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Ponnuswami Alias Kandasami Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1975CriLJ509
AppellantPonnuswami Alias Kandasami
RespondentState
Cases Referred and Thangam v. State
Excerpt:
- - death was due to the head injuries and injuries 1 to 3 could have been caused by a crow-bar like m. 10. elayammal had also injuries on the head and they could have been caused by a crow-bar like m, o. the injury could have been caused with a crow-bar like m. he is clearly wrong. section 162 of the code of criminal procedure itself clearly says that the statement could be used only to contradict the evidence of the witness in court: but we are satisfied that on that account the statement of the accused in ex. he stated that he knew nothing about the murder, and we are satisfied that he knew nothing about the murder. in particular, we are satisfied that ohinnay-yan was in a deranged state of mind and was not the murderer. it is well to remember that in cases where the evidence is of.....venkataraman, j.1. the appellant ponnuswami alias kandasami has been convicted of murder of three persons (on three counts under section 302 of the indian penal code) and sentenced to the extreme penalty of the law, subject to confirmation by this court, he has also been convicted of an offence wider section 380 of the i p. c. (theft in a dwelling house) and sentenced to rigorous imprisonment for one year, this sentence to merge with the sentence of death.2. the occurrence took place on the night of friday, 15-9-1972. in the lonely hut of one ramasami goundar, an old man of seventy-six years. the other inmates of the house were his second wife, elayammal, his twelve-years old grandson rasan, through his first wife, and his younger brother, chinnayan, from the evidence it appears that.....
Judgment:

Venkataraman, J.

1. The appellant Ponnuswami alias Kandasami has been convicted of murder of three persons (on three counts under Section 302 of the Indian Penal Code) and sentenced to the extreme penalty of the law, subject to confirmation by this Court, He has also been convicted of an offence wider Section 380 of the I P. C. (theft in a dwelling house) and sentenced to rigorous imprisonment for one year, this sentence to merge with the sentence of death.

2. The occurrence took place on the night of Friday, 15-9-1972. in the lonely hut of one Ramasami Goundar, an old man of seventy-six years. The other inmates of the house were his second wife, Elayammal, his twelve-years old grandson Rasan, through his first wife, and his younger brother, Chinnayan, From the evidence it appears that Chin-nayyan was practically an idiot. They were living in a house in a field called Kiluvankadu in Odapalayam limits. There were only fields around and there was no human habitation within three furlongs. (See the sketch, Ex. P-27). The appellant is related to Ramswami Goundar. Though he is a native of Odapalayam and seems to have some lands there, they were not productive and he was wandering about. He used to stay with the deceased, Ramaswami, Goundar, whenever he came to Odapalayam. In fact, he was staying with the deceased for about four days till the night of the murder. P.W. 1 speaks to this. He is a resident of Odapalayam and he is a cousin of the deceased Ramaswami Goundar (their mothers being sisters). He would leave his sheep in the sheep pen of his cousin, Ramaswami Goundar, and, in that connection, he used to go there morning and evening. He went there on Friday, 15-9-1972, about 7.30. p.m. and saw the guest in the house and the other inmates.

3. The next morning (16-9-1972), about 5 a.m., according to the evidence of P.W. 2, who is the wife of P.W. 1, the accused came to their house and knocked at the door. P.W. 2 was in bed. She came out and questioned the accused. The accused replied that he was going to his village. (He must have meant Olaipalayam, where his brother-in-law was living). P.W. 2 says that the accused was in an agitated state then. The accused went away. P.W. 2 informed her husband of this when he got up, P.W. 1 says that his wife told him that the accused had come and asked her, 'Are you still sleeping?' and went away without answering further question. At 7 a.m. he went to Kiluvankadu. On his way he peeped in and found to his horror Ramaswami Goundar, his second wife Elayammal and his grandson Rasan lying dead murdered with injuries. The articles in the adjoining room were found scattered on the floor. The gold chain which Elayammal used to be wearing on her neck was missing. The appellant was not there. P.W. l's suspicion fell on the appellant. He went to P.W. 3, the owner of the next northern field and informed him and gave information of it in the village. He then went to report the matter to the village Headman (P. W. 8) living about four miles away. He made a report (Ex. P-l) at 10.30 a.m., expressing his suspicion against the accused. P.W. 3 corroborates P.W. 1.

