RATHINAM @ RATHINAN v.

STATE OF TAMIL NADU AND ANR. (Criminal Appeal Nos. 905-906 of 2007 Etc.)

OCTOBER 6, 2009

[HARJIT SINGH BEDI AND R. M. LODHA, JJ.]

2010(11) SCR 871

The following order of the Court was delivered

O R D E R

By this judgment we propose to dispose of Criminal Appeal  

nos. 905-906 of 2007. The facts have been taken from Criminal  

Appeal no. 905 of 2007. They are as under:

1.  Accused  no.1,  Rathinam  is  the  son  of  the  owner  of  

Sundaram Textiles  Waste Cotton Mill,  Madam Sundarammal,  

situated  at  Erumal  Thottam,  Chinnavedampatti.  Ten  persons  

were employed in the mill working in three shifts – the day shift  

from 7.00 a.m. to 4.00 p.m., the half night shift from 4.00 p.m. to  

midnight and the night shift from midnight to 7.00 a.m. on the  

next day. The deceased Chitra, PW 4 Ravi, PW 5 Andy, PW 6  

Palanisamy,  PW  14  Aruchami  and  a  few  other  ladies  were  

working in the mill as well. On 22nd December 1995 accused  

no.4 Sundaram, his wife Kalamani and one Sivakami attended  

the day shift which was over by 3.30 p.m. whereafter PW’s Ravi  

and  Andy  and  some  lady  workers  including  Vadivu,  Vijaya,  

Poongodi and Yasotha were to attend the half night shift from  

4.00 p.m. to midnight. Of the four ladies referred to above, the  

first three were working in the Spinning Section of the mill. PW  

Ravi also reached the mill for his duty and while he was working  

on his machine in the Cording Section he was asked by Madam  

Sundarammal to look after the work as she was unwell and was  

leaving for  the hospital  alongwith  her  brother.  It  appears that  

there was an electricity breakdown between 6.13 p.m. and 7.19

p.m.  and  as  several  guests  also  came  visiting,  Madam  

Sundarammal did not go the hospital. PW Ravi also told her that  

he was going to buy coconuts and fruit for the pooja, as it was a  

Friday, and he was directed by her to get a packet of gold filter  

cigarettes for Rathinam as well. Ravi thereafter left for the shop  

belonging to PW7 and as he came to the spinning section of the  

mill, he met the deceased who was to work the night shift and  told her that he was going out to buy coconuts and cigarettes.  

Ravi  returned  with  the  aforesaid  articles  and  handed  them  

alongwith the balance change to Madam Sundarammal. As he  

was entering the spinning section he noticed that a tiffin box and  

a bag belonging to the deceased were lying at the entrance and  

also heard her voice from inside the premises and accused no.2  

Dhanusu coming out from the building. Ravi thereupon enquired  

from Dhanusu as to what was happening on which he made a  

vague reply and advised him to go to his own section and to see  

that  nobody  came  in  that  direction.  Ravi  went  outside  but  

returned after a short  while as he was overtaken by curiosity  

and again entered the spinning section through a side gate and  

found Dhanusu standing near the wall and Rathinam pushing  

the deceased on to the floor and saying that she should not be  

afraid and not to worry as he was with her. On seeing all this  

Ravi  returned to his own department but  was soon called by  

Dhanusu and asked to assist in carrying the deceased to the  

bed room as she had become unconscious. He was later told  

that she was dead and was also threatened that if he revealed  

the facts to anybody,  he would face dire consequences. Ravi  

was thereafter asked to get liquor, which he obtained from M.R.  

