Kerala High Court
Viswanathan vs State Of Kerala on 17 June, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 17TH DAY OF JUNE 2025 / 27TH JYAISHTA, 1947
CRL.A NO. 532 OF 2020
AGAINST THE JUDGMENT DATED 03.05.2019 IN SC NO.199 OF 2017 OF
III ADDITIONAL DISTRICT & SESSIONS COURT, THODUPUZHA
APPELLANT/1ST ACCUSED:
VISWANATHAN
AGED 60 YEARS, S/O. MADASWAMY, C. NO. 3467,
CENTRAL PRISON & CORRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM,
AND RESIDED AT RANJINI BHAVAN, KACHERIKKUNNU BHAGOM,
PEERMADU KARA, PEERMADU VILLAGE, PEERMADU TALUK
BY ADV SMT.V.K.HEMA (STATE BRIEF)
RESPONDENT/COMPLAINANT:
1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2. THE INSPECTOR OF POLICE PEERMADE POLICE STATION.
BY SMT.NEEMA T.V., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
17.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan, J.
This appeal is preferred by the 1st accused in S.C.No. 199 of 2017 on the
file of the III Additional Sessions Judge, Thodupuzha, challenging the finding of
guilt, conviction, and sentence arrived at against him. By the impugned judgment,
the appellant was found guilty and was convicted and sentenced to undergo
Rigorous Imprisonment for a period of 20 years and to pay a fine of Rs.1,00,000/-,
with a default clause for the offence under Section 376D of the Indian Penal Code,
and to undergo imprisonment for life and to pay a find of Rs.50,000/-, with a
default clause for the offence under Section 302 of the IPC.
Brief Statement of Facts:
2. Sabitha Maji, wife of Kundan Maji (PW1), was a 32-year-old woman
and the mother of a child. A native of Odisha, she was employed along with her
husband in the “Kallivayal Estate” at Kuttikanam. The couple resided in a line
building “Layam” allotted to estate workers by the management. On 01.01.2017,
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being a Sunday, there was no scheduled work at the estate. However, PW1 opted towork that day and left for work at around 7:00 a.m., accompanied by ten other
workers. At the time, Sabitha Maji was washing clothes outside their quarters. The
appellant resided in the adjacent room, while other neighbouring rooms were
occupied by PW2 and a woman named Sumathi.
2.1 PW1 returned from work at approximately 5:00 p.m., only to find
that his wife was missing. He enquired with the neighbours and conducted a search
in the locality but his wife could not be located.
2.2 Later that night, the Estate Manager and more employees joined the
search efforts. At midnight, the body of Sabitha Maji was discovered in a bushy,
forested area, concealed under dry leaves with multiple cut injuries all over her
body. PW1 then approached the police and lodged a complaint, based on which,
Crime No.6 of 2017 of Peerumedu Police Station was registered at 7:00 a.m. on
02.01.2017 under Section 302 IPC.
2.3. At the time of lodging the First Information Statement, none of the
estate employees had any knowledge of the identity of the perpetrators.
2.4 The investigation was taken over by PW13, the Circle Inspector of
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Police, Peerumedu. He conducted the inquest over the body of the deceased
(Ext.P2) and seized the clothes, bangles, a tooth and other items found near the
body. The assistance of Forensic experts, a Scientific Assistant, and Dog Squad was
secured. Translators and interpreters were also engaged to communicate with
estate workers.
2.5 On 03.01.2017, the 1st and 2nd accused were arrested as per
Ext.P20 and Ext. P23 arrest memos. Their personal belongings were seized. On
04.01.2017, an address verification report (Ext.P24) was submitted to the court,
containing the details of the accused. Subsequently, Ext.P25 was forwarded,
incorporating Section 376 r/w. Section 34 IPC, in addition to Section 302 of the IPC.
2.6. A scene mahazar (Ext.P4) was prepared in the presence of
witnesses. Based on a disclosure statement (Ext.P5(a)) made by the 1st accused,
MO5 (chopper), allegedly used as the weapon in the crime, was recovered from
beneath the bed in his residence. The clothing worn by the 1st accused during the
commission of the offence was also seized (Ext. P6).
2.7 Both accused were subjected to potency tests, and samples of their
blood, hair, toenail, and fingernail clippings were collected for comparison. The
clothing purportedly worn by the 2nd accused during the incident was seized under
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Ext.P7 mahazar. A vaginal swab and smear were collected from the deceased by the
Doctor who conducted the autopsy and were handed over to the Investigating
Officer for analysis.
2.8 On completion of the investigation, the final report was submitted
before the jurisdictional Magistrate.
The Charge:
3. The prosecution case, as per the charge laid before the Court, is that
on 01.01.2017 at around 3:00 p.m., the accused, in furtherance of their common
intention to rape and murder, intercepted Sabitha Maji while she was returning
along the Kuttikanam-Mekkunnam Mud Road carrying twigs on her head, the 2nd
accused gave signals to the 1st accused intimating him of her arrival. On receiving
the signal, the 1st accused stealthy approached the deceased and allegedly struck
her on the back of her head with the blunt side of a chopper. She fell down in a
dazed state and the 1st accused is alleged to have raped her in the open with the
2nd accused holding her down, on the bare ground in the forest. Then the 2nd
accused raped her. Thereafter, the accused attempted to dispose of the injured in a
low-lying area, but the victim held on to a plant to resist. The 1st accused allegedly
cut her wrist with MO5 chopper, nearly severing her palm. The 2nd accused then
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took the MO5 weapon from the hands of the 1st accused and inflicted multiple cut
injuries on her face causing her death. On the basis of these allegations, the
accused were charged under Sections 376D and 302 r/w. Section of the IPC.
4. Committal proceedings were initiated by the learned Magistrate in
accordance with the law, and the case was committed to the Court of Session,
Thodupuzha, which court made over the case to the Additional Sessions Judge.
After hearing the prosecution and the accused, charges were framed under Sections
376D, 302 r/w. Section 34 of the Indian Penal Code. When the same was read over,
they pleaded not guilty and that they be tried in accordance with the law.
5. While so, the 2nd accused filed an application under Section 307 of
the Cr.P.C. seeking pardon. The prosecution, on the other hand, filed an application
seeking to cancel the bail granted to the 1st accused. The application for the
cancellation of bail of the 1st accused was allowed. In response to the application
seeking pardon, an affidavit was filed by the Investigating Officer pointing out that
they have no objection to granting pardon to the 2nd accused and in making him
an approver. It was stated therein that the case rested on circumstantial evidence,
and if the 2nd accused is examined as a prosecution witness, it would enable the
prosecution to procure the conviction of the 1st accused. The learned Sessions
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Judge allowed the application by order dated 22.12.2018, and the 2nd accused was
transposed as additional witness No.21 for the prosecution.
Evidence Tendered:
6. To prove its case, the prosecution examined 13 witnesses as PWs 1 to
13 and through them Exts. P1 to 34 were exhibited and marked. Material objects
were produced and identified as MOs 1 to 26. After the close of the prosecution
evidence, the incriminating materials were put to the 1st accused under Section
313(1)(b) of the Cr.P.C. He denied the circumstances and maintained that he was
innocent. According to him, he was working in the bamboo forest, cutting bamboo
till the evening. After finishing his work, he came back to the “Layam” and, after
taking a bath, went to Peerumedu. He received the information about the brutal
murder only the next day. On the side of the defence, the application filed by the
2nd accused seeking pardon was marked as Ext.D1.
Findings of the learned Sessions Judge:
7. The learned Sessions Judge arrived at the conclusion that the
testimony of PW2, the approver, was both credible and trustworthy. The Court
found that the evidence tendered by the approver clearly established that the 1st
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accused had subjected the deceased to rape, and thereafter inflicted multiple cutinjuries, and thereby committed murder. The Sessions Judge further held that the
medical evidence, along with the evidence relating to recovery, offered substantive
corroboration to the version of events put forward by the prosecution, as narrated
by the approver. The Court concluded that the prosecution had successfully proved
the essential ingredients of the offences punishable under Sections 376D and 302
of the IPC against the 1st accused. Accordingly, the 1st accused was convicted and
sentenced to undergo imprisonment for life.
