IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO.1950 OF 2009


Sampath Kumar                                             ...Appellant


                  Versus


Inspector of Police, Krishnagiri                          ...Respondent


  (With Crl. Appeal No. 66/2010 and Crl. Appeal No.1205/2010)


                            J U D G M E N T


T.S. THAKUR, J.


1.       These   appeals   by   special   leave   call   in   question   the


correctness of an order dated 30th April 2009 passed by the High


Court of Madras, whereby Criminal Appeal No. 1008 of 2007 filed


by the appellants against their conviction under Section 302 read


with   Section   34   IPC   has   been   dismissed   and   the   sentence   of


imprisonment for life awarded to them by the trial Court upheld.


2. Briefly stated, the prosecution case is as under:


       The   appellants,   namely,   Shanmugam,   Velu   and   Sampath


Kumar   were   close   friends   of   the   deceased-Senthil   Kumar   and


Palani (PW7). Appellant-Velu has a younger sister, named, Usha


who,  according  to the  prosecution  story,  had  fallen  in  love  with


the   deceased-Senthil   Kumar   and   wanted   to   marry   him.


Appellant-Velu  did  not approve   of the  said  relationship  and had


asked   appellant-Shanmugan   to   convey   to   the   deceased-Senthil


Kumar   to   keep   off   Usha   or   else   he   would   break   his   hands   and


legs. In July 2002, appellant-Velu appears to have come on leave


from his army services and during this period he and his mother-


Balammal are said to have informed Murugambal (PW2)- mother


of the deceased, sister-Lakshmi (PW3) and her husband-Selvam


(PW1)   that   they   had   decided   to   give   Usha   in   marriage   to   the


deceased-Senthil   Kumar.   Further   discussion   regarding   the


marriage   was,   however,   deferred   till   the   passing   of   the   Tamil


month Adi, considered inauspicious for finalisation of matrimonial


alliance.   On   27th  July,   2002   i.e.   two   days   after   the   marriage


proposal   was   made,   Ramesh   (PW9)   was   employed   to   paint   the


house   of   Lakshmi   (PW3)   when   he   saw   the   deceased-Senthil


Kumar and Usha embracing one another in one of the rooms of


the   house.   According   to   Ramesh   (PW9),   even   the   appellant-


Shanmugam saw Usha and Senthil Kumar in a romantic embrace.


The   appellant-Shanmugam   was   also,   according   to   the


prosecution,   one   of   the   suitors   of   Usha   and   had   a   one-sided


affection for her.  On the following day, i.e. 28th July, 2002 PWs.


1 to 3, their neighbour and the appellant-Shanmugam went to a


theatre to see a movie and retuned home around 9.30 p.m. While


Selvam (PW1), Murugambal (PW2) and Lakshmi (PW3) retired to


bed   inside   the   house   after   dinner,   the   deceased-Senthil   Kumar


and   Palani   (PW7)   slept   as   usual   in   the   verandah   of   the   house.


The appellant-Shanmugam also used to sleep with them but for


some reason he did not turn up to do so on that day. At about


2.45 a.m. on the night intervening 28th and 29th July, 2002, Palani


(PW7) heard the sound of a stone being thrown. He woke up to


see   the   appellant-Shanmugam   standing   near   the   head   of   the


deceased   and   the   remaining   two   appellants   also   standing   close


by. The prosecution case is that Palani (PW7) was threatened by


the   appellants   not   to   disclose   to   anyone   regarding   anything   for


otherwise they would kill him also. At this, Palani (PW7) shouted


and   ran   to   hide   himself   on   the   rear   side   of   the   house.   In   the


meantime, PWs 1 to 3 who were sleeping inside the house also


awoke upon hearing the noise and started shouting for help. This


woke up their neighbour (PW8) in the opposite house who went


over to the house and opened the door to help them come out.


PWs 1 and 8 then went to the rear side of the house to find the


appellant-Shanmugam lying beside a plantain tree with his hands


tied with a cloth.


