be admissible, which he identified. Hestated that Krishnan had said that if he were taken to Maangudi, hewould show the pond where he had thrown the iron rod. This witness(PW-21) stated that this witness, his Village Assistant, Krishnan(A-7)

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Aand the police went to Maangudi. Krishnan (A7) got into the pond, andtook out the iron rod and handed it over to the police. The rod was notsent for forensic examination. There were no blood stains or finger printson the iron rod, recovered from an easily accessible open pond. Therecovery, if any, is of no evidentiary value. This witness could not evensay whether the pond was filled with water or not. He also could notBidentify A7. He, however, asserted that M.O.23 was the iron rod. Healso stated that a Mahazar was prepared (Ex.P-14) which they signed.Significantly, no other witness examined so far has said anything aboutrecovery of any iron rod from a pond at Maangudi.

79. Dr. Usen Mastha, Civil Assistant Surgeon, who had beenCworking as a doctor in the Government hospital Aranthangi, and hadconducted post mortem of D2 along with one Dr. Sivasubramaniyan,deposed as the 22[nd] Prosecution Witness (PW-22).

80. This witness gave the details of external and internal injuriesfound on the dead body of D2 and opined that D2 could have died 16 toD18 hours prior to the post mortem, as a result of the injuries and oozing ofblood. PW-22 identified the post mortem certificate prepared and signedby him and confirmed that the same had also been signed by Dr.Sivasubramaniyan. PW-22 opined that from their appearance, the injurieson the chest and stomach of D2 could be said to have been caused byEreason of D2 being run over by a vehicle. There were injuries on thebody of D2, which could have been caused if he had been hit by avehicle and had fallen on hard ground.

81. PW-22 further deposed that it was possible for a person whofell on the ground, after being hit by a vehicle, to sustain simple injuries.FHe opined that the nature of the injuries would depend on several factors,including the speed of the vehicle, the part of the vehicle which hit thevictim, the object which hit the victim when he fell, and also the part ofthe body which was hit.

82. PW-22 deposed that during the post mortem, both the handsGwere seen fixed with the body and tyre marks were found in the samemeasurement. PW opined that if a heavy motor vehicle ran over a person,the tyre marks would not be visible. If a person fell after being hit by aheavy vehicle, there were chances of fracture of the jaw bone and ofthe teeth being broken.

83. PW-22 deposed that injury Nos. 1 and 3 were simple. InjuryHNo.1 could have been caused if a person fell down on being thrown off a vehicle. PW-22 deposed that injury Nos. 6 to 8 might have causeddeath. Injury Nos. 9 to 11 might have been caused if a person had beenthrown off and had fallen on hard ground. When a person were thrownoff the bones in the part of the body which first hit the ground wouldbreak. PW-22 said the injuries in the face could have been caused bythe rod shown to him, that is, MO-23.

84. Even though, PW-22 in effect opined that, it was possible thatthe injuries on the face could have been caused if the deceased hadbeen beaten on the face with an iron rod similar to M.O.-23, he also saidthat some of these injuries (Injury Nos.1 and 3) were simple. Injuries 4and 5 could also have been caused if a person had fallen after beingthrown off and that there was no impression of the deceased being hitby M.O.-23. The evidence of this witness suggests the likelihood of D2having been run over by a heavy vehicle, which caused his death.

85. Dr. Murugesan, Civil Assistant Surgeon who deposed as the23[rd] Prosecution Witness (PW-23), had also been working as AssistantSurgeon in the Government Hospital at Aranthangi at the time ofoccurrence. He said that on 29.12.1990, the Inspector of police,Aranthangi sent the dead body of D1 for autopsy. He said that heconducted post mortem examination of the body along with Dr.Karunakaran, who had been working as Assistant Surgeon in the samehospital. PW-23 said that rigor mortis had set in when the dead bodywas brought for post mortem. The dead body was lying face upwards.Injuries with blood were found all over the body and there were bloodclots in the nose and mouth. There was dried blood all over the faceand blood was oozing out through both the ears.

86. PW-23 described the injuries found on D1, and opined thatdeath might have occurred 14 to 20 hours before the post mortem. Hesaid the post mortem had been completed by 5.45. p.m. on 29.12.1990.PW-23 opined that D1 might have died due to injuries sustained in thehead and brain and other injuries in the body, and also shock andhaemorrhage. The injuries could have been caused if a vehicle had hitthe deceased. The injuries in the nose might have been caused by ablunt object. The ribs might have been broken if the body had beenthrown off, or if it were run over by a vehicle. There were no tyremarks. This witness stated that there would be no tyre marks if the tyreswere worn out. Immediate death would have occurred only due to thehead injuries. Injury No.3 might have caused instantaneous death. Theinjuries over the head and over the bodies might have been suffered at A

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Aonce or one after another. PW-23 stated that he had been examinedtwice by the Investigating Officer. A rod similar to the rod which MO-23had been shown to him. He stated that injury Nos. 3 and 4 could havebeen caused if hit by a rod like MO-23. The rod, if used with force,could cause Injury No.9 and injury No.10.

B87. In cross-examination, this witness stated that accident couldhave occurred if a stationary vehicle were hit by a moving vehicle, or ifthere was collision between running vehicles. If a person injured in anaccident gets thrown off, there is possibility of the wheel running himover. Injury nos. 3 and 4 could have been caused by a vehicle accident.Injury nos. 9 and 10 might have been caused if the deceased were thrownCoff with violent force. Injury nos. 5 to 8 could have been caused even ifa person were thrown off without much force.

88. From the evidence of this witness, it appears that the injuriesfound on the body of D1 could have been caused if D1 had been thrownoff the motorcycle and landed on hard ground after collision with anotherDvehicle. The injuries could also have been caused if D1 were hit by a rodsimilar to MO2. The opinion of this witness with regard to the cause ofD1’s death, is inconclusive.

89. The 24[th] Prosecution Witness Radhakrishnan (PW-24), whohad been working as Motor Vehicle Inspector Grade-I, Palani, DindigulEdistrict, described the damages on the motor cycle on which the deceasedwere riding. He opined that the damages could have been caused eitherif the motor cycle had been hit by another vehicle or if the motor cyclehad fallen. His evidence is of no help to the Prosecution to establish theguilt of the accused.F90. The 25[[th]] Prosecution Witness, P. Sivakumar a Scientific

90. The 25[[th]] Prosecution Witness, P. Sivakumar a ScientificAssistant Grade-I, Forensic Laboratory, Pudukkottai (PW-25) deposedthat he had inspected the place of occurrence and the motor cycle onwhich the deceased were travelling (MO-1). There were indicationsthat the vehicle had been hit by another vehicle. He had advised theGInvestigating Officer to preserve the scraps of paint of the vehicle thathad hit the motor cycle (MO-1) and the scraps of paint of MO-1. Therewere blood stains on the tar road near the motor cycle. There were alsosigns of dragging the dead body along the road. There were yellowcoloured glass pieces, and white and orange coloured plastic pieces(MO-16). This witness had advised that MO-16 and the blood on the tar roadHbe preserved. The witness said that from the tyre marks at the place of occurrence, it could be inferred that a heavy vehicle like a lorry mighthave been involved. The broken orange and white coloured glass piecesmight have been from the indicator and the green, red and white paintscraps might have been from the bumper.

91. PW-25 stated that he had also helped in investigating the lorrybeing TSL 6579 on 9.2.1991. The left side of the lorry was tinkered. Alight coating of black and red could be noticed in the tinkered area. Thefront bumper of the lorry was covered with two pieces of white metalsheets. The yellow light on the right was found in good condition, but theyellow light on the left was found broken. The number plate in front ofthe lorry was not in good condition. He said that he had told the Inspectorto preserve the number plates. The headlight in front, had the letters T, I,M and E. The other headlight had the word ‘LUCAS’. Two of theindicators of the lorry were unscrewed. One had no plastic cover andthe other had a white and orange coloured cover. PW-25 stated that hehad advised the Inspector to send all the objects for chemical examination.

92. In cross-examination, this witness said that the sample paintscrapings collected from the lorry and the motorbike had not beenanalyzed by him. The quantity of paint at the place of occurrence wasnot large. He could not say whether the paint found was mixed with oilor was plastic paint. There was no laboratory in the district for analyzingthe paint. PW-25 deposed that heavy vehicles included buses, but a lookat the tyre marks at the place of occurrence gave the impression thatthe vehicle could be a lorry. The tyre marks, which were about 8 inchesin breadth, could also correspond to the tyre of a bus.

93. PW-25 said that he did not have special knowledge of heavyvehicles other than lorries and buses. He said the head lights of a bus,lorry and a car were of the same size. The quality of the headlight asalso the glass cover of the indicator would depend on the manufacturer.

94. This witness could not say whether the glass pieces at theplace of occurrence were from a lorry, bus or car. This witness said thequality of the paint would depend on the company which manufacturedthe paint. He could not say which company had manufactured the paintcollected in this case. He also could not say when a part of the front sideof the lorry had been painted black and red.

