2025 INSC 845 Crl.A.No.1672/2019 Page 1 of 77

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1672 OF 2019

KATTAVELLAI @ DEVAKAR … APPELLANT(S)

VERSUS

STATE OF TAMILNADU …RESPONDENT(S)

J U D G M E N T

Crl.A.No.1672/2019 Page 2 of 77

SANJAY KAROL, J.

For convenience and ease of reference, this judgment is divided

into the following parts:

INDEX

THE CHALLENGE ..................................................................................... 4

FACTUAL PRISM ...................................................................................... 4

TRIAL COURT JUDGMENT ................................................................... 10

THE IMPUGNED JUDGMENT ............................................................... 12

RIVAL CONTENTIONS ........................................................................... 13

(a) Appellant .................................................................................... 13

(b) Respondent ................................................................................. 17

ANALYSIS AND FINDINGS ................................................................... 19

Bird’s Eye View of the Testimonies ....................................................... 21

Circumstance One: The arrival of D1 &D2 at the scene of the crime ... 35

Circumstance Two: Last Seen Theory ................................................... 36

Circumstance Three: Arrest, Confession and Recovery ........................ 41

Arrest ................................................................................................. 41

Confession ......................................................................................... 44

Recovery ............................................................................................ 47

Circumstance Four: The Incident of Rape and DNA Evidence ............. 53

Circumstance Five: Motive .................................................................... 60

Circumstance Six: Test Identification Parade ........................................ 62

Two Additional Points............................................................................ 66

One: Other Suspects Remained Unexplored..................................... 66

Two: Non-examination of Bhagyalakshmi ........................................ 67

FAULTY INVESTIGATION ..................................................................... 69

CONCLUSION .......................................................................................... 70

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“A criminal trial is not like a fairy tale wherein one is

free to give flight to one's imagination and phantasy.

It concerns itself with the question as to whether the

accused arraigned at the trial is guilty of the crime

with which he is charged. Crime is an event in real

life and is the product of interplay of different human

emotions. In arriving at the conclusion about the guilt

of the accused charged with the commission of a

crime, the court has to judge the evidence by the

yardstick of probabilities, its intrinsic worth and the

animus of witnesses. Every case in the final analysis

would have to depend upon its own facts. Although

the benefit of every reasonable doubt should be given

to the accused, the courts should not at the same time

reject evidence which is ex facie trustworthy on

grounds which are fanciful or in the nature of

conjectures.”

H.R Khanna J., in

State of Punjab v. Jagir Singh

1

1. A visit to the forest, while a narrow escape for two persons,

turned fatal for another two. The genesis allegedly was greed,

with the accused person wanting to take away jewellery to put to

his use, but the end result was far worse. Two people who were

in the prime of their youth were hastily and brutally made to meet

their maker, well before they should have. This Court is now

tasked with examining the correctness of guilt of the person (the

appellant) who, according to the State, was responsible for this

barbarity.

1

(1974) 3 SCC 277

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THE CHALLENGE

2. The present Appeal arises from the judgment and order

dated 13

th

March 2019, in Referred Trial [MD] No.1 of 2018

passed by the High Court of Judicature at Madras, Madurai

Bench, which, in turn, was preferred against the judgment dated

07

th

March 2018 in Special Sessions Case No.9 of 2013 passed

by the Principal District and Sessions Judge, Theni, whereby the

conviction of the Appellant under Section 302, 376 and 397 of

the Indian Penal Code, 1860

2

, came to be affirmed. The Trial

Court imposed the death penalty on the Appellant-convict, which

also came to be affirmed by the High Court.

FACTUAL PRISM

3. The incident in question, relates to the unfortunate death

of two young people. The prosecution case as emerging from the

record, as also set out by the Courts below, is as follows:

3.1 On 14

th

May 2011, a young man named Ezhil

Muthalvan

3

, left his house on his father’s motorbike under

the pretext of playing cricket. Similarly, the second victim

4

left home that morning telling her parents that she was going

to college. Unbeknownst to either set of parents, the two

2

Hereinafter referred to as “IPC”

3

Hereinafter D1

4

Hereinafter D2

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victims went to Suruli Falls, which was apparently a popular

meeting point for friends and lovers.

3.2 Already there, was another couple, one Rajkumar

(PW-5) and Bhagyalakshmi

5

(not examined), eating food.

The two victims were also seated a short distance away,

approximately 60 meters from them. It is alleged that the

appellant-convict, first came to PW-5 and his partner asking

Bhagiyalakshmi, to part with her jewellery, which she did

but upon finding that they were not made of gold and instead

were imitation made of brass, he threw the same back at her

and approached the victims. PW-5 and his partner

subsequently fled from the place having noticed the former

having some conversation with the victims.

3.3 The appellant-convict is said to have threatened the

victims to part with money and gold, which they refused.

Such refusal, according to the prosecution is what led to him

killing the victims.

3.4 Given that D-2 was missing, her father Ganesan

(PW-4) lodged a complaint dated 15

th

May 2011 with All

Women Police Station, Theni, being Crime No.30 of 2011

under Section 366 of IPC alleging that D-1, son of

Thanganathi (PW-2) had kidnapped his daughter.

5

Numerous spellings have been used throughout the record for this name. For the

purpose of this judgment, we use ‘Bhagyalakshmi’

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3.5 On 15

th

May 2011, Ramesh (PW-11) who was the

proprietor of a tea stall near the Falls, informed forest

officials that a bike of Hero Honda make had been parked,

unattended near his tea stall for the last two days. On receipt

of such information, Forest Officials, namely, Thangaraj

(PW-1) and Chelladurai (PW-6) came to the spot and

informed higher officials as also the Sub-Inspector of

Police, Rayappanpatti Police Station about such fact. The

said vehicle was taken and parked at the forest bungalow.

On 18

th

May 2011, having come to know of this from a local

person Pitchai, PW-2 (father of D-1) went there and

identified the bike to be belonging to him.

3.6 Thinking that since the bike was in the vicinity of

the jungle, D-1 must be nearby, they requested for grant of

permission to search the forest area. However, they were

asked to come the next day. Upon conducting the search the

following day, they found the two victims whose bodies had

decomposed considerably, lying face down. Certain

relatives were brought in, and due identification of the

bodies was conducted.

3.7 PW-1 made a complaint pursuant to which

Ramakrishnan (PW-38) the then Sub-Inspector of Police,

Cumbum North Police Station, registered the case as

Rayappanpatti P.S. Cr.No.145/11 under Section 174 Cr.P.C.,

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and forwarded the same to the Judicial Magistrate Court,

Uthamapalayam, and also to the higher officials through Mr.

L. Prasath, Spl. Sub Inspector (PW-39). Vinoji (PW-52)

Inspector of Police, Cumbum North Police Station, took

reigns of the investigation. Dr. Juliana Jeyanthi (PW-37)

conducted the postmortem of the victims at the spot of the

crime and noticed the following injuries, while concluding

that both the deaths were homicidal in nature, having

occurred 5-6 days prior to the autopsy :-

“D1

1) A chop wound of size 36 cms x 12 cms through and

through noted over the front, both sides and back of the

neck leaving a tag of skin of the length 4cms at the bruise

side of the back of the neck with the surrounding bruise

injuring the underlying muscles vessels, nerves and

bones. Margins were regular.

On dissection:

The wound passed downwards and inwards below the

seventh cervical vertebra, vertebral column and spinal

cord with the surrounding bruise.

D2

1) A chop wound of size 12 cms x 4.5 cms x 2.5 cms

noted over the left side of the face extending from left

eye to the left side of the chin with the surrounding bruise

injuring the underlying muscles, vessels an nerves.

Margins were regular.

On dissection:

The wound passed downwards and inwards injuring the

underlying muscles, vessels and nerves, with the

surrounding bruise.

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2) A chop wound of size 12 cms x 4.5 cms x through

and through noted over the right wrist joint, with the

surrounding bruise injuring the underlying muscles,

vessels, nerves and bones. Margins were regular. Right

hand was missing.

On dissection:

The wound passed downwards and inwards injuring the

underlying muslces, vessels, nerves and bones with the

surrounding bruise.

3) Chop wounds of sizes 2 cms x 1.5 cms x through

and through, 2 cms x 1 cm x through and through, 1.5

cms x 1 cm x through and through and 1 cm x 1 cm x

through and through seen over left second, third and

fourth fingers with the surrounding bruise injuring the

underlying muscles, vessels, nerves and bones. Margins

were regular.

On dissection:

The wound passed downwards and inwards injuring the

underlying muscles, vessels, nerves and bones with the

surrounding bruise.

4) A chop wound of size 23 cms x 10 cms x through

and through noted over the middle of the right leg with

the surrounding bruise injuring the underlying muscles,

vessels, nerves and bones. Margins were regular. The

chopped right leg was missing.

On dissection:

The wound passed downwards and inwards injuring the

underlying muscles, vessels, nerves and bones with the

surrounding bruise.

5) A chop wound of size 8 cms x 6 cms x through and

through noted over the left ankle joint, with the

surrounding bruise injuring the underlying muscles,

vessels, nerves and bones. Margins were regular.

Crl.A.No.1672/2019 Page 9 of 77

On dissection:

The wound passed downwards and inwards injuring the

underlying, muscles, vessels, nerves and bones with the

surrounding bruise.

6) A stab wound of size 4.5 cms x 3 cms x 2.5 cms

noted over the back of the right arm with the surrounding

bruise injuring the underlying muscles, vessels and

nerves. Margins were regular. One end was pointed and

the other end was rounded.

On dissection:

The wound passed downwards and inwards injuring the

underlying muscles, vessels and nerves with the

surrounding bruise.

7) Vaginal introits was torn (5cms x 3 cms x 2 cms) at

6'O clock position with the surrounding bruise injuring

the surrounding muscles, vessels, nerves. Margins were

irregular. Hymen was torn. Vagina freely admitted one

finger.”

3.8 PW-5 apparently came to know of the untimely

deaths of the victims and went to the Police Station on 20

th

May 2011 to inform the investigators of the events that took

place on the 14

th

May 2011.

3.9 ‘Taking cue’ from such information, the suspicion of

investigators zeroed in upon the appellant-convict who was

eventually arrested on 28

th

May 2011. Upon such arrest, he

gave a voluntary confession and effected recovery of certain

material objects from his own residence as also that of his

mother-in-law. The then I.O., noting that both the appellant-

convict and the victims belonged to backward communities,

added a charge under Section (3)(2)(v) of the Scheduled

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Caste and Scheduled Tribe (Prevention of Atrocities) Act,

1989

6

, along with two counts of Section 302; as also 379

and 376 IPC.

3.10 On 6

th

June 2011, the Police conducted a T.I. parade

wherein PW-5 positively identified the appellant-convict.

3.11 In total, to establish its case, the prosecution

examined 56 witnesses and exhibited 77 documents as also

29 material objects. The appellant-convict pleaded his

innocence but, however, did not examine any witnesses or

lead any other evidence.

TRIAL COURT JUDGMENT

4. Charges were framed against the accused on 8

th

October

2013 under Sections 302, 376, 392 r/w 397 IPC and (3)(2)(v) of

the SCST Act. The case rests entirely on circumstantial evidence.

The Principal District and Sessions Judge, Theni, in Special

Session Case 09/2013 vide judgment dated 7

th

March 2018 found

the accused (appellant-convict) before us guilty of the offences

under Section 302, 376 and 379, but declared not guilty under

Section 392. It was also observed that the charge under SCST

Act could not be taken into consideration. The punishment as

awarded is extracted as under:-

6

Hereinafter SCST Act

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“1. Enemy is sentenced to life for murdering

Ezhilmuthalvan under I.P.C. section 302, and penalty

Rs.2,000/- is also levied, if failed to pay the penalty, he

should undergo 2 months of imprisonment.

2. Enemy is sentenced to death under I.P.C. section 302

for murdering the girl accompanied by Ezhilmuthalvan,

death sentence should be carried out by hanging him on

neck until he dies, and no other penalty is sentenced as the

maximum punishment of death penalty is declared.

