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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1450 OF 2009

Kumar                       .... Appellant(s)

Versus

State of Tamil Nadu               ....  Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) This appeal  has been filed against  the judgment  and  

order  dated  23.04.2008  passed  by  the  High  Court  of  

Judicature  at  Madras  in  Criminal  Appeal  No.  792  of  2007  

whereby the Division Bench of the High Court dismissed the  

appeal filed by the appellant herein and confirmed the order  

of conviction and sentence dated 30.07.2007 passed by the  

Ist Additional Sessions Judge, Salem, in Sessions Case No. 56  

of 2004.

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2) Brief facts:

(a) The  marriage  of  Vijayalakshmi  (the  deceased)  and  

Thiruselvam  was  solemnized  on  06.09.2001  at  Murugan  

Nagar, Zerinakadu, Yercaud, Tamil Nadu.  After the marriage,  

she was staying at her matrimonial home in a joint family  

consisting  of  her  husband,  Krishnan  (father-in-law),  

Chellammal  (mother-in-law)  and  Kumar-the  

appellant/accused, brother-in-law of the deceased.  After one  

year of the marriage, a baby girl was born out of the said  

wedlock.   

(b) It is the case of the prosecution that after the birth of  

the girl child, the deceased was harassed and tortured by her  

husband  and  in-laws  to  bring  money  from her  parents  in  

order to take care of the baby.  On several occasions, she  

was forced and even harassed to arrange money from her  

paternal  home in order to fulfill  the demand of dowry.  In  

addition  to  this,  her  brother-in-law,  Kumar  (the  appellant-

accused) had bad intentions towards her.   

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(c) On 15.08.2003, at 2.00 p.m., the deceased called her  

brother – Chandrabose (PW-1) over phone and informed him  

that her husband and in-laws are torturing her for the money  

and asked him to bring the money immediately, within one  

hour, failing which, she would kill her and her child.  Since  

she  disconnected  the  phone  immediately,  PW-1  tried  to  

contact her but he could not get it.  Thereafter, he spoke to  

his  sister-in-law  -  Mariyayi    (PW-3)  about  the  same  and  

asked her to visit the house of the deceased. At 3.30 p.m.,  

PW-1 got a call from his elder brother that Vijayalakshmi and  

her baby died due to burn injuries.  On the same day, PW-1  

registered a complaint with the Yercaud Police Station which  

was registered as Crime No. 350/2003 under Sections 498A  

and 304B of the Indian Penal  Code, 1860 (in short “IPC”).  

Taking note of the death of a 13 months’ old baby along with  

her  mother  by  burning  in  the  matrimonial  home,  the  

Superintendent  of  Police,  Yercaud,  himself  took  up  the  

investigation.  After  one week of the said  incident,  it  was  

published  in  the  newspapers  that  the  deceased  had  not  

committed suicide but it was a case of murder.   

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(d) During investigation, the role of the appellant-accused  

came to light whose intention was to rape her sister-in-law  

and,  on  the  fateful  day,  when  she  was  alone,  he  even  

attempted  to  have  sexual  intercourse  with  her.   When  

Vijayalakshmi resisted him, he struck a blow with ‘poorikatai’  

on her head due to which she fell unconscious.  Taking undue  

advantage  of  her  condition,  the  appellant-accused  had  

sexual  intercourse  with  her.   Immediately  thereafter,  he  

attacked her 13 months’ old baby-Srimathi who was playing  

nearby by giving a forcible punch on her face on account of  

which she also became unconscious.   

(e) It  was  further  revealed  during  investigation  that  the  

appellant-accused  with  the  intention  of  causing  

disappearance of evidence and in order to show it a suicidal  

case,  caused death of Vijayalakshmi  and her  daughter  by  

pouring kerosene and set them on fire.   It was also revealed  

during  investigation  that  the  appellant-accused  arranged  

kerosene for the same from one Selvi (PW-2) - the neighbour,  

on the pretext of cleaning a machine.  He also narrated the  

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whole incident to her and even threatened her to give a call  

to PW-1 impersonating the deceased, which she did.   

(f) On  the  basis  of  the  above  said  investigation,  a  

chargesheet  was  filed  against  the  appellant  herein  under  

Sections 376, 302, 302/201 and 506(2) of IPC and the case  

was committed to the court of Ist Additional Sessions Judge,  

Salem which was numbered as Sessions Case No.56 of 2004.  

