Sundar vs State

The appellant was accused in S.C.No.43 of 1984 on the file of Court of Session, Dharmapuri Division, Krishnagiri. He was found guilty under Sections 302, 201 and 381 of the Indian Penal Code, convicted thereunder and sentenced to death u/s 302 I.P.C. subject to confirmation by this Court, however, without imposition of any separate sentence for offences under Sections 201 and 381 I.P.C, in view of such maximum sentence imposed.

The Reference so made for confirmation of death sentence had been taken on file by this Court. Aggrieved by the conviction and sentence, the accused also filed independently an appeal, which had also been taken on file. That is how both the Reference and the Appeal came up for disposal before us today.

Brief facts are:

(a) There is a Post Office going by the name of Krishnagiri Reservoir Project Dam Post Office " (for short K.R.P. Dam Post Office.)" One A.Raminam was the men Sub Post Master attached to the said Post Office. There is also another Post Office at Kaveripattinam. One I.Rathinam, (since deceased) was the Sub Post Master attached to Kaveripattinam Sub Post Office. A.Rathinam, the Sub K.R.P. Dam Post Office went on leave for four days from 14.3.1984. Leave had been sanctioned to him under Exhibit P.3. In the leave vacancy D.Rathinam, the deceased had been posted to officiate as the Sub Post Master in the said Post Office under Exhibit P.4. Exhibit P.4 is the relieving order of D.Rathinam from Kaveripattinam Sub Post Office. The said D.Rathinam took charge as the Sub Post Master of K.R.P. Dam Post Office on 13.3.84. Exhibit P.6 is the proceedings, evidencing his taking charge of the said Post Office.

(b) P.W.2 was functioning as the extra departmental delivery agent in K.R.P. Dam Sub Post Office. Likewise P.W.4 was functioning there as extra departmental packer. One Shivaji Rao who was also functioning there as a permanent extra departmental mail carrier is none else than the father of the accused. He initially went on leave between 20-2-1984 and 29-2-1984. In the said vacancy, his son-the accused had been temporarily appointed as an extra departmental mail carrier under Exhibit P.7 order. The said Shivaji Rao also extended his leave for a further period of one month, commencing from 1.3.1984 till upto 31.3.1984. The accused was again appointed to continue as extra departmental mail carrier under Exhibit P. 8 order in the said leave vacancy. -

(c) There is also a Sub-Post Office at Sundekuppam, situate nearby to K.R.P. Dam Post Office. P.W.8 was then functioning as extra department Sub Post Master in the said Post Office. The duty of the extra departmental mail carrier like Shivaji Rao or his son, the accused was to carry the mail bag from K.R.P. Dam Post Office to Sundekuppam Post Office and vice versa. Normally the carrying operation would commence in the morning at about 9.30 A.M. and get terminated in the evening at about 3.30 P.M. every day. On 16.3.1984 the official work at K.R.P. Dam Post Office commenced as usual and the in-charge Sub Post Master, viz., the deceased D.Rathinam attended Office to transact official business. The accused, P.W.2 and P.W.4 also attended office. The accused, it is said, carried the mailbag from K.R.P. Dam Post Office commenced as usual and the incharge Sub Post Master, viz., the deceased D.Rathinam attended Office to transact official business. The accused, P.W.2 and P.W.4 also attended office. The accused, it is said, carried the mail bag from K.R.P. Dam Post Office to Sundekuppam Post Office in the morning of 16.3.84 and returned unusually to K.R.P. Dam Post Office even at noon instead of returning to the Post Office at 3.30 P.M. as usual. He appeared to have returned to K.R.P. Dam Post Office be of some help to the deceased during lunch recess inasmuch as he was a handicapped person, suffering from para plegia and he used to wear a special type of shoes M.O.I series for walking. Without the same, it is said, he could not walk at all.

