In Re : Kolaudaivelu

Venkataraman, J.—These persons were tried by the learned Sessions Judge of East Thanjavur for the murder of one Sivagurunatha Thevar.

The first accused Kulandaivelu has been convicted of the murder u/s 302 of the I.P.C. and sentenced to the extreme penalty of the law, subject to

confirmation by this Court. The second accused (Balu alias Balasubramanian) has been convicted of abetment u/s 302 read with Section 109 of

the I.P.C. and sentenced to imprisonment for life. The third accused (Arumugam) who was also tried for abetment has been acquitted. The

convicted accused nave preferred this appeal. The State has not preferred any appeal against the acquittal of the third accused.

The prosecution case is that the first accused inflicted numerous injuries on Sivagurunatha Thevar with an aruval about 7-30 a.m. on 16th

November 1972 at a place just (sic) of Manankondan river and south of the main road between Tiruthuraipundi on the west and Vedaranyam on

the east The victim died within a few seconds.

The motive for the murder is stated to be two-fold: firstly about three months prior to the occurrence the first accused, who is a Thevar, is

alleged to have raped Parvathi (P.W.7.), a Harijan woman, in her house about 10 p.m. when her husband was away. A panchayat was held in

which Sivagurunatha Thevar was the head and the Panchayat fined the first accused Hundred rupees. The first accused paid it, and on account of

this he had rancor against Sivagurunatha Thevar.

Secondly, a culvert was built across the P.W.D channel just north of the field of the third accused. It may be mentioned here that accused 1 and

3 are brothers: they are living together, and Mr. V.T. Rangaswami Iyengar, counsel for the first accused, stated before us that they were undivided.

A sketch (Ex. P. 14 has been drawn by the Inspector (P.W. 17) but it is not quite useful: It however shows the position of the channel and the

culvert. P.W. 10 the Vice President of the Panchayat of Panchanathikulam Melasethi, the village in question, says that the culvert was built on 1st

August 1972 at a cost of Rs. 3,000. But two or three months later, the first accused, the second accused (who is a farm servant of the third

accused) and one Ganesan cut open the bund of the field of the third accused near the culvert and caused some damage to the culvert.

[The discussion of facts is omitted Ed.]

x x x

...Jagannathan (P.W. 3) is also residing in that village between the culvert and the house of the deceased. He says that about 5 a m. on 16th

November 1972 he went to the house of Sivagurunathan to find work for the day. Sivagurunathan told him that there was no work immediately

and that he was going to some outside village and asked P.W. 3 to come and inform him if they (accused) put up the bund in the field of the third

accused, near the culvert The evidence shows that putting up the bund would not by itself cause any damage. We may perhaps assume that

Sivagurunathan meant that P.W. 3 should come and inform him if the accused tried to let the water from the field of the third accused into the

channel and thereafter closed up the bund.

P.W. 3 then proceeds to say that, in-obedience to the directions of Sivagurunathan, he went to see whether any bund was being put up in the

field of the third accused, near the culvert.

x x x

P.W.3 says that, when he was thus standing at the northern end of the foot-bridge, B, accused 1 and 2 and Ganesan were bonding up the

opening in the field of the third accused near the culvert on the south and that they were abusing Sivagurunathan in wild terms At that time witness

Ramiah Thevar (P.W.1), who lived one furlong to the west of the field of the third accused, came to the culvert. His evidence is that, while cleaning

his teeth, he was going to have a bath in the river in the north. He had to pass along the culvert. He too says that he saw accused 1 and 2 and

Ganesan bonding up the opening in the field and abusing Sivagurunathan. He says that he went some distance northwards on the mud road and met

P.W. 3 who was standing there. P.W.3 told him that Sivagurunathan had instructed him to come and inform him if the accused bonded up the

opening.

