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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.522 OF 2006

Madhu …. Appellant

Versus

State of Kerala …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. The appellant herein, Madhu Kalikutty Panicker (hereinafter referred to as  

“Madhu”)  was  charged  along  with  Sibi  Bhaskaran  (hereinafter  referred  to  as  

“Sibi”) for offences punishable under Section 302 and 392 read with Section 34  

of the Indian Penal Code, for having robbed Padmini Devi alias Omana of her  

gold  ornaments  and  thereafter  having  murdered  her  on  8.5.1998  at  her  

residence, i.e., Kalathil House situated in Ward No.IV of Veliyanad Village.  Both  

Madhu  (accused  no.1)  and  Sibi  (accused  no.2)  were  also  residing  in  the  

neighbourhood of the deceased in the same ward and village.   

2. The Sessions Judge, Alappuzha convicted the accused and sentenced  

them  to  undergo  rigorous  imprisonment  for  10  years  and  to  pay  a  fine  of  

Rs.25,000/- under Section 392 of the Indian Penal Code.  The accused were  

sentenced to imprisonment for life under Section 302 of the Indian Penal Code.

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The Sessions Judge directed that  the aforesaid sentences would be suffered  

successively, i.e., one after the other. In case of default of payment of fine, the  

accused were  to  undergo further  rigorous imprisonment for  a  period of  three  

years.  The Sessions Judge also directed that the accused would be entitled to  

set off equivalent to the period of their detention during the course of trial, under   

Section 428 of the Criminal Procedure Code.   

3. On appeal, the High Court of Kerala maintained the conviction of the two  

accused.  On the question of sentence, the High Court modified the order passed  

by the Sessions Judge to the extent that the sentences would run concurrently.   

Subject  to  the  aforesaid  modification,  even  the  sentences  awarded  by  the  

Sessions Court were maintained.

4. The conviction of the accused at the hands of the Sessions Judge as also  

the High Court was based on circumstantial evidence.  Principally, the conviction  

was ordered as a consequence of recovery of ornaments worn by the deceased,  

pursuant to the information furnished by the accused. Based on the aforesaid  

recovery,  the  High Court,  relying  on Section  114 of  the  Indian  Evidence Act  

inferred  that  the  accused  had  committed  the  murder  of  Padmini  Devi,  and  

thereupon, robbed her off the ornaments worn by her.  The only other material  

evidence taken into consideration by the courts below, to return the conviction of  

the appellant herein (as also his co-accused Sibi) was the factum of their having   

been  sighted  close  to  the  place  of  occurrence  at  or  around  the  time  of  

occurrence.  

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5. The  care  and  caution  with  which  circumstantial  evidence  has  to  be  

evaluated stands recognized by judicial precedent.  Only circumstantial evidence  

of a very high order can satisfy the test of proof in a criminal prosecution.  In a  

case  resting  on  circumstantial  evidence,  the  prosecution  must  establish  a  

complete  unbroken  chain  of  events  leading  to  the  determination  that  the  

inference being drawn from the evidence is the only inescapable conclusion.  In  

the absence of convincing circumstantial evidence, an accused would be entitled  

to  the  benefit  of  doubt.   During  the  course  of  deliberations  of  the  present  

controversy,  we  shall  endeavour  to  evaluate  the  worthiness  of  circumstantial  

evidence produced by the prosecution to prove the guilt  of the accused.  But  

more importantly,  our endeavour would be to evaluate the admissibility of the  

statements  made  by  the  accused  to  the  police,  during  the  course  of  their  

detention  by  the  police,  resulting  in  the  discovery  of  the  gold  ornaments,  

belonging to Padmini Devi, after having committed her murder.  This piece of  

evidence has been relied upon to connect the accused with the crime.

6. The prosecution case as is revealed from the charge-sheet, notices that  

the accused with the deliberate intention of committing the murder of Padmini  

Devi with the motive of robbing her of the ornaments worn by her, proceeded to  

Kalathil  House  where  the  deceased  was  residing.   Padmini  Devi  was  found  

alone, sitting on the ghat (place leading into water) steps leading to the paddy  

field, washing utensils.  The ghat was situated at about 3 meters (2 meters and  

75 cms.) from the last door step of the kitchen’s eastern door of Padmini Devi’s  

house (Kalathil House).  It is alleged that Madhu – accused no.1, caught hold of  

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the plated hair and neck of Padmini Devi and Sibi-accused no.2, held her by her  

feet, and the two together  forcibly dragged her into the water. Thereupon, they  

suffocated her.  The act of drowning of Padmini Devi is alleged to have been  

committed by the accused at a place 29 meters from the south-east of the steps  

of the ghat.  The accused are stated to have dragged Padmini Devi to the spot   

from where her body was eventually recovered, at a distance of 7 meters north-

west of the foundation of the Snake God Shrine, which is to the south of the  

paddy field in question.  Madhu-accused no.1, is alleged to have removed six  

gold bangles worn  by Padmini  Devi  (on her  left  arm), whereas,  Sibi-accused  

no.2, is alleged to have removed a gold chain worn by Padmini Devi (around her  

neck).  The accused were thus alleged to have committed the murder of Padmini  

Devi, and the theft of her ornaments jointly.

7. The son of  the deceased Asuthosh PW3 is  stated to  have received a  

phone  call  from  his  sister  Ambily  PW4  at  9.45  p.m.  on  8.5.1998.   Since  

Ashutosh’s sister Ambily informed him that she would like to speak to her mother  

Padmini Devi, Ashutosh PW3 who was sleeping at the time when the call was  

received,  got  up  to  call  his  mother.   He  found  his  mother  missing.   He  

accordingly, approached his relations and neighbours.  A joint search was carried  

out.  The husband of the deceased, i.e., Ayyappa Kurup PW2 who, at that point   

of  time,  was  attending  to  his  night  duty  in  the  Telephone  Exchange  at  

Changanacherry was summoned.  Ayyappa Kurup PW2 reached Kalathil House  

at around 11.30 p.m.  The body of the deceased was found at about 11.45 p.m.,  

from under the water in the field on the eastern side of Kalathil House.  Ayyappa

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Kurup PW2 asked Purushottama Kurup PW1 to make a complaint to the police.  

This  decision  was  in  fact,  that  the  death  of  Padmini  Devi  was  shrouded  in  

suspicious  circumstances.   The  aforesaid  suspicion  emerged  on  account  of  

absence of her golden necklace (worn by the deceased on her neck), as also, six  

bangles  (worn  by  the  deceased  around  her  left  arm)  when  her  body  was  

recovered.  Accordingly,  Purushothama Kurup PW1 reported the matter to the  

police, disclosing the aforesaid factual position on the following morning i.e. on  

9.5.1998 at 8.30 a.m..   

8. On  the  registration  of  the  FIR,  PJ  Thomas  PW21,  Circle  Inspector  of  

Police, reached the place of occurrence, and prepared the inquest report (Exhibit  

P-3).  As per the inquest report. the deceased Padmini Devi alias Omana was  

aged 47 years.  She was found by Karthikeyan Nair PW16, a neighbour and a  

resident of Thundiyil House in Ward No.IV, Veliyanad Village at 11.45 p.m. from  

the paddy field on the eastern side of his house.  As per the inquest report,   

Padmini Devi was last seen alive at her residence by her son Aushutosh at 9.15  

p.m. on 8.5.1998.  As per the inquest report, apart from the dress worn by her  

she was wearing a gold chain around her neck of “thara” fashion weighing about   

5-1/2  sovereigns,  besides  4-5  golden  bangles  in  her  left  hand  and  golden  

earrings in her ears, when Aushutosh saw her for the last time.  The inquest  

report further depicts, that blood and water was oozing out from her nostrils on  

both sides, and her tongue was protruding out by ½ inch, with the mouth slightly  

open. Water weeds were found sticking to her hair.  Ears had earrings of “claver”  

design.   The  stomach  was  found  to  be  slightly  bloated.   The  inquest  report

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records, that at a distance of 2 meter 27 cm. of the first foot-step of the kitchen  

door, there is a ghat (place leading into water) with three steps.  The lower step  

of the ghat is immersed in water. At a distance of 50 cms., from the lowest foot-

step the water is 75 cms. deep.  The spot in the field from where the dead body   

of Padmini Devi was recovered, was 29 meters from the lowest foot-step.  The  

depth of  the water  at  the place from where the dead body was recovered is  

stated to be 82 cms. deep (32.28 inches, i.e., about 3 feet).  The inquest report  

also noted, that ornaments worn around the neck and in the left arm by Padmini  

Devi were missing.  According to the statement of Aushutosh PW3, his mother  

must  have  gone  to  the  ghat,  fallen  into  the  water  and  somehow died.  Yet,  

consequent upon the discovery of the missing golden ornaments, those present  

at the spot at the time of preparation of the inquest report,  expressed doubts  

about the death of Padmini Devi.  Accordingly, even though at Serial no.XI of the  

inquest report, it stands recorded that Padmini Devi alias Omana had died due to  

drowning, at Serial no.XVI it was mentioned that since the ornaments worn by  

her were missing, the persons present had unanimously raised a doubt about the  

cause of her death.