Contentions of the appellant:
8. Smt. V.K. Hema, the learned counsel appearing for the appellant,
raised the following submissions:
a) The learned Sessions Judge failed to properly evaluate the evidence
adduced by the prosecution and proceeded to record a finding of guilt. While it is
settled law that an accomplice is a competent witness and a conviction can be
sustained solely on the basis of his uncorroborated testimony, it is equally
well-settled that such testimony must be approached with extreme caution. She
added that no reliance ought to be placed on the evidence of an accomplice unless
it is corroborated in material particulars.
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b) As per the police charge, there were only two accused persons, and
the 2nd accused was attributed with an equal, if not greater, role in the rape and
murder. However, in the petition filed under Section 307 of the Cr.P.C., the 2nd
accused came up with an exculpatory version to persuade the Court to grant him
pardon. In Ext.D1, the 2nd accused claimed that he was coerced and threatened by
the 1st accused to aid in the commission of the offence. He did not admit to having
raped the deceased, nor to having inflicted any cut injuries on her body.
c) The Sessions Court mechanically, and without due application of
mind, allowed the application and tendered pardon to the main assailant. Though
the power of the Court to grant pardon is not fettered by any rigid condition, the
Court is expected to exercise such discretion judiciously, particularly recognizing the
risk involved in allowing one offender to escape punishment at the cost of
implicating another. In a case such as the present, where only two accused are
involved and both are alleged to have played equal roles in the commission of the
crime, the grant of pardon was unwarranted. She argued that the principle
underlying the grant of pardon mandates that it be offered to the person least
culpable among multiple accused, and only where the facts justify such a course.
d) The learned counsel further submitted that, as per the prosecution
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case, the deceased was laid on the ground in a tea plantation and raped by two
adult males. However, the medical evidence did not corroborate this allegation.
While spermatozoa was detected in the vaginal swab and smear, the prosecution
failed to conduct a DNA analysis to determine whether it could be forensically linked
to either of the accused. PW1, the husband of the deceased, had deposed that the
couple had an active sexual life, but had also admitted that they last had
intercourse more than five days prior to the discovery of the body. Thus, had a
proper forensic analysis been conducted and if the spermatozoa was found to
belong to someone else, the very foundation of the prosecution case would have
collapsed.
e) Heavy reliance was placed by the learned Sessions Judge on the
evidence of recovery of MO5 weapon and clothes at the instance of the appellant.
The evidence was, however, lacking to substantiate the alleged recovery of the
weapon and clothes at the instance of the 1st accused. Though the prosecution
suggested that a sniffer dog played a crucial role in solving the crime, no evidence
was adduced to support this claim.
f) Apart from the testimony of PW2, the approver, and the alleged
recovery evidence, there was no other substantial evidence linking the 1st accused
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to the crime.
Submissions of the learned Public Prosecutor:
9. The learned Public Prosecutor countered the arguments advanced by
the learned counsel for the appellant. She submitted that PW2, the approver, was a
competent witness, and the Court had rightly found his testimony to be credible
and trustworthy, and there is no reason to discard it. She further pointed out that,
under Section 133 of the Indian Evidence Act, 1872, which is a rule of law, the
evidence of an accomplice is legally admissible and sufficient to sustain a
conviction. However, as per Section 114, Illustration (b) of the Evidence Act, which
lays down a rule of prudence, it is generally considered unsafe to base a conviction
solely on the uncorroborated testimony of an accomplice. The learned Public
Prosecutor emphasized that while a conviction based on the sole testimony of an
accomplice is not illegal per se, the rule of prudence mandates that the Court
should seek corroboration in material particulars to strengthen such testimony. In
the present case, she submitted that the recovery evidence at the instance of the
1st accused, coupled with the testimony of PW5, reasonably establishes the
presence of the 1st accused in and around the scene of occurrence. These pieces of
evidence, she argued, serve as sufficient corroboration to support the version of
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events narrated by PW2. The learned Public Prosecutor concluded by asserting thatthe learned Sessions Judge had rendered the finding of guilt after a meticulous and
comprehensive evaluation of the evidence on record, and that the conviction was
legally and factually sustainable.
10. We have carefully considered the submissions advanced by both
sides. We have also evaluated the entire evidence and have gone through the
impugned judgment.
Whether the death was homicidal?
11. Before we deal with the evidence of the prosecution witnesses, we
shall first assess whether the prosecution has established that the death of Sabitha
Maji was a case of homicide.
11.1 PW1, in his evidence, stated that his wife went missing on
01.01.2017, and that on the same night at midnight, her dead body was found in a
forest area by the employees of the estate. PW13, the Investigating Officer,
conducted the inquest over the body of the deceased. The autopsy was carried out
by PW7, a Lecturer in the Department of Forensic Medicine, who noted as many as
56 antemortem injuries on the body.
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11.2 Before addressing the nature of these injuries, it is pertinent to first
understand the prosecution case as detailed in the charge sheet. As per the charge,
the 1st accused initially struck the deceased on the back of her head with the blunt
side of MO5, a chopper. Following this blow, when the victim collapsed, she was
subjected to rape by accused Nos. 1 and 2, one after the other. Thereafter, the
accused attempted to lift her body, with the intention of disposing of it. While doing
so, the injured victim clutched onto a nearby plant, and in order to release her grip,
the 1st accused inflicted a cut injury on her wrist, nearly severing her palm. When
the victim cried out in pain, the 1st accused inflicted further cut injuries on her body
and then handed over the weapon to the 2nd accused, who proceeded to inflict
multiple cut injuries on her face.
11.3. The description of MO5, the chopper allegedly used in the offence, is
detailed in Ext. P28, the property list. The weapon is described as having an overall
length of 41 cm, with a blade portion measuring 21 cm in length and 4.5 cm in
width at the midpoint. It is sharp on one edge, blunt on the other, and has a
pointed front end. The grip portion of the handle is wrapped with a black rubber
band.
11.4 While there is no dispute that the death of Sabitha Maji was a clear
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case of homicide, we are left with serious doubts as to whether MO5 alone could
have caused all the injuries found on the body of the deceased. This is because
some of the wounds are long chop wounds with underlying fracture, some are small
incised wounds of minimum depth. There are also contusions and abrasions which
are not possible with the chopper. Be that as it may, it can safely be concluded that
the death of the deceased was a case of homicide.
Evidence let in by the prosecution:
12. PW1, the husband of the deceased, deposed that he was residing in
the “Layam” (estate accommodation for employees) with his wife and child. At the
relevant time, his child had gone to a friend’s house and was not at home. Although
01.01.2017 was a Sunday and a holiday, he chose to go for work. He left home at
7:00 a.m. and returned at 5:00 p.m. When he found that his wife was missing, he
enquired with the neighbours. He has asked the 1st accused, who was residing in
the adjacent building about her whereabouts. The 1st accused told him that his
wife might have gone to fetch their child. PW12 (Santhi), a senior employee of the
estate, informed PW4 (Geevarghese), the Estate Manager, who mobilised other
workers and formed a search party. During the search, the search party noticed
bloodstains in and around the bushes, and by midnight, they discovered the
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mutilated body of Sabitha Maji, concealed under leaves, with one hand protruding
outside. PW5 (Mikhael Joseph), the owner of the estate, was informed, and the
police were promptly alerted. Within an hour, PW11 (Charlie Thomas), the
Sub-Inspector of Police, arrived at the scene. PW1 gave a statement to the police at
7:30 a.m. on 02.01.2017, based on which the crime was registered.
12.1 During cross-examination, PW1 stated that the 1st accused was a
senior employee of the estate. He added that the 1st accused had a habit of ogling
at his wife and making inappropriate physical contact. However, he admitted that he
had not mentioned this behaviour in his statement to the police. He also testified
that the police dog squad arrived at the estate on 04.01.2017, and while PW2 was
sitting and eating lunch, the dog allegedly approached and caught hold of him.
