“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 829 OF 2008

Pannayar            ….  Appellant

Versus

State of T. Nadu  By Inspector of Police             …. Respondent

    J U D G M E N T

V.S. SIRPURKAR, J.

1. Appellant  herein  challenges  his  conviction  for  the  offence  under  

Sections  302  and  392  read  with  Section  397  of  Indian  Penal  Code  

(hereinafter called “IPC” for short) by the Trial Court and its confirmation by  

the Appellate Court.  The prosecution case, in brief, is as follows.

2. The  Appellant  Pannayar  was  charged  with  the  aforementioned  

offences  on  the  allegation  that  on  the  night  between  18.1.1995  and  

19.1.1995, he committed the murder of one Thilagavalli  (deceased) and  

also committed theft of the gold ornaments worn by her.  The prosecution  

examined as many as 13 witnesses and relied on 22 documents and also  

pointed out the 15 material objects.  Thilagavalli was married to Subbiah  

Naicker (PW-1).  She was a working woman in the mid-day meal scheme.  

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They used to live in Village Keelamarikadu in Tamil Nadu.  On the fateful  

day, she told her husband at about 8.30 p.m. that she would be going out  

for  attending  the  nature’s  call  towards  south  side  of  the  Village.   The  

prosecution alleged that normally, the villagers went near the pond called  

Kanmai (local tank).  When she did not return till 9’O clock, he (Subbiah)  

started her search alongwith his son.  However, they did not go till the end  

of Kanmai.  They made the search throughout the night, but to no effect.  

In the morning, one Ponnuthai, who had gone to attend the call of nature,  

informed the son of the deceased that Thilagavalli was lying on the west  

side of Kanmai.  Therefore, they went there at about 6.30 a.m. only to find  

that Thilagavalli was lying dead there.  She was no more and had suffered  

injuries on her head, forehead, as also on the left side of the mouth.  She  

did not have on her body,  the ornaments, namely,  gold chain weighing  

three sovereign, her bowl type thali and also the ear studs, worth about  

Rs.10,000/-  to  Rs.12,000/-.   Subbiah  (PW-1),  therefore,  contacted  one  

Raja,  the  Village  Administrative  Officer  of  his  village  and  lodged  a  

complaint with him.  Both of them then went and lodged a report in the  

Police Station almost immediately.  In that, he narrated the whole story  

including the details of the lost ornaments.  He referred to a “pair of ear  

studs” as missing.  On the basis of this, investigation started.  The body  

was sent for post-mortem, wherein it was established that the deceased  

had suffered anti-mortem injuries.  On the next day, her funeral took place  

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in the same village, which was allegedly attended by the accused also.  

The  relatives  also  attended  the  said  funeral  including  Thiru  Alwarsamy  

(PW-4).   Ultimately,  on the basis of  this investigation, the accused was  

arrested after 12 days in the dispensary of one Doctor Anandraj, examined  

as PW-7.  It was found that the accused had suffered some injuries, which  

were grievous injuries, being fractures.  He had suffered the fracture on  

lower 3rd right tibia, middle 3rd left ulna and oblique fracture lower 3rd right  

tibia.  He was also medically examined.  The prosecution claims that at the  

time  he  was  arrested,  the  accused  produced  the  aforementioned  

ornaments including the gold chain and the thali,  and conveyed that he  

had sold one ear stud to Shankar (PW-6), who ran a jewellery shop in  

Kovilpatti.  The investigating team went to the said shop and seized “one  

pair of ear studs”.  At the time when the accused was arrested, his clothes  

were also seized, which were blood stained and one lathi and one aruval  

(a  sharp weapon)  were  also seized on the information  supplied by the  

accused.  On this basis, the prosecution filed the chargesheet and sought  

for the conviction of the accused.

3. Since the accused abjured his guilt, he was tried by the Additional  

District  and  Sessions  Judge  cum  Chief  Judicial  Magistrate,  Kamarajar  

District,  Srivilliputhur, who accepted the prosecution story based entirely  

on the circumstantial evidence.  The High Court confirmed the verdict of  

conviction and the sentence, necessitating the present appeal.

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4. The Learned Counsel, appearing on behalf of the appellant mainly  

contended  that  the  whole  prosecution  story  depended  upon  the  

circumstantial evidence.  The basic circumstances appearing against the  

accused, according to the Learned Counsel, as found by the Trial and the  

Appellate Court were:-

(i) the evidence of Thiru Alwarsamy (PW-4) to the effect that he  

had  seen the  accused following  Thilagavalli  in  the  evening  

when she was going for answering the call of nature;

(ii) the  recovery  of  ornaments  worn  by  Thilagavalli  before  her  

death.   In  that,  when  the  accused  was  arrested,  he  had  

produced the gold chain and the thali bowl, whereas he had  

agreed to discover the ear stud which he had sold in the shop  

of Shankar (PW-6);

(iii) the  blood  stained  clothes  of  the  accused,  which  were  

ultimately proved to be smeared with the human blood.

