Basheera Begam vs Mohammed Ibrahim & Ors.

28.12.90 at around 8.30 p.m., D2 rode motorcycle owned by A4 with D1 on pillion – Two were seen lying dead on road, in a pool of blood and their motorcycle lying close by – Prosecution miserably failed to prove that D2 & D1 were beaten to death with rods by A2 & A7 – It was also not able to rule out the possibility of D1 & D2 being killed in a ‘hit and run’ accident involving some unknown vehicle – There are inherent improbabilities and inconsistencies in evidence – It is not the case of prosecution that the accused had any motive to kill D1– There was no eyewitness to the incident – It would be preposterous to attribute the purchase of the lorry to the sinister motive of murdering D2 – To establish motive for murder, the prosecution tried to build up a case of enmity between A3 & D2 and also of disputes between A1, A3 & D2 – Property disputes amongst family members is not uncommon – There may also be quarrels between them however, to attribute motive to a father to plot the murder of his own son, there have to be more compelling reasons – Prosecution failed to prove that there was any conspiracy to kill D2 at the hotel or anywhere else – When there is circumstantial evidence pointing to the guilt of accused, it is necessary to prove a motive for the crime – However, motive need not be proved where there is direct evidence – In this case, there is no direct evidence – Prosecution failed to establish the guilt of the accused persons beyond reasonable doubt – High Court rightly acquitted the accused – Code of Criminal Procedure – ss.161, 313 – Constitution of India – Art.136.

Criminal Law – Circumstantial evidence – Proof beyond reasonable doubt – Held: Suspicion however strong cannot substitute proof beyond reasonable doubt – Burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution – If upon analysis of evidence two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred – When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime – However, motive need not be proved where there is direct evidence.

Dismissing the appeals, the Court

HELD: 1.1 The Prosecution has only been able to conclusively establish that, on 28.12.1990 at around 8.30 p.m., D2 rode out of Arsarkulam, towards Aranthangi on Motorcycle No. TN 55/1406 owned by his father, A-4, with D1 on the pillion. The two were seen lying dead on the road, in a pool of blood, a few furlongs away from the level crossing at Sarayanenthal, Pappakulam and their motorcycle was lying close by. On a careful analysis of the post mortem reports and the oral evidence of the post mortem doctors, it is found unlikely that the deceased were beaten to death with an iron rod. PW-22 was of the opinion D2 fell off the motor cycle after a collision and got run over. The Prosecution has miserably failed to prove that the deceased were beaten to death with a rod. The Prosecution has also not been able to rule out the possibility of D1 and D2 being killed in a ‘hit and run’ accident involving some unknown vehicle. There are also inherent improbabilities and inconsistencies in the evidence which demolishes the case of the Prosecution that the deceased were beaten to death with iron rods by A2 and A7. It does not stand to reason why A2 and A7 should have risked getting off the lorry and beating D2 and D1 with iron rods, when A1 had dashed his lorry against their motor cycle, fatally injured them and run at least one(D2), if not both of them over. It is not the case of the Prosecution that the accused had any motive to kill D1. Moreover, while it is alleged that A2 and A7 had hit both the deceased with iron rods, only one iron rod has allegedly been recovered from an open, easily accessible pond, over a month after the incident on the alleged confession of A7 made before the police after arrest. There is no whisper in the evidence of any other iron rod. PW29, the sole witness who testified that A2 made a confession to the police in his presence, took the police to Maangudi and brought the iron rod out of a pond in his presence, could not even remember if there was any water in the pond. Nor could he identify A7. The rod was never sent for forensic examination. It would be dangerous to convict A2 or A7 on the basis of the testimony of PW-29 or for that matter, any other witness. There can be no question of interference with the acquittal of A2 and A7 from the charges against them. There was no eyewitness to the incident. The Prosecution has made an attempt to connect the lorry No. TSL 6579 to the incident through circumstantial evidence, by examining PW-6, PW-7, PW-8, PW-11, PW-12, PW14, PW-15, PW-16, PW-17, PW-19, PW-25, PW-27, PW-35, PW42, PW-43, PW-44 and PW-45 and also relying on material objects such as broken glass pieces, broken plastic pieces, paint scrapings seized from the place of occurrence as also the number plate of a lorry with the number TSL 6579, an indicator with bulb and a partly orange and partly transparent plastic cover, an indicator without bulb and cover, a circular lamp 14.5 cm in diameter with lamp and yellow glass cover and a circular lamp holder 14.5 cm in diameter without lamp and cover. The number plate, indicators and lamps were not seized from the place of occurrence. The evidence of PW-6, PW-7 and PW-17 only establishes that A1 purchased lorry No. TSL 6579 through brokers PW-6 and PW-7 with the assistance of A5 and A6 about 7/8 days before the incident. About four days before the incident, the lorry had been brought to Karaikuddi National Battery company for getting its battery charged. Since the battery needed replacement, but a new battery was not in stock, a serviced battery was fitted in the lorry, which was never returned. Significantly, the evidence of PW-6 reveals that A1 had earlier, long before the alleged conspiracy at the Malar Lodge Hotel on 21.6.1990 purchased a lorry with the Registration No TDB 9635 for which A5 had stood guarantor. This lorry was sold some time in October, 1990, about four months after the date of the alleged conspiracy, and in less than two months, on or about 20/21 December, 1990 Lorry No.TSL 6579 was purchased. It is, therefore, evident that A1 used to have a lorry, or at least had one since January 1990 with a short break, possibly for the purpose of his business. It would be preposterous to attribute the purchase of the lorry to the sinister motive of murdering D2. The Prosecution has made no attempt to explain why A1 should have sold the lorry he already had if there were a conspiracy to kill D2 by hitting him or running him over with a lorry. [Paras 142, 149-154][608-F-G; 609-H; 610-AH; 611-A-D]

