# BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS

- **Citation:** [2020] 3 S.C.R. 562
- **Court:** Supreme Court of India
- **Decided:** 2020-01-31
- **Case number:** Criminal Appeal No. 417 of 2010
- **Bench:** R. Banumathi, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/basheera-begam-v-mohammed-ibrahim-ors-34287
- **Pages:** 60

## Headnote

Penal Code, 1860 - s.120B & s.302 r/w s.34 - Case based
on circumstantial evidence - Case of prosecution that D2 (son of
A4) and D1 (nephew of A3) were friends - Brother of A3 & A4 and
uncle of D2, who lived in Malaysia, had properties in India, which
were managed by A3 - Enmity arose between A3 & D2 after the
aforesaid brother took back properties from A3 and entrusted D2
with their management- D2's demand for partition of family
properties held and/or controlled by A4 gave rise to property
disputes between D2, his brother (A1) and their father (A4) - As
per prosecution, the accused booked a room at a Hotel on 21.6.90,
where they hatched conspiracy to kill D2 - A1 purchased a lorry
on or about 20/21.12.90 - On 28.12.90, A1 hit the motor cycle on
which D2 & D1 were riding, with his lorry - A2 & A7 got off the
lorry and attacked D2 & D1, who had fallen from their motor cycle,
with iron rods and caused their death- All the accused (A1-A8)
were convicted u/s.120B- A1, A2 & A7 were also convicted u/s.302
r/w s.34 - High Court acquitted all the accused persons - Held:
Prosecution has only been able to conclusively establish that on
28.12.90 at around 8.30 p.m., D2 rode motorcycle owned by A4
with D1 on pillion - Two were seen lying dead on road, in a pool of
blood and their motorcycle lying close by - Prosecution miserably
failed to prove that D2 & D1 were beaten to death with rods by A2
& A7 - It was also not able to rule out the possibility of D1 & D2
being killed in a 'hit and run' accident involving some unknown
vehicle - There are inherent improbabilities and inconsistencies in
evidence - It is not the case of prosecution that the accused had
any motive to kill D1- There was no eyewitness to the incident - It
would be preposterous to attribute the purchase of the lorry to the
sinister motive of murdering D2 - To establish motive for murder,
the prosecution tried to build up a case of enmity between A3 & D2
and also of disputes between A1, A3 & D2 - Property disputes
[2020] 3 S.C.R. 562
562
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amongst family members is not uncommon - There may also be
quarrels between them however, to attribute motive to a father to
plot the murder of his own son, there have to be more compelling
reasons - Prosecution failed to prove that there was any conspiracy
to kill D2 at the hotel or anywhere else - When there is circumstantial
evidence pointing to the guilt of accused, it is necessary to prove a
motive for the crime - However, motive need not be proved where
there is direct evidence - In this case, there is no direct evidence -
Prosecution failed to establish the guilt of the accused persons
beyond reasonable doubt - High Court rightly acquitted the accused
- Code of Criminal Procedure - ss.161, 313 - Constitution of India
- Art.136.
Criminal Law - Circumstantial evidence - Proof beyond
reasonable doubt - Held: Suspicion however strong cannot
substitute proof beyond reasonable doubt - Burden of proving an
accused guilty beyond all reasonable doubt lies on the prosecution
- If upon analysis of evidence two views are possible, one which
points to the guilt of the accused and the other which is inconsistent
with the guilt of the accused, the latter must be preferred - When
there is circumstantial evidence pointing to the guilt of the accused,
it is necessary to prove a motive for the crime - However, motive
need not be proved where there is direct evidence.
Dismissing the appeals, the Court
HELD: 1.1 The Prosecution has only been able to
conclusively establish that, on 28.12.1990 at around 8.30 p.m.,
D2 rode out of Arsarkulam, towards Aranthangi on Motorcycle
No. TN 55/1406 owned by his father, A-4, with D1 on the pillion.
The two were seen lying dead on the road, in a pool of blood, a
few furlongs away from the level crossing at Sarayanenthal,
Pappakulam and their motorcycle was lying close by. On a careful
analysis of the post mortem reports and the oral evidence of the
post mortem doctors, it is found unlikely that the

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BASHEERA BEGAM
v.
MOHAMMED IBRAHIM & ORS.
