{"id":232227,"date":"2004-04-06T00:00:00","date_gmt":"2004-04-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chinna-thambi-vs-state-by-inspector-of-police-on-6-april-2004"},"modified":"2017-06-26T08:30:59","modified_gmt":"2017-06-26T03:00:59","slug":"chinna-thambi-vs-state-by-inspector-of-police-on-6-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chinna-thambi-vs-state-by-inspector-of-police-on-6-april-2004","title":{"rendered":"Chinna Thambi vs State By Inspector Of Police on 6 April, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Chinna Thambi vs State By Inspector Of Police on 6 April, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 06\/04\/2004\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE V. KANAGARAJ\nAND\nTHE HONOURABLE MRS. JUSTICE R. BANUMATHI\n\nCRIMINAL APPEAL No.32 OF 1997\n\n1. Chinna Thambi\n2. Nadimuthu                                    ......Appellants \/\n                                                Accused 1 and 2\n\n-Vs-\n\nState By Inspector of Police,\nAdhiramapattinam Police Station,\nAdhiramapattinam.                       .....Respondent\n\n                Criminal Appeal, under Section 374(2)  of  Criminal  Procedure\nCode  against  the  judgment  dated 07.11.1996 passed by the learned Principal\nSessions Judge, Thanjavur in S.C.No.73 of 1996, as stated therein.\n\n!For Appellants ::  Mr.  A.  Natarajan\n\n^For Respondent ::  Mr.  E.  Raja\n                Additional Public Prosecutor\n\n:J U D G M E N T\n<\/pre>\n
(Judgment of the court was delivered by R.BANUMATHI, J)<\/p>\n
                The appellants are accused 1 and 2 in S.C.No.73 of 1996 on the
\nfile of  Principal  Sessions  Court,  Thanjavur.    By  the   judgment   dated
\n07.11.1996,   learned   Principal  Sessions  Judge,  Thanjavur  convicted  the
\nappellants \/ accused 1 and 2 under Sec.302  read  with  Sec.34  of  I.P.C  and
\nsentenced each  of  them  to undergo Life Imprisonment.  By the same judgment,
\nfor causing the evidence to disappear,  the  appellants  were  also  convicted
\nunder  Section  201  of  I.P.C.,  for  which, the appellants were sentenced to
\nundergo Rigorous Imprisonment for four years.\n<\/p>\n
        2.  The case of prosecution could briefly be stated thus:
\n        One Mala was married to one Dhanabal and she  gave  birth  to  a  male
\nchild.  Thereafter  she was deserted by the said Dhanabal.  Subsequently, Mala
\ndeveloped intimacy with A-1-Chinnathambi.  Later, the said  Mala  is  said  to
\nhave  had  illicit  intimacy  with  the  deceased  Kulandaivelu,  much  to the
\ndisliking of A-1-Chinnathambi.  A -1-Chinnathambi warned Mala to  desist  from
\nthat intimacy, for which Mala refused to oblige due to which, A-1-Chinnathambi
\ndeveloped  grudge  against Kulandaivelu and hatched a plan with A-2-Nadimuthu,
\nwho is a close friend of A-1, to do away with Kulandaivelu.\n<\/p>\n
        3.  On 13.05.1994, at about 06.00 p.m., the deceased Kulandaivelu  had
\nhired a  cycle  from  the  cycle  shop  of P.W.10-Srinivasan.  A-1 and A-2 are
\nalleged to have taken Kulandaivelu with them.  On the same day, at about 10.30
\np.m., near Pillaiyar Temple at South Mannankadu, P.W.3 – Marimuthu had noticed
\nA-1-Chinnathambi,  A-2-Nadimuthu  and  deceased  Kulandaivelu  with  a  cycle.
