{"id":89232,"date":"2003-12-11T00:00:00","date_gmt":"2003-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-tamil-nadu-vs-sundar-on-11-december-2003"},"modified":"2017-11-08T01:56:58","modified_gmt":"2017-11-07T20:26:58","slug":"state-of-tamil-nadu-vs-sundar-on-11-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-tamil-nadu-vs-sundar-on-11-december-2003","title":{"rendered":"State Of Tamil Nadu vs Sundar on 11 December, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">State Of Tamil Nadu vs Sundar on 11 December, 2003<\/div>\n<div class=\"doc_author\">Author: S Hegde<\/div>\n<div class=\"doc_bench\">Bench: N.Santosh Hegde, B.P.Singh.<\/div>\n<pre>           CASE NO.:\nAppeal (crl.)  406 of 1997\n\nPETITIONER:\nState of Tamil Nadu\t\t\t\t\t\n\nRESPONDENT:\nSundar\t\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 11\/12\/2003\n\nBENCH:\nN.Santosh Hegde &amp; B.P.Singh.\n\nJUDGMENT:\n<\/pre>\n<p>J U D G M E N T<\/p>\n<p>SANTOSH HEGDE,J.\n<\/p>\n<p>\tRespondent herein was convicted by the Sessions Judge,<br \/>\nDharmapuri Division at Krishnagiri for an offence punishable<br \/>\nunder section 302 IPC and was awarded the extreme penalty of<br \/>\ndeath. In a reference made by the learned Sessions Judge for<br \/>\nconfirmation of the said sentence and also in an appeal filed by<br \/>\nthe respondent against the said conviction and sentence, the<br \/>\nHigh Court of Judicature at Madras by the impugned judgment<br \/>\nwhile dismissing the reference for confirmation of the sentence,<br \/>\nallowed the appeal, setting aside the judgment of the learned<br \/>\nSessions Judge. The State of Tamil Nadu is in appeal against<br \/>\nthe said common judgment of the High Court.\n<\/p>\n<p>The allegation against the respondent in this case is that<br \/>\nhe committed the murder of one D. Rathinam who was the<br \/>\nIncharge Sub-Post Master of K.R.P. Dam Post Office on<br \/>\n16.3.1984 with a view to wreak vengeance against him for<br \/>\nhaving accused him of stealing Rs.10 and also with a view to<br \/>\nrob the Post Office. It is the case of the prosecution that at the<br \/>\nrelevant time the respondent was working temporarily as an<br \/>\nextra departmental mail carrier in place of his father who was<br \/>\non leave. The prosecution alleged that since the Post Office was<br \/>\nfound locked on a working day namely on 16.3.1984, PW-4<br \/>\nwho was also working in the said Post Office, informed PW-1<br \/>\nwho was then the Sub-Divisional Post Inspector about this<br \/>\nlocking of the Post Office who, in turn, informed PW-6, the<br \/>\nDeputy Superintendent of Post Office over the phone as to this<br \/>\nunusual incident of finding the Post Office locked on a working<br \/>\nday. On instructions from PW-6, PW-1 made necessary<br \/>\narrangements to safeguard and protect the properties of the said<br \/>\nPost Office and on the morning of 17.3.1984 said PW-1 went to<br \/>\nthe Post Office and broke open the lock in the presence of the<br \/>\nVillage Administrative Officer and other office personnel and<br \/>\non taking an inventory of the said office, they found certain<br \/>\ncash, postal stamps, postal orders and cash certificates etc.<br \/>\nvalued at Rs.850.55 missing. They also found Rathinam  who<br \/>\nwas the Incharge of the office on 16.3.1984 missing but found<br \/>\nhis shoes in the Post Office, hence on a suspicion they searched<br \/>\nfor him during which process they found the body of said<br \/>\nRathinam inside the septic tank situated in the backyard of the<br \/>\nsaid Post Office. On lodging a complaint in this regard, a case<br \/>\nwas registered in Taluk Police Station, Krishnagiri being Crime<br \/>\nNo.142 of 1984 under sections 302 and 380 IPC. PW-12 who<br \/>\ntook up the investigation, came to the spot on 17.3.1984 and<br \/>\ninspected the scene of occurrence and drew up the inquest<br \/>\nPanchnama Ex. P-19. He made inquiries during the said inquest<br \/>\nproceedings and recorded the statements of PWs.1, 3, 6 and one<br \/>\nRajan. He made arrangement to send the dead body for autopsy.