(g) The  Additional  Sessions  Judge,  by  judgment  dated  

30.07.2007, convicted the appellant-accused under Sections  

376, 302, 302 read with 201 and 506 IPC and sentenced him  

to undergo rigorous imprisonment (RI) for 7 years along with  

a fine of Rs.5,000/-, in default,  to further undergo RI for 1  

year for the offence punishable under Section 376 of IPC.  He  

was further sentenced to undergo imprisonment for life along  

with a fine of Rs. 10,000/-, in default, to further undergo RI  

for 1 year for the offence under Section 302 of IPC.  Further,  

he was sentenced to undergo RI for 2 years along with a fine  

of Rs. 1,000/-, in default, to further undergo RI for 1 month  

for the offence under Section 201 of IPC for screening the  

evidence of rape and  murder.  He was further sentenced to  

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RI for 7 years along with a fine of Rs. 2,000/-, in default, to  

undergo RI for one year for the offence under Section 506(2)  

of IPC.  

(h) Challenging the said order, the appellant-accused filed  

Criminal Appeal No. 792 of 2007 before the High Court.  By  

impugned  judgment  dated  23.04.2008,  the  High  Court  

dismissed the said appeal and confirmed the conviction and  

sentence  imposed  on  the  appellant-accused  by  the  trial  

Court.

(i) Aggrieved by the said order, the appellant-accused has  

filed this appeal by way of special leave before this Court.

3) Heard Mr. V. Krishnamurthy, learned senior counsel for  

the appellant-accused and Mr. Subramonium Prasad, learned  

Additional Advocate General for the respondent-State.  

Contentions:

4) Mr.  V.  Krishnamurthy,  learned  senior  counsel  for  the  

appellant made the following contentions:

(i) At  the  foremost,  the  conviction  solely  based  on  the  

extra-judicial confession made to one Selvi (PW-2) cannot be  

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sustained  since  she  had  not  disclosed  the  same  at  the  

earliest point of time.

(ii) The reliance placed on the complaint (Exh. P-1) is also  

not sustainable inasmuch as in the said complaint, PW-1 had  

not  uttered  anything  about  the  conduct  of  the  appellant-

accused towards the deceased.  

(iii) The inconsistent stand of PW-3, particularly, at the time  

of incident and after a gap of 2 months, makes her evidence  

wholly unreliable.   

(iv) Inasmuch as PWs 4-8 were examined after a period of  

10-15 days, their statements are not reliable.

(v) Inasmuch as the evidence clearly shows that it is a case  

of suicidal death, the conviction and sentence under Section  

302 of IPC is not maintainable.

(vi) Finally, the offence under Sections 376, 302 and 302  

read  with  201  IPC  has  not  been  proved  with  the  aid  of  

medical evidence, beyond reasonable doubt, therefore, the  

conviction and sentence under these sections have to be set  

aside.

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5) Mr. Subramonium Prasad, learned Additional Advocate  

General for the Respondent-State while rebutting the above  

contentions submitted as under:-

(i)  The  extra-judicial  confession  made  to  PW-2,  who  is  a  

neighbour, is reliable and acceptable since in her statement  

made to K. Palanivelu, Deputy Superintendent of Police (PW-

30), she stated that she was threatened by the accused that  

he would do away with her in the same manner like that of  

the deceased if  she reveals the same to anyone and also  

made her to impersonate as the deceased over phone to PW-

1.  It is further submitted that it is clear from the above that  

the accused threatened her to death due to which she did  

not  disclose anything  to  Thiru P.  Kannuchamy (PW-17)  on  

16.08.2003,  the  very  next  day  after  the  alleged  incident.  

Hence, the same would not make her evidence unreliable as  

she is the only witness who saw the deceased and her child  

in the kitchen before the incident and in the hall after they  

were burnt to death.

