Supreme Court of India
RATHINAM @ RATHINANversusSTATE OF TAMIL NADU AND ANR.
- Citation
- 2009 INSC 1166
- Decided
- 6 October 2009
- Disposal
- Appeal(s) allowed
Holding
The Supreme Court set aside the High Court’s conviction and acquitted the appellant because the evidence was unreliable and the High Court’s interference with the trial court’s acquittal was unwarranted.
Summary
The case involved the rape and murder of a mill worker, Chitra, for which Rathinam, the son of the mill owner, was charged under Sections 376, 302 and 201 of the IPC. The trial court acquitted all accused, but the High Court reversed this acquittal based largely on the later statements of two witnesses, PW‑4 and PW‑5, recorded four to six years after the incident. The Supreme Court held that the High Court should interfere with an acquittal only when the trial court's findings are perverse, and that the delayed testimonies were unreliable because the witnesses had remained silent for years without a satisfactory explanation. Consequently, the Court set aside the High Court’s conviction and ordered acquittal of Rathinam and the investigating officer, emphasizing the presumption of innocence and the need for a dispassionate assessment of evidence.
Issues considered
- The propriety of the High Court interfering with an acquittal granted by the trial court
- The reliability of witness testimonies recorded after a delay of four to six years
- Whether the prosecution proved the charges under Sections 376, 302 and 201 IPC beyond reasonable doubt
- The applicability of the presumption of innocence in the context of delayed evidence
Legislation cited
- Code of Criminal Procedure, 1973s. 164
- Indian Penal Code, 1860s. 1208, s. 201, s. 302, s. 376
Subjects
acquittalhigh court interferencewitness testimonydelayed statementspresumption of innocenceIPC sections 376, 302, 201evidence evaluationcriminal law
Judgment
(2010] 11 S.C.R. 871
RATHINAM @ RATHINAN A
v.
STATE OF TAMIL NADU AND ANR.
(Criminal Appeal Nos. 905-906 of 2007 Etc.)
OCTOBER 6, 2009
B
[HARJIT SINGH BEDI AND R. M. LODHA, JJ.]
Penal Code, 1860:
ss. 376, 302 and 201 - Rape and murder- For the same c
incident, consequent upon the initial investigation another
person was prosecuted - His trial ended in acquittal - During
that trial, further investigation was ordered as a result of which
the appellant was charged with the main offences of rape and
murder - Acquittal by trial court - Conviction by High Court 0
- HELD: The testimony of the sole witness projected as the
eye-witness of the crime was discarded by the trial court as
his statement was recorded for the first time in the further
investigation after four years of the incident - Moreover, he
was declared hostile in the earlier sessions trial - His
E
statement in the.instant case is comprehensively different vis-
a-vis his statement in the earlier sessions trial - The other
witness deposed only about remnval and disposal of the dead
body - He is· not an eye-witness to rape and murder - His
statement was also recorded for the first time during further
investigation - There was no satisfactory reason for these F
witnesses not to tell about the incident earlier - High Court
erred in basing the conviction on the_ evidence of these
witnesses :_ Judgment of High Court.set~aside and appellant
acquitted - Appeal against acquittaf-- Evidence .
. "' G
Ev/DENCE - Witnesses making statements about the
incident for the first time during further investigation after four
years of incident - HELD: The best check on the veracity of
871 H
872 SUPREME COURT REPORTS [2010] 11 S.C.R.
A a witness is the test of normal human behaviour - If the
behaviour of a witness is unnatural and grossly against
normal human conduct, that itself is a strong circumstance
in doubting his evidence - The conduct of the witnesses in
not coming forth as witness for about four years, measured
B by any yardstick, is unacceptable.
Appeal agains acquittal:
Appeal before High Court against acquittal of accused
of offences punishable u/ss 376, 302 and 201 /PC -
C Conviction by High Court - HELD: Interference by High Court
in an appeal against acquittal sparingly should be made in a
situation where findings of trial court are perverse and not
possible on the evidence and, if two views are possible, the
one leading to -acquittal should not be disturbed.
D
Administration of Criminal Justice:
Decision making process - HELD: Court must make a
dispassionate assessment of evidence and must not be
swayed by the horror of the crime or the character of the
E accused and the judgment must not be clouded by the facts
of the case - Judgments/Orders.
'C', the daughter of PW-1, was working in the Textile
Waste Cotton Mill owned by 'MS', the mother of A-1.