Regarding his relationship with the deceased, he stated that he was sexually active,
and had engaged in sexual intercourse with his wife about 4-5 days before the
incident.
13. PW2 is the approver in this case. He stated that he was employed in
the “Kallivayal Estate” and was residing with his family, including his wife, in
“Layam” located between the houses of the deceased and one Sumathi. The 1st
accused lived alone in the first room of the Layam. PW2 deposed that on the
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evening of 31.12.2016, the 1st accused invited him to his room and offered him
liquor. During their conversation, the 1st accused remarked that the deceased was
beautiful and asked PW2 to approach Sabitha Maji. PW2 replied that he was afraid
of her and that she might beat him. He stated that when the 1st accused had
previously attempted to initiate contact with Sabitha, she had rejected him, saying
that he was too old, which apparently enraged him. On the next day, after the
parents of PW2 left for the market, he sat outside his house. The 1st accused
invited him again and asked him to follow Sabitha when she went out to collect
firewood, stating that he would be waiting in the bamboo plantation. PW2 was
instructed to signal the presence of Sabitha by throwing stones. He know that it
was for effectuating a sexual assault.
13.1 PW2 testified that he returned home and saw PW1 (Kundan Maji)
washing his hands after breakfast. After some time, PW1 left for work. At about
11:00 a.m., his parents left for the market. By then, only PW2, his sister, and
Sabitha were present in the Layam.
13.2 PW2 added that Sabitha had previously complained to his wife about
his alcohol use, and this led his in-laws to take his wife away. This, he claimed, had
caused him to harbour resentment toward Sabitha. At about 2:00 p.m., Sabitha left
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the house to collect firewood. PW2, wearing only a half-pant, followed her
discreetly. Sabitha did not notice him. As planned, he threw stones at the bamboo
plantation where the 1st accused was hiding.
13.3 Upon receiving the signal, the 1st accused emerged stealthily, armed
with a chopper used for cutting bamboo and came near to him. He asked PW2 to
climb on top of the hill and keep watch. The 1st accused then followed Sabitha and
struck her on the back of the head with the blunt side of the chopper, causing her
to collapse. Sabitha was carrying firewood at the time. PW2 then ran to the scene.
The 1st accused instructed him to hold Sabitha’s hands, while she lay face-up,
semi-conscious, and intermittently opening and closing her eyes. The 1st accused
lifted Sabitha’s saree and raped her, asking PW2 to look away. Thereafter, he
instructed PW2 to rape Sabitha. Subsequently, both accused attempted to move the
injured Sabitha to conceal her body. When she screamed and clutched onto a small
tree, the 1st accused inflicted a deep cut injury on her wrist, almost severing her
palm. As she cried out in pain, the 1st accused inflicted multiple cut injuries using
the chopper, after which PW2 believed Sabitha had died. They again attempted to
move the body. The 1st accused held her legs and PW2 held her hands, but due to
the blood and the weight of the body, she slipped from PW2’s grasp. The 1st
accused then wrapped her saree around her neck and dragged the body to a bushy
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area, covering it with leaves. PW2 stated that he had placed the chopper on the
ground beside him during the act, and later tucked it behind his back under his
clothing. The 1st accused instructed him to wash his hands and feet, which he did.
He also testified that the 1st accused placed a 100 Rupee note in the pocket of
PW2.
13.4 PW2 identified several material objects recovered during the
investigation, including MO5 (the chopper), MO6 (Sabitha’s saree), MO7 (blouse),
MO1 (locket), MO3 (broken red bangle piece), and MO4 (blue sandal). Thereafter,
PW2 went to Kuttikanam, bought biscuits, saw his parents at the market, and
returned home with them. He then told his mother what had happened. Enraged,
she slapped him and asked why he had consumed alcohol with the 1st accused
and gone to the forest. He also identified MO8 series sandals worn by the 1st
accused.
13.5 After the incident, he bought a new pair of pants and sandals, and
went to the house of his friend, where he hid his bloodstained half-pant and
sandals among firewood. He had dinner at his friend’s house and spent the night
there. The next morning, upon returning home, he noticed that the estate was
swarming with police.
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13.6 While he was having food, the police dog came near his room and
began scratching at the door. A policeman then beat him, and at that stage, he
divulged the details of the incident. He also revealed that the 1st accused had
threatened him not to tell anyone about what had happened. He recalled that PW1
had earlier asked him if he had seen his wife, and that he had lied, stating he had
not seen the 1st accused that day.
13.7 In cross-examination, PW2 stated that he had joined the estate
approximately eight months prior to the incident, while PW1 and his wife were
already residing there. He claimed to have had a friendly relationship with the 1st
accused and that they consumed alcohol together occasionally. He admitted to
frequent quarrels with his wife due to his drinking habits.
13.8 PW2 confirmed that the 1st accused lived alone, and stated that
Sabitha had complained to his in-laws about his alcohol abuse approximately one
month before the incident. He denied having picked a fight with Sabitha, though he
acknowledged that he had avoided speaking to her thereafter. However, he claimed
that Sabitha had tried to initiate conversation on several occasions. He further
stated that the 1st accused had only once asked him to speak to Sabitha, with the
intention of pursuing a sexual relationship and other objectionable matters.
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According to PW2, on the day prior to the incident, the 1st accused had called him
to his room and confided his desire to have a sexual relationship with Sabitha. PW2
admitted that, driven by resentment towards Sabitha for revealing his drinking
habits to his in-laws, he had agreed to assist the 1st accused. The petition filed by
PW2 seeking pardon was marked as Ext.D1. When questioned about whether the
1st accused had paid him Rs.100/- to throw stones as a signal, as stated in Ext.D1,
PW2 denied making such a statement and claimed that he helped the 1st accused
solely out of anger, since his wife had left him. He denied that the 1st accused had
offered him any money for his service. He stated that he did not mention about the
throwing of stones as requested by the 1st accused in Ext.D1. He stated that he
had followed Sabitha Maji for quite a distance. He denied having stated in Ext.D1
that he felt guilt ridden when he saw the 1st accused raping Sabitha and it was
then that he rushed to the place. He stated that he had stated in his petition that
after raping Sabitha, the 1st accused asked him to rape and he has no explanation
as to why such a statement is absent in Ext.D1. Various other discrepancies in his
statement before the court, vis-a-vis, Ext.D1 was brought out by the defence. He
stated that the 1st accused sat on the ground and inflicted cut injuries on the body
of Sabitha. Blood fell on the clothes of the 1st accused and his body. He stated that
he had disclosed whatever he knew to the police when they had questioned him.
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14. PW3 is the Estate Supervisor. On receiving information from the
Manager, he reached the estate at 9 a.m. He assisted the police in questioning the
employees. Material objects found at the scene were seized. He mentioned that one
tooth was seized from the place of occurrence. He stated that the body of Sabitha
was in a mutilated state. He stated that he is acquainted with the 1st accused, but
PW2 is a stranger.
15. PW4 was the Estate Supervisor during the relevant time. He stated
that the 1st accused was an employee of the Estate for the past 20 years but PW2
had joined the Estate as an employee only about 8 months back. It was Santhi who
had told him that Sabitha was missing. He stated how he and the employees went
in search of Sabitha and ultimately chanced upon her mutilated body. He stated
that the 1st accused led the Police to his house and then handed over the chopper
allegedly used for commission of the crime. On 6.1.2017, as led by PW2, the Police
went to his “Layam” and seized the clothes worn by him at the time of occurrence.
16. PW5 is the owner of the Estate. He stated that on 1.1.2017, he,
along with his family members, had gone to the Check dam for boating. While he
was boating, he could see the 1st accused in the bamboo forest cutting bamboo. At
about 1 p.m., he finished boating and returned back home. Late at night, he was
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informed about the murder and he instructed the Manager to look into the same.