95. The 26[th] Prosecution Witness, A. Subramanian (PW-26) onlystated that he had taken photographs of two dead bodies. Nothing muchhas emerged from his examination.

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96. The 27[th] Prosecution Witness, Thiyagarajan (PW-27) also aphotographer, stated that he had taken photographs of the lorry at theAranthangi Police station. His evidence is of no relevance.

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97. The 28[th] Prosecution Witness, P Sondarajan (PW-28) whowas a constable in the Trichy dog squad, stated that on 29.12.1990 heBwent to Arasarkulam road with the police dog named ‘FRUIT’. Therewere two dead bodies. The dog smelt the blood on the dead body. Aftersmelling the blood, the dog ran a short distance, got into Paapankulamand went up to the water and started barking. The dog then returned tothe place where the dead bodies were found. Then it proceeded toArasarkulam and ran 2 or 3 streets. Suddenly it lay before a house in theCEast Street, Arasarkulam. PW-28 said he did not know the door numberor the owner of the house. The Inspector and the Dy. Superintendent ofPolice came to the house where the dog lay and directed him to leavethe spot. He stated that the dog identified a material object. However,this was objected to by the defence as not admissible under the EvidenceDAct.

98. In cross-examination, PW-28 stated that he had told the policeabout the places to which the police dog had gone after smelling thedead body. He denied the suggestion that he was not able to recollectthe events, because of the lapse of 7/8 years. He stated that he wasEgiving evidence on the basis of entries in a diary. However, the diarywas not brought to Court. If the evidence of this witness with regard tothe reactions of the dog, is to be accepted as indicative of the movementsof the person/persons who caused the death of D2 and D1, the evidencewould contradict the case sought to be made out by the Prosecution thatAccused Nos.1,2 and 7 were all in a lorry. If they had all come in a lorry,Fthey would also have left in the lorry. Nothing turns on the evidence ofthis witness.

99. The 29[th] Prosecution Witness, P. Govindarajan (PW-29), aconstable in Manamelkudi Police Station deposed that on 30.4.1990, A4had come to the Nagudi police station and complained against his sonGD1. The complaint was Ex.P-20. The police made inquiries andthereafter advised D2 not to pick quarrels with his father, whereuponD2 had promised that he would not fight with his father over familyproperty. His evidence has no connection with the occurrence of 28/29December, 1990.

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100. The 30[th] Prosecution Witness, Sub-Inspector, G. Chinnadurai(PW-30) stated that he had worked as Sub-Inspector at Jagadapattinamfrom 14.9.1997 and sub-Inspector Nagudi from 8.7.1992. In 1989,Sivasubramanian (since deceased) who had then been serving asInspector Aranthangi, had registered the case, Crime No.160/89 atNagudi police station under Section 145 of the Code of CriminalProcedure. The complaint which related to land involved One Alagurajand Kasilingam on one aide and Perumal, Kumar Karuppiah and Ranganon the other. This witness said he knew Sivasubramanian’s handwritingand signature. In cross-examination this witness could not say if thecomplaint was lodged because of the refusal of Perumal and others tovacate disputed land. The evidence of this witness also has no bearingon the incident which took place on 28/29 December, 1990.

101. The 31[st] Prosecution Witness A. Hamsat (PW-31), a HeadConstable of Avudayarkoil Police Station, stated that at the time ofoccurrence he had been a Grade-II constable at Aranthangi and hadtaken the dead body of D2 to the Government Hospital for post mortemand brought it back after the post mortem. His evidence is of no relevanceto the guilt of the accused.

102. The 32[nd] Prosecution Witness R. Sethu (PW-32), who hadbeen Sub-Inspector at Aranthangi police station on 29.12.1990, hadregistered the complaint lodged by PW-1, on the basis of which CrimeNo.668/90 was started. He said that the FIR (Ex.P2) was sent to theCourt of the Judicial Magistrate on the same day. His evidence is of norelevance. None of the accused except the A1 were even named in theFIR. Even so far as A1 is concerned, there is nothing concrete in theFIR. A finger of suspicion has only been pointed towards him.

103. Nothing significant has emerged from the examination of the33[rd] Prosecution Witness P. Kannappan (PW-33) who had only sent arequisition (Ex P-22) to Court to forward material objects concerningthe case for chemical analysis report from the Forensic ScienceLaboratory, Chennai. He was later transferred.

104. The 34[th] Prosecution Witness, A.S. Ramu, Chief ScientificAssistant of the Forensic Laboratory at Chennai (PW-34), a handwritingexpert with experience of about 20 years in examination of questionabledocuments stated, that he had been required to compare the handwritingof the entries in Serial No. 942 at Page 54 of a Register belonging to A

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AMalar Lodge Hotel Karaikudi (Ex P-24) which he had numbered Q1and Q2 with the specimen handwriting and signatures of one of theaccused (A8). Even assuming, that the signature and handwriting of A8was there in the register, it only establishes that the said accused mayhave visited the hotel six months before the incident.B105. The 35[th] Prosecution witness, Mr. Francis Xavier (PW-35)the Assistant Director, Forensic Science Laboratory, RamanathapuramRange, who had been Assistant Forensic Science Department, Chennaifrom 13.3.1989 to 15.5.1992 found similarities between objects collectedfrom the place of occurrence and scrapings and/or objects attached tothe vehicle being TSL 6579. However, in cross-examination this witnessCcould not say whether the indicators (MO-34 and 35) related to a motorcycle or not. He stated that he had no training in the aforesaid division.He could not say if MO 32-33 were from a bus, lorry or car. He said thatevery category of paint could not be identified. He did not know howmany kinds of paint were available. He said that the paint would have toDbe sent to a laboratory for analysis and opinion obtained thereafter forascertaining the category. He stated that the kind of paint received inthe laboratory was enamel paint, which is produced by several companies.He distinguished between similar and identical. He stated that theLUCAS front light could not specifically be related to any particularvehicle. The indicator mentioned in his report was that of a motor cycle.EHis opinion did not mention which company produced it. The letters inthe broken yellow glass pieces, were assembled together and comparedwith the unbroken yellow glass of the lorry, but the diameter thicknessand other physical parameters had not been analysed. He had given hisopinion without any physical analysis of the diameter, length, etc. WhenFthe 30 broken glass pieces were joined together, the letters DE IN INDIAcould be seen.

106. The 36[th] Prosecution Witness, A. Allimuthu, Inspector ofPolice (PW-36) had taken up investigation of the case on 3.2.1992. Hestated that the accused had not been arrested till 5.6.1992. He searchedGthem. On 24.6.1992 he had gone to Karaikudi with witnessesChidambaram (PW-21) and Ramanathan and seized the register of MalarLodge for the period from 5.5.1990 to 11.8.1990 (Ex P-24) under Mahazar(Ex P-28). On 24.6.1992, he had gone to village Unjanai and obtainedthe handwriting and signatures of Ramasami (A-8) under Mahazar (Ex.P-25). On 24.6.1992, he had examined Chidambaram (PW-21),H

Ramanathan, Driver Mahalingam and Raju (PW-4) and recorded theirstatements. On 25.6.1992, he had examined the complainant (PW-1),Nogoor Gani(PW-2) Shanmuga Sundaram (PW-5) and witnessGanapathy and recorded their statements. On 26.6.1992 the seizedsignatures and hand writings were sent to Court for onward transmissionto the chemical laboratory under requsition (P-29). He said that he alsoexamined Sub Inspector Chinnadurai(PW-30), Head ConstableGovindarajan (PW-29) and A-4 and recorded their statements. In cross-examination he stated that he had not arrested any of the accused. The4[th] accused (A4), had not been cited as an accused and was thereforenot arrested. On 24.6.1992, A8 surrendered before the court and wasgranted bail.

107. The 37[th] Prosecution Witness Radhika, a scientific AssistantGrade-I in the Forensic Science Laboratory, Chennai (PW-37) statedthat the Judicial Magistrate, Aranthangi had sent a letter requesting for aSerology report in Crime No. 668/1990. She identified the Serology ReportEx-32. The report is in respect of clothes, broken teeth, earth, metal rodetc. found at the place of occurrence, and does not relate to the accusedin any way.

108. The 38[th] Prosecution Witness M. Radhamani (PW-38), aScientific Assistant Grade-I stated that the blood sent for examinationwas human blood, but grouping was not possible. The blood in two glasstubes, which were of D1 and D2 was examined but the grouping wasinconclusive. Some items of the material objects being P1 containedhuman blood of ‘O’ group. Grouping of blood found in some other articleswas not possible. Her evidence has no relevance to the guilt of theaccused.

109. The 39[th ]Prosecution Witness Farooq, a resident ofArasarkulam Melpathi (PW-39) stated that he knew A1 to A7 but he didnot know A8. He stated that A4’s house was situated to the east of hishouse. A2 and A7 used to come to A3’s house. He also used to go toA3’s house. He thus got acquainted with A2 and A7. He knew that D2,son of A4 had died. He knew that D1 was PW-1’s sister’s son. He hadalso died. He stated that on the date of the incident, he was in his ricemill at Aranthangi. On the date of the incident, his partner’s son, whoused to bring his meals from his house, did not come with his meals. Hispartner went to look for his son, but was told on the way, that bus serviceshad got disrupted because of a murder. He was also told that D2 and D1

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Ahad been murdered by using a lorry. Thereafter, PW-39 went and sawthe dead bodies on the roadside.