(d) The official work after lunch recess in the Post Office would commence at about 1.30 P.M. During lunch hour neither P.W.2 nor P.W.4 was available in the Post Office. The deceased and the accused alone were stated to be present in the Post Office. Their presence inside the Post Office had been noticed not only by P.W.2, who returned to the Post Office for handing over the undelivered mail items to the Post Master, but also by P.W.9, who happened to go over to the said Post Office for the purpose of writing a letter.

(e) There is a grocery shop situate adjacent to the said Post Office at a distance of 20 feet owned by P.W.3 At 1.30 P.M. on 16.3.1984, P.W.3 saw the accused emerging out of the Post Office with M.O. 13 yellow bag in his hand. She appeared to have questioned the accused as to why the Post Office did not commence business after lunch recess. The accused appeared to have replied, holiday had been declared for the said Post Office. The accused was stated to have deposited M.O. 13 Yellow bag with one Pattu, a cycle shop owner. At that time, P.W.7 was said to have been present there. The P.W.4 came to the Post Officer after lunch recess. He found the outer door of the Post Office locked. He came to know from P.W.3 that the accused told her that holiday had been declared to the Post Office after lunch recess.

(f) P.W.I was the then Sub Divisional Postal Inspector. At about 4.30 P.M. on 16.3.1984 he came to know from P.W.4 that K.R.P. Dam Post Office remained locked without any function. On receipt of such a message he personally went and reached the Post Office at 6 P.M. He found the outer door of the Post Office locked and the incharge K.R.P. Dam Sub Post Master D.Rathinam was not traceable. Thereafter, he informed P.W.6 the Deputy Superintendent of Post Offices over phone as respects what he had found at K.R.P. Dam Post Office. P.W.6, in turn, then instructed P.W.I to make necessary arrangements to safeguard K.R.P. Dam Post Office. Accordingly, he also made necessary safeguards for the protection of the property of the said Post Office.

(g) On the morning of the next day, viz., 17.3.1984, P.W.I went to the K.R.P. Dam Post Office broke open the lock in the presence of Village Administrative Officer and other Office personnel. Exhibit P.1 is the inventory for breaking open the lock of the said Post Office. He then took an inventory under Exhibit P.2, the cash, postal stamps, postal orders and cash certificates. The cash, postal stamps, postal orders and cash certificates to the tune of Rs. 850.55 were found missing. He was also able to trace M.O.1 series shoes of the deceased kept inside the drawer of his table. Since the deceased could not walk without such a special type of M.O. 1 series shoes, suspicion grew as to some untoward incident having happened to his life. Consequently, a search was made of the premises. One overseer by name Radhakrishnan in the process of search was able to find out the fingers of the legs of a human being inside the septic tank situate in the backward of the said Post Office. The concrete slab covering the septic tank had been removed and the body of the deceased was found inside the septic tank.

(h) One Venkateswaran was then incharge of out post Police Station, K.R.P. Dam. P.W.I rushed to the said out post Police Station at 1.30 P.M. and gave Exhibit P.9 complaint. The said Sub Inspector made an entry in the G.D. and then proceeded to Taluk Police Station, Krishnagiri and registered the case in Crime No. 142/84 under Sections 302 and 380 I.P.C. He prepared express reports and sent the same to the concerned officials. Exhibit P.26 is the express First Information Report.

(i) P. W. 12 was the then Inspector of Police. At 3.30 P.M. he received an express copy of the First Information Report and immediately thereafter, he took up further investigation in the case. He rushed and reached the scene at 3.50 P.M. At 4 P.M. he inspected the scene and prepared the observation mahazar Exhibit P. 19. He drew a rough sketch Exhibit P.27 of the scene. He caused photographs to be taken of the scene of occurrence, as well as the corpse. M.O.30 series are the negatives and M.O. 31 series are the photo copies. At 4.30 P.M. he seized M.O.2 Postal canvass bag, M.O.3 rexin bag, M.O.4 iron red, M.O.4 tiffin box, M.O.6 plastic hat, M.O.7 Polyester shirt, M.O.8 Pant, M.O.9 iron window M.O. 10 a torn piece of dhoti and M.O. 11 blood stained lungi under Exhibit P. 18 Mahazar. At 5.00 P.M. he seized M.O.I series, pair of special shoes from the drawer of the table of the Post Master under Exhibit P. 17. Exhibits P. 17 to P. 19 were attested by P.W.6. Between 4.00 and 8.00 P.M. he held inquest over the body of the deceased. During inquest, he examined P.Ws. 1,3,6 and others. Exhibit P.28 is the inquest report.