(Criminal Appeal No. 417 of 2010)
JANUARY 31, 2020
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Penal Code, 1860 - s.120B & s.302 r/w s.34 - Case based
on circumstantial evidence - Case of prosecution that D2 (son of
A4) and D1 (nephew of A3) were friends - Brother of A3 & A4 and
uncle of D2, who lived in Malaysia, had properties in India, which
were managed by A3 - Enmity arose between A3 & D2 after the
aforesaid brother took back properties from A3 and entrusted D2
with their management- D2's demand for partition of family
properties held and/or controlled by A4 gave rise to property
disputes between D2, his brother (A1) and their father (A4) - As
per prosecution, the accused booked a room at a Hotel on 21.6.90,
where they hatched conspiracy to kill D2 - A1 purchased a lorry
on or about 20/21.12.90 - On 28.12.90, A1 hit the motor cycle on
which D2 & D1 were riding, with his lorry - A2 & A7 got off the
lorry and attacked D2 & D1, who had fallen from their motor cycle,
with iron rods and caused their death- All the accused (A1-A8)
were convicted u/s.120B- A1, A2 & A7 were also convicted u/s.302
r/w s.34 - High Court acquitted all the accused persons - Held:
Prosecution has only been able to conclusively establish that on
28.12.90 at around 8.30 p.m., D2 rode motorcycle owned by A4
with D1 on pillion - Two were seen lying dead on road, in a pool of
blood and their motorcycle lying close by - Prosecution miserably
failed to prove that D2 & D1 were beaten to death with rods by A2
& A7 - It was also not able to rule out the possibility of D1 & D2
being killed in a 'hit and run' accident involving some unknown
vehicle - There are inherent improbabilities and inconsistencies in
evidence - It is not the case of prosecution that the accused had
any motive to kill D1- There was no eyewitness to the incident - It
would be preposterous to attribute the purchase of the lorry to the
sinister motive of murdering D2 - To establish motive for murder,
the prosecution tried to build up a case of enmity between A3 & D2
and also of disputes between A1, A3 & D2 - Property disputes
[2020] 3 S.C.R. 562
562
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amongst family members is not uncommon - There may also be
quarrels between them however, to attribute motive to a father to
plot the murder of his own son, there have to be more compelling
reasons - Prosecution failed to prove that there was any conspiracy
to kill D2 at the hotel or anywhere else - When there is circumstantial
evidence pointing to the guilt of accused, it is necessary to prove a
motive for the crime - However, motive need not be proved where
there is direct evidence - In this case, there is no direct evidence -
Prosecution failed to establish the guilt of the accused persons
beyond reasonable doubt - High Court rightly acquitted the accused
- Code of Criminal Procedure - ss.161, 313 - Constitution of India
- Art.136.
Criminal Law - Circumstantial evidence - Proof beyond
reasonable doubt - Held: Suspicion however strong cannot
substitute proof beyond reasonable doubt - Burden of proving an
accused guilty beyond all reasonable doubt lies on the prosecution
- If upon analysis of evidence two views are possible, one which
points to the guilt of the accused and the other which is inconsistent
with the guilt of the accused, the latter must be preferred - When
there is circumstantial evidence pointing to the guilt of the accused,
it is necessary to prove a motive for the crime - However, motive
need not be proved where there is direct evidence.
Dismissing the appeals, the Court
HELD: 1.1 The Prosecution has only been able to
conclusively establish that, on 28.12.1990 at around 8.30 p.m.,
D2 rode out of Arsarkulam, towards Aranthangi on Motorcycle
No. TN 55/1406 owned by his father, A-4, with D1 on the pillion.
The two were seen lying dead on the road, in a pool of blood, a
few furlongs away from the level crossing at Sarayanenthal,
Pappakulam and their motorcycle was lying close by. On a careful
analysis of the post mortem reports and the oral evidence of the
post mortem doctors, it is found unlikely that the deceased were
beaten to death with an iron rod. PW-22 was of the opinion D2
fell off the motor cycle after a collision and got run over. The
Prosecution has miserably failed to prove that the deceased were
beaten to death with a rod. The Prosecution has also not been
able to rule out the possibility of D1 and D2 being killed in a 'hit
and run' accident involving some unknown vehicle. There are
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also inherent improbabilities and inconsistencies in the evidence
which demolishes the case of the Prosecution that the deceased
were beaten to death with iron rods by A2 and A7. It does not
stand to reason why A2 and A7 should have risked getting off the
lorry and beating D2 and D1 with iron rods, when A1 had dashed
his lorry against their motor cycle, fatally injured them and run at
least one(D2), if not both of them over. It is not the case of the
Prosecution that the accused had any motive to kill D1. Moreover,
while it is alleged that A2 and A7 had hit both the deceased with
iron rods, only one iron rod has allegedly been recovered from
an open, easily accessible pond, over a month after the incident
on the alleged confession of A7 made before the police after arrest.
