BASHEERA BEGAM versus MOHAMMED IBRAHIM & ORS.
[2020] 3 S.C.R. 562, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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BASHEERA BEGAM
v.
MOHAMMED IBRAHIM & ORS.
(Criminal Appeal No. 417 of 2010)
JANUARY 31, 2020
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Penal Code, 1860 – s.120B & s.302 r/w s.34 – Case based
on circumstantial evidence – Case of prosecution that D2 (son of
A4) and D1 (nephew of A3) were friends – Brother of A3 & A4 and
uncle of D2, who lived in Malaysia, had properties in India, which
were managed by A3 – Enmity arose between A3 & D2 after the
aforesaid brother took back properties from A3 and entrusted D2
with their management– D2’s demand for partition of family
properties held and/or controlled by A4 gave rise to property
disputes between D2, his brother (A1) and their father (A4) – As
per prosecution, the accused booked a room at a Hotel on 21.6.90,
where they hatched conspiracy to kill D2 – A1 purchased a lorry
on or about 20/21.12.90 – On 28.12.90, A1 hit the motor cycle on
which D2 & D1 were riding, with his lorry – A2 & A7 got off the
lorry and attacked D2 & D1, who had fallen from their motor cycle,
with iron rods and caused their death– All the accused (A1-A8)
were convicted u/s.120B– A1, A2 & A7 were also convicted u/s.302
r/w s.34 – High Court acquitted all the accused persons – Held:
Prosecution has only been able to conclusively establish that on
28.12.90 at around 8.30 p.m., D2 rode motorcycle owned by A4
with D1 on pillion – Two were seen lying dead on road, in a pool of
blood and their motorcycle lying
close by – Prosecution miserably
failed to prove that D2 & D1 were beaten to death with rods by A2
& A7 – It was also not able to rule out the possibility of D1 & D2
being killed in a ‘hit and run’ accident involving some unknown
vehicle – There are inherent improbabilities and inconsistencies in
evidence – It is not the case of prosecution that the accused had
any motive to kill D1– There was no eyewitness to the incident – It
would be preposterous to attribute the purchase of the lorry to the
sinister motive of murdering D2 – To establish motive for murder,
the prosecution tried to build up a case of enmity between A3 & D2
and also of disputes between A1, A3 & D2 – Property disputes
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amongst family members is not uncommon – There may also be
quarrels between them however, to attribute motive to a father to
plot the murder of his own son, there have to be more compelling
reasons – Prosecution failed to prove that there was any conspiracy
to kill D2 at the hotel or anywhere else – When there is circumstantial
evidence pointing to the guilt of accused, it is necessary to prove a
motive for the crime – However, motive need not be proved where
there is direct evidence – In this case, there is no direct evidence –
Prosecution failed to establish the guilt of the accused persons
beyond reasonable doubt – High Court rightly acquitted the accused
– Code of Criminal Procedure – ss.161, 313 – Constitution of India
– Art.136.
Criminal Law – Circumstantial evidence – Proof beyond
reasonable doubt – Held: Suspicion however strong cannot
substitute proof beyond reasonable doubt – Burden of proving an
accused guilty beyond all reasonable doubt lies on the prosecution
– If upon analysis of evidence two views are possible, one which
points to the guilt of the accused and the other which is inconsistent
with the guilt of the accused, the latter must be preferred – When
there is circumstantial evidence pointing to the guilt of the accused,
it is necessary to prove a motive for the crime – However, motive
need not be proved where there is direct evidence.
Dismissing the appeals, the Court
HELD: 1.1 The Prosecution has only been able to
conclusively
establish that, on 28.12.1990 at around 8.30 p.m.,
D2 rode out of Arsarkulam, towards Aranthangi on Motorcycle
No. TN 55/1406 owned by his father, A-4, with D1 on the pillion.
The two were seen lying dead on the road, in a pool of blood, a
few furlongs away from the level crossing at Sarayanenthal,
Pappakulam and their motorcycle was lying close by. On a careful
analysis of the post mortem reports and the oral evidence of the
post mortem doctors, it is found unlikely that the deceased were
beaten to death with an iron rod. PW-22 was of the opinion D2
fell off the motor cycle after a collision and got run over. The
Prosecution has miserably failed to prove that the deceased were
beaten to death with a rod. The Prosecution has also not been
able to rule out the possibility of D1 and D2 being killed in a ‘hit
and run’ accident involving some unknown vehicle. There are
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also inherent improbabilities and inconsistencies in the evidence
which demolishes the case of the Prosecution that the deceased
were beaten to death with iron rods by A2 and A7. It does not
stand to reason why A2 and A7 should have risked getting off the
lorry and beating D2 and D1 with iron rods, when A1 had dashed
his lorry against their motor cycle, fatally injured them and run at
least one(D2), if not both of them over. It is not the case of the
Prosecution that the accused had any motive to kill D1. Moreover,
while it is alleged that A2 and A7 had hit both the deceased with
iron rods, only one iron rod has allegedly been recovered from
an open, easily accessible pond, over a month after the incident
on the alleged confession of A7 made before the police after arrest.
There is no whisper in the evidence of any other iron rod. PW-
29, the sole witness who testified that A2 made a confession to
the police in his presence, took the police to Maangudi and
brought the iron rod out of a pond in his presence, could not
even remember if there was any water in the pond. Nor could he
identify A7. The rod was never sent for forensic examination. It
would be dangerous to convict A2 or A7 on the basis of the
testimony of PW-29 or for that matter, any other witness. There
can be no question of interference with the acquittal of A2 and A7
from the charges against them. There was no eyewitness to the
incident. The Prosecution
has made an attempt to connect the
lorry No. TSL 6579 to the incident through circumstantial
evidence, by examining PW-6, PW-7, PW-8, PW-11, PW-12, PW-
14, PW-15, PW-16, PW-17, PW-19, PW-25, PW-27, PW-35, PW-
42, PW-43, PW-44 and PW-45 and also relying on material objects
such as broken glass pieces, broken plastic pieces, paint
scrapings seized from the place of occurrence as also the number
plate of a lorry with the number TSL 6579, an indicator with bulb
and a partly orange and partly transparent plastic cover, an
indicator without bulb and cover, a circular lamp 14.5 cm in
diameter with lamp and yellow glass cover and a circular lamp
holder 14.5 cm in diameter without lamp and cover. The number
plate, indicators and lamps were not seized from the place of
occurrence. The evidence of PW-6, PW-7 and PW-17 only
establishes that A1 purchased lorry No. TSL 6579 through brokers
PW-6 and PW-7 with the assistance of A5 and A6 about 7/8 days
before the incident. About four days before the incident, the lorry
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had been brought to Karaikuddi National Battery company for
getting its battery charged. Since the battery needed replacement,
but a new battery was not in stock, a serviced battery was fitted
in the lorry, which was never returned. Significantly, the evidence
of PW-6 reveals that A1 had earlier, long before the alleged
conspiracy at the Malar Lodge Hotel on 21.6.1990 purchased a
lorry with the Registration No TDB 9635 for which A5 had stood
guarantor. This lorry was sold some time in October, 1990, about
four months after the date of the alleged conspiracy, and in less
than two months, on or about 20/21 December, 1990 Lorry No.TSL
6579 was purchased. It is, therefore, evident that A1 used to
have a lorry, or at least had one since January 1990 with a short
break, possibly for the purpose of his business. It would be
preposterous to attribute the purchase of the lorry to the sinister
motive of murdering D2. The Prosecution has made no attempt
to explain why A1 should have sold the lorry he already had if
there were a conspiracy to kill D2 by hitting him or running him
over with a lorry. [Paras 142, 149-154][608-F-G; 609-H; 610-A-
H; 611-A-D]
1.2 From the evidence of aforesaid witnesses as also the
evidence of PW-8, PW-14, PW-15, PW-16 and PW-17 it transpires
that the lorry was brought to Arokyam’s workshop at Mannaparai
on 29.12.1990 for minor repairs. After the repairs were done PW-
6 took delivery of the same and left it at a lorry shed near the
office
of A7, who had sold the lorry to A1 through A6. PW-14, the
owner of the workshop deposed that PW-6 had instructed him to
repair a minor dent. There is nothing in the evidence of PW-6 or
PW-7 to link the lorry with the death of D2 and D1. Incidentally,
PW-6 said he had not seen A1 after 20.12.1991, whereupon he
was declared hostile and subjected to cross-examination. PW-6
said the lorry had been seized by the police. Even assuming for
the sake of argument that the lorry TSL 6579 had been brought
to the workshop for repair with minor dent and a broken sidelight
or lamp and the colour of some broken glass pieces at the scene
of occurrence matched the colour of the side light and or
indicators of the lorry, that does not prove involvement of the
lorry in the same incident. Many lorries have the same kind of
lamp/indicator covers. Moreover the lorry was purchased second
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hand and there is no evidence at all of the condition of the lorry
at the time of its delivery to A1. [Paras 155, 163][611-E-G;
614-B]
1.3. In any case, even assuming for the sake of argument
that lorry No. TSL 6579 was the lorry, which knocked down the
motorcycle which the deceased were riding, and ran over the
deceased, that in itself cannot lead to the conviction of any of the
accused under Section 302 of the Indian Penal Code. There is
not an iota of evidence to establish that A1, A2 or A7 were in the
lorry, except for the alleged extra judicial confession of A7 made
in the presence of the police, which cannot be accepted for the
reasons discussed. The mere fact that A1 might have been driving
the lorry also does not establish that he committed murder. To
establish motive for the murder the Prosecution has tried to build
up a case of enmity between A3 and D2 and also of disputes
between A1 and A3 and D2. A3 was named as a possible suspect
in the FIR. There may have been enmity between D2 and A-3,
but A-3 was not there at the scene of occurrence. It is not the
case of the Prosecution that A3 committed the murder. There is
no evidence of his involvement in the murder of D2 and D1. In
any case, he could not have had any motive to kill D1.
Furthermore, the evidence of PW-1 indicates that disputes with
A3 were compromised with the intervention of the District
Collector. The allegations of disputes between A1 and D2,
his
own brother, are totally vague and devoid of any particulars. There
is no evidence at all, of any specific reason for discord between
A1 and D2, not to speak of evidence of dispute of a kind that
could lead to a murder. [Paras 165-167][614-E-H; 615-A]
1.4 A4 had also made a complaint to the police. The dispute
was apparently settled on 30.4.1990 on the advice of PW-29, and
D2 promised not to quarrel with his father over property matters.
There is no evidence that he breached such promise. Property
disputes amongst family members is not uncommon. There may
also be quarrels between members of a family. They may not be
on talking terms. However, to attribute motive to a father to plot
the murder of his own son, there would have to be more compelling
reasons. The case made out by the Prosecution is speculative
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and unsubstantiated. In any event, it is not the case of the
Prosecution that either A3 or A4 committed the murder, or was
even present at the place of occurrence. Furthermore, it is
nobody’s case that A2, A5, A6, A7 and A8 or any of them had any
enmity with D2. [Paras 169-172][615-C-F]
1.5 The only evidence with regard to the alleged conspiracy
is the absolutely inadmissible hearsay evidence of PW-44, a police
officer who investigated the crime. PW-44 stated that he had
examined PW-39, who had in course of his examination stated
that A1 had asked PW-39 and PW-10 to accompany him to
Karaikudi for purchase of lorry spare parts. Apart from the fact
that PW-10 and PW-39 have categorically denied their presence
at Karaikudi on 21.6.90, there are patent inconsistencies in the
evidence of PW-44 in this regard. If A3 was present at the Malar
Lodge Hotel, Karaikudi at the time of the conspiracy on
21.6.1990, there could be no reason for PW-10 or PW-39 to go to
A3’s house and tell him about the conspiracy. Nor would A3 advise
PW-10 and PW-39 not to divulge the conspiracy to others. Even
otherwise, it is inconceivable that the accused should hatch a
conspiracy to commit murder, in the presence of witnesses who
were not part of the conspiracy. It is also difficult to fathom why
PW-10 and PW-39 were never arrayed as co-accused, if they were
present at the time of the conspiracy and they chose to keep
quiet about the conspiracy. No credence can be given to the
evidence of PW-44. Statements made to the police under Section
161 of the of the Criminal Procedure Code in course of
investigation are inadmissible in evidence. The evidence of PW-
44 with regard to what two witnesses namely, PW-10 and PW-39
told him in course of investigation is inadmissible in evidence,
and of no value. Significantly, both PW-10 and PW-39 categorically
denied having made to the police, the statements attributed to
them. [Paras 175, 182-185][616-A-B; 617-C-F]
1.6 PW-40 who had worked as Manager, Malar Lodge Hotel,
Karaikudi from 1989 to 1991 denied knowing A8 or A2. He
denied having made the statements to the police, attributed to
him. The appellants have relied on the evidence of PW-34, a
handwriting expert, to prove that the accused had taken part in a
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conspiracy at the Malar Lodge Hotel on 21.6.1990. In any case,
the evidence of PW-34 establishes at the highest, that one of the
accused that is A-8, who had no enmity with the deceased, had
made entries in and signed the admission register of the Malar
Lodge Hotel. The evidence of PW-34, at best proves that A8
may have checked into Malar Lodge Hotel, Karaikudi on
21.6.1990, six months before the incident and nothing more.
There could be numerous reasons for A8 to go to Karaikudi.
The Prosecution has not been able to satisfactorily explain the
gap of over six months between the incident and the date on
which the alleged meeting took place at the Malar Lodge. An
accused is presumed innocent, unless proved guilty beyond all
reasonable doubt. For conviction on the basis of circumstantial
evidence, the circumstances from which the conclusion of guilt
is to be drawn should fully be established. The circumstances
should be conclusive. The circumstances established should
definitely point to the guilt of the accused, and not be explainable
on any other hypothesis. The circumstances should exclude any
other possible hypothesis except the one to be proved. [Paras
186- 189][617-G-H; 618-A, C-G]
Shivaji Sahabrao Bobade v. State of Maharashtra
(1973) 2 SCC 793 : [1974] 1 SCR 489 – relied on.
1.7 Suspicion however strong cannot substitute proof
beyond reasonable doubt. Enmity as a result of property related
disputes may give rise
to suspicion. However, conviction can
never be based on suspicion unless the prosecution clearly proves
circumstances conclusively and all circumstances proved should
only point to the guilt of the accused. Possibility of any conclusion
other than the conclusion of guilt of the accused would vitiate a
conviction. The burden of proving an accused guilty beyond all
reasonable doubt lies on the prosecution. If upon analysis of
evidence two views are possible, one which points to the guilt of
the accused and the other which is inconsistent with the guilt of
the accused, the latter must be preferred. Reversal of a judgment
and order of conviction and acquittal of the accused should not
ordinarily be interfered with unless such reversal/acquittal is
vitiated by perversity. In other words, the Court might reverse
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an order of acquittal if the Court finds that no person properly
instructed in law could have upon analysis of the evidence on
record found the accused to be ‘not guilty’. When there is
circumstantial evidence pointing to the guilt of the accused, it is
necessary to prove a motive for the crime. However, motive need
not be proved where there is direct evidence. In this case, there
is no direct evidence of the crime. [Paras 192-193][619-E-G;
620-A-B]
1.8 Before a case against an accused can be said to be fully
established on circumstantial evidence, the circumstances from
which the conclusion of guilt is to be drawn must fully be
established and the facts so established should be consistent only
with the hypothesis of the guilt of the accused. There has to be a
chain of evidence so complete as not to leave any reasonable
doubt for any 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. The prosecution miserably failed
to establish the guilt of the accused persons beyond reasonable
doubt. There is a strong possibility that the motorcycle which
the deceased were riding, might have been hit by an unknown
vehicle, killing the deceased. The death may have been accidental.
The High Court rightly set aside the judgment and order of
conviction of the Trial Court and acquitted the accused. [Paras
195, 197][620-E; 621-C]
Praful Sudhakar Parab v. State of Maharashtra (2016)
12
SCC 783 – distinguished.
Satish Nirankari v. State of Rajasthan (2017) 8 SCC
497 : [2017] 4 SCR 298; Sadhu Saran Singh v. State of
U.P. (2016) 4 SCC 357 : [2016] 1 SCR 913; Shanti
Devi v. State of Rajasthan (2012) 12 SCC 158 : [2012]
9 SCR 226 – relied on.
State of Rajasthan v. Islam & Ors. (2011) 6 SCC 343 :
[2011] 6 SCR 988; Vijay Shankar v. State of Haryana
(2015) 12 SCC 644 : [2015] 9 SCR 977; Murari lal v.