(ii) With regard to the contention that PW-1 had not uttered  

anything about the conduct of the appellant in the complaint,  

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learned AAG submitted that since PW-1 was informed by PW-

3 about the conduct of the accused towards the deceased  

only after the publication of article in the newspapers that  

the death of the deceased is not suicide but homicide, hence  

the same was not mentioned in his complaint (Exh. P-1).  The  

evidence of PW-3 is more dependable since on seeing the  

article in the newspaper that the death was homicidal, she  

recalled the statement made by the deceased with regard to  

the  conduct  of  the  accused  15  days  prior  to  the  date  of  

occurrence and the gap of 2 months does not render her  

evidence unreliable.

(iii) With  regard  to  the  contention  regarding  delay  in  

examining  PWs 4-8,  learned  AAG submitted  that  PWs 4-8  

only spoke about the movement of the accused just prior to  

the occurrence, immediately thereafter and at the place of  

occurrence.  Inasmuch as they are not eye-witnesses, even  

the delay in examining them would not make their evidence  

unbelievable.  

(iv) As regards the claim that it is a case of suicide, learned  

AAG  submitted  that  while  explaining  the  extra-judicial  

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confession made by the accused, PW-2 had explained that  

the accused had an eye over the deceased and since the  

deceased refused to heed his wish, he hit the deceased on  

her  head  and  when  she  fell  unconscious,  the  accused  

committed rape on her.  PW-2 also witnessed the deceased  

and her child lying in the kitchen before being burnt and in  

the hall after they were burnt to death.  He further submitted  

that in view of the above, it clearly establishes the motive  

under Section 302 and 376 IPC.

(v) In reply to the contention regarding deposition of more  

carbon  particles  in  the  kitchen  in  comparison  to  the  hall  

supported with the fact that the tiles were removed from the  

kitchen  only  and  also  the  evidence  of  the  brother  of  the  

deceased (PW-1) who had stated that the deceased called  

him and stated that she would commit suicide if he did not  

reach  her  place  within  one  hour  with  money,  it  was  

submitted by learned AAG that in view of the deposition of  

PW-2 coupled with the certificate (Exh. P-25) issued by Dr. R.  

Vallimayagam (PW-20), who examined the accused and the  

evidence of Tmt. Kamalatchi (PW-11), the Scientific Officer,  

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who examined the brief (M.O. 15) and detected semen in it  

as  per  the  Chemical  Report  (Exh.  P-8),  there  is  no doubt  

about the role of the appellant-accused in committing rape  

and double murder.

6) We have carefully considered the rival contentions and  

also perused all the materials relied on by both sides.   

Discussion:

7) Inasmuch as the extra-judicial confession made by the  

accused is a material evidence for prosecution, let us discuss  

its reliability and acceptability.

8) The law is well settled as to what extent extra-judicial  

confession can be relied on.  If the same is voluntary and  

made in a fit state of mind, it can be relied upon along with  

other materials.  It is true that the extra-judicial confession is  

a weak type of evidence and depends upon the nature of  

circumstances like the time when the confession was made  

and  the  credibility  of  the  witnesses  who speak  to  such  a  

confession.   

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9) The extra-judicial confession was made by the accused  

to Selvi (PW-2), who is his neighbour. In her evidence, she  

deposed that  she is residing near  the Krishnan’s House in  

Murugan  Nagar,  Yercaud.   At  the  relevant  time,  she  was  

working as an Assistant of Nutritious Meal in Mungagambadi  

School.   According  to  her,  she  knows  the  deceased  

Vijayalakshmi  and  her  child  as  her  neighbours.   She  also  

identified the accused in the Court.   She narrated that on  

15.08.2003, when she was having lunch at  her home, the  

appellant-accused called her and asked for some Kerosene  

for cleaning the machine.  As requested, she handed over  

the Kerosene available in a 10 litre can.  Within 10 minutes,  

when she came out of the  house,  she saw the appellant-

accused standing on the rear side of the house who asked  

her to come by action.  When she went there, the accused  

called her inside the house where she saw that Vijayalakshmi  

and her daughter lying without any sign of life. After seeing  

this, she asked the appellant-accused “You sinner.  What did  

you do to her?”  The appellant-accused told her not to shout.  

