Supreme Court of India
Basheera Begam vs Mohammed Ibrahim And Ors on 31 January, 2020
Author: Hon’Ble Ms. Banerjee
Bench: Hon’Ble Ms. Banerjee, Sanjiv Khanna
1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.417 OF 2010 BASHEERA BEGAM …...Appellant versus MOHAMMED IBRAHIM & ORS. Respondents WITH CRIMINAL APPEAL NO. 416 OF 2010 CRIMINAL APPEAL No. 408-414 of 2010 JUDGMENT
Indira Banerjee, J.
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
Signature Not Verified 938 of 1998, setting aside the judgment and order dated
Digitally signed by
JAYANT KUMAR ARORA
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
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 2 nd 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, 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
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.
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:-
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
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
10. Irregular abrasion just above right knee.
11. Irregular abrasion 4 cm diameter below right scapula.
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.”
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
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
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
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. Penis circumcised, eye lids closed,
jaws clenched. Tongue inside the mouth.
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 4 th 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 21 st 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 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 6 th 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/-
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.
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.
1. 2011 (6) SCC 343
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 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 Haryana 2,
Praful Sudhakar Parab vs. State of Maharashtra 3 and Satish
2. 2015 (12) SCC 644
3. 2016 (12) SCC 783
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 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
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
4. 2017 (8) SCC 497
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 28 th
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
36. On getting this information PW-1 left for the scene of
occurrence along with his neighbour one Mohamed Meera and
thereafter he lodged a complaint, stating he suspected that his
sister’s son being D1 and D2 had been murdered at the instigation
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
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
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 daughter. No specific reason for enmity between A1 and D2 or
between A4 and D2 has emerged from the evidence of this
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 bunk held 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 29 th 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.
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
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
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 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 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
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.
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
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
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 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 1 st
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
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 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 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 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) 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
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-
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
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 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-
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 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 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
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
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.
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
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.
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 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), 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
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.
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, 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 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 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 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 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 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 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
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. 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
CBCID Superintendent. On 10.12.1993 he examined Dr.
Thiyagarajan(PW-27), S.I Sethu (PW-32) and recorded their
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
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.
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
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
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 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
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.
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 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
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 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 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.
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
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.
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 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
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
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.
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
5. 1980 (1) SCC 704
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.
6. (1973) 2 SCC 793
190. In Sharad Birdhichand Sarda vs. State of Maharastra 7
the Supreme Court held that where there is no eye witness to the
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 Haryana 9. The judgment in Praful
Sudhakar Parab vs. State of 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
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
7. (1984) 4 SCC 116
8. 2006 (13) SCC 116
9. 2015 (12) SCC 644
10. 2016 (12) SCC 783
11. 2017 (8) SCC 497
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 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.
12. 2016 (4) SCC 357
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
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 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.
13. (2012) 12 SCC 158
198. We do not find any merit in the appeals. The appeals fail
and the same are dismissed.
JANUARY 31, 2020;