Pannayar vs State Of T.Nadu By Inspector Of Police

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 829 OF 2008

Pannayar .... Appellant

Versus

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

JUDGMENT

V.S. SIRPURKAR, J.

1. Appellant herein challenges his conviction for the offence under

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

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

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

2. The Appellant Pannayar was charged with the aforementioned

offences on the allegation that on the night between 18.1.1995 and

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

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

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

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

Naicker (PW-1). She was a working woman in the mid-day meal scheme. 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

had suffered anti-mortem injuries. On the next day, her funeral took place 3

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

The relatives also attended the said funeral including Thiru Alwarsamy

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

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

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

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

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

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

time he was arrested, the accused produced the aforementioned

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

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

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

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

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

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

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

for the conviction of the accused.

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

District and Sessions Judge cum Chief Judicial Magistrate, Kamarajar

District, Srivilliputhur, who accepted the prosecution story based entirely

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

conviction and the sentence, necessitating the present appeal. 4

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

contended that the whole prosecution story depended upon the

circumstantial evidence. The basic circumstances appearing against the

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

Appellate Court were:-

(i) the evidence of Thiru Alwarsamy (PW-4) to the effect that he had seen the accused following Thilagavalli in the evening when she was going for answering the call of nature;

(ii) the recovery of ornaments worn by Thilagavalli before her death. In that, when the accused was arrested, he had produced the gold chain and the thali bowl, whereas he had agreed to discover the ear stud which he had sold in the shop of Shankar (PW-6);

(iii) the blood stained clothes of the accused, which were ultimately proved to be smeared with the human blood.

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

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

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

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

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

the Indian Evidence Act. The Appellate Court has also more or the less 5

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

the judgment.

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

circumstances could be held to have been proved against the accused

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

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

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

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

accused guilty of robbing Thilagavalli of her ornaments, but also

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

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

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

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

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

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

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

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

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

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

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

1), the husband of Thilagavalli or even to the Police and his statement was 6

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

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

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

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

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

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

one Perumalsamy and Ramasubbu were not examined by him. The

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

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

the Investigating agency had suspected the accused only after the

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

position that the statement of these witnesses were not recorded till

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

statement of these witnesses and the stony silence maintained by

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

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

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

apologetically observed that the prosecution would have done better by

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

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

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

this witness, the accused was present in the funeral. That crucial 7

circumstance seems to have been escaped the notice of the Appellate

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

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

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

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

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

takes care of the first circumstance.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

credibility of the investigating agency. As if this is not sufficient, when the 8

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

said to have confessed that he had sold `one' ear stud in the shop of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

he candidly admitted that M.O. 7 series was `his' property and that there

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

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

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

The other witness, on the discovery, has not been examined. It is, 9

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

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

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

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

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

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

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

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

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

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

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

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

the accused.

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

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

prosecution story goes, those ornaments were given by the accused

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

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

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

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

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

positive evidence that the accused was in fact arrested in the dispensary of 10

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

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

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

unreasonable to believe that the accused would be moving alongwith the

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

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

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

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

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

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

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

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

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

gave away those ornaments with a confessional statement. We have

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

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

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

of these ornaments from the accused. The investigating officer

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

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

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

as to whether it had any blood on it and on lathi, there was no blood found. 11

Therefore, that is also a most insignificant circumstance.

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

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

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

specifically regarding any identifying marks of the said ornaments. The

public prosecutor, who conducted this matter, had probably totally

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

doing at the time of the examination-in-chief and why he did not confront 12

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

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

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

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

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

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

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

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

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

our firm opinion, is nil.

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

Officer in not getting the ornaments identified by holding a Test

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

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

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

circumstance, second and third circumstance also loses all its significance

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

of Thilagavalli immediately after her death.

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

prosecution to explain the fracture suffered by the deceased. Even

otherwise that circumstance is extremely insignificant. 13

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

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

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

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

motive in a case which depended on circumstantial evidence is more

favourable to the defence.

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

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

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

this circumstance is insignificant, particularly because the blood group is

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

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

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

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

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

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

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

forthwith unless required in any other case.

..............................J. [V.S. SIRPURKAR] 14

.............................J. [DEEPAK VERMA]

NEW DELHI August 17, 2009.

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