9. The contents of the First Information Report, as also, the Inquest Report  

constituted the first  factual  depiction of  an occurrence.   These are of  utmost  

importance.  The evidence produced by the prosecution during the course of trial,   

will accordingly have to be evaluated along with the aforesaid reports conjointly  

to substantiate the credibility of the charges levelled against the accused.  During  

the course of hearing, some salient facts which constituted the foundation for

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establishing the prosecution version emerged.  The first and the foremost in the  

sequence of events, is the fact that Padmini Devi is alleged to have gone to the  

steps of the ghat after having taken supper, for washing utensils.  The second  

important feature of the prosecution story is the absence of a gold necklace from  

around the neck of Padmini Devi, and six gold bangles worn by her on her left  

arm.  Gold earrings worn by the deceased Padmini Devi were found intact on her  

ears.  The third facet is the factum of the state of body of deceased Padmini   

Devi.  The prosecution version  is that  Padmini  Devi  was first  smothered and  

thereafter drowned.  Thereby inferring murder, as against death by accidental  

drowning.    The fourth component of the prosecution case was the presence of   

Madhu-accused  no.1  and  Sibi-accused  no.2  in  the  vicinity  of  the  place  of  

occurrence  at  or  around  the  time  of  occurrence  on  the  fateful  day  i.e.,  on  

8.5.1998.   The  final  and  the  clinching  basis  for  establishing  the  guilt  of  the  

accused were the confessional statements made by Madhu-accused no.1, i.e.,  

the appellant herein, on 13.5.1998 (Exhibit P-10) to P.J. Thomas PW21, Circle  

Inspector of Police that he had wrapped six gold bangles belonging to Padmini  

Devi,  in an old plastic paper, and had hidden them under the earth near the field  

on the southern side of his house.  He offered that if he was taken to his house,  

he could produce the bangles.  Likewise, is the confessional statement of Sibi-

accused no.2 (Exhibit P-9) recorded on 13.5.1998 by PJ Thomas PW21, Circle  

Inspector of Police, that he had wrapped the gold chain of Padmini Devi, in a   

plastic paper, and had kept the same inside a “chadjan leaf” of a coconut tree,  

standing on the eastern side of his house.   He further stated, that he could show  

the  coconut  tree  and  produce  the  chain.   Consequent  upon  the  aforesaid

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confessional  statements,  (Exhibits  P-10  and  P-9  respectively),  the  police  

recovered  the  gold  chain  as  also  the  six  gold  bangles  on  13.5.1998  at  the  

instance of the accused.  These ornaments came to be identified as the necklace  

and bangles worn by the deceased Padmini Devi.

10. The  evidence  produced  by  the  prosecution  also  falls  in  different  

compartments.   One set  of  witnesses were  produced to  establish the search  

conducted  for  the  recovery  of  the  body  of  the  deceased  Padmini  Devi  on  

8.5.1998.  The same set of witnesses deposed about the presence of utensils on  

the  steps  of  the  ghat.   The  second  set  of  witnesses  was  produced  by  the  

prosecution to establish the presence of Madhu-accused no.1 and Sibi-accused  

no.2, near the place of occurrence, at or around the time of occurrence on the  

fateful  day i.e.,  on  8.5.1998.   The third  set  of  witnesses  deposed  about  the  

recovery of the missing gold ornaments, at the instance of the accused.  Besides  

the  aforesaid  three  sets  of  witnesses,  the  prosecution  examined  

Dr.Radhakrishnan,  Principal,  Medical  College,  Alappuzha  as  PW20.  

Dr.Radhakrishnan had conducted the post mortem examination of the body of  

the deceased.  The only other witness whose statement was recorded was PJ  

Thomas  PW21,  the  then  Circle  Inspector  of  Police,  whose  statement  was  

recorded to show the course and process of investigation.

11. Since the prosecution endeavoured to establish the crime on the basis of  

circumstantial evidence, it shall be necessary for us to record a bird’s eye view of  

the statements of witnesses produced by the prosecution.  

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First  and  foremost  the  prosecution  produced  Purushothama  Kurup  as  PW1.  

Purushothama  Kurup,  deposed  that  he  had  recorded  the  First  Information  

Report.   He also  asserted,  that  he  had called  the  husband of  the  deceased  

Ayyappa  Kurup  (PW2)  on  telephone,  to  inform  him  that  Padmini  Devi  was  

missing.  Purushothama Kurup PW1 also deposed, that on being informed that  

Padmini  Devi  was  missing,  he  had reached the  house of  the  deceased and  

participated in her search.  PW1 in his cross-examination deposed, that he had  

seen utensils, some of which were washed, and some were unwashed, at the  

upper step leading to the field, even though it was acknowledged, that he had not   

made any statement to the aforesaid effect to the police.  Purushothama Kurup  

PW1 in his deposition also narrated the fact, that a gold chain of “thara” fashion  

weighing about 5-1/2 sovereigns and six gold bangles were missing when the  

dead  body  of  Padamini  Devi  was  recovered.   In  his  cross-examination  he  

affirmed that he had made the aforesaid assertion, on the basis of the statement  

made by the deceased’s husband Ayyappa Kurup (PW2), after the dead body of  

the deceased was recovered.   

The statement of the husband of the deceased Ayyappa Kurup (PW2) recorded  

before the Sessions Court reveals, that both the accused Madhu and Sibi were  

known to him as they were his neighbours.  He affirmed that on 13.5.1998, P.J.   

Thomas PW21, Circle Inspector of Police, brought the accused to his residence  

at about 6 p.m.  The police party showed him six gold bangles, five of which were  

hand-cut whereas one was machine made.  The police also showed him the  

recovered gold necklace.   Ayyappa Kurup PW2 identified the recovered gold  

ornaments, as the ones which were worn by the deceased Padmini Devi around

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her neck and left arm.  PW2 did not depose about the gold earrings worn by the  

deceased Padmini Devi, which were found on her ears at the time of recovery of  

her  dead  body.   Ayyappa  Kurup  asserted  during  the  course  of  his  cross  

examination, that he had seen the utensils at the ghat, and that, the same had  

been taken and restored to the house, and were available at his residence.

Aushutosh,  son  of  the  deceased Padmini  Devi  was  examined as  PW3.   He  

asserted, that the accused Madhu and Sibi were known to him.  He confirmed  

that utensils were found lying on the eastern ghat when the search for his mother  

Padmini Devi was carried out.  Like his father, he also identified the recovered  

ornaments on 13.5.1998, when the police party produced the same along with  

the accused at their residence.   

Ambily,  the  daughter  of  the deceased Padmini  Devi  deposed as  PW4.   She  

confirmed  having  spoken  to  her  brother  over  the  telephone,  whereupon,  her  

brother  Aushuthosh PW3 who  had  been sleeping,  went  out  in  search of  his  

mother  Padmini  Devi,  and  found  her  missing.   PW4 asserted  that  she  had  

reached her parents house, after she had received a call informing her that her  

mother was missing.  She also asserted that as usual, her mother had gone to  

wash utensils at the field.  She also deposed that her mother’s gold chain and six  

bangles were missing when her dead body was recovered.  

Vijayalakshmi was produced by the prosecution as PW5.  Vijayalakshmi deposed  

that the deceased Padmini Devi, as also, both the accused Madhu and Sibi were  

known to her, as they were residing in her neighbourhood.  Vijayalakshmi had  

joined the search party when Padmini Devi was found missing.  In her statement  

she deposed that she had gone to the ghat on the fateful day, where she had

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seen two/three utensils.  She asserted that the utensils were lying on the steps of   

the ghat.   She further asserted that some of the utensils were washed while   

some were still unwashed.  She asserted that the deceased was her aunt, and  

that, the golden necklace and the golden bangles worn by her aunt were missing  

when her body was recovered.  She however acknowledged, that her aunt was  

still wearing the golden earrings when her body was recovered.   

It would be relevant to indicate here, that all  the aforesaid witnesses (PW1 to  

PW5) were primarily associated with  the search and recovery of the body of  

deceased Padmini Devi as also, to support the prosecution version that Padmini   

Devi had gone out of the house to wash utensils at the ghat, on the fateful day.  

All these witnesses also deposed about the missing gold ornaments, namely, a  

gold chain and six gold bangles.   