17. PW7 is an Estate employee who testified that on 1.1.2017, he had
occasion to see the 1st accused cutting Bamboo in the forest near to the dam. They
exchanged pleasantries and he left the place. In the evening, he went to the
market and saw PW2 and Hemanth there. On the next day, early in the morning,
he received a call from a co-worker asking them to assemble in the office. He
stated that the 1st accused had also told him once that he liked her. The 1st
accused used to ask about his private life which he did not like.
18. PW10 was the Scientific Officer, DCRB, Pathanamthitta. She stated
that the room in which PW2 stayed was examined and she found the presence of
blood. A report was prepared. However, the Investigating Officer did not seek for
the report and hence she did not give.
19. PW12 is Santhi, and is a neighbour of the deceased. She stated that
on 1.1.2017 she had gone to the Bamboo Forest and had seen the 1st accused
there. She returned back at 2 p.m. While returning back, she had seen Sabitha
walking towards the Bamboo forest. She asked Sabitha where she was going and
she responded that she was going to collect firewood. She stated that PW2 was
also found following her.
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20. PW13 is the Investigating Officer. He deposed that, after taking over
the investigation on 02.01.2017, he held an inquest over the dead body of the
deceased, which is marked as Ext.P2. Various objects, including clothes, bangle,
tooth and other items found at the scene of crime, were seized, labelled, and
sealed for the purpose of forwarding them to the scientific analyst.
21. On 03.01.2017, the accused were arrested. The 1st accused was
taken to the scene of crime, and in his presence, Ext.P4 scene mahazar was
prepared. Pursuant to the disclosure statement made by the 1st accused, MO5
chopper was seized from beneath the bed in his residential house. The clothes
allegedly worn by him at the time of the crime were also seized under Ext.P6
mahazar. Samples of body fluids of the accused were collected and forwarded for
forensic analysis.
22. On 06.01.2017, based on the disclosure statement made by the 2nd
accused, the clothes worn by him at the time of the incident were seized and
marked as Ext.P7 mahazar.
23. During cross-examination, the Investigating Officer admitted that a
tooth and bloodstains were found approximately 18.96 meters away from the place
where the body was discovered. He also acknowledged that the tooth was sent for
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forensic examination. He further admitted that he had not verified whether a check
dam existed near the scene of crime. According to him, the Scientific Analyst had
informed him that bloodstains were detected on the ground and walls inside the
house of the 2nd accused. However, according to him, a chicken had been
slaughtered inside the house, which, in his opinion, explained the presence of the
bloodstains. When confronted with Ext.D1, the petition seeking pardon, filed by the
2nd accused and the fact that the version of the approver, was found to be at total
variance with the charge, the witness stated that he had not read the petition
carefully and was unaware of its contents. He also denied the allegation that the 1st
accused was subjected to custodial torture to extract a confession. Omissions in the
statement of PW12 were also brought to the witness’s attention during
cross-examination.
Evaluation of the evidence
24. In light of the evidence referred to above, it is evident that the
prosecution case fundamentally rests on the testimony of PW2, the approver. The
other incriminating material connecting the appellant with the crime is the alleged
recovery of MO5 chopper, claimed to have been used to inflict the fatal injuries and
the presence of human blood in the watch, chopper and ring. The sole additional
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circumstance relied upon is the evidence of PW5, who testified that the appellant
was seen near the Bamboo Forest at around 1:00 p.m.
25. Before examining the reliability of the testimony of the approver, it is
necessary to highlight certain aspects of the prosecution case which appear to be
inconsistent with the version of the approver of the incident. As per the charge laid
before the Court, the deceased, Sabitha Maji, was initially struck with the blunt side
of MO5, rendering her dazed and immobile. It is alleged that the accused then
subjected her to rape, one after the other. Thereafter, they are said to have inflicted
as many as 56 injuries on her body using the MO5 chopper and then disposed of
the dead body. Immediately thereafter, the 1st accused was found in his Layam and
PW1 met him and enquired the whereabouts of his wife with him.
26. When it comes to the allegation of rape by multiple persons, PW7,
the Doctor who conducted the autopsy and and who had issued Ext.P9 postmortem
certificate did not note anything untoward in the vaginal region of the deceased. He
observed that the hymen exhibited old and healed tears. The victim was allegedly
raped in open ground in a forested region by two adult males. The injuries found on
the body of the accused are noted in Ext.P15 Certificate insofar as it concerns the
1st accused and Ext.P14 Certificate insofar as it concerns the 2nd accused. In
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Ext.P15, the Doctor has noted an abrasion injury in the right arm, left leg, and right
leg. Those are all very minor injuries. Insofar as the 2nd accused is concerned, is
a scratch mark on the left side of the neck.
27. During the postmortem, vaginal swabs and smears were collected
and sent for Forensic analysis. As per Ext.P10 series Chemical Analysis Report,
human semen and spermatozoa were detected in the vaginal samples. During
cross-examination, PW1 was specifically asked regarding the date of last
intercourse with his wife. He stated that it had occurred 4 – 5 days before she was
found dead. The learned Sessions Judge, however, rejected the possibility that the
semen could belong to PW1, relying on authoritative forensic literature which states
that motile spermatozoa (sperm cells that are able to move, or swim, with the help
of their flagellum) typically survive in the vagina for 6 to 8 hours, occasionally up to
12 hours. Non-motile sperm can be detected for up to 24 hours, with occasional
reports up to 48-72 hours, and very rarely beyond 96 hours. Based on this scientific
timeline, the court concluded that intercourse must have taken place within a much
shorter window prior to death and that the victim was indeed subjected to rape.
The testimony of PW2 was considered corroborative on this aspect.
28. However, there exists a fundamental flaw in the conclusion arrived at
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by the learned Sessions Judge. The specific case of the prosecution is that the
deceased was subjected to sexual assault by both the accused. Having found that
the spermatozoa is not that of PW1, it could have belonged to either of the accused
or of a third person, if the assertion of innocence of the appellant is accepted.
Given that blood samples of both accused were collected, the failure to conduct
DNA profiling on the recovered spermatozoa is scientifically indefensible. DNA
analysis is a highly accurate and established method for individual identification in
forensic investigations, particularly in sexual assault cases. A comparative DNA
analysis between the semen sample and the blood samples of the accused would
have provided conclusive evidence to identify or exclude either accused as the
source. In other words, if the DNA analysis had indicated that the semen did not
belong to the 1st accused but matched the 2nd accused, or was inconsistent with
both, it would have fundamentally altered the prosecutorial narrative. Therefore,
the omission to conduct such a crucial scientific test introduces a significant
evidentiary gap and raises serious doubt about the reliability and completeness of
the case of the prosecution.
29. The next significant aspect pertains to the detection of bloodstains
on the walls and floor of the house where PW2 resided. PW10, the Scientific Officer,
DCRB, Pathanamthitta, deposed that she had examined the premises and observed
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the presence of blood on the floor and walls of the room occupied by PW2. She
further stated that a report documenting these findings was prepared. However,
this report was neither summoned by the prosecution nor produced before the
Court by the Investigating Officer, and thus was not made part of the evidentiary
record. If the testimony of PW2 is accepted as truthful, his account indicates that
he was wearing only a half-pant when he had aided the 1st accused and after the
incident and as instructed by the 1st accused, he had cleaned himself. Under such
circumstances, the presence of blood in his room becomes highly material. The
suppression of the scientific report by the Investigating Officer, despite its clear
relevance to the prosecution case, and its usefulness in revealing the truth, raises
serious concerns about the transparency and integrity of the investigation. The
omission also undermines the possibility of establishing whether the bloodstains
were consistent with the prosecution version, or indicative of a different role or
major role of PW2 in the incident. The concealment or non production of the report,
therefore, creates a serious flaw and evidentiary gap that casts doubt on the
version of events advanced by the prosecution.
30. Now we shall come to the evidence of the approver. The Trial court
has heavily relied on the evidence of the approver to arrive at the finding of guilt.
