Rajasekaran and Others vs State by Inspector of Police

A.S. Venkatachalamoorthy, J.—The accused were charged for various offences, ie.. for committing rape and causing death of ponnuruvi,

etc. In the late night, on 28/29 January. 1999 and were tried by the learned principal Sessions Judge. Cuddalore in Sessions Case No. 175 of

1999. The learned Sessions Judge found that the accused 1 to 5 are guilty under (i) Section 376 (2) (g) IPC, guilty under (ii) Section 201 I.P.C. and [iii] Section 3 (2) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

For the sake of convenience, we refer the Appellants in both the appeals as accused and we adapt them ranking ie. A1, A2, A3, A4 and A5 as given in the trial court.

A1 was also found guilty of an offence u/s 302 IPC. While A2 to A5 were found guilty of an offence u/s 302 read with 34 IPC.

For the offence u/s 302 IPC, as against the first accused and as against A2 to A5 for offence u/s 302 read with 34 IPC. the Sessions Court imposed on them the sentence of hanging till death, subject to confirmation by the High Court.

All the accused have been found guilty u/s 376(2) (g) IPC, and u/s 3 (2) (v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 1989 and sentenced to life imprisonment under each Section.

All the accused have also been found guilty u/s 201 IPC., however no separate sentence has been awarded.

The case of the prosecution, as unfolded by the P. Ws.1 to 20 and Exs.P1 to P44. can be narrated as under:

A1 to A4 are the residents of Ko-adhanur Village and A5 is a resident of Perianargunam. a nearby Village and all of them belong to Hindu Vannia Community. The deceased P Ws.3. 10 and 11 are the daughters of PW2. PW4 is the son of PW2. PWS is a cousin brother of the deceased while PW9 is the uncle of the deceased. The prosecution party belong to Hindu Harijan Community.

About one year prior to the occurrence Viz.. one year before 28/1/1999. A1 developed illicit intimacy with the deceased ponnuruvi. This fact was known to the family members of the deceased Viz., wife of PW2, PW4 and sisters of the deceased ie.P Ws.10 and 11. When PW2 perumal, the father raised objections and warned the deceased in this regard, she left the house and went to the house of her uncle by name Mulayan in the another part of the same village known as Pudu Colony. The first accused, thereafter also went to the house of the said Mulayan to see the deceased. Mulayan, one Srirangan and Gurudevan saw the first accused talking to ponnuruvi in the backyard and questioned the first accused as to why he was doing like that. For that, the first accused replied that he would marry the deceased and format also gave assurance in writing in a piece of paper. In view of that, they allowed the first accused to go. The very next day, the father of the first accused, and 5th accused along with another person came to the uncle of the deceased by name Mulayan and took back the letter that was given on the previous day by the first accused (letter of assurance) and torn it into pieces. This incident was conveyed to PW2, the father of the deceased. Thereafter, Pownammal, the mother of the deceased warned the deceased not to move with the first accused. However, inspite of the same, the deceased continued to move closely with the first accused. Because of this, PW2, his wife and PW4 took the deceased to the house of PW10 Sakunthala at Pondicherry who is the sister of the deceased. The accused 1 and 2 managed to find out the address of PW10 and they went there to meet the deceased. PW4. the brother of the deceased told accused 1 and 2, on their coming to Pondicherry, that since the letter of assurance given by him had been taken back by his father and torn to pieces all cannot be well for both the families. However, the first accused replied that he would marry only the deceased.

The accused 1 and 2 came back to the village and after a couple of days, the deceased also came back to the village Koadhanur from Pondicherry. Even thereaf-ter the deceased and the first accused continued to move closely and the parents of the deceased and others hoping that they would get married soon surely, did not take serious note of it.

PW2 owns two small houses in the village. In one house PW2, his wife and PW4 used to sleep while in the other the deceased and PW3 used to

sleep. The first accused used to come in the night at about 9 pm. on alternate days and lake the deceased ponnaruvi to the motor shed in his land and used to bring her back in the early morning at about 4 O'' clock or so. Few days before the occurrence, when the first accused, as usual came there in the night to take the deceased with him, the deceased told him that since she had become pregnant, the first accused should marry him without any further delay. For that, the first accused replied that it would not be possible for him to marry her immediately and that s(sic) could go in for abortion for which he would meet the expenses. The first accused had also stated that problem would only arise if the child is allowed to

grow. However, PW3, the sister who was there at that time, did not take note of this quarrel between the deceased and the accused seriously. As usual, the first accused took the deceased to his motor shed and brought her back in the early morning.