x x x

The evidence of P.W. 1 is that, when Sivagurunathan left them to go to the police station, he saw accused 1 and 2 going eastward on the main

road on a cycle. That was at a spot east of the wooden foot-bridge. P.W.1 proceeds to say that, when Sivagurunathan was approaching the

wooden footbridge, the second accused came pedalling the cycle from the east of the wooden bridge on the main road. The first accused was

seated on the carrier of the cycle with an umbrella in his hand. Just when Sivagurunathan crossed the wooden bridge and was getting up on the

main road, the first accused got down from the cycle at a distance of four feet (east of Sivagurunathan), took out an aruval, one and a half feet

long, from inside the umbrella, and delivered a cut on the left shoulder of Sivagurunathan. On seeing that P.W.1, along with P.Ws. 2 and 3 ran to

the scene, crying, ""Alas, don''t cut"". But, the first accused inflicted another cut on the right shoulder. Sivagurunathan tried to ward off the cuts with,

his two hands, but the first accused delivered a cut on the left side of his head. Sivagurunathan fell down. The first accused delivered four or five

more cuts. He then ran case with the aruval. The second accused was ready with the cycle about ten feel away. As soon as the first accused got

upon the cycle, the second accused pedalled it and they went eastward. The third accused who was standing with one Ponnudorai at a distance of

fifty yards to the east, also ran with accused 1 and 2. Ponnudorai was examined in the Committal Court on the side of the prosecution, but he

turned hostile and he was not examined in the Court of Session.

P.Ws. 1, 2 and 3 went near Sivagurunathan and found him dead. For the present it may be taken that the evidence of P.Ws. 2 and 3 is similar.

There are variations which I shall refer to in due Course.

[The discussion of facts is omitted.--Ed.]

x x x

P.W. 4 proceeds to say that at that time the second accused (seems to be a mistake for the first accused) told the third accused that P.Ws. 1

and 2 and their associates were coming behind and that. Sivagurunathan was going in front and asked the third accused for advice whether be

could go. Thereupon the third accused enquired of the first accused whether he had got all the ""articles"" ready. The first accused, pointing to his

umbrella, replied, ""I have got them in this umbrella"". That umbrella is M.O.4.

[Discussion of facts omitted--Ed.]

x x x

The first accused had, in his hand, knife one and a half feel long. Blood was dripping from the knife. P.W.4 turned back and in the east found

the third accused and Ponnudorai coming west. They joined accused 1 and 2 and the four of them (accused 1, 2 and 3 and Ponnudorai) went east

hurriedly. P.W. 4 went west and heard a loud disturbance westwards. He went to the Alamarathadi thurai ghat of the banian tree and found

Sivagurunathan lying dead with cut injuries. P.Ws. 1, 2 and 3, Santhanam, Singaru (P.W.5) Arumugam and others were there. Such is the

evidence of P.W.4.

Ramiah Thevar (P.W.1) states that asking the witnesses to stay behind, he went, by himself to report the murder to the Village Headman of

Panchanathikulam Melasethi, about 1 3/4 miles to the east of the scene of occurrence (see page 7 of the typed set for the distance). He made a

report which that functionary wrote down. That is Ex.P-1 and is said to have been recorded at 8 a.m. He signed it. That village Headman

(Kandaswami) however died on 21st February 1973, as seen from the evidence of the Sub Inspector (P.W.16) and so he could not be examined

even in the Committal Court. After giving the report, P.W.1 returned to the scene of occurrence.

x x x

The first accused denies that be had anything to do with the murder of Sivagurunathan: in fact, there was no enmity at all between them, and the

witnesses are giving false evidence, because they belong to the Right Communist Party of which Sivagurunathan was the leader. In cross-

examination it has been suggested that accused 1 and 3 own lands, that the Communist party was demanding more wages, that there used to be

some disputes and that the witnesses were ill-disposed towards these land-owners. The first accused denies the rape of P.W.7. He adds that

Sivagurunathar had a number of enemies and has filed some records to show that.

The second accused also denies the evidence and says that because he worked under the third accused occasionally contrary to the injunction

of the Right Communist party, he has been implicated falsely.