(j) After the inquest was over, P.W.12 handed over the body of the deceased to constable P.W.11 along with Exhibit P. 15 requisition for the purpose of autopsy. He then examined P.Ws. 4, 9 and others.

(k) P.W.5 was the then Assistant Surgeon, Government Hospital, Krishnagiri. On receipt of Exhibit P. 15 requisition, he held autopsy over the body of the deceased at 11.30 A.M. Exhibit P. 16 is the post mortem certificate he issued. He would opine that the deceased would appear to have died due to asphyxia and injury to the vital organs (brain stem injury). He would further opine that the deceased would have died 46 to 50 hours prior to autopsy. After the autopsy was over, P.W.11 seized from the body of the deceased M.O. 29 underwear under form No. 95 and handed over the same at the Police Station.

On 18.3.1984 at 5.00 A.M. P.W.12 arrested the accused near the river situate adjacent to Kaveripattinam Travellers'' Bungalow in the presence of P.W.8 On interrogation the accused gave a voluntary confession u/s 27 of the Evidence Act, the admissible portion of which is Exhibit P.20. At 6.00 A.M. at the instance of the accused M.O.28 shirt, kept concealed in the river bed, had been seized under Exhibit P.21 mahazar. Exhibits P.20 and P.21 were attested by P.W.8. P.W.12 then recovered M.O. 12 key bunch from the post box kept in front of a textile shop of Lathiff at the instance of the accused under Exhibit P. 11 mahazar. Exhibit P. 11 has been attested by P.Ws. 1 and 7. At 7.00 A.M. P.W.12 recovered M.O. 12 Yellow bag from the cycle shop of one Pattu at the instance of the accused. Inside M.O. 13 yellow bag, M.O.14 series Air Mail letters (13 in number), M.O. 14 series Postal cover (28 in number), M.O.16 series reply card (71 in number), M.O. 17 series Inland letter (257 in number), M.O. 18 series post card (14 in number), M.O. 19 series postal stamps, M.O.20 series revenue stamps, M.O.21 series postal orders, M.O.22 series N.S.S.Certificates, M.O.23 series social security certificates, M.O.24 Pant M.0.2S series coins amounting to Rs. 19.60 M.O.13 bag with the contents had been seized under Exhibit P. 12 mahazar. P.Ws.1 and 7 have attested the said mahazar. At 8.00 A.M. P.W.12 recovered M.O.26 series currency notes amounting to Rs.508.00 kept concealed under a hill at the instance of the accused under Exhibit P. 13 mahazar, attested by P.W.4 and another. At 8.45 A.M. he recovered M.O.27 blood stained towel kept concealed underneath a Murungai tree behind the backyard of the K.R.P. Dam Post Office under Exhibit P. 14 mahazar. Exhibits P. 13 and P. 14 were attested by P.W.4 and another. He then took the accused to Taluk Police Station and sent him to court for remand. He also examined P.Ws.1, 4 and 6 to 9 on 18.3.1984, he examined P.W.11. On 21.3.1984 he examined P.W.5. On 22.3.1984 he sent Exhibit P.22 requisition to the Court for the purpose of sending the incriminating articles to the Chemical Examiner for the purpose of examination. On 23.6.1984 he examined the photographer and obtained M.Os. 30 series and 31 series.

(m) P.W.10 was the then head Clerk attached to the then Judicial Second Class Magistrate Court Krishnagiri. On receipt of Exhibit P.22 requisition, he separately packed and sent the incriminating articles to the Chemical Examiner under the directions of Magistrate under the original of Exhibit P.23 office copy of letter. Exhibits P.24 and P.25 are respectively the reports of the Chemical Examiner and Serologist.