Wines and after consuming the same, accused nos. 1, 2, 3 and  

4  asked  Ravi  to  wait  near  the  spinning  room whereafter  the  

body  was  carried  outside  towards  the  road  leading  to  

Chinnavedampatty.  Ravi  was,  however,  advised  to  go  inside  

and work on his machine. It also appears that PW Andy who  

was  working  in  the  mill  at  about  8.15  p.m.  had  also  seen  

accused nos. 1, 2 and 4 carrying the body towards the road. He,

however,  continued to work on his machine and after  having  

completed  his  allotted  work,  and  after  taking  Madam  

Sundarammal’s  permission,  left  for  his  residence.  In  the  

meanwhile  accused  no.5  Krishnan  also  reached  the  mill  

premises at about 11.30 p.m. and saw that accused nos. 1, 2  

and 4 had returned to the mill. PW 11 Palanisamy too reached  

the mill premises at about 11.55 p.m. whereupon Ravi left for  

his residence and after having watched TV for sometime, went  

to sleep. The next morning, Bakyam PW 1, the mother of the  

deceased,  alarmed  at  the  fact  that  her  daughter  had  not  

returned  home,  came  to  the  mill  and  asked  Madam  

Sundarammal, as to the whereabouts of her daughter. She was  

told that she had not come to work the previous day. Alarmed  

yet  further, Bakyam PW 1 set out to look for her and in that  

process found a watch, a 10 paisa coin, one ear ring and one  

hair  pin  near  the  well  and  on  looking  inside,  she  saw  her  

daughter’s body lying there. PW 1 also identified the watch that  

she had picked up, as belonging to Madam Sundarammal on  

which  she  confronted  her  with  the  fact  whereafter  Madam  

Sundarammal  threatened her and did not  permit  her  to even  

make a phone call. PW 1 thereafter left the mill premises and  

while on the way out met Ravi PW and enquired from him as to  

the  deceased’s  whereabouts.  Ravi,  in  reply,  told  her  that  he  

would tell her the story the next day. She also met Aruchamy  

PW 14 who took her to the house of  one K. Vellingiri  of the  

Communist  Party  of  India  whereafter  PW  14  conveyed  the  

information  about  the  murder  to  the  police  on  phone.  On  

receiving  the  information,  Sub-Inspector  Saraswathy  PW  56  

alongwith a police party reached the factory premises and the  

well and recorded the statement of PW 1 on which an FIR was  

duly registered. The investigation into the murder was thereafter  

handed over to Inspector Anbazhagan on the directions of the  

Assistant Commissioner of Police, Selvraj.  The Inspector also  

reached the scene of occurrence at about 6.30 p.m. and met  

PW  1  and  the  other  relatives  of  the  deceased,  Madam

Sundarammal, Andy PW and several others and also enquired  

about the whereabouts of Ravi PW. The dead body was also  

taken  out  of  the  well  and  was  sent  for  the  post-mortem  

examination which was duly conducted by Dr. Ramalingam PW  

60 who found several injuries thereon including a ligature mark  on both sides of the neck and a large number of other injuries  

including injuries on the genital organs. A finger print expert was  

also summoned who lifted some prints from the tiffin box and  

found that they matched the finger prints of Sundaram accused  

no.4.  Sundaram  aforesaid  also  made  an  extra  judicial  

confession  before  Ruthramoorthy  PW  24  which  was  duly  

recorded. PW 1 however made her independent inquiries and  

received  information  that  the  rape  and  murder  had  been  

committed only by Rathinam, A-1 and that Sundaram, A-4 was  

innocent. The Communist Party of India also took up the matter  

with the Chief Minister and other senior officials and an enquiry  

by the  CBCID was ordered  which was  carried  out  by  senior  

officers  including  Inspector  Pichai. A  report  was  thereafter  forwarded  to  the  Commissioner  of  Police  by  the  Assistant  

Commissioner  of  Police  Selvraj  that  the  allegations  made by  

PW 1 with respect to Rathinam were unfounded and that the  

culprit was indeed Sundaram. PW 1 nevertheless persisted in  

her  efforts  and  compelled  the  prosecution  to  make  an  

application  for  further  investigation  and after  an  order  by the  

Court,  the  further  investigation  was  duly  taken up  by PW-66  

Inspector  Samuthrakani.  This  officer  again  recorded  the  

statements  of  all  the  witnesses  referred  to  above  and  also  

several  other  witnesses  in  addition  and  also  had  their  

statements recorded under Section 164 of the Crl.P.C. A charge  

sheet  was  thereafter  filed  against  Rathinam  and  5  others  

including Sundaram aforesaid. They were duly brought to trial  

and  whereas  Rathinam was charged for  offences  punishable  

under Sections 376 and 302 read with Sections 120B and 201  

of the IPC, the others were charged under Section 120B and  

201 of the IPC.

2.  The  Trial  Court  examined  the  matter  very  

comprehensively and observed that two reports had been filed  

by the investigating agencies which were at variance with each  

other in as much that the first final report attributed the rape and  

murder  to  Sundaram accused no.4 whereas the second final  

report  after  further investigation  implicated Rathinam accused  

no.1 as the main accused and the others for the offence under  

Section 201 of the Indian Penal Code. The Court observed that  

it was the duty of the Prosecution to establish the guilt of the  

accused beyond reasonable doubt and the two widely different  

theories cast a doubt on the prosecution story. The Court further  

opined that  the incident had happened in the late evening of  

22nd December 1995 and it was for the prosecution to prove  

through the  so called  eye-witnesses  PWs 4 and 5 that  all  6  

accused  had  been  involved  in  the  incident  as  that  was  the  

finding of the investigating agencies after further investigation.  