(iv) the non-explanation by the accused of the injuries suffered by  

him.

The Trial Court, as well as, the Appellate Court have accepted these  

circumstances and have come to the conclusion that since the accused is  

found to be in possession of the ornaments worn by the deceased, he was  

not only guilty of theft, but also murdering her, relying on Section 114 of  

the Indian Evidence Act.  The Appellate Court has also more or the less  

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accepted all these circumstances and without culling them out in detail in  

the judgment.

5. The Learned Counsel  for  the appellant  urged that  none of  these  

circumstances could be held to have been proved against  the accused  

persons and, therefore, the accused was entitled for acquittal.

6. As  against  this,  Shri  V.  Kanagaraj,  Learned  Senior  Counsel,  

appearing for the State of Tamil Nadu supported the judgment and pointed  

out that these circumstances ordinarily were enough not only to hold the  

accused  guilty  of  robbing  Thilagavalli  of  her  ornaments,  but  also  

committing her murder, which was done in the same transaction.

7. We would take up the first circumstance.  The witness Alwarsamy  

(PW-4),  in  his  evidence,  very  clearly  admitted  that  he  was  not  on  the  

talking terms with Thilagavalli, who was none else, but his own sister.  At  

the time when he saw the accused, he (Alwarsamy) was accompanying his  

real elder brother, namely Ramasubbu.  The prosecution did not bother to  

examine Ramasubbu,  though his  statement  was  also recorded.   It  has  

come in the cross-examination of this witness that he attended the funeral,  

though he was on cross terms with the family of the deceased and during  

the whole funeral, the accused was actually present.  What surprises us is  

that inspite of this, this witness did not say anything either to Subbiah (PW-

1), the husband of Thilagavalli or even to the Police and his statement was  

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not recorded for good long three days.  Now, if the witness had seen the  

accused following Thilagavalli and he also knew about the violent death of  

Thilagavalli, and had seen the accused at the funeral, one wonders as to  

why the witness kept quiet without telling it to anybody.  As if this is not  

sufficient, Krishnasamy (PW-13), the Investigating Officer was specifically  

asked the question as to why these witnesses, namely Alwarsamy (PW-4),  

one  Perumalsamy  and  Ramasubbu  were  not  examined  by  him.   The  

Investigating Officer has admitted that he could not give any reason for not  

examining any of these witnesses on the same day.  He also claimed that  

the  Investigating  agency  had  suspected  the  accused  only  after  the  

examination  of  Alwarsamy  (PW-4)  and  Ramasubbu.   It  is  an  admitted  

position  that  the  statement  of  these  witnesses  were  not  recorded  till  

21.1.1995.   It  was  obvious,  therefore,  that  the  delay  in  recording  the  

statement  of  these  witnesses  and  the  stony  silence  maintained  by  

Alwarsamy (PW-4) would make him an extremely unreliable witness.  In  

our opinion, the Trial, as well as, the Appellate Court have not given the  

due weight to this weighty circumstance.  The Appellate Court has almost  

apologetically observed that the prosecution would have done better by  

examining Alwarsamy (PW-4) without any waste of time.  However,  the  

Appellate Court chose to accept his evidence.  Unfortunately, the Appellate  

Court has not even applied its mind to the circumstance that according to  

this  witness,  the  accused  was  present  in  the  funeral.   That  crucial  

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circumstance seems to  have been escaped the notice of  the Appellate  

Court.   Ordinarily,  we  would  not  discuss  the  evidence in  our  appellate  

jurisdiction, however, when it is found that the crucial circumstances have  

escaped the notice of the Appellate Court and/or the Trial Court, this Court  

would consider the evidence lest any injustice is caused.  In our opinion,  

the evidence of Alwarsamy (PW-4) should not have been believed.  This  

takes care of the first circumstance.   