110. The evidence of PW-39 with regard to the murder of thedeceased is apparently based on conjectural hearsay. No other witnesshas said anything about disruption of bus service or of any rumour ofBmurder. This witness stated that he had not been examined by the police,whereupon he was declared hostile and cross-examined by theprosecution. In cross-examination he denied having told the police thatA8 used to visit the house of A3 with A2 and A7. He denied havingmade the statements to the police, attributed to him by way of suggestions.He denied having told the police that A1 had taken him and PW-10 toCKaraikudi to purchase lorry spare parts. He denied having told the police,that after they reached Aranthangi, they were joined by A4 and A5. Hedenied having told the police that they went to Malar Lodge Hotel. Hedenied having told the police that the accused had conspired to kill D2.He denied that A1 had asserted that he would kill D2 with the help of aDlorry. He denied having made any statement with regard to the accusedarranging a lorry. He categorically denied having made the statementsallegedly recorded by police under Section 161 Cr.PC. In particular hedenied having visited the Malar Lodge Hotel or of having seen or heardthe accused conspiring against D2. He denied that he had seen that theaccused were in a room which was locked from inside as alleged by theEpolice.

111. The 40[th] Prosecution Witness, Alagappan (PW-40), who hadworked as Manager, Malar Hotel, Karaikkudi from 1989 to 1991 deniedthat he knew A8. He said that he did not know A2. He said that therewas lodging facility in Hotel Malar. The police came and made enquiries.FHe said that there was an admission register in the Malar Lodge Hotel.On 21.6.1991, the Receptionist had made an endorsement at Sl. 942 ofthe Register. He said that the Receptionist used to enter the particularsof the persons who used to come and stay in the hotel. This witness wasalso declared hostile and cross-examined by the prosecution. In cross-Gexamination he denied all the suggestions made to him. He denied havingmade the statements to the police attributed to him. Nothing has emergedfrom the examination of this witness to establish the guilt of the accused.

112. The 41[st] Prosecution Witness, Dr. S. Diwakar (PW-41), aProfessor of Forensic Science of Vinayaka Medical College Hospital,HSalem certified that the teeth examined by him were of a human body.His evidence is of no relevance to the guilt of the accused.

113. The 42[nd] Prosecution Witness, Rajagopal (PW-42), MotorVehicles Inspector stated that he had inspected the lorry at the requestof the Inspector of the Crime Branch and had found the left side bumperand grill dented slightly at a height of 2 inches from the ground level.The condition of the brake was 60%. The condition of steering and tyreswere satisfactory. He opined that the occurrence was not due tomechanical defect of the vehicle. He said that he had not noticed anyother damages in the vehicle kept in Aranthangi police station. He saidhe could not remember whether he had been examined by the Inspectorof Police on 16.2.1991. This witness was also declared hostile and cross-examined by the prosecution. In his cross-examination PW-42 deniedhaving made to the police, the statements attributed to him. He said thattinkering work had been done on the lorry. The headlights on the righthad the word ‘LUCAS’ but on the left side there was a new ‘Diamond’light. It was thus apparent that one of the headlights had been changed.This witness denied having told the police that the damages could haveoccurred due to an accident. This witness was unable to recollect whetherthe questions put to him by the prosecution in Court, had been put to himby the police.

114. The 43[rd] Prosecution Witness, Anbuchelian (PW-43), beingthe Deputy Superintendent of Police, Ooothukottai, Thiruvallur District,from 2.1.1991 to 7.9.1991, had taken up investigation in Crime No. 668/1990 at Aranthangi police station on 25.2.1991. He stated that A1, A2and A8 were absconding at that time. A8 obtained anticipatory bail fromthe Sessions Court at Pudukkottai on 26.2.1991. PW-43 said that on13.3.1991 he had examined witnesses Mohamed Ali Jinnah, Akbar John,Raju (PW-2), Sahul Hameeed(PW-1) and Basheera Begum(PW-3) andrecorded their statements. On 14.3.1991 he had examined the witnessesBaskaran(PW-17) Sundaresan, Alagappan (PW-40), Chidambaram (PW-2), Kittu @ Krishnamoorthy (PW-12) and recorded their statements.When he examined Alagappan (PW-40) he had given PW-43 a copy ofPage 54 of the booking register of Hotel Malar. This witness said that hehad compared it with the original. He gave xerox copies of advancereceipt No.5825 dated 21.4.1990 and cash receipt No. 7409 dated22.6.1990.

115. PW-43 said that on 15.31991, he had examined witnessesAbu Sali and Dr. Usen Masthan(PW-22) and recorded their statements.On 16.3.1991, he had examined Dr. Karunakaran, Dr. Sivasubramanian, A

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ADr. Murugesan (PW-23) and recorded their statements. On 18.3.1991,he had examined the witness Sivakumar, Scientific Assistant (PW-25).On 26.3.1991 he had examined Prem and Jayakumar and recorded theirstatements. On 27.3.1991, he had examined witnesses Goyel and Nagariand recorded their statements.

B116. This witness said that on 24.4.1991, the anticipatory bailgranted to A3 and A4 was cancelled by the Madras High Court and on29.4.1991 they both surrendered before the Judicial Magistrate No.2,Pudukkottai. On the same day, they were sent to judicial custody afterwhich bail was granted to them by the Sessions Court, Pudukkottai. Hesaid that to secure the presence of A1 who had gone abroad, theCSuperintendent of Police, Pudukkottai had sent a letter dated 18.4.1991to the Director General of Police, Chennai, who in turn addressed theCentral Government through the Home Secretary of the State, requestingthat the passport of A1 be impounded and he be brought back to India.On 20.4.1991, the Superintendent of Police sent a wireless message toDall check posts in India including sea ports and airports requesting theconcerned authorities to be vigilant and to arrest A1 if he passed throughthem. Thereafter he was transferred. Further Investigation was doneby his successor.

117. This witness deposed that on 13.3.1991 when he had examinedEPW-11, PW-11 told him that A1 could drive a lorry, a car as well as amotor cycle. PW-11 had stated that he had seen A1 driving a lorry onseveral occasions. This witness also said that PW-12, Kittu @Krishnamoorthy had told him that A2 was acquainted to him and that hehad seen lorry TSL 6579 standing near the National Battery Works,Maharnonbu Agraharam, Karaikkudi from 24.12.1990 to 27.12.1990.FPW-12 told this witness that he had asked A2 why he had kept the lorryin the street, whereupon A2 had told him that he wanted to change thebattery of the lorry which belonged to A1. A2 had told PW-12 that thelorry would be in his custody for 2 to 3 days. This witness said that PW-40, Alagappan, had been examined on 14.3.1991.G118. In cross-examination PW-43 admitted that even though theFIR named P.L. Subbiah, Perumal, Kumar, Kulanthaiyan and a fewothers as suspects, PW-43 did not examine them. He said, he did notexamine them because, the Inspector who had earlier been in charge ofinvestigation, had examined them. This witness was unable to say whenHthe persons named above were examined by his predecessor. He also could not recollect whether the persons were arrested, without goingthrough all the files. He said that he had started the investigation afterreading the relevant files. Dr. Usen Masthan (PW-22), Dr. Murugesan,PW-11 and PW-12 had been examined by his predecessor. In the FIR,the accused other than A3 were not named. A1 was named as as anaccused on 4.2.1991 as also A4 to A8.

119. The 44[th] Prosecution Witness Raja, Inspector of Police,Myladudurai (PW-44) said that on 28.12.1990 he had been working asCrime Branch Inspector, Aranthangi. On 28/29.12.1990, Sahul HameedS/o Mohammed Maideen (PW-1) lodged a complaint at the Police Station.The Officer in Charge of the Police Station received the complaint andregistered the case, Crime No.668/90 under Section 302 of the IndianPenal Code. The complaint was received before 2.00 a.m. PW-44 saidthat as the Law and Order Inspector was on leave, PW-44 had taken upthe investigation. He had gone to the place of occurrence and madesecurity arrangements. Thereafter, he had returned to the station andsent intimation through wireless to the District Record Office, FingerPrint Bureau, Photographer and the Dog Squad. Thereafter, he went tothe place of occurrence. As the police photographer had not come, hehad arranged for a private photographer to take photographs. He saidhe had prepared an observation Mahazar (Ex. P-10) in the presence ofwitnesses and a Rough Sketch of the place of occurrence (Ex.P-37).He said that he had served summons to Sahul Hameed (PW-1), Meera,Bashira Begum(PW-3) and Mumtaz Begum and started inquest on thedead body of D1 in the presence of Panchayatdars by 9.00 a.m. and hadrecorded statements of witnesses. After Inquest he had sent the deadbody to the Government Hospital at Aranthangi for post mortem throughP.C. No.142 Amjad. He identified the Inquest Report (Ex. P38). Thiswitness said that he thereafter conducted inquest of the dead body ofD2 and sent the same for post mortem to the Government Hospital,Aranthangi through P.C. No.638 Chinniah. He identified the Inquest Reportin respect of D2.

