Judgment : Per M.E.N. PATRUDU, J. 1 Murder for gain is not uncommon. 1.1 To gain wrongfully, the offender while committing the theft, kills a person, hence, it is a heinous offence. 1.2. Not only the property but the precious life of an individual is involved in the criminal act and thereby the mens-rea as the motive are deemed to have been established without any further proof. 2. In this case, the appellant is convicted for theft, kidnapping and murder. 2.1. Dissatisfied with the Judgment in S.C.No.490 of 1999 of the learned Additional Sessions Judge Fast Track Court - 1, Madurai, the appellant is now questioning the legality and the correctness of the conviction and the sentence passed by the Trial Court. 2.2. The learned Addl. Sessions Judge convicted the appellant for offences under Sections 302, 380, 454, and 364 of the I.P.C. and sentenced him to undergo life imprisonment under Section 302 I.P.C. andrigorous imprisonment for two years, five years and seven years respectively for the remaining offences. 2.3 The grievance of the appellant is that the trial Court convicted him contrary to law by accepting the insufficient circumstantial evidence on record and there is no direct evidence. 2.4 Before we proceed to discuss the detailed and lengthy arguments of Mr. M.P.Rajan, the learned Senior Counsel who appeared for the appellant, we have to examine the facts in this case and the law on the subject and the principles emerged there from since settled by the Apex Court in similar such cases and then to apply the same in the facts and circumstances of this case in order to ascertain whether there are any merits in the arguments of the learned Counsel or whether the impugned judgment is to be confirmed. 2.5 Thus, we first deal with the facts. 3 Facts: 3.1. The sole accused is Marudhupandi. He is aged about 26 years. He is the appellant. 3.2 The innocent deceased is Muniasamy, a minor boy aged about 9 years; we call him innocent as he had neither invited nor expected the death. 3.3. The accused is a distant relative of the deceased. Their families are known to each other and are residing in the same locality. He is aged about 26 years. He is the appellant. 3.2 The innocent deceased is Muniasamy, a minor boy aged about 9 years; we call him innocent as he had neither invited nor expected the death. 3.3. The accused is a distant relative of the deceased. Their families are known to each other and are residing in the same locality. 3.4 Case of the prosecution: On 25.9.1998 at about 2.00 p.m. the accused broke open the doors of the house of the deceased and committing theft of the gold jewellery from the almirah and in the meanwhile, the deceased boy returned home from school and found the accused committing theft. The accused in order to eliminate the eye-witness kidnapped and killed the deceased by cutting the scalp near occipital region resulting the death and threw the dead body in the well located in the bushes of southern side of the Padma Theatre, to screen the offence. 3.5. According to the prosecution, the entire incident happened between 2.00 to 4.00 p.m. 3.6 P.W.1 is the father of the deceased. He is working as incharge clerk in the State Transport Corporation. He went to his work spot as usual on the day of incident. P.W.2 is his wife and she went to the agricultural field. Thus, the parents of the deceased were not in the house at the time of offence. So also P.W.3 the sister of the deceased as she went to her school and returned in the evening. P.Ws.4 and 5, the two elder brothers of the deceased were also not present in the house at the time of the offence. 3.7. Unfortunately, the deceased returned home early from his school and witnessed the incident and became a victim of the crime. 3.8. P.W.1 who is on duty learnt about theft. Immediately, returned home and found P.W.3 weeping and on enquiry P.W.3 informed that the accused came to their house at 11.30 a.m. and enquired about P.W.2 and learnt that P.W.2 went to village. After making those enquiries, the accused went away. 3.9 It is also the case of the prosecution that Jaya the youngest daughter of the house informed P.W.3 (her elder sister) that the accused took the deceased towards South. The inmates started their usual searches and could not find the deceased or accused. After making those enquiries, the accused went away. 3.9 It is also the case of the prosecution that Jaya the youngest daughter of the house informed P.W.3 (her elder sister) that the accused took the deceased towards South. The inmates started their usual searches and could not find the deceased or accused. On verifying the missing articles, P.W.1 and P.W.2 noticed missing of 43 pounds of gold jewels, 5 pounds of silver. P.W.1 lodged a police report mentioning all the details. It is Ex.P.1. The name of accused is mentioned as assailant and the fact of kidnapping the deceased was also mentioned in Ex.P.1. 3.10 3.10. P.W.1 and others continued their searches till 27.9.1998. They could not find either the deceased or the accused. 