3. Enemy is sentenced to life under I.P.C. section 376

for the crime proven against him, and penalty of Rs.2,000/-

is also levied, if failed to pay the penalty, he should undergo

2 months of imprisonment.

4. This court is issuing the order that enemy is sentenced

to 7 years of severe imprisonment, and penalty of

Rs.1,000/- is also levied, if failed to pay the penalty, he

should undergo 1 month of imprisonment.

5. As it is determined that enemy is not the criminal

under I.P.C. section 397, the court releases him under

Cr.P.C. section 235(1) determining that he is not the

criminal under the alternate accusation under I.P.C section

392 accused on him and, this court determines that

Prevention of Atrocities rule against schedule and schedule

tribe cannot be taken into consideration to grant punishment

along with I.P.C. section 302, 376, 397 which has been

accused upon the enemy.

6. As the enemy is sentenced to death for number one

crime under I.P.C section 302, it is declared that all the

penalties sentenced under other sections should be carried

out along with the death penalty.

7. It is declared that the judgment declared on this case

and all the documents should be sent to Chennai High Court

to ensure the death penalty sentenced to the enemy under

the Code of Criminal Procedure, section 366(1)

8. Action should be taken to execute the death penalty

sentenced to the enemy only after the death penalty

sentenced to the enemy is ensured by the Honourable High

Court, Chennai, under the Code of Criminal Procedure,

section 368.

…”

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THE IMPUGNED JUDGMENT

5. Since the sentence imposed by the Trial Court was that of

death by hanging, the matter travelled up to the High Court in

terms of Section 366 of the Code of Criminal Procedure, 1973

7

,

being Referred to Trial [MD] No.1 of 2018. The High Court

considered the evidence on record under the following heads: -

(a) Last seen theory;

(b) Arrest, confession and recovery;

(c) T.I. Parade;

(d) DNA Test; and

(e) Motive

The following is a tabular representation of the evidence

considered against each of the above heads:

Sl.No. Heading Description

1. Last seen theory PWs -2, 3, 5, 8, 25

2. Arrest, confession

and recovery

PWs-5, 18, 19, 31, 32, 52

& 54 ; Exhs.P-8, P-75.

3. T.I. Parade PW-5

4. DNA Test PWs-34, 37, 42;

Exhs.P-52

5. Motive PW-5

7

Hereinafter referred to as “Cr.PC”

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Having examined the documents and exhibits as above, the

High Court found the following circumstances to be established

beyond reasonable doubt against the Appellant-convict :-

“(a) On the date of occurrence, D1 and D2 left their

respective house and came to the place of occurrence on

their own by bike (MO.1).

(b) D1 and D2 were lastly seen alive by PW5 with the

accused.

(c) The accused was seen with weapon by PW25 on the

date of occurrence.

(d) The link between the recovery of MOs.10 and 18

from the accused and the offence.

(e) The offence of rape committed by the accused was

proved through scientific evidence namely DNA report.

(f) Adverse inference against accused.”

6. Challenging his conviction and sentence, the Appellant-

convict has approached this Court. We have heard Ms. V.

Mohana, learned senior counsel for the Appellant-convict and

Mr. V. Krishnamurthy, learned senior counsel for the State. To

be determined is whether the Courts below were justified in

handing down judgments of conviction for the offences, as

alleged and in connection therewith sentencing him to death.

RIVAL CONTENTIONS

(a) Appellant

7. The arguments advanced on behalf of the appellant can be

summarised, inter alia, as follows :

Crl.A.No.1672/2019 Page 14 of 77

Firstly, the learned senior counsel submitted that

PW-5 was, on the whole, an unreliable witness. Going so

far as to say that he was a planted witness introduced by

the Police. She highlighted that PW-5’s conduct of silence

regarding the incident was unnatural, particularly as he

was aware through Bhagyalakshmi, that D-2 her

collegemate had not attended college the next day. His

assumption that D-1 and D-2 ran away to get married

(which is the only plausible explanation for non-reporting)

is without basis since he himself admitted to having no

prior knowledge of any such plans or their relationship to

such an extent;

Secondly, the non-examination of Bhagyalakshmi,

is the absence of a material witness as she is the link

between PW-5, D-1 and D-2, since the former did not

know the two victims directly but only through her;

Thirdly, the T.I.P conducted is unbelievable given it

was conducted after a considerable delay of nine days from

the date of arrest of the appellant-convict. His identity was

well-known by such time since there had been news

reports regarding the incident. Further, by PW-5’s own

admission, the Police authorities had informed him prior

to the TIP that one Kattavellai @ Devakar had committed

the offence. Still further, he also states that within a week

Crl.A.No.1672/2019 Page 15 of 77

of his statement to the Police, PW-5 saw the appellant-

convict at the Cumbum Police Station;

Fourthly, the testimony of PW-25 is vague and

unreliable. He has not identified the accused particularly

such as through clothes recovered from the appellant-

convict nor through T.I.P;

Fifthly, there is no basis for suspicion against the

appellant-convict as on 28

th

May 2011. The story of the

prosecution is that the genesis of the suspicion is the

attempted suicide by the Appellant-convict on 22

nd

May

2011. However, no credible explanation has been offered

for the suspicion. The FIR pertaining to the attempted

suicide was registered on 23

rd

May 2011. However, no

steps in connection therewith were taken and neither was

any information given to Royappanpatti Police Station.

PW-52 and 54 (I.Os) both state that they learnt of the

suicide only after the arrest;

Sixthly, the circumstances of arrest are suspicious

since no records have been produced regarding appellant-

convict’s admission in the hospital during the period 22

nd

- 25

th

May 2011. There are no independent witnesses to

the arrest since PW-16 states that he was called there ten

minutes after the arrest. He has also accused the police of

torture at the police station;

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Seventhly, the disclosure statement and the

subsequent recovery of articles is surrounded by

suspicious circumstances – for instance, PW-4 identified

the chain in Court and deposed that he was shown a gold

chain by the police, it is unclear whether this was the same

chain that belonged to D-2. None of the witnesses

mentioned any distinctive feature thereof. The FIR makes

a mention of a gold chain of 2.5 sovereigns but does not

mention the ‘ohm’ dollar; the weapon allegedly used for

the commission of the offence is not subjected to any

forensic examination; the clothes recovered from the

house of the appellant-convict are not subjected to any

forensic examination and cannot be linked to the crime.

The disclosure statement does not specify all articles such

as the jute bag, tiffin box and, therefore, their recovery is

not a consequence of the disclosure statement. The

independent witness, PW-16 does not depose the exact

location of the materials recovered from the house of the

appellant-convict;

Eighthly, the DNA evidence cannot be relied on

since there are several gaps in the chain of custody leaving

open the possibility of tampering. PW-37 states that she

took the vaginal swab and handed them over to the

Constable on duty but correspondingly PW-41 does not

Crl.A.No.1672/2019 Page 17 of 77

make any mention thereof when the samples were

packaged, sealed, kept at one location, safely or otherwise,

sent to another location etc., the record thereof is absent.

The semen sample of the Appellant-convict was taken on

13

th

June 2011, and they were allegedly sent to FSL,

Chennai. There is no record of the same being sent,

returned and/or thereafter being stored, preserved or

disposed of. A blood sample was collected from the

appellant-convict, but PW-37, the doctor concerned, does

not testify thereto, nor does PW-52, the concerned I.O.,

record anything regarding the same; and

Ninthly, motive has not been established. Various

articles other than the gold chain, also belonging to the

victims such as mobile phone, ring etc., were neither

recovered from the spot of the crime nor from the

Appellant-convict. Further, it is not the pleaded case of the

prosecution that he disposed of the articles.

In making the above submissions, the learned senior

counsels referred to certain decisions of this Court, which

we have perused and considered.

(b) Respondent

8. The Respondent-State submitted, inter-alia, as follows :

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First, relying on the observation of the High Court

that PW-5, upon finding out of the death of D1 and D2, he

himself went to the Police Station, it is submitted that there

is no actual delay in reporting of the incident by PW-5;

Second, calling into question the T.I.P. conducted

and the identification made therein, is unjustified since

PW-5 himself has never stated that prior to the T.I.P., he

had seen the picture of the convict appellant. The pictures

shown to him, in fact, were only of habitual offenders.

PW-25 who states that he had seen the appellant-convict

with a sickle on the date of the offence, corroborates and

lends strength to the statement of PW-5;

Third, regarding the confession statement (Ext.P-8)

it is submitted that whether or not the object discovered

would be considered relevant or not has to be decided in

accordance with State of Himachal Pradesh v. Jeet

Singh

8

. It is submitted that the credibility of recovery is

sought to be questioned by the appellant saying that the

exact location of the recovery has not been disclosed,

however, it has been – his house, temple near the forest and

mother-in-law’s house. In regards gold chain, the

submission that PW-4 has categorically identified the

chain recovered, as belonging to D-2; and

8

(1999) 4 SCC 370

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Fourth, the testimony of PW-37 clearly establishes

the factum of rape upon D-2. DNA evidence, i.e., vaginal

swab, has been clearly and properly maintained, preserved

and utilised. This is said in reference to testimony of PWs

27, 48 and 34 and exhibits P-37, P-49, P-21, P-29 and

P-30.

ANALYSIS AND FINDINGS

9. In all 56 witnesses were examined by the prosecution.

10. Unquestionably, there is no eyewitness to the crime. The

appellant-convict has been directed to be sent to the gallows on

the basis of circumstantial evidence which, in the considered

view of the Courts below, forms a chain so complete that it rules

out any and all other possibility of any other person, except the

accused alone, having killed D-1 and D-2.

11. The law on this count is exceptionally well settled, and

although it does not require to be elaborately restated, we will

refer to a few judgments for the purposes of immediate recall.

11.1 In Hanumant v. State of M.P

9

, a three-Judge Bench

of this Court, speaking through Mehr Chand Mahajan, J.,

(as his Lordship then was) observed thus:

9

(1952) 2 SCC 71

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“12. It is well to remember that in cases where the

evidence is of a circumstantial nature, the circumstances

from which the conclusion of guilt is to be drawn should

in the first instance be fully established, and all the facts

so established should be consistent only with the

hypothesis of the guilt of the accused. Again, the

circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every

hypothesis but the one proposed to be proved. In other

words, there must be a chain of evidence so far complete

as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused and it must

be such as to show that within all human probability the

act much have been done by the accused.”

11.2 Sharad Birdhichand Sarda v. State of

Maharashtra

10

lays down the ‘Panchsheel Principles’

which are extracted below:-

“153. A close analysis of this decision would show that

the following conditions must be fulfilled before a case

against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt

is to be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may

be” established. There is not only a grammatical but a

legal distinction between “may be proved” and “must be

or should be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra [(1973) 2

SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]

where the observations were made: [SCC para 19, p.

807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the

accused must be and not merely may be guilty before a

court can convict and the mental distance between ‘may

10

(1984) 4 SCC 116

Crl.A.No.1672/2019 Page 21 of 77

be’ and ‘must be’ is long and divides vague conjectures

from sure conclusions.”

(2) the facts so established should be consistent only

with the hypothesis of the guilt of the accused, that is to

say, they should not be explainable on any other

hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature

and tendency,

(4) they should exclude every possible hypothesis except

the one to be proved, and

(5) there must be a chain of evidence so complete as not

to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have

been done by the accused.”

Bird’s Eye View of the Testimonies

12. Let us now undertake an individual examination of each of

the circumstances found to be proved by the Courts below,

reproduced supra. In doing so, a bird’s eye view of the relevant

PWs is necessary.

12.1 PW-1 was the Forest Guard, Surulipatti. He has

deposed in connection with the bike using which D-1 had

come to the location where he ultimately met his end. He

was informed of the unattended bike, which he later parked

at the forest bungalow after informing the higher authorities.