F According to the prosecution case, 'C' left for the Mill in
the evening of 22.12.1995 as on that date she was to work
in the night shift starting from midnight. On the following
day when she did not reach home, her mother, PW-1
searched for her, and saw her body in a well. As a result
G of the initial investigation, A-4, a worker of the Mill, was
tried for offences of rape and murder. During his trial,
further investigation was made, statements of PW-4 and
PW-5, who were stated to have been present in the Mill
at the time of the incident, were recorded by the Police.
H In the second final report pursuant to the further
RATHINAM@ RATH1NAN v. STATE OF TAMIL NADU 873
AND ANR.
investigation, A-1 was implicated as the main accused of A
the offences of rape and murder, and four others
including A-4, were charged with the offence punishable
u/s 201 IPC. In the first trial of A-4, PW-4 was declared
hostile and A-4 was acquitted. In the second trial (giving
rise to the instant appeal), the trial court acquitted all the B
accused. However, the High Court relied upon the
evidence of PW-4 and PW-5 and convicted A-1 u/ss 376
and 302 IPC and sentenced him to ten years RI and life
imprisonment for the respective offences with a fine of
Rs. 2 lakhs to be paid to PW-1. A-2 and A-4 were convicted C
u/s 201 IPC. However, acquittal of A-3 and A-5 was
maintained. Aggrieved, the A-1 filed Crl. A. No. 905-906 of
2007. Crl. A. No. 1619/2007 was filed by the Investigating
Officer who conducted the investigation from 23.12.1995
0
to 23.3.199.6. The allegation against him was that he had
deliberately shielded the real offenders and was liable for
the offence punishable u/s 201 IPC. The trial court
acquitted him, but the High Court reversed his acquittal.
Allowing the appeals, the Court E
HELD: 1.1. Interference by the High Court in an
appeal against acquittal should be made sparingly in a
situation where the findings .of the trial court are perverse
and not possible on the ,evidence and if two views are F
possible the one leading to acquittal should not be
disturbed. The presumption of innocence which is always
raised in favour of an accused is further strengthened by
an acquittal and bolsters the claim of the accused. [para
8] [887-E-G] G
Arulvelu and Anr. vs. State 2009 O4 ) SCR 1081 =
(2009) 10 sec 206 - relied on.
1.2. It has been emphasized repeatedly by this Court H
874 SUPREME COURT REPORTS [2010] 11 S.C.R.
A that a dispassionate assessment of the evidence must be
made and that the court must not be swayed by the
horror of the crime or the character of the .accused and
that the judgment must not be clouded by the facts of the
case. [para 5] [885-C-D]
B
Kashmira Singh vs. State of Madhya Pradesh AIR 1952
SC 159; and Ashish Batham vs. State of MP. 2002 ( 2 )
Suppl. SCR 146 = (2002) 7 SCC 317 - referred to.
c 2.1. In it significant to note that in the initial
investigation, a charge-sheet had been filed against A-4
only for the offences of rape and murder. In the course
of the trial of 9+A-4, all the witnesses had turned hostile
and it was at that stage that further investigation was
o ordered on an application made by the prosecuting
agency. This factor has been noticed by the High Court
as well. Curiously, on the filing of the final report after
further investigation, the Inspector, namely, 'Ab', who had
filed the final report in the case against A-4 alone, moved
E the court that A-4 could not be tried in the new sessions
trial. The trial Judge passed an order accepting the plea
and the trial of A-4 proceeded separately as the sole
accused in a different sessions case, though with
respect to the same incident. The trial of A-4 ended in
F acquittal and the State went in appeal in the High Court
in that case also, but without success. [para 9] [887-H;
888-A-D]
2.2. Assuming that the death of the victim was
G homicidal and that she had been raped before the
murder, the statements of PWs.4 and 5 must be
examined keeping in view· the background of the case,
as the fate of the appeal would hinge on their evidence.
PW4 had appeared as a prosecution witness in the
H sessions trial against A-4 as well and had been declared
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 875
AND ANR.
hostile. In the instant case, PW4's statement is A
comprehensively different vis-a-vis the statement he had
given in the other sessions trial. Several reasons had
weighed with the trial Judge while discarding the
evidence of PW-4. In his cross-examination he admitted
that he had not referred to his meeting with PW1 although B
he had met her the very next day and had undertaken to
convey the entire information to her and that he had not
even given any information to Inspector 'Ab' or during his
examination-in-chief in the A-4's sessions trial and it was
for the first time in the year 1998 in the further c
investigation that he had named the appellant and others.