3.11 While so, on 27.9.1998 P.W.1 learnt about the presence of a dead body in a well and on hearing the same, he along with P.W.2 and others proceeded to the well and mob had gathered there and the dead body was taken out and it is the dead body of the deceased. Immediately, an information was given to the police, who had arrived at the scene and obtained another report from P.W.1 and it is Ex.P.2. 3.12 The police took up the investigation, conducted inquest, post-mortem and observed the scene of offence in and around the well. 3.13 The accused was arrested on 28.9.1998, interrogated and in pursuance of his confession, the gold chain, M.O.2 and cash worth Rs.32,500/-, M.O.4 are discovered in the presence of P.W.10 by the police under Ex.P.5 and P.6, the Mahazar reports. The police also seized the sickle M.O.5 in pursuance of the confession of the accused in the presence of P.W.10 and another. 3.14. Subsequently, the accused was charged for the offence under Sections 302, 454, 380 and 363 and 364 I.P.C. 4.1 Witnesses: The reasons in detail have been recorded by the learned Sessions Judge while convicting the appellant. 4 Evidence: To prove their case, the prosecution has examined P.W.1 to P.W.16 and marked Ex.P1 to P13 and marked MOs.1 to 6. 4.2 No witness was examined by the appellant and no document was marked. 4.3 P.W.1 the complainant and father of the deceased. P.W.2 is the mother of the deceased. P.W.3 is the sister of the deceased. P.W.4 and P.W.5 are the brothers of the deceased. 4.2 No witness was examined by the appellant and no document was marked. 4.3 P.W.1 the complainant and father of the deceased. P.W.2 is the mother of the deceased. P.W.3 is the sister of the deceased. P.W.4 and P.W.5 are the brothers of the deceased. PW.6 is an important witness, who has last seen the deceased alive in the company of the accused just before the murder. PW.7 saw the dead body in the well, PWs.8 and 9 mediators for observations of scene and inquest. PW.10 is the witness for the arrest of the accused and discovery of incriminating articles at the instance of the accused. PW.11 is the police official, who registered the First Information Report. PW.12 is the photographer. PW.13 is the constable, who has delivered the F.I.R. PW.14 and 16 are the investigating officers and PW.15 is the Autopsy Doctor. 4.4. Documents: Ex.P.1 is the report of PW.1 dated 25.9.1998. Ex.P.2 is another report of PW.1 dated 27.9.1998 after murder. Ex.P.3. is the Observation Mahazar dated 25.9.1998. Ex.P.4 is also the Observation Mahazar dated 27.9.1998. Ex.P.5 is the admissible portion of the confessional Statement. Ex.P.6 is the recovery of material objects Ex.P.7 is the original First Information Report. Ex.P.8 Post-Mortem Certificate. Ex.P.9 is the Rough Sketch. Ex.P.10 is the recovery of material objects dated 25.9.1998. Ex.P.11. is the alteration of Section. Ex.P.12 is the rough sketch. Ex.P.13 is the Post-mortem Certificate. 4.3 Material Objects: M.O.1 is the Blue colour half trousers. M.O.2 is the Double gold chain. M.O.3 is the Crow Bar. M.O.4 (Series) is the cash of Rs.32,500/-. M.O.5 is the sickle. M.O.6 (Series) Photographs with negative. 5. Arguments: 5.1 The learned counsel Mr. M.P. Rajan high lighted various portions of the evidence and attacked the same by contending that the evidence is not sufficient to connect the crime with the accused. 5.2 Incidentally, the learned counsel also had pointed out to several other factual details. 5.3 The main grievance ventilated by the learned counsel for the appellant is that in a case of circumstantial nature, every circumstance must be established to prove the guilt of the accused and the prosecution must produce the evidence to show that the accused alone has committed the crime. We have been taken through the record. 6. 5.3 The main grievance ventilated by the learned counsel for the appellant is that in a case of circumstantial nature, every circumstance must be established to prove the guilt of the accused and the prosecution must produce the evidence to show that the accused alone has committed the crime. We have been taken through the record. 6. Points:We have to decide: i) Whether the death of the deceased is homicidee ii) Whether the accused committed the murder of the deceasede iii) Whether the accused committed the house-breaking, kidnapping and thefte 7 Point No.1 7.1 PW.15, Thiyagarajan, Doctor held the autopsy over the body of the deceased on 29.7.1998 at 3.00 p.m. i.e. two days after the death of the deceased and found the following injuries: i) Oblique cut injury back of scalp left side occipital 10 cms×2 cms×bone deep above downwards cutting the underlying bone and brain 8 cms×1cm×2cms with adjoining area full of extravasated blood clots seen. ii) Oblique cut injury on the back of right forearm 8cms×2cms×bone deep below upwards. iii) Multiple abrasions anterior abdominal wall 8cms×4 cms. 7.2 The post-mortem Doctor opined that the death is due to Cranio Cerebral injury. 7.3 Thus the evidence of PW.15 and the contents of Ex.P.8 clearly establishes that the deceased was killed. 7.4 In fact, the defence did not dispute about it. The case of the defence is that the accused is not the offender. 7.5 Hence, we hold that the death of the deceased is homicide. 8 Point No.2. 