On 28/1/l999 at about 9.30 pm., the 1st accused came and took the deceased as usual. However, the deceased did not come back in the early morning. PW2 had left to attend a condolence in the early morning of 29/1/1999 and PW4 went to a Mandi at Viruthachalam. On finding that the deceased had not come back, PW3 after finishing the household works went out in search of the deceased. At about Noon time, PW3 met the first accused and questioned him about the whereabouts of the deceased since he took her with him during the last night. For that the first accused replied angrily that she could go to the Nallathangal Temple and find her sitting ''there. PW3 went there and she found the deceased dead tinder a Vanni tree in kneeling position. One end of the saree was around the neck and the other was around the branch of the tree, but however there was no knot. Immediately. PW3 went and informed her her mother and both of them brought a cot from the house and took the deceased in the said cot to their house. They noticed injuries on the right cheek, left hand, chest, thighs and also on the private parts. PW4 came back at about 5 pm on the said day and while PW2 returned at about 6 pm.P Ws.2 and 4 enquired PW3 as to what happened and she narrated what all happened to

them. PW2 thereafter proceeded to meet PW1, the Village Administrative officer at a place called Man-jakollai, which was about 22 kms away from the scene of occurrence. PW2 reached there at about 4.00 am. On 30th January, 1999 and informed the details to PW1. PW1 recorded the statement of PW2 and thereafter PW2 signed the same, Viz., Ex.P1. In the said complaint, PW2 specifically mentioned that he had suspicion in the death of the deceased since she had sustained injuries. Thereafter PW1, PW2 and Thalayari proceeded to the scene village Ko-Adhanur. PW1 saw the body of the deceased and also the Vanni tree where PW3 found the deceased on the previous day. Thereafter PW1 proceeded to the Police station and gave a complaint. The report prepared by PW1 is Ex.P2. PW1 handed over both Exs.P1 and P2 to PW16 Sub-Inspector of Police at about 11.30 a.m.

PW16 registered a case under crime No. 26 of 1999 u/s 174 Crl.P.C.as suspicious death. The printed FIR is Ex.P16. The copies of the same were sent to his superiors. In view of the fact that the crime was registered as suspicious death, the concerned Tahsilder was also informed for the purpose of taking further action. PW17. the then Inspector of Police, on receiving the information took over the investigation on 30.1.1999 and visited the scene village and prepared observation ma-hazar, where the body of the deceased was lying. Ex.P19 is the sketch showing the place where the deceased was first seen under the Vanni tree. The Inspector PW17 conducted inquest between 1.00 p.m. and 4.00 p.m. and Ex.P20 is the inquest report. The body of the deceased was sent by the Inspector of police for post mortem examination.

PW13, Dr. Tamilarasi received the requisition Ex.P4 sent by the Inspector of police to conduct post mortem. PW13 conducted post mortem on 30.1.1999 at about 4.30 p.m. The Doctor found that the conditions of the body then was rigor mortis absent and noted the following injuries.

(1) Ligature mark present over the encircling the neck running obliquely knot mark seen just behind the right ear. There is depression (groove) present over the centre of the ligature edges are ecchymosed (antemortem would) on cut section there is parchment area present just below (underneath the ligature mark) ligature mark.

(2) Multiple abrasion about 1/2 x 1/2 cm present all over right cheek with irregular margin bloodstained. Ants present over the wound.

(3) Multiple abrasion present over the breast (both), chest, abdomen, left shoulder, waist and back in various sizes bloodstained about 1/2 x 1/2 x 1 x 1/4 cm. Ants present over the would abrasion left.

(4) Abrasion in various sizes present over both thighs and pubic areas 1 x 1/2 x 1/2 x 1 cm over brownish. Black areas present over the lower abdomen both the thighs about 10 x 4 cm. in size.

The Doctor further found that the hyoid bone was intact, but however all the internal organs including the uterus congested. Ex.P5 is the post mortem certificate wherein the Doctor has opined that the deceased would appear to have died of asphyxia due to strangulation.

PW17 thereafter examined P Ws.1,2,3,4 and others and recorded their statements. On the basis of the statement given by PW3 on 3.2.1999, PW17 altered the crime as one u/s 306 IPC and sent express reports to the Judicial Magistrate as well as to his superiors. Ex.P21 is the express report prepared by PW17. On the same day i.e. on 3.2.1999 at about 6.00 a.m., PW17 arrested the first accused in the Ko-Adhanur bus stand and sent him for judicial custody. He sent a requisition to the Judicial Magistrate, Virudhachalam viz. Ex.P22 to send the hyoid bone for Chemical examination. On the same day. he also sent another requisition to the Judicial Magistrate viz., Ex.P24 requesting that the parts of the body vaginal hair, sperm be sent for chemical examination. On 19.2.1999. pursuant to the orders of the Superintendent of Police, the case was transferred to the District Crime branch. PW19, the then Inspector of police. District Crime Branch. PW19, the then Inspector of Police, District Crime Branch took over the investigation of Crime No. 26 of 1999 of Kammapuram Police station. On 22.2.1999, at about 11.00 p.m. the Inspector of Police went to the scence of occurrence and Manjakollai village and conducted secret investigation. On the very next day, i.e., on 23.2.1999, he inspected various places between 9.00 a.m. and 4.00 p.m. and also examined the witnesses and recorded their statements. His investigation revealed that the deceased was murdered and hence he altered the crime as one u/s 302 IPC from 306 IPC and sent express reports. Ex.P31 is copy of the same. The copy of the report was sent to the Judicial Magistrate, Virudhacha-lam. PW19 examined the Doctor, PW13.