State of Madhya Pradesh (1980) 1 SCC 704 : [1980] 2
SCR 249; Sharad Birdhichand Sarda v. State of
Maharastra (1984) 4 SCC 116 : [1985] 1 SCR 88;
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
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Bablu v. State of Rajasthan (2006) 13 SCC 116 : [2006]
10 Suppl. SCR 835 – referred to.
Case Law Reference
[2011] 6 SCR 988
referred to
Para 21
[2015] 9 SCR 977
referred to
Para 29
(2016) 12 SCC 783
distinguished
Para 29
[2017] 4 SCR 298
relied on
Para 29
[1980] 2 SCR 249
referred to
Para 187
[1974] 1 SCR 489
relied on
Para 189
[1985] 1 SCR 88
referred to
Para 190
[2006] 10 Suppl. SCR 835
referred to
Para 190
[2016] 1 SCR 913
relied on
Para 194
[2012] 9 SCR 226
relied on
Para 196
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
417 of 2010.
From the Judgment and Order dated 22.11.2006 of the Madurai
Bench of Madras High Court in Criminal Appeal Nos. 834, 835, 836,
895, 926, 934 and 938 of 1998.
With
Criminal Appeal Nos. 416 and 408-414 of 2010.
KTS Tulsi, R. Balasubramanian, R. Basant, Rajiv Datta, Sr. Advs.,
Siddhant Sharma, B. Ragunath, Ibhram Ali, Vijay Kumar, P.R. Kovilan,
Mrs. Geetha Kovilan, Ms. Jubli Momalia, M. Yogesh Kanna, S. Partha
Sarathi, Raja Rajesh Waran S., Kumar Dushyant Singh, Mukul Lather,
Arun Adhlakha, Dharmendra Kumar Sinha, B. Karunakaran, Mukesh
Verma, Pankaj Kumar Singh, Pawan Kumar Shukla, Yash Pal Dhindra,
K.K. Mani, Ms. T. Archana, Dushant Kumar Singh, Kanippaiah
Meyappan, Ms. Kanika Kalaiyarasan, Ms. Yamunah Nachiar, S. Ravi
Shankar, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. These appeals are against the judgment and order dated
21.11.2006 passed by the Madurai Bench of Madras High Court, allowing
Criminal Appeal Nos. 834, 835, 836, 895, 926, 934 and 938 of 1998,
setting aside the judgment and order dated 6.10.1998 of conviction passed
by the Additional Sessions Judge, Pudukottai in S.C. No.108/1996, and
acquitting all the eight accused persons (A1 to A8). While all the eight
accused had been convicted under Section 120B of the Indian Penal
Code of criminal conspiracy, A1, A2 and A7 had also inter alia been
convicted under Sections 302/34 of I.P.C for murder of the deceased
Raja Mohammed, hereinafter referred to as the first Deceased (‘D1’),
and his friend Raj Mohammed son of Ibrahim, the Accused No.4 (A4),
and hereinafter referred to as the second Deceased (‘D2’).
2. Criminal Appeal Nos.417 and 416 of 2010 have respectively
been filed by Basheera Begum, the wife of D2 who deposed in the trial
as the 3rd Prosecution Witness (PW-3) and Sahul Hameedhu uncle of
D1, being the complainant, who deposed as the 1st Prosecution Witness
(PW-1). Criminal Appeal Nos. 408-414 of 2010 have been preferred by
the State, challenging the acquittal of the eight accused.
3. The 1st Accused Jaffer Ali (A1) and D2 are brothers and sons
of the 4th Accused, Mohammad Ibrahim (A4).  The 3rd Accused, Abdul
Hameedhu (A3) is younger brother of A4 and uncle of D-2 and A-1.
The 5th Accused
Sheikh Dawood (A5) and the 6th Accused, Basheer Ali
(A6) are relatives of A1, A3, A4 and D2.  The wives of A3 and A6 are
sisters. The 2nd Accused Balu @ Balusamy (A2) and the 7th Accused,
Krishnan (A7), both residents of Karaikudi are allegedly  henchmen of
the 8th Accused, Ramasamy Ambalam(A8) of Unjanai Village near
Karaikudi, a friend of A3.  A4, A5 and A7 have since died. A7 had died
while his Appeal before the High Court was pending. The appeals against
the acquittal of A4 and A5 in this Court, have abated.
4. It is the case of the Prosecution that D2, son of A4 and D1
nephew of A3 were friends. Sultan alias Sulaiman Rowther, brother of
A3 and A4 and uncle of D2, who lived in Malaysia, had properties in
India, which were being managed by A3. Enmity arose between A3 and
D2 after the said Sulaiman took back his properties from A3 and entrusted
D2 with management of the same. Fathima Beevi, daughter of Sulaiman,
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a Non-Resident Indian (NRI), had also entrusted D2 with her properties
in India, as a result of which there was bad blood between A3 and A2.
D2’s demand for partition of family properties held and/or controlled by
A4 gave rise to property disputes between D2 and his father (A4) and
his brother (A1). D2 was embroiled in litigation in respect of properties
held and/or managed by him.
5. As per the case of the Prosecution, the Accused had booked a
room at the Malar Lodge Hotel at Karaikudi on 21.6.1990, where they
hatched the conspiracy to kill D2.  In pursuance of such conspiracy A1
purchased a lorry bearing the Registration No. TSL 6579 on or about
20/21 December 1990, through brokers, PW-6 and PW-7 under a sale
agreement prepared by A5.  A6 and A5 were also signatories to the sale
agreement.
6. According to the Prosecution, D2 and his friend D1, both
residents of Arsarkulam, left for Aranthangi around 8.30 p.m. on
28.12.1990, by Motor Cycle No.TN/1406, owned by the A4, to meet a
lawyer engaged by D2. D2 drove the motor cycle and D1 was on the
pillion.  At about 1.00 a.m. at night, two persons, Kannan and Nagoor
Gani (PW2) who had come to Arsarkulam by the last bus, informed the
complainant (PW-1), uncle of D1, that D2 and D1 were lying dead in a
pool of blood two or three furlongs away from the level crossing at
Sarayananthal, Pappakulam and a motor cycle was lying closeby.
7. On receiving the information, PW-1 went
to the place of
occurrence immediately with his neighbour Mohammedhu Meera and
thereafter, at about 2.00 p.m. he went to the Aranthangi Police Station
and lodged a complaint.
8. In the complaint, PW-1 stated that he suspected that the
deceased might have been murdered by Perumal, Kuzhanthaiyan and
Kumar, at the instigation of A3, as there was enmity between D2 and
A3 over the eviction of A3 from the place of his residence. A1, brother
of D2 and A4, father of D2 were not even named as accused in the
complaint. Nor were any of the other accused named.
9. The sub-inspector attached to the Aranthangi Police Station
registered the complaint, pursuant to which investigation in Crime No.
668 of 1990 commenced under, inter alia, Sections 120B and  302 of
the IPC. The Inspector reached the place of occurrence on 29th
December, 1990 after sunrise. The bodies of the deceased were sent
for postmortem examination.
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10. PW-22, a doctor attached to the Government Hospital at
Aranthangi performed postmortem on the dead body of D2. Upon
postmortem, the following injuries were found on D2:-
“EXTERNAL INJURIES:
1. Contusion injury on upper lip and right maxilla.
2. Teeth in upper and lower jaw displaced.
3. Horizontal incised injury 3 cmx2cmx1cm on chin.
4. Blood clots from mouth and nose.
5. Irregular horizontal abrasion 3 cm diameter on chest.
6. Reddish black, partly rectangular 3 cm x 2cm interrupted
impression, continuous from right Hypochondrium crossing
sternum termination at left Hypocondrium.  Similar
impressions on lower part of abdomen diminishing at
umbilicus. Distance between two edges is of 27 cms.
7. The above impressions present on front position middle of
right forearm.
8. Elliptical shaped lacerated injury on cubital region of left
forearm 4 cmx4cmx1cm.  When both upper limps held close
to the body injury No.6, 7 & 8 are continuous and are in line.
9. Bluish coloured contusion injury 5 cm diameter on right
inquinal regional.
10. Irregular abrasion just above right knee.
11. Irregular abrasion 4 cm diameter below right scapula.
Internal injuries:
Fracture of Nasal bones body of mandible on both sides.
Ribs 3 to 7 costal region symmetrical on both sides driving
hone ends to lungs, body of sternum, lung surgace is
lacerated.
Stomach contained 200 ml of digested rice particles.
Liver posterior surface is ruptured and torn to pieces.
Other visceral organs &
skull bones normal:
Scrotum: Contained a loop of intestines.”
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
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11. The 23rd Prosecution Witness (PW-23)conducted Postmortem
on D1 and found the following Injuries:
“External Injuries :
1. An ante-mortem lacerated injury over the right eye brow
horizontally, size 3cmx ½ cm x ½ cm cm an examination blood
clots underneath the wound present. No bone fracture.
2. An ante mortem larcerated injury semi circular in nature
over the anterior aspect of right shoulder size 6 cm*1cm*1cm.
No bone fracture.
3. An ante mortem lacerated injury over the right arm
anteriorly horizontal in nature 5 cm below the shoulder joint
size 3 cm*1cm* ½ cm. No bone fracture.
4. An ante mortem lacerated injury over the right elbow
posteriorly horizontal in nature size 2½ cmx1cmx ½cm.
5. Ante mortem abrasion linear, interrupted interneath in
nature. Extending from right chest to right ideal fossa size
25cmx5cm. On examination extra vastation of blood under
neath the skin present. Present. Fracture of 4th and 5th rib
anterior angle present.
6. Ante mortem lacerated injury horizontal over the left wrist
joint anteromedialy size 2 cm x ½ cmx ½cm. No bone fracture.
7. An ante mortem lacerated injury over the right knee joint
antirolaterally size 3 cmx 2cm x ½cm horizontal in nature.
No bone facture.
8. Ante mortem abrasion 4 cm in number each 3 cm x 2 cm
over the right leg laterally.
9. Ante mortem contusion over the right side scalp over the
right temporal region size 7 cm x9 cm extravastation of blood
under neath
the scalp present. Fracture right temporal bone,
squemoris part present, Meninges injury subdural haematone
present in intracerebral bleeding present.
10.Torn) bridge depressed clots in the nostril present. No
fracture.  Nasal bone body not decomposed. The general
appearance do not tally with police report. Death appear to
have occurred about 16 to 20 hours prior to post mortem.
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Penis circumcised, eye lids closed, jaws clenched. Tongue
inside the mouth.
Internal Injuries:
Abdomen mild distention present. Position organs normal,
pale, no injury to liver Spleen, kidney no fluid or blood in
the peritoneal cavity. Stomach contains 30 ml partially
digested food. No specific odour. Thorax-position of organs
normal pale fracture o right 4th and 5th ribs present. Heart
empty, no injury lungs no injury. No foreign body in the
trachea, Larynx, Hyoid bone not broken. Pelvis no fracture
skull fracture of right temporal bone membranes conjested
subdural haematoma, intra cerebral bleeding present. Brain
solid Wt.1200 gms deceased blood preserved for chemical
analysis.”
12. The Investigating Officer, PW-43, took up the investigation
and examined witnesses. The police seized broken glass pieces, plastic
pieces and other objects from the place of occurrence. The lorry was
later seized. One iron rod alleged to have been used for the murder of
D2 and D1 was allegedly recovered by the police on the confession of
A7. The passport of A1, who had gone back to Saudi Arabia, where he
carried on business, about fifteen days after the incident, was impounded
and he was arrested. PW-36, who had taken up the investigation from
PW-43 seized registers of Malar Lodge Hotel in Karaikudi (Ex.P24).
Further investigation was conducted by PW-45.
13. After completion of  investigation, the Inspector of the Crime
Investigation Branch, Pudukkottai, filed a Chargesheet
before the Judicial
Magistrate, Aranthangi. In the chargesheet it was alleged that, on 28th
December 1990, A1 had hit the motor cycle on which the deceased
were riding, with his lorry bearing the registration No. TSL 6579, near
Serayanenthal, Pappakulam.  A2 and A7 had got off the lorry and attacked
the deceased, who had fallen from their motor cycle, with iron rods and
caused their death in pursuance of the conspiracy which had been hatched
between A1 to A8 at the Malar Lodge Hotel, Karaikudi, on the night of
21st June, 1990, owing to enmity of A3, A4 and A1 with one of the
deceased, that is, D2.
14. The accused pleaded ‘not guilty’, after which trial commenced.
All the accused respondents were tried under Section 120B of the IPC
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
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on the charge of hatching a criminal conspiracy at the Malar Lodge
Hotel, Karaikudi on 21.6.1990, to murder D2.  A1, A2 and A7 were also
charged with offence under Section 302 read with Section 34 of the
IPC, of murder of D2 and D1.
15. The prosecution examined 45 witnesses. The accused did not
examine any defence witness. Nine Prosecution Witnesses (PWs) namely
PW-6, PW-9, PW-10, PW-11, PW-12, PW-13, PW-39, PW-40 and PW-
42 were declared hostile by the Public Prosecutor and were cross
examined on behalf of the State, as they had allegedly retracted from
their statements made before the Police in course of investigation.
16. By a judgment and order dated 6th October, 1998, the Additional
Sessions Judge, Pudukottai convicted all the accused under Section 120B
IPC and further convicted A1, A2 and A7  under Section 302 read with
Section 34 IPC. A1, A2 and A7 were sentenced to life imprisonment
and also to fine of Rs.20,000/- each.
17. Being aggrieved by the judgment and order dated 6th October,
1998 of the Additional Sessions Judge, Pudukottai in SC No.108 of 1996,
all the accused filed Criminal Appeals in the High Court, which were
numbered as Criminal Appeal Nos.834, 835, 836, 895, 926, 934 and 938
of 1998.
18. By the judgment and order under appeal, the Hon’ble High
Court allowed the Criminal Appeals, set aside the judgment and order
dated 6th October, 1998 of the Trial Court, of conviction of the accused
in SC No.108
of 1996 and acquitted the accused of the charges levelled
against them. Since A7 had died while the proceedings in the High Court
were pending, the fine amount if any, paid by A7, was directed to be
refunded to his legal heirs.
19. The High Court, on consideration of the evidence adduced by
the Prosecution, found that the entire prosecution case suffered from
serious infirmities, inconsistencies and inherent improbabilities. There
were several missing links in the circumstances put forward by the
Prosecution and the Prosecution had miserably failed to complete the
chain of circumstances by conclusively establishing that each and every
circumstance unerringly pointed to the guilt of the accused. Being
aggrieved by the judgment and order of the High Court, reversing the
conviction of the accused and acquitting all of them, the State, as also
the complainants are in appeal.
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20. Mr. K.T.S. Tulsi, Senior Advocate appearing on behalf of the
appellant in Criminal Appeal No.417 of 2010 submitted that the High
Court clearly erred in law as well as facts, in setting aside the judgment
and order of conviction of the Trial Court and acquitting the accused of
all the charges levelled against them.
21. There  can be no doubt, as argued by Mr. Tulsi, that even
though the Supreme Court exercises discretionary jurisdiction under
Article 136 of the Constitution, such discretion has to be exercised in
order to ensure that there is no miscarriage of justice. If the decision of
the High Court is mis-conceived and perverse, there is nothing in law
which prevents the Supreme Court from exercising its jurisdiction under
Article 136 against an order of acquittal, as observed by this Court in
State of Rajasthan vs. Islam & Ors.1. When acquittal cannot be
sustained at all, in view of the evidence on record, this Court is duty
bound to set aside the acquittal. The question is whether the acquittal in
this case, is liable to be set aside.
22. Mr. Tulsi argued that there was evidence of property disputes
between D2 and A3 and also of property disputes between D2 and A4.
A police complaint had been lodged in this regard. However, a
compromise was entered on the intervention of the District Collector.
On 30.4.1990, A4 had lodged a complaint against D2 which had been
compromised in the Civil Court.
23. There was evidence that on 21.6.1990 the accused
booked a
room at the Malar Lodge Hotel, Karaikudi and conspired to kill D2 with
the help of a lorry. Accordingly A1 purchased the lorry No. TSL 6579
with the sinister motive of murdering D2.