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31. The materials before this Court reveals that PW2 was aged about 18
years old and he was married. He was an alcoholic. The evidence let in by PW12
reveals that he used to beat up his wife after consuming alcohol. The case of the
prosecution was that he was also nursing animosity towards the deceased as she
informed his in-laws about his addiction to alcohol and wife beating and it was
pursuant to the same that they had come and taken away his wife. While PW1 is
alleged to have nursed a desire to be sexually intimate with the deceased, PW2 had
every reason to be angry towards the deceased as she was instrumental in causing
a breakup between him and his wife. PW1 in his examination stated that when the
deceased complained about the 1st accused, he responded that the 1st accused
was harmless as he was an old man.
32. In the Police Charge, the allegation against the 2nd accused is as
serious as that of the 1st accused. He had also subjected the deceased to rape and
thereafter took the chopper from the hands of the 1st accused and inflicted cut
injuries on her face. He also was instrumental in disposing of the body.
33. It was after the framing of charge and when the case was posted for
trial that the appellant had come up with a petition (Ext.D1) invoking Section 307 of
the Cr.P.C. seeking pardon. In the said petition, he has diluted his involvement and
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has given a self exculpatory version.
34. We shall first deal with the question whether the learned Sessions
Judge was justified in granting pardon to PW2. The learned counsel had pointed out
that the grant of pardon to PW2 is illegal for several reasons. According to her,
a) The role of PW2 is equal if not more grave than that of the 1st
accused. Admittedly, he had animosity towards the deceased as per the charge. He
had actively participated in the commission of the offence. He had raped the
deceased and had inflicted injuries on her face with a chopper. It is settled that
while tendering pardon, the court has to offer pardon to one of the least guilty
among the several accused. In the case on hand, an equal, if not more major role
is attributed to PW2.
b) Ext.D1 submitted by PW1 before the learned Sessions Judge was
self-exculpatory. In the petition, he has stated that he was threatened and coerced
by the 1st accused to aid him whereas as per the charge, his role was much more
grave.
c) The failure of the Sessions Judge to record the statement in
compliance of Section 306(4) r/w. Section 307 of the Cr.P.C. is fatal. In the case on
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hand, the court has accepted the petition seeking pardon of the approver and has
not insisted that a statement of the 2nd accused be recorded so as to bind him.
d) The learned Sessions Judge has casually granted pardon and
permitted PW2 to escape from punishment by making the appellant the sacrificial
lamb.
e) At any rate, the evidence tendered by the approver could have been
the basis for arriving at a finding of guilt. Lack of corroboration of the evidence
tendered by the approver was also highlighted.
35. We shall deal with the questions raised by the learned counsel
before deciding on the credibility and reliability of the testimony of PW2.
36. Section 306 of the Cr.P.C. deals with a tender of pardon to an
accomplice. It reads as under:
306. Tender of pardon to accomplice.–(1) With a view to
obtaining the evidence of any person supposed to have been
directly or indirectly concerned in or privy to an offence to which
this section applies, the Chief Judicial Magistrate or a Metropolitan
Magistrate at any stage of the investigation or inquiry into, or the
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trial of, the offence, and the Magistrate of the first class inquiring
into or trying the offence, at any stage of the inquiry or trial, may
tender a pardon to such person on condition of his making a full
and true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission
thereof.
(2) This section applies to–
(a) any offence triable exclusively by the Court of Session or
by the Court of a Special Judge appointed under the
Criminal Law Amendment Act, 1952 (46 of 1952);
(b) any offence punishable with imprisonment which may
extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1)
shall record–
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the
person to whom it was made, and shall, on application
made by the accused, furnish him with a copy of such
record free of cost.
(4) Every person accepting a tender of pardon made under
sub-section (1)–
(a) shall be examined as a witness in the Court of the
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Magistrate taking cognizance of the offence and in
the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in
custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under
sub-section (1) and has been examined under sub-section (4),
the Magistrate taking cognizance of the offence shall, without
making any further inquiry in the case,–
(a) commit it for trial–
(i) to the Court of Session if the offence is triable
exclusively by that Court or if the Magistrate taking
cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the
Criminal Law Amendment Act, 1952 (46 of 1952), if
the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief
Judicial Magistrate who shall try the case himself.
37. Section 307 of the Cr.P.C. reads as under:
307.Power to direct tender of pardon.–At any time after
commitment of a case but before judgment is passed, the court to
which the commitment is made may, with a view to obtaining at the
trial the evidence of any person supposed to have been directly or
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indirectly concerned in, or privy to, any such offence, tender a
pardon on the same condition to such person.
38. A conjoint reading of the provisions makes it clear that under Section
306 of the Cr.P.C., with a view to securing the evidence of a person believed to be
directly or indirectly concerned in, or privy to, an offence to which the section
applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of
the investigation, inquiry, or trial, and a Magistrate of the First Class at any stage of
the inquiry or trial, may tender a pardon to such person on the condition that he
makes a full and true disclosure of all the facts within his knowledge relating to the
offence and every other person involved, whether as principal or abettor. On
acceptance of the pardon, the approver shall be examined as a witness both in the
court of Magistrate and in the subsequent trial and shall, unless already on bail,
remain in custody until the conclusion of the trial. Section 307 of the Cr.P.C. confers
power on the court to which the case has been committed to tender a pardon, at
any time after such commitment but before judgment, to any person believed to be
directly or indirectly concerned in, or privy to, the offence, on the same condition as
specified in Section 306 of the Cr.P.C., namely, that such person makes a full and
true disclosure of the entire circumstances within his knowledge pertaining to the
offence and the involvement of others therein.
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39. Under Section 306(4) of the Cr.P.C., every person accepting a tender
of pardon made under Sub-section (1) has to be examined as a witness in the Court
of the Magistrate, taking cognizance of the offence and in the subsequent trial.
Section 307 of the Cr.P.C. says that even after the commitment of a case, and
before the judgment is passed, the Court may tender pardon on the same
condition, which means the conditions prescribed under Section 306 of the Cr.P.C.
40. In Rampal Pithwa Rahidas v. State of Maharashtra1, the Apex
Court noticed the position that after the grant of pardon that the status of an
accused is changed into that of a witness and the law enjoins upon the courts to
record the statement of the approver immediately after pardon is granted to him so
that he may consider himself bound by that statement and failure to do so at the
trial would render him liable for prosecution. It was observed as under in paragraph
No. 33 of the judgment:
“33. A careful analysis of the statement of the approver given
at the trial coupled with the circumstances under which he came to
be arrested, the averments in his application for grant of bail and
other circumstances has created an impression on our minds that
the approver is a planted witness and his testimony is not at all
worthy of reliance and credence. The investigating agency appears1
[1994 SCC CRI 1 851]
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to have created false evidence and fabricated false clues insofar as
the testimony of the approver is concerned. From all the attendant
circumstances, we are satisfied that the approver Ramcharan is not
a reliable witness; his arrest was intrinsically unnatural and his
self-confessed participation in the crime without taking any active
part in it not acceptable. The approver has claimed to be a
spectator of every fact and of every moment but asserted that he
did not participate in the assault at any stage and remained
standing at a distance taking care of the clothes of some of the
co-accused. His statement is almost of an exculpatory nature. His
statement as a whole does not inspire confidence. His story is not
worthy of credence. We find ourselves unable to place any reliance
on his untrustworthy and unreliable evidence and in that view of the
matter, we refrain even from expressing any opinion about the
effect of the alleged non-compliance with the provisions of Section
306(4) CrPC read with Section 307 CrPC, as admittedly after the
grant of pardon by the order dated April 24, 1987, no statement of
Ramcharan approver was recorded till he appeared at the trial as
PW 49. It is only after the grant of pardon that the status of an
accused is changed into that of a witness and the law enjoins upon
the courts to record the statement of the approver immediately
after pardon is granted to him so that he may consider himself
bound by that statement and failure to do so at the trial would
render him liable for prosecution. That exercise was not performed
in this case.” (emphasis supplied)
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41. In the above case, the Apex Court had refrained from expressing any
opinion about the effect of the alleged non-compliance with the provisions of
Section 306(4) Cr.P.C. r/w. Section 307 Cr. P.C., though it was noted that after the
grant of pardon, no statement of Ramcharan approver was recorded till he
appeared at the trial as PW49. The Court noted that it was only after the grant of
pardon that the status of an accused is changed into that of a witness and the law
enjoins upon the courts to record the statement of the approver immediately after
pardon is granted to him so that he may consider himself bound by that statement
and failure to do so at the trial would render him liable for prosecution.