The Court then examined the evidence and concluded that from  

a  perusal  of  the  various  documents  as  well  as  the  ocular  

evidence,  that  the  deceased,  who  was  to  work  the  12.00  

midnight to 7.00 a.m. shift had not turned up for her work and  

the  possibility  that  she  had  been  raped  and  murdered  well  

before midnight, could not be ruled out. The Court found that as  

per the statements of PW 1 her neighbour PW-2, and PW-3 the  

niece of the deceased that the latter had left for the mill with her  

mother at about 5.30 to 5.45 p.m. on the 22 December 1995  

and thereafter PW 1 had returned home alone. The Court then  

examined the evidence of PW 1 and PW 4 and observed that  

PW 1 had stated that she had left her daughter on the road near  

the mill and therefore there was thus no reason whatsoever to  

accept  the presence of  the deceased inside  the  premises at  

about 6.00 p.m. as her shift was to start at midnight. The Court  

held that the explanation tendered by the prosecution about the  

presence  of  the  deceased  at  6.00  p.m.  (that  she  was  also  

doubling  as  a  domestic  servant  in  the  house  of  Madam  

Sundarammal) could not be believed as there was absolutely no

evidence to that effect. The Court, further, observed that Ravi’s  

statement pertaining to the murder had been recorded by the  

investigating  officer  for  the  first  time  on  further  investigation  

about  4  years  of  the  date  of  the  incident  and  he  had  also  

admitted  that  during  this  period  of  four  years  he  had  not  

revealed the facts of  the incident to anyone including his co-

workers,  the relatives of  the deceased, the CID or the police  

officials  and  this  behaviour  belied  the  truthfulness  of  his  

evidence. The evidence of PW5 Andy who was a witness qua  the offence under Section 201 of the IPC was also rejected by  

the trial court for the reason that he had not revealed the story  

to anyone and his statement too had been recorded by the first  

time  in  the  year  1999  on  further  investigation;  though  he  

remained employed in the mill for several years after the crime.  

The trial court, accordingly, acquitted all the accused.

3.  The matter  was thereafter  taken in  appeal  before  the  

High Court at the instance of the State. The High Court, while  

noticing that the entire prosecution story with regard to the rape  

and murder rested on the statements of PW4 Ravi  and PW5  

Andy  (who  was  primarily  the  witness  for  destruction  of  

evidence),  went  into  the  matter  independently.  While  dealing  

with  the  statement  of  PW4, it  noted  that  though he was  the  

witness to the rape and murder on 22nd December 1995 he had  

not  informed  anybody  including  PW1,  the  mother  of  the  

deceased nor his co-workers, the police or the members of the  

Communist Party which had taken up the case on behalf of the  

complainant for a period of four years and it  was for the first  

time during further investigation that he had made a statement  

in the year 1998. The Court found that though this conduct was  

rather unusual yet in the light of the fact that he was a young  

boy of about 17 years of age at the time of incident and could  

have  been  intimidated  by  the  circumstances,  was  perhaps  a  

reason  which  could  justify  the  delay.  The  Court  fortified  its  

conclusion by holding that the defence had not really challenged  

the factum that  PW4 had been employed in  the mill  and his

presence,  therefore,  during  the  incident  was  explained.  The  

Court further held that there was ample evidence to show that  

the  deceased  was  also  an  employee  in  the  mill  and  was  

employed even on 22nd December 1995 i.e. on the date she  

had met her death and the possibility therefore that the incident  

had happened in the mill premises and had been seen by PW4,  

was a reality. The Court then examined the statement of PW5 to  

the effect that he had seen three of the accused carrying the  

body and throwing it into the well and was therefore a witness to  

the  offence  under  Section  201  of  the  IPC  and  though  his  

statement too had been recorded for the first time in the year  

1999, once again reversed the finding of the trial court and held  

that  PW5  was  a  good  witness  and  his  evidence  inspired  

confidence.  The  High  Court,  accordingly,  allowed  the  appeal  

and awarded A1 Rathinam, the present appellant, a sentence of  

7 years RI under Section 376 of the IPC, life under Section 302  

of the IPC and 3 years RI for the offence under Section 201 of  

the  IPC.  Compensation  of  Rs.2,00,000/-  to  be  paid  by  the  

appellant  was  also  ordered  for  PW1,  the  mother  of  the  

deceased. A2 was sentenced under Section 201 of the IPC to 2  

years RI and to a fine of Rs.5,000/- and in default to undergo RI  

for 6 months. A4 Sundaram was sentenced to undergo RI for  

one year  for  the  offence under  Section  201 of  the IPC.  The  

acquittal of A3 and A5 was, however, maintained. The present  

appeal has been filed by Rathinam, A1 alone.

