Madras High Court
Puttappa vs State Represented By on 11 June, 2019
Author: M.S.Ramesh
Bench: M.S.Ramesh
CRL.A.No.545 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 18.02.2025
DELIVERED ON : 21.03.2025
CORAM:
THE HON'BLE MR.JUSTICE M.S.RAMESH
and
THE HON'BLE MR.JUSTICE N.SENTHILKUMAR
CRL.A.No.545 of 2019
and CRL.M.P.No.16919 of 2019
1.Puttappa
2. Kala ...Appellants
vs.
State Represented by
Inspector of Police,
Uddanappalli Police Station,
Krishnagiri District. ...Respondent
Prayer: Criminal Appeal filed under Section 374 (2)
Cr.P.C., against the judgment dated 11.06.2019 in
S.C.No.232 of 2016 on the file of Learned Additional
Sessions Judge, Hosur, Krishnagiri District convicting the
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1/35
CRL.A.No.545 of 2019
A1 U/s.364 r/w. 34 of IPC sentencing to undergo 7 years &
Rs.500/- fine i/d 6 months S.I and A1 for the offence
U/s.302 IPC to undergo life imprisonment and Rs.1,000/-
fine i/d 6 months S.I and U/s.201 r/w. 302 IPC to undergo
5 years S.I and Rs.500 fine i/d 3 months S.I, further
convicting A2 U/s.364 of IPC sentencing to 7 years R.I &
Rs.500/- fine i/d 6 months S.I. U/s.302 of IPC sentencing
to life imprisonment & Rs.1000/- fine i/d 6 months S.I,
U/s.201 of IPC sentencing to 5 years S.I and Rs.500 fine
i/d 3 months S.I.
For Appellants : Mr.P.Saravanan for A1
Mr.S.Mohamed Ansar for A2
For Respondent : Mr.S.Rajakumar
Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by N.Senthilkumar, J.) Challenging the judgment passed by the learned Additional Sessions Judge, Hosur, Krishnagiri in https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 2/35 CRL.A.No.545 of 2019 S.C.No.232 of 2016, dated 11.06.2019, the present appeal has been filed by the accused 1 & 2 respectively. A1 is the first appellant herein and A2 is the second appellant herein.
2.The brief facts of the prosecution case is that A1 and A2 jointly had committed murder of the deceased Sathish Kumar, who was aged about 8 years. A1 is a neighbour of A2 and A2 is the daughter-in-law of the defacto complainant. The defacto complainant's son Sankar had married A2. A1 and A2 had developed an illicit relationship while the defacto complainant's son Sankar, the husband of A2 was working at Bangalore as a driver.
3. According to the prosecution, on 01.09.2012, around 5.00 p.m., the deceased had informed his sister Maheswari PW6 that when he went to the house of A2, he had seen A1 and A2 in a compromising position. A1 and A2 intended to commit murder of the deceased to prevent him from informing others about their illicit relationship. https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 3/35 CRL.A.No.545 of 2019 Therefore, the accused 1 & 2 committed murder of the deceased and concealed the body from the scene of occurrence.
4. The murder took place at the house of A2, where A1 had inflicted injuries on the head and other body parts of the deceased with Koduval M.O.2 which was recovered based on the confession statement given by A1. The admissible portion of confession statement given by A1 was marked as Ex.P14.
5. The Police had registered the case in Crime No.183 of 2012 for the offences under Sections 302, 201 of IPC on 01.09.2012 at about 11.00 p.m. and thereafter, charge sheet was filed. The District Munsif cum Judicial Magistrate Court at Denkanikottai verified the documents produced by the prosecution. As the case is triable by the Sessions Court, the same was transferred to the Sessions Court and taken on file in S.C.No.232 of 2016. The Trial https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 4/35 CRL.A.No.545 of 2019 Court had examined PW1 to PW17 on the side of the prosecution and Exs.P1 to P32 were marked. The prosecution had produced M.O.1 to M.O.16 in support of their case. No witnesses were examined on the side of the appellants.