There is no whisper in the evidence of any other iron rod. PW29, the sole witness who testified that A2 made a confession to
the police in his presence, took the police to Maangudi and
brought the iron rod out of a pond in his presence, could not
even remember if there was any water in the pond. Nor could he
identify A7. The rod was never sent for forensic examination. It
would be dangerous to convict A2 or A7 on the basis of the
testimony of PW-29 or for that matter, any other witness. There
can be no question of interference with the acquittal of A2 and A7
from the charges against them. There was no eyewitness to the
incident. The Prosecution has made an attempt to connect the
lorry No. TSL 6579 to the incident through circumstantial
evidence, by examining PW-6, PW-7, PW-8, PW-11, PW-12, PW14, PW-15, PW-16, PW-17, PW-19, PW-25, PW-27, PW-35, PW42, PW-43, PW-44 and PW-45 and also relying on material objects
such as broken glass pieces, broken plastic pieces, paint
scrapings seized from the place of occurrence as also the number
plate of a lorry with the number TSL 6579, an indicator with bulb
and a partly orange and partly transparent plastic cover, an
indicator without bulb and cover, a circular lamp 14.5 cm in
diameter with lamp and yellow glass cover and a circular lamp
holder 14.5 cm in diameter without lamp and cover. The number
plate, indicators and lamps were not seized from the place of
occurrence. The evidence of PW-6, PW-7 and PW-17 only
establishes that A1 purchased lorry No. TSL 6579 through brokers
PW-6 and PW-7 with the assistance of A5 and A6 about 7/8 days
before the incident. About four days before the incident, the lorry
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had been brought to Karaikuddi National Battery company for
getting its battery charged. Since the battery needed replacement,
but a new battery was not in stock, a serviced battery was fitted
in the lorry, which was never returned. Significantly, the evidence
of PW-6 reveals that A1 had earlier, long before the alleged
conspiracy at the Malar Lodge Hotel on 21.6.1990 purchased a
lorry with the Registration No TDB 9635 for which A5 had stood
guarantor. This lorry was sold some time in October, 1990, about
four months after the date of the alleged conspiracy, and in less
than two months, on or about 20/21 December, 1990 Lorry No.TSL
6579 was purchased. It is, therefore, evident that A1 used to
have a lorry, or at least had one since January 1990 with a short
break, possibly for the purpose of his business. It would be
preposterous to attribute the purchase of the lorry to the sinister
motive of murdering D2. The Prosecution has made no attempt
to explain why A1 should have sold the lorry he already had if
there were a conspiracy to kill D2 by hitting him or running him
over with a lorry. [Paras 142, 149-154][608-F-G; 609-H; 610-AH; 611-A-D]
1.2 From the evidence of aforesaid witnesses as also the
evidence of PW-8, PW-14, PW-15, PW-16 and PW-17 it transpires
that the lorry was brought to Arokyam's workshop at Mannaparai
on 29.12.1990 for minor repairs. After the repairs were done PW6 took delivery of the same and left it at a lorry shed near the
office of A7, who had sold the lorry to A1 through A6. PW-14, the
owner of the workshop deposed that PW-6 had instructed him to
repair a minor dent. There is nothing in the evidence of PW-6 or
PW-7 to link the lorry with the death of D2 and D1. Incidentally,
PW-6 said he had not seen A1 after 20.12.1991, whereupon he
was declared hostile and subjected to cross-examination. PW-6
said the lorry had been seized by the police. Even assuming for
the sake of argument that the lorry TSL 6579 had been brought
to the workshop for repair with minor dent and a broken sidelight
or lamp and the colour of some broken glass pieces at the scene
of occurrence matched the colour of the side light and or
indicators of the lorry, that does not prove involvement of the
lorry in the same incident. Many lorries have the same kind of
lamp/indicator covers. Moreover the lorry was purchased second
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hand and there is no evidence at all of the condition of the lorry
at the time of its delivery to A1. [Paras 155, 163][611-E-G;
614-B]
1.3. In any case, even assuming for the sake of argument
that lorry No. TSL 6579 was the lorry, which knocked down the
motorcycle which the deceased were riding, and ran over the
deceased, that in itself cannot lead to the conviction of any of the
accused under Section 302 of the Indian Penal Code. There is
not an iota of evidence to establish that A1, A2 or A7 were in the
lorry, except for the alleged extra judicial confession of A7 made
in the presence of the police, which cannot be accepted for the
reasons discussed. The mere fact that A1 might have been driving
the lorry also does not establish that he committed murder. To
establish motive for the murder the Prosecution has tried to build
up a case of enmity between A3 and D2 and also of disputes
between A1 and A3 and D2. A3 was named as a possible suspect
in the FIR. There may have been enmity between D2 and A-3,
but A-3 was not there at the scene of occurrence. It is not the
case of the Prosecution that A3 committed the murder. There is
no evidence of his involvement in the murder of D2 and D1. In
any case, he could not have had any motive to kill D1.
Furthermore, the evidence of PW-1 indicates that disputes with
A3 were compromised with the intervention of the District
Collector. The allegations of disputes between A1 and D2, his
own brother, are totally vague and devoid of any particulars. There
is no evidence at all, of any specific reason for discord between
A1 and D2, not to speak of evidence of dispute of a kind that
could lead to a murder. [Paras 165-167][614-E-H; 615-A]
1.4 A4 had also made a complaint to the police. The dispute
was apparently settled on 30.4.1990 on the advice of PW-29, and
D2 promised not to quarrel with his father over property matters.