He also testified to being a member of the search party that

discovered the bodies of the two victims. He described the

Crl.A.No.1672/2019 Page 22 of 77

identification undertaken by the relatives of the deceased

and that he lodged a complaint with the concerned police

station regarding the events. He made a positive

identification of the motorbike (M.O.-1) and the clothes

worn by D-1.

In his cross-examination, it has come forth, upon the

filing of complaint the concerned inspector came to the

location and confiscated the corpse.

12.2 PW-2 is the father of D-1. He deposed that when

his son did not return, he individually searched for him,

however, to no avail. He stated that PW-4’s second daughter

Kousalya, called the younger brother of D-1 inquiring about

D-2, when it was revealed that even D-1 had not returned

home. It is in this context that a complaint was made before

the All Women Police Station, Theni, alleging that D-1 had

kidnapped D-2. He submitted that prior to these unfortunate

events, he had suspected the involvement of four persons,

namely, Arjunan, Amnbazhagan, Viji and Francies. As such

he approached the High Court wanting the investigation of

the case to be transferred to the CBCID, which was

accepted. It has also come in his testimony that he came to

know of the arrest of the Appellant-convict through the

newspaper.

Crl.A.No.1672/2019 Page 23 of 77

12.3 Chellandiammal, PW-3 is the mother of D-1. She

deposed that on 19

th

May 2011, certain members of her

family went to search the forest where bodies of D-1 and

D-2 were found. Although she was not a member of search

party, but she has described the condition in which the same

were found. She deposed that bodies were brought to the

village where she identified D-1 and, thereafter, cremated

per customs.

In her cross-examination, it is revealed that she did,

in fact, go to Suruli on 19

th

May 2011. She made a

categorical statement about the identification of Jewellery

worn by D-2 through her parents.

12.4 PW-4 is the father of D-2. He stated that when D-2

did not return, through Kousalya, they inquired from D-1’s

brother about the whereabouts of D-2 when they found that

D-1 was also missing. He levelled accusations against D-1

for eloping with his daughter and as such filed a complaint

with the All Women Police Station, Theni. Upon

discovering the body of the victims, the gold chain which

was the alleged prime reason for this act of extreme violence

was found and positively identified. She was also wearing

a gold ring which, however, was not recovered. He testified

that the doctors conducted the post-mortem at the spot of the

Crl.A.No.1672/2019 Page 24 of 77

crime itself and thereafter handed the corpses to them for

performing final rites.

In the cross-examination, it is admitted that even

though D-2 was missing, he did not file a missing person’s

complaint regarding his daughter.

Regarding the complaint filed before the All-Women

Police Station, Theni, here only we may partly refer to the

testimony of PW-51, Peula Mary, who was the Inspector of

Police at that time has deposed of having perused the Police

Station Petition N/2011 filed by PW-4 as taken down by

Katturrani (PW-50). She deposed that her course of action

would have been to call both D-1 and D-2 and enquire about

their whereabouts. PW-4 told her that since both the parties

belong to the same caste, they would settle the matter

without the intervention of the police or the authorities, as

such the said complaint was closed. Thereafter, on another

complaint made by PW-4 on 19

th

May 2011 at 6:00 am

alleging that D-1 and his parents had kidnapped D-2, this

witness registered, Crime No.30/2011 under Section 366

IPC to an unknown outcome.

12.5 PW-5 is the star-witness of the prosecution. The

circumstances of the last-seen theory and motive are largely

dependent on his testimony. In fact, the hangman’s noose

Crl.A.No.1672/2019 Page 25 of 77

purely rests on his testimony. Considering the same it would

be appropriate to extract the same in its entirety.

“DEPOSITION OF WITNESS

(CHAPTER XXIII CODE OF CRIMINAL

PROCEDURE)

IN THE COURT OF THE PRINCIPAL DISTRICT

AND SESSIONS JUDGE,

THENI

SPL.S.C.NO.9/2013

DEPOSITION OF P.W. 5

Chief Examination :-

I am residing at Kadamalaikundu. I am an Auto

Driver by profession. At the time of the occurrence of the

case, I was studying 3

rd

Year Economics in the College

of Madurai Kamaraj University, Aundipatti. I am having

relationship with one Bagyalakshmi, D/o Subburaj of

Theni. Bagyalakshmi was studying B.Ed., in Annai

Womens College, Aanaimalaiyanpatti. I know deceased

Ezhilmuthalvan. I know his lover Kasturi also. My lover

Bagyalakshmi and Kasturi were friends. Hence, I know

Kasturi and Ezhilmuthalvan. Ezhilmuthalvan is

belonging to SC Pallar community. His lover Kasturi is

also belonging to SC Pallar Community. I know the

accused present here. Previously, I saw the Accused for

the first time inside Suruli Falls Forest. On 14.05.2011,

I and Bagyalakshmi went to Suruli by bus.

Ezhilmuthalvan and Kasturi came to Suruli by bike.

After having talked in the hill forest, I and Bagyalakshmi

were sitting at a distance of about 60 meters for taking

food. At that time, the accused herein came to us with a

sickle in his hand and demanded the chain and Earring

worn by Bagyalakshmi. I told him that the jewels worn

by Bagyalakshmi are not gold jewels and they are

covering jewels. For which, the Accused shouted as to

whether you will give it or I will hack you. Out of fear,

Bagyalakshmi gave the jewels worn by her. The Accused

received it, verified and threw away since they are

covering jewels. When Bagyalakshmi took the said

Crl.A.No.1672/2019 Page 26 of 77

jewels, the Accused told us, “Are you worthy of love

affair? Get lost”. After sending us, he went to the place

where Ezhilmuthalvan was. After some time, when I

went to bring Ezhilmuthalvan, the Accused was

threatening Ezhilmuthalvan and Kasturi to give the

jewels. I thought that the Accused will threaten them like

he threatened us and then he will leave them, myself and

Bagyalakshmi came down. After coming down, I phoned

Ezhilmuthalvan’s cell phone. But Ezhilmuthalvan did

not attend the phone. Then, I and Bagyalakshmi took the

bus and came to Theni and I dropped Bagyalakshmi at

Theni and went to my village. On the next day,

Bagyalakshmi phoned me and said that Kasturi did not

come to the college. We were of the assumption that both

of them might have gone to get married. Thereafter,

Bagyalakshmi informed me over phone that

Ezhilmuthalvan and Kasturi have been murdered in a

suspicious manner. Then I was enquired a t

Royappanpatti Police Station. Then, police have

informed me that Ezhilmuthalvan and Kasturi were

murdered by one Kattavellai @ Dhivakar of K.M. Patti

and that police have confiscated the jewels of Kasturi.

They asked me whether I can identify the person if I see

him. I said that I can identify. On 06.06.2011, they

brought me to Central Prison, Madurai. They conducted

identification parade there. There were 9 persons. Judge

was present. The Judge told me to identify the person

who was seen by me at the place of occurrence by

touching him. I have identified the person who was seen

by me at the place of occurrence by touching him. He

told me to wait outside and after changing the persons,

he told me to identify. Similarly, I have identified three

times. Thereafter, on 15.06.2011, they brought me to

Bodi Court. The Judge has obtained secret statement

from me. I have given statement in respect of the

occurrence took place. The statement given by me was

recorded in the court and my signature was obtained

therein. The signature shown to me is the signature I put

up in the Court. My 164 Cr.P.C statement is Ex. P.2.

Royappanpatti Police, Cumbum Police and DSPs have

enquired me with regard to this case.

… … …

Crl.A.No.1672/2019 Page 27 of 77

31.07.2014 - Spl S.C. No. 9/2013

On 20.05.2011, I was enquired at Royappanpatti,

Cumbum and Uthamapalayam I was enquired for 3 days.

Firstly, Royppanpatti Police enquired me on 20

th

Royappanpatti Police did not enquire. DSP Pandiarajan

has enquired on 2th I went to Royappanpati Police did

not enquire. DSP Pandiarajan has enquired On 20th I

went to Royappanpatti Police. On 21

st

at 3.00 Hours, I

went to Royappanpatti Police. SI in Royappanpatti

Police enquired me. I don’t remember as to whether

Royappanpatti Police and Uthamapalayam DSP have

written what I have stated. They did not obtain my

signature for the said 3 days. On 22

nd

, I was enquired at

Cumbum Police Station. I don’t remember as to whether

they have written anything there. Even thereafter, I was

enquired at Cumbum and Theni CBCID Office.

Undertaking was obtained from me at Collector Office

that I have to come for enquiry as and when called. On

14

th

, I saw Kasturi for the first time in Hill area. Even

after the Accused chased us away, I went to the hill area

again. I went there to bring them. We used to go that side

and they also used to come there then and there. Kasturi

and Bagyalakshmi have decided to go there on the date

of occurrence. She brought Dosa. We ate it. I did not

notice whether Kasturi brought food. We ate it separately

so as to be secluded. When the Accused threatened us by

showing the sickle, I did not have the thought to call

Ezhilmuthalvan by shouting. I thought that he will

threaten and go away and hence I did not take it as

serious Kasturi and Ezhilmuthalvan did not see the

Accused threatening us. It is a dense forest. Normally

even those who are near won’t be visible. I don’t know

whether the jewels worn by Kasturi are gold jewels. If

asked whether the accused has the chance for seeing

them, there is chance. It is not correct that the Accused

did not threaten me. If it is said that I have alerted

through cell phone that the Accused is coming, I phoned

only after coming down. I can’t do anything due to

anxiety. It is not correct that he did not threaten me and

that I am suppressing it. We can reach the basement

within 10 minutes. I trued to talk through cell phone, but

it was not reached. It is not correct that I have not tried

Crl.A.No.1672/2019 Page 28 of 77

anything and I am lying. I did not say it thinking that he

will threaten the deceased like he threatened me. If it is

said can we four of us intercept the Accused, the Accused

has sickle in his hand. If it is asked whether I have

informed either in the house of Kasturi or in the house of

Ezhilmuthalvan, even after hearing the news through

Bagyalakshmi that Kasturi did not come to the College

on 16.05.2014, I did not inform. Previously, they did not

tell me that they are going to elope and marry. It is not

correct that I did not go to Suruli along with Bagya

Lakshmi and that if I went there, I would have given the

information. Lastly, when phoned on 14

th

, it was replied

as Not available. Hence, I have not phoned again. After

14

th

up to 20

th

I did not tell anyone either about the

threatening of the accused or about the threatening of

Ezhilmuthalvan. After 20

th

, for the first time, I told

Uthamapalayam Police Station about the treatening by

the Accused. About within a week, I saw the Accused at

Cumbum Police Station. On 20, 21 and 22, Police have

shown many photos and asked me to identify. They

asked me at Suruli. Uthamapalayam Police have asked

me. I don’t know whether the covering jewels worn by

Bagyalakshmi were confiscated by the Police.

Bagyalakshmi also did not ask me. I did not give any

separate complaint about the Accused threatened me. It

is not correct that I did not go to Suruli and that there was

no such occurrence took place. It is not correct that I am

giving false evidence as taught by the Police. It is not

correct that I have given statement in Judicial Magistrate

Court as taught by the Police. It is not correct that I am

giving false evidence since the Police have threatened

me that they will implead me in the case.

My lover Bagyalakshmi and Kasturi are friends.

Hence, I know Kasturi and Ezhilmuthalvan. If it is asked

whether I have stated in the police enquiry that

Ezhilmuthalvan is belonging to SC Pallar Community

and his lover Kasturi is also belonging to S.C Pallar

Community, I have stated that. After we were sent, when

we went up to bring Ezhilmuthalvan, the accused was

threatening Ezhilmuthalvan and Kasturi with the sickle

to give their jewels. If it is asked as to whether I have

told in the police enquiry as to whether I thought that the

Crl.A.No.1672/2019 Page 29 of 77

Accused will threaten them also like he threatened, I and

Bagyalakshmi came down.

… … …”

12.6 PW-16 was the village administrative officer. He

testified that upon the arrest of the Appellant-convict on 28

th

May 2011, he gave a voluntary confession statement. He

also deposed that the latter brought them to his house from

where certain material objects were recovered and thereafter

the house of his mother-in-law from where a chain was

recovered (M.O. 10).