        It was also noticed on removing the blanket covering the


deceased that someone had smashed his head with a stone which


was lying at his side. When the appellant-Shanmugam was asked


as to who had beaten him and thrown him behind the house, he


stated that it was some stranger  who had done so. Senthil  was


rushed to the hospital but died en-route. Selvam (PW1) went to


the   police   station   and   lodged   an   oral   complaint.   The   police


registered a case under Sections 302 and 324 IPC.


3.      After   completion   of   the   investigation   the   police   filed   a


charge-sheet against the appellants accusing them of committing


the   murder   of   Senthil   Kumar.   The   appellants   were   then


committed to the Sessions Judge, where they pleaded not guilty


and claimed trial. At the trial the prosecution examined as many


as 18 witnesses to prove its case. The Sessions Judge eventually


came to the conclusion that the prosecution had proved its case


beyond   a   reasonable   doubt   and   accordingly   convicted   the


appellants   for   the   murder   of   the   deceased-Senthil   Kumar   and


sentenced  them  to undergo  imprisonment  for  life   under  Section


302 read with Section 34 IPC. They were also sentenced to pay a


fine   of   Rs.2,000/-   each   and   in   default   of   payment   of   fine,   to


undergo   further   rigorous   imprisonment   for   two   years.   The


Sessions   Judge   based   his   conviction   primarily   on   the   strong


motive   which   appellants   Shanmugam   and   Velu   had   to   do   away


with the deceased due to his love affair with Usha. The Sessions


Judge relied heavily upon the deposition of Palani (PW7) and the


letter Exh. P-22 allegedly written by appellant-Shanmugam to the


mother of the deceased, Murugambal (PW2) accusing appellant-


Velu to be the person responsible for the death of the deceased.


4.      Aggrieved by their conviction and sentence imposed upon


them,   the   accused   person   preferred   Criminal   Appeal


No.1008/2007 before the High Court of Madras which appeal has


been   dismissed   thereby   confirming   the   conviction   and   sentence


recorded   by  the   trial   Court.   The   High   Court   held   that  while   the


deposition of Palani (PW7) was reliable, letter Exh. P-22 allegedly


written   by   the   appellant-Shanmugam   to   the   mother   of   the


deceased,   Murugambal   (PW2)   was   not.   The   confessional


statement   was   held   to   be   inadmissible   having   been   produced


after   the   statement   of   the   accused   persons   had   been   recorded


under Section 313 Cr.P.C. Independent of the said document, the


High   Court   felt   that   the   evidence   on   record   formed   a   complete


chain of circumstances that unerringly pointed to the guilt of the


appellants. The present appeals assail the correctness of the said


judgment as noticed above.




5.      Mr. K. Kanagaraj, learned senior counsel for the appellant


strenuously argued that the trial Court as also the High Court had


fallen   in  error   in  holding   that  the  charge   against   the   appellants


had been proved beyond a reasonable doubt. He urged that the


entire   case   was   based   on   circumstantial   evidence   and   that   the


courts   below   had   failed   to   keep   in   view   the   legal   requirements


attracted to cases that are based on circumstantial evidence. He


further   argued   that   the   deposition   of   Palani   (PW7)   was   not


reliable for reasons more than one and the trial Court as also the


High   Court   had   committed   an   error   in   ignoring   those   reasons.


The fact that there was a motive, assuming that any such motive


had been established in the present case, was also not sufficient


by   itself   to   justify   the   conclusion   that   the   appellants   were


responsible for the murder of the deceased.


6.       The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled
by   a   long   line   of   decisions   of   this   Court.     It   is   unnecessary   to  burden this judgment by making reference to all such decisions. We   are   content   with   reference   to   some   of   those   decisions.     In Sharad Birdhichand Sarda  v.  State of Maharashtra  (1984)  4   SCC   116,   this   Court   laid   down   the   following   five   tests   to   be satisfied in a case based on circumstantial evidence:


          "(1) The circumstances from which the conclusion of guilt is to  be drawn should be fully established.

