Supreme Court: Circumstantial evidence should be conclusive, 13.01.2012

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“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.522 OF 2006
Madhu …. Appellant
Versus
State of Kerala …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. The appellant herein, Madhu Kalikutty Panicker (hereinafter referred to as
“Madhu”) was charged along with Sibi Bhaskaran (hereinafter referred to as
“Sibi”) for offences punishable under Section 302 and 392 read with Section 34
of the Indian Penal Code, for having robbed Padmini Devi alias Omana of her
gold ornaments and thereafter having murdered her on 8.5.1998 at her
residence, i.e., Kalathil House situated in Ward No.IV of Veliyanad Village. Both
Madhu (accused no.1) and Sibi (accused no.2) were also residing in the
neighbourhood of the deceased in the same ward and village.
2. The Sessions Judge, Alappuzha convicted the accused and sentenced
them to undergo rigorous imprisonment for 10 years and to pay a fine of
Rs.25,000/- under Section 392 of the Indian Penal Code. The accused were
sentenced to imprisonment for life under Section 302 of the Indian Penal Code.
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The Sessions Judge directed that the aforesaid sentences would be suffered
successively, i.e., one after the other. In case of default of payment of fine, the
accused were to undergo further rigorous imprisonment for a period of three
years. The Sessions Judge also directed that the accused would be entitled to
set off equivalent to the period of their detention during the course of trial, under
Section 428 of the Criminal Procedure Code.
3. On appeal, the High Court of Kerala maintained the conviction of the two
accused. On the question of sentence, the High Court modified the order passed
by the Sessions Judge to the extent that the sentences would run concurrently.
Subject to the aforesaid modification, even the sentences awarded by the
Sessions Court were maintained.
4. The conviction of the accused at the hands of the Sessions Judge as also
the High Court was based on circumstantial evidence. Principally, the conviction
was ordered as a consequence of recovery of ornaments worn by the deceased,
pursuant to the information furnished by the accused. Based on the aforesaid
recovery, the High Court, relying on Section 114 of the Indian Evidence Act
inferred that the accused had committed the murder of Padmini Devi, and
thereupon, robbed her off the ornaments worn by her. The only other material
evidence taken into consideration by the courts below, to return the conviction of
the appellant herein (as also his co-accused Sibi) was the factum of their having
been sighted close to the place of occurrence at or around the time of
occurrence.
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5. The care and caution with which circumstantial evidence has to be
evaluated stands recognized by judicial precedent. Only circumstantial evidence
of a very high order can satisfy the test of proof in a criminal prosecution. In a
case resting on circumstantial evidence, the prosecution must establish a
complete unbroken chain of events leading to the determination that the
inference being drawn from the evidence is the only inescapable conclusion. In
the absence of convincing circumstantial evidence, an accused would be entitled
to the benefit of doubt. During the course of deliberations of the present
controversy, we shall endeavour to evaluate the worthiness of circumstantial
evidence produced by the prosecution to prove the guilt of the accused. But
more importantly, our endeavour would be to evaluate the admissibility of the
statements made by the accused to the police, during the course of their
detention by the police, resulting in the discovery of the gold ornaments,
belonging to Padmini Devi, after having committed her murder. This piece of
evidence has been relied upon to connect the accused with the crime.
6. The prosecution case as is revealed from the charge-sheet, notices that
the accused with the deliberate intention of committing the murder of Padmini
Devi with the motive of robbing her of the ornaments worn by her, proceeded to
Kalathil House where the deceased was residing. Padmini Devi was found
alone, sitting on the ghat (place leading into water) steps leading to the paddy
field, washing utensils. The ghat was situated at about 3 meters (2 meters and
75 cms.) from the last door step of the kitchen’s eastern door of Padmini Devi’s
house (Kalathil House). It is alleged that Madhu – accused no.1, caught hold of
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the plated hair and neck of Padmini Devi and Sibi-accused no.2, held her by her
feet, and the two together forcibly dragged her into the water. Thereupon, they
suffocated her. The act of drowning of Padmini Devi is alleged to have been
committed by the accused at a place 29 meters from the south-east of the steps
of the ghat. The accused are stated to have dragged Padmini Devi to the spot
from where her body was eventually recovered, at a distance of 7 meters northwest
of the foundation of the Snake God Shrine, which is to the south of the
paddy field in question. Madhu-accused no.1, is alleged to have removed six
gold bangles worn by Padmini Devi (on her left arm), whereas, Sibi-accused
no.2, is alleged to have removed a gold chain worn by Padmini Devi (around her
neck). The accused were thus alleged to have committed the murder of Padmini
Devi, and the theft of her ornaments jointly.
7. The son of the deceased Asuthosh PW3 is stated to have received a
phone call from his sister Ambily PW4 at 9.45 p.m. on 8.5.1998. Since
Ashutosh’s sister Ambily informed him that she would like to speak to her mother
Padmini Devi, Ashutosh PW3 who was sleeping at the time when the call was
received, got up to call his mother. He found his mother missing. He
accordingly, approached his relations and neighbours. A joint search was carried
out. The husband of the deceased, i.e., Ayyappa Kurup PW2 who, at that point
of time, was attending to his night duty in the Telephone Exchange at
Changanacherry was summoned. Ayyappa Kurup PW2 reached Kalathil House
at around 11.30 p.m. The body of the deceased was found at about 11.45 p.m.,
from under the water in the field on the eastern side of Kalathil House. Ayyappa
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Kurup PW2 asked Purushottama Kurup PW1 to make a complaint to the police.
This decision was in fact, that the death of Padmini Devi was shrouded in
suspicious circumstances. The aforesaid suspicion emerged on account of
absence of her golden necklace (worn by the deceased on her neck), as also, six
bangles (worn by the deceased around her left arm) when her body was
recovered. Accordingly, Purushothama Kurup PW1 reported the matter to the
police, disclosing the aforesaid factual position on the following morning i.e. on
9.5.1998 at 8.30 a.m..
8. On the registration of the FIR, PJ Thomas PW21, Circle Inspector of
Police, reached the place of occurrence, and prepared the inquest report (Exhibit
P-3). As per the inquest report. the deceased Padmini Devi alias Omana was
aged 47 years. She was found by Karthikeyan Nair PW16, a neighbour and a
resident of Thundiyil House in Ward No.IV, Veliyanad Village at 11.45 p.m. from
the paddy field on the eastern side of his house. As per the inquest report,
Padmini Devi was last seen alive at her residence by her son Aushutosh at 9.15
p.m. on 8.5.1998. As per the inquest report, apart from the dress worn by her
she was wearing a gold chain around her neck of “thara” fashion weighing about
5-1/2 sovereigns, besides 4-5 golden bangles in her left hand and golden
earrings in her ears, when Aushutosh saw her for the last time. The inquest
report further depicts, that blood and water was oozing out from her nostrils on
both sides, and her tongue was protruding out by ½ inch, with the mouth slightly
open. Water weeds were found sticking to her hair. Ears had earrings of “claver”
design. The stomach was found to be slightly bloated. The inquest report
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records, that at a distance of 2 meter 27 cm. of the first foot-step of the kitchen
door, there is a ghat (place leading into water) with three steps. The lower step
of the ghat is immersed in water. At a distance of 50 cms., from the lowest footstep
the water is 75 cms. deep. The spot in the field from where the dead body
of Padmini Devi was recovered, was 29 meters from the lowest foot-step. The
depth of the water at the place from where the dead body was recovered is
stated to be 82 cms. deep (32.28 inches, i.e., about 3 feet). The inquest report
also noted, that ornaments worn around the neck and in the left arm by Padmini
Devi were missing. According to the statement of Aushutosh PW3, his mother
must have gone to the ghat, fallen into the water and somehow died. Yet,
consequent upon the discovery of the missing golden ornaments, those present
at the spot at the time of preparation of the inquest report, expressed doubts
about the death of Padmini Devi. Accordingly, even though at Serial no.XI of the
inquest report, it stands recorded that Padmini Devi alias Omana had died due to
drowning, at Serial no.XVI it was mentioned that since the ornaments worn by
her were missing, the persons present had unanimously raised a doubt about the
cause of her death.