8. The  second  circumstance  is  of  course,  the  recovery  of  the  

ornaments  from the  accused.   In  this  behalf,  we  must  go  back  to  the  

evidence  of  Subbiah  (PW-1),  who  in  his  First  Information  Report,  had  

mentioned that both the ear studs of Thilagavalli  were missing from her  

body.   We have seen the original  First  Information Report  (FIR) where  

there  is  a  clear  reference  to  a  “pair  of  ear  studs”.   When we  see his  

evidence, there also Subbiah (PW-1) spoke about both the ear studs not  

being available on her person.  It  is the prosecution story that after his  

arrest, the accused confessed that he had sold one ear stud in the shop of  

Shankar (PW-6), meaning thereby, as if he had removed only one ear stud  

and the remaining ear stud remained with the dead body.  When we see  

the Inquest Panchanama (Exhibit P-20), it is apparent that there was one  

ear stud on the body of the deceased.  Therefore, this gives a shattering  

blow,  firstly  to  the  evidence  of  Subbiah  (PW-1)  and  secondly,  to  the  

credibility of the investigating agency.  As if this is not sufficient, when the  

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accused was arrested about 12 days after the incident on 1.2.1995, he is  

said  to have confessed that  he had sold  ‘one’  ear  stud in  the shop of  

Shankar (PW-6).  When we see the evidence of Shankar (PW-6), it comes  

out that the witness said that the accused had come to sell an ear stud, but  

he had refused to buy, as it was only one piece of ear stud out of the pair  

that accused had offered to sell.  He, therefore, says that he gave one pair  

of ear stud to the investigating agency, which pair ultimately has come up  

before the Court as Material Object (M.O.) 7.  This gives a shattering blow  

to the very credibility of the investigating agency, as obviously the pair of  

ear studs seems to have been seized from the shop of Shankar (PW-6),  

when the case of the prosecution was that the accused had sold only one  

ear  stud,  the  other  stud  having  remained  with  the  dead  body  of  

Thilagavalli.  In his cross examination by prosecution, Shankar (PW-6) was  

made to say that when the accused came, he had brought one chain and  

that he would buy the said chain, as it was his business only to sell the  

ornaments and not to buy the same.  The witness also, very significantly,  

identified the chain being M.O. 5.  In his cross examination by the defence,  

he candidly admitted that M.O. 7 series was ‘his’ property and that there  

were number of chains like M.O. 5 Chain, which is a common ornament.  

He also owned up that he could not give any specification of the chain, as  

there could be so many wheat  design chains like the concerned chain.  

The  other  witness,  on  the  discovery,  has  not  been  examined.   It  is,  

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therefore, obvious that the theory of the accused having stolen one of the  

ear studs of Thilagavalli and then his having sold it in the shop of Shankar  

(PW-6),  is  a  myth  and  we  are  also  amazed  with  the  attempt  of  the  

investigating agency to replace a pair  of  ear  studs in  place of  the one  

concerned ear stud.  In fact, in his examination-in-chief, Shankar (PW-6)  

says that  he was  called to the Police Station and since that  was  peak  

hours, he gave one pair of ear stud.  He also identified to the same and  

there is no question put on the subject of the ear studs at the instance of  

the prosecution.  It is, therefore, obvious that the theory of the immediate  

possession of the ornaments of Thilagavalli, at least insofar as it relates to  

the ear studs, must fall down. The investigating agency has not been fair in  

presenting the pair of ear studs as if those ear studs were recovered from  

the accused.

9. This takes us to the other two ornaments, namely, gold chain and  

the thali bowl weighing three sovereign.  They are M.Os. 5 and 6.  As the  

prosecution  story  goes,  those  ornaments  were  given  by  the  accused  

immediately  on  his  arrest  near  the  dispensary of  Dr.  Anandraj  (PW-7).  

PW-7 has been examined.  He does not support either the event of arrest  

or the recovery of gold ornaments from the accused.  The material witness  

is PW-5 Damodaran.  His evidence also does not inspire any confidence.  

On his arrest, the accused took out M.Os. 5 and 6.  In the absence of any  

positive evidence that the accused was in fact arrested in the dispensary of  

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Dr.  Anandraj  (PW-7),  we do not  think that  the story of  such accidental  

recovery from the accused is worth believing.  It is to be noted that the  

accused was arrested in this case after 12 days of the incident.  It will be  

unreasonable to believe that the accused would be moving alongwith the  

ornaments all the time and he would take them to the Doctor, where he  

had gone for treatment.  On this backdrop, when we see the evidence of  

Krishnasamy (PW-13),  he claims that  arrest  was  made on 1.2.1995 on  

receipt of information, in front of Alangulam Anandraj Hospital in presence  

of Muthuraj  and Damodaran.  Very significantly,  there is no arrest  card  

prepared by the investigating agency, though it is a common practice in  

Tamil  Nadu  to  prepare  such  a  card.   In  the  absence  of  any  

contemporaneous evidence, we do not think it will  be possible for us to  

hold that the ornaments were found on the person of the accused and he  

gave  away  those  ornaments  with  a  confessional  statement.   We have  

already disbelieved the so-called story of the discovery of a stud at the  

instance of the accused.  Under the circumstances, we do not feel safe to  

accept the story put forward by the prosecution in respect of the recovery  

of  these  ornaments  from  the  accused.   The  investigating  officer  

Krishnasamy (PW-13), in his evidence, stated that thereafter at about 9  

a.m.,  he  seized  the  stick  (lathi)  and  aruval  in  the  presence  of  same  

witnesses.  Very significantly, that aruval was never sent for ascertaining  

as to whether it had any blood on it and on lathi, there was no blood found.  