Again on 24.2.1999, PW19 examined the witnesses. On the basis of information, he arrested the second accused on 24.2.1999 at about 3.00 p.m. in Siruvarappur bus stand in Sethiathoppu-Virudhachalam main road in the presence of PW12 and one Abdul Jabbar. The second accused gave a voluntary statement and the admissible portion of the same is Ex.P32. In the said statement he offered to show the scene of occurrence and also to produce the nylon rope used by the first accused to strangulate the deceased. He also offered to produce the black ribbon of the deceased.

While taking the accused, in Ko-Adhanur bus stand in Virudhachalam road, accused 4 and 5 were arrested at 4.00 p.m. A5 gave a voluntary statement and the admissible portion of the same is Ex.P33. A5 offered to produce the kerchief of the deceased which the deceased was having at the time of commission of the offence. In the presence of witnesses Rajarajan and Abdul Jabbar. second accused produced from the hayrick in the field belonging to PW2, the nylon rope M07. Black ribbon M08. A5 produced M09 kerchief and the same was recovered under mahazar Ex.P34. PW19 also sent a requisition to the Judicial Magistrate for examination of the semen of the accused. On the same day. he enquired the Doctor PW13 showing the nylon rope MO7. The recovered articles were sent to Court under Form 95. Ex.P40 is the Chemical analysis report while Ex.P41 is the Serologist report. Ex.P42 is the opinion received from the Police surgeon. Reader and Head of the Department of Forensic Sciences Department, Tanjore to the effect that the hyoid bone was intact.

Again on 3.3.1999, PW19 went to the scene village Ko-Adhanur and examined the witnesses. On 10.3.1999, the clothes of the deceased went sent for chemical examination. On 12.3.1999, A3 surrendered himself before the Judicial Magistrate and on 19.3.1999. PW19 took steps to send the semen of the said accused for examination. Exs.P9 to P15 were obtained by the Investigating Officer and produced before the Court to show the community to which the deceased and her family members belong. On 14.5.1999, the Doctor was examined again and a statement was recorded. The Doctor answered the questionnaire prepared by the Investigating Officer and the same is marked as Ex.P9. On 16.5.1999. the Deputy Superintendent of Police look over the investigation and on 17.5.1999 submitted her report.

When the accused were questioned u/s 313 of Criminal Procedure Code, they denied having committed anyr offence.

The learned Sessions Judge, after duly considering the materials available on record, came to the conclusion as under:

(a) Accused 1 to 5 are guilty of offence under Sections 376(2)(g) and 201 of IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 1989.

(b) Accused No. 1 is guilty u/s 302 IPC.

(c) Accused2 to 5 are guilty u/s 302 read with 34 IPC.

As already stated, all the accused were sentenced to death to be hanged by their neck untill death of each accused, so far as A1 is concerned for the offence u/s 302 IPC and A2 to A5 are concerned, for the offence u/s 302 read with 34 IPC is concerned. Sentences of rigorous imprisonment were also imposed on the accused in respect of other convictions.

PW13. the Civil Assistant Surgeon. Government Hospital, Virudhachalam. on receipt of requisition Ex.P4 from the Inspector of police, conducted post mortem on the body of the deceased ponnuruvi on 30.1.1999 at about 4.35 p.m. The Doctor notice four injuries of which three were multiple abrasions over various parts of the body. The other injury noted by the Doctor is ligature mark present over the encircling neck running obliquely knot mark seen just behind the right ear. The Doctor also noted depression (groove) present over the centre of the ligature edges are ecchymosed (antemortem wound) on cut section there is parchment area present just below (underneath the ligature mark) ligature mark.

Though the Doctor found that the hyoid bone was intact and no fracture found, the internal organs and litems were congested. The Doctor also noted size 6 to 8 weeks on cut section of uterus gestatinal sac present about 4 to 6 weeks: embryo present over it. The Doctor opined that the deceased would appear to have died of asphyxia due to strangulation. The Doctor further noted that there was a foetus of about two months old baby in the womb of the deceased The Doctor has further opined that in the case of suicidal hanging in almost all the cases there will be fracture of hyoid bone. But there may also be cases of suicidal hanging without fracture of hyoid bone. With regard to ligature mark, the Doctor has opined that the same can be caused by the nylon rope, alleged to have been recovered during investigation. The Doctor is very categorical that the injuries found during post mortem are antemortem in nature and in case of suicidal hanging all the injuries mentioned in Ex.P5 are not possible. According to the Doctor, injuries themselves are indicative of gang rape.