9. The contents of the First Information Report, as also, the Inquest Report
constituted the first factual depiction of an occurrence. These are of utmost
importance. The evidence produced by the prosecution during the course of trial,
will accordingly have to be evaluated along with the aforesaid reports conjointly
to substantiate the credibility of the charges levelled against the accused. During
the course of hearing, some salient facts which constituted the foundation for
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establishing the prosecution version emerged. The first and the foremost in the
sequence of events, is the fact that Padmini Devi is alleged to have gone to the
steps of the ghat after having taken supper, for washing utensils. The second
important feature of the prosecution story is the absence of a gold necklace from
around the neck of Padmini Devi, and six gold bangles worn by her on her left
arm. Gold earrings worn by the deceased Padmini Devi were found intact on her
ears. The third facet is the factum of the state of body of deceased Padmini
Devi. The prosecution version is that Padmini Devi was first smothered and
thereafter drowned. Thereby inferring murder, as against death by accidental
drowning. The fourth component of the prosecution case was the presence of
Madhu-accused no.1 and Sibi-accused no.2 in the vicinity of the place of
occurrence at or around the time of occurrence on the fateful day i.e., on
8.5.1998. The final and the clinching basis for establishing the guilt of the
accused were the confessional statements made by Madhu-accused no.1, i.e.,
the appellant herein, on 13.5.1998 (Exhibit P-10) to P.J. Thomas PW21, Circle
Inspector of Police that he had wrapped six gold bangles belonging to Padmini
Devi, in an old plastic paper, and had hidden them under the earth near the field
on the southern side of his house. He offered that if he was taken to his house,
he could produce the bangles. Likewise, is the confessional statement of Sibiaccused
no.2 (Exhibit P-9) recorded on 13.5.1998 by PJ Thomas PW21, Circle
Inspector of Police, that he had wrapped the gold chain of Padmini Devi, in a
plastic paper, and had kept the same inside a “chadjan leaf” of a coconut tree,
standing on the eastern side of his house. He further stated, that he could show
the coconut tree and produce the chain. Consequent upon the aforesaid
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confessional statements, (Exhibits P-10 and P-9 respectively), the police
recovered the gold chain as also the six gold bangles on 13.5.1998 at the
instance of the accused. These ornaments came to be identified as the necklace
and bangles worn by the deceased Padmini Devi.
10. The evidence produced by the prosecution also falls in different
compartments. One set of witnesses were produced to establish the search
conducted for the recovery of the body of the deceased Padmini Devi on
8.5.1998. The same set of witnesses deposed about the presence of utensils on
the steps of the ghat. The second set of witnesses was produced by the
prosecution to establish the presence of Madhu-accused no.1 and Sibi-accused
no.2, near the place of occurrence, at or around the time of occurrence on the
fateful day i.e., on 8.5.1998. The third set of witnesses deposed about the
recovery of the missing gold ornaments, at the instance of the accused. Besides
the aforesaid three sets of witnesses, the prosecution examined
Dr.Radhakrishnan, Principal, Medical College, Alappuzha as PW20.
Dr.Radhakrishnan had conducted the post mortem examination of the body of
the deceased. The only other witness whose statement was recorded was PJ
Thomas PW21, the then Circle Inspector of Police, whose statement was
recorded to show the course and process of investigation.
11. Since the prosecution endeavoured to establish the crime on the basis of
circumstantial evidence, it shall be necessary for us to record a bird’s eye view of
the statements of witnesses produced by the prosecution.
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First and foremost the prosecution produced Purushothama Kurup as PW1.
Purushothama Kurup, deposed that he had recorded the First Information
Report. He also asserted, that he had called the husband of the deceased
Ayyappa Kurup (PW2) on telephone, to inform him that Padmini Devi was
missing. Purushothama Kurup PW1 also deposed, that on being informed that
Padmini Devi was missing, he had reached the house of the deceased and
participated in her search. PW1 in his cross-examination deposed, that he had
seen utensils, some of which were washed, and some were unwashed, at the
upper step leading to the field, even though it was acknowledged, that he had not
made any statement to the aforesaid effect to the police. Purushothama Kurup
PW1 in his deposition also narrated the fact, that a gold chain of “thara” fashion
weighing about 5-1/2 sovereigns and six gold bangles were missing when the
dead body of Padamini Devi was recovered. In his cross-examination he
affirmed that he had made the aforesaid assertion, on the basis of the statement
made by the deceased’s husband Ayyappa Kurup (PW2), after the dead body of
the deceased was recovered.
The statement of the husband of the deceased Ayyappa Kurup (PW2) recorded
before the Sessions Court reveals, that both the accused Madhu and Sibi were
known to him as they were his neighbours. He affirmed that on 13.5.1998, P.J.
Thomas PW21, Circle Inspector of Police, brought the accused to his residence
at about 6 p.m. The police party showed him six gold bangles, five of which were
hand-cut whereas one was machine made. The police also showed him the
recovered gold necklace. Ayyappa Kurup PW2 identified the recovered gold
ornaments, as the ones which were worn by the deceased Padmini Devi around
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her neck and left arm. PW2 did not depose about the gold earrings worn by the
deceased Padmini Devi, which were found on her ears at the time of recovery of
her dead body. Ayyappa Kurup asserted during the course of his cross
examination, that he had seen the utensils at the ghat, and that, the same had
been taken and restored to the house, and were available at his residence.
Aushutosh, son of the deceased Padmini Devi was examined as PW3. He
asserted, that the accused Madhu and Sibi were known to him. He confirmed
that utensils were found lying on the eastern ghat when the search for his mother
Padmini Devi was carried out. Like his father, he also identified the recovered
ornaments on 13.5.1998, when the police party produced the same along with
the accused at their residence.
Ambily, the daughter of the deceased Padmini Devi deposed as PW4. She
confirmed having spoken to her brother over the telephone, whereupon, her
brother Aushuthosh PW3 who had been sleeping, went out in search of his
mother Padmini Devi, and found her missing. PW4 asserted that she had
reached her parents house, after she had received a call informing her that her
mother was missing. She also asserted that as usual, her mother had gone to
wash utensils at the field. She also deposed that her mother’s gold chain and six
bangles were missing when her dead body was recovered.
Vijayalakshmi was produced by the prosecution as PW5. Vijayalakshmi deposed
that the deceased Padmini Devi, as also, both the accused Madhu and Sibi were
known to her, as they were residing in her neighbourhood. Vijayalakshmi had
joined the search party when Padmini Devi was found missing. In her statement
she deposed that she had gone to the ghat on the fateful day, where she had
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seen two/three utensils. She asserted that the utensils were lying on the steps of
the ghat. She further asserted that some of the utensils were washed while
some were still unwashed. She asserted that the deceased was her aunt, and
that, the golden necklace and the golden bangles worn by her aunt were missing
when her body was recovered. She however acknowledged, that her aunt was
still wearing the golden earrings when her body was recovered.
It would be relevant to indicate here, that all the aforesaid witnesses (PW1 to
PW5) were primarily associated with the search and recovery of the body of
deceased Padmini Devi as also, to support the prosecution version that Padmini
Devi had gone out of the house to wash utensils at the ghat, on the fateful day.
All these witnesses also deposed about the missing gold ornaments, namely, a
gold chain and six gold bangles.