120. This witness further deposed that from 15:30 hrs to 16:45 hrsthis witness seized material objects 1 to 17 with the help of a ScientificAssistant, in the presence of VAO (Village Administrative Officer)Rajendran(PW-20) and Karuppan, the Village Assistant. The Mahazaris Ex. P-11. This witness said he had seized one wrist watch from theplace of occurrence (MO-39). On the same day, he had collected blood A

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Astained tarred earth, blood stained soil and sample soil and prepared aMahazar (Ex. P-12).

121. PW-44 said that he had searched for the suspected accusedon 30.12.1990, 31.12.1990 and from 1.1.1991 to 4.1.1991. PW-44 saidthat he had sent a special report regarding the seizure of Bajaj TN55B1406 motor bike and arranged for inspection of the same by the MotorVehicle Inspector. On 8.1.1991, PW-44 went to Tiruchirapalli (Trichy)and examined two police constables, P.C. 1062, Sondarajan (PW-28)and P.C. 2993, Rajendran (PW-20), and the trainers of police dogs andrecorded their statements.

C122. PW-44 deposed that on 12.1.1991, the suspected accused,named in the FIR, Subbiah, Perumal Kumar and Kulanthaiyansurrendered before the Magistrate, Orathanadu and were detained inthe sub jail, Pudukkottai. On 15.1.1991, PW-44 examined post mortemdoctors and recorded their statements.

D123. PW-44 stated that on 17.1.1991, he came to learn that on30.10.1990 one Balasundaram S/o Darmalingam had purchased a lorrywith the Registration Number TB 9635 from A-1. On 29.1.1991 PW-44examined Fakrudeen, Marimuthu and recorded their statements. On2.2.1991, he examined Saathiah and PW-9 Kuppusamy and recordedtheir statements.E

124. PW-44 stated that, on 4.2.1991 he arrested Abdul Hameed(A-3) in the presence of Rajappan and Kaliamoorthy in front of Talukoffice, Pudukkottai and obtained a confessional statement from him.On the same day at 5.00 p.m., he arrested Md. Ibrahim (A4) and recordedhis statement. Thereafter, he went to Aranthangi police station and putFthe accused in the lock up by about 10 p.m.

125. PW 44 deposed that on 5.2.1991 both the accused were sentto Court with the remand report. On 7.2.1991 this witness examinedPW-40 C.T. Alagapan and recorded his statement. On 8.2.1991 at 1.30p.m., PW-44 arrested A-5 Sheikh Dawood in the presence of PW-19GChitravelu and C. Mariappan and recorded his statement. He identifiedthe admissible portion of the confessional statement which is Ex.P7.

126. PW-44 deposed that he took A5 to Manapparai with thewitnesses and seized lorry no. TSL 6579, which was in the custody ofPW-6 Chinappu, from the RVS lorry broker shed at Manapparai. HeHsaid that in the Mahazar he had stated that the registration number in the number plate in front of the lorry (MO-40), was scraped and erased.PW-44 further said that by 8.30 p.m., he had recovered two cash billsfrom PW-6 under a Mahazar (Ex.P-4 and Ex.P-9). He said he hadexamined witnesses PW-19 Chitravelu, Mariappan, PW-6 Balakrishnan,PW-14 Arockiyaraj, PW-8 S.Kumar, PW-15 Ramamoorthy, PW-16Chinnasami and recorded their statements. He had, thereafter, returnedto Aranthangi with A5 and put him in the lock up. On 9.2.1991, he sentA5 to the Judicial Magistrate along with remand report.

127. PW-44 deposed that, on 13.2.1991 he examined witnessesChidambaram (PW-21), Ramanathan, Raju (PW-11), Challakkannu andA.R. Kittu (PW-12) and recorded their statements. On the same day by3.30 a.m., he arrested A7 Krishnan in the presence of Chidambaram(PW-21) and Ramanathan in front of the Plato T.V. Centre at Talukoffice Road, and recorded his confessional statement. He identified theadmissible portion of the statement as Ex.P-13. He said that by 6.30p.m. he brought A-7 to Maangudi village and seized M.O.23 in thepresence of witnesses. Thereafter, he returned to the police station andsent the accused back to judicial custody on the same day.

128. PW-44 deposed that on 12.2.1991 he had sent a special reportto the Motor Vehicle Inspector for inspection of the seized lorry TSL6579. On 15.2.1991, he examined Mayilsami and recorded his statement.On 16.2.1991, he examined P.C 142 and PC 638 and recorded theirstatements. On 18.2.1991, he examined Kaliamoorthy and Rajagopal(PW-42) regarding inspection of the Motor vehicle and recorded theirstatements. On the same day, he sent the seized objects to the Court.On 25.2.1991 the Inspector, Law and Order resumed duty, whereuponhe handed over the file to the said Inspector, Law and order for furtherinvestigation.

129. In his deposition, PW-44 said that during examination PW-6Chinnappu @ Balakrishnan had told him that on 29.12.1990 at 6.30 a.m.A1 came to his house and informed him that he had left the lorrypurchased by him in the workshop of Arokyam at Mannapparai. Thishas, however been denied by PW-6. PW-6 told PW-44 that A-1 had toldhim that the head lamps and side light of the lorry had broken. PW-6also told PW-44 that A1 had given Rs.100/- to the workshop for necessaryrepairs. PW-44 said that PW-6 had told him that A1 had requested PW-6 to pay the balance and arrange to sell the lorry and settle the accounts.PW-44 also said that PW-6 had told him that A1 had come to his house AB

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Aafter two days, paid him Rs.25,000/- and asked him to sell the lorry withthe help of A5 and to adjust the accounts, as there was possibility of hisgoing abroad. PW-44 said that PW-6 told him that he had handed overthe amount of Rs. 25,000/- to Mayilsami of Karur (PW-7). PW-44deposed that PW-6 had told him that the next day PW-6 stayed in theVRS lorry shed and on the following morning he went to Arokyam’sBworkshop where the lorry was kept and enquired whether the repairshad been carried out. The workshop boy told him that the necessaryrepairs had been carried out. The following day, PW-6 came to theworkshop, paid Rs.75/- towards repair charges and took the lorry awayby engaging a driver. PW-44 said that PW-6 had also told him that A5Chad asked PW-6 whether A1 had seen PW-6 and settled the accounts.PW-44 said that A5 had requested PW-6 to arrange to get the lorry sold.PW-44 stated that PW-6 had told him that the police had brought A5 andseized the lorry. PW-6 handed over 2 cash bills for Rs.75/- and Rs.50/-both dated 3.1.1991 to the police.D130. PW-44 said that he had examined Kuppusami (PW-9), whohad told him that he knew both D2 and D1. PW-9 told PW-44 that, on29.12.1990 one Saathiah had requested him to accompany him to thecinema. As it was late, they both rode a single bicycle. When they reachedPaapankulam at 10.30 p.m., they saw a lorry bearing Regn. No.6579standing on the road side. They presumed that the lorry might have beenEparked on the road for repair. PW 9 told PW-44 that when he and Saathaihwere proceeding to Pervurani cross road, they saw D1 riding a motorcycle and when they crossed, they asked D1 whether the cinema hadbegun whereupon he replied that it was about to end. PW-9 and Saathiah,therefore returned. While returning PW-9 felt pain in the stomach and Fso he went to the side of the tank to answer the call of nature. By thattime, the lorry which was standing at the road side was started by A1and driven by him towards Aranthangi. Within a few minutes an MPTCbus crossed them on the Arasarkulam road. While returning PW-9 sawtwo dead bodies lying on the road and a motor cycle lying near them.This was, however, categorically denied by PW-9 in his evidence.G

131. PW-44 deposed that when he examined PW-11 Raju, he toldPW-44 that he knew that there had been enmity between Abdul Hameed(A-3) Mohamed Ibrahim (A4) and Raja Mohamed (D2) over land. Heknew Jafar Ali (A-1) as well. PW-44 deposed that PW-11 told him thatwhen PW-11 was in his shop at around 9.00 p.m. on 28.12.1990, a LeylandH

lorry came and stopped at the kattumavadi corner and Jafar Ali(A1) and2 others got down from the lorry and proceeded towards a tea shop.PW-11 told PW-44 that PW-11 had called Jafar Ali (A1) and asked if hehad purchased a new lorry. Jafar Ali (A1) replied that the lorry belongedto his friend. When PW-11 asked A-1 who were the personsaccompanying A1, he replied that they belonged to Karaikkudi. PW-11told PW-44 that he had noted the Registration No. of the lorry as TSL6579. PW-44 deposed that PW-11 had also told him that he had knownone of the 2 persons accompanying A1, whom he identified.