From the medical evidence available on record and also from the fact that if really the deceased committed suicide she would not have sustained those injuries found on the body, this Court can come to the safe conclusion that the deceased was done to death by strangulation. As regards whether it was a case of gang rape, the Doctor has stated that the external injuries are indicative of gang rape. Though the Doctor has stated that the external injuries are indicative of gang rape and that the injuries found in the post mortem certificate were antemortem in nature, in view of the report of the Forensic Sciences Department. Government of Tamil Nadu (Ex.P37) to the effect that the grouping test (of the semen of the accused) is inconclusive, it would not be safe to conclude that there was a gang rape.

The first aspect/issue that has to be considered is. as to whether the accused had motive to do away with the deceased.

The case of the prosecution is that the family of the deceased belong to Adi Dravida Community, while the accused belong to Vannia Community. The deceased and the first accused fell in love and had been moving very closely for more than a year prior to the occurrence. Though PW2. the father of the deceased and other family members took exception for the deceased moving closely with the first accused, since the first accused assured the members of the family of the deceased that he would certainly marry the deceased, they allowed the deceased and the first accused to move closely. This aspect of the matter has been spoken to by P Ws.2,3 and 4.P Ws.2 to 4 have spoken to the effect that the first accused used to take the deceased in alternate days at about 9 p.m. and bring her back on the next day morning at about 4 or 5 O'clock. PW3. the sister of the deceased has spoken to the effect that the family owns two houses and in one house, the father (PW2), mother and brother (PW4) used to sleep while in the adjoining house, the deceased and PW3 would stay during night. According to PW3, two days prior to the occurrence, when the first accused came there to take the deceased, that was in the night time, the deceased told the first accused that she had become pregnant (3 months pregnancy) and that the marriage has to be celebrated soon, as otherwise, her position would be very embarrassing and for which the first accused replied that it would not be possible to marry her soon and that she could go in for abortion. On this issue, according to PW3., there was a quarrel between them, but she did not take it seriously.

Now. the case of the prosecution is that since the first accused thought that marrying the deceased would in a way be a hindrance for him in getting job in the Police Department, in respect of which he had already appeared for the interview and that further he also thought that the deceased would be a nuisance to him, he decided to avoid her. Though this part of the story is not mentioned in the FIR.,PW3 had mentioned about this quarrel between the deceased and the first accused even on the first occasion, when she was examined by the police. Hence, so far as A1 is concerned, it can be taken that he had motive to do away with the deceased.

As far as the other accused are concerned. A2 to A4 belong to the same village and A5 belong to perianargunam village which is about 10 kms, away from ko-adhanur. A2 to A4 are friends of A1. A3 is the son of A1''s paternal uncle and A5 is the brother of A1''s mother. It is the case of the prosecution that A1 conveyed his difficulties in marrying the deceased to A2 to A5 who belong to the community of A1 and whereupon they agreed to help him to do away with the deceased.

This is ease of circumstantial evidence. In such cases, the Supreme Court has laid down in various Rulings as to what is the nature and extent of burden of proof on the prosecution and the strict safeguards to be taken by Court in dealing with those cases. We would like to refer to few Rulings in this context.

One of the leading decision on this point is, reported in Hanumant Vs. The State of Madhya Pradesh, , wherein, the Apex Court has ruled thus:

In dealing with circumstantial evidence, there is always the danger that conjecture of suspicion may take the place of legal proof. It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

Mahajan J. as he then was. has also aptly referred to a passage containing warning addressed by Baron Alderson to the jury in Reg v. Hodge

(1832) 2 Lew 227 which is stated as under:

The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be. to force them to form parts of one connected whole: and the more ingenious the mind of the individual, the more likely was it. considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.

In Dharm Das Wadhwani Vs. The State of Uttar Pradesh, . the Supreme Court has held thus:

unlike direct evidence the indirect light circumstance may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.

In Kishore Chand Vs. State of Himachal Pradesh, the Apex Court pointed out the question of proof necessary in a case of circumstantial evidence and what are the cautions to be taken by Court in dealing with such matters. In para Nos. 4 to 6. the Supreme Court has observed as follows:

The question, there, is whether the prosecution proved quilt of the Appellant beyond all reasonable doubt. In a case of circumstantial evidence, all the circumstances from which the conclusion of the quilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the quilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing to wards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to be accused beyond all reasonable

doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances of some of them can be explained by any of the reasonable hypothesis the accused must have the benefit of that hypothesis.

In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words, when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnised by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent With the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.

In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not.

Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show what within all probability the act must have been done by the accused and the accused alone. In the decision reported in Jaharlal Das Vs. State of Orissa, , the Supreme Court ruled that to rest a conviction on circumstantial evidence, it was to satisfy three conditions. The Supreme Court rules thus:

As already mentioned this cases rests purely on circumstantial evidence. It is well settled that thie circumstantial evidence in order to sustain the conviction must satisfy three conditions; [1] the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established: [2] those circumstances, should be of a definite tendency unerringly pointing towards the guilt of the accused: [iii] the circumstances taken cumulatively, should form a chain so completes that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

It may not be necessary to refer to other decision of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do-not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Bearing these principles in mind we shall now consider the reasoning of the courts below in coming to the conclusion that the accused alone has committed the offence.