<br \/>\nAs per the medical report it was found that the deceased died<br \/>\ndue to injuries suffered by him on his head also due to<br \/>\nasphyxia. It is the further case of the prosecution that on<br \/>\n18.3.1984 at about 5 a.m. PW-2 arrested the respondent near<br \/>\nthe river-bed adjacent to Kaveripattinam Travellers&#8217; bungalow<br \/>\nand on a disclosure statement made by the accused in the<br \/>\npresence of PW-8, he recovered MO-28, a blood stained shirt<br \/>\nbelonging to respondent kept concealed in the river-bed. He<br \/>\nalso recovered a bunch of keys belonging to the Post Office at<br \/>\nthe instance of the respondent, kept in a post-box kept in front<br \/>\nof a textile shop. On a further statement made by the respondent<br \/>\nthe I.O. recovered MO-13 a yellow bag from a cycle shop of<br \/>\none Pattu (not examined) in which he found various properties<br \/>\nlike the inland letters, postcards, postal stamps, revenue stamps<br \/>\netc. allegedly stolen by the respondent. On a further statement<br \/>\nmade by the respondent he also recovered certain sums of<br \/>\nmoney kept concealed under a hill as also a blood stained towel<br \/>\nkept concealed under a tree in the backyard of the Post Office.<br \/>\nFrom the statement of PW-3, the I.O. found out that on<br \/>\n16.3.1984 in the afternoon the respondent was seen coming out<br \/>\nof the Post Office locking the same, carrying a yellow bag like<br \/>\nMO-13 and on an inquiry by PW-3 she was told by respondent<br \/>\nthat he was locking the office since it was a holiday for the Post<br \/>\nOffice. From the evidence of PW-11 he came to know that the<br \/>\nrespondent had kept the yellow bag MO-13 in the shop of Pattu<br \/>\nof which PW-11 was the owner of the building. Based on this a<br \/>\nchargesheet was filed before the Judicial Second Class<br \/>\nMagistrate, Krishnagiri against the respondent for offences<br \/>\nunder Sections 302, 201 and 381 IPC and on committal and<br \/>\nafter trial the learned Sessions Judge found the respondent<br \/>\nguilty of all the 3 offences but punished him only for the<br \/>\noffence under Section 302 and imposed the sentence of extreme<br \/>\npenalty of death which as stated above was not confirmed by<br \/>\nthe High Court and the appellant&#8217;s appeal against his conviction<br \/>\nwas also allowed.\n<\/p>\n<p>\tIn the absence of any direct evidence the prosecution<br \/>\ncase depended on various circumstances which were accepted<br \/>\nby the trial court but were held not proved by the High Court.<br \/>\nThe High Court after noticing the law in regard to basing a<br \/>\nconviction on circumstantial evidence enumerated the various<br \/>\ncircumstances placed by the prosecution in this case. They are :<br \/>\n&#8221;\n<\/p>\n<p>1.\tThe accused being found in the company of the deceased at<br \/>\n12 noon on 16.3.84 within the office premises;\n<\/p>\n<p>2.\tThe accused emerging out of the said Post Office where he<br \/>\nwas working, carrying in his hand M.O.13 yellow bag;\n<\/p>\n<p>3.\tThe so called explanation given by the accused to P.W.3<br \/>\nthat holiday had been declared to the Post Office after lunch<br \/>\nrecess, when P.W.3 questioned him as to when the Post<br \/>\nOffice was to commence business after lunch recess;\n<\/p>\n<p>4.\tHis absconding from the Office on and from 16.3.1984;\n<\/p>\n<p>5.\tHis arrest on 18.3.1984. Consequent confession he was<br \/>\nstated to have made and recovery of certain material objects<br \/>\npursuant to such confession, viz., M.O.12 series, M.O.13<br \/>\nbag containing M.Os.14 to 25, M.O.26 series, M.Os.27 and<br \/>\n28;\n<\/p>\n<p>6.\tM.O.27 towel recovery at the instance of the accused<br \/>\npursuant to Sec.27 of the Evidence Act confession-<br \/>\nstatement, containing human blood as disclosed by<br \/>\nSerologist report, Exhibit P.25.\n<\/p>\n<p>7.