12. The next set of witnesses produced by the prosecution was to establish
the presence of accused Madhu and Sibi close to the scene of occurrence at or
around the time of occurrence on 8.5.1998, as well as, matters associated
therewith.
The first witness produced for the aforesaid purpose was Kamalama PW6.
Kamalama in her deposition asserted, that the accused Madhu and Sibi had
come to her residence at about 8.30 p.m. on 8.5.1998 as it was raining heavily at
that time. She asserted that she had served two plantains each to the accused.
As per the statement of Kamalama PW6, the accused had come to her house to
borrow an umbrella. In her statement she also deposed, that both the accused
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were intoxicated and were smelling of liquor. She stated that the accused left her
house when the rain subsided.
Madhu, a labourer appeared as PW7. Relevant part of the statement of Madhu
PW7 needs to be extracted herein. The same is therefore reproduced
hereunder:
“I swam from the eastern bank of the boat jetty to its northern bank.
It should have been 9.30 p.m. then. I swam by taking out by shirt
and keeping it aloft. A person was seen walking from the Western
side and turning to the North. I identified him as A-2 in the light of
my torch. I asked whether he is Sibi. Saying that he is Sibi, he
walked towards South. While I walked away and reached on the
West of the shutter of Kuttachi’s chira, a person was seen coming
flashing torch-light towards East. On reaching near me, I identified
him as A-1. I asked him whether he was swimming. A-1 told me
that it is so. He also added that he is a little intoxicated and that he
swam and got into the Karumuppathu ghat. A-1 was wearing a kyli
mundu (dhothi). The dhoti was wet. There was a country-boat in
the Karumuppathu ghat. A-1 told me that if I am to proceed to that
jetty, I can cross to the other side. Witness identified both the
accused persons. A-1 proceeded towards East and I went to my
house.”
Besides the aforesaid, Madhu PW7 also deposed about the recovery of gold
ornaments at the instance of accused Madhu and Sibi. He asserted that a
golden necklace was recovered from a palm tree at the instance of Sibi-accused
no.2, from the compound of his residence, whereas, six gold bangles were
recovered from under the earth at the instance of Madhu-accused no.1 from the
compound of his residence. In his cross examination he asserted that the death
of the deceased Padmini Devi was not natural as the gold ornaments worn by
her were missing. It was however clarified by him, that the fact that ornaments
worn by the deceased Padmini Devi were missing came to his notice on account
of an assertion made to the aforesaid effect by Ayyappa Kurup PW2. His
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statement relating to his having seen the accused close to the place of
occurrence on 8.5.1998, emerges from his cross-examination which is being
extracted hereunder:
“When it was found that ornaments were missing, it was suspected
that it should have been a case of murder. I realized that the
ornaments were missing when PW.2 told about it. I did not tell
them that I had seen the accused persons (on 8.5.1998). I was
summoned to appear before the Police Station on 12.5.1998 at
8.00 a.m. A constable came to my house on the 11th and asked me
to come to the Police Station…. I am speaking about this for the
first time in Court. Raju is staying just near my house. I swam
ashore. At that time, it should have been 9.30 p.m. which fact I did
not tell the Police. I had also not told the Police that I had removed
my dress and kept it aloft while swimming.
Q. Are you not speaking about this also for the first time in
Court?
A. Yes.
The person whom I saw first, proceeded to the West and then
turned to the South. I had not stated during the chief-examination
that he turned to the North.”
It is also important to extract herein the cross-examination of Madhu PW7 on his
incidental presence, which led to his having sighted the accused Madhu and Sibi,
close to the place of occurrence:
“To swam ashore some 4/5 minutes are enough. Until I swam
ashore and saw the 2nd accused I did not meet anybody else. I was
walking by flashing the torch-light. When I got down after the
turning, and flashed the torch, I identified the person. The turning is
on the East of the Shutter, which is on the East of Kuttachi Chira,
and on the West of the Narayanan Achari. A-2 came from the West
and turned to the South. I saw him come 15 feet away. I had seen
very clearly. I did not notice the colour of the dress of A-2. He was
wearing a kyli mundu (dhothi), is what I remember. I did not care to
notice whether his dress was wet. I asked him whether he is Sibi.
He was walking.
Q. Did he try to run away?
A. No. He walked speedily.
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I had not told the Police that he had walked speedily. I had not told
the Police how I was able to identify Sibi. There are inmates in the
house of Narayanan Achari. Sibi did not stand there talking to me.
After answering me that he is Sibi, he proceeded towards South.
Within two/three minutes I saw A-1. I saw A-1, some 20 feet on the
West of the shutter. Both had not come there together. One was
proceeding from behind and the other was walking in front. I saw
A-1 some 30 feet away from the place where I saw A-2. My dress
was not wet. I was walking along by wearing dhoti and shirt. A-1
asked me whether I was swimming. I told I was swimming. It
seems that the dhoti worn by A-1 was of blue colour. I had not told
the Police about the colour of that dhoti.”
It would be relevant to mention that Madhu PW7 also deposed the presence of
utensils on the steps of the ghat. In his statement he affirmed, that he had seen
one utensil on the upper step and one utensil on the lower step of the ghat. In
response to cross-examination he stated, that he had not made a statement in
connection with the utensils on the ghat, because he was not questioned in
connection therewith by the police. His presence, at the time of recovery of the
gold ornaments at the instance of accused Madhu and Sibi, is also relevant. The
same is also accordingly being extracted hereunder:
“I went for work on 13th at 7.30 a.m. In the afternoon, I reached my
house at about 2.30 p.m. I had gone back home on coming to
learn that the accused will be brought there around 4.00 p.m. I do
not remember who told me so. A lot of people had gone to the
Jetty. Seeing this, I too proceeded there.
Q. Did the people know that the accused will be brought there
and there will be recovery or seizure of ornaments?
A. I do not know about it.
I had not told the Police that as people were seen proceeding to the
Jetty, I too proceeded there. I had told the Police that I heard it
said by Sibi to the Police that the ornaments are hidden under the
cadjan leaf.”
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Madhu PW7 also deposed that he remained present when the recovery of the
gold necklace was made at the behest of Sibi-accused no.2, and also thereafter,
when the recovery of six gold bangles were made at the behest of Madhuaccused
no.1.
Rajankutty was produced by the prosecution as PW8. He deposed that he was
the Manager of the Toddy Shop from where Madhu-accused no.1 and Sibiaccused
no.2, had purchased one bottle of toddy each at 8.00 p.m. on the fateful
day, i.e., 8.5.1998.
Sasseendran Nair was produced by the prosecution as PW9. He deposed that
he had seen the accused close to the place of occurrence on the fateful day. He
also deposed that he had left the house of Chandrasekhara Kurup PW10 at 9
p.m. on 8.5.1998, when the electricity was restored after the power cut. He
stated that when he reached near the bridge on the western side of the house of
Ayyappa Kurup PW2, he had seen a person ascending the bridge, and then
proceeding to the eastern bank. He had also seen another person following him
and going towards the east. The first person he had noticed was Sibi-accused
no.2, whereas the person who followed Sibi was Madhu-accused no.1. The
cross-examination of PW9, in connection with his having sighted the accused is
significant, relevant extract thereof is accordingly reproduced hereunder:
“I first met Sibi. I saw Sibi standing under the bridge. Each of the
accused persons were seen crossing the bridge from the Western
bank to the Eastern bank. I had told the Police that I saw (these
persons) crossing the bridge from Western bank to the Eastern
bank.
Q. Why is it not been noted by the Police?
A. May be, the Police had not noted it down.
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I have not stated that one person alone was seen getting down to
the Eastern bank. I had not stated that then one person crossed
over the bridge from Western bank and descended on the Eastern
bank. Marked Ext.D-3. They were seen turning towards North.