Thereafter, he told her that he had an eye on his sister-in-

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law.  She further deposed that the accused informed her that  

since nobody was there in the house, he embraced her but  

when she did not agree for the same, he took a wooden ruler  

used to make ‘poorikattai’ and gave a blow on her head due  

to which, she became unconscious and fell down.  Thereafter,  

he raped her and he also informed PW-2 that he will make it  

as  if  she  had  committed  suicide.   He  also  said  that  he  

punched the baby on her nose who was playing nearby and  

when the child cried, he put the child also near to his sister-

in-law.   Thereafter,  the  accused  squashed  her  neck  and  

threatened her not to tell this matter to anyone, otherwise,  

he will kill her also.  On his direction, PW-2 made a call to the  

elder brother of the deceased over phone.  In her evidence,  

she further deposed that at about 2.00 p.m., she ran from  

there and again returned to their house at 4.00 p.m. and saw  

that lot of persons were gathered at the spot.  She further  

noticed from the kitchen that  Vijayalakshmi  and her  child  

were burnt and lying in the hall.  On 16.08.2003, she was  

examined  by  Revenue  Divisional  Officer  but  she  did  not  

depose  much  to  him.   On  17.08.2003,  when  she  was  

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examined  by  the  Deputy  Superintendent  of  Police,  she  

deposed all the details to him.  Similarly, on 19.08.2003 and  

25.08.2003, she was examined by Superintendent of Police  

and the Magistrate Court respectively and she deposed the  

entire truth before them.

10) The analysis of the evidence of PW-2 clearly shows that  

the extra  judicial  confession was made by the accused to  

her, who is a neighbour.  It is also clear from her evidence  

that the accused had taken kerosene from her house stating  

that it was required for cleaning the machine and thereafter,  

when PW-2 came out, she was called by the accused to his  

house where she witnessed the deceased and her child lying  

unconscious  in  the  kitchen.   When  she  questioned  the  

accused  about  the  same,  he  admitted  to  her  about  the  

occurrence  and  compelled  her  to  speak  to  PW-1  

impersonating the deceased by threatening her.  It is also  

clear that among all the prosecution witnesses, PW-2 was the  

only  witness  who saw the  deceased  and  her  child  in  the  

kitchen before being burnt and in the hall  after they were  

burnt.   It  is  only  PW-2  before  whom  the  accused  had  

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confessed about  the  commission of  offence  under  Section  

376.  The trial Court as well as the High Court rightly relied  

on the evidence of PW-2.  Her statement before the Court  

and confession made by the accused before Shri T.P. Rajesh  

(PW-28),  the  District  Revenue  Officer  corroborates  each  

other.  Even in cross-examination, PW-2 reiterated what she  

deposed in the examination-in-chief.  There is no reason to  

disbelieve her testimony, on the other other hand, the same  

is acceptable if we consider other circumstances.

11) Apart from the extra-judicial confession made to PW-2  

by the accused, who is a neighbour, the prosecution heavily  

relied on various circumstantial evidence.

12) While discussing the evidence of PW-2, this Court noted  

her statement that the accused threatened her to call  the  

brother of the deceased (PW-1) as if that the deceased was  

calling him by putting her saree on the receiver of the phone.  

In fact, PW-2 spoke to PW-1 as threatened by the accused  

that  she  had  been  tortured  for  money  and  asked  him to  

come within one hour, otherwise, she would commit suicide.   

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13) Now, it is useful to refer the evidence of PW-1.  He is the  

brother of the deceased and residing in Mettupalayam and at  

the  relevant  time,  he  was  working  as  a  clerk  in  Kerala  

Transport Office.  It is also informed by him that the accused  

is brother of his younger sister’s husband.  In his evidence,  

he deposed that the deceased called him over phone and  

asked him to come with money within an hour, otherwise,  

she would commit suicide.  Thereafter, PW-1 contacted at his  

brother’s residence as  well  as  his sister-in-law (PW-3)  and  

informed  about  the  demand  made  by  the  deceased  over  

phone and asked PW-3 to visit the place of the deceased and  

apprise him.  His evidence further disclosed that he hurriedly  

reached his sister’s house around 7 p.m., where he saw that  

his  younger  sister  and the  child  were  burnt  to  death  and  

were lying on the back of the floor.  Thereafter, he along with  

his elder brothers-Thangavelu and Balasubramaniam, went  

to Yercaud Police Station and informed the incident.  Though  

Mr. Krishnamurhty, learned senior counsel for the appellant  

raised  a  doubt  about  the  phone  call  by  showing  the  

telephone  number  and  other  details,  if  we  consider  the  

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evidence of PW-1 along with the evidence of PW-2, there is  

no reason to doubt the veracity of their evidence.