24. Mr. Tulsi submitted that on 28.12.1990, D2 and D1 left for
Aranthangi. At around 1.00 a.m. complainant  was informed of the death
of the deceased. As per the post mortem report the deceased died of
shock and haemorrhage due to injury on skull, brain and multiple injuries.
25. Mr. Tulsi submitted that where specific roles had been attributed
to each of the accused persons, a chain of circumstances linking them to
the commission of offence was complete. The High Court ought not to
have reversed the Trial Court’s judgment. The High Court overlooked
the fact that in most cases of circumstantial evidence, direct evidence of
1 2011 (6) SCC 343
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conspiracy is never available and existence of conspiracy has to be
inferred from the circumstances of the crime.
26. Mr. Tulsi submitted that apart from complete chain of
circumstances linking the accused with the crime, expert opinion was
also available. The depositions of PW-22 to PW-27 led to irresistible
inference of the guilt of the accused. Mr. Tulsi submitted that the High
Court ignored the fact that the accused persons alone had the motive
and opportunity to commit the offence as established from the testimony
of PW-1, PW-3 and PW-29.
27. Mr. Tulsi submitted that depositions of PWs 8, 16, 21, 23 and
24 clearly established that D1 and D2 were killed by the accused persons.
They did not die as a result of an accident. PW-8 deposed that the lorry
was repaired in his workshop at Arokyam. On the intervening night of
28/29.12.1990 the lorry was brought to the workshop of PW-7 for repairs.
Its left bottom light was broken. On 3.1.1991 PW-16 had sold three
bulbs for the lorry in question against receipt and on the same day PW-
15 had sold a front side light of a heavy motor vehicle.
28. Mr. Tulsi further submitted that there was evidence of PW-21
who deposed that an iron rod was recovered from  A7 on 13.2.1991 in
his presence. On the basis of the statement of PW-24, the Trial Court
rightly came to the conclusion that D2 did not die because of the collision
but was murdered. Even PW-23 stated that D1 and D2 had been
murdered with the rod( MO-23). Counsel appearing for the State
supported Mr. Tulsi.
29. There can be no doubt that direct evidence of conspiracy is
almost never available and that existence of conspiracy has necessarily
to be inferred from the circumstances of the crime, as held by this Court
in Vijay Shankar vs. State of Haryana2, Praful Sudhakar Parab vs.
State of Maharashtra3 and Satish Nirankari vs. State of Rajasthan4
cited by Mr. Tulsi. It is however doubtful, whether existence of conspiracy
can at all be inferred from the circumstances in this case, considering
the evidence adduced by the prosecution.
30. The 1st Prosecution Witness M. Sahul Hameed (PW-1), being
the complainant deposed that D1 was his sister’s son. When the incident
2 2015 (12) SCC 644
3 2016 (12) SCC 783
4 2017 (8) SCC 497
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occurred Mohamed Meerasa, father of D1, was in Malaysia. D1 had
been staying with his mother Aiyeesha @ Aiyeesammal at Aroorkulam.
PW-1 deposed that D2 was a friend of his sister’s son, D1. D2 was
married to PW-3, Basheera Begum.
31. In a nutshell, PW-1 said that he knew all the accused persons.
A4 (father of D2), A3, and Sultan @ Sulaimaan Rowthar living in Malaysia
were brothers. A3 had been managing the properties of  Sulaimaan in
India. Disputes however arose between A3 and D2 when Sulaimaan
took back his properties from A3 and entrusted the management thereof
with D2. Properties in the name of Fathima Beevi, daughter of Sulaimaan
were also entrusted to A3 for management.
32. PW-1 has stated that there were 10 to 12 patta holders, and
also unauthorised occupants in occupation of land purchased in the name
of Fathima Beevi. The occupants were being evicted by payment of
money. However, A3 who was associated with the ruling party at that
time, and a Vice-president of the Aranthangi Panchayat Union, instigated
occupants not to vacate, and many of them refused to vacate. According
to this witness, this gave rise to a quarrel between D2 and A3 and a
complaint was filed with the police. The District Collector conducted an
inquiry and the disputes were compromised through his intervention.
33. This witness also said that there was a civil case pending in
the District Munsif Court at Aranthangi against some occupants of the
Palaa Thopu land of Fathima Beevi.
D2 used to often go to Aranthangi
with D1, being the complainant’s sister’s son, in connection with the civil
case. From the evidence of PW-1 it only transpires that A1, A3 and A4
had property disputes with D2.
34. This witness stated that A4, father of D2 owned a Bajaj Motor
Cycle bearing the Registration No.TN55/1406. On 28th December, 1990
at about 8.30 p.m. when this witness was in his rice mill, D2 left for
Aranthangi along with D1, being his sister’s son, on the said Bajaj motor
cycle bearing the registration No.TN55/1406 owned by A4, to meet his
advocate. D2 drove the motor cycle and D1 was the pillion rider.
35. On 29.12.1990 at 1.00 a.m. this witness received information
of the death of D1 and D2. He was told that D1 and D2 were lying on
the road side with injuries and the motor cycle was also lying nearby.
36. On getting this information PW-1 left for the scene of
occurrence along with his neighbour one Mohamed Meera and thereafter
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he lodged a complaint, stating he suspected that his sister’s son being
D1 and D2 had been murdered at the instigation of A3.
37. From his evidence, it appears that the motor cycle was identified
at the place of occurrence. There were tyre marks of a four wheeler.
Broken yellow glass pieces were found at the place of occurrence which
appeared to be broken pieces from the side light of a vehicle. There
were also broken plastic pieces, which appeared to be the broken pieces
of the indicator of a four wheeler.
38. This witness (PW-1) stated that fifteen days after the incident,
A1, Jaffar Ali, left for Saudi Arabia, where he had been running a business.
PW-1 came to know about the departure of A1, from Mohamed Ali
Jinnah and Akbar who had been working in the shop of A1 in Saudi
Arabia. The aforesaid employees of A1 gave the xerox copy of the
passport of A1 to the police, who later arrested A1.
39. In cross-examination, this witness admitted that he did not
mention any names, except the name of A3 in his complaint. During
cross-examination, he said he had suspected that P.L. Subbiah, Perumal,
Kumar, Kulanthian and some others could have committed the murder.
In other words, on his own admission, his complaint was based on
suspicion.
40. This witness could not say how many pieces of plastic were
found but confirmed that plastic pieces were found scattered. He could
not remember whether plastic pieces were seized in his
presence or not.
He also could not remember whether the glass pieces were recovered
in his presence or not, but stated that the glass pieces were yellow in
colour. The plastic pieces were  yellow and white coloured. He stated
that he had not observed Material Object M.O.3 exhibited by the police
in Court.
41. It is true that no witness is likely to notice details such as the
number of glass pieces found at the site of an accident which left human
beings dead. Inability to recall such details does not in itself affect the
credibility of the witness. However, in this case, there is nothing at all in
the evidence of PW-1, to establish the guilt of the accused persons or
any of them, and certainly not beyond reasonable doubt.
42. All that PW-1 has said is that there were disputes between A3
and D2 with regard to the properties of Sulaimaan Rowthar and his
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daughter. No specific reason for enmity between A1 and D2 or between
A4 and D2 has emerged from the evidence of this witness.
43. The 2nd Prosecution Witness (PW-2) M. Nagoor Gani, stated
that he had travelled to Arasarkulam from Aranthangi by the last MPTC
bus. This witness deposed that on the way he had seen that there were
two dead bodies lying at about a distance of one kilometer to the north of
Paapankulam, some distance away from the railway gate. The dead
bodies were of PW-1’s sister’s son and A4’s son. There was a motorcycle
nearby. The Driver stopped the bus at the roadside after which the
passengers got down and saw the bodies. Thereafter PW-2 along with
one Ganapathy, who had also been travelling in the same bus, went and
informed PW-1 of the death. PW-2 said that the police had examined
him 1½ years after the incident. Nothing has emerged from the evidence
of this witness to establish the guilt of the accused.
44. The 3rd Prosecution Witness, (PW-3), Basheera Begum, widow
of D2 (PW-3), confirmed that there were property disputes giving rise
to enmity between her husband and A3 over the properties of Sulaiman
and his daughter Fathima which had been taken back from A3 and
entrusted to D2. She also stated that there were disputes between her
husband and his father (A4) regarding family properties, of which D2
had been demanding partition. D2 had also been insisting upon transfer
to him of a petrol  bunkheld by A4. A4 refused to accede to his
demand.
PW3 said her husband and his father had not been talking to each other
for about two years prior to the incident.
45. PW-3 stated that on the date of the incident, D2 left
Arasarkulam along with D1, saying he wanted to meet his lawyer in
Aranthangi. He did not return. On 29th December, 1990, at about 8.00
a.m., she was told that her husband, that is D2, had been found dead
near the railway level crossing near Paapankulam, on the road from
Aranthangi. She said she told the police that she suspected the involvement
of A3 and A4 in view of the disputes over family property. On her own
admission what she deposed was based on suspicion. The evidence of
PW-3 does not establish any motive to murder D2.
46. The 4th Prosecution Witness, R. Raju (PW-4), is the conductor
of the MPTC bus in which PW-2 had been travelling. His evidence only
establishes that two bodies were found at a distance of about two furlongs
from the railway crossing, near a pond, and a motorcycle was lying on
the tar road, near the two dead bodies.
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
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47. The 5th Prosecution Witness, M. Shanmuga Sundaram, a
practising advocate in Aranthangi (PW-5), said that he knew D2, who
belonged to  his neighbouring village. He deposed that PW-5 and A4
were in the same political party in 1990. He denied having conducted
any civil case for D2, son of A4. He also asserted that he had not been
in Aranthangi on the date of the incident. He had gone to Chennai.
Nothing has emerged from the evidence of this witness to establish the
guilt of the accused.
48. The 6th Prosecution Witness, M. Balakrishnan alias Chinappu
(PW-6), deposed that he was a lorry broker at Puddukotai, who used to
arrange for purchase and hire of lorries. He said he knew A5 who had
been introduced to him by A1. He stated that in 1990 he had purchased
a lorry bearing TDB 9635 for A1 for which A5 had stood as guarantor.
A1 had paid the entire money for purchase of the said lorry. PW-6 said
that A5 had also helped him to sell that lorry.
49. PW-6 further stated that he had purchased the lorry bearing
the Registration No.TSL 6579 from one K. Mayilsami, a broker of Karur
(PW-7) for a sum of Rs.3,35,000/-. This witness said that A5 came to
Karur on 20.12.1990, that is, the date of purchase of the lorry and signed
the agreement for purchase of the lorry, which was drafted by A5. PW-
6 signed the agreement as a witness. PW-6 denied knowledge of what
had happened to the lorry after its delivery to A1. PW-6 stated that A1
had paid Rs.25,000/- on the date of agreement. He had agreed to pay
the balance amount within 15 days, but he did not do so. PW-6 stated
that the lorry purchased for A1 was parked outside the Court in a
completely changed condition.
50. PW-6 further deposed that he had gone to Arokyam’s
workshop, near the broker’s office at Manapparai, to see the lorry. He
said he had gone there alone. PW-6 deposed that the owner of the
workshop had asked him to take the lorry away from the workshop.
51. PW-6 said that he contacted Mayilsami (PW-7) through
telephone, but he was not in the village. PW-6 took the lorry to the
broker’s shop. A few days later, the Police came in a car,  went to the
RVS lorry shed, where the lorry was parked, and seized the lorry. A5
had also come with the police. PW-6 said that he had not seen A1 after
20.12.1990, whereupon he was declared hostile and cross-examined. In
his cross-examination he categorically denied having told the police that
A1 had come to his house before 6.30 a.m. on 29.12.1990.  PW-6
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categorically denied as incorrect, the statements to the police attributed
to him.
52. The 7th Prosecution Witness N. Mayilsami (PW-7), a broker
of Karur engaged in the business of purchase and sale of lorry under the
name and style of S.R.N Lorry Service, deposed that he had purchased
the lorry with Registration No.TSL 6579 from one Kamakshi of Chennai.
On 20.12.1990, A1, A5 and A6 had come to Karur to purchase a lorry
for a sum of Rs.3,35,000/-. PW-6 received Rs. 25,000/- from A1 and
advanced the aforesaid amount to PW-7. A further amount of
Rs. 25,000/- was to be paid within 4 days. This amount was paid on
24.12.1990. As per agreement, the balance had to be paid before
4.01.1991/-.
53. This witness deposed that the agreement was drafted by A5
and executed between A1 and PW-7, who signed it. PW-6 witnessed
the agreement and A5 signed the agreement as scribe.
54. PW-7 deposed that possession of the lorry was given to A1
and A5 on 20.12.1990. However, as full amount had not been paid, PW-
7 had only delivered photo copies of the Registration Certificate(RC),
Fitness Certificate (FC) and permit to them. PW-7 deposed that as per
agreement the balance was to be paid before 4.01.1991 but this was not
done. PW-7 stated that when he came back to Karur, he was told that
PW-6 had contacted him over telephone. He soon contacted PW-6
whereupon PW-6 told him that Aranthangi police had seized the lorry.
PW-7 gave photocopies of the RC, FC and permit to the police.
55. The 8th Prosecution Witness, S. Kumar (PW-8) stated that he
had been doing welding work with the welding machine installed at the
workshop of Arokyam of Manapparai. One night in 1990 when PW-8
was doing welding work at the said workshop of Arokyam, Arokyam
informed him that he was going out of town. He instructed PW-8 to
repair a lorry which had been brought to the  workshop for repair. PW-
8 said that after repairing the lorry he went to sleep. The next morning,
a Leyland lorry was brought to the workshop for repair before 4.00 a.m.
PW-8 could not say what was the registration Number of the lorry.
PW-8 said he was not in a position to identify the lorry as eight years had
elapsed.
56. PW-8 stated that A1 had come in the said lorry and claimed to
be the driver of the lorry. PW-8, had obviously not known the person
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who had brought the lorry, as otherwise that person would not have
asserted that he was the driver of the lorry. PW-8 however, identified
A1.  It is incredible that PW-8 should be able to recognize the driver of
the lorry as A1 after so many years, when he could not identify the lorry.
57. PW-8 said that A1 had told him that the lorry had been hit by
a bull. When PW-8 saw the lorry in the morning, he found the front
bottom light on the left was broken. A1 gave him Rs.100/- for repair
work and asked him to give the lorry to PW-6 after finishing the work.
58. PW-8 said that he had handed over the amount of Rs.100/- to
Arokyam and asked Arokyam to hand over the lorry to A6. Four days
later he went to the workshop and enquired about the lorry. He was told
that A6 had come and taken the lorry.
59. In cross-examination PW-8 testified that a job card was
prepared whenever vehicles were given to the workshop for repair. He
did not prepare a job card in this case, as he had been sleeping when the
lorry was brought to the workshop. PW-8 stated for the first time, in
cross examination, that the man who had brought the lorry was with him
till the forenoon. He said he had never seen the man again. The police
did not take him for identification parade. He said that there was no
evidence of the specific repair carried out in the lorry.
60. The evidence of PW-8, if accepted, would at best, establish
that a lorry with a broken side
light on the left, had been brought for
repair to Arokyam’s workshop, early one morning before 4.00 a.m. in
the year 1990.
61. PW-8’s evidence that A1 had brought the lorry cannot be
accepted, because it is virtually impossible that A1 should be able to
recognize A1 after so many years, and that too when he has himself said
that he had been sleeping when the lorry was brought to the workshop.
When  confronted in cross-examination, PW-8 tried to improve upon his
evidence by saying that the person who had brought the lorry was with
him till the forenoon, thereby contradicting his answer to an earlier
question, that he could not prepare the job card for repair because he
had been sleeping when the lorry was brought.  Moreover, if as deposed
by PW-8 the driver of the lorry had given him Rs.100/- towards repair
charges and instructed him that delivery of the lorry be given to PW-6,
there was no reason for the driver to stay at the workshop till forenoon.