          (2) The facts so established should be consistent only with the  hypothesis   of   the   guilt   of   the   accused,   that   is   to   say,   they  should not be explainable on any other hypothesis except that the accused is guilty.

          (3)   The   circumstances   should   be   of   a   conclusive   nature   and  tendency.

          (4) They should exclude every possible hypothesis except the one to be proved, and

          (5) There must be a chain of evidence so complete as not to leave   any   reasonable   ground   for   the   conclusion   consistent with the innocence of the accused and must show that in all human   probability   the   act   must   have   been   done   by   the accused."


7.       The   decision   of   this   Court   in  Aftab   Ahmad   Ansari  v. State of Uttaranchal (2010) 2 SCC 583  is a timely reminder
of the abovementioned requirements in the following words:

          "In   cases   where   evidence   is   of   a   circumstantial   nature,   the circumstances   from   which   the   conclusion   of   guilt   is   to   be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should   consider   the   total   cumulative   effect   of   all   the   proved facts, each one of which reinforces the conclusion of the guilt.
          If   the   combined   effect   of   all   the   facts   taken   together   is conclusive   in   establishing   the   guilt   of   the   accused,   the conviction would be justified even though it may be that one or   more   of   these   facts,   by   itself/themselves,   is/are   not decisive.   The   circumstances   proved   should   be   such   as   to exclude every hypothesis except the one sought to be proved. But   this   does   not   mean   that   before   the   prosecution   case  succeeds   in   a   case   of   circumstantial   evidence   alone,   it   must exclude each and every hypothesis suggested by the accused,  howsoever extravagant and fanciful it might be."


8.       Coming  to the facts of the present case,  the prosecution


relies   entirely   upon   the   deposition   of   PWs.   1,   2,   3   and   7.     Of


these   depositions   PWs.   1,   2   and   3   are   not   admittedly   eye-


witnesses   to   the   occurrence,   nor   have   they   stated   anything


against the appellants except that the deceased was fond of Usha


and   wanted   to   marry   her   which   was   not   to   the   liking   of   her


brother-Velu, the appellant before us. It is only the deposition of


Palani   (PW7)   that   holds   the   key   to   whether   the   appellants   are


guilty   or   innocent.   According   to   this   witness   who   was   sleeping


with the deceased in the verandah of the house of PWs 1 to 3, at


about 2.45 a.m. at night he heard a sound that woke him up. He


also   noticed   the   appellants   standing   near   the   deceased.


According   to   the   witness,   the   appellants   threatened   him   not   to


disclose anything to anyone otherwise  he would meet the same


fate. The witness, however, made no disclosure to PWs. 1, 2 and


3 who were  inside  the house,  even  when  they had been  woken


up because of the sound and wanted to come out but could not


because   the   door   was   bolted   from   outside.     He   made   no


disclosure of what he had seen even after the police had arrived


at the scene after the registration of the case.   In his statement


before the police under Section 161 Cr.P.C., Palani (PW7) made


no such accusations against the appellants nor did he disclose to


anyone that he had seen the accused persons on the spot around


the time of the commission of the offence. It was only five years


after the occurrence that the witness for the first time disclosed


in   the   Court   the   story   about   his   having   seen   the   appellants


standing near the deceased when the former woke up on account


of the noise of a stone falling hard on the ground.   The witness


did not offer any explanation, much less a cogent and acceptable


one for his silence for such a long period.   His assertion that he


was scared by the appellants even after they had been taken into


custody   by   the   police   and,   therefore,   did   not   reveal   anything


about   the   actual   events   till   he   had   the   courage   to   come   to   the


Court   to   make   a   statement,   is   hard   to   believe.     At   any   rate, reliance upon the deposition of a witness who has made such a  material improvement in his version is wholly unsafe unless it is corroborated   by   some   other   independent   evidence   that   may probabilize his version.