6. PW 1 is the mother of the deceased. The elder son of PW 1, Shankar had married A2 which is a love marriage. According to PW1, A1 who was a neighbour of A2 had developed illicit relationship with A2 since the husband of A2 was away for his employment and he comes home only once in a fortnight. PW2 is the father of the deceased, who have witnessed the dead body kept at his house after the occurrence. PW6 is the sister of the deceased, who have last seen the deceased alive with A2. PW 11 and PW16 are the village administrative officers before whom the accused persons had given their extra judicial confession by narrating how they committed the murder. https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 5/35 CRL.A.No.545 of 2019
7. In the complaint of PW1 marked as Ex.P1, PW1 had stated that after returning home from work, she realised that the deceased had gone missing and she went in search of the deceased along with PW6. The body of the deceased was later found in a urea bag in the land belonged to Venkatraj. The said urea bag, bloodstained earth, plain earth and nylon rope (M.O.6 to M.O.9) were recovered from the said place by the Inspector of Police, Incharge of Uddanappalli Police Station, who was examined as PW17.
8. As per the evidence of PW17, A2 was arrested on 02.09.2012 at 10.00 a.m. After the arrest, a confession statement was recorded before the Village Administrative Officer, PW11 and one Murugesan between 10.15 a.m. and 11.15 a.m. Based on the confession statement, bloodstained half burnt Saree (M.O.1) was recovered from A2. Thereafter, A2 was sent to judicial custody along with 11 months old child. The admissible portion of the confession statement of A2 is marked as Ex.P12. https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 6/35 CRL.A.No.545 of 2019
9. PW17 has deposed that A1 was arrested on 03.09.2012 at about 7.15 a.m. Based on the confession statement, blood stained Koduval (M.O.2), blood stained lungi (M.O.3), blood stained rose colour half hand shirt (M.O.4) were recovered from A1 which is more specifically mentioned in Recovery Mahazar marked as Ex.P15.
10. The Trial Court by Judgment dated 11.06.2019 had found A1 guilty of offences under section 364 read with 34, 302, 201 IPC and found A2 guilty of offences under section 364, 302, 201 IPC. For the offence under section 364 r/w. 34 of IPC and Section 364 IPC, A1 and A2 respectively were sentenced to undergo 7 years imprisonment & Rs.500/- fine, in default, to undergo 6 months simple imprisonment and for the offence under Section 302 IPC, to undergo life imprisonment & Rs.1,000/- fine, in default, to undergo 6 months simple imprisonment and for offence under section 201 IPC, to undergo 5 years https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 7/35 CRL.A.No.545 of 2019 simple imprisonment & Rs.500/- fine, in default, to undergo 3 months simple imprisonment. Challenging the Judgment passed by the Trial Court, the appellants have filed the present appeal.
11. Arguments advanced by the learned counsels for the appellants 1 and 2 are as follows:
In the complaint given by PW1, the mother of the deceased which is marked as Ex.A1, PW1 had stated that the deceased had informed PW6 that both the accused were in a compromising position. Whereas, in the cross examination before the Trial Court, PW1 had stated that the deceased did not inform anyone about A1 and A2.
Therefore, PW1 had made drastic contradictions in the cross examination from her earliest version i.e., the complaint.
12. PW6 is the daughter of PW1 and sister of the deceased. PW6 had deposed that A2 had taken the https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 8/35 CRL.A.No.545 of 2019 deceased to peel coconut and thereafter, the deceased went missing. In the cross examination of PW6, she had stated that the deceased was found in a urea bag and the complaint was given at about 8.00 p.m. Apart from the above, PW6 had not made any statement which implicates A1 and A2.
13. By referring to the evidence of PW2 and PW3, the learned counsel would contend that, as per the statement of PW2 and PW3, both the accused were present in the Police Station when PW1 filed the complaint. Learned counsel disputed the date and time of arrest mentioned in the evidence of PW16, in which, the Village Administrative Officer had deposed that he witnessed the arrest of A2 on 02.09.2012, followed by which, the confession statement of A2 was recorded.