\nP.W.3-Marimuthu flashed a torch light and saw them proceeding.\n<\/p>\n
        4.   On  13.05.1994,  at  about 11.00 p.m., P.W.4-Periyasamy went near
\nAdampudi Odai bund to answer the calls of nature  and  at  that  time  he  saw
\nA-1-Chinnathambi carrying a gunny bag on his head and A-2Nadimuthu going along
\nwith him towing a cycle.\n<\/p>\n
        5.Complaint by Village Administrative Officer:  On 16.05.1994 at about
\n11 a.m., P.W.1-Govindasamy, Village Administrative Officer, was informed about
\na dead body being buried in a gunny bag at Adampudi Odai eastern bund.  On the
\nsame  day,  P.W.1-Govindasamy  sent  Ex.P.1Complaint  to  the Sub-Inspector of
\nPolice, Athirampattinam Police Station, stating about the burial of  the  dead
\nbody in a gunny bag at Adampudi Odai eastern bund.\n<\/p>\n
        6.  Registration of case:  On the basis of Ex.P.1-complaint dated 16.0
\n5.1994,  P.W.16-Jameen,  Sub-Inspector of Police, Athirampattinam registered a
\ncase in Crime No.275 of 1994 under Sec.   302  I.P.C  on  16.05.19  94.    The
\nexpress report was sent to the concerned officers, including P.W.11-Chinnappa,
\nExecutive Magistrate and Tahsildhar of Pattukkottai.\n<\/p>\n
        7.  Exhumation  and  Inquest:    On  receipt  of the copy of the First
\nInformation Report, P.W.11-Executive Magistrate and Tahsildhar of Pattukkottai
\ncame to the spot- Adampudi Odai bund  along  with  P.W.12-Dr.    Sarojini  (to
\nconduct spot autopsy).    The  place where the body was dug was inspected.  As
\nper the  directions  given  by  P.W.11-Executive  Magistrate  and  Tahsildhar,
\nP.W.7-Rajendran, dug  the place.  P.W.11 disinterred the body and held inquest
\nover the same.  Witnesses were examined and their  statements  were  recorded.
\nP.W.6-Rangasamy-father  of  the  deceased,  P.W.2-Thamilselvi-  sister  of the
\ndeceased and the above said Mala were examined during the inquest.   The  dead
\nbody  was  in  a highly decomposed stage, but able to be identified as that of
\nKulandaivelu.  P.Ws.2 and 6 have identified the decomposed  body  as  that  of
\nKulandaivelu.   The  body  of the deceased was found to be strangulated with a
\ntowel on its neck.  Ex.P.11 is the Inquest Report.\n<\/p>\n
        8.  Post Mortem:  Pursuant to the  requisition  from  P.W.11-Executive
\nMagistrate and Tahsildhar, P.W.12-Dr.Sarojini has conducted spot autopsy.  The
\nbody, which was in a highly decomposed stage, found packed in a gunny bag, but
\nable  to  be  identified  as  that  of  Kulandaivelu  with  shortening of leg,
\ndeformity found in the left leg.  There is overriding  of  4th  toe  over  the
\nthird in the  left  side  leg.   Skin peeled off from the body.  Foul smelling
\nmaggots found flying.  There is towel found around the  neck.    Not  able  to
\nidentify the external  injury.  Fracture of left Hyoid was noted.  Viscera was
\nsent for chemical analysis.  After the receipt of Viscera,  P.W.12-Dr.Sarojini
\ngave  opinion,  opining  that  the deceased would have died of asphyxia due to
\nstrangulation.\n<\/p>\n
        9.  Further Investigation:  In Ex.P.11-Inquest Report dated 23.05.1994
\n, P.W.11-Executive Magistrate and Tahsildhar  of  Pattukkottai  expressed  his
\nopinion on   the   suspicious   death   of   Kulandaivelu.      Hence,  P.W.17\n<\/p>\n
-Kandasamy-Inspector of Police had taken up the further investigation.  He has
\nprepared  Ex.P.5-Observation  mahazar  dated  16.05.1994  at  the   scene   of
\noccurrence.  M.O.9-photograph  of  Kulandaivelu  was seized.  After exhumation
\nand other proceedings, M.O.3-Lungi, M.O.5-Towel, M.O.13-Brief and  M.O.6-Waist
\ncord were seized by P.W.17-Inspector of Police under Form 95.\n<\/p>\n
        10.Arrest  of  the accused:A-2-Nadimuthu was arrested on 22.05.1994 at
\nabout 03.00 p.m., near  Thuvarangurichi  Road  Junction  in  the  presence  of
\nP.W.9-Govindasamy and  P.W.8-Raman.    When A-2-Nadimuthu was interrogated, he
\nhad voluntarily given a  confession  statement.    Ex.P.2  is  the  admissible
\nportion of  the  said  confession  statement.  On the same day, at about 06.00
\np.m., A-1-Chinnathambi was also arrested in  Pattukkottai  bus  stand.    Both