12.7 Maheswari (PW-17), Mayakkal (PW-18) and Raja

(PW-19) have deposed in connection with a gold chain

which PW-4 has positively identified as belonging to D-2.

Hence, they are dealt with collectively. PW-18 having

received a chain through her daughter-in-law gave it to

PW-17, who pledged it with the Cumbum Primary

Agricultural Cooperative Society for Rs.10,000/-. PW-19

testifies that the said amount along with interest of Rs.52/-

was returned on 27

th

May, 2011.

12.8 PW-31, namely, Dr. S. Chellapandian, was the

doctor who examined the appellant-convict when he was

brought to the Government Medical College Hospital, Theni

having consumed an unidentified poison. While under

treatment the doctor came to know about his involvement in

Crl.A.No.1672/2019 Page 30 of 77

the offences subject matter of appeal. The appellant-convict

was discharged on 25

th

May 2011.

12.9 PW-32, namely, Udaiyali was the Special Sub

Inspector, Gudalur South Police Station. He received

information on 25

th

May 2011 that the appellant-convict had

been admitted to hospital having consumed poison.

Accordingly, he registered Gudalur North PS Crime

No.120/2011, under Section 309 IPC. In connection

therewith he also recorded the statement of one Vijaya,

mother of the convict-appellant.

12.10 PW-34, namely, Dr. Kamalashi Krishnamoorthy, the

Additional Director and Director (I/c) of Forensic Science

Department, Chennai, had examined the DNA extracted

from semen stains and the vaginal swab. She has concluded

the DNA present on both the stains and the swab match.

12.11 PW-37 is Dr. Juliana Jeyanthi, who conducted the

postmortem of the two victims. We have already noted

supra, the injuries sustained by them, earlier in this

judgment. She has further testified that the convict-

appellant had no injuries whatsoever; she has also stated that

she may have handed over (though not certain) the vaginal

swabs taken by her to the constable on duty.

12.12 PW-38, namely, Ramakrishnan, was the Sub

Inspector of Police, Cumbum North Police Station at the

Crl.A.No.1672/2019 Page 31 of 77

relevant time. He was the one who registered FIR in Crime

No.145/2011 under the category of suspicious death, upon

receipt of a complaint from PW-1. He testified to the

transferring of the case to CBCID on 6

th

September 2011.

12.13 PW-41, namely, Mohd. Abul Rashid, was the

Special Sub Inspector of Police, Cumbum North Police

Station. He was appointed to assist the Investigating Officer

(PW-52). He conducted the inquest of the body of D-2. The

body was handed over to him which he then handed over to

PW-37, accompanying her to the hospital therefor, and after

the postmortem he gave the same to the relatives of the

victims. The organs of the victims were received by him and

sent to the regional FSL at Madurai for chemical analysis.

Later, Viscera was handed over to the Judicial Magistrate’s

Court at Uthamapalayam.

12.14 PW-42, Pandiarajan, who then was a Head

Constable at Royappanpatti Police Station, stated that upon

instructions of the Inspector of Police, Cumbum PS, on 29

th

June 2011 he took two vaginal swabs taken from the body

of D-2 and deposited the same with the Judicial Magistrate’s

Court at Uthamapalayam. There is a corresponding entry in

the Pocket Note maintained at Royappanpatti PS. Regarding

the said vaginal swabs, PW-27, Vijayendran, an employee

Crl.A.No.1672/2019 Page 32 of 77

at FSL Madurai, deposed that he received the vaginal swabs

of D-2 through sealed letter dated 29

th

June 2011.

12.15 PW-52, Vinoji was the main Investigating Officer of

the case. Since I.Os. are the charioteers of an investigation,

their testimony has to be accorded necessary importance and

attention. Having taken charge of the case, he went to the

spot of the crime and prepared the observation mahazar and

rough sketch and confiscated certain articles from there such

as hair pins, bangles, blood stained sand and also sand

otherwise. Subsequently, he went to the spot where the body

of D2 was discovered and undertook the same processes. He

carried out enquiry from the witnesses present there after

having completed the inquest upon D2. The next day, he

confiscated the bike of D1 and recorded statements of

certain witnesses. On 28

th

May 2011 he recorded the

confession statement of the Appellant-convict.

In his cross-examination, it is revealed that he has no

recollection of the number of persons present at the place of

occurrence; he had not himself prepared the observation

mahazar and sketch - neither does he recall as to who the

concerned constable was, who had prepared such

documents. He had not obtained their statements under

Section 161(3) Cr.P.C; It has also come on record that

despite a search, the amputated parts of the deceased’s body

Crl.A.No.1672/2019 Page 33 of 77

were not recovered; regarding the collection of blood-

stained sand, it was suggested that the same was not

collected neither it was sent for testing; regarding the

Appellant-convict it comes forth in the cross-examination

that he had no information as to the latter being admitted at

the Government Hospital; when it comes to the vaginal

swab, he is unclear about its status and in whose possession

the same was safely kept. He simply stated that had it been

given to the police officials, it would have been mentioned

in the case diary; the source of suspicion which made him

pursue the appellant-convict as a suspect and make

enquiries is unclear; he further admits that the confession

statements of the Appellant-convict were not written by

him, nor does he recall the particulars of the assistant who

allegedly wrote the same. He also states that such assistant

had not signed upon the statements and it had only been

signed by the Village Administrative Officer, Village

Assistant, Appellant-convict and himself; he denies having

brought into the case, as witnesses PW-16 and Manikandan

from other villages and no person from the village

concerned where the offence took place, so as to make it

easier for him to get testimonies in favour of the case put

forth by the prosecution.

Crl.A.No.1672/2019 Page 34 of 77

12.16 PW-54, namely, R. Pandiarajan, took reins of the

investigation from Inspector of Police, Cumbum North P.S.

on the basis of the order of District Superintendent of Police

dated 28

th

May 2011. In the chief examination, the witness

has listed out the various persons he examined in the course

of investigation.

His cross-examination reveals that he did not know as

to how he came to have the knowledge of the Appellant-

convict’s attempt of suicide. Further, it has been stated

therein that there is no clarity as to which of the two victims

was killed first; and that it would not be wrong to say that

PW-37 handed over the sample taken to the Constable on

duty.

12.17 PW-55, MXB. Stanli, took over investigation from

PW-54. In his cross-examination, he states that PW-54

ought to have gone to the scene of occurrence on 19

th

May

2011 as per Rules; according to him it is not correct that a

semen sample was taken from the Appellant-convict and

kept in the custody of the police department till 13

th

June

2011; he has confirmed the giving of a confession statement

and recovery of material objects at the instance of

Appellant-convict; the factum of the latter’s possession of a

mobile phone remained un-investigated.

Crl.A.No.1672/2019 Page 35 of 77

12.18 PW-56 – Tr. Dayalan Tamilselvan, was the DSP,

CBCID, Madurai. He undertook investigation in

accordance with the order of the Additional Director

General of Police, CBCID, Chennai. The examination-in-

chief details the process of investigation, carried out on

various dates. Further, it is admitted that there is no specific

reason for the non-examination of Bhagyalakshmi.

13. We now proceed to consider each of the circumstances

held to be proven against the Appellant-convict by the courts

below.

Circumstance One: The arrival of D1 &D2 at the scene

of the crime

14. The first circumstance is that D-1 and D-2 came to the

scene of the occurrence on their own. While that is a true

statement of fact as evidenced by the testimonies of PW-2, 3 and

4, we are at a loss to understand how that is a circumstance that

can be; ought to be and is proved as a circumstance against the

accused. The two lovers had plans to meet, and so they did. They

left their houses under completely different pretexts, which is

also not an occurrence out of the ordinary or the usual when

young, budding romances are often sought to be hidden from

family, which is evidenced by the fact that the parents of the

victims were not aware of the relationship between them. Had it

Crl.A.No.1672/2019 Page 36 of 77

been the case that the Appellant-convict, by some act, had

encouraged or furthered the reason for D1 and D2 coming to the

spot of the crime, then it could have been a suggested thought

and premeditation on his part, qualifying to be counted as a

circumstance against his innocence. This, most certainly, is not

the pleaded case of the prosecution. This circumstance, therefore,

is only a circumstance in name and of no value whatsoever.

Circumstance Two: Last Seen Theory

15. The next circumstance that is to consider is the last seen

theory. It is well established that this is a weak piece of evidence

and cannot be the sole basis of conviction.

11

We may further refer

to certain judgments that expand upon the application of this

theory.

15.1 In Ravasaheb v. State of Karnataka

12

, a three Judge

Bench (which included two of us, Nath and Karol JJ.)

observed thus:

“29. On its own, last seen theory is considered to be a

weak basis for conviction. However, when the same is

coupled with other factors such as when the deceased

was last seen with the accused, proximity of time to the

recovery of the body of the deceased, etc. The accused is

bound to give an explanation under Section 106 of the

Evidence Act, 1872. If he does not do so, or furnishes

what may be termed as wrong explanation or if a motive

11

Nizam v. State of Rajasthan, (2016) 1 SCC 550

12

(2023) 5 SCC 391

Crl.A.No.1672/2019 Page 37 of 77

is established — pleading securely to the conviction of

the accused closing out the possibility of any other

hypothesis, then a conviction can be based thereon.

[Satpal v. State of Haryana [Satpal v. State of Haryana,

(2018) 6 SCC 610] and Ram Gopal v. State of M.P. [Ram

Gopal v. State of M.P., (2023) 5 SCC 534]]”

[See also: Sanjay v. State of U.P.

13

]

15.2 The application of Section 106 of the Indian

Evidence Act, 1872, doesn’t absolve the prosecution of its

duty to establish its case against the accused, beyond

reasonable doubt. [See: Sawal Das v. State of Bihar

14

and

Shivaji Chintappa Patil v. State of Maharashtra

15

]

15.3 In applying the last-seen theory, Courts should keep

in mind the totality of the circumstances, or the case put

forward by the prosecution. In other words, also to be seen

is, what preceded and followed the accused person being

last seen with the deceased. [See: Surajdeo Mahto v. State

of Bihar

16

]

15.4 In Veerendra v. State of M.P.

17

, referring to Nizam

(supra) it was observed that when the time between the ‘last

seen’ and the ‘time of occurrence’ is significant, conviction

thereon would not be advisable or sustainable.

13

2025 SCC OnLine SC 572

14

(1974) 4 SCC 193

15

(2021) 5 SCC 626

16

(2022) 11 SCC 800

17

(2022) 8 SCC 668

Crl.A.No.1672/2019 Page 38 of 77

15.5 The converse of the above is that the theory comes

into play “where the time gap between the point of time

when the accused and the deceased were last seen alive and

when the deceased is found dead is so small that possibility

of any person other than the accused being the author of the

crime becomes impossible.” [See: Bodhraj v. State of

J&K

18

, State of U.P. v. Shyam Behari

19

and Sambhubhai

Raisangbhai Padhiyar v. State of Gujarat

20

]

16. The two witnesses relied on by the prosecution to establish

the evidence of last seen are PW-5 and PW-25. The High Court

found the evidence of PW-5 to be inspiring in confidence,

rejecting the argument advanced on behalf of the Appellant-

convict that his silence from 14

th

May 2011 to 20

th

May 2011

renders his testimony doubtful. This was done on the ground that

the reaction of PW-5 – relief of having escaped the negative

consequence of attempted robbery of Bhagyalakshmi’s jewels;

the assumption that D1 and D2 would have faced something

similar; would be alive and well; also, would have gone into the

forest to get married, an entirely plausible manner of perceiving

the event having taken place. The question is – Is it so?

18

(2002) 8 SCC 45

19

(2009) 15 SCC 548

20

(2025) 2 SCC 399

Crl.A.No.1672/2019 Page 39 of 77

17. The evidence of PW-5 stands extracted in toto, supra. On

independent analysis, while we acknowledge the point of view of

the High Court that no two persons can act in the same manner,

we are unable to record our agreement with the findings returned

qua this witness. It is a settled proposition of law that if two

interpretations of a given situation are possible, the one favouring

the accused will be taken. But, at the same time, the principle in

judging the conduct of a person is the reasonable man test. The

examination that we must undertake is whether the act of PW-5

satisfies this understanding. Certain questions, therefore, arise.