8.1 The entire case of the prosecution rests on the circumstantial evidence. It is a settled law that whenever the case is resting on the circumstantial evidence, the prosecution must establish all the circumstances and chain of events. The evidence furnished by those circumstances should be so complete and would not leave any reasonable doubt for conclusion consistent with the innocence of the accused. As a matter of prudence and caution, the Court has to examine the various circumstances relied on by the prosecution and verify whether they are consistent with the guilt of the accused. The relied facts and the circumstances must be such as to negative the innocence of the accused and to bring the offence home to prove him guilty beyond any doubt. The relied facts and the circumstances must be such as to negative the innocence of the accused and to bring the offence home to prove him guilty beyond any doubt. 8.2 Before a person could be found guilty on the basis of circumstantial evidence, each of the circumstances relied on must be clearly established and the proof of circumstances taken together must be such as reasonably to exclude the innocence of accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence and this could be verified only from the chain of circumstances placed before the Court. 8.3 In Baksh Singh v. Punjab AIR 1971 SC 2016 : (3) SCC 182 the Apex Court laid certain guidelines. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Those circumstances should be of conclusive in nature and tendency and they should be such as to exclude all other hypothesis except the one proposed to be proved. 8.4. In Kailash v. State of Uttar Pradesh AIR 1979 SC 1711 : (1) SCC 221, it has been held that: “The principles are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstances relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstances must be of an incriminating character. All the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.” 8.5 In Alamgir v. State AIR 2003 SC 282 : 2003 (1) SCC 21 , it has been held that: “Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an aginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained institutions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.” 8.6 With these guiding principles, we shall not examine the various circumstances to decide the vital point in this case. 8.7 The circumstances relied on by the prosecution can be conveniently divided into 6 parts: (1) the accused and the deceased are known to each other. (2) Theaccused visited the house of the deceased on the date of the incident. (4) Themissing of the deceased and later his dead body was found with injuries in the well. (5) Abscondance of the accused. (6) Discovery of material facts and recovery of material objects at the instance of the accused.” (3)The deceased was last seen alive in the company of the accused. 8.9 I Part: (i) The families of the accused and the deceased are known to each other. (ii) The accused is having knowledge about the topography of the house of the deceased. (iii) The accused is residing in the same locality where the deceased family is residing and is aware about the avocation of the inmates of the deceased family. (iv) The accused is in the habit of visiting the house of the family of the deceased. (v) The financial status of deceased family. (iii) The accused is residing in the same locality where the deceased family is residing and is aware about the avocation of the inmates of the deceased family. (iv) The accused is in the habit of visiting the house of the family of the deceased. (v) The financial status of deceased family. All the above facts are proved beyond reasonable doubt through the evidence of PW.1 to PW.5. PW.1 deposed that the accused is known to them. The accused used to come to their house and the accused is the son of the elder sister of his wife and the father of the wife of the accused is his brother-in-law. His evidence also discloses that their family is financially sound. The evidence of PW.2 to 5 corroborates and in fact it was not challenged by accused that they are not known to each other. Therefore, the first circumstance is established. 8.10 II Part:P.W.3 Muneeswari is the daughter of PW.1 and PW.2 and sister of the deceased. She has clearly testified that on 25.9.1998 at about 11.30 a.m., the accused came to their house and P.W.1 went to his office and P.W.2 went to the native village to look after the cultivation and the accused enquired about P.W.2 and she replied that the P.W.2 would return only in the night, on say so, the accused went away. She further deposed that she locked the house and sent P.W.4 and P.W.5 to the school and she also went to the school and came back at 5.30 p.m. and found that the youngest sister Jaya was playing. Then, she noticed that the doors of the house and almirah were broke open. P.W.3 further deposed that she enquired her sister Jaya, who replied that the accused came there and along with the deceased he went away. In the Cross-Examination, P.W.3 has confirmed that the accused alone came at about 11.30 a.m., on the date of occurrence and so also confirmed that the accused