14. Learned counsel would contend that though the samples were taken by the Investigating Officer which was https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 9/35 CRL.A.No.545 of 2019 duly sent to the Forensic Lab, marking of an Expert Opinion through the Inspector of Police cannot be taken into consideration as the lab reports were not marked through the author of the document. The Magistrate who recorded the 164 statement was also not examined before the Trial Court.
15. The statement of PW6 that she had last seen the deceased alive with A2, who took the deceased along with her to peel coconut is propounded by the prosecution as last seen alive theory. However, the said theory cannot be taken into consideration as it does not implicate A1. Mere confession statements and recovery of bloodstained clothes and Koduval (M.O.2) from A1 by itself does not incriminate A1 and A2. In a case of circumstantial evidence, there should be cogent chain of circumstances pointing the guilt of the accused persons and when the chain breaks even at one point, the accused cannot be convicted.
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16. Per contra, learned Additional Public Prosecutor would contend that, PW1 in the complaint (Ex.P1) had clearly narrated the circumstances under which the deceased went missing and she had also pointed out the illicit relationship between A1 and A2. Recovery of material objects Koduval (M.O.2) from A1, which was used for committing the murder and other blood stained clothes i.e., Lungi (M.O.3) and half burnt saree (M.O.1) from A1 and A2 would clearly show that the accused persons had committed the crime which is supported by the expert opinion (Forensic report) marked as Ex.P32. The confession statement of A1 and A2 would clearly establish the nature of injury caused by them on the deceased which is confirmed by the post mortem report marked as Ex.P21. Learned Additional Public Prosecutor would further contend that the Trial Court had rightly considered the evidence of PW6 and convicted the appellants based on the last seen alive theory and circumstantial evidence. https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 11/35 CRL.A.No.545 of 2019
17. We have heard the learned counsels appearing on either side and perused the materials available on record.
18. The recovery Mahazars were marked as Exs.P13, P15, P24 and P27. According to the prosecution, the confession statement of A1 led to the recovery of M.O.2 Koduval (45 cm sharp length) vide Ex. P15. PW11 and PW16 who are the Village Administrative Officers had signed as witnesses in the Recovery Mahazar marked as Ex.P15.
19. Admittedly, none of the prosecution witnesses had spoken about the crime committed by A1. Except the confession statement of A1 and recovery of Koduval (M.O.2), there are no other incriminating materials against A1. That apart, the prosecution has not adduced any evidence to implicate A1 on the basis of last seen alive theory. While https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 12/35 CRL.A.No.545 of 2019 charges were framed against A1 for offences under Section 364 r/w. 34 IPC, 302 and 201 IPC, the prosecution has not established the charges against A1.
20. In so far as conviction of A2 is concerned, the confession statement and recovery of half burnt Saree (M.O.1) from A2 based on the confession statement and the bloodstained vessels (M.O.12 & M.O.13) recovered from the house of A2 are the only incriminating materials against A2. The said bloodstained vessels, bloodstained earth and plain earth (M.O.10 to M.O.13) were recovered by way of Recovery Mahazar marked as Ex.P.27. The witnesses PW9 and PW10 who have affixed their signature in the said Recovery Mahazar had turned hostile.
21. According to PW6, A2 had taken the deceased to peel coconut and she carried a Aruval while taking the deceased. The 164 statement of PW6 was marked as Ex.P29. The said Aruval was neither found in the https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 13/35 CRL.A.No.545 of 2019 observation Mahazar nor in the sketch and the same was not recovered from A2.