4. P.W. 4 is the twenty-year old son of the deceased Ramaswami Goundar by his second wife. P.W. 5 is the twenty-seven year old daughter of the deceased Ramaswami Goundar by his second wife. P.W. 5 had been married about seven years before and was living with her husband in Kandapalayam, about fifty miles away from Odapalayam. Her younger brother, P.W. 4, was away from Odapalayam. Her younger brother, P.W. 4 was staying with her and was a B.Sc. student in the Government College in Coimbatore, about five miles away. One Palaniswami of Odapalayam came and informed P. Ws. 4and 5 of the murder about 10 a.m. on 16-9-1972. They went to Kiluvankadu and saw their father, mother and nephew lying dead, murdered. They have further stated that the gold chain which their mother Elayam-mal used to be constantly wearing was missing and that the following articles were also missing: a four legged bronze Chembu (M. O. 7) another lotta Chembu (M. O. 8) two brass tumblers (M. O. 9) series) and a crow-bar (M. O. 10.).

5. P.W. 6 is another resident of the village, who says that he saw the accused in the village for. four days prior to the murder.

6. P.W. 8 the Village Headman, on recording Ex. P-l, prepared copies and his covering reports, Exs. P-7 and P-8, and sent one set to the police station at Kangayam (about eight miles away) and another set to the Sub-Magistrate, Dharapuram.

7. P.W. 14 the Sub-Inspector of Police, Kangayam, says that on receipt of the reports, he registered a case of murder, sent express reports to the superiors and went to the scene of occurrence reaching there at 1.15 p.m. P.W. 15 the Inspector of Police, Perun-durai received the first information report at 2 P.M. and went to Kiluvankadu at 3.30 p.m. He took over further investigation from the Sub Inspector. He held the inquest from 3.30 p.m. to 9.30 p.m. He examined P. Ws. 1, 4 and 5, Rajappan and Chinnayya Goundar, brother of the deceased, at the inquest. He says that Chinnayyan was in a mentally deranged condition. Chinnayyan actually died a few months later.

8. The post-mortem examination was conducted by the doctor P.W. 7 on 17-9-1972. On the person of Ramaswami Goundar there were four injuries on the head with multiple fractures of the skull. Death was due to the head injuries and injuries 1 to 3 could have been caused by a crow-bar like M. O. 10. Elayammal had also injuries on the head and they could have been caused by a crow-bar like M, O. 10. The young boy had an injury on the head, with fracture of the skull. The injury could have been caused with a crow-bar like M. O. 10.

9. P.W. 15 searched for the accused, but he was absconding. The accused actually surrendered on 20-11-1972 before the SutnMagistrate, Erode. With permission P.W. 15 took the accused into police custody at 3.45 p.m. on 27-11-1972 from the Sub-Jail at Kangayam. At 4.30 p.m. the accused made a voluntary statement a portion of which has been marked as Ex, P. 11 under Section 27 of the Evidence Act, to the following effect:

[Original in Tamil omitted] Meaning-

If you take me now I shall show the place where I have hidden the crow-bar and I shall show and produce the two chembus and the two tumblers.

10. In pursuance of the statement the accused took them to the field of Kaliappa Goundar in Odapalayam and took out the crow-bar (M. O. 10) from the kambu stalks where it had been concealed. It was found to have bloodstains, and it was recovered under a mahazar, Ex. P. 12 attested by P.W. 8 and Kaliappan (not examined).

