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TMI Blog2020 (1) TMI 1681X X X X Extracts X X X X X X X X Extracts X X X X ..... l settled that under the criminal jurisprudence prevalent in this country an Accused is presumed innocent, unless proved guilty beyond all reasonable doubt. As held by this Court in SHIVAJI SAHEBRAO BOBADE VERSUS STATE OF MAHARASHTRA [ 1973 (8) TMI 160 - SUPREME COURT] , Certainly, it is a primary principle that the Accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. For conviction on the basis of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should fully be established. The circumstances should be conclusive. The circumstances established should definitely point to the guilt of the Accused, and not be explainable on any other hypothesis. The circumstances should exclude any other possible hypothesis except the one to be proved. In SHARAD BIRDHI CHAND SARDA VERSUS STATE OF MAHARASHTRA [ 1984 (7) TMI 401 - SUPREME COURT] the Supreme Court held that where there is no eye witness to the occurrence and the entire case is based upon circumstantial evidence, the normal principal is that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yogesh Kanna, S. Partha Sarathi, Raja Rajeshwaran S., Kumar Dushyant Singh, Mukul Lather, Arun Adhalakha, Dharmendra Kumar Sinha, B. Karunakaran, Mukesh Verma, Pankaj Kumar Singh, Pawan Kumar Shukla, Yash Pal Dhingra, K.K. Mani, T. Archana, Dushyant Kumar Singh, Kanippaiah Meyappan, Kanika Kalaiyarasan, Yamunah Nachiar and S. Ravi Shankar, Advs. JUDGMENT INDIRA BANERJEE, J. 1. These appeals are against the judgment and order dated 21.11.2006 passed by the Madurai Bench of Madras High Court, allowing Criminal Appeal Nos. 834, 835, 836, 895, 926, 934 and 938 of 1998, setting aside the judgment and order dated 6.10.1998 of conviction passed by the Additional Sessions Judge, Pudukottai in S.C. No. 108/1996, and acquitting all the eight Accused persons (A1 to A8). While all the eight Accused had been convicted Under Section 120B of the Indian Penal Code of criminal conspiracy, A1, A2 and A7 had also inter alia been convicted Under Sections 302/34 of Indian Penal Code for murder of the deceased Raja 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end D1, both residents of Arsarkulam, left for Aranthangi around 8.30 p.m. on 28.12.1990, by Motor Cycle No. TN/1406, owned by the A4, to meet a lawyer engaged by D2. D2 drove the motor cycle and D1 was on the pillion. At about 1.00 a.m. at night, two persons, Kannan and Nagoor Gani (PW2) who had come to Arsarkulam by the last bus, informed the complainant (PW-1), uncle of D1, that D2 and D1 were lying dead in a pool of blood two or three furlongs away from the level crossing at Sarayananthal, Pappakulam and a motor cycle was lying close by. 7. On receiving the information, PW-1 went to the place of occurrence immediately with his neighbour Mohammedhu Meera and thereafter, at about 2.00 p.m. he went to the Aranthangi Police Station and lodged a complaint. 8. In the complaint, PW-1 stated that he suspected that the deceased might have been murdered by Perumal, Kuzhanthaiyan and Kumar, at the instigation of A3, as there was enmity between D2 and A3 over the eviction of A3 from the place of his residence. A1, brother of D2 and A4, father of D2 were not even named as Accused in the complaint. Nor were any of the other Accused named. 9. The sub-inspector attached to the Aranthangi Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder joint size 3 cm* 1 cm* cm. No bone fracture. 4. An ante mortem lacerated injury over the right elbow posteriorly horizontal in nature size 2 cm x 1 cm x cm. 5. Ante mortem abrasion linear, interrupted interneath in nature. Extending from right chest to right ideal fossa size 25 cm x 5 cm. On examination extravasation of blood underneath the skin present. Present. Fracture of 4th and 5th rib anterior angle present. 6. Ante mortem lacerated injury horizontal over the left wrist joint anteromedially size 2 cm x cm x cm. No bone fracture. 7. An ante mortem lacerated injury over the right knee joint anteromedially size 3 cm x 2 cm x cm horizontal in nature. No bone fracture. 8. Ante mortem abrasion 4 cm in number each 3 cm x 2 cm over the right leg laterally. 9. Ante mortem contusion over the right side scalp over the right temporal region size 7 cm x 9 cm extravasation of blood underneath the scalp present. Fracture right temporal bone, squemoris part present, Meninges injury subdural haematoma present in intracerebral bleeding present. 10. Torn bridge depressed clots in the nostril present. No fracture. Nasal bone body not decomposed. The general appearance do not tally with poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... araikudi on 21.6.1990, to murder D2. A1, A2 and A7 were also charged with offence Under Section 302 read with Section 34 of the Indian Penal Code, of murder of D2 and D1. 