12. The next set of witnesses produced by the prosecution was to establish  

the presence of accused Madhu and Sibi close to the scene of occurrence at or   

around  the  time  of  occurrence  on  8.5.1998,  as  well  as,  matters  associated  

therewith.    

The  first  witness  produced  for  the  aforesaid  purpose  was  Kamalama  PW6.  

Kamalama in  her  deposition asserted,  that  the accused Madhu and Sibi  had  

come to her residence at about 8.30 p.m. on 8.5.1998 as it was raining heavily at  

that time.  She asserted that she had served two plantains each to the accused.  

As per the statement of Kamalama PW6, the accused had come to her house to  

borrow an umbrella.  In her statement she also deposed, that both the accused

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were intoxicated and were smelling of liquor.  She stated that the accused left her  

house when the rain subsided.   

Madhu, a labourer appeared as PW7.  Relevant part of the statement of Madhu  

PW7  needs  to  be  extracted  herein.   The  same  is  therefore  reproduced  

hereunder:

“I swam from the eastern bank of the boat jetty to its northern bank.  It should have been 9.30 p.m. then.  I swam by taking out by shirt  and keeping it aloft.  A person was seen walking from the Western  side and turning to the North.  I identified him as A-2 in the light of   my torch.  I asked whether he is Sibi.  Saying that he is Sibi, he  walked towards South.  While I walked away and reached on the  West of the shutter of Kuttachi’s chira, a person was seen coming  flashing torch-light towards East.  On reaching near me, I identified  him as A-1.  I asked him whether he was swimming.  A-1 told me  that it is so.  He also added that he is a little intoxicated and that he  swam and got into the Karumuppathu ghat.  A-1 was wearing a kyli   mundu (dhothi).  The dhoti was wet.  There was a country-boat in  the Karumuppathu ghat.  A-1 told me that if I am to proceed to that  jetty,  I  can cross to  the  other  side.   Witness identified both  the  accused persons.  A-1 proceeded towards East and I went to my  house.”

Besides the aforesaid,  Madhu PW7 also deposed about the recovery of gold  

ornaments  at  the  instance  of  accused  Madhu  and Sibi.   He asserted  that  a  

golden necklace was recovered from a palm tree at the instance of Sibi-accused  

no.2,  from  the  compound  of  his  residence,  whereas,  six  gold  bangles  were  

recovered from under the earth at the instance of Madhu-accused no.1 from the  

compound of his residence.  In his cross examination he asserted that the death  

of the deceased Padmini Devi was not natural as the gold ornaments worn by  

her were missing.  It was however clarified by him, that the fact that ornaments  

worn by the deceased Padmini Devi were missing came to his notice on account  

of  an  assertion  made  to  the  aforesaid  effect  by  Ayyappa  Kurup  PW2.   His

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statement  relating  to  his  having  seen  the  accused  close  to  the  place  of  

occurrence  on  8.5.1998,  emerges  from his  cross-examination  which  is  being  

extracted hereunder:

“When it was found that ornaments were missing, it was suspected  that  it  should  have  been a case of  murder.   I  realized that  the  ornaments were missing when PW.2 told about it.   I  did not tell  them that I had seen the accused persons (on 8.5.1998).  I was  summoned to  appear  before  the  Police  Station  on 12.5.1998 at  8.00 a.m.  A constable came to my house on the 11 th and asked me  to come to the Police Station…. I am speaking about this for the  first time in Court.  Raju is staying just near my house.  I swam  ashore.  At that time, it should have been 9.30 p.m. which fact I did  not tell the Police.  I had also not told the Police that I had removed  my dress and kept it aloft while swimming.

Q. Are  you  not  speaking about  this  also  for  the  first  time in  Court?

A. Yes.

The  person whom I  saw first,  proceeded to  the  West  and then  turned to the South.  I had not stated during the chief-examination  that he turned to the North.”

It is also important to extract herein the cross-examination of Madhu PW7 on his  

incidental presence, which led to his having sighted the accused Madhu and Sibi,   

close to the place of occurrence:   

“To swam ashore  some 4/5  minutes  are enough.   Until  I  swam  ashore and saw the 2nd accused I did not meet anybody else.  I was  walking  by  flashing  the  torch-light.   When I  got  down  after  the  turning, and flashed the torch, I identified the person.  The turning is  on the East of the Shutter, which is on the East of Kuttachi Chira,  and on the West of the Narayanan Achari.  A-2 came from the West  and turned to the South.  I saw him come 15 feet away.  I had seen  very clearly.  I did not notice the colour of the dress of A-2.  He was  wearing a kyli mundu (dhothi), is what I remember.  I did not care to  notice whether his dress was wet.  I asked him whether he is Sibi.  He was walking.

Q. Did he try to run away?

A. No.  He walked speedily.

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I had not told the Police that he had walked speedily.  I had not told  the Police how I was able to identify Sibi.  There are inmates in the  house of Narayanan Achari.  Sibi did not stand there talking to me.  After answering me that he is Sibi, he proceeded towards South.  Within two/three minutes I saw A-1.  I saw A-1, some 20 feet on the  West of the shutter.  Both had not come there together.  One was  proceeding from behind and the other was walking in front.  I saw  A-1 some 30 feet away from the place where I saw A-2.  My dress  was not wet.  I was walking along by wearing dhoti and shirt.  A-1  asked me whether  I  was swimming.   I  told  I  was swimming.   It  seems that the dhoti worn by A-1 was of blue colour.  I had not told  the Police about the colour of that dhoti.”

It would be relevant to mention that Madhu PW7 also deposed the presence of  

utensils on the steps of the ghat.  In his statement he affirmed, that he had seen  

one utensil on the upper step and one utensil on the lower step of the ghat.  In   

response to cross-examination he stated, that he had not made a statement in  

connection  with  the  utensils  on  the  ghat,  because he was  not  questioned in  

connection therewith by the police.  His presence, at the time of recovery of the  

gold ornaments at the instance of accused Madhu and Sibi, is also relevant.  The  

same is also accordingly being extracted hereunder:

“I went for work on 13th at 7.30 a.m.  In the afternoon, I reached my  house at about 2.30 p.m.  I  had gone back home on coming to  learn that the accused will be brought there around 4.00 p.m.  I do  not remember who told me so.  A lot of people had gone to the  Jetty.  Seeing this, I too proceeded there.   

Q. Did the people know that the accused will be brought there  and there will be recovery or seizure of ornaments?

A. I do not know about it.

I had not told the Police that as people were seen proceeding to the  Jetty,  I too proceeded there.  I had told the Police that I heard it   said by Sibi to the Police that the ornaments are hidden under the  cadjan leaf.”

15

Madhu PW7 also deposed that he remained present when the recovery of the  

gold necklace was made at the behest of Sibi-accused no.2, and also thereafter,  

when  the  recovery  of  six  gold  bangles  were  made  at  the  behest  of  Madhu-

accused no.1.   

Rajankutty was produced by the prosecution as PW8. He deposed that he was  

the  Manager  of  the  Toddy  Shop  from where  Madhu-accused  no.1  and  Sibi-

accused no.2, had purchased one bottle of toddy each at 8.00 p.m. on the fateful  

day, i.e., 8.5.1998.   

Sasseendran Nair was produced by the prosecution as PW9.  He deposed that  

he had seen the accused close to the place of occurrence on the fateful day.  He  

also deposed that he had left the house of Chandrasekhara Kurup PW10 at 9  

p.m. on 8.5.1998,  when the electricity was restored after  the power  cut.   He  

stated that when he reached near the bridge on the western side of the house of  

Ayyappa Kurup PW2, he had seen a person ascending the bridge, and then  

proceeding to the eastern bank.  He had also seen another person following him  

and going towards the east.  The first person he had noticed was Sibi-accused  

no.2,  whereas the  person who  followed Sibi  was  Madhu-accused no.1.   The  

cross-examination of PW9, in connection with his having sighted the accused is  

significant, relevant extract thereof is accordingly reproduced hereunder:

“I first met Sibi.  I saw Sibi standing under the bridge.  Each of the  accused persons were seen crossing the bridge from the Western  bank to the Eastern bank.  I had told the Police that I saw (these  persons)  crossing  the  bridge from Western  bank to  the  Eastern  bank.

Q. Why is it not been noted by the Police?

A. May be, the Police had not noted it down.

16

I have not stated that one person alone was seen getting down to  the Eastern bank.  I had not stated that then one person crossed  over the bridge from Western bank and descended on the Eastern  bank.  Marked Ext.D-3.  They were seen turning towards North.

