In Re: Thangaswami

Anantanarayanan, J.—This is a reference by the learned Sessions Judge, Ramanathapuram, in S. No. 79 of 1959 upon his file. The accused,

Thangam alias Thangaswami Thevar, has been convicted of murder u/s 302, I. P. C. and robbery u/s 392, I. P. C. and sentenced to death upon

the first charge, and to rigorous imprisonment for ten years upon the second, the sentence of imprisonment to merge with the sentence of death.

Since the case rests entirely upon circumstantial evidence, and the facts involve the application of a legal principle, which is of some interest and

significance, we shall first set out the facts in detail.

Briefly, the offence relates to the murder of an old woman named Nacharammal, and there can be no doubt that this woman was murdered at a

lonely spot for the sake of her jewels, and that the jewels she habitually wore were missing from her person when the body was discovered.

Nacharammal (deceased) belonged to Keelaka- vanur village and was aged about 60 at the time of (sic) she met with her death. It appears that

the accused was acquainted with her. Raman Chetti, P. W. 6, is a man of this village who used to send bags of paddy to one Ponnuswami Chettiar

P. W. 7, a merchant of Paramakudi and a commission agent for paddy and other grains. Three months before this murder, P. W. 6 sent six bags of

paddy through the accused, who carted the bags for the witness, to P. W. 7. But the accused delivered only three bags and apparently

misappropriated the rest. There was a panchayat on this matter, and the accused was compelled to give P. W. 6 Rs. 30 for the paddy taken away.

P. W. 6, P. W. 7 and the village munsif, P. W. 8 all speak to these facts. It appears that Nacharam-mal, decesed, used to taunt the accused often

with the misappropriation. But this is really of no significance in the case, except as showing that the accused was acquainted with the old woman,

and presumably aware of the jewels that she ordinarily wore. There can be no doubt at all that the victim was murdered for the sake of gain and

the evidence relating to the misappropriation of the bags by the accused merely amounts to proof of knowledge of the old woman as the wearer of

certain jewels, and not any proof of an adequate motive.

It may be further stated here itself that the accused belongs to a different village (Radha-puli) and not to the village of Keelakavanur, where

Nacharammal was living. This is also made dear by the evidence of P. W. 6 and the village Munsif, P. W. 8, that P. W. 6 had to proceed to

Radharapuli for the panchayat at which he was given redress.

We now come to the actual facts of the murder. Poochendu Ammal, P. W. 3 is the daughter-in-law of the deceased. She states that early that

morning, 15th April 1959, the old woman left the house to get grass for her kid that she was rearing. She took with her, her basket and weed-

cutting spade, M. Os. 4 and 5. She was then wearing four ear-rings and a gold chain with a particular kind of link, M. Os. 1 to 3 series. She was

not seen alive after this.

Shammugham, P. W. 2, is a boy aged about ten, belonging to this village. Sometime about 7 a.m. he saw Nacharammal lying in Koothappa

Udayar''s punja. Her ears had been cut, and her neck wounded, and she was dead. The basket and spade, M. Os. 4 and 5, lay near the body. P.

W. 2 went and informed Raman Chetti, P. W. 1, a nephew of the victim. P. W. 1 came and saw the body, and found that jewels of the old

woman, namely, the ear-rings and neck chain missing from the body. He went and made a report to the village munsif, P. W. 14, within whose

jurisdiction the locality of offence lay, at about 10 a.m., Ex. P.1. It is hereby sufficient to observe that in Ex. P.1 itself the definite allegation is that

Nacharammal was apparently murdered for the sake of robbery of the jewels, and no suspects are mentioned in this report. The village munsif

thereupon sent his yadasts Ex. P.10 to 13,. The station writer P. W. 15 came to the scene at about 3 p.m. and blood-stained earth was recovered

from the spot of offence, and inquest was held.