132. PW-44 said that he examined PW-13, V. Marimuthu, whotold him that on 28.12.1990 he had been returning from Aranthangi in anMPTC bus. At around 11.45 p.m. when the bus was approachingParavurani Road west of Arsarkulam diversion, he saw that Saathiahwho belonged to his village was standing and when the bus crossed therailway gate and was proceeding near the bank of Paapankulam he saw2 persons lying on the road and a motor cycle was lying by their side.Saathiah has not been examined as a witness in the trial.

133. PW-44 said that during his examination PW-12 Kittu @Krishnamoorthy, had told him that Jafar Ali (A1) used visit his workshopfor repair of his motor cycle, so he knew him very well. On 28.12.1990at 6.00 p.m., Jafar Ali (A1) had brought his TVS Suzuki motor cyclebearing Registration No.TCO 8561 for repairs and left it in the workshop.On 1.1.1991, the said Jafar Ali had come to the workshop and askedwhether the repairing work had been completed. On being told that therepair would take 2 more days, Jafar Ali (A1) told PW-12 to hand overthe vehicle to the person who would come with his letter. On 4.1.1991one mechanic Kumar came with a letter and on seeing the letter PW-12handed over the motorcycle and the letter to Kumar.

134. PW-44 said that he had examined. PW-39, Farooq who toldhim that one Ramasamy Ambalam @Unjanai Ramasamy (A8), Balu @Balusamy(A2) and Krishnan(A7) used to visit A3, Hameed Rowther’shouse. PW-39 therefore knew them well. He said that five monthsbefore 4.2.1991, Jafar Ali (A1) had asked PW-39 Farooq, PW-10 andM. Abdul Jafar to accompany him to Karaikudi for purchasing lorryspare parts. After they arrived at Aranthangi, Dawood(A5) andIbrahim(A4) joined him and then they went to Malar Lodge, karaikudi,where Balu(A2), Abdul Hameed(A3), Bashir Ali, Krishnan(A7), UnjanaiRamasamy(A8) were also there. They locked the door and had a AB

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Adiscussion. PW-39 told PW-44 that Jafar Ali, Abdul Hameed, MohamedIbrahim and Sheikh Dawood spoke ill of Raj Mohamed (D2) and decidedto murder him. Jafar Ali said that he would kill Raj Mohamed by hittinghim with a lorry for which he required assistance. Unjanai Ramasamyasked Balu and Krishnan to assist Jafar Ali. The conspiracy took tookplace at 10.30 p.m. after which they dispersed. PW-44 stated that PW-B39 told him that PW-39 did not sleep the whole night. The next morningPW-39 and PW-10 Abdul Jafar went to the house of Abdul Hameed.Farooq Ali told Abdul Hameed that they had gone to Karaikudi asrequested by Jafar Ali. Everyone conspired to kill D2. Abdul Hameedtold them not to reveal this to anyone. However, PW-39 denied havingCmade such statements to the police and was declared hostile.

135. PW-44 said that he had examined PW-40 Alagappan,Manager, Malar Lodge Hotel who had told him that on 21.6.1990 UnjaniRamasamy had come to the lodge to book Room No.401 and madeentries in the register. When Alagappan asked him why he was reservingDa room, Ramasamy had replied that there would be a panchayat andparties would come.

136. In cross-examination PW-44 said that after inspecting theplace of occurrence he was of the view that the persons lying dead musthave been murdered and he continued his investigation on that basis.EPW-44 said that, even before examination of the doctors, who hadconducted the post mortem, PW-44 had come to conclusion that thedeceased had been murdered. After examining the doctors PW-44became certain. He took up investigation on the basis that the case wasof murder. After examining Mumtaz Begum, he arrived at the finalconclusion that the deceased persons had been murdered. He added theFoffence of Section 120B of IPC on 4.2.1991. He said after examiningPW-39 Farooq and PW-10 Abdul Jafar he knew that there was aconspiracy behind the murder, which had taken place on 21.6.1990 inthe Malar Lodge Hotel at Karaikudi. Significantly both PW-39 and PW-10 denied this and were declared hostile. PW-44 said that when heGarrested the accused and recorded their confessional statement, theVillage Administrative Officer and his Assistant concerned signed aswitnesses. No signature was obtained from any uninterested and/orindependent witness. In the case file PW-44 did not state that noindependent witness had come forward to sign the confessional statement.PW-44 said that he had not examined Sethu, the Sub-Inspector of Police.

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Nor had he asked him why he had straight away registered the caseunder Section 302 on the basis of the complaint of the PW-1. PW-44denied the suggestion that he had conducted the investigation at thedictates of PW-1 and his supporters.

137. The 45[th] Prosecution Witness, Kalairaj, Inspector of Police(PW-45) said that he had been the Inspector of Police, Crime Branch,Pudukkottai and had received information that the case Crime No. 668/1990 under Section 302 and 120B IPC of Aranthangi Police Station hadbeen transferred for investigation to another Investigation Officer. On15.7.1992, PW-45 had received the order of DGP dated 16.6.1992 tocontinue the investigation after which he received the case files andcontinued with the investigation as ordered. PW-45 deposed that on25.7.1992, PW-45 inspected the place of occurrence, examined thecomplainant and searched for A1 and A2. From 1.9.1992 till 28.12.1992,he gathered information about A1 and A2 and he sent reports throughhis superior officers to facilitate the return of A1 to India from Bahrainand A2 from Singapore to India.

138. This witness said that on 30.12.1992, he had examined Meera,Bashira Begum (PW-3), Mumtaz Begum, Raja, Durai and karuppan buthe had not recorded their statements. On 16.3.1993, he had examinedDr. Hussain Masthan (PW-22), Dr. Murugesan (PW-23), Faqruddin,Manimuthu, Saathiah and Kuppusamy (PW-9). On 27.5.1993 he hadexamined Baskaran (PW-17), Alagappan (PW-40), Sundaresan,Chidambaram (PW-21), Rajendran (PW-20) and Chokklingam. On4.6.1993 he had examined Chitravelu (PW-19), Mariappan, Chidambaram(PW-21), Ramanathan, Raju (PW-4) and Chellappan. On 12.7.1993, hehad gone to Karur and examined Mayilsamy (PW-7). On 14.7.1993 hehad examined P. Sondarajan (PW-28), Rajendran(PW-20), Dr. RadhaKrishnan (PW-24), Arokya Raj (PW-14), Kumar (PW-8), Ramamoorthy(PW-15) and Chinnasamy (PW-16). On 15.7.1993 he had examinedAmjad, Chinniah, Subraminian, Abu Sali. On 14.10.1993 he had examinedRaju (PW-4), Mahaligam, Rajappa, Balakrishnan (PW-6) andKaliamoorthy. On 17.7.1993 he had examined non-resident IndianFathima and recorded her statement. On 30.8.1993 he had applied forcopies of documents in the Court of Judicial Magistrate, Aranthangi.He perused the documents and handed over the case filed to the PublicProsecutor to prepare a rough chargesheet. On 3.11.1993 he submittedthe rough chargesheet received from office of Public Prosecutor to the A

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ACBCID Superintendent. On 10.12.1993 he examined Dr. Thiyagarajan(PW-27), S.I Sethu (PW-32) and recorded their statements.

139. In cross-examination this witness said that the case fileswere with him from the date of commencement of investigation by himtill date. He had examined S.I. Sethu (PW-32) who had received theBcomplaint and registered the case being Crime Number 668/1990. Thiswitness had not asked Sethu why he had registered the case under Section302 IPC at the initial stage itself. This witness said he had not examinedPW-39 Farooq and PW-10 about the conspiracy. He denied that he hadsupported PW-1 Sahul Hameed as he belonged to the ruling party andhad colluded to implicate A2 to A8 in the offence of conspiracy. He saidChe had recorded the statements of those witnesses whom he hadexamined and not those who had been examined earlier. He said he hadexamined Fathima Beevi and recorded her statement. He said he hadnot recorded the statements of witnesses who had been examined earlierand re-examined by him. He denied that he had not seen A2 till theDchargesheet was filed. He denied that A2 was not in India at the time of the conspiracy.

140. As stated above, no defence witness was examined on behalfof the accused. All the accused persons offered themselves forexamination under Section 313 of the Code of the Criminal ProcedureECode. They denied their guilt and claimed to be innocent.

141. The Prosecution was required to prove beyond reasonabledoubt, that pursuant to a conspiracy between A1 to A8, A1, A2 and A3murdered D2 and D1. A1 driving his lorry No.TSL 6579, dashed againstthe motor cycle which D2 and D1 were riding, and thereafter A-2 andA-7 beat them to death with iron rods.F

142. The Prosecution has only been able to conclusively establishthat, on 28.12.1990 at around 8.30 p.m., D2 rode out of Arsarkulam,towards Aranthangi on Motorcycle No. TN 55/1406 owned by his father,A-4, with D1 on the pillion. The two were seen lying dead on the road, inGa pool of blood, a few furlongs away from the level crossing atSarayanenthal, Pappakulam and their motorcycle was lying close by.