The third accused, besides denying the evidence, says that at the time of the occurrence he had gone away to Ammachatram near

Kumbakonam.

The accused did not examine any defence witness.

The learned Sessions Judge accepted the evidence of P.W.1, 2, 3 and 5, convicted the first accused of the murder and the second accused of

abetment. He thought that it would not be safe to act on the solitary evidence of P.W.4 and acquitted the third accused.

I have given my anxious consideration to this case bearing in mind the effects of an unjustified acquittal, but I find it not possible to accept the

prosecution evidence with safety. Indeed, I feel that the Witnesses P.Ws. 1, 2, 3 and 5 did not witness the occurrence at all, as they claim, and that

the evidence of P.W.4 is also false. The most important reason for my conclusion is that, though the evidence as put forth purports to be cast-iron,

Ex D-42, which is a copy of the village Headman''s cooking report of the occurrence, reached the Sub Magistrate at Tiruthuraipundi only at 2-15

p.m. on 16th November 1972, and Ex.D.43 which is a copy of the first information report which the Sub Inspector sent to the Sub Magistrate,

reached the Sub Magistrate only at 4-10 p.m. The delay has not been explained which suggests that Ex. P-1 did not come into existence at 8 a.m.

as it purports, but only later, that it was not registered at the police station at 9-01 a.m. as alleged and that the first information report (Ex.P-1)

came into existence only much later.

x x x

If so much is clear, it should obviously put us on our guard against accepting the evidence of the eye-witnesses and, when we come to examine

the direct evidence in this background, the numerous features which are themselves suspicious will acquire added significance and, in fact, the

impression left in my mind is that the evidence is false and (sic). But before referring to those circumstances, I think it would not be inappropriate to

extract what I, sitting with Ganesan, J., observed in our judgment d. 9th May 1972 in In re Perumal Naicker R.T. No. 18/72, Appellant (accused)

about the duty of the prosecution to adduce evidence themselves to explain the delay in the first information report reaching the Magistrate. In that

case, the First Information report was alleged to have been recorded at 5 a.m. at Ettayapuram Police Station, but it reached the Sub Magistrate,

Kovilpatti (ten miles away), only at midnight. Actually we probed into the matter, and we recorded further evidence in this Court, but the evidence

showed that the first information report could not have been recorded at 5 a.m., but should have been recorded only shortly before it reached the

Sub Magistrate. I further observed that, that in turn vitiated the direct evidence also. In that connection, I made the following observations:

This case obliges me to make the following remarks. Repeatedly we have pointed out the importance of the first information report reaching the

concerned Sub Magistrate expeditiously, and several cases had to be thrown out because of the delay in the first information report reaching the

Sub Magistrate It may be that in several of those cases the delay was due to lima being taken for concocting the first information report. But it is

possible that in other cases the delay had no sinister significance. It is therefore obvious that the first information report should be delivered to the

concerned Sub Magistrate with the utmost expedition. Where there is delay, it is for the prosecution to lead evidence in explanation of the delay.

Almost invariably the prosecution neglects its duty in this regard and leaves it to the court to come to its rescue by saying that the delay admits of

some reasonable explanation. It is high time that such a practice stopped. Thirdly, where some doubt is raised, the prosecution should, of their own

accord, place all the records in their possession before the Courts....

Wherever it is possible, independent proof in support of the explanation for the delay in the first information report reaching the Sub Magistrate

should be obtained. It is possible that the police officials, high and low, conform to the documentary evidence to avoid adverse comments.