He also admitted that he had been working in the mill for
about three and half years after 1993 and further clarified
that he had worked till the year 1998. Thus, several
reasons weighed with the trial Judge while discarding the
0
evidence of PW-4. [para 10] [888-E-H; 889-A]
2.3.The High Court concluded that PW-4 as well as
the deceased had been employed in the mill at the
relevant time and also noted that PW-4 had made a
statement for the first time only during further E
investigation. The High Court, however, glossed over the
fact that PW-4 had been projected as an eye witness in
the sessions trial pertaining to A4 and his statement had
been disbelieved and he had been declared hostile, but
found it proper to believe his evidence in the instant case. F
[para 11] [890-E-F]
2.4. The inferences drawn by the High Court that PW-
4 was a timid and shy person, are somewhat unusual,
more particularly, as the witness was not before the High
Court which could have seen his demeanor, and belie G
the principle that it is for the prosecution to prove its case
beyond reasonable doubt. The High Court then goes on
to say that it was on account of fear that PW-4 had not
come forth in time and that it was after he had left the
employment of the mill, that he had gathered the courage H
876 SUPREME COURT REPORTS [2010] 11 S.C.R.
A to do so. The trial court noted that as per his statement
he had left the employment some time in 1996. The High
Court's finding that he had left in 1998, therefore, appears
to be erroneous. It is open to the defence to contend that
the statement of this witness that he had worked till 1996
B which is beneficial to the accused must be accepted. In
this view of the matter, the observation of the High Court
that PW-4 continued to be under the fear of the mill owner
up till the year 1998 is palpably wrong. [para 11, 12] [891-
A-G]
C 2.5. PW-1, in her examination-in-chief stated that
when she met PW-4 on the day after the rape and murder
she asked him to come out with the true story to which
he replied that he would tell her the following day -or on
some other day. Concededly, she never made any
D enquiry from him thereafter. Her statement about PW-4
witnessing the incident is at compl.ete variance with the
prosecution case even after further investigation.
The.refore, in view of this uncertain evidence, the reliance
of the High Court on PW-4 was not called for. The High
E Court has gone wrong on this aspect. [para 13, 14] [892-
A-B-H; 893-A)
2.6. PW-5 was a witness to the removal and disposal
of the dead body. His statement was also recorded for
the first time in the year 1999. Admittedly, PWS is not an
F eye-witness to the rape and murder. The trial .court has
rejected his evidence for reasons similar to the case of
PW-4 and, in particular, the fact that his statement had
also been recorded for the first time d·uring further
investigation by PW66. The High Court has, however,
G explained this gap of six years by stating that there was
no evidence to show that this witness had been seen in
the village after the incident. The High Court has
observed that as the earlier investigation was deliberately
misdirected, there was reason enough to believe PWS.
H Curiously enough, it has also been observed that PWS
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 877
AND ANR
had left the village, after the murder, though PW-5 does A
not say so himself. Moreover, it is significant that PW4,
in his evidence or even in his statement ti/s164 CrPC. did
not even refer to the presence of PW5 in the mill premises
on the day in question. It is for this reason that the trial
court had concluded that the possibility that PW5 had not B
been present or employed in the mill could not be ruled
out. It is equally true that PW5 in his evidence does not
say that he was threatened by anyone to keep quite about
the incident, and the High Court has chos.en to draw an
inference (without any material) that he had kept away as c
he felt that he may be implicated in the murder. [para 15-
16] [893-8-E; 894-F-H; 895-A]
2.7. It must be remembered that the best check on
the veracity of a witness is the test of normal human
behaviour. If the behaviour of a witness is unnatural and D
grossly against normal human conduct that itself is a
strong circumstance in doubting the story projected by
him. The conduct of PW-4 and PW-5 in not coming forth
as witnesses for about 4 years is, thus, unacceptable
measured by any yardstick. [para 171 [895-F-G] E
3. The other circumstances with regard to the
recoveries etc. do not implicate the appellant in any
manner. The judgment of the Division Bench of the High
Court is set aside and the appellant is acquitted. [para
F
18] [895-H; 896-A]
Crl. Appeal No. 1619/2007
4. In the light of what has been held in the connected
Criminal Appeal Nos. 905-906 of 2007, it is not possible G
on the evidence to ascertain as to whether the appellant
was, in fact, guilty of the offence alleged against him. He
is accordingly acquitted. [896-C-D]
H
878 SUPREME COURT REPORTS [2010] 11 S.C.R.
A Case Law Reference:
AIR 1952 SC 159 referred to para 5
2002 (2) Suppl. SCR 146 referred to para 5
2009 (14 ) SCR 1081 relied on para 8
B
CRIMINAL APPELLATE JURISDICTION : CRIMINAL
APPEAL NOS. 905-906. of 2007.
