Madhu Vs. State of
No.522 of 2006]
J U D G M E N T
JAGDISH SINGH KHEHAR,
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.
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.
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.
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
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.
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.
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
It is alleged that
Madhu - accused no.1, caught hold of 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 north-west 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
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
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 5Kurup 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..
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 = 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 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 foot-step 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
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
During the course of hearing,
some salient facts which constituted the foundation for 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 Sibi-accused 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
He further stated, that
he could show the coconut tree and produce the chain. Consequent upon the aforesaid
8confessional 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.
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
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.
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. 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 10her
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
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 11seen two/three
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.
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.
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 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 13statement 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. 14 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
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." 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 Madhu-accused 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 Sibi-accused
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
Q. Why is it not been
noted by the Police?
A. May be, the Police
had not noted it down. 16 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
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 17to
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
"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
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 18on the directions of the Circle Inspector of Police, P.J.
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
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.
remaining witnesses from PW15 to PW19 made statements on different aspects of
the matters. Some of them were formal witnesses. 19Chacko 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 20utensils 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 Sibi-accused 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 21Report, and its
dispatch to the court of the Sub Divisional Magistrate, as also, the JFMC.
Radhakrishnan was examined as PW20. He conducted the post-mortem 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:
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
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 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, which all the injuries suffered
by the deceased Padmini Devi, were superficial in nature.
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 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
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
closed its evidence after recording the statement of P.J. Thomas (PW21), Circle
Inspector of Police.
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.
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
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 25custody, 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.
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 26detriment 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
cross-examination 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 Sibi-accused 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
cross-examination, stated that he had left for his work on 13.5.1998 at 7.30
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-in-chief 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 27late 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
The answer to the
aforesaid query has 28to 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
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 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
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
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 30rejection 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 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
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
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 31close 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 cross-examination 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 PW 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.
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
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 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.
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.
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.
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.
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 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 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
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 37the 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.
all the reasons recorded by us hereinabove, the appellant-accused/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
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
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
He was also convicted
for the same reasons. We are of the view that if Sibi-accused no.2 had
preferred 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 accused-appellant/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
"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 Sibi-accused no.2.
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.
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.
(Asok Kumar Ganguly)
(Jagdish Singh Khehar)