15. The prosecution examined 45 witnesses. The Accused did not examine any defence witness. Nine Prosecution Witnesses (PWs) namely PW-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 cross examined on behalf of the State, as they had allegedly retracted from their statements made before the Police in course of investigation. 16. By a judgment and order dated 6th October, 1998, the Additional Sessions Judge, Pudukottai convicted all the Accused Under Section 120B Indian Penal Code and further convicted A1, A2 and A7 Under Section 302 read with Section 34 Indian Penal Code. A1, A2 and A7 were sentenced to life imprisonment and also to fine of Rs. 20,000/- each. 17. Being aggrieved by the judgment and order dated 6th 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 were numbered as Criminal Appeal Nos. 834, 835, 836, 895, 926, 934 and 938 of 1998. 18. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intervention of the District Collector. On 30.4.1990, A4 had lodged a complaint against D2 which had been compromised in the Civil Court. 23. There was evidence that on 21.6.1990 the Accused booked a room at the Malar Lodge Hotel, Karaikudi and conspired to kill D2 with the help of a lorry. Accordingly A1 purchased the lorry No. TSL 6579 with the sinister motive of murdering D2. 24. Mr. Tulsi submitted that on 28.12.1990, D2 and D1 left for Aranthangi. At around 1.00 a.m. complainant was informed of the death of the deceased. As per the post mortem report the deceased died of shock and haemorrhage due to injury on skull, brain and multiple injuries. 25. Mr. Tulsi submitted that where specific roles had been attributed to each of the Accused persons, a chain of circumstances linking them to the commission of offence was complete. The High Court ought not to have reversed the Trial Court's judgment. The High Court overlooked the fact that in most cases of circumstantial evidence, direct evidence of conspiracy is never available and existence of conspiracy has to be inferred from the circumstances of the crime. 26. Mr. Tulsi submitted that apart from complete chain of circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rowthar living in Malaysia were brothers. A3 had been managing the properties of Sulaimaan in India. Disputes however arose between A3 and D2 when Sulaimaan took back his properties from A3 and entrusted the management thereof with D2. Properties in the name of Fathima Beevi, daughter of Sulaimaan were also entrusted to A3 for management. 32. PW-1 has stated that there were 10 to 12 patta holders, and also unauthorised occupants in occupation of land purchased in the name of Fathima Beevi. The occupants were being evicted by payment of money. However, A3 who was associated with the ruling party at that time, and a Vice-president of the Aranthangi Panchayat Union, instigated occupants not to vacate, and many of them refused to vacate. According to this witness, this gave rise to a quarrel between D2 and A3 and a complaint was filed with the police. The District Collector conducted an inquiry and the disputes were compromised through his intervention. 33. This witness also said that there was a civil case pending in the District Munsif Court at Aranthangi against some occupants of the Palaa Thopu land of Fathima Beevi. D2 used to often go to Aranthangi with D1, being the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the glass pieces were recovered in his presence or not, but stated that the glass pieces were yellow in colour. The plastic pieces were yellow and white coloured. He stated that he had not observed Material Object M.O. 3 exhibited by the police in Court. 41. It is true that no witness is likely to notice details such as the number of glass pieces found at the site of an accident which left human beings dead. Inability to recall such details does not in itself affect the credibility of the witness. However, in this case, there is nothing at all in the evidence of PW-1, to establish the guilt of the Accused persons or any of them, and certainly not beyond reasonable doubt. 42. All that PW-1 has said is that there were disputes between A3 and D2 with regard to the properties of Sulaimaan Rowthar and his daughter. No specific reason for enmity between A1 and D2 or between A4 and D2 has emerged from the evidence of this witness. 43. The 2nd Prosecution Witness (PW-2) M. Nagoor Gani, stated that he had travelled to Arasarkulam from Aranthangi by the last MPTC bus. This witness deposed that on the way he had seen that there were two dead bodies lying at about a distance of one kilometer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l case for D2, son of A4. He also asserted that he had not been in Aranthangi on the date of the incident. He had gone to Chennai. Nothing has emerged from the evidence of this witness to establish the guilt of the Accused. 