First and foremost, why did he not inform anyone about the

occurrence between the 14

th

and the 20

th

; Second, having seen

that the Appellant-convict was threatening D1 and D2, and

finding that D1 did not pick up the phone when this witness

called after coming down the hill-ordinarily should have raised

sufficient concern in PW-5 to have taken further steps, for

instance, himself intervening, to support D1 and D2 against the

actions of the Appellant-convict, or alerting the forest rangers of

unruly behaviour, contacting police authorities or informing them

of the near theft/threat they had received as also seen others

receiving et cetera; yet further when Bhagyalakshmi informed

PW-5, that on the next day D2 did not attend college, yet again

there was no action on part of PW-5 – In fact, stoic silence, any

which way. He testified that they assumed that the Appellant-

Crl.A.No.1672/2019 Page 40 of 77

convict would let D1 and D2 go, as he did to them, and that they

would have gone off into the woods to get married. Striking quite

the opposite tone, in his cross-examination it appears that there

had been no discussion whatsoever of this possibility. The

question then is how such an assumption could be justified. The

High Court held this exploration to be valid and possible but then

the record speaks differently. These circumstances, taken

cumulatively, appear to be sufficient enough to ring alarm bells

and yet he sat quietly and waited till the 20

th

May 2011 to inform

any of the investigating authorities or any other person in regards

to what he had seen at the hill. Can this be termed as the conduct

of a reasonable man or, in other terms be so plausible that it be

chalked out to differences in human behaviour. Considering the

above discussion, we find the testimony of PW-5 who is the star

witness of the prosecution to be full of holes, stretches and

surmises. With far too much emphasis being given on the

possibility of such an action being reasonable. Knowing both the

victims, having seen them be threatened, finding them missing

from everyday activity and even out of contact, and yet not even

uttering so much as a whisper to anybody, is hard to conceive as

reasonable. In our considered view, therefore, there are sufficient

holes in the testimony of PW-5 for it to be cast in doubt. This

then takes us to the question as to whether he is a witness worthy

of credence and his testimony believable. We are afraid not so.

Crl.A.No.1672/2019 Page 41 of 77

Particularly, as he himself admits having been repeatedly

questioned by all the investigating officers.

18. The next witness relied on by the prosecution to establish

last seen is PW-25 who is a Forest Guide. His statement is limited

to the fact of seeing the Appellant-convict with a Sickle or

‘Aruval’, which is the alleged murder weapon, on the day of the

occurrence. In ordinary circumstances, this would have been an

important piece of evidence. However, in the attending facts and

circumstances of this case, particularly that the Appellant-convict

was employed as a ‘coconut cutter’ as can be seen from the

testimony of PW-23, further substantiated by the testimonies of

PW-10 and PW-24, who are also similarly placed men, this job is

done with the use of an ‘Aruval’, and so, it cannot be held to be

strange that a person who is, in the course of his employment,

regularly using such an instrument has it in his possession. In

other words, the evidence of PW-25 is a mere statement and

cannot help, in any way in the case against the Appellant-convict.

Circumstance Three: Arrest, Confession and Recovery

Arrest

19. The next aspect to be considered is the arrest of the

Appellant-convict. The sequence of events leading up to the

arrest is that the bodies of the victims were discovered on 19

th

May, 2011; PW-5 spoke to the investigating authorities on 20

th

Crl.A.No.1672/2019 Page 42 of 77

May 2011; as a consequence of unrelated actions, the Appellant-

convict attempts suicide, such attempt is thwarted-he is admitted

to the Government Medical College Hospital, Theni, on 22

nd

May, 2011 brought by certain constables; he was later sent to K.

Vilakku Hospital and discharged on 25

th

of May, 2011, after

having received treatment at the hands of PW-31; and he is

arrested on 28

th

May 2011. The High Court judgment, curiously,

records that the investigating authorities, “taking a cue” from the

statement of PW-5, arrested the Appellant-convict on 28

th

May,

2011. However, the record is unclear how such an arrest order

was passed.

20. PW-31, in his cross-examination states that while the

Appellant-convict was admitted under his care, he came to know

either on the day of the latter’s admission, or the next day, that he

was involved in a murder investigation. For clarity, it may be

stated that this occurrence happened either on 22

nd

or 23

rd

of May

2011. We notice that PW-32, who, at the relevant point of time,

was a Special Sub Inspector, Gudalur South PS, states that he

received information on 25

th

May, 2011 that the Appellant-

convict had been admitted there. It has come forth in his

statement that when he reached, the latter was accompanied only

by his mother. Apparently, his mother's statement was also

recorded; however, the same is not on record. There is an

Crl.A.No.1672/2019 Page 43 of 77

apparent difference in the sequence of events, as narrated by

these two witnesses.

21. The Appellant-convict came to be arrested, according to

the prosecution, on 28

th

May, 2011 (which fact he denies in his

statement under section 313 Cr.P.C.). PW-16, who is the Village

Administrative Official, testified that the Inspector of Police,

Cumbum, arrested him and relayed such information. The only

reason for such an arrest is suspicion. As we have already

observed, the other statement relating to the arrest of the

Appellant-convict is that he was arrested, taking a cue from the

statement of PW-5. The record is conspicuously silent as to the

genesis of the suspicion the authorities cast upon him or what cue

or hint they took from the statement of PW-5. So, how one thing

led to another is unclear. We may also observe that it is strange

that the Courts below did not emphasize how such an arrest came

to be, particularly when none of the witnesses examined for the

prosecution stated with ample clarity regarding the same. The

arrest of the Appellant-convict itself is cast under serious doubt,

since the circumstances leading to the same are missing from the

record. Various questions that ought to have been answered were

in fact not done so - such as what led the police to suspect him,

when this suspicion arose; what processes were undertaken to

lend credence to such suspicion, before making an arrest, et

cetera. The High Court, in para 32 of the impugned judgment,

Crl.A.No.1672/2019 Page 44 of 77

records that the Appellant-convict had been arrested in the

presence of PW-16 and one Manikandan. This appears to be

incorrect on the face of the record. The cross-examination of

PW-16 reads :

“…if it is said that the accused was arrested at about

11:30 AM on 28 May 2011 by the Inspector of police, he

was brought for enquiry. The Inspector caught the

accused at 11:30 AM and informed me after 15 minutes.

He informed me through cell phone. I was in the office

of the Village Administrative Officer, Surulipatti, when

the Inspector informed me. 10 minutes after I left, police

have enquired. The enquiry was started where the

accused was caught…”

(Emphasis supplied)

It is clear that at the time of arrest, there was no independent

witness. The evidence of Manikandan, if taken, is not on record.

Confession

22. The appellant convict made two confession statements

before the police authorities, Ex. P.8 dated 28

th

May, 2011 and

Ex. P.75 dated 31

st

May, 2012. The evidentiary value of such a

confession has been considered many a times before this Court.

In Nikhil Chandra Mondal v. State of W.B.

21

B.R Gavai, J., (as

his Lordship then was) discussed the law as follows :

21

(2023) 6 SCC

Crl.A.No.1672/2019 Page 45 of 77

“16. It is a settled principle of law that extra-judicial

confession is a weak piece of evidence. It has been held

that where an extra-judicial confession is surrounded by

suspicious circumstances, its credibility becomes

doubtful and it loses its importance. It has further been

held that it is well-settled that it is a rule of caution where

the court would generally look for an independent

reliable corroboration before placing any reliance upon

such extra-judicial confession. It has been held that there

is no doubt that conviction can be based on extra-judicial

confession, but in the very nature of things, it is a weak

piece of evidence.

17. Reliance in this respect could be placed on the

judgment of this Court in Sahadevan v. State of

T.N. [Sahadevan v. State of T.N., (2012) 6 SCC 403 :

(2012) 3 SCC (Cri) 146] This Court, in the said case,

after referring to various earlier judgments on the point,

observed thus : (SCC pp. 412-13, para 16)

“16. Upon a proper analysis of the abovereferred

judgments of this Court, it will be appropriate to state the

principles which would make an extra-judicial

confession an admissible piece of evidence capable of

forming the basis of conviction of an accused. These

precepts would guide the judicial mind while dealing

with the veracity of cases where the prosecution heavily

relies upon an extra-judicial confession alleged to have

been made by the accused:

(i) The extra-judicial confession is a weak evidence by

itself. It has to be examined by the court with greater care

and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater

credibility and evidentiary value if it is supported by a

chain of cogent circumstances and is further

corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of

conviction, it should not suffer from any material

discrepancies and inherent improbabilities.

Crl.A.No.1672/2019 Page 46 of 77

(vi) Such statement essentially has to be proved like any

other fact and in accordance with law.”

23. Keeping in view the aforesaid principles of law, we have

perused both the confessions. In the first confession dated 28

th

May, 2011 after giving a background of his upbringing and also

previous involvement in petty crimes, coming to the instant crime

he admitted that he struck a blow on D1 who, as a result thereof,

started bleeding. PW-54, to some extent corroborates this stating

that he had recovered sand both with and without blood near the

corpse of D2. However, contrary to this version of events, PW-

28 who is the Scientific Officer at the Regional Laboratory states

that from the material recovered, there was no blood to be found.

The confessional statement records that having hacked the body

of D2, he threw the severed limbs in the nearby bushes but, it is

a matter of record that despite an extensive search, they could not

be located. It is also unclear that a man, who by his own

admission, has been in the past involved in petty crimes would

take stolen articles not only back to his own home but also give

one of them to be pledged in order to get money - the natural

question is that once he has stolen the said chain, it would be

easier to dispose it of and get whatever money it is worth rather

than using it as collateral to get money from other, more

legitimate sources leaving open the possibility of it being traced

back.

Crl.A.No.1672/2019 Page 47 of 77

24. That apart, we find that the record is silent as to why there

was a need to record a second confession more than a year after

the date of offence. The Deputy Superintendent of Police upon

order of the Additional Director General of Police, CBCID,

Chennai, commenced investigation in the matter following the

latter’s order dated 13

th

August, 2011 and, thereafter, enquired

and examined various witnesses. Given that the Appellant-

convict was already in custody, the recording of a second

confession without any reason therefor, or clearly stating that the

Appellant-convict upon his own volition wished to give a second

confession, in our view, is unjustified. As recorded supra, it has

been held that if the circumstances surrounding the recording of

the confession are suspicious, placing reliance thereon is totally

unsafe, and that too without any corroboration. We find there to

be an apparent lack of corroboration to any of the statements

made by the Appellant-convict and as such, find that the

confessions are truly unreliable. This is, of course, over and

above the settled position of law that confessions made to a police

officer are wholly inadmissible as evidence in a Court of law.

Recovery

25. The Courts below have found that since, in the confessions

given by the Appellant-convict, certain information regarding the

location of material objects was divulged, that limited portion of

Crl.A.No.1672/2019 Page 48 of 77

the confession becomes admissible according to Section 27 of the

Indian Evidence Act,1872. That is the correct proposition in law.