Q. Did you notice any one standing there?
A. I did not see.
I had told the Police that a person along with another came there
and turned to the North. What I had seen was both the accused
going together towards the North. I had not noted one person
standing there and turning to the North along with another. I had
not told the Police what was the dress worn by the accused
persons or the colour of their dress. I have not told anybody else
about my having met the accused persons there. I am speaking
about it for the first time in Court. I had told the Police about this.
Q. I put it to you that you had not noticed the accused persons
on that day and that due to influence brought to bear upon by
Chandrasekhara Kurup, you are speaking about what you had not
Personally seen?
A. I had only spoken the truth.”
13. The next set of witnesses deposed mainly on the subject of recovery and
identification of the stolen gold ornaments and matters associated therewith.
Chandrasekhara Kurup appeared before the Sessions Court as PW10. The
deceased Padmini Devi was described by him as the wife of his younger brother
Ayyappa Kurup PW2. Chandrasekhara Kurup PW10 deposed about the
presence of utensils lying on the steps of the ghat. He also deposed, that he had
not only participated in the search but had also gathered people to find Padmini
Devi. He asserted that he was present when the dead body of Padmini Devi was
found. He confirmed the presence of earrings on the person of Padmini Devi.
He also deposed about the missing gold chain and gold bangles. He asserted
that he could identify the gold chain, as also, the gold bangles if they were shown
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to him. Accordingly, he identified the gold chain and bangles recovered at the
instance of the accused, during the course of his deposition.
Neelakantan Nair appeared as PW11. His deposition was primarily in respect of
recovery of the gold chain and the golden bangles at the instance of accused
Madhu and Sibi. His presence at the time of recovery of ornaments, as deposed
during the course of his cross-examination, has an important bearing on the
controversy, the same is accordingly being reproduced hereunder:
“On the afternoon of 13th, I learnt that the accused persons have
been apprehended. I learnt it from the people in the locality. I
learnt that the accused persons, who had murdered the teacher,
have been arrested. In the morning itself, it was heard it said that
the accused persons will be brought there for recovering the thondy
articles. I had told the Police that on 13.05.1998 after my lunch at
noon, when I was resting at my house, on coming to know that the
Police are coming with the accused persons, who had murdered
Omana Teacher, and that the stolen gold ornaments will be
recovered, I came to the side of the Boat Jetty, well before 4.00
p.m. A big crowd had assembled at the boat jetty. It was widely
known that the stolen booty of gold ornaments will be recovered.
All those assembled there were knowing about this. The Police
arrived around 4.15 p.m. along with the accused persons. There
were two accused persons. The police took A-2, to A-2 house. I
too followed them. By about 4.20 p.m. we reached the residence of
A-2…. After leaving the residence of A-2, the police along with A-2
boarded the boat. It should have been 5.00 p.m. at that time. They
proceeded from there towards West, to the house of A-1. They
reached A-1’s house, around 5.15 p.m. They got down in front of
the house of A-1 in the boat. I had walked from the house of A-2 to
the residence of A-1. Police and A-1 at first reached the house of
A-1. I heard the Police asking Madhu about the thondy articles. I
have not given a statement to the Police that I had heard about this.
Madhu dug up the spot with his own hands and took out the
packet.”
S. Uthaman appeared as PW12. At the relevant time he was the Village Officer
of Veliyanad Village. He had prepared the site plan of the scene of occurrence
18
on the directions of the Circle Inspector of Police, P.J. Thomas PW21. His
statement is formal and needs no further elaboration.
Gopinathan was produced by the prosecution as PW13. He was produced to
establish the recovery of gold chain at the instance of Sibi-accused no.2. In fact
he was asked to climb the coconut tree pointed out by Sibi-accused no.2. He
brought down the gold chain. His cross-examination on the instant issue is
relevant to determine the validity of the confessional statements made by
accused Madhu and Sibi (vide Exhibits P-10 and P-9 respectively). Relevant
portion from the cross-examination of PW13 is being reproduced hereunder:
“Q. When did you come to know that the accused persons are
coming to recover the gold ornaments?
A. I knew it at 4.45 p.m.
On the 13th May, 1998, while I was sitting at my house, I learnt that
the police party is coming along with accused persons. I had gone
to Kumarangary Boat Jetty, coming to know that the accused
persons are arriving. The police arrived there along with accused
persons after 4.00 in the afternoon. They had come there after I
reached there. A large crowd had gathered at the place. There
was information available by noon that the police party is coming
with the accused persons. I had not noticed the arrival of the Police
with accused persons. I saw A-2 leading with the police party
behind him.”
Ramesh appeared before the Sessions Court as PW14. He was the goldsmith
summoned by the investigating agency to examine the gold ornaments and to
indicate the purity thereof as also the weight of the recovered ornaments. His
deposition being formal needs no further elaboration.
14. The remaining witnesses from PW15 to PW19 made statements on
different aspects of the matters. Some of them were formal witnesses.
19
Chacko appeared before the Sessions Court as PW15. He was associated with
the search of Padmini Devi. He affirmed that on the recovery of the body of
Padmini Devi, Ayyappa Kurup PW2 had asserted that the gold chain around her
neck, and the gold bangles on her left arm were missing. He also deposed, that
he had seen utensils on the eastern ghat at the time of search. For the present
controversy his statement in respect of recovery of gold ornaments for the
purposes of determining the admissibility of the confessional statements made by
accused Madhu and Sibi is relevant. A relevant extract of his statement is
accordingly being reproduced hereunder:
“The accused were arrested at 2.30 p.m. on the 13th, was what I
heard. After reaching the Block Jetty around 4.00 p.m. that day,
the accused were taken by the Police to the house of A-2. There
was a large crowd to witness this. I too went there. After pointing
out the coconut tree standing on the East of A-2’s house, A-2 told
the C.I. that the gold is deposited on the 3rd step. C.I. asked him to
go up and bring the gold. A-2 said that he was unable to do as he
was tired and feeling unwell. C.I. then asked those assembled
there as to who will go up the tree and bring the gold. Gopinathan
brought the ladder which was kept slanting at the house of A-2 and
with the help of the ladder, went up and brought down by the
Western side of the coconut tree, a green plastic packet and
handed it over to C.I. It was seen that he was taking it out from the
3rd step. C.I. took out the gold chain and showed it all. Witness
identified M.O. 1 chain. This itself is the Plastic cover. A goldsmith
appraised the ornament to see whether it is real gold. He also gave
the name of the fashion. He said it is `Kattithara’ fashion. A
mahazar was prepared. I am a witness to the Mahazar. I have
affixed my signature on Ext.P-5.”
The statement of Chacko PW15 reiterates the factual position recorded in the
statements of other witnesses including Gopnathan PW13 and Ramesh PW14.
During the course of their cross-examination they acknowledged that they had
been the part of search team. They confirmed that at the ghat he had seen
20
utensils on the steps. They asserted in their cross-examination, that all the
people in the locality had assembled in the courtyard of the house of Sibiaccused
no.2 before the police arrived, as the police was expected to bring the
accused to effect recovery of the stolen gold ornaments.
Karthikeyan Nair appeared before the Sessions Court as PW16. He was also a
member of the search party associated for finding Padmini Devi. He reiterated
the position in respect of the presence of the utensils at the bathing ghat. He
confirmed that the utensils were still there when the police arrived at the scene.
Sivan was produced by the prosecution as PW17. He and his nephew Saboo
were part of search team. In fact they were summoned to search out Padmini
Devi from the water in the paddy fields. He deposed, that when they found
Padmini Devi from under the water in the paddy fields, she was already dead.
He also deposed, that the gold chain and bangles of Padmini Devi were missing.