In the decision reported in 1994 I LW.(Cri.) 186 (Varkey Joseph v. State of Kerala, rep, by the Circle Inspector of police, Puthencruzm, Kerala), the Supreme Court laid stress on the fact that mere suspicion cannot be a substitute for proof and observed thus:

Suspicion is not the substitute for proof. There is a long distance between may be true'' and "must be true" and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the Appellant let alone beyond all reasonable doubt that the Appellant and he alone committed offence.

In the decision reported in Balwinder Singh Vs. State of Punjab, , the Supreme Court has pointed out that the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations. To quote the exact wordings from the Judgment:

In a case based on circumstantial evidence, it is now well settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be. to take the place of proof. It is in the context of the above settled principles, that we skill analyse the evidence led by the prosecution.

From the above Rulings, the following would emerge.

[i] In a case of circumstantial evidence, all the circumstances from which conclusion of guilt is to be drawn must be fully established.

[ii] All the facts so established should be consistent only with the hypothesis of the guilt of the accused.

[iii] The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused.

[iv] The circumstances must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond all reasonable doubt.

[v] The cumulative effect of the proved circumstances must from unbroken chain of events leading to the proof of the guilt of the accused.

[vi] In assessing the evidence, imaginary possibilities have no role to play and the chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused.

[vii] The Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be. to take the place of proof.

The circumstances/chain of events on which the prosecution would place reliance can be enumerated as under:

[i] The deceased was taken by the first accused on 28/01/1099 at about9 .p.m., ie., the deceased was last seen in the company of the first accused.

[ii] The conduct of the first accused on the next day ie., on 29/1/1999 at about Noon, when PW3 questioned him about the whereabouts of the deceased and the reply by the first accused in an indifferent and angry manner that PW3 could see her sitting in the Nallathangal Temple.

[iii] The recovery of Material objects 7. 8 and 9.

[iv] The admission of the first accused during questioning u/s 313 Code of Criminal Procedure that he used to take the deceased during nights.

As far as the first circumstance is concerned ie., the deceased was taken on 28/1/1999 at about 9 pm. by the accused, it is the case of the prosecution that P Ws.2 and 3 have spoken to that effect.

As far as PW2 is concerned, learned Counsel for the accused submitted that PW2 had not deposed even before Court that on the previous

day. that was on 28/1/1999. when the deceased left with the accused. PW2 was present or aware of it. In this context, learned Counsel for the accused referred to the deposition of PW2. wherein he had stated thus in Tamil:

Learned Counsel for the accused also referred to the deposition of PW3 wherein she has stated in the course of Chief Examination as under:

Referring to the above said deposition of P Ws.2 and 3. learned Counsel for the accused submitted that it is clear that PW2. who was. even according to the prosecution, in the other house during that night, would not have seen the 1st accused coming and taking the deceased and as otherwise, there was no necessity for PW3 to tell him about the accused coming and taking the deceased. In any event, learned Counsel for the accused submitted that inasmuch as the testimony of PW2 (quoted supra ) is not clear enough to the effect that he was present when the first accused came and took the deceased. PW2 cannot be taken as a person who saw the deceased last in the company of the accused. We find force in this submission and consequently, we hold that PW2 did not see the deceased in the company of the first accused on 28/1/1999 at about 9.pm. When according to the prosecution, the first accused took the deceased away.

The next question is as to whether from the evidence of PW3. can it be taken that the prosecution has established that on 28/1/1999. the first accused came to the house of PW2 where PW3 and the deceased were there and took the deceased away with him. Or in other words, whether the deceased went away from the home along with the first accused at about 9 pm. on 28.1.1999 and PW3 was present then?

According to the PW3. the first accused came in the night of 28/1/1999 i.e., at about 9 p.m.. and took the deceased with him. Both the father and brother of the deceased viz., P. Ws.2 and 4 who were in their house left the house in the early morning of 29/1/1999 to attend a condolence and for some agricultural work respectively. PW4 returned at about 5 p.m., on 29/1/1999 while PW2 returned at about 6 pm To them. PW3 narrated what had happened. Thereafter. PW2. the father proceeded to see PW1. the Village Administrative officer at Manjakollai. travelling a distance of 22kms. and gave a complaint to PW1 at about 4 am. on 30/1/1999. Thereafter, the Village Administrative officer came to the scene village along with PW2 and Talayari and saw the body of the deceased. PW3 also narrated to PW1. the Village Administrative Officer what had happened and thereafter PW1 went to kammapuram police Station, and handed over the complaint of PW2 viz., Ex.P1 along with the report prepared by him ie., Ex.P2 at about 11.30 am. to the Sub Inspector A case of suspicious death was registered by PW16. the Sub Inspector of police u/s 174 of Code of Criminal Procedure in Cr. No. 26/99 on the file of the Kammapuram police Station.