14) One Mariyayi was examined as PW-3.  She is a resident  

of Vellakkadai, Yerkaud, Tamil Nadu.  Her husband is running  

a  grocery shop.   According to her,  the  deceased was her  

sister-in-law.  She narrated about the marriage of her sister-

in-law and the child born to her.  In her evidence, she also  

stated that PW-1 called her and stated about the demand  

raised by the deceased over phone.  We have analysed the  

evidence  of  PW-3  with  that  of  PWs  1  and  2  and  we  are  

satisfied that the evidence of PW-2 is corroborated by the  

evidence  of  PW-1  in  respect  of  the  phone  call  by  PW-2  

impersonating the deceased, hence, all the three witnesses  

support the case put forth by the prosecution.

15) As  regards  the  offence  under  Section  376  of  IPC  

followed  by  death  is  concerned,  in  the  extra-judicial  

confession made by the accused to PW-2, he had stated that  

when he hugged the deceased, she refused to accept and  

wanted to wriggle out of it, hence, he hit on her head with  

‘poorikattai’ (M.O. 11) due to which she fell unconscious.  The  

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wound certificate  (Exh.     P-25)  supports  the  case  of  the  

prosecution viz., that the simple injury might be due to finger  

nail  scratch.   In  addition,  the  Chemical  Report  (Exh.  P-8)  

stating  that  the  brief  (M.O.  15)  contained  semen  also  

supports  the  claim  made  by  the  prosecution  about  the  

offence under  Section 376 of  IPC.   No doubt,  there  is  no  

medical  evidence  about  the  same,  however,  Shri  S.  

Neelamegan (PW-24), the doctor who conducted the autopsy,  

had stated that due to extensive burns over the front part of  

the  body,  he  could  not  noticed  any  symptom  for  the  

commission of offence of rape.  In  view of the  explanation  

offered and also if we consider the evidence of PW-24, there  

is no difficulty in accepting the case of the prosecution that  

the accused committed rape before setting fire on her body.

16) The prosecution has also proved the motive from the  

evidence of PWs 2 and 3.  When PW-2 explained about the  

extra-judicial confession made by the accused, she informed  

the court that the accused had an eye over the deceased  

and since nobody was in the house on the date and time of  

the  incident,  he  intends  to  utilize  the  same.   Since  the  

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deceased  refused  to  accede  to  his  wish,  he  forcibly  

committed the offence of rape by pushing her down.  This  

aspect has been corroborated by PW-3 in categorical terms.

17) Apart from this, PW-3, in her evidence also explained  

the complaint made by the deceased about the conduct of  

the accused and his behaviour towards her.  PW-3 has also  

stated that when the deceased visited her house on the last  

occasion, she narrated the lust of the accused and requested  

her not to reveal the same to anyone including her brother  

viz., husband of PW-3.  PW-3 has also stated in her evidence  

that when her husband came to know about this he scolded  

her, in fact, he slapped her for not informing the same at the  

appropriate time.  

18) Dr. S. Neelamegam (PW-24), the Doctor who conducted  

the post mortem had deposed that the back side of the body,  

crown  of  the  head  and  the  soles  were  not  burnt  and,  

therefore, there is no possibility of committing suicide.   It is  

noted in the Post Mortem Certificate (Ex. P-46) that extensive  

second degree  burns were found on the  front  side  of the  

whole  body  except  the  crown  of  head,  the  back  head,  

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backside, buttocks and the bottom of the foot.  As rightly  