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62. The 9th Prosecution Witness, Kuppusami (PW-9) denied
knowledge of the death of D1 and D2 and stated that he was not in the
village on the day of the incident.  He said that he had not been examined
by the police. This witness was declared hostile and permitted to be
cross-examined. In cross-examination by the prosecution this witness
refuted the suggestions put to him. He denied having made the statements
to the police attributed to him. He denied his presence at the place of
occurrence and also denied having been examined by the police.  Nothing
emerged from the cross examination of PW-9 to establish the guilt of
the accused.
63. The 10th Prosecution Witness, M. Abdul Jaffar (PW-10)
deposed that he knew A1 and A3 to A6, but did not know A2, A7 and
A8. He stated that the prosecution wanted him to be a witness and say
something about the death of two persons on the road. This witness was
declared hostile and cross-examined by the prosecution. He denied all
the material suggestions put to him and denied having made to the police,
the statements attributed to him. Nothing emerged from his cross-
examination.
64. The 11th Prosecution Witness, P. Raju (PW-11) engaged in the
business of flowers at Kattumavadi deposed that he did not know A1,
A3 or A4. He said he had never seen A7 before. He said he did not
know how D1 and D2 had died. He, however, knew they had died. He
further said that he had not been examined by the police.
65. PW-11 was declared hostile
and permitted to be cross-
examined. He denied the suggestions put to him in cross-examination.
In particular he denied the suggestion that he knew there was enmity
between A3 and A4 and D2. In cross-examination, he also denied having
seen A1 and two other persons get off from a lorry and go to a tea shop.
He denied the statements to the police attributed to him by way of
suggestions in cross-examination. He specifically denied having told the
police that A1 was in the lorry with A7.
66. The 12th Prosecution Witness A.R. Kittu alias Krishnamoorty
(PW-12), who was a resident of Karaikkudi and ran business in the
name of Arun Auto for repairing two wheelers, deposed that he did not
know A1. He further deposed that from 28.12.1990 to 31.12.1990 he
was not in his town. He had gone to Pondicherry to buy a car.  When he
returned home on 31.12.1990, one of the boys working in the workshop
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told him that a man had brought a Suzuki motorcycle for repairs and left
it at the workshop. Two days later, the police came to the workshop and
asked this witness to identify the person who had kept the two wheeler
in the workshop. On 1st or 2nd January, 1991, two mechanics came to
the workshop and asked for return of the motorcycle. Suspecting there
might be a police case, this witness asked the mechanics to get a consent
letter from the person who had left the motor cycle at the workshop.
Accordingly, they obtained and brought the consent letter,  whereupon
this witness returned the motor cycle. The letter was handed over  to
the police.
67. This witness deposed that he did not know A2. This witness
was also declared hostile and cross-examined by the prosecution. He
denied having made to the police the statements attributed to him. In
particular, he denied having told the police that a Leyland lorry was kept
near National Battery Works from 24.12.1990. He denied that he had
seen or spoken to A2. The material suggestions made to him have been
denied. Nothing has emerged in his examination to establish the guilt of
the accused.
68. The 13th Prosecution Witness V. Marimuthu (PW-13) only
stated that he knew the deceased and that the police had examined him
about the death of the deceased as he had been looking at the dead
bodies.  He stated that the police wanted him to fix his thumb impression
and he accordingly put
his thumb impression on some Paper. This witness
was declared hostile and cross-examined by the Prosecution. He flatly
refuted all the suggestions made to him.
69. The 14th Prosecution Witness S. Arokyam Raj (PW-14)
deposed that he had been running National Welding Works at Manapparai
for the last 20 years. He stated that he had known PW-8 who had worked
as a tinker in his workshop. He stated that when he remained out of
station, his brother managed the workshop and sometimes his employees
also managed the workshop.
70. PW-14 deposed that he had gone to Trichy on 28.12.1990 and
came back to Manapparai on 29.12.1990. During his absence his brother
and PW-8 had managed the workshop. This witness stated that when
he returned to his workshop, he saw the lorry TSL 6579 there. This
witness (PW-14) stated that PW-6, who used to bring lorries to his
workshop for repairs,  had requested him to repair the lorry, which had a
small dent in the front left side. The bolts and nuts were loose. The
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repairs were duly carried out. However, nobody turned up to take the
lorry back.
71. This deponent stated that 4 or 5 days later, he went to Trichy,
where he saw PW-6 at the bus stand. He told PW-6 that nobody had
taken back the lorry, which had been left in his workshop for repairs.
On the next day PW-6 came to the workshop, identified the lorry,  saying
that it had been sold by him, gave him the repair charges and took the
lorry away. This witness said that receipts were issued for major but not
minor work carried out at the workshop. For minor work, money used to
be taken, but no receipt issued.
72. The 15th Prosecution Witness, R. Ramamoorthy (PW-15) who
had been running Sri Lakshmi Automobiles Spare Parts Shop at
Manapparai, stated that he had issued cash receipt No.1253 dated
3.01.1991. He said a front sidelight of a heavy motorcycle had been sold
under the said bill, issued in respect of the lorry TSL 6579, for Rs.75/-.
No one had signed or initialled the Bill.
73. The 16th Prosecution Witness, J. Chinnasami (PW-16) who
had been running Sri Ganesh Agencies Automobiles Spare Parts Shop
at Manapparai deposed that on 3.01.1991, he had sold three bulbs for
the front side light of a lorry, for Rs.55/- against cash receipt No.5232
dated 3.01.1991. He identified the said cash receipt. The cash receipt
records that bulbs were sold for lorry TSL 6579. PW-16 said he had
written the particulars of the lorry and signed the bill and had been
examined by police.
74. The 17th Prosecution Witness, G. Baskaran (PW-17) deposed
that 4 or 5 years ago he had been the manager of the karaikkudi National
Battery Company, where batteries were sold and also recharged and
serviced. PW-17 stated that on 24.12.1990, when he was working a
Leyland lorry with registration No.TSL 6579 was brought to the shop
for getting its battery charged  and a cash bill of Rs.10/- was issued to
him. PW-17 stated that the counterfoil of the receipt (Ex.P6) had been
filled and initialled by him. He, however, could not remember who had
come to get the battery charged, since many years had elapsed. He said
that even after charging the battery, the lorry did not start. He said that
he had told the person who had brought the lorry, that the old battery
should be replaced by a new one. However, as no new battery was in
stock, a serviced battery was fitted in the lorry.  He said that the serviced
battery was never returned. The evidence of PW-17 only proves that
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the lorry was brought to the battery shop for getting its battery charged
four days before the incident. His evidence is of no help to the
Prosecution.
75. The 18th Prosecution Witness, Rasappan (PW-18) stated that
at the time of the occurrence he had been working as V.A.O. (Village
Administrative Officer) of Thirukkokarnam, holding additional charge
as V.A.O. Pudukkottai south. On 4.2.1991, when he was returning from
the Pudukkottai Taluk office, with his Assistant, Kaliamoorthy, he found
the Crime Branch Inspector, Aranthangi and two constables making
enquiries about the accused Abdul Hameed (A3) and the accused
Mohammed Ibrahim (A4) after arresting them in connection with a double
murder. He stated that the two accused were separately making oral
statements at around 3.00 p.m. PW-18 said that he and his Assistant
signed both the statements.
76. The 19th Prosecution Witness (PW-19) Chitravelu, V.A.O.
Athani village, Aranthangi (PW-19) deposed that on 8.2.1991, at around
1.00 p.m. he was going to a hotel along with his Assistant Mariappan.
Opposite the Avudayarkoil temple, he saw the Crime Branch Inspector
of Aranthangi and some other policemen talking to Sheikh Dawood (A5).
A5 told the police that if he were taken to Manapparai, he would show
the vehicle. His statement was recorded. PW-19 said that Ex.P7 was
the admissible portion of the confessional statement  made by A5. This
witness said that he and his Assistant
had put their signatures in the
statement. The number of the lorry was TSL 6579 and the make of the
lorry was Leyland. By 3.00 p.m. this witness, along with his Assistant,
accompanied the Crime Branch Inspector, Manapparai to the R.V.S.
lorry broker shed, where lorry TSL 6579 was parked. A5 identified the
lorry and the police seized it. By 7.45 p.m. the recovery Mahazar was
prepared and the same was signed by this witness and his Assistant.
This witness stated that the lorry which had been seized was Parked
outside the Court premises. This witness denied the suggestion made to
him in course of his cross examination on behalf of the accused, that his
signatures in Exs. P4, P5 and P9, as also the confessional statement had
been obtained at the Police Station.
77. The 20th Prosecution Witness Rajendran (PW-20), deposed
that at the time of the occurrence he had been VAO Thoothukkudi.
Early in the morning on 29.12.1990, his Assistant, Karuppan, came to
him and told him that two dead bodies had been found near Paapankulam
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on the road. On hearing this, he immediately went to the place of
occurrence with his Assistant, in a TVS 50 vehicle. He said that the
dead bodies were lying on the tar road in Sendurayanendal village, north
of Paapankulam and at a short distance there was a black coloured
motor cycle. The deceased were PW-1’s sister’s son and elder son of
A4. Bloodstains were spilt on the road. There were glass pieces. The
rear view mirror was broken into pieces. To the north of the scene of
occurrence, there was a mile  stone with the number 8. There were
broken teeth, a Reynold ball point pen and some coins on the road. This
witness stated that they were at the place of occurrence by 6.00 a.m. in
the morning. The police were also there. As it was dark, it was difficult
to detect things. The Inspector came at around 8.00 a.m. and prepared
a rough sketch. PW-20 said he had helped in preparing the sketch. The
place of occurrence was photographed and an observation Mahazar
prepared. By 3.00 p.m. the police seized the motor cycle, the glass and
plastic pieces found on the road, the coins, broken teeth, a watch, a ball
point pen and prepared a Mahazar which was signed by this witness.
PW-20 said that he was with the police when they recovered the objects.
By 5.00 p.m. the police collected bloodstained soil and small pieces of
blood stained tar from the road. PW-20 identified the left side mirror of
the motor cycle, left side indicator of the motor cycle, white plastic
pieces,
orange plastic pieces, ball point pen and other similar articles. Nothing
has emerged in the evidence of this witness to establish the guilt of the
accused.
78. The 21st Prosecution Witness, Chidambaram (PW-21) stated
that at the time of the occurrence he had been VAO, Kummangadu,
Aranthangi. One Ramanthan was his Village Assistant. He stated that
on 3.2.1991 at around 3.00 a.m. when he had been sleeping in his office,
a policeman sent by Inspector of police, Aranthangi came to him and
told him that the Inspector wanted him to assist the Inspector to arrest
the persons involved in a double murder. He stated that he went to the
police station and from there he went to Kattumavadi corner. The police
arrested Krishnan (A7) opposite the Plato TV centre. This witness could
not, however, identify A7 in the Court. He was handed over the portion
of the confessional statement of the accused Krishnan, marked Ex.P-13
claimed by the Prosecution to be admissible, which he identified. He
stated that Krishnan had said that if he were taken to Maangudi, he
would show the pond where he had thrown the iron rod. This witness
(PW-21) stated that this witness, his Village Assistant, Krishnan(A-7)
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and the police went to Maangudi. Krishnan (A7) got into the pond, and
took out the iron rod and handed it over to the police. The rod was not
sent for forensic examination. There were no blood stains or finger prints
on the iron rod, recovered from an easily accessible open pond. The
recovery, if any, is of no evidentiary value. This witness could not even
say whether the pond was filled with water or not. He also could not
identify A7.  He, however, asserted that M.O.23 was the iron rod. He
also stated that a Mahazar was prepared (Ex.P-14) which they signed.
Significantly, no other witness examined so far has said anything about
recovery of any iron rod from a pond at Maangudi.
79. Dr. Usen Mastha, Civil Assistant Surgeon, who had been
working as a doctor in the Government hospital Aranthangi, and had
conducted post mortem of D2 along with one Dr. Sivasubramaniyan,
deposed as the 22nd Prosecution Witness (PW-22).
80. This witness gave the details of external and internal injuries
found on the dead body of D2 and opined that D2 could have died 16 to
18 hours prior to the post mortem, as a result of the injuries and oozing of
blood. PW-22 identified the post mortem certificate prepared and signed
by him and confirmed that the same had also been signed by Dr.
Sivasubramaniyan. PW-22 opined that from their appearance, the injuries
on the chest and stomach of D2 could be said to have been caused by
reason of D2 being run
over by a vehicle. There were injuries on the
body of D2, which could have been caused if he had been hit by a
vehicle and had fallen on hard ground.
81. PW-22 further deposed that it was possible for a person who
fell on the ground, after being hit by a vehicle, to sustain simple injuries.
He opined that the nature of the injuries would depend on several factors,
including the speed of the vehicle, the part of the vehicle which hit the
victim, the object which hit the victim when he fell, and also the part of
the body which was hit.
82. PW-22 deposed that during the post mortem, both the hands
were seen fixed with the body and tyre marks were found in the same
measurement. PW opined that if a heavy motor vehicle ran over a person,
the tyre marks would not be visible. If a person fell after being hit by a
heavy vehicle, there were chances of fracture of the jaw bone and of
the teeth being broken.
83. PW-22 deposed that injury Nos. 1 and 3 were simple. Injury
No.1 could have been caused if a person fell down on being thrown off
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a vehicle. PW-22 deposed that injury Nos. 6 to 8 might have caused
death. Injury Nos. 9 to 11 might have been caused if a person had been
thrown off and had fallen on hard ground. When a person were thrown
off the bones in the part of the body which first hit the ground would
break.  PW-22 said the injuries in the face could have been caused by
the rod shown to him, that is, MO-23.
84. Even though, PW-22 in effect opined that, it was possible that
the injuries on the face could have been caused if the deceased had
been beaten on the face with an iron rod similar to M.O.-23, he also said
that some of these injuries (Injury Nos.1 and 3) were simple. Injuries 4
and 5 could also have been caused if a person had fallen after being
thrown off and that there was no impression of the deceased being hit
by M.O.-23. The evidence of this witness suggests the likelihood of D2
having been run over by a heavy vehicle, which caused his death.
85. Dr. Murugesan, Civil Assistant Surgeon who deposed as the
23rd Prosecution Witness (PW-23), had also been working as Assistant
Surgeon in the Government Hospital at Aranthangi at the time of
occurrence. He said that on 29.12.1990, the Inspector of police,
Aranthangi sent the dead body of D1 for autopsy. He said that he
conducted post mortem examination of the body along with Dr.
Karunakaran, who had been working as Assistant Surgeon in the same
hospital. PW-23 said that rigor mortis had set in when the dead body
was brought for
post mortem. The dead body was lying face upwards.
Injuries with blood were found all over the body and there were blood
clots in the nose and mouth. There was dried blood all  over the face
and blood was oozing out through both the ears.
86. PW-23 described the injuries found on D1, and opined that
death might have occurred 14 to 20 hours before the post mortem. He
said the post mortem had been completed by 5.45. p.m. on 29.12.1990.
PW-23 opined that D1 might have died due to injuries sustained in the
head and brain and other injuries in the body, and also shock and
haemorrhage. The injuries could have been caused if a vehicle had hit
the deceased. The injuries in the nose might have been caused by a
blunt object. The ribs might have been broken if the body had been
thrown off, or if it were run over by a vehicle. There were no tyre
marks. This witness stated that there would be no tyre marks if the tyres
were worn out. Immediate death would have occurred only due to the
head injuries.  Injury No.3 might have caused instantaneous death. The
injuries over the head and over the bodies might have been suffered at
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once or one after another. PW-23 stated that he had been examined
twice by the Investigating Officer. A rod similar to the rod which MO-23
had been shown to him. He stated that injury Nos. 3 and 4 could have
been caused if hit by a rod like MO-23. The rod, if used with force,
could cause Injury No.9 and injury No.10.
87. In cross-examination, this witness stated that accident could
have occurred if a stationary vehicle were hit by a moving vehicle, or if
there was collision between running vehicles. If a person injured in an
accident gets thrown off, there is possibility of the wheel running him
over. Injury nos. 3 and 4 could have been caused by a vehicle accident.
Injury nos. 9 and 10 might have been caused if the deceased were thrown
off with violent force. Injury nos. 5 to 8 could have been caused even if
a person were thrown off without much force.
88. From the evidence of this witness, it appears that the injuries
found on the body of D1 could have been caused if D1 had been thrown
off the motorcycle and landed on hard ground after collision with another
vehicle. The injuries could also have been caused if D1 were hit by a rod
similar to MO2. The opinion of this witness with regard to the cause of
D1’s death, is inconclusive.