Learned Counsel for the accused pointed out the following aspects in the case of the prosecution and contended that the claim of PW3 that she was present when the deceased left the house along with the 1st accused at about 9 pm. On 28.1.1999 cannot be true for the following reasons.

Firstly, he contended that according to PW3. as the deceased did not return on 29/1/1999. she left the house in search of the deceased and at about 12 noon she met the accused and asked him the whereabouts of the deceased and for which the first accused replied that the deceased would be sitting in the Nallathangal Temple.

Learned Counsel for the accused contended that admittedly the said Temple is very close at about a furlong or so. But nevertheless, it is strange as to why PW3 did not go there immediately to see the deceased. On this, the learned Counsel for the accused contended that the conduct of PW3 is not natural and normal and she, who was worrying as her sister did not come back and went all the way in search of her for more than a couple of hours right from 10 am. should certainly have proceeded to the said Temple to see her.

Learned Counsel for the accused next contended that according to PW3, after noticing that her sister was lying dead in a kneeling posture, she came back, informed her mother and another lady, took a cot from the house and brought back the deceased from the place where she was lying

dead. PW3 in her chief examination has clearly stated that when her father and brother viz., P. Ws.2 and 4 respectively enquired PW3 on their return, as to what happened, she informed them about the fact that in the night on the previous day. the first accused took the deceased so also narrated all that happened. PW3, in her cross examination has stated that since her sister did not come back in the early hours of 29/1/1999, she suspected only the first accused even in the morning of 29th January.

If thiat is so, according to the learned Counsel. PW2 should have certainly narrated everything to PW2 who was there virtually for few hours in the evening of 29/l/1999by the side of the deceased and P.W.2 in true would have mentioned about the same to the V.A.O.P.W1. Here in this case, PW2 had complained to PW1 that he was suspecting some foul play in the death of the deceased and those are all the only contents and substance of Ex.P1. According to the learned Counsel for the accused, the prosecution has not explained or accounted for this in any manner.

Another circumstance pointed out by the learned Counsel for the accused is that according to PW3, the Village Administrative Officer (PW1) came on the next day ie., in the morning of 30/1/1999 and to whom she narrated all that happened. On this, it is argued that if really the first accused had taken the deceased in the night of 28/1/1999 and that on 29th morning itself PW3 rather suspected the first accused and went in search of the deceased (as claimed in evidence by PW3), she would have certainly told these important details to PW1.

The evidence of PW1 does not show that PW3 narrated those details. Similarly, in the report Ex.P2 prepared by PW1, there is no whisper about the same. According to the learned Counsel, this completely falsifies the version of PW3.

According to PW17, the Inspector of police, he on 3/2/1999. recorded the statement of parimala (PW3) and thereafter altered the crime into one u/s 306 IPC and sent Express Report. Whereas. PW3 has categorically stated that she was not examined by the police on 3/2/1999 in her cross-examination.

Learned Counsel for the accused next contended that the case of the prosecution as per the version of PW3 is that the deceased was taken by the accused in the night of 28/1/1999. Whereas in the complaint (ie.,Ex. Pl) given by PW2 to PW1 is to the effect that the deceased was missing from 4 am. on 29/1/1999.

Ex.P-1 reads thus:

If that is so, is it to be taken that the deceased was brought back by the deceased on 29/1/1999 in the early morning and thereafter, she was not

seen. As far as this aspect is concerned, as rightly pointed out by the learned Counsel for the accused, there is no explanation forthcoming from the prosecution.

Learned Counsel for the accused pointed out two circumstances, which, according to him, would show that PW3 ia a person, who has no regard for truth.

Firstly, he submitted that according to PW3, she met the accused at 12 Noon on 29/1/1999 and asked him of the whereabouts of the deceased, for which the accused replied angrily asking PW3 to go and see her in the Nallathangal Temple. According to the learned Counsel, this is a very important event and certainly, PW3, if that was true, would have told her parents or atleast to the Investigating Officer about the same..

Admittedly, she did not say so, at the time of investigation and only long after, ie., after a period of three weeks or so, she comes out with the story and it is a clear case of the prosecution case by uttering falsehood.

Secondly, learned Counsel for the accused submitted that for the first time. PW3 came forward with the case that A1. who was earlier going alone for the purpose of taking bath etc.. after the quarrel with the deceased which was two days prior to the occurrence, started moving with A2 to A5.

In other words, he was seen in the company of A2 to A5. To this effect, PW3 did not speak out earlier and that only for the first time, she stated so in the deposition before the Sessions Court.

We find substance in the above submissions made by the learned Counsel for the accused and the cumulative effect of the same in our considered view, is that it would be totally unsafe to act on the testimony of PW3. We hold that it would be very unsafe to accept the claim of PW3 that on 28.l.1999 at about 9 pm. first accused came to the house of PW2 and took the deceased and that PW3 was present at that time.