48. The 6th Prosecution Witness, M. Balakrishnan alias Chinappu (PW-6), deposed that he was a lorry broker at Puddukotai, who used to arrange for purchase and hire of lorries. He said he knew A5 who had been introduced to him by A1. He stated that in 1990 he had purchased a 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 said that A5 had also helped him to sell that lorry. 49. PW-6 further stated that he had purchased the lorry bearing the 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 to Karur on 20.12.1990, that is, the date of purchase of the lorry and signed the agreement for purchase of the lorry, which was drafted by A5. PW-6 signed the agreement as a witness. PW-6 denied knowledge of what had happened to the lorry after its delivery to A1. PW-6 stated that A1 had paid Rs. 25,000/- on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngi police had seized the lorry. PW-7 gave photocopies of the RC, FC and permit to the police. 55. The 8th Prosecution Witness, S. Kumar (PW-8) stated that he had been doing welding work with the welding machine installed at the workshop of Arokyam of Manapparai. One night in 1990 when PW-8 was doing welding work at the said workshop of Arokyam, Arokyam informed him that he was going out of town. He instructed PW-8 to repair 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 had elapsed. 56. PW-8 stated that A1 had come in the said lorry and claimed to be the driver of the lorry. PW-8, had obviously not known the person who had brought the lorry, as otherwise that person would not have asserted that he was the driver of the lorry. PW-8 however, identified A1. It is incredible that PW-8 should be able to recognize the driver of the lorry as A1 after so many years, when he could not identify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be cross-examined. In cross-examination by the prosecution this witness refuted the suggestions put to him. He denied having made the statements to the police attributed to him. He denied his presence at the place of occurrence and also denied having been examined by the police. Nothing emerged from the cross examination of PW-9 to establish the guilt of the Accused. 63. The 10th Prosecution Witness, M. Abdul Jaffar (PW-10) deposed that he knew A1 and A3 to A6, but did not know A2, A7 and A8. He stated that the prosecution wanted him to be a witness and say something about the death of two persons on the road. This witness was declared hostile and cross-examined by the prosecution. He denied all the 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 11th Prosecution Witness, P. Raju (PW-11) engaged in the business 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 not know how D1 and D2 had died. He, however, knew they had died. He further said that he had not been examined by the police. 65. PW-11 was declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hostile and cross-examined by the Prosecution. He flatly refuted all the suggestions made to him. 69. The 14th Prosecution Witness S. Arokyam Raj (PW-14) deposed that he had been running National Welding Works at Manapparai for the last 20 years. He stated that he had known PW-8 who had worked as a tinker in his workshop. He stated that when he remained out of station, his brother managed the workshop and sometimes his employees also managed the workshop. 70. PW-14 deposed that he had gone to Trichy on 28.12.1990 and came back to Manapparai on 29.12.1990. During his absence his brother and PW-8 had managed the workshop. This witness stated that when he returned to his workshop, he saw the lorry TSL 6579 there. This witness (PW-14) stated that PW-6, who used to bring lorries to his workshop for repairs, had requested him to repair the lorry, which had a small dent in the front left side. The bolts and nuts were loose. The repairs were duly carried out. However, nobody turned up to take the lorry 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 had taken back the lorry, which had been left in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) stated that at the time of the occurrence he had been working as V.A.O. (Village Administrative Officer) of Thirukkokarnam, holding additional charge as V.A.O. Pudukkottai south. On 4.2.1991, when he was returning from the Pudukkottai Taluk office, with his Assistant, Kaliamoorthy, he found the Crime Branch Inspector, Aranthangi and two constables making enquiries about the Accused Abdul Hameed (A3) and the Accused Mohammed Ibrahim (A4) after arresting them in connection with a double murder. He stated that the two Accused were separately making oral statements at around 3.00 p.m. PW-18 said that he and his Assistant signed both the statements. 76. The 19th Prosecution Witness (PW-19) Chitravelu, V.A.O. Athani village, Aranthangi (PW-19) deposed that on 8.2.1991, at around 1.00 p.m. he was going to a hotel along with his Assistant Mariappan. Opposite the Avudayarkoil temple, he saw the Crime Branch Inspector of Aranthangi and some other policemen talking to Sheikh Dawood (A5). A5 told the police that if he were taken to Manapparai, he would show the vehicle. His statement was recorded. PW-19 said that Ex. P7 was the admissible portion of the confessional statement made by A5. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieces of blood stained tar from the road. PW-20 identified the left side mirror of the motor cycle, left side indicator of the motor cycle, white plastic pieces, orange plastic pieces, ball point pen and other similar articles. Nothing has emerged in the evidence of this witness to establish the guilt of the Accused. 78. The 21st Prosecution Witness, Chidambaram (PW-21) stated that at the time of the occurrence he had been VAO, Kummangadu, Aranthangi. One Ramanthan was his Village Assistant. He stated that on 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 and told him that the Inspector wanted him to assist the Inspector to arrest the persons involved in a double murder. He stated that he went to the police station and from there he went to Kattumavadi corner. The police arrested Krishnan (A7) opposite the Plato TV centre. This witness could not, however, identify A7 in the Court. He was handed over the portion of the confessional statement of the Accused Krishnan, marked Ex. P-13 claimed by the Prosecution to be admissible, which he identified. He stated that Krishnan had said that if he were ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er being hit by a heavy vehicle, there were chances of fracture of the jaw bone and of the teeth being broken. 83. PW-22 deposed that injury Nos. 1 and 3 were simple. Injury No. 1 could have been caused if a person fell down on being thrown of a vehicle. PW-22 deposed that injury Nos. 6 to 8 might have caused death. Injury Nos. 9 to 11 might have been caused if a person had been thrown of and had fallen on hard ground. When a person were thrown of the bones in the part of the body which first hit the ground would break. PW-22 said the injuries in the face could have been caused by the rod shown to him, that is, MO-23. 84. Even though, PW-22 in effect opined that, it was possible that the injuries on the face could have been caused if the deceased had been beaten on the face with an iron rod similar to M.O.-23, he also said that some of these injuries (Injury Nos. 1 and 3) were simple. Injuries 4 and 5 could also have been caused if a person had fallen after being thrown of and that there was no impression of the deceased being hit by M.O.-23. The evidence of this witness suggests the likelihood of D2 having been run over by a heavy vehicle, which caused his death. 85. Dr. Murugesan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith violent force. Injury Nos. 5 to 8 could have been caused even if a person were thrown of without much force. 88. From the evidence of this witness, it appears that the injuries found on the body of D1 could have been caused if D1 had been thrown of the motorcycle and landed on hard ground after collision with another vehicle. The injuries could also have been caused if D1 were hit by a rod similar to MO2. The opinion of this witness with regard to the cause of D1's death, is inconclusive. 89. The 24th Prosecution Witness Radhakrishnan (PW-24), who had been working as Motor Vehicle Inspector Grade-I, Palani, Dindigul district, described the damages on the motor cycle on which the deceased were riding. He opined that the damages could have been caused either if the motor cycle had been hit by another vehicle or if the motor cycle had fallen. His evidence is of no help to the Prosecution to establish the guilt of the Accused. 90. The 25th Prosecution Witness, P. Sivakumar a Scientific Assistant Grade-I, Forensic Laboratory, Pudukkottai (PW-25) deposed that he had inspected the place of occurrence and the motor cycle on which the deceased were travelling (MO-1). There were indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and buses. He said the head lights of a bus, lorry and a car were of the same size. The quality of the headlight as also the glass cover of the indicator would depend on the manufacturer. 94. This witness could not say whether the glass pieces at the place of occurrence were from a lorry, bus or car. This witness said the quality of the paint would depend on the company which manufactured the paint. He could not say which company had manufactured the paint collected in this case. He also could not say when a part of the front side of the lorry had been painted black and red. 95. The 26th Prosecution Witness, A. Subramanian (PW-26) only stated that he had taken photographs of two dead bodies. Nothing much has emerged from his examination. 96. The 27th Prosecution Witness, Thiyagarajan (PW-27) also a photographer, stated that he had taken photographs of the lorry at the Aranthangi Police station. His evidence is of no relevance. 