22. In the case of Yuvaraj vs. State rep. by the Additional Superintendent of Police, CBCID and Others reported in 2023 SCC OnLine Mad 3621, the Division Bench of this Court, in which, one of us (Hon'ble Mr.Justice M.S.Ramesh) was a member, has held as follows:
vi. Last seen theory “145. This Court will now deal with the most important circumstance in this case, which is the last seen theory. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the perpetrator of the crime becomes impossible. In cases where there is a long time gap, it becomes difficult in some cases to positively establish the guilt of the accused by using the last seen theory. It is https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 14/35 CRL.A.No.545 of 2019 not possible to exactly define how much of time gap will be safe to employ the last seen theory and it will always depend upon the facts and circumstances of each case. The Court must only be careful in ensuring that due to the long-time gap, there is a possibility of other persons also to have come in contact with the deceased and who might be the ultimate cause for the death of the deceased.”
23. In the case of Aravindan vs. State rep. by the Inspector of Police, Dharmapuri Police Station, Dharmapuri, CRL.A.No.232 of 2019 dated 29.09.2024, another Division Bench of this Court, in which, one of us (Hon'ble Mr.Justice M.S.Ramesh) was a member, has relied upon the following judgments of the Hon’ble Supreme Court and this Court on circumstantial evidence:
a)Shailendra Rajdev Pasvan and others Vs. State of Gujarat and Others.
b)Trimukh Maroti Kirkan v. State of Maharashtra
c)Bodhraj v. State of J & K, https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 15/35 CRL.A.No.545 of 2019
d)Rambraksh v. State of Chhattisgarh.
e)Anjan Kumar Sharma v. State of Assam
f)Raja Naykar Vs. State of Chhattisgarh
g)Pardeep Kumar Vs. State of Haryana
h)Sharad Birdhichand Sarda Vs. State of Maharashtra
i)Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra
j)Sharad Birdhichand Sarda v. State of Maharashtra
k)Kalinga Alias Kushal Vs. State of Karnataka. By Police Inspector, Hubli
l)Chandrapal v. State of Chattisgarh
m)State of M.P v. Paltan Mallah
n)Sasikumar Vs. State rep. By Inspector of Police, Karungalpalayam Police Station, Erode District.
24. The relevant paragraphs of the judgment of this Court in the case of Aravindan, cited supra is extracted hereunder:
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18. Before we get further into the factual aspect, we deem it appropriate to discuss the legal position in respect of the circumstantial evidence. The Hon’ble Supreme Court in the case of Shailendra Rajdev Pasvan and others Vs.State of Gujarat and Others reported in (2020) 14 SCC 750, held that in the case relating to circumstantial evidence, law needs two fold requirements, i) Every link in the chain of the circumstances has to be established, and ii) All the circumstances must be consistent pointing only towards the guilt of the accused. For ready reference, we deem it appropriate to extract paragraphs 13, 14, 15 and 17 of Shailendra Rajdev Pasvan (cited supra) case, which read as follows:
13. Thus, the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates twofold requirements:-
(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.
(ii) All the circumstances must be consistent pointing only https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 17/35 CRL.A.No.545 of 2019 towards the guilt of the accused.
14. This court in the case of Trimukh Maroti Kirkan v. State of Maharashtra has enunciated the aforesaid principle as under :-
12.....The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 18/35 CRL.A.No.545 of 2019 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence”.
15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodhraj v. State of J & K, Rambraksh v. State of Chhattisgarh , Anjan Kumar Sharma v. State of Assam following principle of law, in this regard, has been enunciated:
(Shailendra Rajdev Pasvan Case, SCC OnLine Guj para 16)~ 16…. The last seen theory comes into play where the time gap https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 19/35 CRL.A.No.545 of 2019 between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”.
17. It is well settled by now that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 20/35 CRL.A.No.545 of 2019 conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.“ (Emphasis supplied by this Court)
19. In yet another judgment in Raja Naykar Vs. State of Chhattisgarh reported in (2024) 3 SCC 481, Hon’ble Supreme Court has held that in the case of circumstantial evidence any discovery of fact in a place accessible to all, and in common place, become doubtful.