The manner in which the accused came into the picture of the crime was this. Laksh-manan, P. W. 12, is a resident of Paramakudi, who is

previously acquainted with the accused. At about 3-30 p.m., that day, i.e., about nine or ten hours after the crime, the accused called upon the

witness, and took him to a park. The accused then produced an ear-ring for sale, M. O. 1, because he (accused) had to go to Tanjore. As the

manner of the accused was somehow nervous and hesitant, and the accused could not properly explain the occasion for sale of this jewel, P. W.

12 handed over the accused to the Head Constable, P. W. 16, whom he met near the bridge. The Head constable arrested the accused on

suspicion, and recovered from the accused three other ear-rings, M O. 2 series, in addition to the earring, M. O. 1, which the accused had

attempted to sell to Lakshmanan, P. W. 12, and which P. W. 12 had produced. In pursuance of a statement made by him, the accused and the

police party proceeded by jeep to a spot about 4 1/2 miles away, and from here the accused produced a gold chain, M. O. 3, as well as an

umbrella, M. O. 6. We might here immediately state that the earring, M. Os. 1 and 2 series, and the gold chain M. O. 3 have been identified as the

jewels of the deceased, by her immediate relatives like her nephew, P. W. 1, and her daughter-in-law, P. W. 3.

The autopsy was held in this case (report P. 2) by Dr. Rangarajan, P. W. 9, the medical officer attached to the Government Dispensary,

Paramakudi. He noticed the following injuries on the body. Firstly the lower pendulous portion of both thr ears were found irregularly cut.

Secondly, there was a circular punctured wound 1/5th inch in diameter, on the centre of the front of the neck, 1 1/2 inches above the jugular notch

of the sternum. The cut section showed congestion of the underlying tissues, with a big clot of blood. Thirdly, there was an horizontal incised injury

3 inches in length 1/4 inch in breadth and bone deep over the left shoulder joint. Injury No. 2 was the cause of death, according to the doctor. But

it is highly regrettable that the medical witness P. W. 9 was not asked anything about the character of the injury, and whether it was an injury

merely likely to cause death, or sufficient in the ordinary course of nature to cause death. We need not emphasise that it is of the greatest

importance that, in murder cases, such facts should be carefully elicited by the prosecution from the medical officer who has held the autopsy. But,

considering the nature and location of the injury, we are assuming that it was ordinarily sufficient to cause death. Injury No. 3 was perhaps caused

by contact with a sharp surface, or due to sharp-edged instrument. We whall later discuss the relation, if any, between the Medical evidence and

the umbrella, M. O. 6, produced by the appellant.

At this stage itself, we may state that, both in the committal Court and at the trial, the accused contented himself with a denial of knowledge of all

the relevant pieces of testimony. Throughout he has affirmed that he did not attempt to sell M. O. 1 to Lakshmanan, P. W. 12, and that M. O. 2

series were not recovered from him. He did not produce the gold chain M. Section 3 or the umbrella M. O. 6, and the police tortured him and got

some statement out of him. It may be also convenient here to notice that some blood-stains were found upon the ear-rings, but the chemical

analysis showed that they were too disintegrated for their origin to be determined. We cannot hence say whether they were human blood-stains, or

not. No blood Whatever was detected upon the umbrella, M. O. 6; we shall comment later upon the significance of this fact.

There is the evidence of a woman selling sweet toddy, Arulayee, P. W. 4, that she sold sweet toddy at Gopalapatnam that morning to the

accused and Subbiah and Thangavelu P. W, 5, The record is not precise as to the exact occasion, but if it Was upon the date of offence all that it

proves is that the accused had at least two companions with him that morning.

We accept the evidence for prosecution that the accused was attempting the sale of one of the jewels of the murdered woman, about ten hours

after the crime. We also accept the evidence that he produced the other jewels, M. O. 2 series, and the chain M. O. 3 to the police. We are at

pains to emphasise here that, this is all the evidence which does connect the accused with the crime of murder. For the evidence makes it

abundantly clear that the production of the umbrella M. O. 6 by the accused is of no significance. Indeed, upon a careful assessment of the facts

and probabilities here, we are definitely inclined to the view that this umbrella M. O. 6 was probably not the weapon of offence at all. The doctor