89. The 24th Prosecution Witness Radhakrishnan (PW-24), who
had been working as Motor Vehicle Inspector Grade-I, Palani, Dindigul
district, described the damages on the motor cycle on which
the deceased
were riding. He opined that the damages could have been caused either
if the motor cycle had been hit by another vehicle or if the motor cycle
had fallen. His evidence is of no help to the Prosecution to establish the
guilt of the accused.
90. The 25th Prosecution Witness, P. Sivakumar a Scientific
Assistant Grade-I, Forensic Laboratory, Pudukkottai (PW-25)  deposed
that he had inspected the place of occurrence and the motor cycle on
which the deceased were travelling (MO-1). There were indications
that the vehicle had been hit by another vehicle. He had advised the
Investigating Officer to preserve the scraps of paint of the vehicle that
had hit the motor cycle (MO-1) and the scraps of paint of MO-1. There
were blood stains on the tar road near the motor cycle. There were also
signs of dragging the dead body along the road. There were yellow
coloured glass pieces, and white and orange coloured plastic pieces(MO-
16). This witness had advised that MO-16 and the blood on the tar road
be preserved. The witness said that from the tyre marks at the place of
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occurrence, it could be inferred that a heavy vehicle like a lorry might
have been involved. The broken orange and white coloured glass pieces
might have been from the indicator and the green, red and white paint
scraps might have been from the bumper.
91. PW-25 stated that he had also helped in investigating the lorry
being TSL 6579 on 9.2.1991. The left side of the lorry was tinkered. A
light coating of black and red could be noticed in the tinkered area. The
front bumper of the lorry was covered with two pieces of white metal
sheets. The yellow light on the right was found in good condition, but the
yellow light on the left was found broken. The number plate in front of
the lorry was not in good condition. He said that he had told the Inspector
to preserve the number plates. The headlight in front, had the letters T, I,
M and E. The other headlight had the word ‘LUCAS’. Two of the
indicators of the lorry were unscrewed. One had no plastic cover and
the other had a white and orange coloured cover. PW-25 stated that he
had advised the Inspector to send all the objects for chemical examination.
92. In cross-examination, this witness said that the sample paint
scrapings collected from the lorry and the motorbike had not been
analyzed by him. The quantity of paint at the place of occurrence was
not large. He could not say whether the paint found was mixed with oil
or was plastic paint. There was no laboratory in the district for analyzing
the paint. PW-25
deposed that heavy vehicles included buses, but a look
at the tyre marks at the place of occurrence gave the impression that
the vehicle could be a lorry. The tyre marks, which were about 8 inches
in breadth, could also correspond to the tyre of a bus.
93. PW-25 said that he did not have special knowledge of heavy
vehicles other than lorries and buses. He said the head lights of a bus,
lorry and a car were of the same size. The quality of the headlight as
also the glass cover of the indicator would depend on the manufacturer.
94. This witness could not say whether the glass pieces at the
place of occurrence were from a lorry, bus or car. This witness said the
quality of the paint would depend on the company which manufactured
the paint. He could not say which company had manufactured the paint
collected in this case. He also could not say when a part of the front side
of the lorry had been painted black and red.
95. The 26th Prosecution Witness, A. Subramanian (PW-26) only
stated that he had taken photographs of two dead bodies. Nothing much
has emerged from his examination.
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96. The 27th Prosecution Witness, Thiyagarajan (PW-27) also a
photographer, stated that he had taken photographs of the lorry at the
Aranthangi Police station. His evidence is of no relevance.
97. The 28th Prosecution Witness, P Sondarajan (PW-28) who
was a constable in the Trichy dog squad, stated that on 29.12.1990 he
went to Arasarkulam road with the police dog named ‘FRUIT’. There
were two dead bodies. The dog smelt the blood on the dead body. After
smelling the blood, the dog ran a short distance, got into Paapankulam
and went up to the water and started barking. The dog then returned to
the place where the dead bodies were found. Then it proceeded to
Arasarkulam and ran 2 or 3 streets. Suddenly it lay before a house in the
East Street, Arasarkulam. PW-28 said he did  not know the door number
or the owner of the house. The Inspector and the Dy. Superintendent of
Police came to the house where the dog lay and directed him to leave
the spot. He stated that the dog identified a material object. However,
this was objected to by the defence as not admissible under the Evidence
Act.
98. In cross-examination, PW-28 stated that he had told the police
about the places to which the police dog had gone after smelling the
dead body. He denied the suggestion that he was not able to recollect
the events, because of the lapse of 7/8 years. He stated that he was
giving evidence on the basis of entries in a diary. However, the
diary
was not brought to Court. If the evidence of this witness with regard to
the reactions of the dog, is to be accepted as indicative of the movements
of the person/persons who caused the death of D2 and D1, the evidence
would contradict the case sought to be made out by the Prosecution that
Accused Nos.1,2 and 7 were all in a lorry. If they had all come in a lorry,
they would also have left in the lorry. Nothing turns on the evidence of
this witness.
99. The 29th Prosecution Witness, P. Govindarajan (PW-29), a
constable in Manamelkudi Police Station deposed that on 30.4.1990, A4
had come to the Nagudi police station and complained against his son
D1. The complaint was Ex.P-20. The police  made inquiries and
thereafter advised D2 not to pick quarrels with his father, whereupon
D2 had promised that he would not fight with his father over family
property. His evidence has no connection with the occurrence of 28/29
December, 1990.
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100. The 30th Prosecution Witness, Sub-Inspector, G. Chinnadurai
(PW-30) stated that he had worked as Sub-Inspector at Jagadapattinam
from 14.9.1997 and sub-Inspector Nagudi from 8.7.1992. In 1989,
Sivasubramanian (since deceased) who had then been serving as
Inspector Aranthangi, had registered the case, Crime No.160/89 at
Nagudi police station under Section 145 of the Code of Criminal
Procedure. The complaint which related to land  involved  One Alaguraj
and Kasilingam on one aide and Perumal, Kumar Karuppiah and Rangan
on the other. This witness said he knew  Sivasubramanian’s handwriting
and signature. In cross-examination this witness could not say if the
complaint was lodged because of the refusal of Perumal and others to
vacate disputed land. The evidence of this witness also has no bearing
on the incident which took place on 28/29 December, 1990.
101. The 31st Prosecution Witness A. Hamsat (PW-31), a Head
Constable of Avudayarkoil Police Station, stated that at the time of
occurrence he had been a Grade-II constable at Aranthangi and had
taken the dead body of D2 to the Government Hospital for post mortem
and brought it back after the post mortem. His evidence is of no relevance
to the guilt of the accused.
102. The 32nd Prosecution Witness R. Sethu (PW-32), who had
been Sub-Inspector at Aranthangi police station on 29.12.1990, had
registered the complaint lodged by PW-1, on the basis of which Crime
No.668/90 was started. He said that the FIR
(Ex.P2) was sent to the
Court of the Judicial Magistrate on the same day. His evidence is of no
relevance. None of the accused except the A1 were even named in the
FIR. Even so far as A1 is concerned, there is nothing concrete in the
FIR. A finger of suspicion has only been pointed towards him.
103. Nothing significant has emerged from the examination of the
33rd Prosecution Witness P. Kannappan (PW-33) who had only sent a
requisition (Ex P-22) to Court to forward material objects concerning
the case for chemical analysis report from the Forensic Science
Laboratory, Chennai.  He was later transferred.
104. The 34th Prosecution Witness, A.S. Ramu,  Chief Scientific
Assistant of the Forensic Laboratory at Chennai (PW-34), a handwriting
expert with experience of about 20 years in examination of questionable
documents stated, that he had been required to compare the handwriting
of the entries in Serial No. 942 at Page 54 of a Register belonging to
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Malar Lodge Hotel Karaikudi (Ex P-24) which he had numbered Q1
and Q2 with the specimen handwriting and signatures of one of the
accused (A8). Even assuming, that the signature and handwriting  of A8
was there in the register, it only establishes that the said accused may
have visited the hotel six months before the incident.
105. The 35th Prosecution witness, Mr. Francis Xavier (PW-35)
the Assistant Director, Forensic Science Laboratory, Ramanathapuram
Range, who had been Assistant Forensic Science Department, Chennai
from 13.3.1989 to 15.5.1992 found similarities between objects collected
from the place of occurrence and scrapings and/or objects attached to
the vehicle being TSL 6579.  However, in cross-examination this witness
could not say whether the indicators (MO-34 and 35)  related to a motor
cycle or not. He stated that he had no training in the aforesaid division.
He could not say if MO 32-33 were from a bus, lorry or car. He said that
every category of paint could not be identified. He did not know how
many kinds of paint were available. He said that the paint would have to
be sent to a laboratory for analysis and opinion obtained thereafter for
ascertaining the category. He stated that the kind of paint received in
the laboratory was enamel paint, which is produced by several companies.
He distinguished between similar and identical. He stated that the
LUCAS front light could not specifically be related to
any particular
vehicle. The indicator mentioned in his report was that of a motor cycle.
His opinion did not mention which company produced it. The letters in
the broken yellow glass pieces, were assembled together and compared
with the unbroken yellow glass of the lorry, but the diameter thickness
and other physical parameters had not been analysed. He had given his
opinion without any physical analysis of the diameter, length, etc. When
the 30 broken glass pieces were joined together, the letters DE IN INDIA
could be seen.
106. The 36th Prosecution Witness, A. Allimuthu, Inspector of
Police (PW-36) had taken up investigation of the case on 3.2.1992. He
stated that the accused had not been arrested till 5.6.1992. He searched
them. On 24.6.1992 he had gone to Karaikudi with witnesses
Chidambaram (PW-21) and Ramanathan and seized the register of Malar
Lodge for the period from 5.5.1990 to 11.8.1990 (Ex P-24) under Mahazar
(Ex P-28). On 24.6.1992, he had gone to village Unjanai and obtained
the handwriting and signatures of Ramasami (A-8) under Mahazar (Ex.
P-25). On 24.6.1992, he had examined Chidambaram (PW-21),
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Ramanathan, Driver Mahalingam and  Raju (PW-4) and recorded their
statements. On 25.6.1992, he had examined the complainant (PW-1),
Nogoor Gani(PW-2) Shanmuga Sundaram (PW-5) and witness
Ganapathy and recorded their statements. On 26.6.1992 the seized
signatures and hand writings were sent to Court for onward transmission
to the chemical laboratory under requsition (P-29). He said that he also
examined Sub Inspector Chinnadurai(PW-30), Head Constable
Govindarajan (PW-29) and A-4 and recorded  their statements. In cross-
examination he stated that he had not arrested any of the accused. The
4th accused (A4), had not been cited as an accused and was therefore
not arrested. On 24.6.1992, A8 surrendered before the court and was
granted bail.
107. The 37th Prosecution Witness Radhika,  a scientific Assistant
Grade-I in the Forensic Science Laboratory, Chennai (PW-37) stated
that the Judicial Magistrate, Aranthangi had sent a letter requesting for a
Serology report in Crime No. 668/1990. She identified the Serology Report
Ex-32. The report is in respect of clothes, broken teeth, earth, metal rod
etc. found at the place of occurrence, and does not relate to the accused
in any way.
108. The 38th Prosecution Witness M. Radhamani (PW-38), a
Scientific Assistant Grade-I stated that the blood sent for examination
was human blood, but grouping was not possible. The blood in two glass
tubes, which were of D1 and D2 was examined but the grouping was
inconclusive. Some
items of the material objects being P1 contained
human blood of ‘O’ group.  Grouping of blood found in some other articles
was not possible. Her evidence has no relevance to the guilt of the
accused.
109. The 39th Prosecution Witness Farooq, a resident of
Arasarkulam Melpathi (PW-39) stated that he knew A1 to A7 but he did
not know A8. He stated that A4’s house was situated to the east of his
house. A2 and A7 used to come to A3’s house. He also used to go to
A3’s house. He thus got acquainted with A2 and A7. He knew that D2,
son of A4 had died. He knew that D1 was PW-1’s sister’s son. He had
also died. He stated that on the date of the incident, he was in his rice
mill at Aranthangi. On the date of the incident, his partner’s son, who
used to bring his meals from his house, did not come with his meals. His
partner went to look for his son, but was told on the way, that bus services
had got disrupted because of a murder. He was also told that D2 and D1
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had been murdered by using a lorry. Thereafter, PW-39 went and saw
the dead bodies on the roadside.
110. The evidence of PW-39 with regard to the murder of the
deceased is apparently based on conjectural hearsay. No other witness
has said anything about disruption of bus service or of any rumour of
murder. This witness stated that he had not been examined by the police,
whereupon he was declared hostile and cross-examined by the
prosecution. In cross-examination he denied having told the police that
A8 used to visit the house of A3 with A2 and A7. He denied having
made the statements to the police, attributed to him by way of suggestions.
He denied having told the police that A1 had taken him and PW-10 to
Karaikudi to purchase lorry spare parts. He denied having told the police,
that after they reached Aranthangi, they were joined by A4 and A5. He
denied having told the police that they went to Malar Lodge Hotel. He
denied having told the police that the accused had conspired to kill D2.
He denied that A1 had asserted that he would kill D2 with the help of a
lorry. He denied having made any statement with regard to the accused
arranging a lorry. He categorically denied having made the statements
allegedly recorded by police under Section 161 Cr.PC. In particular he
denied having visited the Malar Lodge Hotel or of having seen or heard
the accused conspiring against D2. He denied that he had seen that the
accused were
in a room which was locked from inside as alleged by the
police.
111. The 40th Prosecution Witness, Alagappan (PW-40), who had
worked as Manager, Malar Hotel, Karaikkudi from 1989 to 1991 denied
that he knew A8. He said that he did not know A2. He said that there
was lodging facility in Hotel Malar.  The police came and made enquiries.
He said that there was an admission register in the Malar Lodge Hotel.
On 21.6.1991, the Receptionist had made an endorsement at Sl. 942 of
the Register. He said that the Receptionist used to enter the particulars
of the persons who used to come and stay in the hotel. This witness was
also declared hostile and cross-examined by the prosecution. In cross-
examination he denied all the suggestions made to him. He denied having
made the statements to the police attributed to him. Nothing has emerged
from the examination of this witness to establish the guilt of the accused.
112. The 41st Prosecution Witness, Dr. S. Diwakar (PW-41), a
Professor of Forensic Science of Vinayaka Medical College Hospital,
Salem certified that the teeth examined by him were of a human body.
His evidence is of no relevance to the guilt of the accused.
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113. The 42nd Prosecution Witness, Rajagopal (PW-42), Motor
Vehicles Inspector stated that he had inspected the lorry at the request
of the Inspector of the Crime Branch and had found the left side bumper
and grill dented slightly at a height of 2 inches from the ground level.
The condition of the brake was 60%. The condition of steering and tyres
were satisfactory. He opined that the occurrence was not due to
mechanical defect of the vehicle. He said that he had not noticed any
other damages in the vehicle kept in Aranthangi police station. He said
he could not remember whether he had been examined by the Inspector
of Police on 16.2.1991. This witness was also declared hostile and cross-
examined by the prosecution. In his cross-examination PW-42 denied
having made to the police, the statements attributed to him. He said that
tinkering work had been done on the lorry. The headlights on the right
had the word ‘LUCAS’ but on the left side there was a new ‘Diamond’
light. It was thus apparent that one of the headlights had been changed.
This witness denied having told the police that the damages could have
occurred due to an accident. This witness was unable to recollect whether
the questions put to him by the prosecution in Court, had been put to him
by the police.
114. The 43rd Prosecution Witness,  Anbuchelian (PW-43), being
the Deputy Superintendent of Police, Ooothukottai, Thiruvallur District,
from 2.1.1991 to 7.9.1991, had taken up investigation in
Crime No. 668/
1990  at Aranthangi police station on 25.2.1991.  He stated that A1, A2
and A8 were absconding at that time. A8 obtained anticipatory bail from
the Sessions Court  at Pudukkottai on 26.2.1991. PW-43 said that on
13.3.1991 he had examined witnesses Mohamed Ali Jinnah, Akbar John,
Raju (PW-2), Sahul Hameeed(PW-1) and Basheera Begum(PW-3) and
recorded their statements. On 14.3.1991 he had examined the witnesses
Baskaran(PW-17) Sundaresan, Alagappan (PW-40), Chidambaram (PW-
2), Kittu @ Krishnamoorthy (PW-12) and recorded their statements.