\nA-1-Chinnathambi   and   A-2-Nadimuthu   were  sent  to  judicial  custody  on
\n23.05.1994.  On completion  of  the  investigation,  charge  sheet  was  filed
\nagainst  the  accused  under  Sec.302 I.P.C read with Sec.34 I.P.C and Sec.201
\nI.P.C.\n<\/p>\n
        11.  Recovery of the material objects:   Pursuant  to  the  confession
\nstatement given by A-2-Nadimuthu, M.O.1-cycle was recovered from Adampudi Odai
\nbund under  Ex.P.3-seizure mahazar.  On being identified from behind the house
\nof A-1-Chinnathambi, M.O.2-Spade was seized under Ex.  P.4-seizure mahazar, in
\nthe presence of the above said witnesses.\n<\/p>\n
        12.  To substantiate the charges against  the  accused  in  the  trial
\ncourt, P.Ws.1 to  17  were examined.  Exs.P.1 to 18 were marked.  M.Os.1 to 13
\nwere produced.  When the accused were questioned under Section 31 3  Crl.P.C.,
\nabout  the  incriminating circumstances and evidence, denying all the charges,
\nthe accused stated that a false case is foisted against them.\n<\/p>\n
        13.  Upon consideration of  the  evidence  and  the  defence  version,
\nlearned Principal Sessions Judge, Thanjavur found that due to previous enmity,
\nA-1-Chinnathambi  and  A-2-  Nadimuthu  strangulated the deceased Kulandaivelu
\nwith M.O.5-Towel and caused the death.  It was further held that accused 1 and
\n2 were proved to have  caused  disappearance  of  evidence  in  Adampudi  Odai
\nErikkarai.   On  those  findings,  the appellants \/ accused 1 and 2 were found
\nguilty, convicted and sentenced them to undergo Life Imprisonment as aforesaid
\nin para (1).\n<\/p>\n
        14.  Learned counsel Mr.  A.Natarajan, appearing for the appellants  \/
\naccused,  contended  that  the  prosecution  has  not  firmly  established the
\ncircumstances.  Submitting that the evidence on motive aspect and the scene of
\noccurrence are absolutely wanting,  learned  counsel  further  contended  that
\nthere  was  an enormous delay of nearly one week in sending the inquest report
\nand  that  the  statements  of  key   witnesses   like   P.W.3-Marimuthu   and
\nP.W.4-Periyasamy, which  was not properly appreciated by the trial court.  The
\narrest of the accused and recoveries of M.O.1-cycle and M.O.2-spade  are  also
\nassailed  contending  that  they do not in any way establish the complicity of
\nthe appellants \/ accused in the offence.\n<\/p>\n
        15.  Countering the arguments of the appellants \/  accused,  Mr.    E.
\nRaja,  learned Additional Public Prosecutor submitted that the trial court has
\nwell appreciated the evidence on the circumstances adduced by the  prosecution
\nand that the reasonings for conviction are based on the materials available on
\nrecord.    Learned   Additional   Public  Prosecutor  further  submitted  that
\nEx.P.11-Inquest Report dated 23.05.1994 sufficiently  establishes  the  motive
\naspect.   He  has  also  submitted  that  there is no strong reason warranting
\ninterference by this Court.\n<\/p>\n
        16.  Upon careful reassessment of the evidence, impugned judgment  and
\nthe submissions of both sides, the following points arise for determination in
\nthis appeal:\n<\/p>\n
        (1)   Whether   the   prosecution  has  conclusively  established  the
\ncircumstances?\n<\/p>\n
        (2) Whether the guilt of the appellants \/ accused 1 and  2  is  proved
\nbeyond reasonable doubt?\n<\/p>\n
        (3)   Whether   the   trial  Court  was  right  in  finding  that  the
\ncircumstances are completely established pointing to the guilt of the accused?\n<\/p>\n
        (4) Whether the conviction of the appellants could be sustained?<\/p>\n<\/blockquote>\n
        17.  Identification of the dead body as Kulandaivelu:<\/p><\/blockquote>\n
        The dead body was highly decomposed, but was able to be identified  as
\nthat of  Kulandaivelu.    P.W.6  and  P.W.2, father and sister of the deceased
\nidentified the dead body as that of Kulandaivelu.  The  deceased  Kulandaivelu
\nwas having  deformity  and shortening of leg.  In their evidence, P.Ws.2 and 6
\nhave clearly spoken to about the deformity of the left  leg  of  Kulandaivelu.