(n) On completion of investigation, P.W.12 laid the final report u/s 173(2) Cr.P.C. before the Judicial Second Class Magistrate, Krishnagiri on 27.3.1984 against the accused for offences under Sections 302, 201 and 381 I.P.C.

On committal, learned Sessions Judge framed charges against the accused for offences under Sections 302, 201 and 381 I.P.C.

The accused when questioned as respects the charges so framed, denied the same and claimed to be tried.

The prosecution in proof of the charges against the accused so framed, examined P.Ws.1 to 12, filed Exhibits P.1 to P.28 and marked M.Os.1 to 31.

The accused when questioned as respects the incriminating circumstances appearing in evidence against him, denied his complicity in the crime. Though he did not opt to examine a witness on his side, yet, he filed a written statement to the following effect:-As usual he carried the mail bag from Sundekuppam Sub Post Office and returned to K.R.P. Dam Post Office at 3.15 P.M. on 16.3.1984. Likewise he had done his job on 17.3.1984 and he had also subscribed his initial in the attendance register as well as the mailing list for those two dates. To say that he had absconded from 16.3.1984 onwards is divorced of the reality of the situation. He also prayed to send for the attendance register as well as the mailing list for those dates.

On consideration of the materials available on record and after hearing the arguments of Learned Counsel appointed by the State and learned public Prosecutor, learned Sessions Judge rendered the verdict as stated above.

Mr.''M.N.Balakrishnan, Learned Counsel appearing for the appellant-accused would submit that the so called various incriminating circumstances relied upon by the Court below for mulcting or fastening criminal liability upon the accused-appellant, as had been done by the Court below, are not sufficient and adequate enough to point out that the heinous crime of murder of the deceased, causing disappearance of the evidence of the commission of murder and commission of theft of cash and other postal articles kept inside the post office had been committed by the accused and him alone and none-else could have done it and in this view of the matter, he would say, the accused/appellant deserves to be acquitted by giving him the benefit of reasonable doubt, to which course Mr.B.Sriramulu, learned Public Prosecutor would express strong disapproval.

We may now enter into the arena of discussion as respects the rival submissions of Learned Counsel appearing for the parties in the light of the materials available on record.

The foundation of the prosecution case admittedly hinges upon evidence - not direct but only circumstantial. When a case like the present one rests entirely upon the circumstantial evidence, the question whether the facts and circumstances are or are not sufficient in their cumulative effect for the purpose of establishing that the offence has been committed and that it is the accused before court, and none-else, who had committed it, has to be decided by the application of the following rules to the facts and circumstances :-

1) Every such fact or circumstance of which the prosecution relies must be clearly proved beyond doubt and the burden of its proof always lies on the prosecution.

2) Each fact and circumstance so relied upon must be of such a character as to lead to a reasonable inference about some aspect of the guilt of the accused.

3) The chain of proved facts and circumstance must be complete and unbroken, and no link in it must be missing. If any vital fact, which is necessary to meet the chain of circumstantial evidence complete, is missing, or has remained unproved, it must be held that the prosecution has failed to establish its case. Conjecture and suspicion cannot take the place of proof, and if a vital link is missing or unproved, it should never be imagined to exist, however, likely its existence might appear to be.

4) The proved facts and circumstances of the case must be of such a nature as to point, in their cumulative and total effect, irresistibly and unmistakably to the only conclusion that the accused is guilty of the offences with which he is charged. That is, not only must the proved facts be compatible with the guilt of the accused, but further, they must be such, in their effect, as to be entirely incompatible with his innocence and must exclude every reasonable hypothesis consistent with his innocence.

5) Circumstantial evidence can be held to be sufficient for the purpose of conviction only when all the above conditions are satisfied. If, on examining a case, based purely on circumstantial evidence, the Court is of opinion (a) that any fact or circumstance, which was a necessary link in the chain, has not been proved, or (b) that though the chain of evidence is unbroken, which is not so conclusive as to exclude entirely the possibility of the accused being innocent, the accused must get the benefit of the doubt that exists and must be acquitted.