97. The 28th Prosecution Witness, P. Sondarajan (PW-28) who was a constable in the Trichy dog squad, stated that on 29.12.1990 he went to Arasarkulam road with the police dog named 'FRUIT'. There were two dead bodies. The dog smelt the blood on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guraj and Kasilingam on one aide and Perumal, Kumar Karuppiah and Rangan on the other. This witness said he knew Sivasubramanian's handwriting and signature. In cross-examination this witness could not say if the complaint was lodged because of the refusal of Perumal and others to vacate disputed land. The evidence of this witness also has no bearing on the incident which took place on 28/29 December, 1990. 101. The 31st Prosecution Witness A. Hamsat (PW-31), a Head Constable of Avudayarkoil Police Station, stated that at the time of occurrence he had been a Grade-II constable at Aranthangi and had taken the dead body of D2 to the Government Hospital for post mortem and brought it back after the post mortem. His evidence is of no relevance to the guilt of the Accused. 102. The 32nd Prosecution Witness R. Sethu (PW-32), who had been Sub-Inspector at Aranthangi police station on 29.12.1990, had registered the complaint lodged by PW-1, on the basis of which Crime No. 668/90 was started. He said that the FIR (Ex. P2) was sent to the Court of the Judicial Magistrate on the same day. His evidence is of no relevance. None of the Accused except the A1 were even named in the FIR. Even s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss pieces, were assembled together and compared with the unbroken yellow glass of the lorry, but the diameter thickness and other physical parameters had not been analysed. He had given his opinion without any physical analysis of the diameter, length, etc. When the 30 broken glass pieces were joined together, the letters DE IN INDIA could be seen. 106. The 36th Prosecution Witness, A. Allimuthu, Inspector of Police (PW-36) had taken up investigation of the case on 3.2.1992. He stated that the Accused had not been arrested till 5.6.1992. He searched them. On 24.6.1992 he had gone to Karaikudi with witnesses Chidambaram (PW-21) and Ramanathan and seized the register of Malar Lodge 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 obtained the handwriting and signatures of Ramasami (A-8) under Mahazar (Ex. P-25). On 24.6.1992, he had examined Chidambaram (PW-21), Ramanathan, Driver Mahalingam and Raju (PW-4) and recorded their statements. On 25.6.1992, he had examined the complainant (PW-1), Nogoor Gani (PW-2) Shanmuga Sundaram (PW-5) and witness Ganapathy and recorded their statements. On 26.6.1992 the seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rently based on conjectural hearsay. No other witness has said anything about disruption of bus service or of any rumour of murder. This witness stated that he had not been examined by the police, whereupon he was declared hostile and cross-examined by the prosecution. In cross-examination he denied having told the police that A8 used to visit the house of A3 with A2 and A7. He denied having made 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 to Karaikudi to purchase lorry spare parts. He denied having told the police, that after they reached Aranthangi, they were joined by A4 and A5. He denied having told the police that they went to Malar Lodge Hotel. He denied 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 a lorry. He denied having made any statement with regard to the Accused arranging a lorry. He categorically denied having made the statements allegedly recorded by police Under Section 161 Code of Criminal Procedure In particular he denied having visited the Malar Lodge Hotel or of having seen or heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red due to an accident. This witness was unable to recollect whether the questions put to him by the prosecution in Court, had been put to him by the police. 114. The 43rd Prosecution Witness, Anbuchelian (PW-43), being the Deputy Superintendent of Police, Oothukottai, 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, A2 and A8 were absconding at that time. A8 obtained anticipatory bail from the Sessions Court at Pudukkottai on 26.2.1991. PW-43 said that on 13.3.1991 he had examined witnesses Mohamed Ali Jinnah, Akbar John, Raju (PW-2), Sahul Hameed (PW-1) and Basheera Begum (PW-3) and recorded their statements. On 14.3.1991 he had examined the witnesses Baskaran (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 of Page 54 of the booking register of Hotel Malar. This witness said that he had compared it with the original. He gave xerox copies of advance receipt No. 5825 dated 21.4.1990 and cash receipt No. 7409 dated 22.6.1990. 115. PW-43 said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others as suspects, PW-43 did not examine them. He said, he did not examine them because, the Inspector who had earlier been in charge of investigation, had examined them. This witness was unable to say when the persons named above were examined by his predecessor. He also could not recollect whether the persons were arrested, without going through all the files. He said that he had started the investigation after reading 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 an Accused on 4.2.1991 as also A4 to A8. 