Q. Did you notice any one standing there?

A. I did not see.

I had told the Police that a person along with another came there  and turned to the North.  What I had seen was both the accused  going together  towards  the  North.   I  had not  noted one person  standing there and turning to the North along with another.  I had  not  told  the  Police  what  was  the  dress  worn  by  the  accused  persons or the colour of their dress.  I have not told anybody else  about my having met the accused persons there.  I am speaking  about it for the first time in Court.  I had told the Police about this.

Q. I put it to you that you had not noticed the accused persons  on that  day and that  due to  influence brought  to  bear  upon by  Chandrasekhara Kurup, you are speaking about what you had not  Personally seen?

A. I had only spoken the truth.”

13. The next set of witnesses deposed mainly on the subject of recovery and  

identification of the stolen gold ornaments and matters associated therewith.

Chandrasekhara  Kurup  appeared before  the  Sessions Court  as  PW10.   The  

deceased Padmini Devi was described by him as the wife of his younger brother   

Ayyappa  Kurup  PW2.   Chandrasekhara  Kurup  PW10  deposed  about  the  

presence of utensils lying on the steps of the ghat.  He also deposed, that he had  

not only participated in the search but had also gathered people to find Padmini  

Devi.  He asserted that he was present when the dead body of Padmini Devi was  

found.  He confirmed the presence of earrings on the person of Padmini Devi.  

He also deposed about the missing gold chain and gold bangles.  He asserted  

that he could identify the gold chain, as also, the gold bangles if they were shown

17

to him.  Accordingly, he identified the gold chain and bangles recovered at the  

instance of the accused, during the course of his deposition.   

Neelakantan Nair appeared as PW11.  His deposition was primarily in respect of  

recovery of the gold chain and the golden bangles at the instance of accused  

Madhu and Sibi.  His presence at the time of recovery of ornaments, as deposed  

during the course of  his cross-examination, has an important bearing on the  

controversy, the same is accordingly being reproduced hereunder:

“On the afternoon of 13th, I learnt that the accused persons have  been apprehended.  I  learnt it  from the people in the locality.   I   learnt that the accused persons, who had murdered the teacher,  have been arrested.  In the morning itself, it was heard it said that  the accused persons will be brought there for recovering the thondy  articles.  I had told the Police that on 13.05.1998 after my lunch at  noon, when I was resting at my house, on coming to know that the  Police are coming with the accused persons, who had murdered  Omana  Teacher,  and  that  the  stolen  gold  ornaments  will  be  recovered, I came to the side of the Boat Jetty,  well before 4.00  p.m.  A big crowd had assembled at the boat jetty.  It was widely  known that the stolen booty of gold ornaments will be recovered.  All  those assembled there were knowing about this.   The Police  arrived around 4.15 p.m. along with the accused persons.  There  were two accused persons.  The police took A-2, to A-2 house.  I  too followed them.  By about 4.20 p.m. we reached the residence of  A-2…. After leaving the residence of A-2, the police along with A-2  boarded the boat.  It should have been 5.00 p.m. at that time.  They  proceeded from there towards West, to the house of A-1.  They  reached A-1’s house, around 5.15 p.m.  They got down in front of  the house of A-1 in the boat.  I had walked from the house of A-2 to   the residence of A-1.  Police and A-1 at first reached the house of  A-1.  I heard the Police asking Madhu about the thondy articles.  I  have not given a statement to the Police that I had heard about this.  Madhu  dug  up  the  spot  with  his  own  hands  and  took  out  the  packet.”

S. Uthaman appeared as PW12.  At the relevant time he was the Village Officer  

of Veliyanad Village.  He had prepared the site plan of the scene of occurrence

18

on the  directions  of  the  Circle  Inspector  of  Police,  P.J.  Thomas PW21.  His  

statement is formal and needs no further elaboration.   

Gopinathan was produced by the prosecution as  PW13.  He was produced to  

establish the recovery of gold chain at the instance of Sibi-accused no.2.  In fact  

he was asked to climb the coconut tree pointed out by Sibi-accused no.2. He  

brought  down the  gold  chain.   His  cross-examination  on the  instant  issue is  

relevant  to  determine  the  validity  of  the  confessional  statements  made  by  

accused Madhu and Sibi  (vide Exhibits P-10 and P-9 respectively).   Relevant  

portion from the cross-examination of PW13 is being reproduced hereunder:

“Q. When did you come to know that the accused persons are  coming to recover the gold ornaments?

A. I knew it at 4.45 p.m.

On the 13th May, 1998, while I was sitting at my house, I learnt that  the police party is coming along with accused persons.  I had gone  to  Kumarangary  Boat  Jetty,  coming  to  know  that  the  accused  persons are arriving.  The police arrived there along with accused  persons after 4.00 in the afternoon.  They had come there after I   reached there.  A large crowd had gathered at the place.  There  was information available by noon that the police party is coming  with the accused persons.  I had not noticed the arrival of the Police  with  accused  persons.   I  saw A-2  leading  with  the  police  party  behind him.”  

Ramesh appeared before the Sessions Court as PW14.  He was the goldsmith  

summoned by the investigating agency to examine the gold ornaments and to  

indicate the purity thereof as also the weight of the recovered ornaments.  His  

deposition being formal needs no further elaboration.   

14. The  remaining  witnesses  from  PW15  to  PW19  made  statements  on  

different aspects of the matters.  Some of them were formal witnesses.

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Chacko appeared before the Sessions Court as PW15.  He was associated with  

the search of Padmini Devi.  He affirmed that on the recovery of the body of  

Padmini Devi, Ayyappa Kurup PW2 had asserted that the gold chain around her   

neck, and the gold bangles on her left arm were missing.  He also deposed, that  

he had seen utensils on the eastern ghat at the time of search.  For the present   

controversy  his  statement  in  respect  of  recovery  of  gold  ornaments  for  the  

purposes of determining the admissibility of the confessional statements made by  

accused  Madhu  and  Sibi  is  relevant.   A  relevant  extract  of  his  statement  is  

accordingly being reproduced hereunder:

“The accused were arrested at 2.30 p.m. on the 13 th, was what I  heard.  After reaching the Block Jetty around 4.00 p.m. that day,  the accused were taken by the Police to the house of A-2.  There  was a large crowd to witness this.  I too went there.  After pointing  out the coconut tree standing on the East of A-2’s house, A-2 told  the C.I. that the gold is deposited on the 3rd step.  C.I. asked him to  go up and bring the gold.  A-2 said that he was unable to do as he  was  tired  and feeling unwell.   C.I.  then asked those assembled  there as to who will go up the tree and bring the gold.  Gopinathan  brought the ladder which was kept slanting at the house of A-2 and  with  the  help  of  the  ladder,  went  up  and  brought  down  by  the  Western  side  of  the  coconut  tree,  a  green  plastic  packet  and  handed it over to C.I.  It was seen that he was taking it out from the  3rd step.  C.I. took out the gold chain and showed it all.  Witness  identified M.O. 1 chain.  This itself is the Plastic cover.  A goldsmith  appraised the ornament to see whether it is real gold.  He also gave  the  name  of  the  fashion.   He  said  it  is  `Kattithara’  fashion.   A  mahazar was prepared.  I am a witness to the Mahazar.  I have  affixed my signature on Ext.P-5.”

The statement of Chacko PW15 reiterates the factual position recorded in the  

statements of other witnesses including Gopnathan PW13 and Ramesh PW14.  

During the course of their cross-examination they acknowledged that they had  

been the part  of search team.  They confirmed that at the ghat he had seen

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utensils  on  the  steps.   They asserted  in  their  cross-examination,  that  all  the  

people  in  the  locality  had  assembled  in  the  courtyard  of  the  house  of  Sibi-

accused no.2 before the police arrived, as the police was expected to bring the  

accused to effect recovery of the stolen gold ornaments.   

Karthikeyan Nair appeared before the Sessions Court as PW16.  He was also a  

member of the search party associated for finding Padmini Devi.  He reiterated  

the position in respect of the presence of the utensils at the bathing ghat.  He  

confirmed that the utensils were still there when the police arrived at the scene.   

Sivan was produced by the prosecution as  PW17.  He and his nephew Saboo  

were part of search team.  In fact they were summoned to search out Padmini  

Devi  from the water  in the paddy fields.  He deposed,  that  when they found  

Padmini Devi from under the water in the paddy fields, she was already dead.  

He also deposed, that the gold chain and bangles of Padmini Devi were missing.  

In his statement he asserted that he did not know whether when the body of  

Padmini Devi was recovered, she had earrings.  He also stated, that he had no  

information about the loss of any earrings.  He acknowledged his presence at the  

time of preparation of the inquest report.  He denied having noticed utensils at  

the ghat.  He asserted that the depth of the water at the place from where the  

body of Padmini Devi was recovered was about 2-1/2 feet.  He clarified that the  

depth of the water was upto his waist.   