\tThe motive aspect of the case of the prosection getting<br \/>\nreflected by the testimony of P.W.4 to whom the deceased<br \/>\nappeared to have told either on 14th or 15th March 1984<br \/>\nabout the commission theft of Rs.10\/- by the accused from<br \/>\nthe shirt pocket and on hearing the same, P.W.4<br \/>\nreprimanded him for his abominable conduct and requested<br \/>\nthe deceased to pardon the accused for such an act of his and<br \/>\nthe deceased also complied with such a request.&#8221;\n<\/p>\n<p>          The very same circumstances were considered by the trial<br \/>\ncourt also, which held that these circumstances were proved and<br \/>\nwere sufficient to bring home the guilt of the accused. While<br \/>\nthe High Court on a re-appreciation of the evidence led by the<br \/>\nprosecution to prove the abovesaid circumstances, came to the<br \/>\nconclusion that the prosecution evidence led in support of these<br \/>\ncircumstances cannot be said to have been proved beyond all<br \/>\nreasonable doubt. It also came to the conclusion that some of<br \/>\nthe circumstances cannot be treated as circumstances indicating<br \/>\nthe guilt of the accused. They are the circumstances like the<br \/>\npresence of the accused in the Post Office and he being found in<br \/>\nthe company of the deceased on 16.3.1984. According to the<br \/>\nHigh Court, it is the prosecution&#8217;s own case that the respondent<br \/>\naccused was an employee of the said post office, though a<br \/>\ntemporary one, at the relevant time, therefore, these<br \/>\ncircumstances do not implicate the respondent. In regard to the<br \/>\nother circumstances, the High Court came to the conclusion that<br \/>\nthe witnesses who have spoken about the same, are either<br \/>\nchance witnesses and there being contradictions in their<br \/>\nevidence, it is not safe to place reliance on the same.\n<\/p>\n<p>\tWe have heard learned counsel for the parties and<br \/>\nperused the records. The appeal before us arises out of a<br \/>\nreversing judgment of the High Court which having considered<br \/>\nthe material adduced by the prosecution, took a view contrary<br \/>\nto the one taken by the trial court, therefore, in the normal<br \/>\ncourse unless we are satisfied that the said finding of the High<br \/>\nCourt is either arbitrary or perverse, this Court would not<br \/>\ninterfere with the said finding. In this process, we find most of<br \/>\nthe reasoning of the High Court while rejecting the evidence of<br \/>\nthe prosecution witnesses cannot be said to be either perverse or<br \/>\nthe one that cannot be arrived at by any prudent person.<br \/>\nHowever, we must notice that so far as the rejection of the<br \/>\nevidence of PW-3 by the High Court is concerned, we do not<br \/>\nthink the reason given by the High Court is proper. The High<br \/>\nCourt came to the conclusion that since PW-3 did not complain<br \/>\nto anybody else about the fishy conduct of the accused<br \/>\nimmediately after he was seen coming out of the Post Office<br \/>\nand locking the same, in our opinion, cannot be the sole reason<br \/>\nto reject her evidence on the facts of this case. Be that as it may,<br \/>\nthere is yet another very good reason to discard the evidence of<br \/>\nPW-3. PW-12, the I.O., in his evidence has stated that he<br \/>\nrecorded the statement of this witness on 17.3.1984 during the<br \/>\ninquest proceedings but this witness in her evidence before the<br \/>\ncourt has stated that her evidence was recorded a day after the<br \/>\ninquest proceedings were conducted. This is a material<br \/>\ncontradiction in regard to which the prosecution has not taken<br \/>\nany step to clarify this part of her evidence when PW-3 was in<br \/>\nthe witness box by way of re-examination, therefore, if PW-3&#8217;s<br \/>\nevidence is to be accepted then the inquest proceedings must<br \/>\nhave taken place on 16.3.1984 itself but that is not the case of<br \/>\nthe prosecution. Since the time and date of the incident are very<br \/>\nmaterial facts in this case, the contradiction in the evidence of<br \/>\nPW-3 in this regard cannot be brushed aside. That apart, it has<br \/>\ncome in evidence that the job of the accused was to carry the<br \/>\nmail bag daily from the