4. Before we embark on a consideration of the submissions  

made by the learned counsel for the parties, we would like to  

quote from the judgment of the High Court:

“Let  not  the  mighty  and  the  rich  think  that  Courts  are  their  

paradise and in the legal arena they are the dominant players;  

let this judgment make it clear that the weak and the poor would  

also  have  a  level  playing  ground in  the legal  battle;  and the  

‘Sun’ cannot be kept under clouds for all time to come, the truth,  

which may remain buried for sometime under the thick carpet  

woven  by  the  mighty,  would  also  come  out  in  it’s  great

splendour  and  the  Majesty  of  Law  will  march  on  forever,  

unmindful of people who come before it but ensuring that they  

are treated alike.”

5.  We must,  however,  understand that  a particularly  foul  

crime imposes a greater caution on the court which must resist  

the tendency to look beyond the file, and the insinuation that the  

rich are always the aggressors and the poor always the victims,  

is  too  broad  and  conjectural  a  supposition.  It  has  been  

emphasized  repeatedly  by  this  Court  that  a  dispassionate  

assessment of the evidence must be made and that the Court  

must not be swayed by the horror of the crime or the character  

of the accused and that the judgment must not be clouded by  

the facts of the case. In  Kashmira Singh vs. State of Madhya  

Pradesh AIR 1952 SC 159 it was observed as under:

“The murder was a particularly cruel  and  

revolting one and for that reason it will be necessary to examine  

the  evidence with  more  than ordinary  care  lest  the  shocking  

nature  of  the  crime  induce  an  instinctive  reaction  against  a  

dispassionate judicial scrutiny of the facts and law.”

Likewise in Ashish Batham vs. State of M.P. (2002) 7 SCC  

317 it was observed thus:

“Realities or truth apart, the fundamental and basic presumption  

in the administration of criminal law and justice delivery system  

is the innocence of the alleged accused and till the charges are  

proved beyond reasonable doubt on the basis of clear, cogent,  

credible or unimpeachable evidence, the question of indicting or  

punishing an accused does not arise, merely, carried away by  

the  heinous  nature  of  the  crime or  the  gruesome manner  in  

which it  was found to have been committed.  Mere suspicion,  

however, strong or probable it may be is no effective substitute  

for  the  legal  proof  required  to  substantiate  the  charge  of  

commission of a crime and graver the charge is, greater should  

be the standard of proof required. Courts dealing with criminal  

cases at least should constantly remember that there is a long

mental distance between “may be true” and “must be true” and  

this  basic  and  golden  rule  only  helps  to  maintain  the  vital  

distinction between “conjectures” and “sure conclusions” to be  

arrived at on the touchstone of a dispassionate judicial scrutiny  

based upon a complete and comprehensive appreciation of all  

features  of  the  case  as  well  as  quality  and  credibility  of  the  

evidence brought on record.”

6.  We  must,  therefore,  keep  aside  the  High  Court’s  

observations, profound as they are, in assessing the evidence.  