9.      In  Narayan Chetanram Chaudhary & Anr.  v.  State of  Maharashtra (AIR 2000 SC 3352), this Court held that while
discrepancies in the testimony of a witness which may be caused  by   memory   lapses   were   acceptable,   contradictions   in   the testimony were not. This Court observed:


         "Only   such   omissions   which   amount   to   contradiction   in  material particulars can be used to discredit the testimony of  the   witness.   The   omission   in   the   police   statement   by   itself  would   not   necessarily   render   the   testimony   of   witness  unreliable. When the version given by the witness in the Court  is   different   in   material   particulars   from   that   disclosed   in   his  earlier   statements,   the   case   of   the   prosecution   become  doubtful and not otherwise. Minor contradictions are bound to  appear   in   the   statements   of   truthful   witnesses   as   memory  sometimes   plays   false   and   the   sense   of   observation   differ  from person to person."


10.     The   difference   between   discrepancies   and   contradictions was  explained   by  this   Court  in  State  of  Himachal  Pradesh  v. Lekh Raj and Anr. (AIR 1999 SC 3916).  Reference may also be   made   to   the   decision   of   this   Court   in  State   of   Haryana  v. Gurdial   Singh   &   Pargat   Singh   (AIR   1974   SC   1871),  where the   prosecution   witness   had   come   out   with   two   inconsistent versions   of   the   occurrence.   One   of   these   versions   was   given   in the Court while the other was contained in the statement made before   the   Police.   This   Court   held   that   these   are   contradictory versions   on   which   the   conclusion   of   fact   could   not   be   safely  based. This Court observed:


          "The present is a case wherein the prosecution witnesses have  come   out   with   two   inconsistent   versions   of   the   occurrence.  One version of the occurrence is contained in the evidence of  the witnesses in court, while the other version is contained in  their   statements   made   before   the   police...In   view   of   these  contradictory versions, the High Court, in our opinion, rightly  came   to   the   conclusion   that   the   conviction   of   the   accused  could not be sustained."


11.      Reference may also be made to the decision of this Court in Kehar Singh and Ors. v. State (Delhi Administration) AIR
1988 SC 1883. This Court held that if the discrepancies between the first version and the evidence in Court were material, it was safer to err in acquitting than in convicting the accused.

12.      In the present case the statement made by Palani (PW7)


is  in  complete  contrast with  the statement  made  by him before


the   Police   where   the   witness   stated   nothing   about   having   seen


the appellants standing near the deceased around the time of the


incident.     This   omission   is   of   very   vital   character.   What   affects


the credibility of the witness is that he did not in his version to


the   police   come   out   with   what   according   him   is   the   truth,   but


withheld   it   for   a   period   of   five   years   till   he   was   examined   as   a


prosecution witness in the Court.  This Court in Vadivelu Thevar  v.  The   State   of   Madras   (AIR   1957   SC   614)  classified witnesses into three categories, namely, (i) those that are wholly reliable,   (ii)   those   that   are   wholly   unreliable   and   (iii)   who   are neither   wholly   reliable   nor   wholly   unreliable.   In   the   case   of   the first   category   the   Courts   have   no   difficulty   in   coming   to   the conclusion either way. It can convict or acquit the accused on the  deposition of a single witness if it is found to be fully reliable. In the   second   category   also   there   is   no   difficulty   in   arriving   at   an appropriate   conclusion   for   there   is   no   question   of   placing   any reliance upon the deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly   unreliable   that   the   Courts   have   to   be   circumspect   and have to look for corroboration  in material  particulars  by reliable testimony direct or circumstantial.


13.      To   the  same  effect  is  the   decision   of   this   Court  in  Lallu


Manjhi v. State of Jharkhand, (AIR 2003 SC 854) where this


Court felt that the testimony of the witness Mannu (PW9) could


neither be totally discarded nor implicitly accepted. Mannu was a


witness who could have been  naturally present  with his brother


while   ploughing   the   field.   However,   his   testimony   was   found   to


have been improved substantially at the trial. He was considered


neither wholly reliable nor wholly unreliable.