In his statement he asserted that he did not know whether when the body of
Padmini Devi was recovered, she had earrings. He also stated, that he had no
information about the loss of any earrings. He acknowledged his presence at the
time of preparation of the inquest report. He denied having noticed utensils at
the ghat. He asserted that the depth of the water at the place from where the
body of Padmini Devi was recovered was about 2-1/2 feet. He clarified that the
depth of the water was upto his waist.
Baby C. George appeared as PW18. He is a formal witness.
Likewise K.D. Sivamony PW19, Sub Inspector of Police was also a formal
witness who deposed in connection with the recording of the First Information
21
Report, and its dispatch to the court of the Sub Divisional Magistrate, as also, the
JFMC.
15. Dr. Radhakrishnan was examined as PW20. He conducted the postmortem
examination on the body of Padmini Devi on 9.5.1998 between 4 and 5
p.m. His deposition was in consonance with the injuries depicted by him in the
post mortem certificate dated 9.5.1998. He described the following injuries on
the body of the deceased:
“INJURIES ANTEMORTEM
1. Contusion with minute superficial laceration on the mucosal
part of lower lip corresponding to the right lateral incisor and canine
teeth.
2. Linear abraded contusion on the whole of the right ear lobe
just in front of the old ear lobule perforation.
3. Linear graze abrasions over an area 7x5 cm on the outer
aspect of left leg its upper border being 13 cms below the knee
placed obliquely outwards and upwards.”
Besides the aforesaid his other findings were recorded as under:
“The soft tissue and cartilages of the neck and the hyoid bone were
intact. The trachea and bronchi contained blood stained froth. A
few particles of fine sand found sticking on to the inner aspect of
trachea. The right and left lung weighed 515 and 485 gms
respectively. Both lungs were congested and edematous and
crepitus and their cut sections exuded copious blood stained frothy
fluid. The valves and chambers of the heart were normal and the
coronary arteries were patent. The stomach was full and contained
1.2 litre softened rice and vegetables in a watery fluid medium
without any peculiar smell. The uterus measured 7.5x6x2.5 cms in
size its os closed and cavity empty. The valva and vagina were
intact. All the other internal organs of the abdomen were normal
but congested. Sheaths of brain and brain matter were intact.
Skeletal system did not show any injury. Blood viscera, vaginal
swab were collected and preserved for laboratory examination.
Diatom test done with the bone marrow and the sample of water
from the alleged site of immersion of the body was negative.
Opinion as to cause of death – Postmortem findings are consistent
22
with death from drowning. This is the postmortem certificate issued
by me which bears my signature and seal. Marked Ext.P7. The
deceased died within a short time after the last meal. There is no
signs of any sexual assault. Finger nails were bluish, shows died
due to lack of oxygen in the blood. Injuries 1 & 2 could be due to
the application of blunt force at that part of the body. Injury
numbers 1 & 2 could be produced due to the attempt of smothering.
Cardio-vascular system appeared normal. Keeping a person
submerged in water forcibly need not produce any injury. Time
required for death may vary. But death can occur within 2 to 3
minutes. There was no smell suggestive of poisoning in the
stomach contents.”
During the course of his cross-examination he asserted that injury nos.1 and 2
depicted by him in his examination-in-chief, could be due to attempted
smothering. Even though he clarified by asserting that injury nos.1 and 2 are
possible if a person falls and during the course of that fall the right side of the
face comes in contact with a rough hard surface. It was also stated by him
during his cross-examination, that all the injuries suffered by the deceased
Padmini Devi, were superficial in nature.
16. P.J. Thomas, Circle Inspector of Police, appeared as PW21 was the last
witness to be examined by the prosecution. He deposed about the course of
investigation carried out by him. His deposition in respect of the arrest of the
Madhu-accused no.1 and Sibi-accused no.2, as also, the confessional
statements made by them is relevant, and is accordingly being reproduced
hereunder:
“On 13.05.1998 at 1.00 p.m. in the afternoon, Madhu (A-1) was
arrested near at the Boat Jetty at Valadi. Same day at 1.30 p.m.
Sibi (A-2) was arrested from near the Toddy shop at Valady. They
were questioned lawfully and their statements were recorded. A-1
and A-2 admitted/confessed about the commission of crime. When
A-2 Sibi was questioned, he said “The (gold) chain I have packed in
an old plastic paper and have kept it hidden at the top of the
23
coconut tree standing on the East of my residential house. If I am
taken there, I shall point out the coconut tree where I had deposited
the chain as well as the gold chain”. Confession statement is
marked as Ext.P9. On questioning A-1, he confessed :”Six bangles
after having packed them in a plastic paper, I have kept hidden
under the soil/ earth on the South of my residential house, adjoining
the field. If I am taken there, I shall take them out and deliver it.”
A-1’s confession statement is marked as Ext.P10…. The
confession statement from the accused persons was recorded in
between 2.00 and 2.30 p.m. The statements were recorded
separately. It was A-1’s statement that was recorded first. It was
recorded then and there. A-2’s confession statement was recorded
at about 2.45 p.m.”
It is significant to notice, that the presence of utensils were not depicted in the
inquest report. In consonance with his inquest report, when questioned about
the presence of utensils at the place of occurrence, PW21 categorically asserted,
that there were no utensils either at the ghat or at the steps to the paddy fields.
On the issue of earrings on the person of the body of the deceased at the time of
preparation of the inquest report his statement is of some interest, and is
accordingly being reproduced hereunder:
“The ear-rings were removed from the ears of the dead body by the
Policemen who were assisting me at the inquest. The thondy
(material) objects seized in a case would be produced before the
Court, the Court will direct those M.Os. to be kept in the Station
after entering them in the Sentry Leaf Book; the ear-rings and
M.O.3 series have not been entered in the Sentry Book.
Q. When were the ear-rings handed back to the relatives?
A. P.W.2 got back the ear-rings on 11.6.1998. He came to the
Station and took them back. Until then these ear-rings were kept
by the Writer to whom they were entrusted.
Q. Are there records to show that they were kept in the Station?
A. No records are there.”
24
The prosecution closed its evidence after recording the statement of P.J. Thomas
(PW21), Circle Inspector of Police.
17. The most significant issue in the present controversy is the veracity of the
confessional statements made by the accused Madhu and Sibi before P.J.
Thomas PW21, Circle Inspector of Police on 13.5.1998. It is evident that the
aforesaid statements were made by the accused before a police officer while the
accused were in custody of the police. Section 25 of the Indian Evidence Act
postulates that a confession made by an accused to a police officer cannot be
proved against him. Additionally, Section 26 of the Indian Evidence Act
stipulates that a confession made by an accused while in police custody cannot
be proved against him. It is evident from the factual position narrated
hereinabove, that the statements made by the accused Madhu and Sibi were
made to a police officer while the accused were in police custody. It is, therefore,
apparent that in terms of the mandate of Sections 25 and 26 of the Indian
Evidence Act, the said statements could not be used against accused Madhu
and Sibi. But then, there is an exception to the rule provided for by Sections 25
and 26 aforesaid, under Section 27 of the Indian Evidence Act. Section 27 of the
Indian Evidence Act is being extracted hereunder:
“27. How much of information received from accused may be
proved – Provided that, when any fact is deposed to as discovered
in consequence of information received from a person accused of
any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.”
As an exception, Section 27 of the Indian Evidence Act provides that a
confessional statement made to a police officer or while an accused is in police
25
custody, can be proved against him, if the same leads to the discovery of an
unknown fact. The rationale of Sections 25 and 26 of the Indian Evidence Act is,
that police may procure a confession by coercion or threat. The exception
postulated under Section 27 of the Indian Evidence Act is applicable only if the
confessional statement leads to the discovery of some new fact. The relevance
under the exception postulated by Section 27 aforesaid, is limited “…as it relates
distinctly to the fact thereby discovered….”. The rationale behind Section 27 of
the Indian Evidence Act is, that the facts in question would have remained
unknown but for the disclosure of the same by the accused. Discovery of facts
itself, therefore, substantiates the truth of the confessional statement. And since
it is truth that a court must endeavour to search, Section 27 aforesaid has been
incorporated as an exception to the mandate contained in Sections 25 and 26 of
the Indian Evidence Act.