Reference may be made to some judgments of this Court as

follows :

25.1 Surya Kant J., writing for a Bench of three Hon’ble

Judges of this Court in Bijender v. State of Haryana

22

, held

as under :

“16. We have implored ourselves with abounding

pronouncements of this Court on this point. It may be

true that at times the court can convict an accused

exclusively on the basis of his disclosure statement and

the resultant recovery of inculpatory material. However,

in order to sustain the guilt of such accused, the recovery

should be unimpeachable and not be shrouded with

elements of doubt. [Vijay Thakur v. State of H.P., (2014)

14 SCC 609 : (2015) 1 SCC (Cri) 454] We may hasten

to add that circumstances such as : (i) the period of

interval between the malfeasance and the disclosure; (ii)

commonality of the recovered object and its availability

in the market; (iii) nature of the object and its relevance

to the crime; (iv) ease of transferability of the object; (v)

the testimony and trustworthiness of the attesting

witness before the court and/or other like factors, are

weighty considerations that aid in gauging the intrinsic

evidentiary value and credibility of the recovery. (See

: Tulsiram Kanu v. State [Tulsiram Kanu v. State, 1951

SCC 92 : AIR 1954 SC 1] , Pancho v. State of

Haryana [Pancho v. State of Haryana, (2011) 10 SCC

165 : (2012) 1 SCC (Cri) 223] , State of

Rajasthan v. Talevar [State of Rajasthan v. Talevar,

(2011) 11 SCC 666 : (2011) 3 SCC (Cri) 457]

and Bharama Parasram Kudhachkar v. State of

Karnataka [Bharama Parasram Kudhachkar v. State of

22

(2022) 1 SCC 92

Crl.A.No.1672/2019 Page 49 of 77

Karnataka, (2014) 14 SCC 431 : (2015) 1 SCC (Cri)

395] )

17. Incontrovertibly, where the prosecution fails to

inspire confidence in the manner and/or contents of the

recovery with regard to its nexus to the alleged offence,

the court ought to stretch the benefit of doubt to the

accused. It is nearly three centuries old cardinal principle

of criminal jurisprudence that “it is better that ten guilty

persons escape, than that one innocent suffer” [ W.

Blackstone, Commentaries on the Laws of England,

Book IV, c. 27 (1897), p. 358. Ed. : see R. v. John Paul

Lepage, 1995 SCC OnLine Can SC 19.] . The doctrine

of extending benefit of doubt to an accused,

notwithstanding the proof of a strong suspicion, holds its

fort on the premise that “the acquittal of a guilty person

constitutes a miscarriage of justice just as much as the

conviction of the innocent”.

(Emphasis supplied)

25.2 Earlier in K. Chinnaswamy Reddy v. State of A.P.

23

,

a three-Judge Bench had summarised the situation as under:

“Pulukuri Kotayya v. King-Emperor [ (1946) 74 IA 65]

where a part of the statement leading to the recovery of

a knife in a murder case was held inadmissible by the

Judicial Committee. In that case the Judicial Committee

considered Section 27 of the Indian Evidence Act, which

is in these terms:

“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.”

23

1962 SCC OnLine SC 32

Crl.A.No.1672/2019 Page 50 of 77

This section is an exception to Sections 25 and 26,

which prohibit the proof of a confession made to a

police officer or a confession made while a person is in

police custody, unless it is made in immediate presence

of a Magistrate. Section 27 allows that part of the

statement made by the accused to the police “whether

it amounts to a confession or not” which relates

distinctly to the fact thereby discovered to be proved.

Thus even a confessional statement before the police

which distinctly relates to the discovery of a fact may

be proved under Section 27. The Judicial Committee

had in that case to consider how much of the

information given by the accused to the police would

be admissible under Section 27 and laid stress on the

words “so much of such information … as relates

distinctly to the fact thereby discovered” in that

connection. It held that the extent of the information

admissible must depend on the exact nature of the fact

discovered to which such information is required to

relate. It was further pointed out that “the fact

discovered embraces the place from which the object is

produced and the knowledge of the accused as to this,

and the information given must relate distinctly to this

fact”.

26. In the preceding paragraph, we have considered the law

laid down by this Court on that issue. Let us now consider the

circumstances in which the recovery was made from the locations

as disclosed. It cannot be questioned that such recovery would

be relevant since the Appellant-convict could have affected the

recovery only if he had specific knowledge of the location. This,

however, in our view, is not sufficient to take the recovery of the

objects as a circumstance against the Appellant convict. This we

say for the reason that the objects recovered also have to be

verified and tested. Now, this was not done. His statement is said

Crl.A.No.1672/2019 Page 51 of 77

to have led to the recovery of - (i) a sickle, (ii) a jute bag, (iii) a

green coloured lungi, (iv) a blue colour checked shirt, and (v) a

red and yellow colour striped towel from his house.

27. How any and/or all of these articles related to the alleged

murder of two victims and rape of one of them is undemonstrated

from the record. None of the relatives of either D1 or D2 have

testified to any of these belongings being that of the victims.

28. Still further, we would separately deal with the recovery of

each of the articles relating to the guilt of the Appellant-convict:

(a) Sickle- The sickle, M.O. 18, has not been sent for FSL-in

other words, on what basis is it established that this very

sickle was used to hack the victims? Also, sickle is an

easily available item for a person like the accused whose

work is to cut coconut. No blood was found on the

weapon. Even the doctor doesn’t state that the injuries on

the body of the deceased could have been caused with the

same. There is a total disconnect with the weapon and the

injuries resulting into death. None has also testified the

weapon to be owned by the Appellant-convict.

(b) Semen or Blood- There is no forensic report as to the

recovery of either semen or blood on the clothes so

recovered; the manner in which it was preserved and kept

in whose custody.

Crl.A.No.1672/2019 Page 52 of 77

(c) Jute Bag- There is no identification of the owner and

possessor of the jute bag.

(d) Black bag, a different box and a book- recoveries were

also made of a black bag, a different box, and a book -

M.Os.23, 24 and 25, from the bushes near Karuppasamy

Temple. These items, too, were not verified or ownership

established. In other words, how they are to be considered

to be the ‘material objects’ for the purpose of this case?

More so, when these items were recovered on the basis of

confessional statement of the accused himself, as recorded

by PW-52, but the confessional statement is in itself not

reliable, even otherwise to what effect.

(e) Gold chain - Further, insofar as the gold chain is

concerned, it is the uncontroverted testimony of PW-16

that a chain of such a design is readily available in stores.

That apart, the testimony of PW-18 reveals that she came

into possession of the said chain through her adopted

daughter, who is the wife of the Appellant convict. Such

wife, namely Pavithra, was not examined to establish the

chain's ownership or the source of such acquisition on her

part. The parents of D-2 have indeed identified the chain

(M.O.10) as hers, but we record our surprise that only the

chain was produced before them for identification and

none of the other material allegedly recovered at the

Crl.A.No.1672/2019 Page 53 of 77

instance of the Appellant-convict. Be that as it may, even

if the identification of the chain by the parents of D2 is

taken at face value, even then, to affix the gauntlet of guilt

upon the Appellant-convict on this count alone, would be

entirely unwarranted.

Circumstance Four: The Incident of Rape and DNA

Evidence

28. According to the prosecution, since the vaginal swabs

collected from D2 show penetrative sexual assault and since the

DNA found, matches that of the Appellant-convict, the factum of

rape is established. The case put up by the Appellant-convict, on

the other hand, is that DNA evidence, in the facts and

circumstances of this case is unreliable, and therefore, the fact of

rape cannot be established. The primary ground urged in this

regard is concerning the chain of custody of the DNA. A

sequence of events concerning DNA evidence, as per the

prosecution may be useful to be noted at this stage:

19.05.2011 PW 37 (Asst. Professor Medical Department)

- Internal organs were sent to FSL, Madurai

(Pg.128)

- Two Vaginal Swabs were collected and sent to

FSL, Chennai.

PW 56 (D.S.P CBCID)

- Vaginal Swabs were kept in Royappanppatti

Police Station. (Pg.219)

Crl.A.No.1672/2019 Page 54 of 77

31.05.2011 PW 30 (Assistant Director FSL, Madurai)

- Internal Organ received in laboratory from FSL,

Theni (Pg.105)

PW 41 (Sub-inspector PS Cumbum)

- Brought internal organ of D2 to FSL, Madurai

(Pg.144)

- Handed over the VISCERA to Doctors | and

handed over to Judicial Magistrate

06.06.2011 Pw 28 (Scientific Officer)

- Received Wooden Box at Regional Laboratory,

Madurai from Judicial Magistrate,

Uthamapalayam. (Pg.100)

29.09.2011 PW 27 (Scientific Officer)

- After analysis the Swab, Sent the same to FSL

Chennai.

PW 42 (Head Constable)

- Collected samples from Government College took

them to FSL Madurai (Pg.147)

30.11.2011 PW 34 (Asst. Director FSL, Chennai)

- Received Blood Stain through HC 934 Constable.

(PW.48)

PW 41 (Sub-inspector PS Cumbum)

- Received organs of body from doctor, went to

Police Station and handed over to Judicial

Magistrate Court. (Pg.144)

29. The first limb of considering the DNA evidence is the

vagina swabs taken from D-2. PW-37 in her chief examination,

stated that once she took the said samples, they were sent to FSL

Madurai, for DNA test, but striking an entirely different tone in

Crl.A.No.1672/2019 Page 55 of 77

her cross-examination, she said that having taken these samples

she ‘might have’ handed over the said swabs to the constable on

duty. It is noteworthy to observe here itself that PW-41, who was

the constable on duty, makes no such mention of having received

the swabs from PW-37. PWs 52 and 54 both state that upon

collection, the samples remained with PW-37 at the Government

Hospital. Per contra, PW-56 states that the samples were kept at

Royappanpatti Police Station. PW-42, who is a police carrier,

states that he collected the samples from the Government

Medical College and took them to the Regional Forensic Science

Laboratory, Madurai, on 29

th

June, 2011. This means they were

sent to the FSL after a delay of 41 days, having been taken on

19

th

May, 2011. The prosecution has not been able to explain the

reason as to why this delay took place. We find force in the

argument made on behalf of the Appellant-convict that the

circumstances under which the samples were sent from FSL,

Madurai to FSL, Chennai, are unclear. PW-27, who is a Scientific

Officer only states that after his analysis of the swab, he sent the

same to the DNA wing of the FSL Chennai. No reason is

forthcoming as to why and under whose orders the same were

sent to a different city. The final DNA report was prepared by

PW-34. He, however, in his evidence does not mention when the

samples were received by him or his office. Nor does he depose

the conditions in which the sample was received. In this regard,

Crl.A.No.1672/2019 Page 56 of 77

the Appellant-convict contended that the swab itself was received

by speed post. We find that to be an incorrect statement of facts.

PW-34 states that the report prepared by him was DNA 152/2011.

A perusal of the annexure to the DNA report

24

shows the label

given to the document sent by speed post as matching that of the

report prepared by PW-34. So, it is clear that the report was what

was sent by speed post, not the swab itself. That apart, had it

actually been that the swab was sent by speed post, we would be

nothing short of aghast. Time and again, this Court has

emphasized the importance of maintaining the sanctity of these

samples and, the investigating authorities actually doing

something so glaringly irresponsible would be an affront to any

and all observations that have been made by this Court over the

years.

30. Having noticed various gaps as above, the logical question

that arises is where were the swabs?; why were they sent for

forensic analysis belatedly?; were they properly stored?; whether

the Malkhana of the Police Station where they were kept

according to some of the witnesses, was sufficiently equipped or

not; if the same were kept in the hospital, was it ensured that no

other member of the staff could have had access to them?; in

whose custody were they?; if the swabs were damaged, who shall

be held responsible for the destruction of vital evidence, etc.

24

page 215 of the Appellants Convenience compilation

Crl.A.No.1672/2019 Page 57 of 77

Similar questions arise in connection with the semen sample

taken from the accused as a consequence of an order passed by

the Judicial Magistrate, Uthamapalayam, on 13

th

June, 2011. PW-

56 states that the said samples were sent to FSL, Chennai, on 16

th

June, 2011 but subsequently returned. It is unclear, yet again, that

between 13

th

and 16

th

June 2011 where such samples were stored;

who was in charge thereof and whether he had kept them in safe

custody?; how and in what condition they were sent; when and

why they were returned - unfortunately, all these questions have

no answer forthcoming from the record.