Baby C. George appeared as PW18.  He is a formal witness.   

Likewise  K.D.  Sivamony  PW19,  Sub  Inspector  of  Police  was  also  a  formal  

witness who deposed in connection with the recording of the First Information

21

Report, and its dispatch to the court of the Sub Divisional Magistrate, as also, the  

JFMC.   

15. Dr.  Radhakrishnan  was  examined  as  PW20.  He  conducted  the  post-

mortem examination on the body of Padmini Devi on 9.5.1998 between 4 and 5  

p.m.  His deposition was in consonance with the injuries depicted by him in the  

post mortem certificate dated 9.5.1998.  He described the following injuries on  

the body of the deceased:

“INJURIES ANTEMORTEM

1. Contusion with minute superficial laceration on the mucosal  part of lower lip corresponding to the right lateral incisor and canine  teeth.

2. Linear abraded contusion on the whole of the right ear lobe  just in front of the old ear lobule perforation.

3. Linear graze abrasions over an area 7x5 cm on the outer  aspect of left  leg its upper border being 13 cms below the knee  placed obliquely outwards and upwards.”

Besides the aforesaid his other findings were recorded as under:

“The soft tissue and cartilages of the neck and the hyoid bone were  intact.  The trachea and bronchi contained blood stained froth.  A  few particles of fine sand found sticking on to the inner aspect of  trachea.   The  right  and  left  lung  weighed  515  and  485  gms  respectively.   Both  lungs  were  congested  and  edematous  and  crepitus and their cut sections exuded copious blood stained frothy  fluid.  The valves and chambers of the heart were normal and the  coronary arteries were patent.  The stomach was full and contained  1.2  litre  softened  rice  and  vegetables  in  a  watery  fluid  medium  without any peculiar smell.  The uterus measured 7.5x6x2.5 cms in  size its os closed and cavity empty.  The valva and vagina were  intact.  All the other internal organs of the abdomen were normal  but  congested.   Sheaths  of  brain  and  brain  matter  were  intact.  Skeletal  system did not show any injury.   Blood viscera, vaginal  swab  were  collected  and  preserved  for  laboratory  examination.  Diatom test done with the bone marrow and the sample of water  from  the  alleged  site  of  immersion  of  the  body  was  negative.  Opinion as to cause of death – Postmortem findings are consistent

22

with death from drowning.  This is the postmortem certificate issued  by me which bears my signature and seal.  Marked Ext.P7.  The  deceased died within a short time after the last meal.  There is no  signs of any sexual assault.  Finger nails were bluish, shows died  due to lack of oxygen in the blood.  Injuries 1 & 2 could be due to  the  application  of  blunt  force  at  that  part  of  the  body.   Injury  numbers 1 & 2 could be produced due to the attempt of smothering.  Cardio-vascular  system  appeared  normal.   Keeping  a  person  submerged in water  forcibly need not  produce any injury.   Time  required for death may vary.   But death can occur within 2 to 3  minutes.   There  was  no  smell  suggestive  of  poisoning  in  the  stomach contents.”

During the course of his cross-examination he asserted that injury nos.1 and 2  

depicted  by  him  in  his  examination-in-chief,  could  be  due  to  attempted  

smothering.  Even though he clarified by asserting that injury nos.1 and 2 are  

possible if a person falls and during the course of that fall the right side of the  

face comes in contact with  a rough hard surface.  It  was also stated by him  

during  his  cross-examination,  that  all  the  injuries  suffered  by  the  deceased  

Padmini Devi, were superficial in nature.   

16. P.J. Thomas, Circle Inspector of Police, appeared as PW21 was the last  

witness to be examined by the prosecution.  He deposed about the course of  

investigation carried out by him.  His deposition in respect of the arrest of the  

Madhu-accused  no.1  and  Sibi-accused  no.2,   as  also,  the  confessional  

statements  made  by  them  is  relevant,  and  is  accordingly  being  reproduced  

hereunder:

“On 13.05.1998 at 1.00 p.m. in  the afternoon,  Madhu (A-1) was  arrested near at the Boat Jetty at Valadi.  Same day at 1.30 p.m.  Sibi (A-2) was arrested from near the Toddy shop at Valady.  They  were questioned lawfully and their statements were recorded.  A-1  and A-2 admitted/confessed about the commission of crime.  When  A-2 Sibi was questioned, he said “The (gold) chain I have packed in  an  old  plastic  paper  and  have  kept  it  hidden  at  the  top  of  the

23

coconut tree standing on the East of my residential house.  If I am  taken there, I shall point out the coconut tree where I had deposited  the  chain  as  well  as  the  gold  chain”.   Confession  statement  is  marked as Ext.P9.  On questioning A-1, he confessed :”Six bangles  after having packed them in a plastic paper,  I  have kept hidden  under the soil/ earth on the South of my residential house, adjoining  the field.  If I am taken there, I shall take them out and deliver it.”   A-1’s  confession  statement  is  marked  as  Ext.P10….  The  confession statement from the accused persons was recorded in  between  2.00  and  2.30  p.m.   The  statements  were  recorded  separately.  It was A-1’s statement that was recorded first.  It was  recorded then and there.  A-2’s confession statement was recorded  at about 2.45 p.m.”

It is significant to notice, that the presence of utensils were not depicted in the  

inquest report.  In consonance with his inquest report, when questioned about  

the presence of utensils at the place of occurrence, PW21 categorically asserted,  

that there were no utensils either at the ghat or at the steps to the paddy fields.  

On the issue of earrings on the person of the body of the deceased at the time of  

preparation  of  the  inquest  report  his  statement  is  of  some  interest,  and  is  

accordingly being reproduced hereunder:

“The ear-rings were removed from the ears of the dead body by the  Policemen  who  were  assisting  me  at  the  inquest.   The  thondy  (material) objects seized in a case would be produced before the  Court, the Court will  direct those M.Os. to be kept in the Station  after  entering  them in  the  Sentry  Leaf  Book;  the  ear-rings  and  M.O.3 series have not been entered in the Sentry Book.

Q. When were the ear-rings handed back to the relatives?

A. P.W.2 got back the ear-rings on 11.6.1998.  He came to the  Station and took them back.  Until then these ear-rings were kept  by the Writer to whom they were entrusted.

Q. Are there records to show that they were kept in the Station?

A. No records are there.”

24

The prosecution closed its evidence after recording the statement of P.J. Thomas  

(PW21), Circle Inspector of Police.

17. The most significant issue in the present controversy is the veracity of the  

confessional  statements  made  by  the  accused  Madhu  and  Sibi  before  P.J.  

Thomas PW21, Circle Inspector of Police on 13.5.1998.  It is evident that the  

aforesaid statements were made by the accused before a police officer while the  

accused were in custody of the police.  Section 25 of the Indian Evidence Act  

postulates that a confession made by an accused to a police officer cannot be  

proved  against  him.   Additionally,  Section  26  of  the  Indian  Evidence  Act  

stipulates that a confession made by an accused while in police custody cannot  

be  proved  against  him.   It  is  evident  from  the  factual  position  narrated  

hereinabove, that the statements made by the accused Madhu and Sibi were  

made to a police officer while the accused were in police custody.  It is, therefore,  

apparent  that  in  terms of  the  mandate  of  Sections  25  and  26  of  the  Indian  

Evidence Act, the said statements could not be used against accused Madhu  

and Sibi.  But then, there is an exception to the rule provided for by Sections 25   

and 26 aforesaid, under Section 27 of the Indian Evidence Act.  Section 27 of the  

Indian Evidence Act is being extracted hereunder:

“27.  How much of information received from accused may be  proved – Provided that, when any fact is deposed to as discovered  in consequence of information received from a person accused of  any offence, in the custody of a police officer,  so much of such  information, whether it amounts to a confession or not, as relates  distinctly to the fact thereby discovered, may be proved.”

As  an  exception,  Section  27  of  the  Indian  Evidence  Act  provides  that  a  

confessional statement made to a police officer or while an accused is in police

25

custody, can be proved against him, if the same leads to the discovery of an  

unknown fact.  The rationale of Sections 25 and 26 of the Indian Evidence Act is,  

that  police  may  procure  a  confession  by  coercion  or  threat.   The  exception  

postulated under Section 27 of the Indian Evidence Act is applicable only if the  

confessional statement leads to the discovery of some new fact.  The relevance  

under the exception postulated by Section 27 aforesaid, is limited “…as it relates  

distinctly to the fact thereby discovered….”.   The rationale behind Section 27 of  

the  Indian  Evidence  Act  is,  that  the  facts  in  question  would  have  remained  

unknown but for the disclosure of the same by the accused.  Discovery of facts  

itself, therefore, substantiates the truth of the confessional statement.  And since  

it is truth that a court must endeavour to search, Section 27 aforesaid has been  

incorporated as an exception to the mandate contained in Sections 25 and 26 of   

the Indian Evidence Act.    