Though the above remarks were nothing new, the learned Public Prosecutor told us that the above remarks had been duly communicated to all

the police stations. That apart, we find in this case that the attention of the Public Prosecutor was specifically drawn, starting from the cross

examination of P.W. 1 himself, to the defence theory that Ex. P-1 did not come into existence at 8 a.m., and that it was prepared only after the

arrival of the police, and it was elicited from P.W.15 that Ex.D-42 reached the Sub Magistrate only at 2-15 p.m., and that Ex.D-45 reached him

only at 4-10 p.m. Under these circumstances the learned Public Prosecutor, who conducted the prosecution in the lower court, should have

realised the need for explaining the delay in Exs.D-42 and D-43 reaching the Sub Magistrate, and the need for explaining who carried Ex.D-42 to

the Sub Magistrate.

x x x

There are, indeed some admissions in the evidence of some of the witnesses supporting the defence suggestion that the murder had taken place

even earlier than 7-30 a.m., probably, even earlier than 6-30 am., and if that be so, the evidence of P.Ws. 1, 2, 3, 4 and 5 fixing the time of the

occurrence as 7-30 a.m. cannot be true.

xxx

It will thus be seen that the witnesses to the occurrence live far away from the scene of occurrence, that their explanations for their presence at

the scene are not acceptable and that they cannot be said to be independent or disinterested witnesses or truthful witnesses. Their evidence is

wholly discrepant. Witnesses who live near, like Ramaswaml Thevar or Rangaswami Thevar, or the members of their family, have not been

examined.

What I have stated so far would show that no reliance can be placed on the evidence actually adduced. I shall now consider some arguments

in respect of the prosecution. In the first place, it is asked why the witnesses should give false evidence implicating the first accused, and it is

suggested that there was no deep-seated enmity towards him so as to implicate him falsely. Now, everyday courts all over the country are

throwing out several cases, in spite of witnesses coming forward as eye-witnesses and that is because, on analysis, the evidence cannot be

accepted. In other words, it is a matter of everyday occurrence that witnesses come forward to depose falsely even though they have not seen the

occurrence. it is not always possible for the accused or the Court to give an answer as to why they do so. Suffice it to say that it is for the

prosecution to prove their case by reliable evidence, and judged by the usual standards, the evidence cannot at all be accepted. If, however, the

Court, should give an answer, it may be suggested in this case, that the witnesses have implicated the first accused as the assassin on suspicion,

because he had ill feeling towards the deceased who headed the Panchayat which fined him hundred rupees for ravishing P.W. 2....

x x x

Secondly, it will be seen that it is not as if Ex.P.1 implicated the first accused alone; it implicated the second accused and even the third

accused.

x x x

Thirdly, from the medical evidence one cannot be certain that all the injuries were inflicted with a single weapon so that we cannot be sure there

was only one assailant. Fourthly if really the case is true, why should there have been much delay in the copy of Ex. P. 1 and Ex. D. 42 reaching

the Sub Magistrate only at 2-15 p.m. and in Ex. D. 43 reaching him only at 4-10 p.m.? It is not necessary to repeat all the numerous features

which I have listed out as showing that the evidence is unacceptable and indeed, false.

In this state of evidence--and, after all, the court can only act on the evidence--it is impossible to accept the prosecution case. I would therefore

set aside the convictions of accused 1 and 2 and the sentences imposed on them, acquit them and set them at liberty .

The two Appellants (A. 1 and A. 2) appeal against their convictions for offences under Sections 302, I.P.C. (A.1 only) and 302 read with 109

I.P.C. (A.2 only). (The third accused Arumugam was given the benefit of doubt and acquitted of an offence u/s 302 read with Section 109, I.P.C).

x x x

[After discussing the facts and recording the findings of the trial judge, it was observed--Ed.]

The learned trial Judge further found that A. 2 bad actively abetted the murder of Sivagurunathan by A. 1. Finding a visal discrepancy in the

actual words said to have been used by A. 3 in regard to the offence of the abetment of the crime, the learned trial Judge gave the benefit of doubt

to A. 3. and acquitted him of the offence u/s 302 read with Section 109 , I.P.C. The learned trial Judge characterised the offence as ""a case of

cold blooded and deliberate minder in broad day light"" and awarded the sentence of death against A.1, and the lesser penalty against A.2.