14.     In   the   present   case   the   testimony   cannot   be   wholly


reliable or wholly unreliable.  He is not a chance witness who had


no   reason   to   be   found   near   the   deceased   at   the   time   of   the


occurrence. There is evidence to show that Palani (PW7) used to


sleep   with   the   deceased-Senthil   in   the   verandah   of   the   house.


What   makes   it  suspect   is   that the   witness   has,  despite  being   a


natural witness, made  a substantial  improvement in the version


without their being any acceptable explanation for his silence in


regard to the fact and matters which  was in his knowledge  and


which would make all the difference in the case. The Court would,


therefore,   look   for   independent   corroboration   to   his   version,


which   corroboration   is   not   forthcoming.     All   that   is   brought   on record by the prosecution is the presence of a strong motive but that by itself is not enough to support a conviction especially in a case   where   the   sentence   can   be   capital   punishment.   In  N.J.


Suraj  v.  State   represented   by   Inspector   of   Police   (2004)


11   SCC   346,   the   prosecution   case   was   based   entirely   upon


circumstantial   evidence   and   a   motive.   Having   discussed   the circumstances relied upon by the prosecution, this Court rejected motive which was the only remaining circumstance relied upon by the   prosecution   stating   that   the   presence   of   a   motive   was   not enough for supporting a conviction, for it is well-settled that the chain of circumstances should be such as to lead to an irresistible  conclusion,   that   is   incompatible   with   the   innocence   of   the accused.   To   the   same   effect   is   the   decision   of   this   Court   in Santosh Kumar Singh  v.  State through CBI.  (2010) 9 SCC  747  and  Rukia  Begum  v.  State  of  Karnataka   AIR   2011   SC  1585  where this Court held that motive alone in the absence of any   other   circumstantial   evidence   would   not   be   sufficient   to convict   the   appellant.   Reference   may   also   be   made   to   the decision  of this Court in  Sunil Rai @ Paua and Ors.  v.  Union  Territory,   Chandigarh   (AIR   2011   SC   2545).      This   Court explained the legal position as follows :


         "In   any   event, motive alone can   hardly   be   a   ground   for  conviction.   On   the   materials   on   record,   there   may   be   some  suspicion   against   the   accused   but   as   is  often   said   suspicion,  howsoever, strong cannot take the place of proof."


15.     Suffice it to say although, according to the appellants the question   of   the   appellant-Velu   having   the   motive   to   harm   the deceased-Senthil  for  falling  in  love with  his sister, Usha did  not survive once the family had decided to offer Usha in matrimony to   the   deceased-Senthil.   Yet   even   assuming   that   the   appellant-Velu had not reconciled to the idea of Usha getting married to the deceased-Senthil, all that can be said was that the appellant-Velu had a motive for physically harming the deceased. That may be an   important   circumstance   in   a   case   based   on   circumstantial evidence  but cannot take  the  place   of conclusive  proof  that  the person concerned was the author of the crime.   One could even say that the presence of motive in the facts and circumstances of the   case   creates   a   strong   suspicion   against   the   appellant   but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond a reasonable doubt.


16.      In   the   totality   of   the   circumstances,   we   are   of   the   view


that   the   prosecution   has   not   proved   its   case   against   the


appellants   who   are,   in   our   opinion,   entitled   to   acquittal   giving


them the benefit  of doubt.  In the result, these  appeals  succeed


and are  hereby  allowed.  The  appellants   shall   stand acquitted  of the   charges   framed   against   them   giving   them   the   benefit   of doubt.                                                      




                                                        ..........................................J.


                          (T.S. THAKUR)





                 ..........................................J.

                 (GYAN SUDHA MISRA)

New Delhi

March 2, 2012