whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged.- They are thus entitled to the benefit of doubt.=2016 Dec.http://judis.nic.in/supremecourt/imgst.aspx?filename=44289 – NATHIYA Vs. STATE TR.INSP.OF POLICE,VELLORE DIPAK MISRA, AMITAVA ROY

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1015 OF 2010

NATHIYA …APPELLANT
VERSUS
STATE REP. BY INSPECTOR OF POLICE,
BAGAYAM POLICE STATION, VELLORE …RESPONDENT

WITH

CRIMINAL APPEAL NO. 1011 OF 2010

SURESH …APPELLANT
VERSUS
STATE REP. BY INSPECTOR OF POLICE,
BAGAYAM POLICE STATION, VELLORE …RESPONDENT

J U D G M E N T
AMITAVA ROY, J.
The appellants being aggrieved by the affirmation of their
conviction under Section 302 read with Section 34 IPC and the sentence of
life imprisonment and fine of Rs. 10000/-, in default R.I. for further six
months, by the High Court by its verdict dated 27.11.2008, seek this
Court’s panacean intervention for redress.
2. We have heard Mr. Jayant Muthur Raja, learned counsel for

the appellant Nathiya, in Criminal Appeal No. 1015 of 2010, Mr. P.R.
Kovilan, learned counsel for the appellant Suresh, in Criminal Appeal No.
1011 of 2010 and Mr. M. Yogesh Kanna, learned counsel for the State.
3. The prosecution was set in motion by the First Information Report
lodged on 27.3.2006 at 2.30 a.m. by one Gunasekaran, the cousin brother of
the deceased Gurunathan, the husband of the appellant Nathiya (accused No.
1). The appellant Suresh (accused No. 2 ) is allegedly the paramour of
accused No. 1. It was averred in the FIR that the deceased was a book
binder by occupation and owned some properties located in his village,
worth several lakhs. He also had his own house. The house of the
appellant Suresh was also situated nearby. It had been alleged that the
appellant Nathiya, the wife of the deceased had developed illicit
relationship with Suresh which was not only to the knowledge of the
deceased but also of the informant. The FIR discloses that this depraved
liaison between the accused persons had also been brought to the notice of
the local panchayat and that though, it had advised the appellants against
the continuation of such alliance, they did not desist therefrom. Being
appalled, though the deceased at some point of time, had shifted to a
rented house elsewhere but had to return under financial compulsions to
his original place of abode. This, according to the FIR, facilitated the
continuance of the extra-marital relationship of Nathiya with Suresh. It
was alleged in the FIR that in retaliation to the persistent endeavours
made by the deceased to make Nathiya mend her ways, she used to torture
him and threaten that she would eliminate him and would sell his properties
and elope with her paramour. The informant claimed that not only a few
days prior to the incident, the deceased had confided him that his wife had
tried to suffocate him to death by pressing a pillow on his face, on
26.3.2006, i.e. on the eve of the incident as well, he had disclosed to
him about a conspiracy between the two accused persons to murder him and
grab his properties.
4. The informant further mentioned that in the intervening night of
26.3.2006/27.3.2006, while he was asleep, Pushpa, wife of Dinakaran, his
neighbour informed him that the dead body of the deceased had been seen
floating in a nearby well. On getting this information, the informant
rushed to the place of occurrence and with the help of Pandurangam and
Dinakaran, retrieved the body from the well. On further enquries, he could
come to learn that one Packiammal, at about 11 p.m., heard the shrieks of
the deceased followed by a loud thud from the well. The informant referred
to the accused persons as the suspects. It was incidentally mentioned as
well that they were not available in their house at that point of time.
This FIR was registered as Bagayam P.S. Crime No. 278 of 2006 and
investigation followed.
5. Eventually the charge-sheet was submitted against the accused
persons. The case was committed for sessions trial. The appellants
having denied the charge, were made to stand trial and finally by the
judgment and order dated 13.11.2007 passed in S.C. No. 94 of 2007, the
appellants were convicted under Section 302 read with Section 34 IPC and
sentenced as above. To reiterate, their conviction and sentence has been
upheld by the High Court by the judgment and order impugned herein.
6. Before adverting to the rival submissions advanced, apt it would be
to undertake an analysis of the evidence on record to the extent
indispensable.
PW1 Gunasekaran, the informant while substantially reiterating
his version in the FIR stated on oath that the deceased was a dwarf in
structure and that though being exasperated with the incorrigible
conduct of his wife in indulging in the extra-marital relationship with
the Suresh, he had shifted his family to Idaiyamsathu Village, because of
his meager means, he could not afford to stay there and returned to
Kollaimedu within three months. The witness stated that the deceased
inspite of his best efforts could not stop the unwholly alliance between
the accused persons and used to very often share his distress with him.
He stated that on receiving the information about the dead body of the
deceased in the well, he rushed to the place of occurrence and, amongst
others, saw that chappals of the deceased lying by the side of the well.
He owned the FIR lodged by him and reiterated the suspicion about the
culpability of the two appellants.
In cross-examination, he denied the defence suggestion that the
the grand-father of the deceased had executed a will in favour of him as
well as the deceased. He admitted that the appellant Nathiya and her
daughter were the only legal heirs of the deceased and that no
incriminating material was recovered by the police from the house of
Nathiya. He admitted as well to have not disclosed the illicit
relationship between the appellants to the police. He admitted too that
the well was located at a distance of 2.5 feet from the house of
Packiammal and that there were other houses situated within 200 feets from
there.
PW2 Rajan, who was also a resident of Idaiyamsathu Village,
deposed that the appellant Nathiya did not respect the deceased as her
husband, who did not know swimming and cycling. He stated that on
26/27.3.2006, while he was sleeping, he heard that the deceased had fallen
in the well and on reaching the spot, found his dead body floating in the
well with his face downwards. He mentioned too about the illicit
relationship between the two appellants for which time and again, the
deceased had warned his wife Nathiya. He also claimed that the deceased
had disclosed to him about the immoral character of his wife for which he
used to console him. He stated as well that few days prior to the
incident, the deceased had disclosed to him that Nathiya had tried to
murder him by covering his face with a pillow.
In cross-examination, however he conceded that he had not
disclosed to the police about the incident of the attempt to murder the
deceased by his wife. The witness admitted that PW1 and the deceased had
equal shares in the well. He also admitted of not having disclosed to the
police about the immoral relationship between the appellants.
PW3 Packiammal stated on oath to have heard in the intervening
night of 26/27.3.2006, cries of someone and then a sound from the well.
She thereafter raised alarm apprehending that some body might have fallen
in the well and that in the next morning, she heard that Gurunathan had
died. She stated that the house of the deceased and that of the Suresh
were near that of hers.
PW4 Dinakaran testified that in the night of the occurrence,
Packiammal (PW3) had raised alarm whereupon he went to the place of
occurrence and found that the deceased had fallen into the well whereafter
his body was taken out therefrom. According to him, though the police
reached the place of occurrence some time thereafter, he was not
interrogated. He, however mentioned about the presence of both the
appellants at the time when the dead body was retrieved from the well at
about 11 p.m. He stated as well that the appellant Nathiya was weeping,
sitting near the dead body.
PW5 Dr. Anbalagan, who performed the post-mortem examination
of the dead body on 27.3.2006 at about 6.30 p.m. detected the following
extrenal injuries:
1. Lacerated wound 2 cm x 1 cm x ½ cm. deep on the right side and back.
2. One cut injury measuring 2 cm x 1 cm x ½ cm. deep on the rear part of
the head.