119. The 44th Prosecution Witness Raja, Inspector of Police, Myladudurai (PW-44) said that on 28.12.1990 he had been working as Crime Branch Inspector, Aranthangi. On 28/29.12.1990, Sahul Hameed S/o Mohammed Maideen (PW-1) lodged a complaint at the Police Station. The Officer in Charge of the Police Station received the complaint and registered the case, Crime No. 668/90 Under Section 302 of the Indian Penal Code. The complaint was received before 2.00 a.m. PW-44 said that as the Law and Order Inspector was on leave, PW-44 had taken up the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttai. On 15.1.1991, PW-44 examined post mortem doctors and recorded their statements. 123. PW-44 stated that on 17.1.1991, he came to learn that on 30.10.1990 one Balasundaram S/o Darmalingam had purchased a lorry with the Registration Number TB 9635 from A-1. On 29.1.1991 PW-44 examined Fakrudeen, Marimuthu and recorded their statements. On 2.2.1991, he examined Saathiah and PW-9 Kuppusamy and recorded their statements. 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 Taluk office, Pudukkottai and obtained a confessional statement from him. On the same day at 5.00 p.m., he arrested Md. Ibrahim (A4) and recorded his statement. Thereafter, he went to Aranthangi police station and put the Accused in the lock up by about 10 p.m. 125. PW 44 deposed that on 5.2.1991 both the Accused were sent to Court with the remand report. On 7.2.1991 this witness examined PW-40 C.T. Alagapan and recorded his statement. On 8.2.1991 at 1.30 p.m., PW-44 arrested A-5 Sheikh Dawood in the presence of PW-19 Chitravelu and C. Mariappan and recorded his statement. He identified the admissible portion of the confessional statement whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 told PW-44 that A-1 had told him that the head lamps and side light of the lorry had broken. PW-6 also told PW-44 that A1 had given Rs. 100/- to the workshop for necessary repairs. 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 after two days, paid him Rs. 25,000/- and asked him to sell the lorry with the help of A5 and to adjust the accounts, as there was possibility of his going abroad. PW-44 said that PW-6 told him that he had handed over the amount of Rs. 25,000/- to Mayilsami of Karur (PW-7). PW-44 deposed that PW-6 had told him that the next day PW-6 stayed in the VRS lorry shed and on the following morning he went to Arokyam's workshop where the lorry was kept and enquired whether the repairs had been carried out. The workshop boy told him that the necessary repairs had been carried out. The following day, PW-6 came to the workshop, paid Rs. 75/- towards repair charges and took the lorry away by engaging a driver. PW-44 said that PW-6 had also told him that A5 had asked PW-6 whether A1 had seen PW-6 and settled the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, V. Marimuthu, who told him that on 28.12.1990 he had been returning from Aranthangi in an MPTC bus. At around 11.45 p.m. when the bus was approaching Paravurani Road west of Arsarkulam diversion, he saw that Saathiah who belonged to his village was standing and when the bus crossed the railway gate and was proceeding near the bank of Paapankulam he saw 2 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 workshop for repair of his motor cycle, so he knew him very well. On 28.12.1990 at 6.00 p.m., Jafar Ali (A1) had brought his TVS Suzuki motor cycle bearing 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 asked whether the repairing work had been completed. On being told that the repair would take 2 more days, Jafar Ali (A1) told PW-12 to hand over the vehicle to the person who would come with his letter. On 4.1.1991 one mechanic Kumar came with a letter and on seeing the letter PW-12 handed over the motor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been murdered. He added the offence of Section 120B of Indian Penal Code on 4.2.1991. He said after examining PW-39 Farooq and PW-10 Abdul Jafar he knew that there was a conspiracy behind the murder, which had taken place on 21.6.1990 in the Malar Lodge Hotel at Karaikudi. Significantly both PW-39 and PW-10 denied this and were declared hostile. PW-44 said that when he arrested the Accused and recorded their confessional statement, the Village Administrative Officer and his Assistant concerned signed as witnesses. No signature was obtained from any uninterested and/or independent witness. In the case file PW-44 did not state that no independent witness had come forward to sign the confessional statement. PW-44 said that he had not examined Sethu, the Sub-Inspector of Police. Nor had he asked him why he had straight away registered the case Under Section 302 on the basis of the complaint of the PW-1. PW-44 denied the suggestion that he had conducted the investigation at the dictates of PW-1 and his supporters. 