\nThe gist of their evidence is as follows:\n<\/p>\n
        “,lJ  fhy;  Cdk;\/  mij  itj;J  ehd;  milahsk;  fhz;gpj;njd;\/  ,lJ fhy;
\ntpuy;fs; Nk;gp ,Uf;Fk;\/ nkYk; tpuy;fs; xd;W  nky;  xs;W  gpd;dpaJ  nghy;  ,Uf;
\nFk;.”\n<\/p>\n
        18.   P.W.12-Dr.Sarojini  has  also noted the said deformity, that is,
\noverriding of fourth toe over the third in the  left  side  leg.    Thus,  the
\nidentity  of  Kulandaivelu is clearly brought out by the deformity of the left
\nleg.\n<\/p>\n
        19.  Identification of the exhumed  body  is  proved  to  be  that  of
\nKulandaivelu by scientific evidence also.  For identifying the body, skull was
\npreserved for  Super  Imposition  Test.   P.W.12-Dr.Sarojini had preserved the
\nskull of the deceased Kulandaivelu for being sent to Super Imposition Test  to
\nthe Forensic  Science  Laboratory,  Chennai.   Pursuant to Ex.P.15-requisition
\nfrom the Inspector of Police, the skull was sent along  with  M.O.9-photograph
\nto  establish  the  identification of the deceased Kulandaivelu scientifically
\nsince the body of the deceased was disinterred after six days of burial.   The
\nimage  of  the  skull  and  face photograph were subjected to Electronic Skull
\nIdentification Device by Video for superimposing the images of the  skull  and
\nthe face  photograph.  The image of the skull when superimposed with the image
\nof the above face it was observed that the face and skull outlines were  found
\nto be  in agreement, together with the anthropometric land marks on them.  The
\nscientific officer issued Ex.P.17, Super Imposition Test Report, opining  that
\nthe   skull   item   could   have   belonged   to   the   male  individual  in
\nM.O.9-Photograph-that is Kulandaivelu.  Thus, the identity of the  disinterred
\nbody is convincingly established as that of Kulandaivelu.\n<\/p>\n
        20.  Homicidal Death:   The  dead  body  was found buried, packed in a
\ngunny bag in a hidden place near Adampudi Odai kilkkarai.  There was  fracture
\nof left  horn  of Hyoid.  Even at the time of exhumation, P.Ws.11 and 12 noted
\nthat the neck  of  the  deceased  was  tightened  with  M.O.5towel.    P.W.12-
\nDr.Sarojini was  subjected  to elaborate crossexamination by the defence.  She
\nstuck to her position that Hyoid bone fracture was antemortem in nature.   The
\ndeath   of   deceased   Kulandaivelu  is  thus  proved  as  Homicidal  by  the
\nunimpeachable evidence of P.W.12-Dr.  Sarojini and the  manner  in  which  the
\nbody was buried packed in a gunny bag.\n<\/p>\n
        21.    But,   the   main  point  for  consideration  is  whether  A-1,
\nChinnathambi and A-2, Nadimuthu are proved to be responsible for the Homicidal
\ndeath of Kulandaivelu?\n<\/p>\n
        22.  Even at the outset, we may point out  that  there  is  no  direct
\nevidence  for  the  occurrence; the case of prosecution is based upon only the
\ncircumstantial evidence.   To  bring  home  the  guilt  of  the  accused,  the
\nprosecution relies upon the following circumstances:\n<\/p>\n
        (1)  Motive  –  that the deceased Kulandaivelu developed intimacy with
\nMala, much to the disliking of A-1-Chinnathambi ;\n<\/p>\n
        (2) on 13.05.1994 at about 10.30 p.m., the deceased  Kulandaivelu  was
\nlast seen alive in the company of the accused.  (evidence of P.W.3Marimuthu)
\n        (3)   on   13.05.1994   at   about   11   p.m.,  P.W.4-Periyasamy  saw
\nA-1Chinnathambi carrying a gunny bag on his head and A-2-Nadimuthu towing  the
\ncycle.\n<\/p>\n
        (4)  Arrest  of  A-2-Nadimuthu  at  about  03.00  p.m., on 23.05.1994;
\nrecovery of M.O.1-cycle said to have  been  taken  on  hire  by  the  deceased
\nKulandaivelu from the cycle shop of P.W.10 and also recovery of M.O.2-spade.