PW5 mentioned that the occipital bone was broken measuring 3 c.m. on rear
part of the head and that blood clot was also found on the broken bone.
Amongst the internal injuries detected, he mentioned about traverse
fracture of the occipital bone. He opined that the deceased had died due
to grievous head injuries, suffocation and heart failure. According to him,
the deceased appeared to have died because of drowning in the water. He
admitted that if a person becomes unconscious out of suffocation and is
thrown into a well, he is likely to die of the above injuries.
In cross-examination, he however opined as well that if a
person falls from a very high height, he is likely to sustain injuries on
the rear part of the head.
PW9 Kamalakannan, Village Administrative Officer, at the
relevant time, testified that on 27.3.2006, both the appellants had
appeared at his office and had voluntarily confessed that they had
smothered the deceased and that thereafter had pushed him down in the
well. This witness stated that the confessional statements of the
appellants were recorded by him in the presence of Kothandan, his
assistant and Palavansathukuppam Gunasekaran, Village Administrative
Officer, Virupatchipuram Village and that thereafter he had handed over
the accused persons with the confessional statements to the police. He
denied the suggestion that the accused persons had not appeared before him
at his office or had not made any confessional statement.
PW10 Kothandan, who at the relevant time, was the Village
Assistant at Palavansathu Village, deposed that on 27.3.2006, while he,
Kamalakannan, Village Administrative Officer and Palavansathukuppam
Gunasekaran, Village Administrative Officer, Virupatchipuram were present
in their office, the appellants appeared there and voluntarily gave their
confessional statements admitting to have killed the deceased and thrown
him in the well. The witness affirmed as well that their statements were
recorded by PW9 Kamalakannan, whereafter they had taken the appellants to
the police station following which they were arrested. He also stated that
the confessional statements were handed over to the police. According to
this witness, appellant Nathiya also produced the saree gifted to her by
Suresh and the witness identified the said article as MO1. He also
referred to a photograph of the appellants produced by Suresh before the
police and exhibited the same as MO2.
In cross-examination, this witness admitted to have signed the
voluntary statement along with PW9 Kamalakannan. He however admitted that
he did not disclose about the confessional statements to anybody. He denied
the suggestion that neither the appellants had appeared at the office of
the Village Administrative Officer nor had made any confessional statement.
PW11 Kumar Devikan, the Investigating Officer, amongst others,
admitted that on 27.3.2006 at about 2 p.m., the appellants were produced
before him at the police station by the Village Administrative Officer of
Palavansathu and Virupatchipuram along with their confessional statements.

