Case: K.T. Palanisamy Vs. State of Tamil Nadu

out. Be that as it may, when the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. 12. It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete as has been held in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ] in the following terms : “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra where the following observations were made: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.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 13. In this case, corpus delicti has not been proved. The same need not be but the death as a fact must be proved. Even death has not been proved in this case. No piece of mortal remains of the deceased was found. If the prosecution witnesses are to be believed they had no reason to suspect the appellant herein at the relevant point of time. They knew that the deceased was to attend another function. We fail to understand as to why the deceased would take all the accused to the shop of PW2 or allowed to be found in their company by all of his relations and partners. None of the witnesses testified that they were seen near the place of worship. None said that they were found to be performing any pooja. No evidence was adduced to show that any pooja was performed in a temple. 14. In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceaseds having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.The fact that the deceased was last seen with the appellant should have been specifically disclosed in the first information report. Suspicion was raised about the involvement of the appellant only because three other dead bodies were recovered. We do not know the nature of evidence that has been adduced in that case. We need not enter into any surmise in this behalf. 15. In any event, the circumstancial evidence which formed part of the records of SC 100 of 1997 could not be relied upon for arriving at the conclusion that the appellant herein is guilty of commission of the said offence. 16. The only other circumstance is recovery of the golden chain. It was allegedly sold to PW8. He, however, has denied his involvement. Even assuming that golden chain was recovered at the instance of the appellant herein, the same by itself, in our considered view, would be sufficient for upholding the judgment and conviction under Section 302 of the IPC. 17. Mr. V.Kanakaraj, learned senior counsel appearing on behalf of the respondent, has placed strong reliance on a decision of this Court in Sevaka Perumal and Anr. V. State of Tamil Nadu reported in [1991 (3) SCC 471 ]. Therein also it was held that the fact of the death of the deceased must be established like any other fact. In that case it was not done. This Court in that case gave an instance where a corpus delicti is not possible to be traced or recovered. The same being that the murder was committed and the dead body was thrown into the river, stream or burnt out. Even such is not the case here. As indicated herein before, the fact that the river was a tidal one had not been proved. There is, thus, no reliable or acceptable evidence that the offence has been committed by the appellant. Neither any direct nor circumstantial evidence had been brought on record to establish the guilt on the part of the appellant herein.18. We, therefore,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceaseds having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.The fact that the deceased was last seen with the appellant should have been specifically disclosed in the first information report. Suspicion was raised about the involvement of the appellant only because three other dead bodies were recovered. We do not know the nature of evidence that has been adduced in that case. We need not enter into any surmise in thisany event, the circumstancial evidence which formed part of the records of SC 100 of 1997 could not be relied upon for arriving at the conclusion that the appellant herein is guilty of commission of the saidonly other circumstance is recovery of the golden chain. It was allegedly sold to PW8. He, however, has denied his involvement. Even assuming that golden chain was recovered at the instance of the appellant herein, the same by itself, in our considered view, would be sufficient for upholding the judgment and conviction under Section 302 of thetherefore, are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. The appellant is in jail. He is directed to be set at liberty unless wanted in connection with any other case