143. The evidence of PW-22 and PW-23, who performed thepost mortem examination of the dead bodies of D2 and D1 respectively,proves that D2 and D1 both died of injuries, and consequential loss ofblood and shock.H

144. From the evidence of PW-22 and PW-23, being the two postmortem doctors, and the evidence of PW-1, PW-20, PW-24, PW-25 andPW-35, it may reasonably be inferred that there was a collision betweenthe motorcycle, which the deceased were riding, and some other vehicle.The broken glass and plastic pieces recovered from the scene ofoccurrence confirm that there was a collision. However, there being noocular evidence, it is not known whether the collision was head on orwhether the motor cycle was hit from the back. There is also no expertopinion in this regard.

145. The evidence of PW-22 indicates that D2 fell off hismotorcycle on hard ground, after a collision and got run over by a vehicle.He may also have hit a solid blunt object. Some of the injuries werecaused by the impact of the collision or fall and others due to being runover. The post mortem doctor said that the dead body of D2 did not bearany impression of being hit by the rod being MO 23.

146. This witness, however, stated that it was also possible, thatsome of the fatal injuries might have been inflicted on D2 by hitting himhard with a rod similar to MO.23. The opinion of the post mortem doctor,PW-22, on the cause of the injuries in the body of D2 is not conclusive.The prosecution has not been able to establish that D2 had been beatento death by a rod.

147. Similarly, PW-23 opined that D1 is likely to have died ofinjuries sustained in the head, brain and other vital parts of the body, as aresult of collision of the motorcycle with some other vehicle, and ofshock and haemorrhage. It is likely that the impact of collision with afast-moving vehicle might have flung D1 off the motorcycle on whichhe was pillion rider, and caused him to fall on hard ground or hit somehard object. He might also have been run over.

148. PW-23 said that one of the injuries which caused instantaneousdeath may have been inflicted by a rod similar to MO-23, but in his crossexamination he stated that the injury/injuries may have been caused as aresult of collision between two vehicles. D1 may have incurred the injury/injuries by getting flung off the motor cycle and hitting hard ground orsome blunt object, or by getting run over by a vehicle. The opinion ofPW-23 on the cause of the injuries in the body of D1 is also not conclusive.

149. On a careful analysis of the post mortem reports and the oralevidence of the post mortem doctors, we find it unlikely that the deceased A

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Awere beaten to death with an iron rod. PW-22 was of the opinion D2fell off the motor cycle after a collision and got run over. The Prosecutionhas miserably failed to prove that the deceased were beaten to deathwith a rod. The Prosecution has also not been able to rule out the possibilityof D1 and D2 being killed in a ‘hit and run’ accident involving someunknown vehicle.B

150. There are also inherent improbabilities and inconsistencies inthe evidence which demolishes the case of the Prosecution that thedeceased were beaten to death with iron rods by A2 and A7. It does notstand to reason why A2 and A7 should have risked getting off the lorryand beating D2 and D1 with iron rods, when A1 had dashed his lorryCagainst their motor cycle, fatally injured them and run at least one(D2),if not both of them over. It is not the case of the Prosecution that theaccused had any motive to kill D1.

151. Moreover, while it is alleged that A2 and A7 had hit both thedeceased with iron rods, only one iron rod has allegedly been recoveredDfrom an open, easily accessible pond, over a month after the incident onthe alleged confession of A7 made before the police after arrest. Thereis no whisper in the evidence of any other iron rod. PW-29, the solewitness who testified that A2 made a confession to the police in hispresence, took the police to Maangudi and brought the iron rod out of aEpond in his presence, could not even remember if there was any waterin the pond. Nor could he identify A7. The rod was never sent for forensicexamination. It would be dangerous to convict A2 or A7 on the basis ofthe testimony of PW-29 or for that matter, any other witness. There canbe no question of interference with the acquittal of A2 and A7 from thecharges against them.F

152. There was no eyewitness to the incident. The Prosecutionhas made an attempt to connect the lorry No. TSL 6579 to the incidentthrough circumstantial evidence, by examining PW-6, PW-7, PW-8, PW-11, PW-12, PW-14, PW-15, PW-16, PW-17, PW-19, PW-25, PW-27,PW-35, PW-42, PW-43, PW-44 and PW-45 and also relying on materialGobjects such as broken glass pieces, broken plastic pieces, paint scrapingsseized from the place of occurrence as also the number plate of a lorrywith the number TSL 6579, an indicator with bulb and a partly orangeand partly transparent plastic cover, an indicator without bulb and cover,a circular lamp 14.5 cm in diameter with lamp and yellow glass coverHand a circular lamp holder 14.5 cm in diameter without lamp and cover.

The number plate, indicators and lamps were not seized from the placeof occurrence.

153. The evidence of PW-6, PW-7 and PW-17 only establishesthat A1 purchased lorry No. TSL 6579 through brokers PW-6 and PW-7 with the assistance of A5 and A6 about 7/8 days before the incident.About four days before the incident, the lorry had been brought toKaraikuddi National Battery company for getting its battery charged.Since the battery needed replacement, but a new battery was not instock, a serviced battery was fitted in the lorry, which was never returned.

154. Significantly, the evidence of PW-6 reveals that A1 had earlier,long before the alleged conspiracy at the Malar Lodge Hotel on 21.6.1990purchased a lorry with the Registration No TDB 9635 for which A5 hadstood guarantor. This lorry was sold some time in October, 1990, aboutfour months after the date of the alleged conspiracy, and in less than twomonths, on or about 20/21 December, 1990 Lorry No.TSL 6579 waspurchased. It is, therefore, evident that A1 used to have a lorry, or atleast had one since January 1990 with a short break, possibly for thepurpose of his business. It would be preposterous to attribute the purchaseof the lorry to the sinister motive of murdering D2. The Prosecution hasmade no attempt to explain why A1 should have sold the lorry he alreadyhad if there were a conspiracy to kill D2 by hitting him or running himover with a lorry.

155. From the evidence of aforesaid witnesses as also the evidenceof PW-8, PW-14, PW-15, PW-16 and PW-17 it transpires that the lorrywas brought to Arokyam’s workshop at Mannaparai on 29.12.1990 forminor repairs. After the repairs were done PW-6 took delivery of thesame and left it at a lorry shed near the office of A7, who had sold thelorry to A1 through A6. PW-14, the owner of the workshop deposedthat PW-6 had instructed him to repair a minor dent. There is nothing inthe evidence of PW-6 or PW-7 to link the lorry with the death of D2 andD1. Incidentally, PW-6 said he had not seen A1 after 20.12.1991,whereupon he was declared hostile and subjected to cross-examination.PW-6 said the lorry had been seized by the police.

156. Much emphasis has been placed by the Appellants, on theevidence of PW-8, an employee of workshop of Arokyam, who deposedthat a lorry had been brought to the workshop for repair one morning in1990 before 4.00 a.m. PW-8 could not say what was the Registration AB

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ANumber of the lorry. He, however, said that A1, had brought the lorryclaiming to be its driver. PW-8 also stated that A1 had told him that thelorry had been hit by a bull.

157. There is serious lacuna in the evidence of this witness whoseems to have been tutored. It is incredible that this witness should beBable to recognize and identify A1 whom he obviously did not know, andthat too when he had seen him only once, before 4.00 a.m. in the morning,on being woken up from his sleep. If PW-8 had known A1 from before,it would not have been necessary for A1 to introduce himself to PW-8as the driver of lorry No. TSL 6579. Moreover, PW-8 has not, in hisevidence, stated that he recognized A1 as had had known him fromCbefore.

158. There are other notable inconsistencies in the evidence ofPW-8. He said that ordinarily a job card is prepared when a lorry isbrought for repair. In this case no job card had been prepared as he hadbeen sleeping when the lorry had been brought. In cross-examination heDsaid that the person who had brought the lorry was with him till theforenoon. This was obviously an improvement in evidence, in cross-examination, to explain how he could recognize A1.

159. Through the evidence of this witness and through PW Nos.PW-8, PW-25 and PW-35 the Prosecution has made a desperate attemptEto link lorry No. TSL 6579 to the death of D1 and D2. From the evidenceof PW-8 read with the evidence of PW-14, the Prosecution has tried toshow that A1 brought the lorry for repair early in the morning before4.00 a.m. on 29.12.1990 suggesting that the lorry had been involved inthe incident which took place the previous night, of which of course,Fthere is no direct evidence. The lorry was damaged on the left side.This in itself does not establish any link between lorry and the incident.Incidentally, this witness also stated that A1 had told him that the lorryhad been hit by a Bull. There is no evidence to suggest that the damagethat was found on lorry TSL 6579 could not have been caused by a bull.

