Rathinam @ Rathinan vs State Of Tamilnadu & Anr

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-`-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.