In the backdrop of axiomatic principles of law, as stated above, let us proceed to examine the materials available on record in the shape of evidence oral and documentary. The so called incriminating circumstances relied upon by the prosecution run as under:

The accused being found in the company of the deceased at 12 noon on 16.3.84 within the office premises;

The accused emerging out of the said Post Office where he was working, carrying in his hand M.O.13 yellow bag;

The so called explanation given by the accused to P.W.3 that holiday had been declared to the Post Office after lunch recess, when P.W.3 questioned him as to when the Post Office was to commence business after lunch recess;

His absconding from the Office on and from 16.3.1984;

His arrest on 18.3.1984. Consequent confession he was stated to have made and recovery of certain material objects pursuant to such confession, viz., M.O.12 series, M.O.13 hag contained M.Os. 14 to 25, M.O.26 series, M.Os. 27 and 28;

M.O.27 towel recovery at the instance of the accuse pursuant to Sec. 27 of the Evidence Act confession - statement, contained human blood as disclosed by Serologist report, Exhibit P.25.

The motive aspect of the case of the prosecution getting reflected by the testimony of P.W.4 to whom the deceased appeared to have told either on 14th or 15th March 1984 about the commission of theft of Rs. 10 by the accused from the shirt pocket and on hearing the same, P.W.4 reprimanded him for his abominable conduct and requested the deceased to pardon the accused for such an act of his and the deceased also complied with such a request.

According to the prosecution, the accused was stated to have committed the murder of the deceased on 16.3.1984 at about 1.00 P.M. at Krishnagiri Reservoir Project Dam Post Office by attacking him with an iron rod on the back of his neck and left eye. The further accusation levelled against him was that he caused the disappearance of the evidence of the murder of the deceased by concealing his dead body in the septic tank situate in the backyard of the Post Office with requisite mens rea to screen himself from legal punishment. Yet another accusation levelled against him was that he did commit theft by stealing certain property, viz., cash, postal stamps, postal orders and cash certificates, totalling Rs.850.55 from the said Post Office.

By way of reiteration, we may say that there is no evidence direct at all against the accused, excepting the various incriminating circumstances, as catalogued above. The question that now arises for our consideration is as to whether the prosecution successfully established or proved the various circumstances as relied upon and if so, whether each of those incriminating circumstances individually reflects a reasonable inference about some aspect of the guilt of the accused and whether the cumulative effective of all the circumstances put together would lead to the one and only hypothesis that the accused and he alone could have committed the various offences as charged against him and none else could have committed them..

There is no pale of controversy that the accused had been functioning on and from 20-2-84 till upto 31.3.1984 as extra Departmental Mail Carrier in the leave vacancy of his father. Yet another fact, about which mere is no controversy is that his duty is to carry the mail bag in the morning from K.R.P. Dam Sub Post Office to Sundekuppam Sub Post Office and return to K.R.P. Dam Sub Post Office after collecting the mail bag from Sundekuppam Sub Post Office. This sort of duty he had to discharge in between 8.30 A.M. and 3.30 P.M. According to the prosecution, Extra Departmental Mail Carrier like the accused had to return to K.R.P. Dam Sub Post Office from Sundekuppam Sub Post Office after collection of the mail bag only at 3.30 P.M. and unusually on 16.3.1984 he returned to K.R.P. Dam Sub Post Office from Sundekuppam Sub Post Office at 12 or 12.30 P.M. and was found within the office premises in the company of the deceased under the facade of helping him, a person suffering from Para plegia during lunch recess. The fact, even assuming for argument's sake, that he returned to K.R.P. Dam Sub Post Office at 12 or 12.30 P.M. is taken for granted to have been proved, that circumstance by itself will not take us anywhere. There is nothing wrong for an extra Departmental Mail Carrier, like the accused to have been present in the premises of the Sub Post Office, where he had been working even though he was present at such a time when he was not expected to be there, unless such a presence was for some ulterior motive.