\nIt is to be seen whether the evidence adduced by prosecution in support of the
\nabove circumstances are firmly established unerringly pointing to the guilt of
\nthe appellants \/ accused.\n<\/p>\n
        23.   Before  adverting to the evidence adduced by the prosecution, we
\nmay point out  the  serious  lacuna  on  the  part  of  the  investigation  in
\ninvestigating the  scene  of  occurrence.  The case of the prosecution is that
\nthe  deceased  Kulandaivelu  has  been   strangulated   with   M.O.5towel   by
\nA-1-Chinnathambi  and  A-2-Nadimuthu near Adampudi Odai bund, but the evidence
\nis absolutely found to be wanting on the scene  of  occurrence.    Ex.P.10-the
\nplan  prepared  by  P.W.11-the  Executive Magistrate and the Tahsildhar refers
\nonly to  exhumation  spot  and  not  the  scene  of  occurrence.     Likewise,
\nEx.P.6-observation mahazar prepared by P.W.11-the Executive Magistrate and the
\nTahsildhar  also  refers  only to the place of exhumation and not the scene of
\noccurrence.  The lack of evidence on the scene of occurrence  creates  serious
\ndent in the prosecution case and in the investigation.\n<\/p>\n
        24.   In  the  above backdrop, let us consider the evidence adduced by
\nthe prosecution towards establishing the circumstances.\n<\/p>\n
        25.  Circumstance 1 – Motive:\n<\/p>\n
                Prosecution case is that one Mala was married to one  Dhanabal
\nand gave  birth  to  a  male  child.  Thereafter, she was deserted by the said
\nDhanabal.  Further case of the prosecution is that the said  Mala  was  having
\nillicit  intimacy  with  A-1-Chinnathambi  and  later  developed intimacy with
\nKulandaivelu much to the disliking of A-1- Chinnathambi.  It is also the  case
\nof   the   prosecution  that  A-1-Chinnathambi  warned  Mala  to  desist  from
\nKulandaivelu, for which she did not  oblige,  due  to  which  A-1-Chinnathambi
\ndeveloped grudge  towards  the  deceased Kulandaivelu.  It is to be noted that
\nthe best person to speak about the motive aspect would be the said  Mala;  but
\nshe was  not  examined  during the investigation by P.W.17.  The said Mala was
\nexamined by P.W.11Executive Magistrate and Tahsildhar during the inquest, with
\nwhom the said Mala stated as under:\n<\/p>\n
        “……Mdhy; fle;j fhy eltof;iffis bfhz;L jpUnt’;flk; njhg;gpy; trpj;J
\nte;j   rpd;djk;gp   kPJ   re;njfg;gLk;go   cs;sJ    vd;gij    bjhptpj;Jf;bfhs;
\nfpnwd;\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/ Mfnt.    ,we;J nghd FHe;ijntYtpd; bfhiyf;F rpd;djk;gp xU
\nfhuzfh;j;jhthf ,Ug;ghnuh vd re;njfpf;Fk; epiyapy; cs;sJ”.\n<\/p>\n
        26.   Thus,  Mala  seems  to  have  expressed  only  doubt  about  the
\ncomplicity of  A-1,Chinnathambi  in the death of Kulandaivelu.  That statement
\nof Mala before P.W.11-Executive Magistrate and Tahsildhar cannot  be  said  to
\nhave established the motive aspect for two reasons viz.,(i) that the statement
\nbefore  P.W.11-Executive  Magistrate  and  Tahsildhar  is  not the substantive
\nevidence; and (ii) the statement of Mala is purely based upon her surmise  and
\nnot a definite piece of evidence.\n<\/p>\n
        27.  In their evidence, P.Ws.2 and 6-sister and father of the deceased
\nrespectively   have   not  stated  anything  about  the  illicit  intimacy  of
\nKulandaivelu with Mala.  Only P.W.5-Balaiyan, brother-in-law of  the  deceased
\nhas made  a  mention  of  such  relationship  of Kulandaivelu with Mala.  That
\ncasual statement of P.W.5-Balaiyan,  who  is  brother-inlaw  of  the  deceased
\nKulandaivelu, in our view, is hardly sufficient to establish the motive.\n<\/p>\n
        28.   Hardly,  there  is  any  action without motive where the case of
\nprosecution is based on the  evidence  of  eye  witnesses,  the  existence  or
\nnon-existence  of  motive,  sufficiency or insufficiency will not play a major