7. The learned counsel for the appellants have argued that the
circumstantial evidence adduced by the prosecution, in absence of any eye
witness to the incident, is extremely shaky, incomplete and incoherent so
as to warrant conviction of the appellants and they are thus entitled in
law to be exonerated from the charge of murder levelled against them.
While repudiating the alleged disclosures by the deceased about the
infidel character of his wife to PW1 and PW2, as reproduced by them, to
be hearsay evidence and thus of no significance, it has been urged that
the prosecution case stands discredited as well on the ground of
suppression of the alleged confessional statement of the appellants
recorded by the Village Administrative Officer. Apart from the fact that
the deceased was not seen in the company of the appellants immediately
prior to the incident and that thus the “last seen theory” is not
applicable to the facts of the case, they have urged that the medical
evidence as well does not conclusively prove that the death of the
deceased was homicidal and not suicidal. Dismissing the recovery of saree
and the photograph of the appellants to be wholly inconsequential in the
face of want of any credible evidence to establish the complicity of the
appellants with the crime, it has been insistently argued that the
possibility of PW1, the cousin brother of the deceased, who had been
interested in this property, falsely implicating the appellant Nathiya in
particular for illegal gain, cannot be wholly ruled out. The learned
counsel have maintained in unison that even assuming that the imputation
of illicit relationship between the appellants had been proved, the same
per se, even if at the best is a suspicious circumstance, does not
establish beyond reasonable doubt the culpability of the appellants. In
the prevalent facts and circumstances, the possibility of the deceased
committing suicide cannot be excluded and that on that count as well, the
appellants are entitled to the benefit of doubt .
As against this, the learned counsel for the respondent has
argued that the evidence adduced on behalf of the prosecution is
adequately cogent, persuasive and clinching and thus in the face of
concurrent findings of the guilt of the appellants, this Court would not
upturn the same. According to him, the factum of sustained illicit
relationship between the appellants has been proved beyond doubt and in
the face of the revelation made by the deceased about the previous attempts
to eliminate him, the charge against the appellants stands proved on the
basis of the materials on record. Referring to the medical evidence, the
learned counsel has argued that it is apparent therefrom that the
deceased was first smothered and then thrown into a well in an unconscious
state whereupon he died due to the head injuries sustained. According to
the learned counsel, the omission on the part of the prosecution to produce
the recorded confessional statements of the appellants is wholly
insignificant in the face of the sworn testimony of PW9 and PW10 to that
effect.
8. The competing arguments and the materials on record have received
our due scrutiny. It is patent in the present factual setting that there
is no eye witness to the occurrence and that the prosecution case is based
wholly on circumstantial evidence. The genesis of the suspicion against
the appellants, being their amorous association to the anguish disliking of
the deceased, he being almost reduced to a helpless entity, having failed
to prevent such liaison inspite of his best endeavours. There is indeed
some evidence suggestive of such an alliance between the appellants at the
relevant point of time. This, per se, in our comprehension, however,
cannot be accepted as a decisive incriminating factor to deduce their
culpability qua the charge of murder of the deceased Gurunathan.
9. The place of occurrence is a well, away from the residence of
the deceased for which any definitive presumption against his wife
Nathiya, as a conspirator of the crime, cannot be drawn without the risk
of going wrong to cast a burden on her, as contemplated under Section
106 of the Evidence Act.
The closest circumstance bearing on the incident is,
discernible from the testimony of PW3 Packiammal who stated to have heard
the shrieks of the deceased, followed by a loud sound of a fall inside
the well. There is no evidence that immediately thereafter, the appellants
were seen in the vicinity of the well. Noticeably, the chappals of the
deceased were found by the side of the well. The evidence of PW4
Dinakaran is, however, to the effect that when the dead body was
recovered thereafter from the well, both the appellants were present and
Nathiya, the wife of the deceased, was seen weeping by his side.
The medical evidence does not refer to any external injury
indicative of use of any external force on the deceased, resulting in his
ante-mortem suffocation and loss of consciousness, to be thereafter
dispatched into the well. The possibility that the cause of death i.e.
grievous head injury, suffocation and heart failure were post fall
manifestations, also cannot be ruled out as the medical evidence admits of
such an eventuality as well.
The inexplicable omission on the part of the prosecution to
produce and prove the alleged confessional statements made by the
appellants and reduced into writing by PW9 and witnessed by PW10
substantially denudes its case of necessary credence to incriminate them.
The oral testimony of these witnesses to the effect that such confessional
statements had been recorded, ipso facto is of no consequence. Not only
the contention that the supposed disclosure by the deceased to PWs 1 and 2
about the immoral conduct of the appellants is discardable being hearsay in
nature, deserves some reflection, it is noticeable that PW2, in his cross-
examination, did admit that he had not divulged the above fact to the
police. PW10, as well, did concede that he had not revealed to anybody
about the confessional statements made by the accused persons. The
recovery of a saree produced by Nathiya said to have been gifted to her
by Suresh and their joint photograph, in the attendant facts and
circumstances and in the face of the other evidence on record, does not
clinch the issue in favour of the prosecution.
10. The defence proposition that PW1 being the cousin brother of the
deceased had framed the appellants so as to wrest his property in
absence of his legal heirs in the above factual premise, also cannot be
lost sight of. The imputation of sustained unchaste conduct and the
activities of the wife, if true, the possibility of the deceased committing
suicide as an extreme step in a unbearable anguished state of mind also
cannot be wholly excluded.
11. On an analysis of the overall fact situation, we are of the
considered opinion that the chain of circumstantial evidence relied upon
by the prosecution to prove the charge is visibly incomplete and incoherent
to permit conviction of the appellants on the basis thereof without any
trace of doubt. Though the materials on record do raise a needle of
suspicion towards them, the prosecution has failed to elevate its case
from the realm of “may be true” to the plane of “must be true” as is
indispensably required in law for conviction on a criminal charge. It is
trite to state that in a criminal trial, suspicion, howsoever grave,
cannot substitute proof.
12. The classic enunciation of the law pertaining to circumstantial
evidence, its relevance and decisiveness, as a proof of charge of a
criminal offence, is amongst others traceable to the decision of this
Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC
116. The relevant excerpts from
paragraph 153 of the decision is assuredly apposite:
“153.(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused…they should not be explainable
on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