There is no evidence that he breached such promise. Property
disputes amongst family members is not uncommon. There may
also be quarrels between members of a family. They may not be
on talking terms. However, to attribute motive to a father to plot
the murder of his own son, there would have to be more compelling
reasons. The case made out by the Prosecution is speculative
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and unsubstantiated. In any event, it is not the case of the
Prosecution that either A3 or A4 committed the murder, or was
even present at the place of occurrence. Furthermore, it is
nobody's case that A2, A5, A6, A7 and A8 or any of them had any
enmity with D2. [Paras 169-172][615-C-F]
1.5 The only evidence with regard to the alleged conspiracy
is the absolutely inadmissible hearsay evidence of PW-44, a police
officer who investigated the crime. PW-44 stated that he had
examined PW-39, who had in course of his examination stated
that A1 had asked PW-39 and PW-10 to accompany him to
Karaikudi for purchase of lorry spare parts. Apart from the fact
that PW-10 and PW-39 have categorically denied their presence
at Karaikudi on 21.6.90, there are patent inconsistencies in the
evidence of PW-44 in this regard. If A3 was present at the Malar
Lodge Hotel, Karaikudi at the time of the conspiracy on
21.6.1990, there could be no reason for PW-10 or PW-39 to go to
A3's house and tell him about the conspiracy. Nor would A3 advise
PW-10 and PW-39 not to divulge the conspiracy to others. Even
otherwise, it is inconceivable that the accused should hatch a
conspiracy to commit murder, in the presence of witnesses who
were not part of the conspiracy. It is also difficult to fathom why
PW-10 and PW-39 were never arrayed as co-accused, if they were
present at the time of the conspiracy and they chose to keep
quiet about the conspiracy. No credence can be given to the
evidence of PW-44. Statements made to the police under Section
161 of the of the Criminal Procedure Code in course of
investigation are inadmissible in evidence. The evidence of PW44 with regard to what two witnesses namely, PW-10 and PW-39
told him in course of investigation is inadmissible in evidence,
and of no value. Significantly, both PW-10 and PW-39 categorically
denied having made to the police, the statements attributed to
them. [Paras 175, 182-185][616-A-B; 617-C-F]
1.6 PW-40 who had worked as Manager, Malar Lodge Hotel,
Karaikudi from 1989 to 1991 denied knowing A8 or A2. He
denied having made the statements to the police, attributed to
him. The appellants have relied on the evidence of PW-34, a
handwriting expert, to prove that the accused had taken part in a
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conspiracy at the Malar Lodge Hotel on 21.6.1990. In any case,
the evidence of PW-34 establishes at the highest, that one of the
accused that is A-8, who had no enmity with the deceased, had
made entries in and signed the admission register of the Malar
Lodge Hotel. The evidence of PW-34, at best proves that A8
may have checked into Malar Lodge Hotel, Karaikudi on
21.6.1990, six months before the incident and nothing more.
There could be numerous reasons for A8 to go to Karaikudi.
The Prosecution has not been able to satisfactorily explain the
gap of over six months between the incident and the date on
which the alleged meeting took place at the Malar Lodge. An
accused is presumed innocent, unless proved guilty beyond all
reasonable doubt. For conviction on the basis of circumstantial
evidence, the circumstances from which the conclusion of guilt
is to be drawn should fully be established. The circumstances
should be conclusive. The circumstances established should
definitely point to the guilt of the accused, and not be explainable
on any other hypothesis. The circumstances should exclude any
other possible hypothesis except the one to be proved. [Paras
186- 189][617-G-H; 618-A, C-G]
Shivaji Sahabrao Bobade v. State of Maharashtra
(1973) 2 SCC 793 : [1974] 1 SCR 489 - relied on.
1.7 Suspicion however strong cannot substitute proof
beyond reasonable doubt. Enmity as a result of property related
disputes may give rise to suspicion. However, conviction can
never be based on suspicion unless the prosecution clearly proves
circumstances conclusively and all circumstances proved should
only point to the guilt of the accused. Possibility of any conclusion
other than the conclusion of guilt of the accused would vitiate a
conviction. The burden of proving an accused guilty beyond all
reasonable doubt lies on the prosecution. If upon analysis of
evidence two views are possible, one which points to the guilt of
the accused and the other which is inconsistent with the guilt of
the accused, the latter must be preferred. Reversal of a judgment
and order of conviction and acquittal of the accused should not
ordinarily be interfered with unless such reversal/acquittal is
vitiated by perversity. In other words, the Court might reverse
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an order of acquittal if the Court finds that no person properly
instructed in law could have upon analysis of the evidence on
record found the accused to be 'not guilty'. When there is
circumstantial evidence pointing to the guilt of the accused, it is
necessary to prove a motive for the crime. However, motive need
not be proved where there is direct evidence. In this case, there
is no direct evidence of the crime. [Paras 192-193][619-E-G;
620-A-B]
1.8 Before a case against an accused can be said to be fully
established on circumstantial evidence, the circumstances from
which the conclusion of guilt is to be drawn must fully be
established and the facts so established should be consistent only
with the hypothesis of the guilt of the accused. There has to be a
chain of evidence so complete as not to leave any reasonable
doubt for any conclusion consistent with the innocence of the
accused and must show that in all human probability the act must
have been done by the accused. The prosecution miserably failed
to establish the guilt of the accused persons beyond reasonable
doubt. There is a strong possibility that the motorcycle which
the deceased were riding, might have been hit by an unknown
vehicle, killing the deceased. The death may have been accidental.
The High Court rightly set aside the judgment and order of
conviction of the Trial Court and acquitted the accused. [Paras
195, 197][620-E; 621-C]
Praful Sudhakar Parab v. State of Maharashtra (2016)
12 SCC 783 - distinguished.
Satish Nirankari v. State of Rajasthan (2017) 8 SCC
497 : [2017] 4 SCR 298; Sadhu Saran Singh v. State of
U.P. (2016) 4 SCC 357 : [2016] 1 SCR 913; Shanti
Devi v. State of Rajasthan (2012) 12 SCC 158 : [2012]
9 SCR 226 - relied on.
State of Rajasthan v. Islam & Ors. (2011) 6 SCC 343 :
[2011] 6 SCR 988; Vijay Shankar v. State of Haryana
(2015) 12 SCC 644 : [2015] 9 SCR 977; Murari lal v.