P. W. 9 no doubt states that the iron end or ferrule of the umbrella could have caused the fatal injury. He even thinks that the incised wound injury

No. 3 could have been caused by the umbrella, or equally by contact with a sharp surface, or by some sharp-edged instrument. It appears to us,

judged from the description, that injury No. 3 is far more likely to have been caused by sharp instrument like an aruval. There is no evidence that

the woman struck any sharp surface in falling at the spot of offence. Injury No. 3 is an incisea and not a punctured wound, and is far more

suggestive of a blade. As regards the umbrella M. O. 6 it is indisputable that this is a common household object, which anyone might possess. The

accused is supposed to have dug it out from a spot of concealment, but, while we are clear that the accused certainly produced this object, we are

very doubtful about the truth of this allegation. For, it is very clear that the object contained no trace of any blood-stains, anywhere upon it. Since

the accused was not even aware that there were some blood-stains upon the ear-rings, M. Os. 1 and 2 series, for, in that case, he would certainly

have removed them, whether he was the murderer, or a person who had been commissioned by the murderer to dispose of the jewels, it is difficult

to believe that the accused used the umbrella as the weapon of offence, and then cleaned it in such a thorough manner as to leave no room for the

detection of even minute specks of hlood. It may be a different question with regard to the cleaning of the blood on a weapon like aruval, where

mere washing will remove the blood-stains. In this connection we extract the following observations by the Chemical Examiner of Madras on the

interpretation of reports of blood-stains (App VII the Criminal Rules of Practice and Circular Orders, 1958 paragraph 6):

Blood or the red colouring matter of it, can obviously be removed by scraping or rubbing, or washing etc., and may even if on a very shining or

greasy object fall off in handling. To most surfaces, however, blood sticks very tightly, and it is exceedingly improbable that even the roughest

handling would entirely remove a stain from any object, so that not even a small speck sufficient to give the tests remains. Sufficient of the red

colouring matter to give the tests sometimes remains on a cloth, even after it has been washed.

We are therefore of the opinion that the analysis of the evidence in this case amounts to this. As a person who was acquainted with the

deceased, and who had knowledge that she habitually wore certain jewels, the accused had a possible opportunity and motive to commit the

crimes of robbery and murder. But there is absolutely nothing to connect the movements of the accused with those of the victim, either that morning

or after the crime. On the contrary, the only evidence is that the accused was in the company of two other persons at Gopalapatnam, namely one

Subbiah Udavar and Thangavelu P. W. 5. The accused definitely attempted the sale of one of the jewels of the victim at Paramakudi that ening to

Lakshmanan P. W. 12. He produced the other jewels also to the police. There is nohing to indicate that the umbrella produced by the accused M.

O. 6 was the weapon o� offence, and the probabilities are against it. Considering the character of this object blood-stains would have been

detected upon it, had it been used as the weapon of offence, since the removal of even minute blood-stains from such an object would have been

difficult. The accused has not given any explanation for the possession of the jewels. The question is whether upon these bare facts, and these

alone, the accused can be convicted upon the main charge of murder.

With regard to an inference of this kind, which has to be established upon the circumstan-trial evidence our attention has been drawn to several

cases of this court and of the Supreme Court, which contain an exposition of the law. We might conveniently commence with Singaram v. State,

1953 Mad W. N. 572 : AIR 1954 Mad 152, for that is a land mark in the case law and it discusses the earlier case such as Narayana v. Emperor,

ILR 56 Mad 231 : AIR 1933 Mad 233. After a discussion of the cases, Govinda Menon ana Basheer Ahmed Sayeed JJ. observed :

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 presumptions mentioned

in the illustration to Section 114 of the Evidence Act, cannot be stretched to that extent. One can verw 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.

With respect, we would associate ourselves with this exposition of the law, as fully approving it It may be stated, in this context itself, that the

decision has been followed and approved by the Andhra High Court in Jani Shah Vs. State, by Chandra Reddi J.