137. The 45th Prosecution Witness, Kalairaj, Inspector of Police (PW-45) said that he had been the Inspector of Police, Crime Branch, Pudukkottai and had received informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and registered the case being Crime Number 668/1990. This witness had not asked Sethu why he had registered the case Under Section 302 Indian Penal Code at the initial stage itself. This witness said he had not examined PW-39 Farooq and PW-10 about the conspiracy. He denied that he had supported PW-1 Sahul Hameed as he belonged to the ruling party and had colluded to implicate A2 to A8 in the offence of conspiracy. He said he had recorded the statements of those witnesses whom he had examined and not those who had been examined earlier. He said he had examined Fathima Beevi and recorded her statement. He said he had not recorded the statements of witnesses who had been examined earlier and re-examined by him. He denied that he had not seen A2 till the chargesheet was fled. He denied that A2 was not in India at the time of the conspiracy. 140. As stated above, no defence witness was examined on behalf of the Accused. All the Accused persons offered themselves for examination Under Section 313 of the Code of Criminal Procedure. They denied their guilt and claimed to be innocent. 141. The Prosecution was required to prove beyond reasonable doubt, that pursuant to a conspiracy betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrhage. It is likely that the impact of collision with a fast-moving vehicle might have flung D1 of the motorcycle on which he was pillion rider, and caused him to fall on hard ground or hit some hard object. He might also have been run over. 148. PW-23 said that one of the injuries which caused instantaneous death may have been inflicted by a rod similar to MO-23, but in his cross examination he stated that the injury/injuries may have been caused as a result of collision between two vehicles. D1 may have incurred the injury/injuries by getting flung of the motor cycle and hitting hard ground or some blunt object, or by getting run over by a vehicle. The opinion of PW-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 oral evidence of the post mortem doctors, we find it unlikely that the deceased were beaten to death with an iron rod. PW-22 was of the opinion D2 fell off the motor cycle after a collision and got run over. The Prosecution has miserably failed to prove that the deceased were beaten to death with a rod. The Prosecution has also not been able to Rule out the possibility of D1 and D2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to Karaikuddi National Battery company for getting its battery charged. Since the battery needed replacement, but a new battery was not in stock, 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 21.6.1990 purchased a lorry with the Registration No TDB 9635 for which A5 had stood guarantor. This lorry was sold some time in October, 1990, about four months after the date of the alleged conspiracy, and in less than two months, on or about 20/21 December, 1990 Lorry No. TSL 6579 was purchased. It is, therefore, evident that A1 used to have a lorry, or at least had one since January 1990 with a short break, possibly for the purpose of his business. It would be preposterous to attribute the purchase of the lorry to the sinister motive of murdering D2. The Prosecution has made no attempt to explain why A1 should have sold the lorry he already had if there we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te attempt to link lorry No. TSL 6579 to the death of D1 and D2. From the evidence of PW-8 read with the evidence of PW-14, the Prosecution has tried to show that A1 brought the lorry for repair early in the morning before 4.00 a.m. on 29.12.1990 suggesting that the lorry had been involved in the incident which took place the previous night, of which of course, there 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 lorry had been hit by a Bull. There is no evidence to suggest that the damage that was found on lorry TSL 6579 could not have been caused by a bull. 160. PWs 11, 12 and 13 were all declared hostile. Nothing has emerged from their cross-examination to link lorry No. TSL 6579 with the 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 others get of from the lorry and go to a tea shop. PW-12 said that he was not in town on the date of the incident. He had gone to Pondicherry to buy a car. He denied having told the police that a Leyland lorry h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TSL 6579. There was never any comparative analysis of the width, volume, quality etc. of the glass and plastic pieces recovered from the place of occurrence with the side light, indicator or headlight covers found on the lorry, as admitted by PW-25. 