It is agonizing to point out at this juncture that the prosecuting agency in order to have a face lift to its case, attempted to examine P.W.9, a witness emerging from independent quarter as to his having seen the deceased and the accused within the premises of the above office at or about 12 noon on the day of occurrence. He would explain the circumstances as to why he had been to the said Post Office and what he would state was that he had been to the Post Office for the purpose of writing a letter to a person at Neyveli and at that time the door of the Post Office was kept a jar and he had the fortuitous opportunity of witnessing the deceased taking shave and the accused being bodily present by his side. The pity is that though he had been to the Post Office for writing a letter to a person at Neyveli, he would candidly admit and say that he returned without writing such a letter. His going to the Post Office to write a letter, it appears, is for the purpose of explaining his otherwise inexplicable presence therein. This apart, how this witness had been traced by the investigating agency during the course of investigation is not known. In such circumstances, we are of the view, no weight and credibility can be attached to the testimony of such a witness.

It is the evidence of P.W.3, a grocery shop owner that she happened to see the accused emerging out of the K.R.P. Dam Sub Post Office with M.O,13 bag in his hand at about 1.30 P.M. on 16.3.1984. Simpliciter carrying of a bag like M.O.13 by a person like the accused could not at all be expected to have attracted the attention of any one, much less P.W.3. The reason is rather obvious. In the common concourse of dealings with one another, men and women folk do so many things in a daily routine and even though such daily routines are watched by others, the persons watching such a daily routines cannot remember what they have seen in such a concourse of dealings. Applying such a yardstick to a person like P.W.3, we are at a loss to understand as to how she was able to remember the factum of the accused carrying a bag like M.O. 13, when especially such carrying of the bag had not been associated with any special feature electing suspicion. If the accused had been merging out of the office in a suspicious manner, P.W.3 could not have been keeping quiet and she could have risen to action, in the sense of making a report to the Police or if not, her impulse could have been to raise a hue and cry. Nothing of that sort had happened at all. Further, she had not admittedly reported the things immediately to the police except stating the same to P.W.4. No material is available on record to point out as to how P.W.12, the Inspector of Police was able to trace P.W.3. This apart, P.W.4 also did not entertain any suspicion about the activity of the accused and he did not complain to any one. In such state of affairs, no signal importance can be attached to such a circumstance.

The next incriminating circumstance that falls for consideration is the so called explanation given by the accused to P.W.3 by stating that holiday had been declared to the Sub Post Office after the lunch recess on 16.3.1984. Even apart, P.W.3 had stated regarding such aspect. If it is taken for granted to be true, we rather feel that such an explanation by itself will not throw light reflecting any criminality in the commission of any of the offences charged against him by the prosecution.

The other circumstance stated to be incriminating by the prosecution revolved on the so called abscondence of the accused from the office on and from the afternoon of 16.3.1984. It is the case of the defence that he was not at all absconding, as projected by the prosecution and infact, he did attend the office and discharged his duties of carrying mails both on the 16th and 17th March 1984 from K.R.P. Dam Post Office to Sundekuppam Sub Post Office, and vice-versa. Though the prosecution witnesses, viz., P.Ws.1,2 and 4 would assert that the accused did not at all attend the office on and from the afternoon of 16.3.1984, yet the prosecution failed in its duty in producing before the Court below the attendance register and the mailing list, in corroboration of such testimony and the failure of the prosecution in producing those documents is fatal to the prosecution case, when especially the accused took up stand that he in fact attended the office and signed the attendance register as well as the mailing list on dates, viz., 16.3.1984 and 17.3.1984.