31. In Anil v. State of Maharashtra

25

this Court observed that

DNA profiles have had a tremendous impact on criminal

investigations. A DNA profile is valid and reliable, but the same

depends on quality control and procedures in the laboratory. We

may add to this position and say, that quality control and

procedures outside the laboratory matter equally as much in

ensuring that the best results can be derived from the samples

collected. We record with some sadness that there are quite a few

cases in which DNA evidence, despite being there, has to be

rejected for the reason that the manner, in which the samples were

handled during and after collection by the concerned doctor, in

transit to the lab, inside the lab and the results drawn therefrom,

are not in accordance with the best possible practices which

25

(2014) 4 SCC 69

Crl.A.No.1672/2019 Page 58 of 77

would focus on ensuring that throughout this process the samples

remain in pristine, hygienic and biologically suitable conditions.

32. One such instance where DNA evidence had to be rejected,

fairly recently, was a three-Judge Bench decision in Manoj v.

State of M.P.

26

. The Appellants in the said case had been

sentenced to death by the 1

st

Additional Sessions Judge, Indore,

for the murder in the course of the robbery of 3 women.

Ultimately, the Court commuted the death sentence to life

imprisonment with a minimum 25 years sentence; while dealing

with such evidence, it made detailed references to a 2007 paper

titled DNA Profiling In Justice Delivery System published by the

Central Forensic Science Laboratory, Kolkata and the previous

judgments of this Court wherein the topic of DNA has been dealt

with, as also the 185

th

report of the Law Commission of India.

In this case, DNA was rejected on the ground that recovery,

which was affected, was made from an open place, and the

likelihood of its contamination cannot be ruled out. It is also

observed that the bloodstains found on the articles were

disintegrated, and the quantity was insufficient to run any

classification tests.

33. Rahul (supra) was a case concerning the kidnap, rape and

murder of a woman, wherein 3 persons were convicted by the

Special Fast-Track Court, Dwarka Courts in Sessions Case No.91

26

(2023) 2 SCC 353

Crl.A.No.1672/2019 Page 59 of 77

of 2013. These persons had kidnapped a woman as she returned

from work, proceeded to do horrible things to her, and then

dumped her lifeless remains in a field, from where it was

discovered four days later. The DNA evidence, here, was rejected

because it remained in the police Malkhana for two months and

in such time, the possibility of tampering could not be ruled out.

It was also held that neither the Trial Court nor the High Court

had examined the underlying basis of the findings in the DNA

reports or whether the techniques used had been reliably applied

by the concerned expert. As such, it was concluded that the DNA

profile, in the absence of such evidence, had become highly

vulnerable when the collection and sealing of the samples sent

for examination was not free from suspicion.

34. Prakash Nishad v. State of Maharashtra

27

was a case

concerning the rape and murder of a 6-year-old child. Similar to

the present case, it was a case of circumstantial evidence. Based

on the disclosure statement made by the Appellant therein, the

police found certain garments as also traces of semen of the

Appellant on the vaginal smear of the minor victim, based on

which he was sought to be convicted. DNA evidence had to be

rejected by this Court on the grounds that there was a delay in

sending the samples to the FSL, which was unexplained. It was

observed that because of the delay, the concomitant prospect of

27

(2023) 16 SCC 357

Crl.A.No.1672/2019 Page 60 of 77

contamination could not be ruled out. The need for expediency

in sending samples to the concerned laboratories was

underscored.

35. This case, incidentally, if not unfortunately, is another one

of the like of the above. Despite the presence of DNA evidence,

it has to be discarded for the reason that proper methods and

procedures were not followed in the collection, sealing, storage,

and employment of the evidence in the course of the Appellant-

convict's conviction. DNA, as we have observed, has been held

to be largely dependable, even though this evidence is only of

probative value, subject to the condition that it is properly dealt

with. Over the past decades, many cases have come to their

logical conclusion with the aid of DNA evidence in many regions

across the world. It is also equally true that many persons

wrongly convicted have finally had justice served, with them

being declared innocent because of advancements in this

technology. It is unfortunate that, alongside such advancements,

we still have cases where, despite the evidence being present, it

has to be rejected for the reason that the concerned persons, either

doctors or investigators, have been careless in the handling of

such sensitive evidence.

Circumstance Five: Motive

36. It is settled law that, in a case of circumstantial evidence

as this one is, motive forms one of the chains of circumstance

Crl.A.No.1672/2019 Page 61 of 77

which can collectively point to the guilt of the accused.

According to the prosecution, robbery was the Appellant-

convict's motive for ending the lives of D1 and D2. On first

blush, this hypothesis appears to be attractive for the reason that

the robbery of gold ornaments worn by Bhagyalakshmi at the

first instance, and subsequently D2, is what eventually gave way

to the crimes for which he stands convicted concurrently by the

Courts below. The counsel for the Appellant-convict seeks to

dispel the presence of motive by stating that there were other

instruments/ornaments of the two victims, which could have

been taken by the Appellant-convict and put to his own use or

sold off for one sum of money or another; however, that was not

the case. The ring worn by D2 and the mobile phone of D1, which

undoubtedly were in their possession, were neither found in the

possession of the Appellant-convict nor near the scene of the

crime.

37. It has come on record that the Appellant-convict, due to

various factors, had taken to crime. As we have already

discussed, it is not the case of the prosecution that the said objects

were taken by the Appellant-convict and then misused or sold.

When the identity of the gold chain could not be unquestionably

established and the fact that the other goods that were in

possession of the victims at the time of the crime were also not

Crl.A.No.1672/2019 Page 62 of 77

recovered from or at the instance of the Appellant-convict, we

find it difficult to ascribe any motive on his part.

Circumstance Six: Test Identification Parade

38. The investigating authorities conducted a test

identification parade - asking PW-5 to identify the Appellant-

convict from a long line of habitual offenders. He did so thrice.

This has been taken as another circumstance against the convict

Appellant. Before proceeding to the merits of this circumstance,

let us appreciate the law on this point.

38.1 No provision of law casts an obligation upon the

investigating authorities to conduct a test identification

parade. If it is conducted, the provision that governs is

Section 162, Cr.P.C. [See: Munshi Singh Gautam v. State

of M.P.

28

; Malkhansingh v. State of M.P.

29

; Visveswaran v.

State

30

; and Ashok Debbarma v. State of Tripura

31

.]

38.2 The onus to show that the T.I.P. has been conducted

in accordance with law lies on the prosecution, and only

after this burden stands prima facie discharged, does the

28

(2005) 9 SCC 631

29

(2003) 5 SCC 746

30

(2003) 6 SCC 73

31

(2014) 4 SCC 747

Crl.A.No.1672/2019 Page 63 of 77

question of considering objections in this regard arise. [See:

Umesh Chandra v. State of Uttarakhand

32

.]

38.3 It is not a substantive piece of evidence. Its only

purpose is for the investigating authorities to analyse the

correctness, or lack thereof, of the direction in which they

are steering the investigation. [See: Hari Nath v. State of

U.P.

33

; and Iqbal v. State of U.P.

34

]

38.4 If the prosecution does not establish, by

examination of witnesses to the T.I.P., and the Magistrate

entrusted therewith, it cannot be said that it was conducted

per law. [See: Umesh Chandra (supra).]

38.5 There is no hard and fast rule about delay in

conducting T.I.P. being fatal to the case of the prosecution.

In certain cases, relatively small delay has been considered

fatal yet in others, a delay of as much as 40 days is not fatal.

[See: Raja v. State

35

.]

38.6 The prosecution must establish that prior to the test

identification parade being conducted, the witness had no

opportunity to see the accused. In other words, the accused

32

(2021) 17 SCC 616

33

(1988) 1 SCC 14

34

(2015) 6 SCC 623

35

(2020) 15 SCC 562

Crl.A.No.1672/2019 Page 64 of 77

must be kept ‘baparda’. [See: Gireesan Nair v. State of

Kerala

36

; and Budhsen v. State of U.P.

37

.]

38.7 If the above has not been ensured, the evidence of

the T.I.P. becomes inadmissible. It has also been held that if,

prior to the T.I.P. the witness has the opportunity to see even

the photograph of the accused person, such process becomes

inconsequential. [See: Maya Kaur Baldevsingh Sardar v.

State of Maharashtra

38

; C. Muniappan v. State of T.N.

39

;

and Sk. Umar Ahmed Shaikh v. State of Maharashtra

40

.]

38.8 Dock identification by the informant, even in the

absence of T.I.P., can be accepted, but generally, as a matter

of prudence, a witness’s identification of an accused in

Court is sought to be corroborated by the identification by

the former of the latter in previously conducted

identification proceedings [Rajesh v. State of Haryana

41

;

and Mukesh v. State (NCT of Delhi)

42

.]

38.9 Considering the facts and circumstances of the case

at hand, it is open for the Court to draw an adverse inference

against the witness, should they put forth a refusal to

36

(2023) 1 SCC 180

37

(1970) 2 SCC 128

38

(2007) 12 SCC 654

39

(2010) 9 SCC 567

40

(1998) 5 SCC 103

41

(2021) 1 SCC 118

42

(2017) 6 SCC 1

Crl.A.No.1672/2019 Page 65 of 77

participate in the identification proceedings. [See: Mohd.

Anwar v. State (NCT of Delhi)

43

.]

39. It is plain as day that the above principles were not

observed in the present case. We are constrained to record our

astonishment as to how the Courts below considered the

identification proceedings as a circumstance accruing against the

Appellant-convict. It is undoubted that PW-50, in his testimony,

gives sufficient detail as to the procedure followed in conducting

the T.I.P., and on that count, no assault can be made thereon,

however, as the preceding paragraph establishes, there are other

equally crucial factors. It is a matter of record that PW-5 (the

witness who participated in the T.I.P.), in his testimony, stated

that about a week after he gave information to the concerned

police about the incident of 14

th

May, 2011, he saw the Appellant-

convict at the said police station. Most importantly, as has come

on record, the police officials had informed him about the

Appellant-convict committing the crime. As held by Budhsen

(supra) as far back as the year 1970, by Suryamoorthy v.

Govindaswamy

44

in 1989, Suresh Chandra Bahri v. State of

Bihar

45

in 1995, Mulla v. State of U.P

46

in 2010, i.e., well before

the judgment of the learned Trial Court was pronounced, that if

43

(2020) 7 SCC 391

44

(1989) 3 SCC 24

45

1995 Supp. (1) SCC 80

46

(2010) 3 SCC 508

Crl.A.No.1672/2019 Page 66 of 77

the said witness had the opportunity to see the accused, in any

form, after the incident the subject matter of testimony, but prior

to the identification proceedings, it would render the same to be

ineffective. Then, in our view, the courts below committed an

error of elephantine proportions in considering these proceedings

as forming one of the chains of circumstances against the

Appellant-convict.

Two Additional Points

One: Other Suspects Remained Unexplored

40. Most importantly, PW-2, the father of D1 in his testimony

deposed that he feared the involvement of four other persons. In

order to have that possibility sufficiently explored, he filed a case

before the High Court seeking transfer of the investigation to

CBCID. PW-56, the Investigating Officer on behalf of the

CBCID submitted that on 8

th

August, 2011, he recorded the

statements of PW-5 (Rajkumar), Bhagyalakshmi, and suspects -

Francis, Arjunan, Ambazhagan. These statements are not on

record. How these statements were pursued, verified, and taken

to their logical conclusion is unknown to record, more so, to the

findings of the Courts below. PW-56, in his own deposition, also

does not give any details as to what they may have said to him

during his examination. Curiously, if Bhagyalakshmi had been

examined by him, why her statement was not produced before

Crl.A.No.1672/2019 Page 67 of 77

the Trial Court is a question which remains unanswered. The

prosecution has nowhere stated that PW-2's suspicion on these

persons was unfounded or misguided. That being the case, the

non-pursuance of these suspects is a circumstance to be taken

against the prosecution case.

Two: Non-examination of Bhagyalakshami

41. PW-5 in his testimony states that he knew both the victims,

D1 and D2 through Bhagyakshami. Undisputably, D2 and she

were friends. She was obviously there at the time of the incident.

She was the one who had informed PW-5 that D2 did not attend

college the next day. Further, she was the one who told PW-5

that they had been murdered in suspicious circumstances which

led the latter to go to the police on 20

th

May, 2011 and tell them

his version of events on the fateful day of 14

th

May 2011. All of

these essential happenings have a link, i.e., the lover of PW-5.