18. We shall now endeavour to apply the exception postulated in Section 27  

of the Indian Evidence Act, to the facts of the present controversy, in order to   

determine whether or not the confessional statements made by Madhu-accused  

no.1 vide Exhibit P-10, and Sibi-accused no.2 vide Exhibit P-9, can be proved  

against  them in  view of  the  exception  stipulated  in  Section  27 of  the  Indian  

Evidence Act.  As already noticed hereinabove, relevance of the confessional  

statements would depend on the discovery of facts based on the information  

supplied by the accused.  If any fresh facts have been discovered on the basis of  

the confessional statement made by the accused, the same would be relevant.  If   

not, the confessional statement cannot be proved against the accused, to the

26

detriment  of  the  accused.   We  have  extracted  the  relevant  portion  of  the  

statement  of  P.J.  Thomas PW21,  Circle  Inspector  of  Police  hereinabove.   It  

reveals that Madhu-accused no.1 was arrested on 13.5.1998 at 1 p.m. from near  

the boat-jetty at Valadi.  On the same day, Sibi-accused no.2 was arrested from  

near a toddy shop at Valadi at 1.30 p.m.  It is thereupon, that the confessional  

statements  of  accused Madhu and Sibi  came to  be  recorded.   In  his  cross-

examination  P.J.  Thomas  PW21  has  acknowledged,  that  the  confessional  

statements of the accused persons were recorded between 2 and 2.45 p.m.  It  

was sought to be clarified, that the confessional statement of Madhu-accused  

no.1  was  recorded  first,  and  thereafter,  the  confessional  statement  of  Sibi-

accused no.2 came to be recorded.  As against aforesaid, we would like to refer  

to the statements made by Madhu PW7, Neelakantan Nair PW11, Gopinathan  

PW13  and  Chacko  PW15.   Madhu  PW7,  during  the  course  of  his  cross-

examination, stated that he had left for his work on 13.5.1998 at 7.30 a.m.  He  

further stated that he returned back from his work and reached his residence at  

2.30 p.m.  In so far as his return from work is concerned, in his examination-in-

chief he stated that he would ordinarily return back from work only around 9 p.m.  

at night.  The reason for his return back early on 13.5.1998 was explained by  

stating, that he had come to know that the accused would be brought to their   

residences at around 4 p.m. for the recovery of the stolen gold articles.  He also  

asserted, that just like him, a lot of people had gathered at the jetty to witness the  

recovery and seizure of the stolen ornaments.  The statement of Madhu PW7  

clearly establishes that he came to know that the police would effect recovery  

well before 2.30 p.m.  Therefore, as an exception to his coming home from work

27

late  in  the  night,  he  had  reached  his  residence  at  2.30  p.m.   Likewise,  the  

statement of Neelakantan Nair PW11 reveals, that in the morning itself, on the  

date of arrest of the accused i.e., on 13.5.1998 he had heard, that the accused  

persons would be brought for recovery of the stolen articles.  He further stated,  

that a large crowd had gathered to witness the recovery of the stolen articles,  

and that, he also witnessed the recovery of stolen articles.  He reiterated, that  

just  like him all  those who were assembled there were aware that the police  

would bring the accused there for recovery of the stolen articles.  Gopinathan  

PW13 acknowledged,  that  there was information available  by “noon”  that  the  

police party would come along with the accused to recover the stolen articles.  It  

is,  therefore, that he had gone to witness the recovery of the stolen articles.   

Even Chacko PW15 while deposing before the Sessions Court asserted that a  

large crowd had gathered to witness the recovery of the stolen articles at the  

house  of  the  accused.   The  statements  of  PW7,  PW11,  PW13  and  PW15,  

narrated  (and  relevant  portions  extracted)  hereinabove,  clearly  lead  to  the  

positive conclusion that the fact that the stolen articles would be recovered from  

the premises of the accused was known before the accused were brought to the  

recovery site.  These witnesses, as also the crowd present,  were aware of the  

said factual position at around “noon” (as per statement of Gopinath PW13) but  

definitely before 2.30 p.m. (as per the statement of Madhu-PW7).  But according  

to PJ Thomas (PW21), the confessional statements were recorded between 2  

and  2.45  p.m.   The  question  to  be  determined  is  whether  the  confessional  

statements made by the accused (vide Exhibit P-9 and P-10) can be said to have  

led to the discovery of an unknown fact?  The answer to the aforesaid query has

28

to be in the negative, because the statements of PW7, PW11, PW13 and PW15  

reveal that the factual position in respect of the recovery of the articles from the  

place from where the same were shown to have been eventually recovered, was  

known to the public at large by noon (and certainly before 2.30 p.m.) i.e., well  

before the confessional statements had been recorded.  As per the deposition of  

P.J. Thomas (PW21), Circle Inspector of Police, “… A-2’s confession statement  

was recorded at about 2.45 p.m….”.  Interestingly, the public had become aware  

of the recovery by “noon”, whereas, Madhu-accused no.1 was arrested at 1.00  

p.m.,  and Sibi-accused no.2 was arrested at 1.30 p.m. and their confessional  

statements were recorded by the police after their arrest.  In the background of  

the  aforesaid  factual  position,  it  is  not  possible  for  us  to  conclude  that  the  

confessional  statements made by Madhu-accused no.1 vide Exhibit  P-10 and  

Sibi-accused  no.2  vide  Exhibit  P-9,  can  be  stated  to  have  resulted  in  the  

discovery  of  any  fresh  facts.   The  factual  position  that  recovery  of  stolen  

ornaments would be made by the police was a matter of common knowledge well   

before the confessional statements were made.  The said statements recorded  

vide Exhibits P-9 and P-10 are inadmissible inspite of the mandate contained in  

Section 27 of the Indian Evidence Act for the simple reason, that they cannot be  

stated  to  have  resulted  in  the  discovery  of  some new fact.    In  the  factual  

background of  the  present  controversy,  the  gold  ornaments  which  eventually  

came to be recovered by the police, allegedly at the instance of accused, may  

well  have  been  planted  by  the  police.   On  account  of  the  fact  that  the  

confessional statements made by Madhu-accused no.1 and Sibi-accused no.2,  

which is the main linking factor in the circumstantial evidence of the prosecution

29

version of the controversy,  being inadmissible as the same cannot be proved  

against  them,  we  are  of  the  view  that  the  prosecution’s  case  stands  fully  

demolished.   In  view  of  inadmissibility  of  evidence  which  was  taken  into  

consideration  by  the  Trial  Court,  as  well  as,  the  High  Court  to  implicate  the  

accused with the commission of the offence alleged against them, shall have to  

be reconsidered on the basis of the remaining evidence.   

19. The second significant conglomerate of evidence to link the accused to  

the  crime  in  question,  is  their  alleged  presence  at  or  around  the  place  of  

occurrence.  This evidence emerges from the statements made by PW6 to PW9.  

The prosecution, through these witnesses, have endeavoured to demonstrate the  

presence of the accused, in the vicinity of the place of occurrence, at around the  

time of occurrence.  According to the prosecution the occurrence took place on  

8.5.1998  at  9.20  p.m.   According  to  the  statement  of  Kamalama  PW6,  the  

accused came to her house and asked for an umbrella as it was raining heavily.  

She  offered  two  plantains  each  to  both  the  accused.   The  accused  left  her  

residence when the power was restored at 9 p.m.,  after the power cut.   She  

further stated that both the accused were smelling of liquor and were under the  

influence of  liquor.   According  to  PW6,  after  leaving  her  house  the  accused  

turned left, i.e., towards the house of the deceased Padmini Devi.  The statement  

of Kamalama PW6, to our mind, is wholly insignificant to connect the accused  

with the crime under reference.  Madhu PW7 has given his version of having  

seen the accused close to the place of occurrence. But the statement of PW7  

which  has  been  extracted  hereinabove  is  so  unrealistic,  that  it  is  worthy  of

30

rejection without recording any reasons.  It is  strange that Madhu PW7 reached  

the embankment by swimming upto it since the last boat had already left.  He  

calims  to  have  kept  his  clothes  afloat  and  above  the  water  while  he  was  

swimming through the water. It is, therefore, that his clothes had remained dry.  