is in the habit of coming to their house quite often. Before the occurrence also, he used to come and he was affectionate with P.W.3 as well as the deceased. There was no specific denial that the accused has not come to their house on the day of incident at 11.30 a.m. and enquired about P.W.2. Before the occurrence also, he used to come and he was affectionate with P.W.3 as well as the deceased. There was no specific denial that the accused has not come to their house on the day of incident at 11.30 a.m. and enquired about P.W.2. So also there was no specific denial that Jaya did not inform to PW.3 that the accused took away the deceased. Therefore, the cross examination on behalf of the accused is totally silent on these two important circumstances. Thus, through the evidence of PW.3 it is established that the accused came to their house at 11.30 a.m. and enquired about their mother and learnt that P.W.2 would return only in the night time and left the house. So also, it is established through her evidence that Jaya informed her that the accused took away the deceased. Learned Counsel for the appellant forcibly contended that the said Jaya has not been examined as the witness and there is no evidence on record that Jaya informed to PW.3, therefore, it is a hearsay evidence. The prosecution or the investigating agency should have taken steps to examine Jaya as one of the witnesses. Be it may be the undisputed fact of Jaya informing to P.W.3 was testified by P.W.3. It is a direct evidence as far as P.W.3 is concerned and it is not hear-say evidence. According to PW.3, Jaya informed to her that the accused took away the deceased. That fact of Jaya informing to P.W.3 is in the exclusive and direct knowledge of P.W.3 and this fact was testified by P.W.3. The evidence of Jaya could have been corroborative evidence to P.W.3. But the evidence of P.W.3 on this fact was not challenged in the cross examination. When the accused did not choose to challenge the evidence of P.W.3 in the cross-examination and did not deny the fact of Jaya informing P.W.3 that the accused took away the deceased, we do not find any force in the arguments of the learned counsel that the evidence of P.W.3 is to be disbelieved on that fact. Therefore, the second part the circumstances that the accused visited the house of the deceased at 11.30 a.m. and enquired about P.W.2 and went away and subsequently went alongwith the deceased from there is established beyond reasonable doubt. 8.11 IIIrd Part: The accused and the deceased are seen last together. Therefore, the second part the circumstances that the accused visited the house of the deceased at 11.30 a.m. and enquired about P.W.2 and went away and subsequently went alongwith the deceased from there is established beyond reasonable doubt. 8.11 IIIrd Part: The accused and the deceased are seen last together. P.W.3 has categorically deposed that her younger sister Jaya informed that the accused had taken the deceased on 25.9.1998 from their house and it was not challenged in the cross-examination. P.W.6. deposed that the accused is known to him. He has clearly and cogently testified that on 25.9.1998 at about 3.30 p.m. the accused and the deceased were coming at sixth cross street, Meenakshipuram and he had asked where they were going and accused replied that they were just going like that. Therefore, at 3.30 p.m. on 25.9.1998, PW.6 saw the deceased in the company of the accused and the accused was taking way the deceased. Admittedly, the accused is about 26 years. Whereas the deceased is aged about nine years. In the cross examination, it was elicited that the accused was holding the hand of the deceased on going together and the deceased was wearing trousers and shirt, whereas the accused was wearing lungi and shirt and the accused carrying a bag in his hand. He confirmed that the accused is known to him. He denied the suggestion that he had not seen the accused and the deceased together. Except making suggestion in the evidence of PW.6, it was not shattered in the cross-examination. We do not find any valid reason to reject the evidence of PW.6. Thus, the evidence of PW.6, corroborated with that of PW.3 and clearly established that the accused took away the deceased from his house and the deceased was last alive in the company of the accused. 8.12 IV Part: The dead body of the deceased in the well: The evidence of P.W.1 discloses that when he returned home, he found their house broken and almirah was also broken and valuable properties were missing, so also the deceased. The evidence of P.Ws.1 to 6 clearly established that the deceased was not found and the whereabouts of the deceased were not known and they started searching for him and the complaint was also lodged with the police. The evidence of P.Ws.1 to 6 clearly established that the deceased was not found and the whereabouts of the deceased were not known and they started searching for him and the complaint was also lodged with the police. Their evidence further established that on 27.9.1998 at about 10.30 a.m., they learnt about floating of the dead body at 10.30 a.m., they learnt about floating of the dead