\nrole as in the case based merely on circumstantial  evidence.    In  cases  of
\ncircumstantial evidence, proof of motive is a material consideration.  Absence
\nof proof  of  motive  should be regarded in favour of the accused.  This being
\nthe case of circumstantial evidence, in our view, absence of proof  of  motive
\nadversely affects the prosecution case.\n<\/p>\n
        29.  Circumstances 2 & 3:\n<\/p>\n
        According  to  P.W.3-Marimuthu, on the night of 13.05.1994 at about 10
\n.30  p.m.,  near  Pillaiyar  Temple  at  South  Mannankadu,  he  noticed  A-1,
\nChinnathambi,  A-2,  Nadimuthu  and  deceased Kulandaivelu with a cycle, where
\nthey were talking and proceeding.  P.W.3-Marimuthu is  alleged  to  have  seen
\nthem flashing the torch light.  The trial court accepted the evidence of P.W.3
\nand found  that the said circumstance was established.  In our view, the trial
\ncourt was not right in  accepting  the  evidence  of  P.W.3-Marimuthu  without
\ntesting the same for its reliability.\n<\/p>\n
        30.  P.W.3-Marimuthu is said to have seen the accused proceeding along
\nwith Kulandaivelu  on  the night of 13.05.1994 at about 10.30 p.m.  If really,
\nhe had seen them going on the said day,  he  would  have  disclosed  the  same
\nimmediately  to P.W.11-Executive Magistrate and Tahsildhar when the exhumation
\nwas taken up on 16.05.1994.  But, P.W.3Marimuthu has not come forward to state
\nbefore P.W.11-Executive Magistrate and Tahsildhar what  he  had  seen  on  the
\nnight of  13.05.1994.    He  was examined by P.W.17-Inspector of Police on the
\nnight of 16.05.1994 and his statement  under  Section  161(3)  Crl.P.C.    was
\nrecorded only  on  16.05.1994.    The said statement was received in the court
\nwith much delay only on  23.05.1994.    This  throws  serious  doubts  on  the
\nevidence  of  P.W.3,  which  was  not  taken  note of by the learned Principal
\nSessions Judge, Thanjavur.\n<\/p>\n
        31.  P.W.4-Periyasamy is alleged to have seen A-1, Chinnathambi on the
\nnight of 13.05.1994 carrying a gunny bag on his head and A-2, Nadimuthu  going
\nalong with  him  by  towing a cycle.  Likewise in the case of P.W.3-Marimuthu,
\nP.W.4-Periyasamy has not come forward to disclose what  he  had  seen  on  the
\nnight of  13.05.1994.  His statement was also recorded on 16.05.1994 and there
\nwas delay in sending the same to the court.   The  delay  in  the  receipt  of
\nstatement  of  P.W.4-Periyasamy  also  throws  doubt  on  his evidence and the
\nreliability of P.W.4-Periyasamy.  With the  evidence  of  P.Ws.3  and  4,  the
\nprosecution  cannot be said to have established that the deceased Kulandaivelu
\nwas last seen along with the company of the accused.\n<\/p>\n
        32.  Circumstance 4:\n<\/p>\n
        A-2, Nadimuthu was arrested on 22.05.1994 at about  03.00  p.m.,  near
\nThuvarangurichi  Road  Junction  in  the  presence  of  P.W.9-Govindasamy  and
\nP.W.8-Raman.   On  the  basis  of  confession  statement  of  A-2,  Nadimuthu,
\nM.O.1-Cycle  was  recovered  near Adampudi Odai bund under Ex.P.3Mahazar dated
\n22.05.1994.  Further, from behind the house of A-1, Chinnathambi, M.O.2-Spade,
\nsaid to have been used for digging the pit  was  seized  under  Ex.P.4-Mahazar
\ndated 22.05.1994.\n<\/p>\n
        33.   The  prosecution heavily relies upon the recovery of M.O.1-Cycle
\nat the instance of A-2, Nadimuthu.   The  case  of  prosecution  is  that  the
\ndeceased  Kulandaivelu  had  hired  the  M.O.1-cycle  from  the  cycle shop of
\nP.W.10-Srinivasan, who is running a cycle shop in Madukkur.  In his  evidence,
\nP.W.10-Srinivasan  has  stated that M.O.1-cycle-Number-10 belongs to his cycle
\nshop.   Ex.P.7  is  the   Register   maintained   in   the   cycle   shop   of
\nP.W.10-Srinivasan.    Referring   to  Ex.P.8-entry  made  in  Ex.P.7-Register,