The probability of the accused attending office of those dates cannot be ruled out of consideration in such circumstance, when especially so much of light had been thrown by the testimony of P.W.8, the Sub Post Master attached to Sundekuppam Sub Post Office. He would candidly state during the course of cross-examination that even on 16.3.1984 afternoon the accused carried the mailing bag from his Post Office. The mail bag carrying operation, he would say, had also been carried out from his Post Office on 17.3.1984 and what he would say was that he did not know whether such operation had been carried out by any one, much less the accused. At this juncture, we have to recapitulate that the accused had been temporarily engaged for the purpose of carrying the mail bags between those two Post Offices. It is not at all the case of the prosecution that on 17.3.1984 the mail bag had been carried on from Sundekuppam Post Office by some one engaged for that particular purpose when the accused had been absconding. In such circumstances, it is not far wrong for us to come to the conclusion that the mail bag carrying operation had been performed by the accused both on 16.3.1984 as well as 17.3.84. In this view of the matter, we rather feel, the absconding of the accused had been manipulated by the Investigating Agency suiting to the exigency of the situation.

The non-believing of the abscondenee by the accused will have a direct bearing upon the question of arrest of the accused and consequent recovery effected pursuant to the confession he made to the Investigating Officer P.W.12. According to the prosecution, P.W.12 had prior information as to the whereabouts of the accused and so; P.W.12 went to the river bed situate near Kaveripattinam Travellers'' Bungalow along with P.W.8 at 5.00 A.M. on 18.3.1984 and he was in fact, as anticipated, able to arrest the accused at the river bed in the presence of P.W.8. On this arrest, the accused was stated to have given a confession statement u/s 27 of the Evidence Act, the admissible portion of which is Exhibit P.20. It is only pursuant to such confession statement, the various recoveries, as stated above, were stated to have been made at the instance of the accused by P.W.12 in the presence of various seizure witnesses as stated above.

If we turn to the evidence of P.W.8 what he would say was that at 5.00 A.M. on 18.3.1984 he went to Kaveripattinam from Chinnamuthur and when he was accidentally passing through the Travellers'' Bungalow, he happened to see P.W.12, apprehending the accused, who in turn gave a voluntary confession statement. He had not stated the purpose of his journey from Chinnamuthur to Kaveripattinam. Such a journey, we rather feel, had been taken out by P.W.8 to explain his otherwise inexplicable presence in the scene at the time of arrest of the accused by P.W. 12. This apart, as already stated, P.W.12 would state that he had taken along with him P.W.8 for effecting the arrest of the accused, as he had prior information, which is quite contrary to the version, as projected by P.W.8. In such circumstances, we are of opinion that the arrest of the accused as projected by the prosecution, confession and consequent recovery effected thereafter are nothing but the stage managed shows, suiting to the exigency of the situation.

Worthwhile to note it is at this juncture that the recovery of M.O.I3 bag with its contents, viz., M.Os. 14 to 25 was stated to have been effected from the cycle shop of one Pattu. We are at a loss to understand as to why the said Pattu had not been examined by the prosecution in case the accused had deposited M.O.13 bag with its contents with the said cycle shop owner. The witness, who throws light as to the accused coming to the cycle shop of Pattu for depositing M.O.13 bag with its contents, is non-else than P.W.7 and what he would state during the course of his chief examination was that at 1.30 P.M. on 16.3.1984, he was in the cycle shop of Pattu and at that time the accused came there and deposited M.O.13 bag with its contents, saying that he would take them back again on some other day. Puzzling, it is to note the answers he had given in the course of his cross-examination. What he would state therein was that he went to his house passing the cycle shop of Pattu at about 12.30 P.M. and at that juncture he happened to meet the accused in the said cycle shop. Even as respects the minimal overt act of the accused of going and depositing M.O.13 bag in the cycle shop of Pattu, the testimony of P.W.7 is discrepant in getting gravelled by the answers he had given in chief as well as in cross-examination as stated above. In such state of affairs, the evidence of P.W.7 as relatable to the accused depositing M.O.13 bag in the cycle shop of one Pattu cannot at al be stated to be above reproach and beyond suspicion so that reliance could be placed upon his testimony.