When he examined Alagappan (PW-40) he had given PW-43 a copy of
Page 54 of the booking register of Hotel Malar. This witness said that he
had compared it with the original. He gave xerox copies of advance
receipt No.5825 dated 21.4.1990 and  cash receipt No. 7409 dated
22.6.1990.
115. PW-43 said that on 15.31991, he had examined witnesses
Abu Sali and Dr. Usen Masthan(PW-22) and recorded their statements.
On 16.3.1991, he had examined Dr. Karunakaran, Dr. Sivasubramanian,
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Dr. Murugesan (PW-23) and recorded their statements. On 18.3.1991,
he had examined the witness Sivakumar, Scientific Assistant (PW-25).
On 26.3.1991 he had examined Prem and Jayakumar and recorded their
statements. On 27.3.1991, he had examined witnesses Goyel and Nagari
and recorded their statements.
116. This witness said that on 24.4.1991, the anticipatory bail
granted to A3 and A4 was cancelled by the Madras High Court and on
29.4.1991 they both surrendered before the Judicial Magistrate No.2,
Pudukkottai. On the same day, they were sent to judicial custody after
which bail was granted to them by the Sessions Court, Pudukkottai. He
said that to secure the presence of A1 who had gone abroad, the
Superintendent of Police, Pudukkottai had sent a letter dated 18.4.1991
to the Director General of Police, Chennai, who in turn addressed the
Central Government through the Home Secretary of the State, requesting
that the passport of A1 be impounded and he be brought back to India.
On 20.4.1991, the Superintendent of Police sent a wireless message to
all check posts in India including sea ports and airports requesting the
concerned authorities to be vigilant and to arrest A1 if he passed through
them. Thereafter he was transferred. Further Investigation was done
by his successor.
117. This witness deposed that on 13.3.1991 when he had examined
PW-11, PW-11 told him that A1 could drive a lorry, a car as well as a
motor
cycle. PW-11 had stated that he had seen A1 driving a lorry on
several occasions. This witness also said that PW-12, Kittu @
Krishnamoorthy had told him that A2 was acquainted to him and that he
had seen lorry TSL 6579 standing near the National Battery Works,
Maharnonbu Agraharam, Karaikkudi from 24.12.1990 to 27.12.1990.
PW-12 told this witness that he had asked A2 why he had kept the lorry
in the street, whereupon A2 had told him that he wanted to change the
battery of the lorry which belonged to A1. A2 had told PW-12 that the
lorry would be in his custody for 2 to 3 days. This witness said that PW-
40, Alagappan, had been examined on 14.3.1991.
118. In cross-examination PW-43 admitted that even though the
FIR named  P.L. Subbiah, Perumal, Kumar, Kulanthaiyan and a few
others as suspects, PW-43 did not examine them.  He said, he did not
examine them because, the Inspector who had earlier been in charge of
investigation, had examined them. This witness was unable to say when
the persons named above were examined by his predecessor. He also
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could not recollect whether the persons were arrested, without going
through all the files. He said that he had started the investigation after
reading the relevant files. Dr. Usen Masthan (PW-22), Dr. Murugesan,
PW-11 and PW-12 had been examined by  his predecessor. In the FIR,
the accused other than A3 were not named. A1 was named as as an
accused on 4.2.1991 as also A4 to A8.
119. The 44th Prosecution Witness Raja, Inspector of Police,
Myladudurai (PW-44) said that on 28.12.1990 he had been working as
Crime Branch Inspector, Aranthangi. On 28/29.12.1990, Sahul Hameed
S/o Mohammed Maideen (PW-1) lodged a complaint at the Police Station.
The Officer in Charge of the Police Station received the complaint  and
registered the case, Crime No.668/90 under Section 302 of the Indian
Penal Code. The complaint was received before 2.00 a.m. PW-44 said
that as the Law and Order Inspector was on leave, PW-44 had taken up
the investigation. He had gone to the place of occurrence and made
security arrangements. Thereafter, he had returned to the station and
sent intimation through wireless to the District Record Office, Finger
Print Bureau, Photographer and the Dog Squad. Thereafter, he went to
the place of occurrence. As the police photographer had not come, he
had arranged for a private photographer to take photographs. He said
he had prepared an observation Mahazar (Ex. P-10) in the presence of
witnesses and a Rough Sketch of the place of occurrence (Ex.P-37).
He
said that he had served summons to Sahul Hameed (PW-1), Meera,
Bashira Begum(PW-3) and Mumtaz Begum and started inquest on the
dead body of D1 in the presence of Panchayatdars by 9.00 a.m. and had
recorded statements of witnesses. After Inquest he had sent the dead
body to the Government Hospital at Aranthangi for post mortem through
P.C. No.142 Amjad. He identified the Inquest Report (Ex. P38). This
witness said that he thereafter conducted inquest of the dead body of
D2 and sent the same for post mortem to the Government Hospital,
Aranthangi through P.C. No.638 Chinniah. He identified the Inquest Report
in respect of D2.
120. This witness further deposed that from 15:30 hrs to 16:45 hrs
this witness seized material objects 1 to 17 with the help of a Scientific
Assistant, in the presence of  VAO (Village Administrative Officer)
Rajendran(PW-20) and Karuppan, the Village Assistant. The Mahazar
is Ex. P-11. This witness said he had seized one wrist watch from the
place of occurrence (MO-39). On the same day, he had collected blood
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stained tarred earth, blood stained soil and sample soil and prepared a
Mahazar (Ex. P-12).
121. PW-44 said that he had searched for the suspected accused
on 30.12.1990, 31.12.1990 and from 1.1.1991 to 4.1.1991. PW-44 said
that he had sent a special report regarding the seizure of Bajaj TN55
1406 motor bike and arranged for inspection of the same by the Motor
Vehicle Inspector. On 8.1.1991, PW-44 went to Tiruchirapalli (Trichy)
and examined two police constables, P.C. 1062, Sondarajan (PW-28)
and P.C. 2993, Rajendran (PW-20), and the trainers of police dogs and
recorded their statements.
122. PW-44 deposed that on 12.1.1991, the suspected accused,
named in the FIR, Subbiah, Perumal Kumar and Kulanthaiyan
surrendered before the Magistrate, Orathanadu and were detained in
the sub jail, Pudukkottai.  On 15.1.1991, PW-44 examined post mortem
doctors and recorded their statements.
123. PW-44 stated that on 17.1.1991, he came to learn that on
30.10.1990 one Balasundaram S/o Darmalingam had purchased a lorry
with the Registration Number TB 9635 from A-1. On 29.1.1991 PW-44
examined Fakrudeen, Marimuthu and recorded their statements. On
2.2.1991, he examined Saathiah and PW-9 Kuppusamy and recorded
their statements.
124. PW-44 stated that, on 4.2.1991 he arrested Abdul Hameed
(A-3) in the presence of Rajappan and Kaliamoorthy in front of Taluk
office, Pudukkottai and obtained  a confessional statement from him.
On the same
day at 5.00 p.m., he arrested Md. Ibrahim (A4) and recorded
his statement. Thereafter, he went to Aranthangi police station and put
the accused in the lock up  by about 10 p.m.
125. PW 44 deposed that on 5.2.1991 both the accused were sent
to Court with the remand report. On 7.2.1991 this witness examined
PW-40 C.T. Alagapan and recorded his statement. On 8.2.1991 at 1.30
p.m., PW-44 arrested A-5 Sheikh Dawood in the presence of PW-19
Chitravelu and C. Mariappan and recorded his statement.  He identified
the admissible portion of the confessional statement which is Ex.P7.
126. PW-44 deposed that he took A5 to Manapparai with the
witnesses and seized lorry no. TSL 6579, which was in the custody of
PW-6 Chinappu, from the RVS lorry broker shed at Manapparai. He
said that in the Mahazar he had stated that the registration number in the
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number plate in front of the lorry (MO-40), was scraped and erased.
PW-44 further said that by 8.30 p.m., he had  recovered two cash bills
from PW-6 under a Mahazar (Ex.P-4 and Ex.P-9). He said he had
examined witnesses PW-19 Chitravelu, Mariappan,  PW-6 Balakrishnan,
PW-14 Arockiyaraj, PW-8 S.Kumar, PW-15 Ramamoorthy, PW-16
Chinnasami and recorded their statements. He had, thereafter, returned
to Aranthangi with A5 and put him in the lock up. On 9.2.1991, he sent
A5 to the Judicial Magistrate along with remand report.
127. PW-44 deposed that, on 13.2.1991 he examined witnesses
Chidambaram (PW-21), Ramanathan, Raju (PW-11), Challakkannu and
A.R. Kittu (PW-12) and recorded their statements. On the same day by
3.30 a.m., he arrested A7 Krishnan in the presence of Chidambaram
(PW-21) and Ramanathan in front of the Plato T.V. Centre at Taluk
office Road, and recorded his confessional statement. He identified the
admissible portion of the statement as Ex.P-13. He said that by 6.30
p.m. he brought A-7 to Maangudi village and seized M.O.23 in the
presence of witnesses. Thereafter, he returned to the police station and
sent the accused back to judicial custody on the same day.
128. PW-44 deposed that on 12.2.1991 he had sent a special report
to the Motor Vehicle Inspector for inspection of the seized lorry TSL
6579. On 15.2.1991, he examined Mayilsami and recorded his statement.
On 16.2.1991, he examined P.C 142 and PC 638 and recorded their
statements. On
18.2.1991, he examined Kaliamoorthy and Rajagopal
(PW-42) regarding inspection of the Motor vehicle and recorded their
statements. On the same day, he sent the seized objects to the Court.
On 25.2.1991 the Inspector, Law and Order resumed duty, whereupon
he handed over the file to the said Inspector, Law and order for further
investigation.
129.  In his deposition, PW-44 said that during examination PW-6
Chinnappu @ Balakrishnan had told him that on 29.12.1990 at 6.30 a.m.
A1 came to his house and informed him that he had left the lorry
purchased by him in the workshop of Arokyam at Mannapparai. This
has, however been denied by PW-6. PW-6 told PW-44 that A-1 had told
him that the  head lamps and side light of the lorry had broken.  PW-6
also told PW-44 that A1 had given Rs.100/-  to the workshop for necessary
repairs. PW-44 said that PW-6 had told him that A1 had requested PW-
6 to pay the balance and arrange to sell the lorry and settle the accounts.
PW-44 also said that PW-6 had told him that A1 had come to his house
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after two days, paid him Rs.25,000/- and asked him to sell the lorry with
the help of A5 and to adjust the accounts, as there was possibility of his
going abroad. PW-44 said that PW-6 told him that he had handed over
the amount of Rs. 25,000/- to Mayilsami of Karur (PW-7). PW-44
deposed that PW-6 had told him that the next day PW-6 stayed in the
VRS lorry shed and on the following morning he went to Arokyam’s
workshop where the lorry was kept and enquired whether the repairs
had been carried out. The workshop boy told him that the necessary
repairs had been carried out. The following day, PW-6 came to the
workshop, paid  Rs.75/- towards repair charges and took the lorry away
by engaging a driver. PW-44 said that PW-6 had also told him that A5
had asked PW-6 whether A1 had seen PW-6 and settled the accounts.
PW-44 said that A5 had requested PW-6 to arrange to get the lorry sold.
PW-44 stated that PW-6 had told him that the police had brought A5 and
seized the lorry. PW-6 handed over 2 cash bills for Rs.75/- and Rs.50/-
both dated 3.1.1991 to the police.
130. PW-44 said that he had examined Kuppusami (PW-9), who
had told him that he knew both D2 and D1. PW-9 told PW-44 that, on
29.12.1990 one Saathiah had requested him to accompany him to the
cinema. As it was late, they both rode a single bicycle. When they reached
Paapankulam at 10.30 p.m., they saw a lorry bearing Regn. No.6579
standing on the road side. They
presumed that the lorry might have been
parked on the road for repair. PW 9 told PW-44 that when he and Saathaih
were proceeding to Pervurani cross road, they saw D1 riding a motor
cycle and when they crossed, they asked D1 whether the cinema had
begun  whereupon he replied that it was about to end. PW-9 and Saathiah,
therefore returned. While returning PW-9 felt pain in the stomach and
so he went to the side of the tank to answer the call of nature. By that
time, the lorry which was standing at the road side was started by A1
and driven by him towards Aranthangi. Within a few minutes an MPTC
bus crossed them on the Arasarkulam road. While returning PW-9 saw
two dead bodies lying on the road and a motor cycle lying near them.
This was, however, categorically denied by PW-9 in his evidence.
131. PW-44 deposed that when he examined PW-11 Raju, he told
PW-44 that he knew that there had been enmity between Abdul Hameed
(A-3) Mohamed Ibrahim (A4) and Raja Mohamed (D2) over land. He
knew Jafar Ali (A-1) as well. PW-44 deposed that PW-11 told him that
when PW-11 was in his shop at around 9.00 p.m. on 28.12.1990, a Leyland
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lorry came and stopped at the kattumavadi corner and Jafar Ali(A1) and
2 others got down from the lorry and proceeded towards a tea shop.
PW-11 told PW-44 that PW-11 had called Jafar Ali (A1) and asked if he
had purchased a new lorry.  Jafar Ali (A1) replied that the lorry belonged
to his friend. When PW-11 asked A-1 who were the persons
accompanying A1, he replied that they belonged to Karaikkudi. PW-11
told PW-44 that he had noted the Registration No. of the lorry as TSL
6579. PW-44 deposed that PW-11 had also told him that he had known
one of the 2 persons accompanying A1, whom he identified.
132. PW-44 said that he examined PW-13, V. Marimuthu, who
told him that on 28.12.1990 he had been returning from Aranthangi in an
MPTC bus. At around 11.45 p.m. when the bus was approaching
Paravurani Road west of Arsarkulam diversion, he saw that Saathiah
who belonged to his village was standing and when the bus crossed the
railway gate and was proceeding near the bank of Paapankulam he saw
2 persons lying on the road and a motor cycle was lying by their side.
Saathiah has not been examined as a witness in the trial.
133. PW-44 said that during his examination PW-12 Kittu @
Krishnamoorthy, had told him that Jafar Ali (A1) used visit his workshop
for repair of his motor cycle, so he knew him very well. On 28.12.1990
at 6.00 p.m., Jafar Ali (A1) had brought his TVS Suzuki motor cycle
bearing Registration No.TCO 8561 for repairs and left it in the workshop.
On
1.1.1991, the said Jafar Ali had come to the workshop and asked
whether the repairing work had been completed. On being told that the
repair would take 2 more days, Jafar Ali (A1) told PW-12 to hand over
the vehicle to the person who would come with his letter. On 4.1.1991
one mechanic Kumar came with a letter and on seeing the letter PW-12
handed over the motorcycle and the letter to Kumar.
134. PW-44 said that he had examined.  PW-39, Farooq who  told
him that one Ramasamy Ambalam @Unjanai Ramasamy (A8), Balu @
Balusamy(A2) and Krishnan(A7) used to visit A3, Hameed Rowther’s
house. PW-39 therefore knew them well.  He said that five months
before 4.2.1991, Jafar Ali (A1) had asked PW-39 Farooq, PW-10 and
M. Abdul Jafar to accompany him to Karaikudi for purchasing lorry
spare parts. After they arrived at Aranthangi, Dawood(A5) and
Ibrahim(A4) joined him and then they went to Malar Lodge, karaikudi,
where Balu(A2), Abdul Hameed(A3), Bashir Ali, Krishnan(A7), Unjanai
Ramasamy(A8) were also there. They locked the door and had a
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discussion. PW-39 told PW-44 that Jafar Ali, Abdul Hameed, Mohamed
Ibrahim and Sheikh Dawood spoke ill of Raj Mohamed (D2) and decided
to murder him. Jafar Ali said that he would kill Raj Mohamed by hitting
him with a lorry for which he required assistance. Unjanai Ramasamy
asked Balu and Krishnan to assist Jafar Ali. The conspiracy took took
place at 10.30 p.m. after which they dispersed. PW-44 stated that PW-
39 told him that PW-39 did not sleep the whole night. The next morning
PW-39 and PW-10 Abdul Jafar went to the house of Abdul Hameed.