18. We shall now endeavour to apply the exception postulated in Section 27
of the Indian Evidence Act, to the facts of the present controversy, in order to
determine whether or not the confessional statements made by Madhu-accused
no.1 vide Exhibit P-10, and Sibi-accused no.2 vide Exhibit P-9, can be proved
against them in view of the exception stipulated in Section 27 of the Indian
Evidence Act. As already noticed hereinabove, relevance of the confessional
statements would depend on the discovery of facts based on the information
supplied by the accused. If any fresh facts have been discovered on the basis of
the confessional statement made by the accused, the same would be relevant. If
not, the confessional statement cannot be proved against the accused, to the
26
detriment of the accused. We have extracted the relevant portion of the
statement of P.J. Thomas PW21, Circle Inspector of Police hereinabove. It
reveals that Madhu-accused no.1 was arrested on 13.5.1998 at 1 p.m. from near
the boat-jetty at Valadi. On the same day, Sibi-accused no.2 was arrested from
near a toddy shop at Valadi at 1.30 p.m. It is thereupon, that the confessional
statements of accused Madhu and Sibi came to be recorded. In his crossexamination
P.J. Thomas PW21 has acknowledged, that the confessional
statements of the accused persons were recorded between 2 and 2.45 p.m. It
was sought to be clarified, that the confessional statement of Madhu-accused
no.1 was recorded first, and thereafter, the confessional statement of Sibiaccused
no.2 came to be recorded. As against aforesaid, we would like to refer
to the statements made by Madhu PW7, Neelakantan Nair PW11, Gopinathan
PW13 and Chacko PW15. Madhu PW7, during the course of his crossexamination,
stated that he had left for his work on 13.5.1998 at 7.30 a.m. He
further stated that he returned back from his work and reached his residence at
2.30 p.m. In so far as his return from work is concerned, in his examination-inchief
he stated that he would ordinarily return back from work only around 9 p.m.
at night. The reason for his return back early on 13.5.1998 was explained by
stating, that he had come to know that the accused would be brought to their
residences at around 4 p.m. for the recovery of the stolen gold articles. He also
asserted, that just like him, a lot of people had gathered at the jetty to witness the
recovery and seizure of the stolen ornaments. The statement of Madhu PW7
clearly establishes that he came to know that the police would effect recovery
well before 2.30 p.m. Therefore, as an exception to his coming home from work
27
late in the night, he had reached his residence at 2.30 p.m. Likewise, the
statement of Neelakantan Nair PW11 reveals, that in the morning itself, on the
date of arrest of the accused i.e., on 13.5.1998 he had heard, that the accused
persons would be brought for recovery of the stolen articles. He further stated,
that a large crowd had gathered to witness the recovery of the stolen articles,
and that, he also witnessed the recovery of stolen articles. He reiterated, that
just like him all those who were assembled there were aware that the police
would bring the accused there for recovery of the stolen articles. Gopinathan
PW13 acknowledged, that there was information available by “noon” that the
police party would come along with the accused to recover the stolen articles. It
is, therefore, that he had gone to witness the recovery of the stolen articles.
Even Chacko PW15 while deposing before the Sessions Court asserted that a
large crowd had gathered to witness the recovery of the stolen articles at the
house of the accused. The statements of PW7, PW11, PW13 and PW15,
narrated (and relevant portions extracted) hereinabove, clearly lead to the
positive conclusion that the fact that the stolen articles would be recovered from
the premises of the accused was known before the accused were brought to the
recovery site. These witnesses, as also the crowd present, were aware of the
said factual position at around “noon” (as per statement of Gopinath PW13) but
definitely before 2.30 p.m. (as per the statement of Madhu-PW7). But according
to PJ Thomas (PW21), the confessional statements were recorded between 2
and 2.45 p.m. The question to be determined is whether the confessional
statements made by the accused (vide Exhibit P-9 and P-10) can be said to have
led to the discovery of an unknown fact? The answer to the aforesaid query has
28
to be in the negative, because the statements of PW7, PW11, PW13 and PW15
reveal that the factual position in respect of the recovery of the articles from the
place from where the same were shown to have been eventually recovered, was
known to the public at large by noon (and certainly before 2.30 p.m.) i.e., well
before the confessional statements had been recorded. As per the deposition of
P.J. Thomas (PW21), Circle Inspector of Police, “… A-2’s confession statement
was recorded at about 2.45 p.m….”. Interestingly, the public had become aware
of the recovery by “noon”, whereas, Madhu-accused no.1 was arrested at 1.00
p.m., and Sibi-accused no.2 was arrested at 1.30 p.m. and their confessional
statements were recorded by the police after their arrest. In the background of
the aforesaid factual position, it is not possible for us to conclude that the
confessional statements made by Madhu-accused no.1 vide Exhibit P-10 and
Sibi-accused no.2 vide Exhibit P-9, can be stated to have resulted in the
discovery of any fresh facts. The factual position that recovery of stolen
ornaments would be made by the police was a matter of common knowledge well
before the confessional statements were made. The said statements recorded
vide Exhibits P-9 and P-10 are inadmissible inspite of the mandate contained in
Section 27 of the Indian Evidence Act for the simple reason, that they cannot be
stated to have resulted in the discovery of some new fact. In the factual
background of the present controversy, the gold ornaments which eventually
came to be recovered by the police, allegedly at the instance of accused, may
well have been planted by the police. On account of the fact that the
confessional statements made by Madhu-accused no.1 and Sibi-accused no.2,
which is the main linking factor in the circumstantial evidence of the prosecution
29
version of the controversy, being inadmissible as the same cannot be proved
against them, we are of the view that the prosecution’s case stands fully
demolished. In view of inadmissibility of evidence which was taken into
consideration by the Trial Court, as well as, the High Court to implicate the
accused with the commission of the offence alleged against them, shall have to
be reconsidered on the basis of the remaining evidence.
19. The second significant conglomerate of evidence to link the accused to
the crime in question, is their alleged presence at or around the place of
occurrence. This evidence emerges from the statements made by PW6 to PW9.
The prosecution, through these witnesses, have endeavoured to demonstrate the
presence of the accused, in the vicinity of the place of occurrence, at around the
time of occurrence. According to the prosecution the occurrence took place on
8.5.1998 at 9.20 p.m. According to the statement of Kamalama PW6, the
accused came to her house and asked for an umbrella as it was raining heavily.
She offered two plantains each to both the accused. The accused left her
residence when the power was restored at 9 p.m., after the power cut. She
further stated that both the accused were smelling of liquor and were under the
influence of liquor. According to PW6, after leaving her house the accused
turned left, i.e., towards the house of the deceased Padmini Devi. The statement
of Kamalama PW6, to our mind, is wholly insignificant to connect the accused
with the crime under reference. Madhu PW7 has given his version of having
seen the accused close to the place of occurrence. But the statement of PW7
which has been extracted hereinabove is so unrealistic, that it is worthy of
30
rejection without recording any reasons. It is strange that Madhu PW7 reached
the embankment by swimming upto it since the last boat had already left. He
calims to have kept his clothes afloat and above the water while he was
swimming through the water. It is, therefore, that his clothes had remained dry.