The next circumstance relied on by the prosecution is with regard to the conduct of the accused. According to PW3. finding that the deceased did not come back to home on 29.1.1999 in the early hours, she started searching for her sister viz.. the deceased and at about 12.00 noon she questioned the first accused in this regard for which he replied that PW3 could go and see the deceased sitting in Nallathangal temple. From this, the prosecution would contend that the first accused knew as to what had happened and that was the reason why there was no reaction in him even after hearing from PW3 that the deceased had not come back to home or rather it would only suggest the complicity of the 1st accused in the murder.

The learned public prosecutor submitted that this part of the prosecution case has been spoken to by,PW3. Learned Counsel for the accused contended that PW3 would claim that on 29.1.1999, in the evening, when both P Ws.2 and 4 returned home, she narrated what all happened. So also it is her case that when PW1 came on 30th morning, she informed him about the details. But however, in Ex.P1 or in Ex.P2, PW3 meeting the first accused at 12 noon on 29.1.1999 does not find a place. The learned Counsel further submitted that even when she was examined by the police, she did not reveal it. Only after a period of three weeks when she was examined by PW19, on 22.2.1999 she mentioned the same for the first time. That apart, this was also not disclosed by either PW1 or P Ws.2 and 4 during the investigation. That being so, according to the learned Counsel for the accused, this part of the prosecution case is purely an after thought and has been introduced to deliberately rope in the first accused.

We find force in the submission made by the learned Counsel for the first accused. If really the first accused told PW3 on 29.1.1999 at 12 Noon as claimed, certainly PW3 would have not only informed P Ws.2 and 4 but also to PW1. Further more, when she was examined by the police on 30.1.1999 and again on 3.2.1999. she would have revealed the same. She. not having mentioned this important aspect viz., the conduct of the accused at the earliest opportunity, it would not be safe to accept this part of the prosecution case.

The next circumstance pointed out by the prosecution is regarding recovery of Mos. 7 to 9 Viz., Nylon rope, black ribbon and handkerchief.

According to the prosecution, second accused was arrested at about 3.00 p.m. near Siruvarappur bus stand in Sethiathoppu Virudhachalam main road on 24.2.1999. He gave a confessional statement and the admissible portion of which is marked as Ex.P32. It is claimed that pursuant to that, second accused took them to the spot where the deceased was murdered and also took out the said M. Os.7 and 8 which were hidden by him.

The same were recovered under mahazar Ex.P34. PW12 Rajarajan and one Abdul Jabbar were present at that time and they attested the mahazar.

Accused 4 and 5 were arrested on the same day at about 4.00 p.m. in Ko-Adhanur bus stand in virudhachalam road. 4th accused gave a voluntary statement and the admissible portion of which is marked as Ex.P.33, wherein he has stated that if he is taken to the scene of occurrence, he will show the place where the deceased was murdered and take out the hidden handkerchief. The accused was taken to the scene of occurrence and he took out the handkerchief from the place where he had kept it. This was also recovered under mahazar Ex.P34 along with other two material objects.

The learned Counsel appearing for the accused contended that first of all the voluntary statement of the accused 2 and 4 and recovery of the material objects are not proved to the satisfaction of the Court and only one out of the two mahazar witnesses was examined as PW12. who has deposed that he was not aware as to what are all the articles produced by the accused and he did not notice the articles. It is also contended that even assuming that the recovery of material objects are proved, the same cannot be used against the other accused viz., accused 1,3 and 5.

We are satisfied that the learned Counsel for the accused has made out a point. The material objects 7 to 9 were recovered only pursuant to the confession statements made by the accused 2 and 4 and that too nearly after four weeks from the date of occurrence. Those articles are not blood stained. PW12 has deposed vaguely and the same would not be sufficient to accept the case of the prosecution about the seizure of M Os.7 to 9. Even assuming that those articles were recovered pursuant to the statements of accused 2 and 4. they can be pressed into service only as against accused 2 and 4. The prosecution has not satisfactorily proved the recovery of M Os.7 to 9.

Learned public prosecutor pointed out one more circumstance by referring to question No. 13 put to the first accused during 313 Code of Criminal Procedure examination, which reads thus.

From this, learned public prosecutor wants this Court to accept the prosecution case that the first accused used to take the deceased ponnuruvi at 9.00 p.m. every night and bring her back on the next day morning and on 28.1.1999 also he took her and the deceased did not come back on the next day.

First of all it has to be noticed that the question put to the deceased is not to the effect that on 28.1.1999 the deceased was taken by the accused in the night. This part of the prosecution case has been spoken to only by PW3. Question No. 10 put to the first accused is relevant and we quote the question and the answer elicited from the first accused, as under,

From the above discussion, we come to the conclusion that nothing turns in favour of the prosecution from question No. 13 put to first accused during Section 313 Code of Criminal Procedure examination.

The learned Counsel for the accused would claim that conduct of PW2 was quite abnormal and the same throws a serious doubt on the case of the prosecution.