State of Madhya Pradesh (1980) 1 SCC 704 : [1980] 2
SCR 249; Sharad Birdhichand Sarda v. State of
Maharastra (1984) 4 SCC 116 : [1985] 1 SCR 88;
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
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Bablu v. State of Rajasthan (2006) 13 SCC 116 : [2006]
10 Suppl. SCR 835 - referred to.
Case Law Reference
[2011] 6 SCR 988
referred to
Para 21
[2015] 9 SCR 977
referred to
Para 29
(2016) 12 SCC 783
distinguished
Para 29
[2017] 4 SCR 298
relied on
Para 29
[1980] 2 SCR 249
referred to
Para 187
[1974] 1 SCR 489
relied on
Para 189
[1985] 1 SCR 88
referred to
Para 190
[2006] 10 Suppl. SCR 835
referred to
Para 190
[2016] 1 SCR 913
relied on
Para 194
[2012] 9 SCR 226
relied on
Para 196
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
417 of 2010.
From the Judgment and Order dated 22.11.2006 of the Madurai
Bench of Madras High Court in Criminal Appeal Nos. 834, 835, 836,
895, 926, 934 and 938 of 1998.
With
Criminal Appeal Nos. 416 and 408-414 of 2010.
KTS Tulsi, R. Balasubramanian, R. Basant, Rajiv Datta, Sr. Advs.,
Siddhant Sharma, B. Ragunath, Ibhram Ali, Vijay Kumar, P.R. Kovilan,
Mrs. Geetha Kovilan, Ms. Jubli Momalia, M. Yogesh Kanna, S. Partha
Sarathi, Raja Rajesh Waran S., Kumar Dushyant Singh, Mukul Lather,
Arun Adhlakha, Dharmendra Kumar Sinha, B. Karunakaran, Mukesh
Verma, Pankaj Kumar Singh, Pawan Kumar Shukla, Yash Pal Dhindra,
K.K. Mani, Ms. T. Archana, Dushant Kumar Singh, Kanippaiah
Meyappan, Ms. Kanika Kalaiyarasan, Ms. Yamunah Nachiar, S. Ravi
Shankar, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. These appeals are against the judgment and order dated
21.11.2006 passed by the Madurai Bench of Madras High Court, allowing
Criminal Appeal Nos. 834, 835, 836, 895, 926, 934 and 938 of 1998,
setting aside the judgment and order dated 6.10.1998 of conviction passed
by the Additional Sessions Judge, Pudukottai in S.C. No.108/1996, and
acquitting all the eight accused persons (A1 to A8). While all the eight
accused had been convicted under Section 120B of the Indian Penal
Code of criminal conspiracy, A1, A2 and A7 had also inter alia been
convicted under Sections 302/34 of I.P.C for murder of the deceased
Raja Mohammed, hereinafter referred to as the first Deceased ('D1'),
and his friend Raj Mohammed son of Ibrahim, the Accused No.4 (A4),
and hereinafter referred to as the second Deceased ('D2').
2. Criminal Appeal Nos.417 and 416 of 2010 have respectively
been filed by Basheera Begum, the wife of D2 who deposed in the trial
as the 3rd Prosecution Witness (PW-3) and Sahul Hameedhu uncle of
D1, being the complainant, who deposed as the 1st Prosecution Witness
(PW-1). Criminal Appeal Nos. 408-414 of 2010 have been preferred by
the State, challenging the acquittal of the eight accused.
3. The 1st Accused Jaffer Ali (A1) and D2 are brothers and sons
of the 4th Accused, Mohammad Ibrahim (A4). The 3rd Accused, Abdul
Hameedhu (A3) is younger brother of A4 and uncle of D-2 and A-1.
The 5th Accused Sheikh Dawood (A5) and the 6th Accused, Basheer Ali
(A6) are relatives of A1, A3, A4 and D2. The wives of A3 and A6 are
sisters. The 2nd Accused Balu @ Balusamy (A2) and the 7th Accused,
Krishnan (A7), both residents of Karaikudi are allegedly henchmen of
the 8th Accused, Ramasamy Ambalam(A8) of Unjanai Village near
Karaikudi, a friend of A3. A4, A5 and A7 have since died. A7 had died
while his Appeal before the High Court was pending. The appeals against
the acquittal of A4 and A5 in this Court, have abated.
4. It is the case of the Prosecution that D2, son of A4 and D1
nephew of A3 were friends. Sultan alias Sulaiman Rowther, brother of
A3 and A4 and uncle of D2, who lived in Malaysia, had properties in
India, which were being managed by A3. Enmity arose between A3 and
D2 after the said Sulaiman took back his properties from A3 and entrusted
D2 with management of the same. Fathima Beevi, daughter of Sulaiman,
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a Non-Resident Indian (NRI), had also entrusted D2 with her properties
in India, as a result of which there was bad blood between A3 and A2.
D2's demand for partition of family properties held and/or controlled by
A4 gave rise to property disputes between D2 and his father (A4) and
his brother (A1). D2 was embroiled in litigation in respect of properties
held and/or managed by him.
5. As per the case of the Prosecution, the Accused had booked a
room at the Malar Lodge Hotel at Karaikudi on 21.6.1990, where they
hatched the conspiracy to kill D2. In pursuance of such conspiracy A1
purchased a lorry bearing the Registration No. TSL 6579 on or about
20/21 December 1990, through brokers, PW-6 and PW-7 under a sale
agreement prepared by A5. A6 and A5 were also signatories to the sale
agreement.