Even though, in his statement, he asserted that “…I identified him as A-2 in the
light of my torch…”. He subsequently stated that a person was seen coming,
flashing a torchlight towards east, and that, he was identified by Madhu PW7 as
Madhu-accused no.1. As per the said statement, the identification was made on
the basis of the torch held in the hands of Madhu-accused no.1. The aforesaid
contradiction is hard to digest. How PW7 retained the torch in his hand in a dry
condition, while swimming, has not been explained. If he was holding his torch in
one hand and clothes in the other, it is difficult to understand how he swam
across the water. And if the accused himself was carrying the torch, the light
would not fall on his face, and in that situation, the accused could not have been
identified, because by then it was past 9 p.m. These and other such like
discrepancies, when viewed closely, leave no room with us to accept the
credibility of the statement made by Madhu PW7. Rajankutty PW8 was the
manager of Toddy Shop No.86 at Kuttanad. As per the statement of PW8 both
the accused purchased a bottle of toddy each, and after drinking the toddy, they
left the toddy shop. This statement does not establish the presence of accused
at or near the place of occurrence. Even so, it establishes the correctness of the
statement of Kamalama PW6, to the effect that the accused were smelling of
liquor, and were under the influence of liquor. Saseendran Nair PW9 is the only
other witness produced by the prosecution to show the presence of the accused
31
close to the place of occurrence, at or around the time of occurrence, on
8.5.1998. The statement made by Saseendran Nair PW9, during the course of
his deposition before the Sessions Court, in connection with his having seen the
accused near the place of occurrence, had not been disclosed by him even to the
police during the course of investigation. In fact during the course of his crossexamination
he acknowledged “…I have not told anybody-else about my having
met the accused persons there, I am speaking about it for the first time in
court…”. In fact PW9 was working as a labourer in the house of Chandrasekhara
Kurup PW10. Sassendran Nair PW9 had not even disclosed the aforesaid
factual position to his employer Chandrasekhara Kurup PW10, even though he
must have known, that Chandrasekahara Kurup was the elder brother of
Ayyappa Kurup (husband of the deceased Padmini Devi). In this situation it is
difficult to consider the statement of Saseendaran Nair PW9 as credible. In view
of the aforesaid evaluation of the statements of witnesses examined by the
prosecution, to establish the presence of the accused, in close vicinity of the
place of occurrence, there remains no proved connection of the accused with the
accusations levelled against them. Even otherwise, in our view the presence of
the accused close to the residence of Padmini Devi is inconsequential, because
according to the statement of Ayyappa Kurup PW2 (husband of the deceased
Padmini Devi) both the accused Madhu and Sibi were known to him as they were
his neighbours. Surely, presence close to ones own residence cannot be the
basis for drawing an adverse inference. We are therefore satisfied, that the
statements of PW6 to PW9, do not in any manner, further the case of the
prosecution.
32
20. There are other glaring discrepancies as well. A large number of
witnesses, referred to above, including Purushothama Kurup PW1, Aushutosh
PW3, Ambily PW4, Vijayalakshmi PW5, Madhu PW7, Chandrasekhara Kurup
PW10, Gopinathan PW13, Ramesh PW14, Chacko PW15 and Karthikeyan Naik
PW16, deposed, that they had seen utensils lying on the steps of the ghat.
Some of the witnesses had gone further to explain, that some of the utensils
were washed whereas some were still to be washed. Obviously, these
statements were made by the witnesses so as to support the prosecution version
mentioned in the charge-sheet, wherein it was projected that Padmini Devi had
gone out to the steps of the ghat after taking the supper meal, to wash the dirty
utensils. The inquest report (Exhibit P-3), a translated version whereof was
made available for our consideration, does not disclose the presence of any
utensils at the ghat. In conjunction with the aforesaid, it is relevant to notice, that
during the deposition of P.J. Thomas PW21, Circle Inspector of Police, who
carried out the investigation in the case, he categorically asserted (in response to
a pointed question posed to him), that when he reached the ghat there were no
utensils. He further stated, that none of the witnesses told him, that there were
utensils at the ghat or on the steps leading to the paddy fields. The absence of
any evidence supporting the prosecution case depicting the reason for Padmini
Devi to go out of her house at late hours in the night, so as to be found alone by
the accused, reveals the lack of evidence to project the prosecution version
reflected in the charge-sheet. But more than that, is the contradiction in the
statements of PW1, PW3, PW4, PW5, PW7, PW10 and PW13 to PW16 on the
one hand, and the statement of PW21 coupled with the details mentioned in the
33
inquest report on the other. The genesis of the crime should ordinarily emerge
from the inquest report specially when it is in respect of a patent fact. If utensils
were actually at the ghat, the mention thereof could not have been left out
therefrom. This would be so even if the inquest report had been prepared with
half the seriousness required in its preparation. A perusal of the inquest report
reveals that the same was painstakingly recorded, and even minute details have
been recorded therein. It is difficult to state which of the two sides has deposed
correctly and/or which one of them has deposed falsely. All the same, the instant
aspect of the deposition creates a serious doubt about the credibility of the
evidence on the instant factual aspect, irrespective of the significance thereof in
proving the charges.
21. Additionally, the charge-sheet pointedly records that Madhu-accused no.1,
caught hold of the plated hair and neck of Padmini Devi, and Sibi-accused no.2
caught hold of her feet, and forcibly dragged her into the water and suffocated
her thereby cause her death by drowning. This factual position remained
unproved as not a single prosecution witness narrated the said factual position,
so as to establish the manner in which Padmini Devi came to be drowned by the
accused Madhu and Sibi. This issue has been examined from a different
perspective in the next paragraph.
22. It is also essential to properly analyse the statement of Dr.Radhakrishnan
PW20. Dr. Radhakrishnan had expressed in the post mortem certificate dated
9.5.1998, and he had affirmed during the course of his deposition before the
Sessions Court, that the death of Padmini Devi had been caused by drowning.
34
The fact that she had been smothered first and thereafter drowned by the
accused Madhu and Sibi cannot be stated to have been established by the
prosecution. No injury whatsoever was suffered by deceased Padmini Devi
either on her neck or on her feet. Padmini Devi was 47 years old at the time of
occurrence. She would not have easily allowed two drunkards, who were in a
state of intoxication, to carry her away by holding her by her neck and feet as has
been alleged in the charge-sheet. Padmini Devi would have been expected to
fight for her life, consequent upon an assault on her, at the hands of the accused
Madhu and Sibi. Injury nos.1 and 2 referred to by the courts below, so as to infer
smothering, is clearly unacceptable in view of the fact that Dr. Radhakrishnan
PW20, in his cross-examination, clearly asserted, that injury nos.1 and 2 are
possible if a person falls and during the course of that fall the right side of the
face comes in contact with a rough hard surface. Dr. Radhakrishnan PW20 also
stated during his cross-examination, that all the injuries suffered by Padmini Devi
were superficial injuries. In the aforesaid view of the matter, even the medical
evidence produced by the prosecution, does not suitably support the prosecution
story, that the deceased Padmini Devi was, first assaulted by the accused Madhu
and Sibi, and thereafter, drowned. The deceased is alleged to have been
dragged, smothered and forcibly drowned. The instant version of the prosecution
story, is wholly unacceptable, keeping in mind the statement of Dr.Radhakrishna
PW20.
23. The motive for the accused in committing the murder of Padmini Devi is
stated to be theft of her gold ornaments. Madhu-accused no.1 is a labourer, and
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Sibi-accused no.2 is a toddy trapper. If the motive had been theft, so as to
snatch away the jewellery of Padmini Devi, it is difficult to understand why the
accused only took away the golden chain around the neck of the deceased, and
the six bangles on her right arm, and forsake the earrings on the person of the
deceased. It is relevant to mention, that the factum of the earrings found on the
person of the deceased has been explained in a wishy-washy manner. P.J.