\nP.W.10-Srinivasan has stated that the  deceased  Kulandaivelu  had  taken  the
\ncycle  on hire from his cycle shop on the evening of 13.05.1994 and he has not
\nreturned the cycle.  In our view, the evidence of P.W.10-Srinivasan  does  not
\nconclusively establish taking of cycle by deceased Kulandaivelu.\n<\/p>\n
        34.  Admittedly, P.W.10-Srinivasan was not available in the cycle shop
\non  13.05.1994  and  he has no personal knowledge about the hiring of cycle by
\nKulandaivelu.  Only the employees, engaged by P.W.10 as in charge of the  shop
\nwere available on 13.05.1994.  Thus, the evidence of P.W.10-Srinivasan is only
\nlimited to the extent of the entry in the Register – Ex.P.8.  The employees in
\ncharge  of  the  cycle shop on 13.05 .1994 were not examined to establish that
\nonly the deceased Kulandaivelu had hired the cycle on 13.05.1994.  That apart,
\nwe may also point out that the statement of P.W.10-Srinivasan though  said  to
\nhave been recorded on 23.05.1994, the same was received by the Court only on 1
\n7.05.1995 when  the charge sheet was filed.  In our view, no implicit reliance
\ncould be placed upon the evidence of P.W.10-Srinivasan to connect  M.O.1-cycle
\nwith the deceased Kulandaivelu.\n<\/p>\n
        35.   In  case  of  circumstantial  evidence,  the  prosecution has to
\nestablish :\n<\/p>\n
        (i) Circumstances from which the conclusion of guilt is drawn;\n<\/p>\n
        (ii) The facts so established  should  be  consistent  only  with  the
\nhypothesis  of  the guilt of the accused that is to say that the circumstances
\nshould be of conclusive nature and tendency pointing out to the guilt  of  the
\naccused ;\n<\/p>\n
        (iii)  The circumstances taken jointly should form a chain so complete
\nthat there is no escape from the conclusion that the crime  was  committed  by
\nthe accused and none else ;\n<\/p>\n
        36.   On  a  careful  consideration  of  the  evidence  adduced by the
\nprosecution, we find that the circumstances are neither firmly established nor
\ndo they conclusively point to the guilt of the  accused.    On  the  basis  of
\nevidence  and  materials  made available on record, in our considered view, it
\nwould be unsafe to convict the appellants.  Hence, we  are  of  the  view  the
\nconviction of the appellants \/ accused 1 and 2 cannot be sustained.\n<\/p>\n
        37.   For the reasons stated above, the judgment of Principal Sessions
\nJudge, Thanjavur  in  S.C.No.73  of  1996  dated  07.11.1996,  convicting  the
\nappellants \/  accused  1  and  2 under Sec.302 read with Sec.  34 of I.P.C and
\nSec.201 of I.P.C is set aside and the appeal is allowed.    The  appellants  \/
\naccused  1  and 2 are acquitted of all the charges and they are set at liberty
\nforthwith.\n<\/p>\n
Index:  Yes
\nInternet:  Yes<\/p>\n
Dpn\/-\n<\/p>\n
Copy to:\n<\/p>\n
1.  The Principal Sessions Judge,
\nThanjavur.\n<\/p>\n
2.  The Superintendent,
\nCentral Prison,
\nTrichy.\n<\/p>\n
3.  The Inspector of Police,
\nAdirampattinam Police Station,
\nThanjavur District.\n<\/p>\n
4.  The Public Prosecutor,
\nHigh Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Chinna Thambi vs State By Inspector Of Police on 6 April, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06\/04\/2004 CORAM THE HONOURABLE MR. JUSTICE V. KANAGARAJ AND THE HONOURABLE MRS. JUSTICE R. BANUMATHI CRIMINAL APPEAL No.32 OF 1997 1. Chinna Thambi 2. Nadimuthu ……Appellants \/ Accused 1 and 2 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-232227","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nChinna Thambi vs State By Inspector Of Police on 6 April, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chinna-thambi-vs-state-by-inspector-of-police-on-6-april-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chinna Thambi vs State By Inspector Of Police on 6 April, 2004 - 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