Farooq Ali told Abdul Hameed that they had gone to Karaikudi as
requested by Jafar Ali. Everyone conspired to kill D2. Abdul Hameed
told them not to reveal this to anyone. However, PW-39 denied having
made such statements to the police and was declared hostile.
135. PW-44 said that he had examined PW-40 Alagappan,
Manager, Malar Lodge Hotel who had told him that  on 21.6.1990 Unjani
Ramasamy had come to the lodge to book Room No.401 and made
entries in the register.  When Alagappan asked him why he was reserving
a room, Ramasamy had replied that there would be a panchayat and
parties would come.
136. In cross-examination PW-44 said that after inspecting the
place of occurrence he was of the view that the persons lying dead must
have been murdered and he continued his investigation on that basis.
PW-44 said that, even before examination of the doctors, who had
conducted the post
mortem, PW-44 had come to conclusion that the
deceased had been murdered. After examining the doctors PW-44
became certain. He took up investigation on the basis that the case was
of murder. After examining Mumtaz Begum, he arrived at the final
conclusion that the deceased persons had been murdered. He added the
offence of Section 120B of IPC on 4.2.1991. He said after examining
PW-39 Farooq and PW-10 Abdul Jafar he knew that there was a
conspiracy behind the murder, which had taken place on 21.6.1990 in
the Malar Lodge Hotel at Karaikudi. Significantly both PW-39 and PW-
10 denied this and were declared hostile. PW-44 said that when he
arrested the accused and recorded their confessional statement, the
Village Administrative Officer and his Assistant concerned signed as
witnesses. No signature was obtained from any uninterested and/or
independent witness. In the case file PW-44 did not state that no
independent witness had come forward to sign the confessional statement.
PW-44 said that he had not examined Sethu, the Sub-Inspector of Police.
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Nor had he asked him why he had straight away registered the case
under Section 302 on the basis of the complaint of the PW-1. PW-44
denied the suggestion that he had conducted the investigation at the
dictates of PW-1 and his supporters.
137. The 45th Prosecution Witness, Kalairaj, Inspector of Police
(PW-45) said that he had been the Inspector of Police, Crime Branch,
Pudukkottai and had received information that the case Crime No. 668/
1990 under Section 302 and 120B IPC of Aranthangi Police Station had
been transferred for investigation to another Investigation Officer.  On
15.7.1992, PW-45 had received the order of DGP dated 16.6.1992 to
continue the investigation after which  he received the case files and
continued with the investigation as ordered. PW-45 deposed that on
25.7.1992, PW-45 inspected the place of occurrence, examined the
complainant and searched for A1 and A2.  From 1.9.1992  till 28.12.1992,
he gathered information about A1 and A2 and he sent reports through
his superior officers to facilitate the return of A1 to India from Bahrain
and A2 from Singapore to India.
138. This witness said that on 30.12.1992, he had examined Meera,
Bashira Begum (PW-3), Mumtaz Begum, Raja, Durai and karuppan but
he had not recorded their statements.  On 16.3.1993, he had  examined
Dr. Hussain Masthan (PW-22), Dr. Murugesan (PW-23), Faqruddin,
Manimuthu, Saathiah and Kuppusamy (PW-9). On 27.5.1993 he had
examined Baskaran (PW-17), Alagappan (PW-40),
Sundaresan,
Chidambaram (PW-21), Rajendran (PW-20) and Chokklingam. On
4.6.1993 he had examined Chitravelu (PW-19), Mariappan, Chidambaram
(PW-21), Ramanathan, Raju (PW-4) and Chellappan. On 12.7.1993, he
had gone to Karur and examined Mayilsamy (PW-7). On 14.7.1993 he
had examined P. Sondarajan (PW-28), Rajendran(PW-20), Dr. Radha
Krishnan (PW-24), Arokya Raj (PW-14),  Kumar (PW-8), Ramamoorthy
(PW-15) and Chinnasamy (PW-16). On 15.7.1993 he had examined
Amjad, Chinniah, Subraminian, Abu Sali.  On 14.10.1993 he had examined
Raju (PW-4), Mahaligam, Rajappa, Balakrishnan (PW-6) and
Kaliamoorthy. On 17.7.1993 he had examined non-resident Indian
Fathima and recorded her statement. On 30.8.1993 he had applied for
copies of documents in the Court of Judicial Magistrate, Aranthangi.
He perused the documents and handed over the case filed to the Public
Prosecutor to prepare a rough chargesheet. On 3.11.1993 he submitted
the rough chargesheet received from office of Public Prosecutor to the
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CBCID Superintendent. On 10.12.1993 he examined Dr. Thiyagarajan
(PW-27), S.I Sethu (PW-32) and recorded their statements.
139. In cross-examination this witness said that the case files
were with him from the date of commencement of investigation by him
till date. He had examined S.I. Sethu (PW-32) who had received the
complaint and registered the case being Crime Number 668/1990. This
witness had not asked Sethu why he had registered the case under Section
302 IPC at the initial stage itself. This witness said he had not examined
PW-39 Farooq and PW-10 about the conspiracy. He denied that he had
supported PW-1 Sahul Hameed as he belonged to the ruling party and
had colluded to implicate A2 to A8 in the offence of conspiracy.  He said
he had recorded the statements of those witnesses whom he had
examined and not those who had been examined earlier. He said he had
examined Fathima Beevi and recorded her statement. He said he had
not recorded the statements of witnesses who had been examined earlier
and re-examined by him. He denied that he had not seen A2 till the
chargesheet was filed. He denied that A2 was not in India at the time of
the conspiracy.
140. As stated above, no defence witness was examined on behalf
of the accused. All the accused persons offered themselves for
examination under Section 313 of the Code of the Criminal Procedure
Code. They denied their guilt and claimed to be innocent.
141. The
Prosecution was required to prove beyond reasonable
doubt, that pursuant to a conspiracy between A1 to A8, A1, A2 and A3
murdered D2 and D1. A1 driving his lorry No.TSL 6579, dashed against
the motor cycle which D2 and D1 were riding, and thereafter A-2 and
A-7 beat them to death with iron rods.
142. The Prosecution has only been able to conclusively establish
that, on 28.12.1990 at around 8.30 p.m., D2 rode out of Arsarkulam,
towards Aranthangi on Motorcycle No. TN 55/1406 owned by his father,
A-4, with D1 on the pillion. The two were seen lying dead on the road, in
a pool of blood, a few furlongs away from the level crossing at
Sarayanenthal, Pappakulam and their motorcycle was lying close by.
143. The evidence of PW-22 and PW-23, who performed the
post mortem examination of the dead bodies of D2 and D1 respectively,
proves that D2 and D1 both died of injuries, and consequential loss of
blood and shock.
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144. From the evidence of PW-22 and PW-23, being the two post
mortem doctors, and the evidence of PW-1, PW-20, PW-24, PW-25 and
PW-35, it may reasonably be inferred that there was a collision between
the motorcycle, which the deceased were riding, and  some other vehicle.
The broken glass and plastic pieces recovered from the scene of
occurrence confirm that there was a collision. However, there being no
ocular evidence, it is not known whether the collision was head on or
whether the motor cycle was hit from the back. There is also no expert
opinion in this regard.
145. The evidence of PW-22 indicates that D2 fell off his
motorcycle on hard ground, after a collision and got run over by a vehicle.
He may also have hit a solid blunt object. Some of the injuries were
caused by the impact of the collision or fall and others due to being run
over. The post mortem doctor said that the dead body of D2 did not bear
any impression of being hit by the rod being MO 23.
146. This witness, however, stated that it was also possible, that
some of the fatal injuries might have been inflicted on D2 by hitting him
hard with a rod similar to MO.23. The opinion of the post mortem doctor,
PW-22, on the cause of the injuries in the body of D2 is not conclusive.
The prosecution has not been able to establish that D2 had been beaten
to death by a rod.
147. Similarly, PW-23 opined that D1 is likely to have died of
injuries sustained in the head, brain and other vital parts of
the body, as a
result of collision of the motorcycle with some other vehicle, and of
shock and haemorrhage. It is likely that the impact of collision with a
fast-moving vehicle might have flung D1 off the motorcycle on which
he was pillion rider, and caused him to fall on hard ground or hit some
hard object. He might also have been run over.
148. PW-23 said that one of the injuries which caused instantaneous
death may have been inflicted by a rod similar to MO-23, but in his cross
examination he stated that the injury/injuries may have been caused as a
result of collision between two vehicles. D1 may have incurred the injury/
injuries by getting flung off the motor cycle and hitting hard ground or
some blunt object, or by getting run over by a vehicle. The opinion of
PW-23 on the cause of the injuries in the body of D1 is also not conclusive.
149. On a careful analysis of the post mortem reports and the oral
evidence of the post mortem doctors, we find it unlikely that the deceased
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were beaten to death with an iron rod. PW-22 was of the opinion  D2
fell off the motor cycle after a collision and got run over. The Prosecution
has miserably failed to prove that the deceased were beaten to death
with a rod. The Prosecution has also not been able to rule out the possibility
of D1 and D2 being killed in a ‘hit and run’ accident involving some
unknown vehicle.
150. There are also inherent improbabilities and inconsistencies in
the evidence which demolishes the case of the Prosecution that the
deceased were beaten to death with iron rods by A2 and A7. It does not
stand to reason why A2 and A7 should have risked getting off the lorry
and beating D2 and D1 with iron rods, when A1 had dashed his lorry
against their motor cycle, fatally injured them and run at least one(D2),
if not both of them over. It is not the case of the Prosecution that the
accused had any motive to kill D1.
151. Moreover, while it is alleged that A2 and A7 had hit both the
deceased with iron rods, only one iron rod has allegedly been recovered
from an open, easily accessible pond, over a month after the incident on
the alleged confession of A7 made before the police after arrest. There
is no whisper in the evidence of any other iron rod. PW-29, the sole
witness who testified that A2 made a confession to the police in his
presence, took the police to Maangudi and brought the iron rod out of a
pond in his presence, could not even
remember if there was any water
in the pond. Nor could he identify A7. The rod was never sent for forensic
examination. It would be dangerous to convict A2 or A7 on the basis of
the testimony of PW-29 or for that matter, any other witness. There can
be no question of interference with the acquittal of A2 and A7 from the
charges against them.
152. There was no eyewitness to the incident. The Prosecution
has made an attempt to connect the lorry No. TSL 6579 to the incident
through circumstantial evidence, by examining PW-6, PW-7, PW-8, PW-
11, PW-12, PW-14, PW-15, PW-16, PW-17, PW-19, PW-25, PW-27,
PW-35, PW-42, PW-43, PW-44 and PW-45 and also relying on material
objects such as broken glass pieces, broken plastic pieces, paint scrapings
seized from the place of occurrence as also the number plate of a lorry
with the number TSL 6579, an indicator with bulb and a partly orange
and partly transparent plastic cover, an indicator without bulb and cover,
a circular lamp 14.5 cm in diameter with lamp and yellow glass cover
and a circular lamp holder 14.5 cm in diameter without lamp and cover.
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The number plate, indicators and lamps were not seized from the place
of occurrence.
153. The evidence of PW-6, PW-7 and PW-17 only establishes
that A1 purchased lorry No. TSL 6579 through brokers PW-6 and PW-
7 with the assistance of A5 and A6 about 7/8 days before the incident.
About four days before the incident, the lorry had been brought to
Karaikuddi National Battery company for getting its battery charged.
Since the battery needed replacement, but a new battery was not in
stock, a serviced battery was fitted in the lorry, which was never returned.
154. Significantly, the evidence of PW-6 reveals that A1 had earlier,
long before the alleged conspiracy at the Malar Lodge Hotel on 21.6.1990
purchased a lorry with the Registration No TDB 9635 for which A5 had
stood guarantor. This lorry was sold some time in October, 1990, about
four months after the date of the alleged conspiracy, and in less than two
months, on or about 20/21 December, 1990 Lorry No.TSL 6579 was
purchased. It is, therefore, evident that A1 used to have a lorry, or at
least had one since January 1990 with a short break, possibly for the
purpose of his business. It would be preposterous to attribute the purchase
of the lorry to the sinister motive of murdering D2. The Prosecution has
made no attempt to explain why A1 should have sold the lorry he already
had if there were a conspiracy to kill D2 by hitting him or running him
over with a lorry.
155. From the evidence of aforesaid
witnesses as also the evidence
of PW-8, PW-14, PW-15, PW-16 and PW-17 it transpires that the lorry
was brought to Arokyam’s workshop at Mannaparai on 29.12.1990 for
minor repairs. After the repairs were done PW-6  took delivery of the
same and left it at a lorry shed near the office of A7, who had sold the
lorry to A1 through A6.  PW-14, the owner of the workshop deposed
that PW-6 had instructed him to repair a minor dent. There is nothing in
the evidence of PW-6 or PW-7 to link the lorry with the death of D2 and
D1.  Incidentally, PW-6 said he had not seen A1 after 20.12.1991,
whereupon he was declared hostile and subjected to cross-examination.
PW-6 said the lorry had been seized by the police.
156. Much emphasis has been placed by the Appellants, on the
evidence of PW-8, an employee of workshop of Arokyam, who deposed
that a  lorry had been brought to the workshop for repair one morning in
1990 before 4.00 a.m. PW-8 could not say what was the Registration
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Number of the lorry. He, however, said that A1, had brought the lorry
claiming to be its driver. PW-8 also stated that A1 had told him that the
lorry had been hit by a bull.
157. There is serious lacuna in the evidence of this witness who
seems to have been tutored. It is incredible that this witness should be
able to recognize and identify A1 whom he obviously did not know, and
that too when he had seen him only once, before 4.00 a.m. in the morning,
on being woken up from his sleep. If PW-8 had known A1 from before,
it would not have been necessary for A1 to introduce himself to PW-8
as the driver of lorry No. TSL 6579. Moreover, PW-8 has not, in his
evidence, stated that he recognized A1 as had had known him from
before.
158. There are other notable inconsistencies in the evidence of
PW-8. He said that ordinarily a job card is prepared when a lorry is
brought for repair. In this case no job card had been prepared as he had
been sleeping when the lorry had been brought. In cross-examination he
said that the person who had brought the lorry was with him till the
forenoon. This was obviously an improvement in evidence, in cross-
examination, to explain how he could recognize A1.
159. Through the evidence of this witness and through PW Nos.
PW-8, PW-25 and PW-35 the Prosecution has made a desperate attempt
to link lorry No. TSL 6579 to the death of D1 and D2. From the evidence
of PW-8 read with the evidence of PW-14,
the Prosecution has tried to
show that A1 brought the lorry for repair early in the morning before
4.00 a.m. on 29.12.1990 suggesting that the lorry had been involved in
the incident which took place the previous night, of which of course,
there is no direct evidence. The lorry was damaged on the left side.
This in itself does not establish any link between lorry and the incident.
Incidentally, this witness also stated that A1 had told him that the lorry
had been hit by a Bull. There is no evidence to suggest that the damage
that was found on lorry TSL 6579 could not have been caused by a bull.
160. PWs 11, 12 and 13 were all declared hostile. Nothing has
emerged from their cross-examination to link lorry No. TSL 6579 with
the death of D2 and D1. PW-11 said that he did not know A1, A3 or A4.
He had never seen A7 before. He denied having seen A1 and two others
get off from the lorry and go to a tea shop. PW-12 said that he was not
in town on the date of the incident. He had gone to Pondicherry to buy a
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car. He denied having told the police that a Leyland lorry had been kept
parked near National Battery Works from 24.12.1990, which statement,
even if made, does not connect the lorry to the incident which occurred
on 28.12.1990. This witness also denied having seen or spoken to A2.
PW-13 stated that he had fixed his thumb impression on certain
documents as the police asked him to do so.
161. PW-14 the owner of a workshop identified PW-8 who had
worked as a tinker at his shop. He said he had gone to Trichy on
28.12.1990 and came back to Mannaparai on 29.12.1990. When he
returned, he saw that the lorry TSL 6579 had been kept in his workshop
for repair. PW-6 had requested him to repair the lorry. There was a
small dent in the front left side of the lorry, and the bolts and nuts were
loose. The repairs were carried out. However, nobody came to take the
lorry. After 4 or 5 days he met PW-6 at a bus stand at Trichy, and told
him the lorry had been repaired. PW-6 took the lorry away after paying
him the balance repair charges. This witness did not say that the lorry
was left at the workshop at 4.00 a.m. The 6th and 7th Prosecution
Witnesses only identified the Cash Memos/bills issued by them for lorry
No. TSL 6579 and confirmed, deposed that they had sold side lights/
lamps for the front side of a lorry under those cash memos/bills.