K.R.P. Dam Post Office to<br \/>\nSundekuppam Post Office and it is not the case of the<br \/>\nprosecution that this job was entrusted to anybody else on<br \/>\n17.3.1984. In this context, if we examine the evidence of PW-8,<br \/>\nthe Post Master of Sundekuppam, he states in his evidence that<br \/>\neven on 17.3.1984 the post bag was taken from K.R.P. Dam<br \/>\nPost Office to Sundekuppam. No explanation whatsoever is<br \/>\nrendered by the prosecution as to how this was possible if the<br \/>\nrespondent-accused was absconding on that day, and when the<br \/>\nmurder was detected on that day. These suspicions surrounding<br \/>\ncircumstances pleaded by the prosecution remain unexplained.<br \/>\nThat apart, we also notice some other materials from the<br \/>\nprosecution case which compounds our suspicion in regard to<br \/>\nthe prosecution case. It is the case of the prosecution that on<br \/>\n18.3.1984 after the arrest of the accused, he led them to a tree<br \/>\njust behind the Post Office building whereunder a blood-stained<br \/>\ntowel was recovered. The prosecution had earlier alleged that<br \/>\nthe body of the deceased was found in a septic tank behind the<br \/>\nPost Office on 17.3.1984. The tree under which blood stained<br \/>\ntowel was recovered is also behind the Post Office, therefore,<br \/>\nthe septic tank and the tree must be close to each other. If that<br \/>\nbe so, how the investigating agency missed noticing the blood-<br \/>\nstained towel under the tree on the day of inquest is not<br \/>\nexplained by the prosecution. From the evidence in this regard<br \/>\nled by the prosecution, there is nothing to show that this blood-<br \/>\nstained towel was concealed in such a manner that the I.O.<br \/>\ncould not have noticed it on 17.3.1984 itself. There is also one<br \/>\nother circumstance to be taken note of. It is the case of the<br \/>\nprosecution that the respondent-accused made a disclosure<br \/>\nstatement at the time when he was arrested at Kaveripattinam,<br \/>\nand as per the statement, a blood-stained shirt was recovered.<br \/>\nAccording to the prosecution, this is the same shirt which was<br \/>\nworn by the accused when he committed the murder but there is<br \/>\nno material to show that he had changed this shirt when he<br \/>\ncame out of the Post Office. Therefore, if really this blood-<br \/>\nstained shirt is the one that was worn by the accused at the time<br \/>\nof the murder then PW-3 would not have failed to notice the<br \/>\nblood-stains on his shirt when she saw him and also spoke to<br \/>\nhim on 16.3.1984. This circumstance also, in our opinion, goes<br \/>\nagainst the prosecution. As observed by the High Court, non-<br \/>\nexamination of Pattu who was the owner of the cycle-shop from<br \/>\nwhere most important of the recoveries i.e. MO-13 containing<br \/>\nstamps etc. were made, also goes against the prosecution. All<br \/>\nthe above lacunae in the prosecution case, in our opinion, make<br \/>\nthe prosecution case doubtful, i.e. in addition to the reasons<br \/>\ncited by the High Court.\n<\/p>\n<p>\tFor the reasons stated above, we find no merit in this<br \/>\nappeal and the same is hereby dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India State Of Tamil Nadu vs Sundar on 11 December, 2003 Author: S Hegde Bench: N.Santosh Hegde, B.P.Singh. CASE NO.: Appeal (crl.) 406 of 1997 PETITIONER: State of Tamil Nadu RESPONDENT: Sundar DATE OF JUDGMENT: 11\/12\/2003 BENCH: N.Santosh Hegde &amp; B.P.Singh. JUDGMENT: J U D G M E N T SANTOSH HEGDE,J. [&hellip;]<\/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":[30],"tags":[],"class_list":["post-89232","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>State Of Tamil Nadu vs Sundar on 11 December, 2003 - Free Judgements of Supreme Court &amp; 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\/state-of-tamil-nadu-vs-sundar-on-11-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Tamil Nadu vs Sundar on 11 December, 2003 - Free Judgements of Supreme Court &amp; 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