6. According to the Prosecution, D2 and his friend D1, both
residents of Arsarkulam, left for Aranthangi around 8.30 p.m. on
28.12.1990, by Motor Cycle No.TN/1406, owned by the A4, to meet a
lawyer engaged by D2. D2 drove the motor cycle and D1 was on the
pillion. At about 1.00 a.m. at night, two persons, Kannan and Nagoor
Gani (PW2) who had come to Arsarkulam by the last bus, informed the
complainant (PW-1), uncle of D1, that D2 and D1 were lying dead in a
pool of blood two or three furlongs away from the level crossing at
Sarayananthal, Pappakulam and a motor cycle was lying closeby.
7. On receiving the information, PW-1 went to the place of
occurrence immediately with his neighbour Mohammedhu Meera and
thereafter, at about 2.00 p.m. he went to the Aranthangi Police Station
and lodged a complaint.
8. In the complaint, PW-1 stated that he suspected that the
deceased might have been murdered by Perumal, Kuzhanthaiyan and
Kumar, at the instigation of A3, as there was enmity between D2 and
A3 over the eviction of A3 from the place of his residence. A1, brother
of D2 and A4, father of D2 were not even named as accused in the
complaint. Nor were any of the other accused named.
9. The sub-inspector attached to the Aranthangi Police Station
registered the complaint, pursuant to which investigation in Crime No.
668 of 1990 commenced under, inter alia, Sections 120B and 302 of
the IPC. The Inspector reached the place of occurrence on 29th
December, 1990 after sunrise. The bodies of the deceased were sent
for postmortem examination.
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10. PW-22, a doctor attached to the Government Hospital at
Aranthangi performed postmortem on the dead body of D2. Upon
postmortem, the following injuries were found on D2:-
"EXTERNAL INJURIES:
1. Contusion injury on upper lip and right maxilla.
2. Teeth in upper and lower jaw displaced.
3. Horizontal incised injury 3 cmx2cmx1cm on chin.
4. Blood clots from mouth and nose.
5. Irregular horizontal abrasion 3 cm diameter on chest.
6. Reddish black, partly rectangular 3 cm x 2cm interrupted
impression, continuous from right Hypochondrium crossing
sternum termination at left Hypocondrium. Similar
impressions on lower part of abdomen diminishing at
umbilicus. Distance between two edges is of 27 cms.
7. The above impressions present on front position middle of
right forearm.
8. Elliptical shaped lacerated injury on cubital region of left
forearm 4 cmx4cmx1cm. When both upper limps held close
to the body injury No.6, 7 & 8 are continuous and are in line.
9. Bluish coloured contusion injury 5 cm diameter on right
inquinal regional.
10. Irregular abrasion just above right knee.
11. Irregular abrasion 4 cm diameter below right scapula.
Internal injuries:
Fracture of Nasal bones body of mandible on both sides.
Ribs 3 to 7 costal region symmetrical on both sides driving
hone ends to lungs, body of sternum, lung surgace is
lacerated.
Stomach contained 200 ml of digested rice particles.
Liver posterior surface is ruptured and torn to pieces.
Other visceral organs & skull bones normal:
Scrotum: Contained a loop of intestines."
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
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11. The 23rd Prosecution Witness (PW-23)conducted Postmortem
on D1 and found the following Injuries:
"External Injuries :
1. An ante-mortem lacerated injury over the right eye brow
horizontally, size 3cmx 1⁄2 cm x 1⁄2 cm cm an examination blood
clots underneath the wound present. No bone fracture.
2. An ante mortem larcerated injury semi circular in nature
over the anterior aspect of right shoulder size 6 cm*1cm*1cm.
No bone fracture.
3. An ante mortem lacerated injury over the right arm
anteriorly horizontal in nature 5 cm below the shoulder joint
size 3 cm*1cm* 1⁄2 cm. No bone fracture.
4. An ante mortem lacerated injury over the right elbow
posteriorly horizontal in nature size 21⁄2 cmx1cmx 1⁄2cm.
5. Ante mortem abrasion linear, interrupted interneath in
nature. Extending from right chest to right ideal fossa size
25cmx5cm. On examination extra vastation of blood under
neath the skin present. Present. Fracture of 4th and 5th rib
anterior angle present.
6. Ante mortem lacerated injury horizontal over the left wrist
joint anteromedialy size 2 cm x 1⁄2 cmx 1⁄2cm. No bone fracture.
7. An ante mortem lacerated injury over the right knee joint
antirolaterally size 3 cmx 2cm x 1⁄2cm horizontal in nature.
No bone facture.
8. Ante mortem abrasion 4 cm in number each 3 cm x 2 cm
over the right leg laterally.
9. Ante mortem contusion over the right side scalp over the
right temporal region size 7 cm x9 cm extravastation of blood
under neath the scalp present. Fracture right temporal bone,
squemoris part present, Meninges injury subdural haematone
present in intracerebral bleeding present.
10.Torn) bridge depressed clots in the nostril present. No
fracture. Nasal bone body not decomposed. The general
appearance do not tally with police report. Death appear to
have occurred about 16 to 20 hours prior to post mortem.
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Penis circumcised, eye lids closed, jaws clenched. Tongue
inside the mouth.