In this background, we must examine Mr. Ranjit  Kumar’s first  

argument with regard to the interference of the High Court in an  

appeal against acquittal. He has pointed out that though it was  

open to the High Court to re-appraise the evidence in a criminal  

matter,  yet  interference in  a  judgment  of  acquittal  was to  be  

made  if  it  was  palpably  perverse  and  not  possible  on  the  

evidence and that if two views were possible the one taken by  

the  trial  court  was  not  to  be  disturbed.  It  has  also  been  

emphasized  that  the  presumption  of  innocence  which  was  

available to an accused till proved guilty before a court of law  

was greatly strengthened by an acquittal recorded by the trial  

court and for this additional reason as well, the High Court ought  

to be slow in interfering with such an order. It  has also been  

pointed  out  that  the  case  was  concededly  one  of  rape  and  

murder but the High Court had laboured its judgment in page  

after  page by alluding to  the medical  evidence on these two  

facets, but had completely misread and wrongly assessed the  

evidence  of  PW4 and  PW5 who were  the  only  two  material  

witnesses  to  the  incident  and  whose  statements  had  been  

disbelieved by the trial court for very good reasons. It has been  

submitted that the case against the appellant was uncertain as  

in the two initial investigations the rape and murder had been  

attributed to A4 Sundaram, and it was during the course of his  

trial proceedings that a further investigation had been ordered  

by the court whereafter the entire scenario had changed and the  

rape and murder attributed to the appellant whereas the other

accused including Sundaram, were sought to be implicated for  

the offence under Section 201 of the IPC. Mr. Ranjit Kumar, has  

in  this  background,  pleaded  that  the  prosecution  itself  being  

uncertain as to the widely differing theories projected by three  

investigating officers from different agencies, the appellant was  

entitled to claim an acquittal.  

7.  The  learned  counsel  for  the  State  has,  however,  

emphasized that the High Court was justified in interfering on  

the premise that the appellant belonged to an affluent family and  

was in a dominant position over Ravi and Andy and it was for  

that reason that they had withheld the information with regard to  

the incident for  a period of  4 years,  that  is,  when the further  

investigation taken over by PW-66 and it was only at that stage  

that  they  were  emboldened  to  come  out  and  to  give  their  

statements.  

8. The first question raised by the learned counsel which  

requires to be dealt with is with regard to the interference of the  

High Court in an acquittal appeal. It is now beyond dispute that  

interference in such an appeal should be made sparingly in a  

situation where the findings of the High Court are perverse and  

not possible on the evidence and if two views are possible the  

one  leading  to  acquittal  should  not  be  disturbed.  The  

presumption of innocence which is always raised in favour of an  

accused is further strengthened by an acquittal and bolsters the  

claim  of  the  accused.  The  aforesaid  time  honored  principles  

have  been  recently  set  out  in  the  judgment  of  this  Court  in  

Arulvelu and Anr. vs. State (2009) 10 SCC 206.  

9. It  is in this background that the facts of the case now  

need to be examined. We must re-emphasize that in the initial  

investigation, a charge-sheet had been filed with respect to A4  

Sundaram only for the rape and murder and it was during his  

trial  that  further  investigation  was  ordered  by  the  Court  in  

circumstances already mentioned above. This factor has been  

noticed by the High Court as well. The High Court further noted

that in the course of the trial of Sundaram that all the witnesses  

had  turned  hostile  and  it  was  at  that  stage  that  further  

investigation  was  ordered  on  an  application  made  by  the  

prosecuting agency.  Curiously on the filing of  the final  report  

after further investigation, Inspector Anbazhagan who had filed  

the final report in the case against Sundaram alone moved the  

Court that Sundaram could not be tried in the new sessions trial.  

The trial Judge passed an order accepting the plea and the trial  

of  Sundaram proceeded separately  as the sole accused in a  

different  sessions  case,  though  with  respect  to  the  same  

incident. This trial also ended in acquittal and the State went in  

appeal in the High Court in that case also, but without success.

10. At the very outset, we will assume that the death of the  

victim was homicidal and that she had been raped before the  

murder. With this background, we must examine the statements  

of PWs.4 and 5 as the fate of the appeal would hinge on their  

evidence. PW4 Ravi had appeared as a prosecution witness in  

the  sessions  trial  against  Sundaram  as  well  and  had  been  

declared  hostile.  In  the  present  case,  PW4’s  statement  is  

comprehensively different vis-à-vis the statement he had given  

in the other sessions trial. In his cross-examination he admitted  

that  he  had  not  referred  to  his  meeting  with  PW1 Bagyam,  

although he had met her the very next day and had undertaken  

to convey the entire information to her and that had not even  

given any information to PW Inspector Anbazhagan or during  

his examination-in-chief in the Sundaram’s Sessions Trial and it  

was for the first time in the year 1998 in the further investigation  

that  he  had  named  the  appellant,  and  the  others.  He  also  

admitted that he had been working in the mill  for about three  

and  half  years  after  1993  and  further  clarified  that  he  had  

worked till the year 1998. We see from the judgment of the Trial  

Judge  that  several  reasons  had  weighed  with  him  while  

discarding the evidence of  PW4. We reproduce herein below  

the relevant portion of the said judgment:

“The question that follows is, whether in the face of the evidence  

of PW4, both in his chief examination and in cross examination,  

could  the  reasons  given  by  the  learned  trial  Judge  for  

disbelieving him can be said to be plausible reasons or are they  

palpably wrong? Now let us go into the reasons given by the  

learned  trial  Judge.  In  sum and  substance,  the  learned  trial  

Judge had decided to disbelieve the evidence of PW4 mainly for  

the following reasons:

“PW4 was totally silent about the incident  

till  the  re-investigation  was  done  by  PW66;  there  was  utter  

darkness at  the time when the crime is shown to have been  

committed and therefore  it  would not  have been possible  for  

PW4 to witness the crime; installation of the machines inside the  

mill premises would have definitely obstructed/ would not have  

enabled PW4 from viewing the crime; when the dead body was  

moved out of the mill premises, everyone would have been in a  

position to see and therefore the accused would not have dared  

to  take the dead body of  the  mill  premises as spoken to by  

PW4;  the  conduct  of  PW4  before,  during  and  after  the  

occurrence,  if  taken  into  account  together,  would  show  that  

PW4  could  not  be  an  eye  witness  at  all;  till  the  crime  was  

committed,  there  was  no  threat  at  all  to  PW4 to  act  in  any  

particular  manner;  PW4’s evidence shows that  for  concealing  

the dead body, the witnesses have taken a longer route than the  

shorter one available,  which is against  the normal conduct of  

any offender; PW4 was calm and composed at all times prior to  

the occurrence; during the occurrence and immediately after the  

occurrence  and  even  after  the  occurrence  till  such  time  re-

investigation  commenced;  if  really  PW4 informed PW1 within  

five or  six  months after  the crime about  the incident,  then in  

Exs.P1  and  P2,  the  names  of  all  the  accused  are  not  

mentioned;  though  the  silence  on  the  part  of  PW4 could  be  

appreciated so long as he was under the employment  of  the  

offender i.e., till Deepavali 1996, he continued silence thereafter  

till  re-investigation  commenced  would  go  against  his  oral

evidence before court now; if really PW4 was under threat from  

any quarters, then, there is no reason as to why he chose to  

implicate A4 at the first instance; the evidence of his witness in  

S.C.No.110/1998 eliminating the presence of PW1’s daughter in  

the mill  premises during the occurrence time would doubt his  

evidence now that the victim was present in the mill premises at  

the occurrence time;  the prosecution had not  established the  

presence of  PW1’s daughter  inside the mill  premises and for  

this reason the learned Judge was not inclined to believe the  

evidence of PW1.”

11.  The  High  Court  also  examined  these  findings  and  

concluded  that  Ravi  as  well  as  the  deceased  had  been  

employed in the mill  at the relevant time and noted that Ravi  

had  made  a  statement  for  the  first  time  only  during  further  

investigation.  The High Court,  however,  glossed over the fact  

that Ravi had been projected as an eye witness in the sessions  

trial  pertaining to  Sundaram A4 and his  statement  had  been  

disbelieved  and  he  had  been  declared  hostile.  We  are  

somewhat surprised that in this situation the High Court found it  

proper to believe his evidence in the present case. This is what  

the High Court had to say:

“Let us now find out from the evidence of PW4 as to whether he  

was under any compulsion at any point of time to speak other  

than the truth. We hereunder extract the relevant portions in his  

evidence in this regard. Before extracting the relevant portions  

of  his  evidence,  we want  to understand the character  of  this  

witness. He appears to be a timid person. On the day when he  

gave  evidence  in  court  in  1998  in  S.C.No.110/1998,  he  was  

hardly 20 years of age. Therefore he would have been 17 years  

of age or so on the date of occurrence. He appears to be such a  

shy person that  he  does not  even express  in  court  by  clear  

words that the victim was raped. From his evidence we find that  

he  is  avoiding  any  expression  on  sex  and  sexual  activities.  

Therefore it is clear that PW4 is such a timid and shy person.”

Note : S.C. No.110/98 was the Sessions Trial of Sundaram.

To our  mind,  the above inferences drawn are somewhat  

unusual,  more particularly (as the witness was not before the  

High Court which could have seen his demeanor) and belie the  

principle that it is for the prosecution to prove its case beyond  

reasonable doubt.