Learned Counsel for the accused then pointed out that according to PW2, he came back to the village on 29/1/1999 at about 6 p.m., and thereafter went to see PW1, travelling 22 kms, to reach Manjakollai via kammapuram police station, which is just in the midway and that he gave the complaint at about 4 am. On 30/1/1999 and that PW1 came to the village with PW2 and Talayari and thereafter, he went to the police station and handed over the complaint Ex.P1 along with the report. According to him, this part of the prosecution case is not believable for the following reasons.

(a) PW2 who was very much aware even then that the matter has to be reported to the police, would have straight away gone to the police station and given a complaint there, in this context, the learned Counsel for the accused point out the last sentence in Ex.P1. wherein it is written that PW2 requested PW1 to inform the police to take action.

(b) PW2, in fact, went only via the kammapuram police station and he would not have gone to the village Administrative Officer (PW1) to give the complaint.

(c) There is no necessity for the village Administrative Officer to come to the village without giving a complaint to the police since he reached the village only via Kammapuram Police Station.

We accept this contention.

We having come to the conclusion that the four circumstances pointed out and as discussed above had not been proved, we hold that the prosecution has not made out a case against the first accused.

As far as accused 2 to 5 are concerned, they have been convicted u/s 302 read with 34 IPC. The circumstances pointed out against them are,

(1) PW2 on 29.1.1999 at about 3.00 a.m. came out of his house to pass urine and at that time he saw the accused 2 to 5 in the street and when questioned, they answered in a hasty manner; (2) According to PW3, A2 to A5 were seen in the company of A1 for about two days prior to the date of occurrence: (3) Recovery of M Os.7 to 9 pursuant to the confession statement of A2 and A4.

As far as the first circumstance is concerned that PW2 on 29.1.1999 night at about 3.00 O'Clock. Went out of his house to answer the calls of nature and at that time he saw A2 to A5 in the stress and when he questioned them, they answered in a perturbed manner, it has to be pointed out that admittedly A1 was not there in their company at that time. Secondly, as far as the claim of PW2 that he woke up at 3.00 a.m. and went out to answer the calls of nature is concerned, we find it difficult to accept as that was only by chance and it is not as if he used to get up at or about that time every day (3 am.) to answer the calls of nature and further that it is far away from the scene of occurrence. Hence this cannot be said to be a circumstance, relevant for consideration in this case. Even if true, nothing turns on that and certainly it cannot be one of the circumstances which would point towards the complicity of these accused in the crime.

Secondly, as far as the evidence of PW3 that all the accused were moving together since two days prior to the occurrence, it has to be noted that in her cross-examination, she has categorically admitted that she has spoken to that effect only for the first time before the Court i.e. nearly one and half year after the occurrence. This is also certainly not a circumstance which will connect the accused 2 to 5 with the crime.

Thirdly, as far as the recovers of material objects are concerned, as stated earlier.M Os.7 to 9 were recovered pursuant to the statements given by A2 and A4. The recovery was nearly after four weeks from the date of occurrence. These articles were not blood stained, with regard to the seizure only, PW12 was examined as mahazar witness. The other witness viz., Abdul Jabbar was not examined by the prosecution. Even the evidence of PW12 as pointed out earlier, does not support the case of the prosecution. PW12 has stated that he is not aware as to what were the articles recovered from A2 and A4. That apart, even assuming that prosecution has proved the recover, of DOS. 7 to 9. alleged to have been used for murdering the deceased, the same cannot be used as against A3 and A5. In this view of the matter we are of the View that the prosecution has not made out the case as against A2 to A5 also.

The prosecution pointed out some circumstances to prove the guilt of the accused.

Some circumstances though found to be relevant, we have held that the same have not been established/proved. The remaining circumstances we have opined as not relevant. Even if we proceed on the assumption that the prosecution has succeeded in proving the motive, it would not further its case in the absence of proof of any other circumstance pointed to the guilt of the accused. Hence, we deem that circumstance need not be detailed and discussed. In this context, we would like to refer to the ruling of the Supreme Court in Surinder Kumar v. State of Punjab (AIR 1999 SC 215), wherein the Court ruled as under:

That brings us to the other circumstance: the Appellant had a motive to commit the murder. Even if we proceed on the assumption that the prosecution has succeeded in proving the same, it would not further its case- in the absence of proof of any other circumstance pointed to the guilt of the Appellant. The evidence adduced by the prosecution in support of the motive, therefore, need not be detailed and discussed.

From the above findings/conclusions arrived at by us as above, it would necessarily follow that accused 1 to 5 are not guilty under Sections 376 (2) (v) of the Scheduled Caste and Scheduled Tribes (prevention of Atrocities Act. and accused No. 1 is not guilty u/s 302 IPC. and further A-2 to A-5 are not guiltv u/s 302 read with 34 IPC.

In the result, we hold that the prosecution has not established the case beyond all reasonable doubts and consequently all the accused are acquitted of all the charges. Both the above appeals are allowed and we set aside the conviction and sentence imposed on all the accused by the learned Session Judge. Cuddalore. The reference is answered accordingly. The accused shall be set at liberty forthwith.