42. However, in Narayan Chetanram Chaudhary and Another v.
State of Maharashtra2, the Apex Court held that it is not necessary to comply
with the requirement of Section 306(4) of the Cr.P.C. when the pardon is tendered
by the Trial Court. Relying on the law laid down by the Apex Court in Suresh
Chandra Bahri v. State of Bihar3, it was observed by the Apex Court as under:
“26. In Suresh Chandra Bahri v. State of Bihar 1995 Supp (1)
SCC 80, (1994) 2 Crimes 1027 this Court while dealing with the case
where the approver was granted pardon by the committal court2
[(2000) 8 SCC 457]
3
[1994 AIR SC 2420]
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observed that every person accepting the tender of pardon made
under sub-section (1) of Section 306 has to be examined as a
witness in the Court of the Magistrate taking cognizance of the
offence and in the subsequent trial, if any. The examination of the
accomplice in such a situation was held to be mandatory which
could not be dispensed with. Referring to a Full Bench judgment of
the Gujarat High Court in Kalu Khoda v. State [AIR 1962 Guj 283
(FB)] this Court observed that:
“If the said defect of not examining the approver at the
committal stage by the committing Magistrate is rectified later,
no prejudice can be said to be caused to an accused person
and therefore the trial cannot be said to be vitiated on that
account.”
27. There is no legal obligation on the trial court or a right in
favour of the accused to insist for compliance with the requirement
of Section 306(4) CrPC. Section 307 provides a complete procedure
for recording the statement of an accomplice subject only to
compliance with the conditions specified in sub-section (1) of
Section 306. The law mandates the satisfaction of the court granting
pardon, that the accused would make a full and true disclosure of
the circumstances within his knowledge relative to the offence and
to every other person concerned, whether as principal or abettor, in
the commission thereof. It is not necessary to comply with the
requirement of Section 306(4) when the pardon is tendered by the
trial court. The trial court, in this case has taken all precautions in
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complying with the provisions of Section 306(1) before tendering
pardon to the accused Raju, who later appeared as PW2. We do not
find any violation of law or illegality in the procedure for tendering
the pardon and recording the statement of PW2.”
43. In the case on hand, the statement of the approver was not recorded
under Section 164 of the Cr.P.C.. The defence was prejudiced as PW2 had a free
hand before the trial court. They got his petition marked as Ext.D1 and confronted
him, and some contradictions were brought out while cross-examining him. As held
in Rampal Pithwa (supra), only after the grant of pardon that the status of an
accused is changed into that of a witness and the law enjoins upon the courts to
record the statement of the approver immediately after pardon is granted to him so
that he may consider himself bound by that statement and failure to do so at the trial
would render him liable for prosecution. We are, however, bound by the observations
in Narayan Chetanram Chaudhary (supra) wherein it was held that requirement
of recording a statement is not required when pardon is tendered under Section 307
of the Cr.P.C.
44. The next question is whether the evidence of the approver is to be
discarded in toto as it is exculpatory. We take note of the fact that the case set up
by the prosecution rested purely on circumstantial evidence. There is no eyewitness
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to the incident. It is the projected case of the prosecution which was attempted to
be proven by adducing evidence, both oral and documentary, that both the accused
had raped and had inflicted injuries on the deceased. In Ext.D1, PW2 has given his
version of the events and struck more or less to the same version when he was
examined before court. The application for pardon can be filed by the prosecution or
by one of the accused, out of several. If the application is filed by one of the
accused, the court has to refer it to the prosecuting agency and after getting their
inputs, pass a reasoned order. The power which the court exercises is not on its own
behalf but on behalf of the prosecuting agency and therefore, such power can be
exercised only when the prosecuting agency joins the request for pardon.
45. The primary object under Sections 306 and 307 of the Cr.P.C. is to
obtain the evidence of an accomplice to facilitate conviction of others. The secrecy
of the crime and scarcity of clues are some of the reasons which necessitates the
investigating agency in taking the evidence of an accomplice solely for the
apprehension of other offenders, the recovery of incriminating materials and the
production of evidence otherwise unobtainable. A wide power has been conferred
upon the court to tender a conditional pardon to a particular person with a view to
obtaining the evidence of that person in support of the charge against the other
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accused. Under sub-section (1) of Section 306 of the Cr.P.C., any person who is
directly or indirectly concerned or privy to an offence can be granted pardon on
condition that the said person makes a full and true disclosure of the whole of the
circumstances within his knowledge related to the offence and to every other person
concerned, whether as a principal or abettor, in the commission thereof.
46. In Suresh Chandra Bahri (supra), the Apex Court has explained the
purpose and scope of the provisions in the following words:
“Since many a times the crime i.s committed in a manner for
which no clue or any trace is available for its detection and, therefore,
pardon is granted for apprehension of the other offenders for the
recovery of the incriminating objects and the production of the
evidence which otherwise is unobtainable. The dominant object is that
the offenders of the heinous and grave offences do not go unpunished,
the legislature in its wisdom considered it necessary to introduce this
section and confine its operation to cases mentioned in Section 306 of
the Code. The object of Section 306 therefore is to allow pardon in
cases where heinous offence is alleged to have been committed by
several persons so that with the aid of the evidence of the person
granted pardon the offence may be brought home to the rest. The
basis of the tender of pardon is not the extent of the culpability of the
person to whom pardon is granted, but the principle is to prevent the
escape of the offenders from punishment in heinous offences for lack
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of evidence. There can therefore be no objection against tender of
pardon to an accomplice simply because in his confession, he does not
implicate himself to the same extent as the other accused because all
that Section 306 requires is that pardon may be tendered to any
person believed to be involved directly or indirectly in or privy to an
offence” (emphasis supplied).
47. As held by the Apex Court, the basis of the tender of pardon is not the
extent of the culpability of the person to whom pardon is granted, but to prevent the
escape of the offenders from punishment in heinous offences for lack of evidence.
On the sole reason that the approver does not implicate himself to the same extent
as the other accused would not make any difference as pardon may be tendered to
any person believed to be involved directly or indirectly in or privy to an offence. It
cannot be disputed that the appellant was directly involved and was privy to the
offence. In that view of the matter, the contention of the learned counsel that the
evidence of the approver being exculpatory, the same ought to be rejected, cannot
be accepted. However, the above aspect can be considered while appreciating the
credibility of his evidence.
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48. Now we shall consider the question whether the approver can be
considered to be a reliable witness and whether a conviction can be based on his
evidence.
49. Section 133 of the Evidence Act expressly provides that an accomplice
is a competent witness against his co-accused and it renders admissible the
testimony of an accomplice against his co-accused. It has, however, been a
long-settled practice of law that Section 133 of the Evidence Act must be read along
with the provisions of Illustration (b) to Section 114 of the Evidence Act. Section 114
of the Evidence Act empowers the court to presume the existence of certain facts,
and Illustration (b) in express terms says that an accomplice is unworthy of credit
unless he is corroborated in material particulars. Thus, it follows, that whereas law
permits the conviction of an accused person on the basis of the uncorroborated
testimony of an accomplice by virtue of the provisions of Section 133 who is treated
as a competent witness, the rule of prudence which has rightly been always accepted
by the courts, embodied in Illustration (b) of Section 114 of the Evidence Act, strikes
a note of warning/caution to the courts that an accomplice does not generally
deserve to be relied upon, unless his testimony is corroborated in material
particulars. Thus, as a matter of practice and prudence, the courts have held that the
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testimony of an approver may be accepted in evidence for recording conviction of an
accused person provided it receives corroboration from direct or circumstantial
evidence in material particulars. The courts have generally looked upon with
suspicion the statement of an approver because he is considered to be a person of
low morals and not a wholly trustworthy person who for the sake of earning pardon
for himself is willing to let down his erstwhile accomplices and therefore before
recording conviction courts insist upon independent corroboration of his testimony
(See: Rampal Pithwa (supra)).