Of the decisions of the Supreme Court, we particularly desire to make reference to Wasim Khan Vs. The State of Uttar Pradesh, , and

Sanwat Khan and Another Vs. State of Rajasthan, . In Wasim Khan Vs. The State of Uttar Pradesh, , the facts were that the deceased travelled

with his goods, with the accused, in the bullock cart of the accused at night, and should have reached a particular destination (Jarwal), which he

never reached. He was not seen alive later, but was found murdered. The appellant ia the case was found in possession of the articles of the victim

three days later. The appellant made no effort to trace the whereabouts of the deceased, or to lodge information of his disappearance. Under those

circumstances their .Lordships held that the appellant was rightly convicted of the offences of both murder and robbery. In Sanwat Khan and

Another Vs. State of Rajasthan, , the murders were of two individuals living in a temple, and several days later jewels were recovered from the

two appellants who had buried them. The following exposition of the few by their Lordships is of great significance in our view :

In our judgment, Beaumont C. J. and Sen J. in Bhikha Goper v. Emperor, AIR 1943 Bom 458 rightly held that the mere fact that an accused

produced shortly after the murder ornaments which were on the murdered person, is not enough to justify the inference that the accused must have

committed murder. There must be some further material to connect the accused with me murder in order to hold him ""guilty of that offence.....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.

In the Bench decision of this Court in Chinnappa Udayar v. State, 1956 Mad W. N. 805, the facts were that the accused was found in possession

of the jewels of the victim, soon after the murder. Next, the accused had attempted to create evidence of alibi at about the time of occurrence. Not

merely this, the accused was seen going towards the scene of occurrence, at about the time of murder. On those facts the offence of murder was

held established, as well as an offence u/s 404 I. P. C. This case reviews the prior case law, and refers to the Supreme Court decision in Tulsiram

Kanu Vs. The State, and Sunderlal Vs. The State of Madhya Pradesh, . In the first case, no presumption of guilt upon a charge of murder was

drawn, when the ornaments of the victim were found with the accused a considerable time later, In the second case, Sunderlal Vs. The State of

Madhya Pradesh, the circumstantial evidence was held sufficient, when the accused was found to be in possession of the ornaments of the victim

very soon after the murdsr. But we take it that no hard and fast rule can be laid down, upon the circumstances which would justify the inference or

presumption u/s 114(a) of the Evidence Act that the accused was guilty of murder. We take it that the exposition, of the law by the Supreme Court

in Sanwat Khan and Another Vs. State of Rajasthan, , already extracted by us, is authoritative and binding upon us, and not in conflict with the

exposition of the law in any other case including Sunderlal Vs. The State of Madhya Pradesh, . where the inference of guilt was drawn upon the

particular facts of that case. This exposition is also confirmatory of the exposition of the law in 1953 Mad WN 572 : AIR 1954 Mad 152 and the

other decisions of this court including (with reference especially to its facts) the Bench decision in 1956 M.W. N. 805. Our attention has also been

drawn to the un-reported judgment in Kumaraswami v. State, R. T. No. 26 of 1957 (Mad) and Velu v. State, R, T. No. 143 of 1956 (Mad) in

which statements of the same principle j will be found. In brief, the inference or presumption of guilt, upon the main charge of murder can be safely

drawn, where the accused is in unexplained possession of jewels or articles of the victim after the crime, and where in addition, there is some

evidence at least connecting the movements of the accused with those of the victim, either before or after the crime, and in some manner or

another, establishing a nexus between the accused and the offence. The mere unexplained possession or production of the jewels of the victim by

the accused may not constitute a safe basis for a conviction upon a charge of murder, when that is the only bare circumstance proved in evidence.

The reason for that is fairly obvious. The test of circumstantial evidence must be satisfied; the chain of links in that evidence must lead to only one

reasonable inference, namely, that the accused was the murderer, and all other probable hypothesis must be excluded. But how can that be done

where the sole evidence is that the accused was in unexplained possession of the jewels of the murdered woman? Since the murder was for the

sake ot robbery of the jewels, that motive would apply to every person, known or unknown, who could have come across the woman at that

particular spot. As we have already stated the murderer might have delivered the jewels to the appellant for dis-posal, shortly after the crime.