Internal Injuries:
Abdomen mild distention present. Position organs normal,
pale, no injury to liver Spleen, kidney no fluid or blood in
the peritoneal cavity. Stomach contains 30 ml partially
digested food. No specific odour. Thorax-position of organs
normal pale fracture o right 4th and 5th ribs present. Heart
empty, no injury lungs no injury. No foreign body in the
trachea, Larynx, Hyoid bone not broken. Pelvis no fracture
skull fracture of right temporal bone membranes conjested
subdural haematoma, intra cerebral bleeding present. Brain
solid Wt.1200 gms deceased blood preserved for chemical
analysis."
12. The Investigating Officer, PW-43, took up the investigation
and examined witnesses. The police seized broken glass pieces, plastic
pieces and other objects from the place of occurrence. The lorry was
later seized. One iron rod alleged to have been used for the murder of
D2 and D1 was allegedly recovered by the police on the confession of
A7. The passport of A1, who had gone back to Saudi Arabia, where he
carried on business, about fifteen days after the incident, was impounded
and he was arrested. PW-36, who had taken up the investigation from
PW-43 seized registers of Malar Lodge Hotel in Karaikudi (Ex.P24).
Further investigation was conducted by PW-45.
13. After completion of investigation, the Inspector of the Crime
Investigation Branch, Pudukkottai, filed a Chargesheet before the Judicial
Magistrate, Aranthangi. In the chargesheet it was alleged that, on 28th
December 1990, A1 had hit the motor cycle on which the deceased
were riding, with his lorry bearing the registration No. TSL 6579, near
Serayanenthal, Pappakulam. A2 and A7 had got off the lorry and attacked
the deceased, who had fallen from their motor cycle, with iron rods and
caused their death in pursuance of the conspiracy which had been hatched
between A1 to A8 at the Malar Lodge Hotel, Karaikudi, on the night of
21st June, 1990, owing to enmity of A3, A4 and A1 with one of the
deceased, that is, D2.
14. The accused pleaded 'not guilty', after which trial commenced.
All the accused respondents were tried under Section 120B of the IPC
BASHEERA BEGAM v. MOHAMMED IBRAHIM & ORS.
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on the charge of hatching a criminal conspiracy at the Malar Lodge
Hotel, Karaikudi on 21.6.1990, to murder D2. A1, A2 and A7 were also
charged with offence under Section 302 read with Section 34 of the
IPC, of murder of D2 and D1.
15. The prosecution examined 45 witnesses. The accused did not
examine any defence witness. Nine Prosecution Witnesses (PWs) namely
PW-6, PW-9, PW-10, PW-11, PW-12, PW-13, PW-39, PW-40 and PW42 were declared hostile by the Public Prosecutor and were cross
examined on behalf of the State, as they had allegedly retracted from
their statements made before the Police in course of investigation.
16. By a judgment and order dated 6th October, 1998, the Additional
Sessions Judge, Pudukottai convicted all the accused under Section 120B
IPC and further convicted A1, A2 and A7 under Section 302 read with
Section 34 IPC. A1, A2 and A7 were sentenced to life imprisonment
and also to fine of Rs.20,000/- each.
17. Being aggrieved by the judgment and order dated 6th October,
1998 of the Additional Sessions Judge, Pudukottai in SC No.108 of 1996,
all the accused filed Criminal Appeals in the High Court, which were
numbered as Criminal Appeal Nos.834, 835, 836, 895, 926, 934 and 938
of 1998.
18. By the judgment and order under appeal, the Hon'ble High
Court allowed the Criminal Appeals, set aside the judgment and order
dated 6th October, 1998 of the Trial Court, of conviction of the accused
in SC No.108 of 1996 and acquitted the accused of the charges levelled
against them. Since A7 had died while the proceedings in the High Court
were pending, the fine amount if any, paid by A7, was directed to be
refunded to his legal heirs.
19. The High Court, on consideration of the evidence adduced by
the Prosecution, found that the entire prosecution case suffered from
serious infirmities, inconsistencies and inherent improbabilities. There
were several missing links in the circumstances put forward by the
Prosecution and the Prosecution had miserably failed to complete the
chain of circumstances by conclusively establishing that each and every
circumstance unerringly pointed to the guilt of the accused. Being
aggrieved by the judgment and order of the High Court, reversing the
conviction of the accused and acquitting all of them, the State, as also
the complainants are in appeal.
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20. Mr. K.T.S. Tulsi, Senior Advocate appearing on behalf of the
appellant in Criminal Appeal No.417 of 2010 submitted that the High
Court clearly erred in law as well as facts, in setting aside the judgment
and order of conviction of the Trial Court and acquitting the accused of
all the charges levelled against them.
21. There can be no doubt, as argued by Mr. Tulsi, that even
though the Supreme Court exercises discretionary jurisdiction under
Article 136 of the Constitution, such discretion has to be exercised in
order to ensure that there is no miscarriage of justice. If the decision of
the High Court is mis-conceived and perverse, there is nothing in law
which prevents the Supreme Court from exercising its jurisdiction under
Article 136 against an order of acquittal, as observed by this Court in
State of Rajasthan vs. Islam & Ors.1. When acquittal cannot be
sustained at all, in view of the evidence on record, this Court is duty
bound to set aside the acquittal. The question is whether the acquittal in
this case, is liable to be set aside.
22. Mr. Tulsi argued that there was evidence of property disputes
between D2 and A3 and also of property disputes between D2 and A4.
A police complaint had been lodged in this regard. However, a
compromise was entered on the intervention of the District Collector.