20. In the case of Pardeep Kumar Vs. State of Haryana reported in (2024) 3 SCC 324, the Hon-ble Supreme Court relied on the oft-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 21/35 CRL.A.No.545 of 2019 quoted judgment of Hon-ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116. In Sharad Birdhichand Sarda case (cited supra), Hon-ble Supreme Court laid down the Panchsheel principle in paragraph 153 and 154 and the same read as follows:
“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should“ and not “may be“ established. There is not only a grammatical but a legal distinction between “may be https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 22/35 CRL.A.No.545 of 2019 proved“ and “must be or should be proved“ as was held by this Court in Shivaji Sahabrao Bobade & Anr.
v. State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Crl) 1033 where the following observations were made (SCCp.807, para 19):
“19.......Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between -may be- and
-must be- is long and divides vague conjectures from sure conclusions.“ (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 23/35 CRL.A.No.545 of 2019 (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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence (Sharad Birdhichand Sarda v. State of Maharashtra, SCC p.185, paras 153-54)“
24. Therefore, it is apparent that the prosecution did not establish the case either through ocular evidence, or through circumstantial evidence. Even the extra~judicial confession and the recovery is not wholly believable. At this juncture, it is https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 24/35 CRL.A.No.545 of 2019 useful to refer to judgment of Hon-ble Supreme Court in Kalinga Alias Kushal Vs. State of Karnataka. By Police Inspector, Hubli reported in (2024) 4 SCC 735, where the Hon-ble Supreme Court has held that, extra~judicial confession is a weak type of evidence and as a rule of prudence, a corroboration is necessary. For ready reference, the relevant paragraph of the judgment is extracted hereunder:
“15. The conviction of the appellant is largely based on the extra~judicial confession allegedly made by him before PW 1. So far as an extra judicial confession is concerned, it is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to the other evidence on record. In Chandrapal v. State of Chattisgarh, this Court reiterated the evidentiary value of an extra judicial confession in the following words (SCC OnLine SC para 11:) “11. At this juncture, it may be noted that as per Section 30 of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 25/35 CRL.A.No.545 of 2019 Evidence Act, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. However, this court has consistently held that an extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession. As held in case of State of M.P v. Paltan Mallah, the extra judicial confession made by the co~--accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 26/35 CRL.A.No.545 of 2019 accused loses its significance and there cannot be any conviction based on such extra judicial confession of the coaccused.“ (Emphasis supplied by this Court)
25. Similarly, the Hon-ble Division Bench of this Court in Sasikumar Vs. State rep. By Inspector of Police, Karungalpalayam Police Station, Erode District reported in 2005~1~L.W (Crl.) 161, has held that the extra judicial confession is a weak piece of evidence and therefore, caution must be there in the mind of the Court. The Division Bench further held that if the extra judicial confession is found to be reliable and trustworthy, then there will be no harm in basing the conviction on the said piece of evidence alone. But we have revised our findings that even the extra judicial confession attached with doubt regarding its voluntariness. Thus, from the detailed discussion made hereinabove, we are of the firm view that the prosecution has miserably failed to establish any incriminating circumstances against the accused. However, though the trial Court has passed an elaborate judgment, it had hardly appreciated the https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 27/35 CRL.A.No.545 of 2019 evidence in its right perspective, and thereby landed to a wrong conclusion and therefore, the same needs to be interfered by this Court by setting aside the same.
25. In the judgment of the Hon’ble Supreme Court in The State Of Madhya Pradesh Vs. Balveer Singh, reported in 2025 SCC OnLine SC 390, the Hon’ble Supreme Court has discussed the principles of law relating to appreciation of Circumstantial Evidence assiduously. The relevant paragraph is extracted hereunder:
“61. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:—
(i) Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) Those circumstances must be of a definite tendency unerringly pointing https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 28/35 CRL.A.No.545 of 2019 towards guilt of the accused and must be conclusive in nature;
(iii) The circumstances, if taken
cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) 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 but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved”.