11. The accused then took the party to Pettalada in the Nilgiris and at 11.30 p.m. he produced the vessels, M. Os. 7, 8 and 9 series from a shed and they were recovered under a Mahazar, Ex. P. 13. The vessels bore the initials. [Original in Tamil omitted].

12. The accused was sent back to judicial custody on 28-11-1972.

13. M. O. 10 was sent to the Chemical Examiner, by the Sub-Magistrate, Dharapuram. (See the evidence of P.W. 13, the Head Clerk of the Sub-Magistrate's Court). He found blood on it (Ex. P. 20). The Imperial Serologist found it to be human blood (Ex, P. 21).

14. M. Os. 7, 8, 9 and 10 have been identified by P. Ws. 4 and 5 as belonging to their father, Ramasami Goundar. They say that the initials [Original in Tamil omitted] stand for Kiluvankadu Odapalayam Ramasawmi Goundar and that [Original in Tamil omitted] stand for Odapalayam Kiluvankadu Ramaswami Goundar.

15. P.W. 9 is a resident of Pettalada. He is alleged to be a witness to the recovery of M. Os. 7, 6 and 9 under the mahazar Ex. P. 13. He was examine ed in order to prove that two months prior to 2.8-11-1972 the accused had come to him with the vessels and made an extra-judicial confession that he had murdered Ramaswami Goundar, Elayammal and Rasan with a crow-bar and had brought the tumblers and cssh of Rs. 100/- and that he wanted some work. P.W. 9 found a job for him and about a week prior to 26-H-1972 the accused left for the plains. P.W. 9 however did not support the prosecution and his statement to the Inspector under Section 161 of the Code of Criminal Procedure has been marked as Ex. P. 23. The learned Sessions Judge has treated Ex, P. 28 as substantive evidence: he is clearly wrong. Section 162 of the Code of Criminal Procedure itself clearly says that the statement could be used only to contradict the evidence of the witness in Court: it has only negative value.

16. P.W. 10 is a cousin of the accused, their mothers being sisters. He is a lorry driver in Erode. The accused used to come to him once in about six months. Lastly he came on 18-9-1972, stayed with him and left the next morning. He says that there was nothing abnormal about the accused. He was contradicted by his statement to the Sub Inspector (P. W. 14) made during the investigation (Ex. P-23), briefly to the effect that, the accused came to him weeping on the evening of 18-9-1972, that pressed for the reason, the accused stated that he had been staying with Ramaswami Goundar. that on the night of 15-9-1972, at cock-crowing time, he entered the house with a crow-bar, that on hearing the noise Ramaswami Goundar woke up, that he murdered Ramaswami Goundar, Elayammal and the young boy by hitting them with the crow-bar and that he searched among the articles, took cash of Rs. 100/- and two chembus and two tumblers and had come away. P.W. 10 denied having made such a statement, but the statement has been proved by the Sub-Inspector, and has been marked as Ex. P. 23. Here again the learned Sessions Judge was wrong in using it as substantive evidence.

17. The accused has denied the material pieces of evidence against him, namely, that he stayed with the deceased Ramaswami Goundar or that he murdered him, his wife and grandson with a crow-bar or that he took cash of Rs. 100/- and M. Os. 7, 8 and 9. He denied the evidence of P.W. 2 or that he went to her house in the morning of 16-9-1972. He denied that he made any statement to the police or that he showed the crow-bar M. O. 10 or produced the vessels (M. Os. 7, 8 and 9). He, however, admitted that he was in Odapalayam on 15-9-1972 in connection with the cultivation of his lands, but stated that he left at 3 p.m. He surrendered because he learnt that the police were after him. He did not adduce any defence evidence.