Inasmuch as my learned brother K.S. Venkataraman, J. is unable to agree with my conclusion, I would like to set down the test of ""reasonable

doubt"" for my own guidance Lord Goddard, C.J. (Lord Goddard, C.J. Ormerod and Parket, JJ.) in R.V. Summers (1952 All ELR 1. 1059)

observes as follows.

I have not yet heard any court give a real definition of what is ""reasonable doubt"" and it would be very much better if that expression was not used

Whenever a court attempts to explain what is meant by it, the explanation tends to result in confusion rather than clarity .It is far better, instead of

using the words ""reasonable doubt"" and then trying to say what is a reasonable doubt, to say to a jury: ''''You must not convict unless you are

satisfied by the evidence given by the prosecution that the offence has been committed; ""The jury should be told that it is not for the prisoner to

prove his innocence but for the prosecution to prove his guilt and that it is their duty to regard the evidence and see if it satisfies them so that they

can feel sure, when they give their verdict, that it is a right one.

Ramaswami, J. is Public Prosecutor v. Thangasami Thevar 1960 M.W.N. Cri. 25 after drawing the guiding criteria from the English Cases says:

It has been laid down that it is the condition of the mind which exists when the Judges cannot say that they feel an abiding conviction; a moral

certainty of the truth of the charge. For it is not sufficient for the prosecutor to establish a probability even though a strong one according to the

doctrine of chances, he must establish the fact to a moral certainty--a certainty which convinces the judgment. But, were the law to go further than

this and require absolute certainty it would exclude circumstantial evidence altogether Section 3 of the Indian Evidence Act defines when a fact is

said to be proved and when a fact is said to be not proved. As has been said by Cockburn, C.J. in the Tichborne case ''It must not be a mere

doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore takes shelter in an idle

scepticism'', or, as the same truth was expressed by the great Irish Judge, Kendal Bushe, C.J., ''To warrant an acquittal the doubt must not be light

or capricious such as timidity or passion prompts and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of the

whole evidence, a rational understanding will suggest to an honest heart; the conscientious hesitation of minds that are not influenced by party

preoccupied by prejudice or subdued by fear.

V.R. Krishna Iyer, J. (P. Jaganmohan Reddy. H.R. Khanna and V.R. Krishna Iyer, JJ.) speaking on behalf of the Supreme Court after adverting

to the rule of benefit of doubt has made some salutary observation in Shivaji Sahabrao Bodade v. State of Maharashtra 1973 (2) S.C.W.R. 426,

as follows:

Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation.

The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals

are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime

and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which

runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitance and degree of doubt. The excessive

solicitude reflected in the attitude that a thousand guilty men may go but one innocent (sic) shall not suffer is a false dilemma. Only reasonable

doubts belong to the accused. Otherwise, any practical system will then break down and lose credibility with the community. The evil of acquitting

a guilty person light heartedly as a learned author has saliently observed goes much beyond the simple fact that just one guilty person has gone

unpunished If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for

harsher legal presumptions against indicated ''persons'' and more severe punishment of those who are found guilty Thus, too frequent acquittals of

the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say with

Viscount Simon, that ''a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....'' In short,

our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A

balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of Respondent

probability to punish marginal innocence We have adopted these cautious in analysing the evidence and appraising the soundness of the contrary

conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the Appellant. In India

the law had laid down on these lines long ago.

Khanna, J. speaking on behalf of the Supreme Court (H.R. Khanna. A. Alagiriswami and R.S. Sarkaria, JJ.) in Kali Ram v.

In the result, the convictions and sentences imposed on both the accused are set aside. They are acquitted and they are set at liberty.

The appeals are allowed.

These cases coming on for final bearing this day, Thursday the 14th day of March 1974. The Court (Venkataraman and K.N. Mudaliar, JJ.)

delivered the following judgment:

The order of the Court was Pronouncement by Venkataraman, J.:

Under Section 378 Code of Criminal Procedure, following the opinion of the third Judge, the convictions and sentences imposed on the Appellants

(accused 1 and 2) are set aside and they are acquitted and set at liberty.