pointed  out  by  the  prosecution  that  if  the  deceased  had  

committed  suicide,  naturally,  she  would  have  poured  

kerosene on her head which would have spread on all over  

her body and on setting fire, all parts of the body would have  

got burnt.   As pointed out above, the  post mortem report  

shows differently.  The way in which she was lying on the  

floor  and  the  throwing  of  can  containing  Kerosene  in  the  

house itself undoubtedly establish that the deceased had not  

committed suicide and it is a case of murder.  The evidence  

of  PWs 1,  2  and 3  amply  prove various circumstances as  

pleaded by the prosecution.  The prosecution has established  

all  the  links  including  the  fisting  of  child  and  laying  her  

nearby  the  deceased  when  she  became  unconscious  and  

thereafter,  burning  both  of  them  to  death  by  pouring  

kerosene.   Likewise,  the  prosecution  has  also  proved  the  

other  circumstances,  namely,  threat  to  PW-2  with  dire  

consequences and making her to speak to PW-1 over phone  

impersonating the deceased, to make it a suicidal case.  As  

rightly analysed by the trial  Court and the High Court, we  

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have  no  hesitation  in  arriving  at  a  conclusion  that  the  

deceased  has  not  committed  suicide  but  it  is  a  case  of  

homicide  by  the  accused  and  the  prosecution  has  

established the offence under Section 302 IPC.  We are also  

satisfied that not only the accused had the knowledge that  

he  had  committed  the  heinous  crime  but  he  also  caused  

disappearance of evidence and had the intention to screen  

the offence by burning the body of the deceased and her  

child, hence, the prosecution has also established the offence  

under Section 302 read with Section 201 IPC.

19) We are satisfied that  the trial  Court,  after  exhaustive  

consideration of the oral and documentary evidence adduced  

by both sides, rightly found the appellant-accused guilty of  

all  the  charges  and  passed  the  order  of  conviction  and  

imposed the appropriate sentence.  The reports submitted by  

the Scientific Officers, viz., PWs 11 and 16, coupled with the  

post  mortem certificate  and  the  evidence  of  the  Medical  

Officer, establish beyond doubt that this is a clear case of  

murder.   

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20) As discussed earlier, the extra-judicial confession made  

to PW-2 has been rightly accepted by the trial Court as the  

same is within the parameters of law and withstood the test  

of reasonableness and credibility.  An overall assessment of  

the evidence of the prosecution witnesses clearly establishes  

the circumstances against the accused in a cogent manner.  

It is seen from the evidence of PWs 2 & 3 that the appellant-

accused  had  the  motive,  namely,  he  had  a  lustful  eye  

towards  his  sister-in-law,  which  had  been  proved  beyond  

doubt.

21) In  justice  delivery  system,  Courts  are  conscious  and  

mindful  of  the  proportion  between  the  rigor  of  offence  

committed and the penalty imposed as also its  impact on  

society in general and the victim of the crime in particular.  

Social  impact  of  the  crime  where  it  relates  to  offences  

against women cannot be lost sight of and  per se requires  

exemplary treatment.  Public abhorrence of the crime needs  

reflection through imposition of appropriate sentence by the  

court.   Though  the  trial  Court  imposed  life  imprisonment  

which was upheld by the High Court in view of the gruesome  

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act of rape followed by double murder, we are of the view  

that  the authorities having power of remission have to be  

conscious  and  cannot  pass  any  such  order  of  remission  

lightly without adhering to various principles enunciated by  

this  Court.   [Vide  Swami  Shraddananda  (2)  @  Murli   

Manohar Mishra vs.  State of Karnataka (2008) 13 SCC  

767  and  Sahib  Hussain  @  Sahib  Jan vs.  State  of  

Rajasthan 2013 (6) Scale 219].  

22) The High Court, while analyzing the entire prosecution  

case and the different versions, appreciated the efforts made  

by  the  team  headed  by  Mr.  A.G.  Ponn  Manickavel  

(Superintendent of Police) (PW-31), who in spite of being the  

Head  of  the  District  Police  Force,  keeping  in  view  the  

importance  and  complicity  of  the  crime,  personally  

investigated  the  matter  and  brought  all  the  relevant  and  

acceptable materials before the Court of law.  As appreciated  

by the High Court, we also express our appreciation to the  

team headed by Mr. A.G. Ponn Manickavel for their tireless  

investigation in  presenting the truth before the Majesty of  

Law.

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23) In the light  of the above discussion, we are in entire  

agreement with the conclusion arrived at by the trial Court  

and affirmed by the High Court.  Consequently, we dismiss  

the appeal being devoid of merits.

………….…………………………J.                   (P. SATHASIVAM)                                  

       ………….…………………………J.                   (M.Y. EQBAL)  

NEW DELHI; MAY 9, 2013.

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