1.2 From the evidence of aforesaid witnesses as also the evidence of PW-8, PW-14, PW-15, PW-16 and PW-17 it transpires that the lorry was brought to Arokyam’s workshop at Mannaparai on 29.12.1990 for minor repairs. After the repairs were done PW6 took delivery of the same and left it at a lorry shed near the office of A7, who had sold the lorry to A1 through A6. PW-14, the owner of the workshop deposed that PW-6 had instructed him to repair a minor dent. There is nothing in the evidence of PW-6 or PW-7 to link the lorry with the death of D2 and D1. Incidentally, PW-6 said he had not seen A1 after 20.12.1991, whereupon he was declared hostile and subjected to cross-examination. PW-6 said the lorry had been seized by the police. Even assuming for the sake of argument that the lorry TSL 6579 had been brought to the workshop for repair with minor dent and a broken sidelight or lamp and the colour of some broken glass pieces at the scene of occurrence matched the colour of the side light and or indicators of the lorry, that does not prove involvement of the lorry in the same incident. Many lorries have the same kind of lamp/indicator covers. Moreover the lorry was purchased second hand and there is no evidence at all of the condition of the lorry at the time of its delivery to A1. [Paras 155, 163][611-E-G; 614-B]

1.3. In any case, even assuming for the sake of argument that lorry No. TSL 6579 was the lorry, which knocked down the motorcycle which the deceased were riding, and ran over the deceased, that in itself cannot lead to the conviction of any of the accused under Section 302 of the Indian Penal Code. There is not an iota of evidence to establish that A1, A2 or A7 were in the lorry, except for the alleged extra judicial confession of A7 made in the presence of the police, which cannot be accepted for the reasons discussed. The mere fact that A1 might have been driving the lorry also does not establish that he committed murder. To establish motive for the murder the Prosecution has tried to build up a case of enmity between A3 and D2 and also of disputes between A1 and A3 and D2. A3 was named as a possible suspect in the FIR. There may have been enmity between D2 and A-3, but A-3 was not there at the scene of occurrence. It is not the case of the Prosecution that A3 committed the murder. There is no evidence of his involvement in the murder of D2 and D1. In any case, he could not have had any motive to kill D1. Furthermore, the evidence of PW-1 indicates that disputes with A3 were compromised with the intervention of the District Collector. The allegations of disputes between A1 and D2, his own brother, are totally vague and devoid of any particulars. There is no evidence at all, of any specific reason for discord between A1 and D2, not to speak of evidence of dispute of a kind that could lead to a murder. [Paras 165-167][614-E-H; 615-A]

1.4 A4 had also made a complaint to the police. The dispute was apparently settled on 30.4.1990 on the advice of PW-29, and D2 promised not to quarrel with his father over property matters. There is no evidence that he breached such promise. Property disputes amongst family members is not uncommon. There may also be quarrels between members of a family. They may not be on talking terms. However, to attribute motive to a father to plot the murder of his own son, there would have to be more compelling reasons. The case made out by the Prosecution is speculative and unsubstantiated. In any event, it is not the case of the Prosecution that either A3 or A4 committed the murder, or was even present at the place of occurrence. Furthermore, it is nobody’s case that A2, A5, A6, A7 and A8 or any of them had any enmity with D2. [Paras 169-172][615-C-F]