On 30.4.1990, A4 had lodged a complaint against D2 which had been
compromised in the Civil Court.
23. There was evidence that on 21.6.1990 the accused booked a
room at the Malar Lodge Hotel, Karaikudi and conspired to kill D2 with
the help of a lorry. Accordingly A1 purchased the lorry No. TSL 6579
with the sinister motive of murdering D2.
24. Mr. Tulsi submitted that on 28.12.1990, D2 and D1 left for
Aranthangi. At around 1.00 a.m. complainant was informed of the death
of the deceased. As per the post mortem report the deceased died of
shock and haemorrhage due to injury on skull, brain and multiple injuries.
25. Mr. Tulsi submitted that where specific roles had been attributed
to each of the accused persons, a chain of circumstances linking them to
the commission of offence was complete. The High Court ought not to
have reversed the Trial Court's judgment. The High Court overlooked
the fact that in most cases of circumstantial evidence, direct evidence of
1 2011 (6) SCC 343
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conspiracy is never available and existence of conspiracy has to be
inferred from the circumstances of the crime.
26. Mr. Tulsi submitted that apart from complete chain of
circumstances linking the accused with the crime, expert opinion was
also available. The depositions of PW-22 to PW-27 led to irresistible
inference of the guilt of the accused. Mr. Tulsi submitted that the High
Court ignored the fact that the accused persons alone had the motive
and opportunity to commit the offence as established from the testimony
of PW-1, PW-3 and PW-29.
27. Mr. Tulsi submitted that depositions of PWs 8, 16, 21, 23 and
24 clearly established that D1 and D2 were killed by the accused persons.
They did not die as a result of an accident. PW-8 deposed that the lorry
was repaired in his workshop at Arokyam. On the intervening night of
28/29.12.1990 the lorry was brought to the workshop of PW-7 for repairs.
Its left bottom light was broken. On 3.1.1991 PW-16 had sold three
bulbs for the lorry in question against receipt and on the same day PW15 had sold a front side light of a heavy motor vehicle.
28. Mr. Tulsi further submitted that there was evidence of PW-21
who deposed that an iron rod was recovered from A7 on 13.2.1991 in
his presence. On the basis of the statement of PW-24, the Trial Court
rightly came to the conclusion that D2 did not die because of the collision
but was murdered. Even PW-23 stated that D1 and D2 had been
murdered with the rod( MO-23). Counsel appearing for the State
supported Mr. Tulsi.
29. There can be no doubt that direct evidence of conspiracy is
almost never available and that existence of conspiracy has necessarily
to be inferred from the circumstances of the crime, as held by this Court
in Vijay Shankar vs. State of Haryana2, Praful Sudhakar Parab vs.
State of Maharashtra3 and Satish Nirankari vs. State of Rajasthan4
cited by Mr. Tulsi. It is however doubtful, whether existence of conspiracy
can at all be inferred from the circumstances in this case, considering
the evidence adduced by the prosecution.
30. The 1st Prosecution Witness M. Sahul Hameed (PW-1), being
the complainant deposed that D1 was his sister's son. When the incident
2 2015 (12) SCC 644
3 2016 (12) SCC 783
4 2017 (8) SCC 497
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occurred Mohamed Meerasa, father of D1, was in Malaysia. D1 had
been staying with his mother Aiyeesha @ Aiyeesammal at Aroorkulam.
PW-1 deposed that D2 was a friend of his sister's son, D1. D2 was
married to PW-3, Basheera Begum.
31. In a nutshell, PW-1 said that he knew all the accused persons.
A4 (father of D2), A3, and Sultan @ Sulaimaan Rowthar living in Malaysia
were brothers. A3 had been managing the properties of Sulaimaan in
India. Disputes however arose between A3 and D2 when Sulaimaan
took back his properties from A3 and entrusted the management thereof
with D2. Properties in the name of Fathima Beevi, daughter of Sulaimaan
were also entrusted to A3 for management.
32. PW-1 has stated that there were 10 to 12 patta holders, and
also unauthorised occupants in occupation of land purchased in the name
of Fathima Beevi. The occupants were being evicted by payment of
money. However, A3 who was associated with the ruling party at that
time, and a Vice-president of the Aranthangi Panchayat Union, instigated
occupants not to vacate, and many of them refused to vacate. According
to this witness, this gave rise to a quarrel between D2 and A3 and a
complaint was filed with the police. The District Collector conducted an
inquiry and the disputes were compromised through his intervention.
33. This witness also said that there was a civil case pending in
the District Munsif Court at Aranthangi against some occupants of the
Palaa Thopu land of Fathima Beevi. D2 used to often go to Aranthangi
with D1, being the complainant's sister's son, in connection with the civil
case. From the evidence of PW-1 it only transpires that A1, A3 and A4
had property disputes with D2.
34. This witness stated that A4, father of D2 owned a Bajaj Motor
Cycle bearing the Registration No.TN55/1406. On 28th December, 1990
at about 8.30 p.m. when this witness was in his rice mill, D2 left for
Aranthangi along with D1, being his sister's son, on the said Bajaj motor
cycle bearing the registration No.TN55/1406 owned by A4, to meet his
advocate. D2 drove the motor cycle and D1 was the pillion rider.
35. On 29.12.1990 at 1.00 a.m. this witness received information
of the death of D1 and D2.