18. The learned Sessions Judge accepted the prosecution evidence and convicted the accused of murder and theft. But, since his opinion must have been influenced to a large extent by his reliance on the statements of P. Ws. 9and 10 to the police as substantive evidence, we have examined the evidence ourselves leaving those statements out of account. We may say at once that, in our opinion, the remaining pieces of evidence are true and by themselves are sufficient to sustain the convictions. That Ramaswami Goundar, his second wife Elayammal and Rasan were murdered in their house on the night of 15-9-1972 admits of no doubt. There is no reason to reject the evidence of P. Ws. 1, 2 and 3 that the accused stayed in the house of Ramaswami Goundar as a guest for four or five days prior to 15-9-1972. In particular, P.W.I saw him after lamp lighting time on 15-9-1972. P.W. 1 went there asusual to see his sheep which fie had penned with His cousin ,Ramaswami Goundar. The facts that; the accused stayed with Ramaswami Goundar for four or five days and that P.W. 1 saw him on the night of 15-9-1972 in the house have been mentioned in Ex.. P:.l itself which was given to the Village Headman shortly after the discovery of the murders. It has been suggested in the cross-examination of P.W. 1 that he encroached on the adjacent land Of the accused and that there was 'dispute between them. He denies it: The suggestion is hollow and has hot been substantiated. It would be far-fetched to suggest that P.W. 1 is giving false evidence against the accused on any such account.

19. Again there is no reason to reject the evidence of P.W. 2 that at 5 a.m. on 16-&-72 the accused came to their house, knocked at the door and told her that he was oihg to his house. In cross-examination it has been elicited that the accused asked her, 'Why are you still sleeping?' 'Incidentally that would reconcile the evidence of P, W. 2 with that of P.W. 1 who says that his wife informed him that the accused asked her 'Are you still sleeping?. The fact that the accused came to the house of P. Ws. 1 and 2 and asked P.W. 2 whether they were still sleeping is mentioned in Ex. P. 1. It says that P.W. 2 informed P.W. 1 of that fact. Because the conversation between the accused and P.W. 2 is mentioned p Ex. P. 1 itself, we are inclined to take that tact also as true. P.W. 2 says that the accused was in an agitated state of mind: perhaps that was only an impression of hers, and we are prepared to leave that out of account. But it is undeniable that the accused knocked at the door of the house of P.W. 2 and left. It has been urged before us that that piece of evidence is artificial and that it is unlikely that, if the accused had murdered the three persons,' he would have created evidence against himself by staying in the village till 5 a.m. It is difficult to difine the psychology of the accused in waking up P.W. 2. It is possible that he wanted to create an appearance that he was innocent. He: wais too' near the event and might not have had the time and calmness to decide' that it would be wiser for him not to make his appearance at the house of P.W. 2 in the morning.

20. Because suspicion was expressed in Ex. P. 1: itself that the accused was the murderer, the police must have naturally been after him. Yet the accused surrendered only on; 20-11-1972.

21. Again, we see no reason to reject the evidence of P. Ws. 8 and 15 that the accused made a statement (a portion of which is Ex. P. 11) and that in pursuance of it he took the party to the field of Kaliappa Goundar and produced the blood-stained crow-bar (M. O. 10) from inside the Kambu stalks. There is no reason why they should give false evidence against the accused. Chemical examination showed that M. O. 10 contained human blood. It was a tell-tale fact. Again we see no reason to reject the evidence of P. Ws. 8 and 15 that the accused took them to Petta-lada in the Nilgiris and produced the vessels M. Os. 7, 8 and 9 series, which contained the inscriptions original in Tamil Omitted - Ed.) P. Ws. 4 and 5 have identified M. Os. 7, 8 and 9 as belonging to their father. We have no hesitation in accepting their evidence, The vessels bore the inscription, (Original in Tamil omitted-Ed.) which showed that they belonged to Rama-swami Goundar. P. Ws. 4 and 5 mentioned the disappearance of these specific vessels in their statements during investigation. They did not mention the inscription of the letters, but that is immaterial. They do not appear to have mentioned the disappearance of the crow-bar (M. O. 10) but that again, in our opinion, does not affect the truth of the recovery of the crow-bar {M. O. 10). At that stage their attention must have been focussed only on the loss of the gold chain of their mother and the vessels, and they might not have recollected the crow-bar (M. 0. 10). Even if we leave out of account their evidence that the crow-bar (M. O. 10) belonged to their father, the fact remains that a crow-bar stained with human blood was concealed by the accused in the Kambu stalks in the field of Kaliappa Goundar and he has not given explanation for that telling circumstance. Nor has he given any explanation for his showing the stolen vessels, M. Os. 7, 8 and 9. He has simply denied that piece of evidence.