26. As per the observations of the Hon’ble Supreme Court, it is clear that, in a case of circumstantial evidence, the witnesses may lie but not the circumstances. The chain of circumstances commencing from the deceased last seen alive to recovery of weapons and other materials, should be https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 29/35 CRL.A.No.545 of 2019 complete and it should point towards the guilt of the accused. If there is a break in the said chain, conviction cannot be sustained on the strength of other circumstances pointed out by the prosecution to implicate the accused.
27. The Village Administrative Officers, viz., PW11 and PW16 have deposed that they have witnessed the arrest of A1 on 03.09.2012 and arrest of A2 on 02.09.2012 and also the extra judicial confessions given by A1 and A2. However, PW1 to PW3 had categorically deposed about the presence of A1 and A2 in the Police Station while PW1 lodged the complaint (Ex.P.1). Therefore, it creates a doubt regarding the date and time of arrest of A1 & A2 and the statements of the Village Administrative Officers/PW11 and PW16 cannot be taken as reliable evidence as it lacks credibility. Inconsistencies between the statements of P.W.1 to P.W.3 and P.W.11 & 16 are fatal to the case of the prosecution.
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28. As the extra judicial confession is a weak piece of evidence, it should be corroborated by other materials to be taken as conclusive evidence. It is clear that the statements of PW11, PW16 & PW17 regarding arrest of A1 and A2 are contradictory to the statements of PW1 to PW3 as mentioned above.
29. In the absence of clinching evidence to corroborate the extra judicial confessions which led to the recovery of M.O.1 and M.O.2 from A2 and A1 respectively and in the absence of chain of circumstances pointing towards the guilt of A1 and A2 commencing from the deceased last seen alive with A2 by PW6 to the recovery of M.O.1 & M.O.2, conviction of the appellants cannot be sustained on the basis of doubtful testimony of PW6.
30. It is clear that, as held by the Hon’ble Supreme Court and Division Bench of this Court in the Judgments cited supra, conviction cannot be based solely on the extra https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 31/35 CRL.A.No.545 of 2019 judicial confessions. The Hon'ble Supreme Court has time and again held that there cannot be a conviction based on extra judicial confession, unless the extra judicial confession is corroborated by other evidence. When there is a material contradiction regarding date of arrest in the statements of the prosecution witnesses, the confession statements and recovery of material objects based on the confession statements become highly doubtful.
31. The evidence of PW6, which is the basis for propounding the last seen alive theory by the prosecution is not corroborated by any other evidence. Therefore, the evidence of PW6, by itself, is not sufficient to come to the conclusion that A2 had committed the crime. As the prosecution has failed to establish the chain of circumstances pointing towards the guilt of A1 and A2, it is improbable to come to the conclusion that A1 and A2 had committed the crime based on the circumstantial evidence adduced by the prosecution.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 32/35 CRL.A.No.545 of 2019
32. In view of the same, the Judgment passed by the learned Additional District & Sessions Judge, Hosur in S.C.No.232 of 2016, dated 11.06.2019 is set aside and the fine amount, if any paid, shall be returned to A1 and A2. The material objects in the custody of the Trial Court shall be disposed of.
33. In the result, the Criminal Appeal is allowed, the accused persons are set at liberty if they are not required in any other case. Consequently, connected miscellaneous petition is closed.
(M.S.R.,J) (N.S.,J)
21.03.2025
Index: yes/no
Speaking order:yes/no
Neutral Citation:yes/no
pam
To
1.The Additional Sessions Judge, Hosur https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 33/35 CRL.A.No.545 of 2019
2.The Inspector of Police, Uddanappalli Police Station, Krishnagiri District.
3.The Public Prosecutor, High Court, Madras https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 34/35 CRL.A.No.545 of 2019 M.S.RAMESH, J.
and N.SENTHILKUMAR, J.
pam Pre-delivery judgment in CRL.A.No.545 of 2019 21.03.2025 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/03/2025 04:34:40 pm ) 35/35