12. The Court then goes on to say that it was on account of  

fear that Ravi had not come forth in time and that it was after he  

had left the employment of the mill,  that he had gathered the  

courage to do so. The trial Judge noted as per his statement he  

had left the employment some time in 1996. The High Court’s  

finding  that  he  had  left  in  1998  therefore  appears  to  be  

erroneous. In his examination-in-chief recorded on 17th August  

2000, PW4 deposed that he had worked in the mill about three  

and half years from 1993 but again said that he had worked till  

1998. We are of the opinion that it  is open to the defence to  

contend that the statement of this witness that he had worked till  

1996 which is beneficial to the accused must be accepted. In  

this view of the matter, the observation of the High Court that  

Ravi continued to be under the fear of the mill owner up till the  

year 1998 is palpably wrong as he has already left the services  

of the mill some time in the year 1996 and that he had appeared  

as a witness in the sessions trial pertaining to Sundaram in the  

year 1998 in which he did not give a statement as in the present  

matter and did not support the prosecution and was declared  

hostile.

13. Some support for the prosecution story could perhaps  

have  been  found  from  the  statement  of  PW1,  Thirumathi  

Bagiyam, the mother of the victim. In her cross-examination-in-

chief she supported the plea taken by Ravi that when she had  

met him on the day after the rape and murder she had asked  

him to come out with the true story to which he had replied that  

he  would  tell  her  the  next  day  or  on  some  other  day.  

Concededly, she never made any enquiry from him thereafter.

In  cross-examination,  she has given very peculiar  story.  She  

pointed out that she had given details to Thangavel by going on  

the instructions of the Communist Party and further stated as  

under:  

“That I went to CBCID Office and saw Sundarasamy, who was  

in custody, and he told me that when he was in his place after  

day shift was over, his colleague Ravi had came at about 7.00  

P.M. and told that their owner called him; that he went to Mill at  

about 7.30 P.M. and heard sound from inside room, he peeped  

the room, where Thanuskodi, son of co-brother of their owner,  

had attacked Chitra with iron rod and Aunty and their owner’s  

were there; that after some time they all have put Chitra in a  

cotton  bale  and  cover  her  and  he  had  directly  seen  that  

occurrence. I have not given that information. If it is say so that I  

have further said to Thangavel that Sundarasami had told me  

that the above said three persons and Ammasai have taken the  

body of Chitra and thrown into well of Rangasami Gounder at  

about 11.00 P.M. and threatened him not to disclose what he  

had seen on that night, I have not told such things to Thangavel.  

If  it  is  say  so  that  I  have  further  said  to  Thangavel  that  

Sundarasami had told me that since there was illicit intimacy in  

between Rathinam and Chitra, they have murdered her. I have  

not  stated  so.  When  I  was  inquired  by  Inspector  of  Police,  

CBCID,  they  have  recorded  my  statement  and  obtained  my  

signature.”  

14.  It  will  be  seen  that  this  statement  is  at  complete  

variance  with  the  prosecution  case  even  after  further  

investigation. Mr. Ranjit Kumar, therefore, appears to be right in  

submitting  that  in  this  uncertain  evidence,  the reliance of  the  

High Court on Ravi’s was not called for. We, therefore, find the  

High Court has gone wrong on this aspect.

15. Although the matter would, in the light of what has been  

held  above,  need no further  discussion as the other  material  

witness PW5 Andy was a witness to the removal and disposal of

the dead body yet as the matter has been argued at length on  

this  aspect,  we have chosen  to  go  into  the  evidence of  this  

witness as well. As already mentioned above, Andy’s statement  

was also recorded for the first time in the year 1999. Admittedly,  

PW5 Andy is not an eye witness to the rape and murder. The  

trial court has rejected his evidence for reasons similar to the  

case of PW Ravi and in particular the fact that his statement had  

also been recorded for the first time during further investigation  

by PW66. The High Court has, however, explained this gap of  

six years by stating that there was no evidence to show that this  

witness had been seen in the village after the incident. The High  

Court  has  observed  that  as  the  earlier  investigation  was  

deliberately misdirected,  was reason enough to believe PW5.  