50. In Narayan Chetanram Chaudhary (supra), the Apex Court
reiterated the need for corroboration in the following lines:
“37. For corroborative evidence the court must look at the broad
spectrum of the approver’s version and then find out whether there
is other evidence to corroborate and lend assurance to that version.
The nature and extent of such corroboration may depend upon the
facts of different cases. Corroboration need not be in the form of
ocular testimony of witnesses and may even be in the form of
circumstantial evidence. Corroborative evidence must be
independent and not vague or unreliable.”
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51. In Ram Narain v. State Of Rajasthan4, the Apex Court, while
laying down the principles observed as under:
“An approver who is admittedly guilty of the crime is an
accomplice who has betrayed his associates and has apparently
sought pardon for saving his own skin. In other words he has
purchased complete immunity for his prosecution at the expense of
his associates by agreeing to give evidence against them for the
prosecution. He is, therefore, presumed not to be a man of high
character or a fair witness. His pardon being conditional, to please
the prosecution he may well weave some false detail into the true
details of the prosecution story and may also falsely involve some
innocent person. There is thus a real danger of his telling a story true
in general outline but containing some untruth which he can easily
work into the story. It is for this reason that the courts as a matter of
prudence and caution anxiously look for some corroboration to satisfy
their conscience that the approver’s testimony which is clearly
admissible is also worthy of belief credit. One can of course visualise
an accomplice who is genuinely repentant for the commission of his
crime and truly desires to make a clean breast of the whole affair by
way of penitence. But even in such cases the court has to judicially
determine the extent to which his uncorroborated testimony can be
considered as trustworthy by looking to the other relevant material
and the attending circumstances on the basis of which the accused
can be safely convicted. The rule which seems to emerge from the4
[(1973) 3 SCC 805]
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foregoing discussion and judicial decisions is that the necessity of
corroboration as a matter of prudence except when it is safe to
dispense with such corroboration must be clearly present to the mind
of the judge.”
52. The principle stated above has withstood the test of time, and it is
with this well-settled legal background in mind that we proceed to evaluate the
testimony of PW2. While appreciating his evidence, the courts are required to
consider the circumstances under which he was arrested, the specific role attributed
to him in the charge, the actual role he played in the commission of the offence, and
the timing and manner in which he chose to turn approver. These are critical factors
in assessing the creditworthiness of his testimony and determining the nature and
extent of corroboration necessary before placing reliance upon it in support of the
prosecution case.
53. The specific case as per the charge is that PW2 committed the offence
of rape and, thereafter, took the chopper from the hands of the 1st accused and
inflicted cut injuries on the face of the deceased. Our endeavour is to assess the
broader version of events as narrated by the approver and examine whether there
exists other evidence that corroborates and lends assurance to his testimony. We
must also assess whether the evidence led by the prosecution to link the appellant
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with the crime is reliable, and we must ensure that the corroborative evidence is
independent, specific, and not vague or inherently unreliable.
54. PW1 stated that upon his return from work, the 1st accused was
present at the Layam, but PW2 was not seen. When the police dog was brought to
the estate, the canine led directly to the house of PW2 and caught him. Both PW4,
the Estate Manager, and PW6, an employee of the Estate, stated that the appellant
had been employed in the Estate for over a decade, whereas PW2 had joined only
about 6-8 months prior to the incident. PW4 further deposed that PW1 had
complained to him that PW2 had picked a quarrel with the deceased, Sabitha Maji,
accusing her of being responsible for his wife returning to her parental home. On at
least three occasions, PW2 picked quarrels with Sabitha, following which a complaint
was lodged against him, and PW4 had warned him to refrain from such conduct.
55. PW10, the Scientific expert, stated that blood was detected on the
walls and floor of the room in which PW2 was residing. However, the Investigating
Officer failed to obtain the relevant forensic report. PW10 clarified that the report
remains stored in her computer. PW12, a woman who had gone to the Bamboo
forest to collect firewood, stated that she met the 1st accused there and later saw
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Sabitha Maji going into the forest around 2:00 p.m. She further stated that she saw
PW2 following the deceased. The 1st accused was seen cutting bamboo at a location
far from the Layam. PW12 also stated that she saw PW2 approximately 15-20
meters away from the deceased. She added that PW2 had a history of domestic
violence and that his in-laws had taken away his wife. She denied having informed
the police that PW2 and the deceased had fought on prior occasions and that their
relationship was soured.
56. In the light of the evidence adduced, it becomes necessary to
evaluate the reliability of the testimony of PW2. In his deposition, PW2 suppresses
the fact that he had a strained relationship with the deceased and that he had
quarrelled with her on multiple occasions, prompting PW1 to file a complaint with the
Estate Manager, following which he was warned. As the 1st accused was residing in
an adjacent room, it is implausible that he was unaware of the discord between PW2
and Sabitha. In such a context, it is difficult to believe that the 1st accused would
have given money and alcohol to PW2, a newcomer in the Estate, to approach
Sabitha and express his desire to form a relationship with her.
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57. PW2 admits to having followed Sabitha Maji when she went into the
forest to collect firewood, a fact he could not suppress, given that PW12 had
independently testified to the same. He then proceeds to narrate his version of the
incident, in which he does not admit to having raped the deceased, nor does he
admit to having taken the chopper from the 1st accused to inflict injuries on her face.
Instead, he attributes the infliction of all injuries solely to the 1st accused. After the
disposal of the body, PW2 claims that the 1st accused asked him to wash his hands
and legs. PW2 further states that he was wearing only a half pant at the time, and
that after cleaning himself, he returned to the Layam, wore his shirt, and then went
to Kuttikkanam Junction to purchase biscuits. If, as claimed, he had thoroughly
washed himself of all bloodstains, there remains no credible explanation for the
presence of blood in his room, as detected by PW10, the Scientific Expert. Her
testimony in this regard stands unchallenged. If blood was indeed found in room of
PW2, his version of the events becomes suspect. The Investigating Officer, instead of
conducting a proper forensic investigation, opined that a chicken was butchered in
the room, resulting in blood being spattered on the floor and walls. This explanation
is difficult to believe, considering that the Layam is a residence with limited space
and is occupied by the family of PW1, including his parents and sister. In such
circumstances, it is more likely that a chicken would have been butchered outside
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and not inside the cramped room. Furthermore, the said assertion by the
Investigating Officer is at variance with the evidence tendered by the Scientific
expert.
58. Another serious lapse is the failure of the Investigating Officer to
investigate the identity of the tooth found a few meters away from the body of the
deceased. The prosecution, as well as the Doctor who conducted the autopsy, do not
assert that the deceased lost a tooth during the assault. Although the accused were
examined by a Doctor, there is no report suggesting that either of them had lost a
tooth. While the tooth was seized and forwarded for Forensic examination, no report
has been produced. This omission suggests that the prosecution is suppressing
material evidence that would not have aligned with its narrative.
59. The most glaring flaw in the investigation, however, is the failure to
subject the motile spermatozoa detected in the vaginal swabs and smears to DNA
analysis. As previously noted, Ext.P10 series of Chemical Analysis Report confirms the
presence of human semen and spermatozoa in the samples. Had DNA analysis been
conducted, the identity of the perpetrator could have been conclusively established,
leaving no room for speculation.