22. It is true that the gold chain of Elayammal which was also stolen from the neck of Elayammal has not been recovered. But we are satisfied that on that account the statement of the accused in Ex. P. 11 to P.W. 15 actually leading to the recovery of M. Os. 7, 8 and 9 cannot be said to be untrue. On the other hand, it would only show that the accused was not prepared to say anything to P.W. 15 about the jewel or as to how he spent the cash of Rs. 100/- and would indicate that undue pressure was not exerted on the accused to extort the statement, Ex. P. 11.

23. Chinnayyan also might have been sleeping in some portion of the house, but the Inspector has stated that he was of deranged mind and he actually died two or three months later. We have looked into his statement during the inquest: he stated that he knew nothing about the murder, and we are satisfied that he knew nothing about the murder.

24. The question is what is the proper inference to be drawn from the above proved facts? Let us see how the question would be answered by a layman, who is unacquainted with the case law on the subject. (He would first of all consider whether the facts reasonably lead to the inference of any guilt at all on the part of the accused or whether they are capable of a reasonable explanation consistent with the innocence of the accused. Secondly he would consider what is the exact guilt which can be inferred from the facts proved. Taking up the first question, even a layman would have no hesitation in finding that the facts proved are not capable of any explanation consistent with the innocence of the accused and would indicate some guilt on his part. For instance, the fact that the accused produced the vessels, M. Os. 7, 8 and 9 from his custody, would point to some guilt arising from his possession of those articles and it cannot be contended that his possession thereof was honest and innocent. They are articles proved to have belonged to the deceased. How did he come by them? If he came by them honestly, it was for the accused to explain it which he has not done. The more important question, however, is, what is the exact offence which can be inferred from the proved circumstances; In particular, whether we can say that the accused himself committed the murder of the three persons and took possession of the vessels, or whether somebody else committed the murders and the accused merely committed theft of the vessels or received them knowing them to be stolen properties? Here again a reasonable man would have no hesitation in concluding, on the proved facts, that the accused must have been the murderer. He was found in the house in the company of the victims about 7.30 p.m. on 15-9-4972. It was only the next morning that he left the village. The murders were committed in the house in between. He then concealed the crow-bar which contained stains of human blood. He then produced the stolen vessels. It is a most reasonable inference from these facts that it was the accused who committed the murders with the crow-bar (M. 0.10) and took away the vessels. We have already pointed out that there is absolutely nothing on record to suggest anybody other than the accused had anything to do with the murders. In particular, we are satisfied that Ohinnay-yan was in a deranged state of mind and was not the murderer. When the facts establish the guilt of the accused as the murderer, prima facie, it is for the accused to give a proper explanation, if, in fact, he was not the murderer, but merely took the vessels after the murders had been committed by somebody else. If somebody else was the murderer, why should the accused himself hide the crowbar as is proved by his statement Ex, P. 11 In this connection, it is hardly necessary to recall that according to the criterion of Pulukuri Kotaya v. Emperor, ILR 1948 Mad 1 : (1947) Cri LJ 533, the statement in Ex. P. 11 that he hismelf had concealed the crowbar would itself be relevant and could therefore be taken as substantive evidence. What we mean is that if, for instance, the statement had merely read that somebody else had concealed the, crow-bar at that place and that he knew that fact because he had seen it, the position would have been different, though even there, the prosecution could have urged that on the evidence, taken as a whole, the Court must hold that it was the accused who had hidden the crow-bar. The point we are making is that, according to the criterion in the decision referred to above, what is admissible is not merely the discovery of the crow-bar from the Kambu stalks, but also the fact as to how the accused himself knew that the crow-bar was concealed there. Ex. P. 11 shows that he knew that it was concealed there, because it was he himself who had concealed it there.