Another incriminating circumstance of paramount importance according to the prosecution is the recovery of M.O.27 towel pursuant to the confession given by the accused to P.W.12. Even if the said recovery had taken for granted to have been proved, we are of the view that such a recovery cannot at all be stated to advance or improve the case of the precaution to any extent whatever on the facts and in the circumstances of the case. There is no evidence aliunde available to point out that M.O.27 towel belongs to the accused. Much less no evidence is available that this M.O.27 towel was worn by the accused at or about the time of the occurrence. Further, the towel was stained with only human blood as disclosed by the Serilogist's report, Exhibit P.25. This apart, the blood group of the deceased was unable to be deciphered from the analysis of the nature of the incriminating material objects sent for the purpose of examination. In such circumstances, the recovery of M.O.27 towel stained with human blood is of no consequence.

The last but not the least of the incriminating circumstances revolves on the question of the motive aspect of the case of the prosecution. According to the prosecution, the accused was stated to have committed theft of Rs.10/- from the shirt pocket of the deceased. The deceased in turn, appeared to have told this matter to P.W.4, who in turn was stated to have reprimanded the accused for such abominable conduct and entreated the deceased to pardon him for such an act and the deceased in turn in a magnanimous way pardoned him without taking any action further. This sort of an incident, P.W.4 would say, came to his knowledge either on 14th or 15th of March 1984, a day or two prior to the occurrence. The question that arises for consideration is whether what the deceased told P.W.4 respecting the transaction of the theft of Rs.10/- from his pocket by the accused is relevant and admissible under any of the provisions of the Evidence Act. If at all such a statement is admissible, it can come under the provisions of the Evidence Act, viz., either u/s 32(1) or Section 11 or Section 6 thereof.

Section 32(1) of the Evidence Act reads thus:

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person's death comes into question....

Therefore, the statement made by a deceased person to become relevant, it goes without saying, it must have to relate either to the cause of his death or to any of the circumstances of the transaction, which, resulted in his death.

In the case on hand, the transaction of the theft of Rs. 10/- from the pocket of the deceased cannot at all be stated to be relevant as to the cause of the death of the deceased or as a circumstance, which resulted in his death. The reason is obvious. It is not as if consequent to the theft of Rs.10/- by the accused from the pocket of the deceased, there was quarrel between the accused and the deceased and during the course of such a quarrel accused vowed to wreak vengeance and the vowing of wreaking vengeance was given effect to at subsequent point of time. The plain fact is that the simpliciter act of theft of Rs.10/- from the pocket of the deceased had been condoned by the deceased in a magnanimous way as deposed to by P.W.4. Therefore, the transaction of the commission of such a theft is not at all relatable to the cause of the death of the accused so that the same statement could fall under Sub Section (1) of Section 32 of the Evidence Act.

Section 11 deals with circumstances when facts not otherwise relevant become relevant. Facts not otherwise relevant become relevant-(l) if they are inconsistent with any fact in issue or relevant fact, and (2) if by themselves or in connection or with other facts they made the existence or non-existence of any fact in issue or relevant fact highly probable to P.W.4 may, if at all, on the facts and in the circumstances of the case, would fall under the latter clause of Section 11 as being relevant.

It may also fall u/s 6 dealing with relevance of facts forming part of the same transaction. Even if such a statement does so fall under those provisions as being relevant, even then we rather feel that the existence of such a fact cannot at all be stated to render any assistance or help in improving the case of the prosecution to any extent whatever, in the sense of pointing out the hand of the accused in the commission of any of the offences with which he stood charged.

In view of the dismal features we have pointed out as above, it goes without saying that the prosecution faced colossal failure in establishing the guilt of the accused for any offences whatever and in this view of the matter, the conviction, and sentence as had been imposed upon the appellant-accused by the Court below are not at all substainable.

In the result, the appeal is allowed. The conviction and sentence, as had been imposed upon the accused-appellant, for offences u/s 302, 201 and 381 I.P.C. are set aside and he is acquitted thereof. The Reference is also answered accordingly.