* * *
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been
done by the accused.”

As recently as in Sujit Biswas vs. State of Assam (2013) 12 SCC
406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43, it has been
propounded that in scrutinizing the circumstantial evidence, a court is
required to evaluate it to ensure that the chain of events is established
clearly and completely to rule out any reasonable likelihood of innocence
of the accused. It was underlined that whether the chain is complete or
not would depend on the facts of each case emanating from the evidence and
no universal yardstick should ever be attempted. That in judging the
culpability of the accused, the circumstances adduced when collectively
considered, must lead only to the irresistible conclusion that the accused
alone is the perpetrator of the crime alleged. That the circumstances
established must be of a conclusive nature consistent only with the
hypothesis of the guilt of the accused, was emphatically propounded.
13. Tested on the touchstone of the above judicially laid parameters,
defining the quality and content of the circumstantial evidence,
essential to bring home the guilt of an accused person on a criminal
charge, we are of the unhesitant opinion that the prosecution, in the case
in hand, has failed to meet the same. The materials on record admit of
substantial doubt vis-a-vis the complicity of the appellants in the
crime.
14. Having regard to the evidence adduced, it would be wholly unsafe to
sustain their conviction. They are thus entitled to the benefit of doubt.
The appeals thus succeed and are allowed. The bail bonds of appellant
Nathiya, who is on bail, stands discharged. Appellant Suresh be released
from the jail immediately, if not required in any other case.
……………………………………….J.
(DIPAK MISRA)

……………………………………….J.
(AMITAVA ROY)
NEW DELHI;
NOVEMBER 8, 2016.

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