25. We may say that the above inference which a layman would draw is also the inference which a Court would draw. In this view of the matter it is really unnecessary to discuss the case law at any great length. Suffice it to refer to some decisions of the Supreme Court and recent Bench decisions of this Court, chronologically, and it will be seen that our conclusions accord with the case law. In Hanumant v. State of Madh Pra : 1953CriLJ129 the principles governing the appreciation of circumstantial evidence are restated thus:

In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hedge (1838) 2 Lew 227 where he said:

The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

26. In Singaram in re : (1953)2MLJ526 Govinda (Menon and Basheer Ahmed Sayeed, JJ. analysed the case law till then and observed:

With due deference to the eminent Judges who took part in Kallam Nara-yana v. King Emperor. : (1933)64MLJ88 and Emperor v. Basagounda Yamanappa ILR 1941 Bom 315 : (1941) Cri LJ 697, it seems to us that mere possession by an accused person of articles which were on the person or custody of a murdered man without any explanation for such possession cannot lead to an inference that he took part in the murder or that he was privy to it. The presumption mentioned in the illustration to Section 114 of the Evidence Act cannot be stretched to that extent. One can very well imagine a case where a jewel on the person of a murdered individual came to be in the possession of another without any kind of reasonable explanation being offered by that individual. The fact that no rational explanation is possible or that the explanation offered is unacceptable should not militate against the innocence of the individual with regard to the offence of murder. Something more is necessary than mere possession of articles....Ordinarily the presumption from the possession of articles belonging to the deceased by accused persons immediately after the murder or robbery should be drawn only where some more evidence is present to show that the accused persons were seen with the deceased immediately before his death or that the deceased was last seen alive in the company of the accused persons.

Lower down they observe (p. 531):

We wish to point out that unless some kind of connecting link, however remote it may be, is made out between the movements of the deceased and the accused, at or about the time of murder, even if no reasonable explanation can be suggested or invented by the Court for the possession by the accused of the stolen articles, it would be unsafe to convict the accused person of the offence of murder. Usually some testimony would be forthcoming that the deceased was last seen alive in the company of the accused or that the accused were found somewhere in the vicinity of the scene of murder at a time which has sufficient proximity to the incident. Unless some connection can be made out, we feel that the inference of murder should not be drawn.

In that case there was other evidence, besides possession of the stolen articles and the accused was held guilty of murder.

27. At this stage we would refer to a decision of the same Bench, viz., Sainambu in re : AIR1953Mad564 though it was decided earlier, on 12th December, 1952. In that case it was held that the mere production of the jewel (ear-rings) worn by the deceased girl (Regina) when she left the house, by the accused, Sainambu, was not sufficient to convict him of murder and was held to be sufficient to convict him only under Hection 404 of the Indian Penal Code. It appeared that another person, Amina Bivi. was concerned in the murder. That case is therefore, distinguishable. There is not much of a discussion and hence it is that we have mentioned it at this stage after Singaram in re (1953) 2 MU 526 (1954) Cri LJ 115.