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Therefore, that is also a most insignificant circumstance.

10. As if all this is not sufficient, when we again go back to the evidence  

of Subbiah (PW-1), in his examination-in-chief, he did not even distantly  

whisper about the identification of  the said ornaments nor did he claim  

specifically regarding any identifying marks of the said ornaments.   The  

public  prosecutor,  who  conducted  this  matter,  had  probably  totally  

forgotten to get the ornaments identified at least by Subbiah (PW-1) in his  

examination-in-chief.  Very significantly, after his cross examination was  

over, it was in his re-examination that for the first time, the subject of his  

wife’s clothes and jewels worn by her was broached and he then went on  

to  identify  M.O.  1  the  Saree  worn  by  her,  M.O.  2  her  yellow  colour  

petticoat, M.O. 3 her blue colour blouse, M.O. 4 thali rope, M.O. 5 wheat  

design  gold  chain  of  three  sovereign  and  M.O.  6  thali  bowl.   Very  

significantly, he also identified the ear studs, which were M.O. 7 series, in  

respect  of  which  it  is  a  concluded  position  that  those  ear  studs  never  

belonged to his wife and were in fact given away by Shankar (PW-6).  In  

his cross examination, he admitted that the chain was made out of the old  

jewelleries and he could not remember the date, on which the chain was  

made.  This slip-shod evidence, therefore, is very hopelessly insufficient in  

establishing the fact that the so-called ornaments belonged to and were on  

the person of Thilagavalli.  We do not know what was the public prosecutor  

doing at the time of the examination-in-chief and why he did not confront  

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the witness on these ornaments.   We do not know as to how the Trial  

Court permitted these questions in re-examination.  The purpose of the re-

examination is only to get the clarifications of some doubts created in the  

cross examination.  One cannot supplement the examination-in-chief by  

way of a re-examination and for the first time, start introducing totally new  

facts, which have no concern with the cross examination.  The Trial Court  

has obviously faulted in allowing such a re-examination.  Be that as it may,  

even  if  we  accept  that  the  Trial  Court  was  justified  in  allowing  the  re-

examination, the evidentiary value of the contents of the re-examination, in  

our firm opinion, is nil.

11. This takes us again to the apathy on the part of the Investigating  

Officer  in  not  getting  the  ornaments  identified  by  holding  a  Test  

Identification Parade.  We do not know why that was not done and why  

such a weak type of evidence (identification for the first time in the Court)  

was  introduced.   Therefore,  in  our  opinion,  alongwith  the  first  

circumstance, second and third circumstance also loses all its significance  

and it cannot be said that the accused was in possession of the ornaments  

of Thilagavalli immediately after her death.

12. As  regards  the  fourth  circumstance,  we  think  that  it  was  for  

prosecution  to  explain  the  fracture  suffered  by  the  deceased.   Even  

otherwise that circumstance is extremely insignificant.

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13. It  has also come in evidence of Subbiah that the accused was a  

known person to his family members.  One wonders as to why would the  

accused whom the deceased knew would venture to rob her.  Motive of  

robbery does not seem to be present in the present case.  The absence of  

motive  in  a  case  which  depended  on  circumstantial  evidence  is  more  

favourable to the defence.

14. Shri  V. Kanagaraj, Learned Senior Counsel for the State of Tamil  

Nadu  tried  to  draw some support  from the  fact  that  the  jacket  on  the  

person of the accused was said to have had human blood.  In our opinion,  

this circumstance is insignificant, particularly because the blood group is  

not tested upon and secondly, it is actually absurd thing that the accused  

would keep on wearing the same blood stained clothes for 12 days.  In  

short, we are of the clear opinion that both the Courts below have erred in  

convicting the accused of the offences under Sections 302 and 392 read  

with Section 397 of IPC.  We, therefore, allow this appeal, set aside both  

the judgments of the Trial Court and the Appellate Court and direct the  

acquittal of the accused of all the offences.  The accused shall be released  

forthwith unless required in any other case.

.………………………..J. [V.S. SIRPURKAR]

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………………………..J. [DEEPAK VERMA]

NEW DELHI August 17, 2009.

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