Then, why she remained unexamined by the prosecution is a

mystery. Still further, it has come on record, as we have noticed

supra that PW-56 recorded her statement. However, how it

escaped the attention of both the Courts below that the statement

was not on record, is surprising. She could have given essential

testimony for the last seen theory to be applied to the present

case; she could have deposed as to the relationship between D1

and D2; the possibility of an elopement which formed the basis

Crl.A.No.1672/2019 Page 68 of 77

of PW-5 not approaching the authorities even after he came to

know from her that D2 did not attend college. She could have

further been an additional witness in the T.I.P., which would have

lent credence to the prosecution case. Undoubtedly, she would

have been a material witness, and her non-examination is a

negative circumstance against the prosecution’s case. We are

supported in our conclusion by the observations made Takhaji

Hiraji v. Thakore Kubersing Chamansing

47

, which are extracted

as follows :

“19… It is true that if a material witness, who would

unfold the genesis of the incident or an essential part of

the prosecution case, not convincingly brought to fore

otherwise, or where there is a gap or infirmity in the

prosecution case which could have been supplied or

made good by examining a witness who though available

is not examined, the prosecution case can be termed as

suffering from a deficiency and withholding of such a

material witness would oblige the court to draw an

adverse inference against the prosecution by holding that

if the witness would have been examined it would not

have supported the prosecution case. On the other hand

if already overwhelming evidence is available and

examination of other witnesses would only be a

repetition or duplication of the evidence already

adduced, non-examination of such other witnesses may

not be material. In such a case the court ought to

scrutinise the worth of the evidence adduced. The court

of facts must ask itself — whether in the facts and

circumstances of the case, it was necessary to examine

such other witness, and if so, whether such witness was

available to be examined and yet was being withheld

from the court. If the answer be positive then only a

question of drawing an adverse inference may arise. If

47

(2001) 6 SCC 145

Crl.A.No.1672/2019 Page 69 of 77

the witnesses already examined are reliable and the

testimony coming from their mouth is unimpeachable

the court can safely act upon it, uninfluenced by the

factum of non-examination of other witnesses.”

FAULTY INVESTIGATION

42. A common thread that can be seen to be running through

the entire process that has culminated by way of this judgment,

is that of faulty investigation. Since we have already discussed

the evidence on record in detail, we may only point out various

instances :

A) The identity of the accused could not be sufficiently

protected leading to its disclosure well before the T.I.P. was

conducted;

B) Although there is no straight-jacket formula as to when

T.I.P. can be/cannot be conducted, the delay in doing so has to be

examined in the facts and circumstances of the case. The nine-

day delay herein is entirely unexplained;

C) Lack of coordination between investigating agencies.

Bhagyalakshmi has not been arrayed as a witness, despite

examination by PW-56 who is the person concerned at the

CBCID. The other investigating officer did not examine her

despite a clear link to the deceased persons and the star witness

of the prosecution;

D) Requisite care regarding the sensitive evidence (DNA etc.)

was not taken in the slightest. There are large gaps in the chain

of custody which are unexplained;

Crl.A.No.1672/2019 Page 70 of 77

E) Surprisingly and shockingly, we may say that the post-

mortem of the deceased persons was conducted at the spot of the

crime without due regard to the possibility of contamination,

effect of such examination being conducted in the open, etc.

None of the Courts below have found this to be objectionable;

F) Possibility of ruling out the involvement of third party in

the crime.

DNA- A NECISSITATED ADDENDUM

43. As we have discussed earlier in this judgment, the DNA

evidence collected has been rendered unusable. It suffers from

various shortcomings in as much as there is large amount of

unexplained delay; the chain of custody cannot be established;

possibility of contamination cannot be ruled out etc. We have

also referred to instances in the recent past where, similar to the

case at hand the DNA evidence was rendered unusable on

account of similar lapses. A perusal of the various documents

released by a number of bodies such as the Standard Operating

Procedure for Crime Scene Investigation issued by the

Directorate of Forensic Science Service, Ministry of Home

Affairs and Government of India

48

; Guidelines for collection,

storage and transportation of Crime Scene DNA samples issued

by the Central Forensic Science Laboratory, Directorate of

48

http://164.100.117.138/pdfs/crime%20scene%20manual%20full_organized.pdf

Crl.A.No.1672/2019 Page 71 of 77

Forensic Science Service, Ministry of Home Affairs and

Government of India

49

; a Forensic Guide for Crime Investigators

(Standard Operating Procedures) issued by LNJN National

Institute of Criminology and Forensic Science, Ministry of Home

Affairs, Government of India

50

show that, although, procedures

have been suggested, there is no uniformity nor there is a

common procedure which is required to be followed by all

investigating authorities. This, obviously, has the potential to

have an impact on the cases investigated. When it comes to

procedure followed by the police generally, differences therein

are understandable keeping in view the difference in society,

regional complexities as also other factors given the wide length

and breadth of the Country, however, the same yardstick cannot

be applied when it comes to sensitive evidence such as DNA for

the concerns, causes of its dilution in evidentiary value and

requirements for it to be collected and maintained in pristine

condition is not subject to the same factors. So, even though

‘Police’, ‘Public Order’ are subjects mentioned in List-II of the

Seventh Schedule of the Constitution of India that in itself cannot

permit differing procedures and sensitivities to such evidence, to

rule the roost. The aspects in which we find there to be errors

49

https://www.cfslchandigarh.gov.in/Uploads/Media/Original/20180627121024_IO-

SOP%20Final.pdf

50

https://jhpolice.gov.in/sites/default/files/documents-

reports/jhpolice_ebook_a_forensic_guide_for_crime_investigators.pdf

Crl.A.No.1672/2019 Page 72 of 77

committed regularly are in fact procedural aspects which aid the

sanctity of the evidence.

44. This lack of a common procedure to be followed, is

concerning. As such, we issue the following directions which

shall be followed henceforth, in all cases where DNA Evidence

is involved:

1. The collection of DNA samples once made after due care

and compliance of all necessary procedure including swift

and appropriate packaging including a) FIR number and

date; b) Section and the statute involved therein; c) details

of I.O., Police station; and d) requisite serial number shall

be duly documented. The document recording the

collection shall have the signatures and designations of the

medical professional present, the investigating officer and

independent witnesses. Here only we may clarify that the

absence of independent witnesses shall not be taken to be

compromising to the collection of such evidence, but the

efforts made to join such witnesses and the eventual

inability to do so shall be duly put down in record.

2. The Investigating Officer shall be responsible for the

transportation of the DNA evidence to the concerned

police station or the hospital concerned, as the case may

be. He shall also be responsible for ensuring that the

samples so taken reach the concerned forensic science

Crl.A.No.1672/2019 Page 73 of 77

laboratory with dispatch and in any case not later than 48-

hours from the time of collection. Should any extraneous

circumstance present itself and the 48-hours timeline

cannot be complied with, the reason for the delay shall be

duly recorded in the case diary. Throughout, the requisite

efforts be made to preserve the samples as per the

requirement corresponding to the nature of the sample

taken.

3. In the time that the DNA samples are stored pending trial

appeal etc., no package shall be opened, altered or resealed

without express authorisation of the Trial Court acting

upon a statement of a duly qualified and experienced

medical professional to the effect that the same shall not

have a negative impact on the sanctity of the evidence and

with the Court being assured that such a step is necessary

for proper and just outcome of the Investigation/Trial.

4. Right from the point of collection to the logical end, i.e.,

conviction or acquittal of the accused, a Chain of Custody

Register shall be maintained wherein each and every

movement of the evidence shall be recorded with counter

sign at each end thereof stating also the reason therefor.

This Chain of Custody Register shall necessarily be

appended as part of the Trial Court record. Failure to

Crl.A.No.1672/2019 Page 74 of 77

maintain the same shall render the I.O. responsible for

explaining such lapse.

The Directors General of Police of all the States shall

prepare sample forms of the Chain of Custody Register and all

other documentation directed above and ensure its dispatch to all

districts with necessary instruction as may be required.

CONCLUSION

45. Consequent to the above discussion, we have no hesitation

in holding that none of the circumstances posited by the

prosecution are found to be conclusively proved against the

Appellant-convict. The chain of circumstantial evidence in no

way points to a singular hypothesis, that is the guilt of the

accused, ruling out his innocence or involvement of none else in

the crime. As a result, the conviction of the Appellant-convict is

vacated. He is directed to be released forthwith if not required in

any other case. The appeal is allowed.

46. Recently, this Court, in a case concerning violation of the

Prevention of Money Laundering Act, 2002

51

and where the

accused person had been in prolonged detention, made some

observations regarding Article 21 of the Constitution of India.

They are extracted below for reference :

51

V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement-2024 INSC 739

Crl.A.No.1672/2019 Page 75 of 77

“28. Some day, the courts, especially the

Constitutional Courts, will have to take a call on a

peculiar situation that arises in our justice delivery

system. There are cases where clean acquittal is

granted by the criminal courts to the accused after

very long incarceration as an undertrial. When we say

clean acquittal, we are excluding the cases where the

witnesses have turned hostile or there is a bona fide

defective investigation. In such cases of clean

acquittal, crucial years in the life of the accused are

lost. In a given case, it may amount to violation of

rights of the accused under Article 21 of the

Constitution which may give rise to a claim for

compensation.

29. As stated earlier, the appellant has been

incarcerated for 15 months or more for the offence

punishable under the PMLA. In the facts of the case,

the trial of the scheduled offences and, consequently,

the PMLA offence is not likely to be completed in

three to four years or even more. If the appellant’s

detention is continued, it will amount to an

infringement of his fundamental right under Article

21 of the Constitution of India of speedy trial.”

Kattavellai @ Devakar has secured a clean acquittal here as well.

Let it be clarified that we are not commenting as to whether the

day of reckoning with this question has arrived, but we may only

see that in case such an approach is adopted, we would not be

breaking new ground but only affirming our commitment to the

constitutional guarantee of Right to Life under Article 21 of the

Constitution of India. The Law Commission of India in its 277

th

report titled ‘Wrongful Prosecution Miscarriage of Justice: Legal

Remedies’ dealt with this issue. However, the Report confined the

Crl.A.No.1672/2019 Page 76 of 77

understanding of ‘wrongful prosecution’ to include only

malicious prosecution, and the prosecution initiated without good

faith. It does not, therefore, directly deal with the situation with

which we are confronted. In this case, as is obvious, the accused

was taken into custody, and it is the judicial process that has taken

such a long time to come to a conclusion. The worrying feature

here is that the conviction had no legs to stand on whatsoever and

yet the Appellant-convict has been in custody for years. In

foreign jurisdictions such as the United States of America

52

,

acquittal after a long period of incarceration has led Courts to

direct States to award compensation to the persons who suffered

behind bars, only to be eventually held innocent. This right to

compensation has been recognised by both Federal and State

statutes. There are two ways that compensation can be claimed

– tort claims/civil rights suits/moral bills of obligation and,

statutory claims. Given the variety of statutes across jurisdictions

grounds for compensations/procedures vary significantly.

Well, it is for the legislature to consider this aspect.

The Registry is directed to send a copy of this judgment to

all High Courts and also the Directors General of the Police of all

States to ensure necessary compliance. The Police Academies of

52

M.J. Ryan, “Compensation for Wrongful Convictions in the United States” in

Compensation for Wrongful Convictions – a Comparative Perspective, Jasinski and

Kremens (Eds.) 2023.

Crl.A.No.1672/2019 Page 77 of 77

the States are requested to examine the necessity of conducting

training of the Investigating Officers to ensure full compliance

with the requisite precautions and procedures in accordance with

the directions issued herein above.

Pending applications, if any, shall stand disposed of.

…………………………J.

(VIKRAM NATH)

…………………………J.

(SANJAY KAROL)

…………………………J.

(SANDEEP MEHTA)

New Delhi

July 15, 2025.