Even though, in his statement, he asserted that “…I identified him as A-2 in the  

light of my torch…”.  He subsequently stated that a person was seen coming,  

flashing a torchlight towards east, and that, he was identified by Madhu PW7 as  

Madhu-accused no.1.  As per the said statement, the identification was made on  

the basis of the torch held in the hands of Madhu-accused no.1.  The aforesaid  

contradiction is hard to digest.  How PW7 retained the torch in his hand in a dry   

condition, while swimming, has not been explained.  If he was holding his torch in  

one hand and clothes in the other,  it  is  difficult  to understand how he swam  

across the water.  And if  the accused himself was carrying the torch, the light  

would not fall on his face, and in that situation, the accused could not have been  

identified,  because  by  then  it  was  past  9  p.m.   These  and  other  such  like  

discrepancies,  when  viewed  closely,  leave  no  room  with  us  to  accept  the  

credibility  of  the  statement made by Madhu PW7.  Rajankutty  PW8 was  the  

manager of Toddy Shop No.86 at Kuttanad.  As per the statement of PW8 both  

the accused purchased a bottle of toddy each, and after drinking the toddy, they  

left the toddy shop.  This statement does not establish the presence of accused  

at or near the place of occurrence.  Even so, it establishes the correctness of the  

statement of Kamalama PW6, to the effect that the accused were smelling of  

liquor, and were under the influence of liquor.  Saseendran Nair PW9 is the only  

other witness produced by the prosecution to show the presence of the accused

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close  to  the  place  of  occurrence,  at  or  around  the  time  of  occurrence,  on  

8.5.1998.  The statement made by Saseendran Nair PW9, during the course of   

his deposition before the Sessions Court, in connection with his having seen the  

accused near the place of occurrence, had not been disclosed by him even to the  

police during the course of investigation.  In fact during the course of his cross-

examination he acknowledged “…I have not told anybody-else about my having  

met  the  accused  persons  there,  I  am speaking  about  it  for  the  first  time  in  

court…”.  In fact PW9 was working as a labourer in the house of Chandrasekhara  

Kurup  PW10.   Sassendran  Nair  PW9 had  not  even  disclosed  the  aforesaid  

factual position to his employer Chandrasekhara Kurup PW10, even though he  

must  have  known,  that  Chandrasekahara  Kurup  was  the  elder  brother  of   

Ayyappa Kurup (husband of the deceased Padmini Devi).  In this situation it is  

difficult to consider the statement of Saseendaran Nair PW9 as credible.  In view  

of  the  aforesaid  evaluation  of  the  statements  of  witnesses  examined  by  the  

prosecution, to establish the presence of the accused, in close vicinity of the  

place of occurrence, there remains no proved connection of the accused with the  

accusations levelled against them.  Even otherwise, in our view the presence of  

the accused close to the residence of Padmini Devi is inconsequential, because  

according to the statement of Ayyappa Kurup PW2 (husband of the deceased  

Padmini Devi) both the accused Madhu and Sibi were known to him as they were  

his neighbours.  Surely,  presence close to ones own residence cannot be the  

basis  for  drawing an adverse inference.   We are therefore satisfied,  that  the  

statements  of  PW6 to  PW9,  do  not  in  any  manner,  further  the  case  of  the  

prosecution.  

32

20. There  are  other  glaring  discrepancies  as  well.   A  large  number  of  

witnesses,  referred to above, including Purushothama Kurup PW1, Aushutosh  

PW3, Ambily  PW4, Vijayalakshmi  PW5, Madhu PW7, Chandrasekhara Kurup  

PW10, Gopinathan PW13, Ramesh PW14, Chacko PW15 and Karthikeyan Naik  

PW16, deposed,  that  they had seen utensils  lying  on the  steps of  the  ghat.  

Some of the witnesses had gone further to explain, that some of the utensils  

were  washed  whereas  some  were  still  to  be  washed.   Obviously,  these  

statements were made by the witnesses so as to support the prosecution version  

mentioned in the charge-sheet, wherein it was projected that Padmini Devi had  

gone out to the steps of the ghat after taking the supper meal, to wash the dirty  

utensils.   The  inquest  report  (Exhibit  P-3),  a  translated  version  whereof  was  

made available  for  our  consideration,  does not  disclose the  presence of  any  

utensils at the ghat.  In conjunction with the aforesaid, it is relevant to notice, that  

during  the  deposition  of  P.J.  Thomas PW21,  Circle  Inspector  of  Police,  who  

carried out the investigation in the case, he categorically asserted (in response to  

a pointed question posed to him), that when he reached the ghat there were no  

utensils.  He further stated, that none of the witnesses told him, that there were  

utensils at the ghat or on the steps leading to the paddy fields.  The absence of  

any evidence supporting the prosecution case depicting the reason for Padmini   

Devi to go out of her house at late hours in the night, so as to be found alone by  

the  accused,  reveals  the  lack  of  evidence  to  project  the  prosecution  version  

reflected in the charge-sheet.   But  more than that,  is  the contradiction in the  

statements of PW1, PW3, PW4, PW5, PW7, PW10 and PW13 to PW16 on the  

one hand, and the statement of PW21 coupled with the details mentioned in the

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inquest report on the other.  The genesis of the crime should ordinarily emerge  

from the inquest report specially when it is in respect of a patent fact.  If utensils  

were  actually  at  the  ghat,  the  mention  thereof  could  not  have  been  left  out  

therefrom.  This would be so even if the inquest report had been prepared with   

half the seriousness required in its preparation.  A perusal of the inquest report  

reveals that the same was painstakingly recorded, and even minute details have  

been recorded therein.  It is difficult to state which of the two sides has deposed  

correctly and/or which one of them has deposed falsely.  All the same, the instant  

aspect  of  the  deposition  creates  a  serious  doubt  about  the  credibility  of  the  

evidence on the instant factual aspect, irrespective of the significance thereof in  

proving the charges.

21. Additionally, the charge-sheet pointedly records that Madhu-accused no.1,  

caught hold of the plated hair and neck of Padmini Devi, and Sibi-accused no.2  

caught hold of her feet, and forcibly dragged her into the water and suffocated  

her  thereby  cause  her  death  by  drowning.   This  factual  position  remained  

unproved as not a single prosecution witness narrated the said factual position,  

so as to establish the manner in which Padmini Devi came to be drowned by the  

accused  Madhu  and  Sibi.   This  issue  has  been  examined  from  a  different  

perspective in the next paragraph.

22. It is also essential to properly analyse the statement of Dr.Radhakrishnan  

PW20.  Dr. Radhakrishnan had expressed in the post mortem certificate dated  

9.5.1998, and he had affirmed during the course of his deposition before the  

Sessions Court, that the death of Padmini Devi had been caused by drowning.

34

The  fact  that  she  had  been  smothered  first  and  thereafter  drowned  by  the  

accused  Madhu  and  Sibi  cannot  be  stated  to  have  been  established  by the  

prosecution.   No  injury  whatsoever  was  suffered  by  deceased  Padmini  Devi  

either on her neck or on her feet.  Padmini Devi was 47 years old at the time of  

occurrence.  She would not have easily allowed two drunkards, who were in a  

state of intoxication, to carry her away by holding her by her neck and feet as has  

been alleged in the charge-sheet.  Padmini Devi would have been expected to  

fight for her life, consequent upon an assault on her, at the hands of the accused  

Madhu and Sibi.  Injury nos.1 and 2 referred to by the courts below, so as to infer   

smothering, is clearly unacceptable in view of the fact that Dr. Radhakrishnan  

PW20, in  his cross-examination,  clearly asserted,  that  injury nos.1 and 2 are  

possible if a person falls and during the course of that fall the right side of the  

face comes in contact with a rough hard surface.  Dr. Radhakrishnan PW20 also  

stated during his cross-examination, that all the injuries suffered by Padmini Devi  

were superficial injuries.  In the aforesaid view of the matter, even the medical  

evidence produced by the prosecution, does not suitably support the prosecution  

story, that the deceased Padmini Devi was, first assaulted by the accused Madhu  

and  Sibi,  and  thereafter,  drowned.   The  deceased  is  alleged  to  have  been  

dragged, smothered and forcibly drowned.  The instant version of the prosecution  

story, is wholly unacceptable, keeping in mind the statement of Dr.Radhakrishna  

PW20.

23. The motive for the accused in committing the murder of Padmini Devi is  

stated to be theft of her gold ornaments.  Madhu-accused no.1 is a labourer, and

35

Sibi-accused no.2 is a toddy trapper.   If  the motive had been theft,  so as to  

snatch away the jewellery of Padmini Devi, it is difficult to understand why the  

accused only took away the golden chain around the neck of the deceased, and  

the six bangles on her right arm, and forsake the earrings on the person of the  

deceased.  It is relevant to mention, that the factum of the earrings found on the  

person of the deceased has been explained in a wishy-washy manner.   P.J.   