162. PW-25 only stated that the left side of the lorry No. TSL
6579 was tinkered with a light coating of a black and red. The
yellow
light on the right was found in good condition. The yellow light on the left
was found broken. However, the cash memos indicate that the bulbs
and side lights was sold on 3.1.1991. Arokyam (PW-14), deposed that
the lorry had been delivered to PW-6 after repair work had been carried
out. The lorry was seized from the lorry shed near PW-7’s office on
8.2.1991. The evidence of PW-42 indicates there were dents in the lorry
and in particular its grill in front. If on 9.2.1991 any sidelights or lamps of
the lorry were damaged or any part of the lorry were found dented, the
damage must have occurred subsequently. An attempt was made to
relate the lorry to the incident by comparison of glass pieces, plastic
pieces, paint scraping etc. In cross-examination, PW-25 could not even
say whether the glass pieces found at the scene of occurrence were
from a lorry, bus or a car. He could not conclusively say that paint
scrapings found at the place of occurrence were of lorry No. TSL 6579.
There was never any comparative analysis of the width, volume, quality
etc. of the glass and plastic pieces recovered from the place of
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occurrence with the side light, indicator or headlight covers found on the
lorry, as admitted by PW-25.
163. Even assuming for the sake of argument that the lorry TSL
6579 had been brought to the workshop for repair with minor dent and a
broken sidelight or lamp and the colour of some broken glass pieces at
the scene of occurrence matched the colour of the side light and or
indicators of the lorry, that does not prove involvement of the lorry in the
same incident. Many lorries have the same kind of lamp/indicator covers.
Moreover the lorry was purchased second hand and there is no evidence
at all of the condition of the lorry at the time of its delivery to A1.
164. Significantly the accident took place on the night of 28/
29.12.1990. The tenor of the evidence suggests that the lorry had been
lying at the workshop for 4 to 5 days. The repairs had been completed.
Both the bills/cash memos in respect of bulbs and side lights with the
number of the lorry are dated 3.1.1991. PW-35 has in his evidence stated
that the vehicle was seized as late as on 8.2.1991. If the lorry was found
with any broken lamps, loose screws and bolts or dents almost a month
and a half after the incident, long after purchase of replacement parts,
the lorry in all probability got damaged while it was parked at the shed
from which it was seized or may be afterwards.
165. In any case, even assuming for the sake of argument that
lorry No. TSL 6579 was
the lorry, which knocked down the motorcycle
which the deceased were riding, and ran over the deceased, that in itself
cannot lead to the conviction of any of the accused under Section 302 of
the Indian Penal Code. There is not an iota of evidence to establish that
A1, A2 or A7 were in the lorry, except for the alleged extra judicial
confession of A7 made in the presence of the police, which cannot be
accepted for the reasons discussed. The mere fact that A1 might have
been driving the lorry also does not establish that he committed murder.
166. To establish motive for the murder the Prosecution has tried
to build up a case of enmity between A3 and D2 and also of disputes
between A1 and A3 and D2. A3 was named as a possible suspect in the
FIR. There may have been enmity between D2 and A-3, but A-3 was
not there at the scene of occurrence. It is not the case of the Prosecution
that A3 committed the murder. There is no evidence of his involvement
in the murder of D2 and D1. In any case, he could not have had any
motive to kill D1. Furthermore, the evidence of PW-1 indicates that
disputes with A3 were compromised with the intervention of the District
Collector.
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167. The allegations of disputes between A1 and D2, his own
brother, are totally vague and devoid of any particulars. There is no
evidence at all, of any specific reason for discord between A1 and D2,
not to speak of evidence of dispute of a kind that could lead to a murder.
168. There is some evidence of differences between D2 and his
father A4. PW-3, widow of D2 deposed that D2 and his father A4 had
not been on talking terms for about 2 years, since A4 had not agreed to
partition family properties as demanded by D2, or to make over his petrol
bunk to D2.
169. A4 had also made a complaint to the police. The dispute was
apparently settled on 30.4.1990 on the advice of PW-29, and D2 promised
not to quarrel with his father over property matters. There is no evidence
that he breached such promise.
170. Even assuming that there were some differences between
D2 and his father A4 over D2’s demand for partition of family properties,
to which A4 did not accede, no compelling reason has been made out by
the Prosecution for A4 to plot the murder of his own son.
171. Property disputes amongst family members is not uncommon.
There may also be quarrels between members of a family. They may
not be on talking terms. However, to attribute motive to a father to plot
the murder of his own son, there would have to be more compelling
reasons. The case made out by the Prosecution is speculative and
unsubstantiated.
172. In any event, it is not the case of the Prosecution that
either
A3 or A4 committed the murder, or was even present at the place of
occurrence. Furthermore, it is nobody’s case that A2, A5, A6, A7 and
A8 or any of them had any enmity with D2.
173. To implicate the accused, the Prosecution has propounded
the case of conspiracy hatched by all the accused at Malar Lodge Hotel
on the night of 21.6.1990, to bump off D2, by using a lorry.
174. The Prosecution has miserably failed to prove that there
was any conspiracy to kill D2 at the Malar Lodge Hotel, Karaikudi, or
anywhere else. Mr. Tulsi’s submission that there was evidence that on
21.6.1990, the accused had booked a room at Malar Lodge Hotel,
Karaikudi, and conspired to kill D2 with the help of a lorry, cannot be
sustained.
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175. The only evidence with regard to the alleged conspiracy is
the absolutely inadmissible hearsay evidence of PW-44, a police officer
who investigated the crime. PW-44 stated that he had examined PW-39,
who had in course of his examination stated that A1 had asked PW-39
and PW-10 to accompany him to Karaikudi for purchase of lorry spare
parts.
176. PW-44 deposed that PW-39 had stated that when they arrived
at Aranthangi, A5 and A4 joined them and they went to the Malar Lodge
Hotel, Karaikudi, at around 8.00 p.m. A2, A3, A6, A7 and A8 were also
there. They all went into a room, locked the door from inside and took a
decision to murder D2. A1 had said that he was prepared to kill D2 by
hitting him with a lorry for which he required assistance and he requested
A8, A2 and A7 to provide him with assistance. PW-44 said that PW-39
had told him that PW-39 and PW-10 were sitting in the same room when
the conspiracy was hatched.
177. According to PW-44, PW-39, had told him that PW-39 could
not sleep all night. The next day PW-39 and PW-10 went to the house of
A3 and told A3 about what had happened at the Malar Lodge Hotel,
Karaikudi.  A3 advised them not to disclose what had happened to anyone.
178. Significantly, PW-10 has in his evidence denied that he knew
A2, A7 or A8. He said he knew A1 and A3 to A6. PW-10 deposed that
he only knew that D2 and D1 had died but nothing further. He said that
Police had examined him. He
deposed that the Police wanted him to be
a witness to depose about the death of D2 and D1 on the road. This
witness, as stated above, was declared hostile and cross-examined. In
his cross-examination he categorically denied knowing A2, A7 A8 or of
their alleged contact with A-3. He categorically denied having gone to
Karaikudi with any of the accused. He also categorically denied that he
had told the police about any conspiracy.
179. PW-39, Farooq deposed that he knew A2 and A7 but he did
not know A8. He said A2 and A7 used to come to the house of A3. In
Court he deposed that the police had not examined him whereupon he
was declared hostile and cross-examined. In his cross-examination he
denied having told the police that he and PW-10 had been taken to
Karaikudi for purchasing lorry spare parts. He denied having told the
police that he had gone to Malar Lodge Hotel, Karaikudi. He also denied
having told the police anything about any conspiracy. He categorically
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denied having told the police that he and PW-10 had sat in the last row
while the others conspired to murder D2.
180. PW-39 denied that A2 and A7 had asked A-1 to arrange for
a lorry. In any case, there could be no need for A-1 to arrange a lorry,
since already A1 had a lorry TDB 9635, which was sold about four
months later.
181. PW-39 categorically denied knowledge of conspiracy. He
even denied having gone to Karaikudi at the request of A1.
182. Apart from the fact that PW-10 and PW-39 have categorically
denied their presence at Karaikudi on 21.6.1990, there are patent
inconsistencies in the evidence of PW-44 in this regard. If A3 was present
at the Malar Lodge Hotel, Karaikudi at the time of the conspiracy on
21.6.1990, there could be no reason for PW-10 or PW-39 to go to A3’s
house and tell him about the conspiracy. Nor would A3 advise PW-10
and PW-39 not to divulge the conspiracy to others.
183. Even otherwise, it is inconceivable that the accused should
hatch a conspiracy to commit murder, in the presence of witnesses who
were not part of the conspiracy.
184. It is also difficult to fathom why PW-10 and PW-39 were
never arrayed as co-accused, if they were present at the time of the
conspiracy and they chose to keep quiet about the conspiracy. No
credence can be given to the evidence of PW-44.
185. It is well settled that statements made to the police under
Section 161 of the of the Criminal Procedure Code in course of
investigation are inadmissible
in evidence. The evidence of PW-44 with
regard to what two witnesses namely, Abdul Jafar (PW-10) and Farooq
(PW-39) told him in course of investigation is inadmissible in evidence,
and of no value. Significantly, both PW-10 and PW-39 categorically denied
having made to the police, the statements attributed to them.
186. PW-40 who had worked as Manager, Malar Lodge Hotel,
Karaikudi from 1989 to 1991 denied knowing A8 or A2. He said that the
endorsement at Sl.942 of the Register had been made by the Receptionist
of the hotel. It was the Receptionist who used to enter particulars of
persons who stayed in the hotel. The Manager of the hotel was also
declared hostile and cross-examined by the witness. In cross-examination
he denied all the suggestions made to him. In particular, he denied having
made the statements to the police, attributed to him.
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187. The appellants have relied on the evidence of PW-34, a
handwriting expert, to prove that the accused had taken part in a
conspiracy at the Malar Lodge Hotel on 21.6.1990. Evidence of experts
is not always conclusive. As observed by this Court in Murari lal vs.
State of Madhya Pradesh5 there is hazard in accepting the opinion of
an expert, not because an expert is not reliable as a witness, but because
human judgment is fallible. While the science of identification of finger-
prints has attained perfection, with practically no risk of an incorrect
opinion, the science of identification of handwriting is not so perfect. In
this case the evidence of PW-40, manager of Malar Lodge Hotel
contradicts the evidence of PW-34.
188. In any case, the evidence of the hand writing expert (PW-
34) establishes at the highest, that one of the accused that is A-8, who
had no enmity with the deceased, had made entries in and signed the
admission register of the Malar Lodge Hotel. The evidence of PW-34,
at best proves that A8 may have checked into Malar Lodge Hotel,
Karaikudi on 21.6.1990, six months before the incident and nothing more.
There could be numerous reasons for A8 to go to Karaikudi. The
Prosecution has not been able to satisfactorily explain the gap of over
six months between the incident and the date on which the alleged meeting
took place at the Malar Lodge.
189. It is well settled that under the criminal jurisprudence
prevalent
in this country an accused is presumed innocent, unless proved guilty
beyond all reasonable doubt. As held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra6,”Certainly, it is a primary principle
that the accused must be and not merely may be guilty before a court
can convict and the mental distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure conclusions.” For conviction
on the basis of circumstantial evidence, the circumstances from which
the conclusion of guilt is to be drawn should fully be established. The
circumstances should be conclusive. The circumstances established should
definitely point to the guilt of the accused, and not be explainable on any
other hypothesis. The circumstances should exclude any other possible
hypothesis except the one to be proved.
190. In Sharad Birdhichand Sarda vs. State of Maharastra7
the Supreme Court held that where there is no eye witness to the
5 1980 (1) SCC 704
6 (1973) 2 SCC 793
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occurrence and the entire case is based upon circumstantial evidence,
the normal principal is that the circumstances from which an inference
of guilt is sought to be drawn must be cogently and firmly established;
these circumstances should be of a definite tendency, unerringly pointing
towards the guilt of the accused; the circumstances taken cumulatively
should form a chain so complete that there is no escape from the
conclusion that in all human probability the crime was committed by the
accused and they should be incapable of any explanation or of any
hypothesis other than  or inconsistent with the guilt of the accused.   The
same view was reiterated in Bablu vs. State of Rajasthan8 and in Vijay
Shankar vs. State of Haryana9. The judgment in Praful Sudhakar
Parab vs. Stateof Maharashtra10 cited by Mr. Tulsi was rendered in
the particular facts and circumstances of the case where this Court
found that the High Court had, after elaborately considering all the
evidence on record, rightly affirmed the conviction.
191. In Satish Nirankari vs. State of Rajasthan11, this Court
reiterated that criminal cases cannot be decided on the basis of hypothesis.
It is for the prosecution to prove the guilt of the accused beyond reasonable
doubt. It is for the prosecution to prove all circumstances which leave
no doubt of the guilt of the accused. The chain of circumstances must
be complete and must clearly point to the guilt of the accused. The chain
cannot get broken
in between.
192. It is well settled, suspicion however strong cannot substitute
proof beyond reasonable doubt. Enmity as a result of property related
disputes may give rise to suspicion. However, conviction can never be
based on suspicion unless the prosecution clearly proves circumstances
conclusively and all circumstances proved should only point to the guilt
of the accused. Possibility of any conclusion other than the conclusion
of guilt of the accused would vitiate a conviction.
193. At the cost of repetition, it is reiterated that the burden of
proving an accused guilty beyond all reasonable doubt lies on the
prosecution. If upon analysis of evidence two views are possible, one
which points to the guilt of the accused and the other which is inconsistent
with the guilt of the accused, the latter must be preferred. Reversal of a
8 2006 (13) SCC 116
9 2015 (12) SCC 644
10 2016 (12) SCC 783
11 2017 (8) SCC 497
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judgment and order of conviction and acquittal of the accused should not
ordinarily be interfered with unless such reversal/acquittal is vitiated by
perversity. In other words, the Court might reverse an order of acquittal
if the Court finds that no person properly instructed in law could have
upon analysis of the evidence on record found the accused to be ‘not
guilty’. When there is circumstantial evidence pointing to the guilt of the
accused, it is necessary to prove a motive for the crime. However, motive
need not be proved where there is direct evidence. In this case, there is
no direct evidence of the crime.
194. In Sadhu Saran Singh vs. State of U.P.12, this Court
observed that an appeal against acquittal has always been on an altogether
different pedestal from an appeal against conviction. In an appeal against
acquittal, where the presumption of innocence in favour of the accused
is reinforced, the Appellate Court would interfere with the order of
acquittal only when there is perversity. In this case, it cannot be said that
the reasons given by the High Court to reverse the conviction of the
accused are flimsy, untenable or bordering on perverse appreciation of
evidence.
195. Before a case against an accused can be said can be said to
be fully established on circumstantial evidence, the circumstances from
which the conclusion of guilt is to be drawn must fully be established and
the facts so established should
be consistent only with the hypothesis of
the guilt of the accused. There has to be a chain of evidence so complete
as not to leave any reasonable doubt for any 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.
196. In Shanti Devi v. State of Rajasthan13 this Court held that
the principles for conviction of accused based on circumstantial evidence
are :-
“10.1 The circumstances from which an inference of guilt is
sought to be proved must be cogently or firmly established.
10.2 The circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused.
10.3  the circumstances taken cumulatively must form a chain
so complete that there is no escape from the conclusion that
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within all human probability, the crime was committed by the
accused and none else.
10.4 the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.
197. Keeping the above test in mind we have no option but to hold
that the prosecution has miserably failed to establish the guilt of the
accused persons beyond reasonable doubt. There is a strong possibility
that the motorcycle which the deceased were riding, might have been
hit by an unknown vehicle, killing the deceased. The death may have
been accidental. The High Court has rightly set aside the judgment and
order of conviction of the Trial Court and acquitted the accused.
198. We do not find any merit in the appeals. The appeals fail and
the same are dismissed.
Divya Pandey
Appeals dismissed.
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
[INDIRA BANERJEE, J.]