Thomas PW21, Circle Inspector of Police, has specifically deposed on the
recovery, retention and return of the earrings to the family of the deceased. The
statement of PW21 reveals a sorry state of affairs in handling the investigation of
the case in hand. According to the statement of PW21, the earrings were
removed from the dead body of Padmini Devi, by one of the policemen who was
assisting him in the preparation of inquest report on 9.5.1998. There is no
documentary record of this. The earrings were then (according to PW21)
retained by the writer at the police station. This again, without maintaining any
record. On 11.6.1998, the said earrings are stated to have been returned to
Ayyappa Kurup PW2, husband of deceased Padmini Devi. It was also deposed
by PW21, that Ayyappa Kurup PW2 had visited the police station to take back
the earrings. Accordingly, the earrings were returned to him. Yet again, without
maintaining any record. Coupled with the conclusion drawn by us in respect of
the gold chain and the six gold bangles, allegedly recovered at the instance of
accused Madhu and Sibi, we are of the view that it may well be, that the
ornaments were never taken away from the person of the deceased Padmini
Devi. This view comes to our mind because if the motive had been theft of gold
ornaments, then all the gold ornaments would have been taken away, most
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certainly the earrings which were openly and clearly visible. The accused were
poor persons, for them the earrings alone would have meant a lot. If nothing
else, the earrings would have balanced (to some extent at least) the spoils in the
hands of the accused. It may well be, that the aforesaid ornaments came to be
planted only with the object of solving the case in hand. This aspect of the
matter also creates a serious doubt in the prosecution case.
24. For the reasons recorded by us hereinabove, we are of the view, that the
evidence produced by the prosecution does not, in any way, establish the guilt of
the accused. The prosecution had endeavoured to prove the allegations levelled
against the accused on the basis of circumstantial evidence. As noticed above,
the mainstay of the prosecution evidence is the recovery of the gold ornaments
belonging to the deceased Padmini Devi at the instance of the accused Madhu
and Sibi. We have concluded that the statements made by the accused Madhu
and Sibi (vide Exhibits P-10 and P-9 respectively) cannot be proved against the
accused, or to their detriment. This by itself removes the most vital link in the
chain of events sought to be established by the prosecution against the accused.
Evidence produced to establish the presence of the accused near the place of
occurrence, at or about the time of the commission of the crime has also been
found to be irrelevant. This because, the accused were in any case neighbours
of the deceased Padmini Devi. We have also found, that the theft of the golden
ornaments worn by the deceased Padmini Devi was also doubtful. The
explanation tendered by the prosecution of the earrings worn by the deceased
Padmini Devi when her body was recovered, is also far from satisfactory. From
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the statement of Dr.Radhakrishnan PW20, and the surrounding facts, it cannot
be positively inferred that the deceased Padmini Devi was first smothered and
then drowned as has been alleged by the prosecution. We have also found
serious contradictions in the deposition of the prosecution witnesses. The
prosecution has failed to establish an unbroken chain of events lending to the
determination, that the inference being drawn from the evidence is the only
inescapable conclusion. In fact in our view the prosecution has not been able to
connect the accused with the alleged crime in any manner whatsoever.
25. For all the reasons recorded by us hereinabove, the appellantaccused/
Madhu, is liable to be acquitted of the charges levelled against him.
Ordered accordingly. He be released forthwith, unless he is required to continue
in detention in some other case.
26. Resultantly, the instant appeal is allowed and the judgments rendered by
the Trial Court, as also, by the High Court convicting the appellant-accused/
Madhu are hereby set aside.
27. During the course of the deliberations recorded by us hereinabove, we
have dealt with the evidence projected against appellant-accused/Madhu. From
our determination it emerged, that the evidence to establish the charges against
his co-accused Sibi was on the same lines. In fact Sibi-accused no.2 was
accused of the allegations for exactly the same reasons, as have weighed with
the courts below against the appellant-accused Madhu. He was also convicted
for the same reasons. We are of the view that if Sibi-accused no.2 had preferred
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an appeal, the result would have been exactly the same, as it has been in the
present appeal, in respect of the appellant-accused/Madhu. But, is it open for us,
to extend the benefit of acquittal, determined by us in case of the accusedappellant/
Madhu to Sibi-accused no.2 also? In so far as the instant aspect of the
matter is concerned, reference may be made to the judgment rendered by this
Court in Gurucharan Kumar & Anr. vs. State of Rajasthan, (2003) 2 SCC 698,
wherein this Court had observed as under:
“32. As noticed earlier the accused Pravin Kumar, husband of the
deceased Geetu has not preferred an appeal before this Court, on
account of the fact that he has already served out the sentence
imposed against him. However, though we cannot obliterate the
sufferings of Pravin Kumar, we can certainly obliterate the stigma
that attaches to him on account of his conviction for a heinous
offence under Section 304B IPC. This Court has laid down a
judicious principle that even in a case where one of the accused
has not preferred an appeal, or even if his special leave petition is
dismissed, in case relief is granted to the remaining accused and
the case of the accused who has either not appealed or whose
special leave petition has been dismissed, stands on the same
footing, he should not be denied the benefit which is extended to
the other accused. This has been held in Harbans Singh vs. State
of U.P. [(1982) 2 SCC 101], Raja Ram v. State of M.P. [(1994) 2
SCC 568], Dandu Lakshmi Reddy v. State of A.P. [(1999) 7 SCC
69] and Akhil ali Jehangir Ali Sayyed v. State of Maharashtra
[(2003) 2 SCC 708].”
Reference may also be made to the decision rendered by this Court in Pawan
Kumar v. State of Haryana, (2003) 11 SCC 241, wherein this Court has held as
under:
“Apart from the salutary powers exercisable by this Court under
Article 142 of the Constitution for doing complete justice to the
parties, the powers under Article 136 of the Constitution can be
exercised by it in favour of a party even suo motu when the Court is
satisfied that compelling grounds for its exercise exist but it should
39
be used very sparingly with caution and circumspection inasmuch
as only the rarest of rare cases. One of such grounds may be, as it
exists like in the present case, where this Court while considering
appeal of one of the accused comes to the conclusion that
conviction of appealing as well as non-appealing accused both was
unwarranted. Upon the aforesaid conclusion arrived at by the Apex
Court of the land, further detention of the non-appealing accused,
by virtue of the judgment rendered by the High Court upholding his
conviction, being without any authority of law, infringes upon the
right to personal liberty guaranteed to the citizen as enshrined
under Article 21 of the Constitution. In our view, in cases akin to
the present one, where there is either a flagrant violation of
mandatory provision of any statute or any provision of the
Constitution, it is not that this Court has a discretion to exercise its
suo motu power but a duty is enjoined upon it to exercise the same
by setting right the illegality in the judgment of the High Court as it
is well settled that illegality should not be allowed to be perpetuated
and failure by this Court to interfere with the same would amount to
allowing the illegality to be perpetuated. In view of the foregoing
discussion, we are of the opinion that accused Balwinder Singh
alias Binder is also entitled to be extended the same benefit which
we are granting in favour of the appellant.”
In view of the ratio laid down in the two cases referred to above, we are satisfied,
that to do complete justice, it would be just and appropriate to extend the same
benefit as has been extended to the appellant-accused/Madhu, also to Sibiaccused
no.2. Therefore, for exactly the same reasons as have weighed with us
in the instant appeal, to determine the acquittal of the appellant-accused/Madhu,
we hereby order the acquittal of Sibi-accused no.2 as well, even though he has
not preferred an appeal so as to assail the impugned judgment whereby he
stands convicted.
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28. For the reasons recorded hereinabove, even Sibi-accused no.2 is hereby
acquitted. He be released forthwith, unless he is required to continue in detention
in some other case.
…………………………….J.
(Asok Kumar Ganguly)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 13, 2012.