163. Even assuming for the sake of argument that the lorry TSL 6579 had been brought to the workshop for repair with minor dent and a broken sidelight or lamp and the colour of some broken glass pieces at the scene of occurrence matched the colour of the side light and or indicators of the lorry, that does not prove involvement of the lorry in the same incident. Many lorries have the same kind of lamp/indicator covers. Moreover the lorry was purchased second hand and there is no evidence at all of the condition of the lorry at the time of its delivery to A1. 164. Significantly the accident took place on the night of 28/29.12.1990. The tenor of the evidence suggests that the lorry had been lying 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 the number of the lorry are dated 3.1.1991. PW-35 has in his evidence stated that the vehicle was seized as late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were some differences between D2 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 by the 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 may not be on talking terms. However, to attribute motive to a father to plot the murder of his own son, there would have to be more compelling reasons. The case made out by the Prosecution is speculative and unsubstantiated. 172. In any event, it is not the case of the Prosecution that either A3 or A4 committed the murder, or was even present at the place of occurrence. Furthermore, it is nobody's case that A2, A5, A6, A7 and A8 or any of them had any enmity with D2. 173. To implicate the Accused, the Prosecution has propounded the case of conspiracy hatched by all the Accused at Malar Lodge Hotel on the night of 21.6.1990, to bump of D2, by using a lorry. 174. The Prosecution has miserably failed to prove that there was any conspiracy to kill D2 at the Malar Lodge Hotel, Karaikudi, or anywhere else. Mr. Tulsi's submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asing lorry spare parts. He denied having told the police that he had gone to Malar Lodge Hotel, Karaikudi. He also denied having told the police anything about any conspiracy. He categorically denied having told the police that he and PW-10 had sat in the last row while the others conspired to murder D2. 180. PW-39 denied that A2 and A7 had asked A-1 to arrange for a 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 four months later. 181. PW-39 categorically denied knowledge of conspiracy. He even denied having gone to Karaikudi at the request of A1. 182. Apart from the fact that PW-10 and PW-39 have categorically denied their presence at Karaikudi on 21.6.1990, there are patent inconsistencies in the evidence of PW-44 in this regard. If A3 was present at the Malar Lodge Hotel, Karaikudi at the time of the conspiracy on 21.6.1990, there could be no reason for PW-10 or PW-39 to go to A3's house and tell him about the conspiracy. Nor would A3 advise PW-10 and PW-39 not to divulge the conspiracy to others. 183. Even otherwise, it is inconceivable that the Accused should hatch a conspiracy to commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Hotel, Karaikudi on 21.6.1990, 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 the gap of over six months between the incident and the date on which the alleged meeting took place at the Malar Lodge. 189. It is well settled that under the criminal jurisprudence prevalent in this country an Accused is presumed innocent, unless proved guilty beyond all reasonable doubt. As held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, Certainly, it is a primary principle that the Accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. For conviction on the basis of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should fully be established. The circumstances should be conclusive. The circumstances established should definitely point to the guilt of the Accused, and not be explainable on any other hypothesis. The circumstances should exclude any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are possible, one which points to the guilt of the Accused and the other which is inconsistent with the guilt of the Accused, the latter must be preferred. Reversal of a judgment and order of conviction and acquittal of the Accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the Court might reverse an order of acquittal if the Court finds that no person properly instructed in law could have upon analysis of the evidence on record found the Accused to be 'not guilty'. When there is circumstantial evidence pointing to the guilt of the Accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime. 194. In Sadhu Saran Singh v. State of U.P. 2016 (4) SCC 357, this Court observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the Accused is reinforced, the Appellate Court would interfere with the order of acquittal only when there is perversi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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