body at 10.30 a.m. and they found that was the dead body of the deceased. Therefore, from 25.9.1998 till 27.9.1998 the whereabouts of the deceased were not known and the circumstances disclosed that the deceased was last seen alive in the company of the accused and thereafter, his dead body was found on 27.9.1998. PW.1 lodged Ex.P.1 with the police on 25.9.1998. The contents of Ex.P.1 discloses that the accused came to their house at about 2.00 p.m. knowing that nobody was present in the house committed theft of the gold jewellery and kidnapped his son, the deceased. On that basis of the report Ex.P.1, a case in crime No.368/1998 under Sections 354, 380 and 363 of the I.P.C. was registered. Thereafter, the section of law was altered as there was murder. In Ex.P.2, it is clearly mentioned that the deceased was murdered by the accused after kidnapping him. In Ex.P.2, it is mentioned that the well is near baboon bush on the south of Padma Theatre. The accused did not offer any explanation for the death of the deceased. Therefore, the argument of the learned counsel that the well is located in a busy locality and people would observe if dead is thrown in the well is without any force because the well is in bushes. Therefore, the other circumstances, the deceased was missing from the time of theft and finally his dead body was found in the well is also established. 8.13 V Part: Abscondence of the accused: PWs.1 and 2 clearly deposed that they searched for the accused as well as the deceased on the date of theft and they found both of them were missing. Till 28.9.1998, the accused not found in the village. Therefore, it is a constructing circumstances against him. This fact is also established. 8.14 VI Part: Discovery of Material Objects: PW.1 gave the description of the ornaments stolen in the commission of offence. Till 28.9.1998, the accused not found in the village. Therefore, it is a constructing circumstances against him. This fact is also established. 8.14 VI Part: Discovery of Material Objects: PW.1 gave the description of the ornaments stolen in the commission of offence. He has described the gold jeweller by disclosing the weight of each jewellery. In Ex.P.1, he has also described the gold jewellery with all details. PW.10 is an independent mediator in whose presence the accused was arrested when he was playing cards with four or five others near Thirupparakundram Temple. Thus, it is clear that the accused absconded from the village and moving near Thirupparakundram Temple indulging in illegal activities. PW.10 supported the case of prosecution by deposing that the police enquired the accused and the accused revealed about the incident and produced cash of Rs.32,500/-as the amount and it is MO.4. The accused has also shown the sickle, which was used in the commission of offence and it is MO.5. The police have also seized MO.2 from the possession of the accused under Mahazar. PW.1 identified MO.2 as the double gold chain with peacock design and it belongs to them. Thus, the evidence of PW.1 and PW.10 and investigating officers is establishing that the MO.2 belong to the deceased and was found in the possession of the accused and the same is produced by him before the mediators and the discovery of those articles clearly established that he committed theft of MO.2. The case of the prosecution is that the accused broke open the house of the accused and committed theft of gold ornaments including MO.2 and as the deceased has witnessed the theft, he has kidnapped and finally he was killed. The weapon used in the commission of offence was also recovered. The above circumstances, recovery of MO.2 from the possession of the accused is a very strong circumstances apart from the accused and the deceased last seen together. 8.15 The circumstances catalogued the above irresistibly lead to the conclusion that it is the accused and the accused alone has committed the offences viz., house breaking, theft, kidnapping and the murder of the deceased. Witnesses may lie but circumstances cannot lie. 8.15 The circumstances catalogued the above irresistibly lead to the conclusion that it is the accused and the accused alone has committed the offences viz., house breaking, theft, kidnapping and the murder of the deceased. Witnesses may lie but circumstances cannot lie. Having regard to the evidence of PW.1 to PW.6 and P10, which has to be considered worthy of acceptance and irreproachable evidence regarding the last seen together, abscondence and the discovery of the material objects lent further assurance to the prosecution of the case. Hence, the case of the prosecution has to be believed and the appeal has to be rejected. The Trial Court was factually and legally right in holding the accused guilty for the offences charged. Therefore, we hold that the circumstantial evidence in the case is totally consistent with the guilty of the accused that he murdered the deceased. 9 Point III: The evidence on record clearly establish that the appellant committed house breaking, theft and kidnapped the deceased and killed him. Hence, we do not find any merit in the appeal. Accordingly, the appeal is dismissed.