G160. PWs 11, 12 and 13 were all declared hostile. Nothing hasemerged from their cross-examination to link lorry No. TSL 6579 withthe death of D2 and D1. PW-11 said that he did not know A1, A3 or A4.He had never seen A7 before. He denied having seen A1 and two othersget off from the lorry and go to a tea shop. PW-12 said that he was notin town on the date of the incident. He had gone to Pondicherry to buy aH

car. He denied having told the police that a Leyland lorry had been keptparked near National Battery Works from 24.12.1990, which statement,even if made, does not connect the lorry to the incident which occurredon 28.12.1990. This witness also denied having seen or spoken to A2.PW-13 stated that he had fixed his thumb impression on certaindocuments as the police asked him to do so.

161. PW-14 the owner of a workshop identified PW-8 who hadworked as a tinker at his shop. He said he had gone to Trichy on28.12.1990 and came back to Mannaparai on 29.12.1990. When hereturned, he saw that the lorry TSL 6579 had been kept in his workshopfor repair. PW-6 had requested him to repair the lorry. There was asmall dent in the front left side of the lorry, and the bolts and nuts wereloose. The repairs were carried out. However, nobody came to take thelorry. After 4 or 5 days he met PW-6 at a bus stand at Trichy, and toldhim the lorry had been repaired. PW-6 took the lorry away after payinghim the balance repair charges. This witness did not say that the lorrywas left at the workshop at 4.00 a.m. The 6[th] and 7[th] ProsecutionWitnesses only identified the Cash Memos/bills issued by them for lorryNo. TSL 6579 and confirmed, deposed that they had sold side lights/lamps for the front side of a lorry under those cash memos/bills.

162. PW-25 only stated that the left side of the lorry No. TSL6579 was tinkered with a light coating of a black and red. The yellowlight on the right was found in good condition. The yellow light on the leftwas found broken. However, the cash memos indicate that the bulbsand side lights was sold on 3.1.1991. Arokyam (PW-14), deposed thatthe lorry had been delivered to PW-6 after repair work had been carriedout. The lorry was seized from the lorry shed near PW-7’s office on8.2.1991. The evidence of PW-42 indicates there were dents in the lorryand in particular its grill in front. If on 9.2.1991 any sidelights or lamps ofthe lorry were damaged or any part of the lorry were found dented, thedamage must have occurred subsequently. An attempt was made torelate the lorry to the incident by comparison of glass pieces, plasticpieces, paint scraping etc. In cross-examination, PW-25 could not evensay whether the glass pieces found at the scene of occurrence werefrom a lorry, bus or a car. He could not conclusively say that paintscrapings found at the place of occurrence were of lorry No. TSL 6579.There was never any comparative analysis of the width, volume, qualityetc. of the glass and plastic pieces recovered from the place of A

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163. Even assuming for the sake of argument that the lorry TSL6579 had been brought to the workshop for repair with minor dent and abroken sidelight or lamp and the colour of some broken glass pieces atBthe scene of occurrence matched the colour of the side light and orindicators of the lorry, that does not prove involvement of the lorry in thesame incident. Many lorries have the same kind of lamp/indicator covers.Moreover the lorry was purchased second hand and there is no evidenceat all of the condition of the lorry at the time of its delivery to A1.

C164. Significantly the accident took place on the night of 28/29.12.1990. The tenor of the evidence suggests that the lorry had beenlying at the workshop for 4 to 5 days. The repairs had been completed.Both the bills/cash memos in respect of bulbs and side lights with thenumber of the lorry are dated 3.1.1991. PW-35 has in his evidence statedthat the vehicle was seized as late as on 8.2.1991. If the lorry was foundDwith any broken lamps, loose screws and bolts or dents almost a monthand a half after the incident, long after purchase of replacement parts,the lorry in all probability got damaged while it was parked at the shedfrom which it was seized or may be afterwards.

165. In any case, even assuming for the sake of argument thatElorry No. TSL 6579 was the lorry, which knocked down the motorcyclewhich the deceased were riding, and ran over the deceased, that in itselfcannot lead to the conviction of any of the accused under Section 302 ofthe Indian Penal Code. There is not an iota of evidence to establish thatA1, A2 or A7 were in the lorry, except for the alleged extra judicialFconfession of A7 made in the presence of the police, which cannot beaccepted for the reasons discussed. The mere fact that A1 might havebeen driving the lorry also does not establish that he committed murder.

166. To establish motive for the murder the Prosecution has triedto build up a case of enmity between A3 and D2 and also of disputesGbetween A1 and A3 and D2. A3 was named as a possible suspect in theFIR. There may have been enmity between D2 and A-3, but A-3 wasnot there at the scene of occurrence. It is not the case of the Prosecutionthat A3 committed the murder. There is no evidence of his involvementin the murder of D2 and D1. In any case, he could not have had anymotive to kill D1. Furthermore, the evidence of PW-1 indicates thatHdisputes with A3 were compromised with the intervention of the DistrictCollector.

167. The allegations of disputes between A1 and D2, his ownbrother, are totally vague and devoid of any particulars. There is noevidence at all, of any specific reason for discord between A1 and D2,not to speak of evidence of dispute of a kind that could lead to a murder.

168. There is some evidence of differences between D2 and hisfather A4. PW-3, widow of D2 deposed that D2 and his father A4 hadnot been on talking terms for about 2 years, since A4 had not agreed topartition family properties as demanded by D2, or to make over his petrolbunk to D2.

169. A4 had also made a complaint to the police. The dispute wasapparently settled on 30.4.1990 on the advice of PW-29, and D2 promisednot to quarrel with his father over property matters. There is no evidencethat he breached such promise.

170. Even assuming that there were some differences betweenD2 and his father A4 over D2’s demand for partition of family properties,to which A4 did not accede, no compelling reason has been made out bythe Prosecution for A4 to plot the murder of his own son.

171. Property disputes amongst family members is not uncommon.There may also be quarrels between members of a family. They maynot be on talking terms. However, to attribute motive to a father to plotthe murder of his own son, there would have to be more compellingreasons. The case made out by the Prosecution is speculative andunsubstantiated.

172. In any event, it is not the case of the Prosecution that eitherA3 or A4 committed the murder, or was even present at the place ofoccurrence. Furthermore, it is nobody’s case that A2, A5, A6, A7 andA8 or any of them had any enmity with D2.

173. To implicate the accused, the Prosecution has propoundedthe case of conspiracy hatched by all the accused at Malar Lodge Hotelon the night of 21.6.1990, to bump off D2, by using a lorry.

174. The Prosecution has miserably failed to prove that therewas any conspiracy to kill D2 at the Malar Lodge Hotel, Karaikudi, oranywhere else. Mr. Tulsi’s submission that there was evidence that on21.6.1990, the accused had booked a room at Malar Lodge Hotel,Karaikudi, and conspired to kill D2 with the help of a lorry, cannot besustained.

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A175. The only evidence with regard to the alleged conspiracy isthe absolutely inadmissible hearsay evidence of PW-44, a police officerwho investigated the crime. PW-44 stated that he had examined PW-39,who had in course of his examination stated that A1 had asked PW-39and PW-10 to accompany him to Karaikudi for purchase of lorry spareparts.B

176. PW-44 deposed that PW-39 had stated that when they arrivedat Aranthangi, A5 and A4 joined them and they went to the Malar LodgeHotel, Karaikudi, at around 8.00 p.m. A2, A3, A6, A7 and A8 were alsothere. They all went into a room, locked the door from inside and took adecision to murder D2. A1 had said that he was prepared to kill D2 byChitting him with a lorry for which he required assistance and he requestedA8, A2 and A7 to provide him with assistance. PW-44 said that PW-39had told him that PW-39 and PW-10 were sitting in the same room whenthe conspiracy was hatched.

177. According to PW-44, PW-39, had told him that PW-39 couldDnot sleep all night. The next day PW-39 and PW-10 went to the house ofA3 and told A3 about what had happened at the Malar Lodge Hotel,Karaikudi. A3 advised them not to disclose what had happened to anyone.

178. Significantly, PW-10 has in his evidence denied that he knewA2, A7 or A8. He said he knew A1 and A3 to A6. PW-10 deposed thatEhe only knew that D2 and D1 had died but nothing further. He said thatPolice had examined him. He deposed that the Police wanted him to bea witness to depose about the death of D2 and D1 on the road. Thiswitness, as stated above, was declared hostile and cross-examined. Inhis cross-examination he categorically denied knowing A2, A7 A8 or ofFtheir alleged contact with A-3. He categorically denied having gone toKaraikudi with any of the accused. He also categorically denied that hehad told the police about any conspiracy.

179. PW-39, Farooq deposed that he knew A2 and A7 but he didnot know A8. He said A2 and A7 used to come to the house of A3. InGCourt he deposed that the police had not examined him whereupon hewas declared hostile and cross-examined. In his cross-examination hedenied having told the police that he and PW-10 had been taken toKaraikudi for purchasing lorry spare parts. He denied having told thepolice that he had gone to Malar Lodge Hotel, Karaikudi. He also deniedhaving told the police anything about any conspiracy. He categoricallyH

denied having told the police that he and PW-10 had sat in the last rowwhile the others conspired to murder D2.