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60. In view of the discussion above, we are satisfied that PW2 is not a
totally reliable witness, relying on which we could have arrived at a finding of guilt
against the appellant. His self-confessed participation in the crime without taking any
active part in it is unacceptable. His statement is almost of an exculpatory nature and
at total variance with the charge and other evidence. His statement as a whole does
not inspire confidence and is not worthy of credence. We find ourselves unable to
place any reliance on his untrustworthy and unreliable evidence. Once the evidence
of the approver is found to be not reliable, the worth of his evidence is lost and such
evidence, even by seeking corroboration, cannot be made the foundation of a
conviction. The above ratio has been reaffirmed and reiterated by the Apex Court in
Suresh Chandra Bahri (supra), Ramprasad v. State of Maharashtra5 and
Narayan Chetanram Chaudhary (supra).
61. Even though we have held that the evidence of the approver is
unreliable, we shall for the sake of completeness, deal with the other evidence relied
on by the learned Sessions Judge to find the appellant guilty. The seizure of MO10
watch, MO11 ring from the body of the accused at the time of his arrest and
recovery of MO5 chopper, and MO16 to MO19 clothes of the 1st accused based on
5
[(1999) 5 SCC 30]
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the disclosure statement made by the appellant are the other pieces of evidence
relied on by the learned Sessions Judge. It was on 3.1.2017 at 7.30 p.m. that the 1st
accused was arrested. The watch, ring and sandals worn by the appellant were
seized by the police at the time of arrest as per Ext.P3 mahazar. Ext.P27 is the
property list dated 3.1.2017 detailing the property seized. It is evident from Ext. P27
that the seized items reached the court only on 9.1.2017. Ext.P32 is the report of
analysis. The said report states that human blood was detected in the watch, ring
and sandal of the 1st accused. The prosecution has not been able to let in evidence
to reveal the blood group of the accused or the deceased and that the human blood
found on the watches and ring was that of the deceased. Even otherwise, the
prosecution has not been able to establish the chain of custody for the court to safely
rule out any manipulation. We are, therefore, of the view that Ext.P32 report would
not in any way advance the case of the prosecution.
62. Now we shall come to the recovery of the chopper and clothes at the
instance of the 1st accused. It is on the basis of Ext.P5(a) confession of the 1st
accused that MO5 chopper was recovered from beneath the cot in his room being
number XVI/127-2011. The seizure mazahar is Ext.P5. It was on the basis of
Ext.P6(a) disclosure statement that MOs 16 to 19 clothes worn by him were seized.
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Ext.P6 is the seizure mahazar. PW4, the Estate Manager, who is the attestor to the
recovery mahazar. We have gone through Exts.P5 and P6 mahazars, the disclosure
alleged to be made by the accused and the evidence of PW13, the investigating
officer as well as the attestor. We are afraid that the requirements of law have not
been met.
63. In State of Rajasthan v. Bhup Singh6, the Apex Court has
observed the following as the conditions prescribed in Section 27 of the Evidence Act,
1872 for unwrapping the cover of the ban against the admissibility of the statement
of the accused to the police (1) a fact should have been discovered in consequence
of the information received from the accused; (2) he should have been accused of an
offence; (3) he should have been in the custody of a police officer when he supplied
the information; (4) the fact so discovered should have been deposed to by the
witness. The Court observed that if these conditions are satisfied, that part of the
information given by the accused which led to such recovery gets denuded of the
wrapper of prohibition and it becomes admissible in evidence.
6
[(1997) 10 SCC 675]
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64. In Ext.P5, the exact statement made by the appellant has not been
extracted. All that is stated is that when he was arrested, he confessed and
accordingly in the mahazar, it has been stated that വിശ്വനാഥനെ അറസ്റ്റ് ചെയ്തു കുറ്റസമ്മത
മൊഴി രേഖപെടുത്തിയതിൽ വെട്ടുകത്തി ഞാൻ താമസിക്കുന്ന എസ്റ്റേറ്റ് ലയം മുറിയുടെ കട്ടിലിന്റെ അടിയിൽ
വെച്ചിട്ടുണ്ട്. The same is the case with Ext.P6, the mahazar as per which the clothes
worn by the appellant were seized. None of the witnesses were present when the
confession statements were given by the accused. What emerges from the evidence
of the investigating officer is that the appellant stated before him while he was in
custody that the weapon and clothes have been concealed, and the accused is
alleged to have volunteered to take the Investigating Officer to enable him to
discover the place. This statement does not indicate or suggest that the appellant
indicated anything about his involvement in the concealment of the weapon. It is a
vague statement. Mere discovery cannot be interpreted as sufficient to infer
authorship of concealment by the person who discovered the weapon. He could have
derived knowledge of the existence of that weapon at the place through some other
source also. He might have even seen somebody concealing the weapon, and
therefore, it cannot be presumed or inferred that because a person discovered the
weapon, he was the person who had concealed it, lest it can be presumed that he
used it. This is the law laid down by the Apex Court in Ramanand alias Nandlal
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Bharti Vs. State of Uttar Pradesh7 and in Subramanya v. State of
Karnataka8. Applying the aforesaid principle of law laid down by the Apex Court, we
find the evidence of the investigating officer does not constitute legal evidence.
65. We have already held that the approver’s evidence is not reliable and
trustworthy. Even if it is assumed that the evidence of recovery of the material
objects at the instance of the accused is reliable, the same is not sufficient on its own
and without anything more to bring home the charges beyond reasonable doubt. The
above principle has been reiterated by the Apex Court in Vinobhai vs. State of
Kerala9. In the said case, while considering the principles, it was observed as under:
“8. In this case, there are material omissions which amount to
contradiction. Coupled with the material omissions, if we consider the
conduct of both the witnesses, their version does not inspire
confidence. Once evidence of these two witnesses is disbelieved, the
only remaining evidence against the appellant is of the recovery of the
knife at his instance. The law relating to the evidentiary value of
recovery made under Section 27 of the Indian Evidence Act, 1872 is
settled by this Court in the case of Manoj Kumar Soni v. State of M.P.2.
Paragraph 22 of the said decision reads thus:–
7
[2022 SCC OnLine SC 1396]
8
[2022 SCC OnLine SC 1400]
9
[2025 SCC OnLine SC 178]
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“22. A doubt looms : can disclosure statements per se,
unaccompanied by any supporting evidence, be deemed adequate
to secure a conviction? We find it implausible. Although disclosure
statements hold significance as a contributing factor in unriddling a
case, in our opinion, they are not so strong a piece of evidence
sufficient on its own and without anything more to bring home the
charges beyond reasonable doubt.”
66. After carefully examining the evidence presented by the prosecution,
we find that, apart from the many discrepancies in the prosecution case, the
testimony given by the approver is filled with inconsistencies and the same directly
conflicts with the other evidence brought forward by the prosecution. Furthermore,
the prosecution case does not exactly align with the scientific and medical evidence
on record. The failure of the prosecution to adduce DNA evidence with respect to the
spermatozoa and tooth, when such an examination would have clinched the issue,
exacerbates the situation even more. We are of the firm view that the support
available to back the testimony of the approver falls well short of the level needed to
rely on the version of an accomplice. The law clearly requires that the statement of
an approver, being that of a tainted witness, must be supported by independent and
reliable evidence. However, in this case, we do not find any such supporting
evidence, either direct or circumstantial, that would lend credibility or assurance to
what the approver has stated. The doubts this Court has about the involvement of
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the appellant go far beyond what can be considered reasonable doubt. We are fully
aware that acquitting an accused in a grave crime should happen only when the
evidence is clearly insufficient. But a criminal court cannot and must not take away a
person’s liberty, or impose a sentence as serious as life imprisonment, unless it is
reasonably sure of the guilt of the accused. In the present case, we are compelled
to conclude that the prosecution has not met that standard.
In the result, this appeal will stand allowed. The conviction and sentence of
the appellant in S.C. No. 199 of 2017 on the file of the III Additional Sessions Judge,
Thodupuzha, are set aside. We acquit the appellant and direct that he be set at
liberty forthwith, if his continued incarceration is not required in any other case.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
PS/APM/16/6/25