Again, it is even conceivable that the murderer might have fled when someone approached, and that the jewels might later have been taken away

by the accused from the body, or from the spot of crime. The Bench decision in 1956 M. W. N. 805 contains a hint or suggestion, in its discussion

of the case law, that something might depend upon the time interval between the crime, and the recovery of the jewels from the accused. But it is

quite probable that, even during the lapse of a few hours, the jewels might have changed hands. The facts that the accused was in the company of

the others that morning and that the umbrella M. O. 6 was probably not the weapon of offence, only strengthen the argument that it would be

unsafe to draw the inference of murder, upon these probabilities alone.

The learned Public Prosecutor has addressed an argument with reference to the fact that some minute blood-stains were found upon the ear-

rings. But, first of all, their origin is indeterminate. We cannot assume that they are human blood-stains. Next, even assuming that they are human

blood-stains we are unable to see how this takes the case further. This is only another circumstance to prove that the jewels must have been

removed from the body of the woman at or about the time of murder, and not earlier. Obviously, the murder and robbery were parts of the same

transaction. The facts that the accused was ID possession of the jewels, a possession which he has not explained, some hours later, and that he

was apparently unaware of the blood-stains on the jewels, would either support the inference that he must have been the muderer, or must have

participated in the murder, or that he must have stolen the jewels from the spot of occurrence or must have been commisioned to dispose of them.

Before it could be held by us that the circumstantial evidence establishes the guilt of the accused upon the charge of murder, some further evidence

is necessary, establishing some connection between the accused and the victim, in relation to the time and locality of offence, or to the crime itself.

That is not forthcoming in the present case. The learned Public Prosecutor also refers to Section 166. Indian Evidence Act but we think it is clear

that, that section has no application to the present case at all. We have recently discussed the true scope and incidence of that provision of law in

C. A. No. 367 of 1959 (Mad) where the case law is also examined. That section cannot apply to shift the onus of proof in a criminal prosecution,

at any stage of the prosecution. It is only where the circumstantial evidence fully establishes the guilt of the accused, and where, nevertheless some

explanation by the accused compatible with his innocence could possibly be put forward by him, relating to facts within his exclusive knowledge,

that his failure to put forward any such explanation could be considered by the court as an additional circumstance against him. Clearly, an accused

might fail to put forward a particular explanation such as theft or dishonest retention of the jewels of the victim, which may be true, owing to fear or

ignorance. Where such a probability exists the mere fact that he does not put forward the explanation, cannot justify the inference of guilt, when the

chain of circumstantial evidence is other-wise incomplete.

We are therefore constrained to acquit the accused upon the charge of murder, and to convict him instead upon the charge of theft Section

379 I. P. C. alone. In view of the Relatively short interval between the murder and the production of jewels by the accused, we convict him only

for this offence and not alternatively u/s 379 I. P. C. or Section 411 I. P. C. which would be the proper conviction if the interval were to be longer.

We sentence the accused to undergo rigorous imprisonment for three years.

Before taking leave of the case, we are constrained to observe that we do feel the moral conviction that the accused was probably guilty of

participating in the murder itself. We are most reluctant that an offender in such a grave crime should escape retributive justice, and we have to

observe that this is directly due to the very defec tive investigation of this case. Investigation in this case was neither alert nor industrious. Consider

ing that the accused lived in a neighbouring village, and that many villagers would have been astir at dawn when the old woman went out, surely

indus trious investigation could have unearthed pieces of evidence relating to the movements both of the victim and the accused. If only such

evidence had been forthcoming, to show that the accused was seen in that locality at about that time, or even pro ceeding towards it, the situation

would have been far different If, as we suspect, the umbrella M. O. 6 was not the weapon of offence at all, it is clear that the investigation has been

imper fect upon this vital aspect also. We desire that our views to this effect should be forwarded to the proper authorities, so that hereafter at least

an alert and thorough investigation might procure all relevant pieces of evidence, where proof of such a grave crime depends upon circumstantial

evi dence alone, in order to enable the courts to mete out full justice.