28. In Sunder lal v. state of Madhya Pradesh : AIR1954SC28 one Behra was murdered on 25-7-1951. The half gold mohur and the two silver churas habitually worn by him were missing. The evidence in the case has thus been summarised. iBoth the accused and the deceased were seen together at about 2 p.m. on 25-7-1951 by the prosecution witnesses. Immediately after the alleged murder the accused went to one Bishandas Tularam with the gold half mohur and the silver churas and offered to sell them to Bishandas Tularam, who did not purchase the half gold mohur, but accepted the pledge of the silver churas. The accused went the next morning to Bhagwandas, a Goldsmith and sold to him the half gold mohur which was melted by Bhagawandas into a gold bar. The accused was arrested on 27-7-1951 and he himself took the police to Bishandas Tularam and to Bhagwandas the goldsmith from whom the silver churas and the gold bar were recovered along with the relative documents showing the pledge and the sale by the accused to the respective parties. The silver churas were identified by the witnesses as those which were habitually worn by the deceased. The accused, no doubt, maintained that the half gold mohur and the silver churas belonged to him and that he had pledged the silver churas and sold the half gold mohur himself as his own and realised moneys out of the same. This allegation of his rested, however, on his mere ipso dixit. The conviction under Section 302 of the I.P.C. was upheld.

29. In Samwat Khan v State of Rajasthan : AIR1956SC54 (actually decided on December 9, 1952) two persons were murdered and the properties belonging to them were produced from the house of the accused about a fortnight after the murder and the theft. The prosecution let in evidence to prove that the father of the two accused had been planning to murder the Mahant and another witness (P. W. 7) deposed that he had also been approached to join in the conspiracy to murder the Mahant. Their Lordships observed:

It is not improbable that any of these two (father of the appellants or P.W. 7) or somebody else might have murdered the Mahant and Borne of the stolen property came into the possession of these two brothers.

Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to Section 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.

Lower down they observe:

In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen -property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.

30. In Washim Khan v. State of Uttar Pradesh : 1956CriLJ790 it was established that the deceased travelled in the cart of the accused, and the articles of the deceased came into the possession of the accused. It was held that an offence of murder had been made out.

31. In Chinnappan Udayar v. State 1956 MWN 805 : 1956 MWN 89, Somasundaram, J. sitting with Ramaswami Goundar, J., reviewed the case law up to that stage, and held that, on the facts of that case there was other evidence, besides possession of the stolen articles, and that the offence of murder was proved. In that case the accused attempted to create evidence of alibi and further he was seen going to the scene of occurrence about the time of murder.

32. In Govinda Reddy v. State of Mysore : AIR1960SC29 there was other evidence, besides the unexplained possession of the jewels and the articles of the deceased, and there was no difficulty in drawing the inference of murder. .However, one particular passage may be usefully, quoted.

The principle that the inculpatory fact must be inconsistent with, the innocence of the accused and incapable of explanation on any other hypothesis than that of guilt does not mean that an extravagant hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable.

33. In Thangam v. State 1962 MWN 1, Anantanarayanan, J. on behalf of Ramaswami, J. and1 himself, followed the principle laid down in 1963 2 MLJ 526 = 1953 MWN 572 = 1953 MWN 196 : 1954 Cri LJ 115 and reduced the conviction from murder to one under Section 379 of the Indian Penal Code, because there was no other evidence except the unexplained possession of the articles stolen from the deceased.

34. Applying the strict standards laid down in : (1953)2MLJ526 and Thangam v. State 1962 MWN 1 there is evidence in this case, besides possession of the stolen articles of the deceased (M. Os. 7, 8 and 9) namely (i) that the accused was in the house of the three murdered persons at 7.30 p.m. on the night of 15-9-1972 the night on which they were murdered, (2) that he called at the house of P. Ws. 1 and 2 in the morning of 16-9-72 stated that he was going away to his village and asked them if they were still sleeping; and (3) that he concealed the bloodstained crow-bar ,(M. O. 10) in the Kambu stalks of Kalia-appa Goundar. These facts, in our opinion, amply establish that it was the accused himself who was the murderer. We have therefore no hesitation in confirming the convictions under Section 302 (three counts) and under Section 380 of the I.P.C. The sentence of death is the only appropriate sentence in this case. Accordingly we have no hesitation in confirming the sentences also. The appeal is dismissed.


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