180. PW-39 denied that A2 and A7 had asked A-1 to arrange fora lorry. In any case, there could be no need for A-1 to arrange a lorry,since already A1 had a lorry TDB 9635, which was sold about fourmonths later.

181. PW-39 categorically denied knowledge of conspiracy. Heeven denied having gone to Karaikudi at the request of A1.

182. Apart from the fact that PW-10 and PW-39 have categoricallydenied their presence at Karaikudi on 21.6.1990, there are patentinconsistencies in the evidence of PW-44 in this regard. If A3 was presentat the Malar Lodge Hotel, Karaikudi at the time of the conspiracy on21.6.1990, there could be no reason for PW-10 or PW-39 to go to A3’shouse and tell him about the conspiracy. Nor would A3 advise PW-10and PW-39 not to divulge the conspiracy to others.

183. Even otherwise, it is inconceivable that the accused shouldhatch a conspiracy to commit murder, in the presence of witnesses whowere not part of the conspiracy.

184. It is also difficult to fathom why PW-10 and PW-39 werenever arrayed as co-accused, if they were present at the time of theconspiracy and they chose to keep quiet about the conspiracy. Nocredence can be given to the evidence of PW-44.

185. It is well settled that statements made to the police underSection 161 of the of the Criminal Procedure Code in course ofinvestigation are inadmissible in evidence. The evidence of PW-44 withregard to what two witnesses namely, Abdul Jafar (PW-10) and Farooq(PW-39) told him in course of investigation is inadmissible in evidence,and of no value. Significantly, both PW-10 and PW-39 categorically deniedhaving made to the police, the statements attributed to them.

186. PW-40 who had worked as Manager, Malar Lodge Hotel,Karaikudi from 1989 to 1991 denied knowing A8 or A2. He said that theendorsement at Sl.942 of the Register had been made by the Receptionistof the hotel. It was the Receptionist who used to enter particulars ofpersons who stayed in the hotel. The Manager of the hotel was alsodeclared hostile and cross-examined by the witness. In cross-examinationhe denied all the suggestions made to him. In particular, he denied havingmade the statements to the police, attributed to him.

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A187. The appellants have relied on the evidence of PW-34, ahandwriting expert, to prove that the accused had taken part in aconspiracy at the Malar Lodge Hotel on 21.6.1990. Evidence of expertsis not always conclusive. As observed by this Court in Murari lal vs.State of Madhya Pradesh[5 ]there is hazard in accepting the opinion ofan expert, not because an expert is not reliable as a witness, but becauseBhuman judgment is fallible. While the science of identification of finger-prints has attained perfection, with practically no risk of an incorrectopinion, the science of identification of handwriting is not so perfect. Inthis case the evidence of PW-40, manager of Malar Lodge Hotelcontradicts the evidence of PW-34.C

188. In any case, the evidence of the hand writing expert (PW-34) establishes at the highest, that one of the accused that is A-8, whohad no enmity with the deceased, had made entries in and signed theadmission register of the Malar Lodge Hotel. The evidence of PW-34,at best proves that A8 may have checked into Malar Lodge Hotel,DKaraikudi on 21.6.1990, six months before the incident and nothing more.There could be numerous reasons for A8 to go to Karaikudi. TheProsecution has not been able to satisfactorily explain the gap of oversix months between the incident and the date on which the alleged meetingtook place at the Malar Lodge.E189. It is well settled that under the criminal jurisprudence prevalentin this country an accused is presumed innocent, unless proved guiltybeyond all reasonable doubt. As held by this Court in Shivaji SahabraoBobade v. State of Maharashtra[6],”Certainly, it is a primary principlethat the accused must be and not merely may be guilty before a courtcan convict and the mental distance between ‘may be’ and ‘must be’ isFlong and divides vague conjectures from sure conclusions.” For convictionon the basis of circumstantial evidence, the circumstances from whichthe conclusion of guilt is to be drawn should fully be established. Thecircumstances should be conclusive. The circumstances established shoulddefinitely point to the guilt of the accused, and not be explainable on anyGother hypothesis. The circumstances should exclude any other possiblehypothesis except the one to be proved.

190. In Sharad Birdhichand Sarda vs. State of Maharastra[7]the Supreme Court held that where there is no eye witness to the5 1980 (1) SCC 7046 (1973) 2 SCC 793H7 (1984) 4 SCC 116

occurrence and the entire case is based upon circumstantial evidence,the normal principal is that the circumstances from which an inferenceof guilt is sought to be drawn must be cogently and firmly established;these circumstances should be of a definite tendency, unerringly pointingtowards the guilt of the accused; the circumstances taken cumulativelyshould form a chain so complete that there is no escape from theconclusion that in all human probability the crime was committed by theaccused and they should be incapable of any explanation or of anyhypothesis other than or inconsistent with the guilt of the accused. Thesame view was reiterated in Bablu vs. State of Rajasthan[8 ]and in VijayShankar vs. State of Haryana[9]. The judgment in Praful SudhakarParab vs. Stateof Maharashtra[10] cited by Mr. Tulsi was rendered inthe particular facts and circumstances of the case where this Courtfound that the High Court had, after elaborately considering all theevidence on record, rightly affirmed the conviction.

191. In Satish Nirankari vs. State of Rajasthan[11], this Courtreiterated that criminal cases cannot be decided on the basis of hypothesis.It is for the prosecution to prove the guilt of the accused beyond reasonabledoubt. It is for the prosecution to prove all circumstances which leaveno doubt of the guilt of the accused. The chain of circumstances mustbe complete and must clearly point to the guilt of the accused. The chaincannot get broken in between.

192. It is well settled, suspicion however strong cannot substituteproof beyond reasonable doubt. Enmity as a result of property relateddisputes may give rise to suspicion. However, conviction can never bebased on suspicion unless the prosecution clearly proves circumstancesconclusively and all circumstances proved should only point to the guiltof the accused. Possibility of any conclusion other than the conclusionof guilt of the accused would vitiate a conviction.

193. At the cost of repetition, it is reiterated that the burden ofproving an accused guilty beyond all reasonable doubt lies on theprosecution. If upon analysis of evidence two views are possible, onewhich points to the guilt of the accused and the other which is inconsistentwith the guilt of the accused, the latter must be preferred. Reversal of a 8 2006 (13) SCC 1169 2015 (12) SCC 64410 2016 (12) SCC 78311 2017 (8) SCC 497

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Ajudgment and order of conviction and acquittal of the accused should notordinarily be interfered with unless such reversal/acquittal is vitiated byperversity. In other words, the Court might reverse an order of acquittalif the Court finds that no person properly instructed in law could haveupon analysis of the evidence on record found the accused to be ‘notguilty’. When there is circumstantial evidence pointing to the guilt of theBaccused, it is necessary to prove a motive for the crime. However, motiveneed not be proved where there is direct evidence. In this case, there isno direct evidence of the crime.

194. In Sadhu Saran Singh vs. State of U.P.[12], this Courtobserved that an appeal against acquittal has always been on an altogetherCdifferent pedestal from an appeal against conviction. In an appeal againstacquittal, where the presumption of innocence in favour of the accusedis reinforced, the Appellate Court would interfere with the order ofacquittal only when there is perversity. In this case, it cannot be said thatthe reasons given by the High Court to reverse the conviction of theDaccused are flimsy, untenable or bordering on perverse appreciation ofevidence.

195. Before a case against an accused can be said can be said tobe fully established on circumstantial evidence, the circumstances fromwhich the conclusion of guilt is to be drawn must fully be established andEthe facts so established should be consistent only with the hypothesis ofthe guilt of the accused. There has to be a chain of evidence so completeas not to leave any reasonable doubt for any conclusion consistent withthe innocence of the accused and must show that in all human probabilitythe act must have been done by the accused.

F196. In Shanti Devi v. State of Rajasthan[13 ]this Court held thatthe principles for conviction of accused based on circumstantial evidenceare :- “10.1 The circumstances from which an inference of guilt issought to be proved must be cogently or firmly established.

G10.2 The circumstances should be of a definite tendencyunerringly pointing towards the guilt of the accused.

10.3 the circumstances taken cumulatively must form a chainso complete that there is no escape from the conclusion that 12 2016 (4) SCC 357H13 (2012) 12 SCC 158

within all human probability, the crime was committed by theaccused and none else.

10.4 the circumstantial evidence in order to sustain convictionmust be complete and incapable of explanation of any otherhypothesis than that of the guilt of the accused and suchevidence should not only be consistent with the guilt of theaccused but should be inconsistent with his innocence.

197. Keeping the above test in mind we have no option but to holdthat the prosecution has miserably failed to establish the guilt of theaccused persons beyond reasonable doubt. There is a strong possibilitythat the motorcycle which the deceased were riding, might have beenhit by an unknown vehicle, killing the deceased. The death may havebeen accidental. The High Court has rightly set aside the judgment andorder of conviction of the Trial Court and acquitted the accused.

198. We do not find any merit in the appeals. The appeals fail andthe same are dismissed.

Divya Pandey

Appeals dismissed.

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