We  notice,  however,  that  trial  court  had  given  not  one  but  

several  reasons  for  disbelieving  this  witness  and  they  have  

been noted in the High Court’s judgment as under:  

“(a) For the first time he was examined only in the year 1999  

during re-investigation done by PW66;

(b) no steps were taken to examine him earlier;

(c) PW5’s presence in the mill on the day of occurrence is not  

established;

(d) PW4 does not speak about the presence of PW5 in his  

statement  recorded  under  164  of  the  Code  of  Criminal  

Procedure during re-investigation;

(e) gunny bags stuffed with cotton would be hung in the roof  

railings in the mill and his would have disabled PW5 from seeing  

the movement of the offenders outside the mill premises;

(f) PW5’s conduct  in  continuing his  work normally,  despite  

knowing  that  the  offence  had  been  committed  and  even  

thereafter not divulging the crime to anybody would go against  

him;

(g) PW6 not corroborating PW5’s evidence that he asked him  

about the watch (M.O.13) and PW6 replying that he had sold it  

to A4 would affect PW5’s evidence;

(h) though witnesses admitted that sniffer dog was brought to  

the  crime  scene,  the  dog  track  record  is  not  produced  and  

therefore  an  adverse  inference  must  be  drawn  against  the  

prosecution;

(i) when there was no threat to PW5, there is no reason for  

him to be absent in the crime village; and lastly

(j) how PW66 came to know that  PW5’s examination may  

throw light.”

16. Curiously enough, it has also been observed that PW5  

had left the village, after the murder, though PW-5 does not say  

so  himself.  Moreover,  it  is  significant  that  PW4 did  not  even  

refer to the presence of the PW5 in the mill premises on the day  

in  question  in  his  evidence  or  even  in  his  statement  under  

Section  164.  It  is  for  this  reason  that  the  trial  court  had  

concluded that the possibility that PW5 had not been present or  

employed in the mill could not be ruled out. It is equally true that  

PW5 in his evidence does not say a single word that he was  

threatened by anyone to keep quite about the incident, and the  

High  Court  has  chosen  to  draw  an  inference  (without  any  

material)  that  he  had  kept  away  as  he  felt  that  he  may  be  

implicated in the murder. While referring to the evidence of PW  

4 and 5, the High Court held :

“The conclusion arrived at by the learned trial Judge that PWs.4  

and 5 did not respond in the manner in which the learned trial  

Judge expected them to respond after  seeing the crime and  

therefore their evidence should be disbelieved, does not stand  

to rhyme or reason. Courts have been consistently holding that   

response of a person as a witness after seeing the crime would   

vary from individual to individual and therefore there cannot be   

any  uniform  rule  that  a  witness  has  to  respond  only  in  a  

particular  manner.  In  other  words,  the  court,  before  which

evidence  of  such  witnesses  come  up  for  evaluation,  must  

evaluate  it,  taking  into  account  the  several  circumstances  

available in that case. In evaluating the evidence of PWs.4 and  

5, in the background of the circumstances in which they were  

placed  right  from  the  date  on  which  the  occurrence  was  

committed,  we  find  that  both  PWs.4  and  5  are  truthful  and  

natural witnesses and there are no legal and justifiable reasons  

to disbelieve their evidence. As noted earlier, rejection of their  

evidence  by  the  lower  court  is  based  on  surmises  and  

conjectures and facts perceived by the learned trial Judge at the  

time of local inspection held sometime in the year 2000.”

17. With great respect to the Division Bench, we differ with  

the  rather  broad  proposition  highlighted  above.  It  must  be  

remembered that the best check on the veracity of a witness is  

the  test  of  normal  human  behaviour.  To  our  mind,  if  the  

behaviour of a witness is unnatural and grossly against normal  

human conduct that itself is a strong circumstance in doubting  

the story projected by him. The conduct of PW-4 and PW-5 in  

not  coming  forth  as  witnesses  for  about  4  years  is,  thus,  

unacceptable measured by any yardstick.  

18.  In  the  light  of  what  has  been held  above,  the  other  

circumstances with regard to the recoveries etc. do not implicate  

the  appellant  in  any  manner.  We,  accordingly,  allow  the  

appeals, set aside the judgment of the Division Bench and order  

the acquittal of the appellant.

CRIMINAL APPEAL No.1619/2007:  

We have heard the learned counsel for the parties as well. The  

appellant herein was the Investigating Officer from 23.12.1995 to  

23.3.1996 in the rape and murder of Chitra. The allegation against the  

appellant was that he had deliberately shielded the real offenders in the  

murder case and was accordingly liable for the offence under Section  

201 of the IPC. The Sessions Court acquitted the appellant, which  

judgment has been reversed by the High Court, leading to this appeal.  

In the light of what has been held above in the connected Criminal

Appeal Nos. 905-906 of 2007, we find that the present appeal needs to  

be allowed as it is not possible on the evidence to ascertain as to  

whether the appellant was, in fact, guilty of the offence alleged against  

him. We make an order in the above terms and order his acquittal.