Thomas  PW21,  Circle  Inspector  of  Police,  has  specifically  deposed  on  the  

recovery, retention and return of the earrings to the family of the deceased.  The  

statement of PW21 reveals a sorry state of affairs in handling the investigation of   

the  case  in  hand.   According  to  the  statement  of  PW21,  the  earrings  were  

removed from the dead body of Padmini Devi, by one of the policemen who was  

assisting  him in  the  preparation  of  inquest  report  on  9.5.1998.   There  is  no  

documentary  record  of  this.   The  earrings  were  then  (according  to  PW21)  

retained by the writer at the police station.  This again, without maintaining any  

record.  On 11.6.1998, the said earrings are stated to have been returned to  

Ayyappa Kurup PW2, husband of deceased Padmini Devi.  It was also deposed  

by PW21, that Ayyappa Kurup PW2 had visited the police station to take back  

the earrings.  Accordingly, the earrings were returned to him.  Yet again, without   

maintaining any record.  Coupled with the conclusion drawn by us in respect of  

the gold chain and the six gold bangles, allegedly recovered at the instance of  

accused  Madhu  and  Sibi,  we  are  of  the  view  that  it  may  well  be,  that  the  

ornaments were never taken away from the person of the deceased Padmini  

Devi.  This view comes to our mind because if the motive had been theft of gold  

ornaments,  then  all  the  gold  ornaments  would  have  been  taken  away,  most

36

certainly the earrings which were openly and clearly visible.  The accused were  

poor persons, for them the earrings alone would have meant a lot.  If nothing  

else, the earrings would have balanced (to some extent at least) the spoils in the  

hands of the accused.  It may well be, that the aforesaid ornaments came to be  

planted only with  the object of  solving the case in hand.   This aspect  of  the  

matter also creates a serious doubt in the prosecution case.

24. For the reasons recorded by us hereinabove, we are of the view, that the  

evidence produced by the prosecution does not, in any way, establish the guilt of  

the accused.  The prosecution had endeavoured to prove the allegations levelled  

against the accused on the basis of circumstantial evidence.  As noticed above,  

the mainstay of the prosecution evidence is the recovery of the gold ornaments  

belonging to the deceased Padmini Devi at the instance of the accused Madhu  

and Sibi.  We have concluded that the statements made by the accused Madhu  

and Sibi (vide Exhibits P-10 and P-9 respectively) cannot be proved against the  

accused, or to their detriment.  This by itself removes the most vital link in the  

chain of events sought to be established by the prosecution against the accused.  

Evidence produced to establish the presence of the accused near the place of  

occurrence, at or about the time of the commission of the crime has also been  

found to be irrelevant.  This because, the accused were in any case neighbours  

of the deceased Padmini Devi.  We have also found, that the theft of the golden   

ornaments  worn  by  the  deceased  Padmini  Devi  was  also  doubtful.   The  

explanation tendered by the prosecution of the earrings worn by the deceased  

Padmini Devi when her body was recovered, is also far from satisfactory.  From

37

the statement of Dr.Radhakrishnan PW20, and the surrounding facts, it cannot  

be positively inferred that the deceased Padmini Devi was first smothered and  

then drowned as has been alleged by the prosecution.   We have also found  

serious  contradictions  in  the  deposition  of  the  prosecution  witnesses.   The  

prosecution has failed to establish an unbroken chain of events lending to the  

determination,  that  the  inference  being  drawn  from the  evidence  is  the  only  

inescapable conclusion.  In fact in our view the prosecution has not been able to  

connect the accused with the alleged crime in  any manner whatsoever.   

25. For  all  the  reasons  recorded  by  us  hereinabove,  the  appellant-

accused/Madhu, is liable to be acquitted of the charges levelled against  him.  

Ordered accordingly.  He be released forthwith, unless he is required to continue  

in detention in some other case.   

26. Resultantly, the instant appeal is allowed and the judgments rendered by  

the  Trial  Court,  as also,  by the  High Court  convicting the  appellant-accused/  

Madhu are hereby set aside.

27. During the course of the deliberations recorded by us hereinabove, we  

have dealt with the evidence projected against appellant-accused/Madhu.  From  

our determination it emerged, that the evidence to establish the charges against  

his  co-accused  Sibi  was  on  the  same lines.   In  fact  Sibi-accused  no.2  was  

accused of the allegations for exactly the same reasons, as have weighed with  

the courts below against the appellant-accused Madhu.  He was also convicted  

for the same reasons. We are of the view that if Sibi-accused no.2 had preferred

38

an appeal, the result would have been exactly the same, as it has been in the  

present appeal, in respect of the appellant-accused/Madhu.  But, is it open for us,  

to  extend the  benefit  of  acquittal,  determined by us  in  case of  the  accused-

appellant/Madhu to Sibi-accused no.2 also?  In so far as the instant aspect of the  

matter is concerned, reference may be made to the judgment rendered by this  

Court in Gurucharan Kumar & Anr. vs. State of Rajasthan, (2003) 2 SCC 698,  

wherein this Court had observed as under:

“32. As noticed earlier the accused Pravin Kumar, husband of the  deceased Geetu has not preferred an appeal before this Court, on  account of  the fact that he has already served out the sentence  imposed against him.  However,  though we cannot obliterate the  sufferings of Pravin Kumar, we can certainly obliterate the stigma  that  attaches to  him on account  of  his  conviction  for  a  heinous  offence  under  Section  304B  IPC.   This  Court  has  laid  down  a  judicious principle that even in a case where one of the accused  has not preferred an appeal, or even if his special leave petition is  dismissed, in case relief is granted to the remaining accused and  the case of the accused who has either not appealed or whose  special  leave  petition  has  been  dismissed,  stands  on  the  same  footing, he should not be denied the benefit which is extended to  the other accused.  This has been held in Harbans Singh vs. State  of U.P. [(1982) 2 SCC 101], Raja Ram v. State of M.P. [(1994) 2  SCC 568], Dandu Lakshmi Reddy v. State of A.P. [(1999) 7 SCC  69]  and  Akhil  ali  Jehangir  Ali  Sayyed  v.  State  of  Maharashtra  [(2003) 2 SCC 708].”

Reference may also be made to the decision rendered by this Court in Pawan  

Kumar v. State of Haryana, (2003) 11 SCC 241, wherein this Court has held as  

under:

“Apart  from the salutary powers  exercisable by this  Court  under  Article  142  of  the  Constitution  for  doing  complete  justice  to  the  parties,  the powers  under Article  136 of  the Constitution can be  exercised by it in favour of a party even suo motu when the Court is  satisfied that compelling grounds for its exercise exist but it should

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be used very sparingly with caution and circumspection inasmuch  as only the rarest of rare cases.  One of such grounds may be, as it  exists like in the present case, where this Court while considering  appeal  of  one  of  the  accused  comes  to  the  conclusion  that  conviction of appealing as well as non-appealing accused both was  unwarranted.  Upon the aforesaid conclusion arrived at by the Apex  Court of the land, further detention of the non-appealing accused,  by virtue of the judgment rendered by the High Court upholding his  conviction, being without any authority of law,  infringes upon the  right  to  personal  liberty  guaranteed  to  the  citizen  as  enshrined  under Article 21 of the Constitution.  In our view, in cases akin to  the  present  one,  where  there  is  either  a  flagrant  violation  of  mandatory  provision  of  any  statute  or  any  provision  of  the  Constitution, it is not that this Court has a discretion to exercise its  suo motu power but a duty is enjoined upon it to exercise the same  by setting right the illegality in the judgment of the High Court as it  is well settled that illegality should not be allowed to be perpetuated  and failure by this Court to interfere with the same would amount to  allowing the illegality to be perpetuated.  In view of the foregoing  discussion,  we  are of  the  opinion that  accused Balwinder  Singh  alias Binder is also entitled to be extended the same benefit which  we are granting in favour of the appellant.”

In view of the ratio laid down in the two cases referred to above, we are satisfied,   

that to do complete justice, it would be just and appropriate to extend the same  

benefit  as  has  been  extended  to  the  appellant-accused/Madhu,  also  to  Sibi-

accused no.2.  Therefore, for exactly the same reasons as have weighed with us  

in the instant appeal, to determine the acquittal of the appellant-accused/Madhu,  

we hereby order the acquittal of Sibi-accused no.2 as well, even though he has  

not  preferred  an appeal  so  as  to  assail  the  impugned judgment  whereby he  

stands convicted.

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28. For the reasons recorded hereinabove, even Sibi-accused no.2 is hereby  

acquitted. He be released forthwith, unless he is required to continue in detention  

in some other case.

…………………………….J. (Asok Kumar Ganguly)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; January 13, 2012.