1.5 The only evidence with regard to the alleged conspiracy is the absolutely inadmissible hearsay evidence of PW-44, a police officer who investigated the crime. PW-44 stated that he had examined PW-39, who had in course of his examination stated that A1 had asked PW-39 and PW-10 to accompany him to Karaikudi for purchase of lorry spare parts. Apart from the fact that PW-10 and PW-39 have categorically denied their presence at Karaikudi on 21.6.90, there are patent inconsistencies in the evidence of PW-44 in this regard. If A3 was present at the Malar Lodge Hotel, Karaikudi at the time of the conspiracy on 21.6.1990, there could be no reason for PW-10 or PW-39 to go to A3’s house and tell him about the conspiracy. Nor would A3 advise PW-10 and PW-39 not to divulge the conspiracy to others. Even otherwise, it is inconceivable that the accused should hatch a conspiracy to commit murder, in the presence of witnesses who were not part of the conspiracy. It is also difficult to fathom why PW-10 and PW-39 were never arrayed as co-accused, if they were present at the time of the conspiracy and they chose to keep quiet about the conspiracy. No credence can be given to the evidence of PW-44. Statements made to the police under Section

161 of the of the Criminal Procedure Code in course of investigation are inadmissible in evidence. The evidence of PW44 with regard to what two witnesses namely, PW-10 and PW-39 told him in course of investigation is inadmissible in evidence, and of no value. Significantly, both PW-10 and PW-39 categorically denied having made to the police, the statements attributed to them. [Paras 175, 182-185][616-A-B; 617-C-F]

1.6 PW-40 who had worked as Manager, Malar Lodge Hotel, Karaikudi from 1989 to 1991 denied knowing A8 or A2. He denied having made the statements to the police, attributed to him. The appellants have relied on the evidence of PW-34, a handwriting expert, to prove that the accused had taken part in a conspiracy at the Malar Lodge Hotel on 21.6.1990. In any case, the evidence of PW-34 establishes at the highest, that one of the accused that is A-8, who had no enmity with the deceased, had made entries in and signed the admission register of the Malar Lodge Hotel. The evidence of PW-34, at best proves that A8 may have checked into Malar Lodge Hotel, Karaikudi on 21.6.1990, six months before the incident and nothing more. There could be numerous reasons for A8 to go to Karaikudi. The Prosecution has not been able to satisfactorily explain the gap of over six months between the incident and the date on which the alleged meeting took place at the Malar Lodge. An accused is presumed innocent, unless proved guilty beyond all reasonable doubt. For conviction on the basis of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should fully be established. The circumstances should be conclusive. The circumstances established should definitely point to the guilt of the accused, and not be explainable on any other hypothesis. The circumstances should exclude any other possible hypothesis except the one to be proved. [Paras 186- 189][617-G-H; 618-A, C-G]

Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489 – relied on.

1.7 Suspicion however strong cannot substitute proof beyond reasonable doubt. Enmity as a result of property related disputes may give rise to suspicion. However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of the accused. Possibility of any conclusion other than the conclusion of guilt of the accused would vitiate a conviction. The burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If upon analysis of evidence two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the Court might reverse an order of acquittal if the Court finds that no person properly instructed in law could have upon analysis of the evidence on record found the accused to be ‘not guilty’. When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime. [Paras 192-193][619-E-G; 620-A-B]

1.8 Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. There has to be a chain of evidence so complete as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The prosecution miserably failed to establish the guilt of the accused persons beyond reasonable doubt. There is a strong possibility that the motorcycle which the deceased were riding, might have been hit by an unknown vehicle, killing the deceased. The death may have been accidental. The High Court rightly set aside the judgment and order of conviction of the Trial Court and acquitted the accused. [Paras 195, 197][620-E; 621-C]

Praful Sudhakar Parab v. State of Maharashtra (2016)

12 SCC 783 – distinguished.

Satish Nirankari v. State of Rajasthan (2017) 8 SCC

497 : [2017] 4 SCR 298; Sadhu Saran Singh v. State of U.P. (2016) 4 SCC 357 : [2016] 1 SCR 913; Shanti Devi v. State of Rajasthan (2012) 12 SCC 158 : [2012]

9 SCR 226 – relied on.

State of Rajasthan v. Islam & Ors. (2011) 6 SCC 343 : [2011] 6 SCR 988; Vijay Shankar v. State of Haryana (2015) 12 SCC 644 : [2015] 9 SCR 977; Murari lal v. State of Madhya Pradesh (1980) 1 SCC 704 : [1980] 2 SCR 249; Sharad Birdhichand Sarda v. State of Maharastra (1984) 4 SCC 116 : [1985] 1 SCR 88; Bablu v. State of Rajasthan (2006) 13 SCC 116 : [2006]

10 Suppl. SCR 835 – referred to.