From the Judgment & Order dated 4.4.2007 of the High
c Court of Judicature at Madras in Criminal Appeal No. 152 of
2001 and Criminal R. C. No. 239 of 2001.
WITH
Crl. Appeal No. 1619 of 2007.
D
Ranjit Kumar and K.V. Vishwanathan, B. Ragunath, Vijay
Kumar and V. Mohana for the Appellant.
S. Thananjayan for the Respondent.
E The following order of the Court was delivered
ORDER
By this judgment we propose to dispose of Criminal
Appeal nos. 905-906 of 2007. The facts have been taken from
F Criminal Appeal no. 905 of 2007. They are as under:
1. Accused no.1, Rathinam is the son of the owner of
Sundaram Textiles Waste Cotton Mill, Madam Sundarammal,
situated at Erumal Thottam, Chinnavedampatti. Ten persons
were employed in the mill working in three shifts - the day shift
from 7.00 a.m. to 4.00 p.m., the half night shift from 4.00 p.m.
to midnight and the night shift from midnight to 7.00 a.m. on
the next day. The deceased Chitra, PW 4 Ravi, PW 5 Andy,
PW 6 Palanisamy, PW 14 Aruchami and a few other ladies
RATHINAM@ RATHINAN v. STATE OF TAMIL NAOU 879
AND ANR.
were working in the mill as well. On 22nd December 1995 A
accused no.4 Sundaram, his wife Kalamani and one Sivakami
attended the day shift which was over by 3.30 p.m. whereafter
PW's Ravi and Andy and some lady workers including Vadivu,
Vijaya, Poongodi and Yasotha were to attend the half night shift
from 4.00 p.m. to midnight. Of the four ladies referred to above, B
the first three were working in the Spinning Section of the mill.
PW Ravi also reached the mill for his duty and while he was
working on his machine in the Cording Section he was asked
by Madam Sundarammal to look after the work as s.he was
unwell and was leaving for the hospital alongwith her brother. It C
appears that there was an electricity breakdown between 6.13
p.m. and 7.19 p.m. and as several guests also came visiting,
Madam Sundarammal did not go the hospital. PW Ravi also
. told her that he was going to buy coconuts and fruit for the pooja,
as it was a Friday, and he was directed by her to get a packet
of gold filter cigarettes for Rathinam as well. Ravi thereafter left D
for the shop belonging to PW? and as he came to the spinning
section of the mill, he met the deceased who was to work the
night shift and told her that he was going out to buy coconuts
and cigarettes. Ravi returned with the aforesaid articles and
handed them alongwith the balance change to Madam E
Sundarammal. As he was entering the spinning section he
noticed that a tiffin box anc;i a bag belonging to the deceased
were lying at the entrance and also heard her voice from inside
the premises and accused no.2 Dhanusu coming out from the
building. Ravi thereupon enquired from Dhanusu as to what was F
happening on which he made a vague reply and advised him
to go to his own section and to see that nobody came in that
direction. Ravi went outside but returned after a short while as
he was overtaken by curiosity and again entered the spinning
section through a side gate and found Dhanusu standing near G
the wall and Rathinam pushing the deceased on to the floor and
saying that she should not be afraid and not to worry as he was
with her. On seeing all this Ravi returned to his own department
but was soon called by Dhanusu and asked to assist in carrying
the deceased to the bed room as she had become H
880 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A unconscious. He was later told that she was dead and was also
threatened that if he revealed the facts to anybody, he would
face dire consequences. Ravi was thereafter asked to get
liquor, which he obtained from M.R. Wines and after consuming
the same, accused nos. 1, 2, 3 and 4 asked Ravi to wait near
B the spinning room whereafter the body was carried outside
towards the road leading to Chinnavedampatty. Ravi was,
however, advised to go inside and work on his machine. It also
appears that PW Andy who was working in the mill at about
8.15 p.m. had also seen accused nos. 1, 2 and 4 carrying the
c body towards the road. He, however, continued to work on his
machine and after having completed his allotted work, and after
taking Madam Sundarammal's permission, left for his
residence. In the meanwhile accused no.5 Krishnan also
reached the mill premises at about 11.30 p.m. and saw that
D accused nos. 1, 2 and 4 had returned to the mill. PW 11
Palanisamy too reached the mill premises at about 11.55 p.m.
whereupon Ravi left for his residence and after having watched
TV for sometime, went to sleep. The next morning, Bakyam PW
1, the mother of the deceased, alarmed at the fact that her
daughter had not returned home, came to the mill and asked
E Madam Sundarammal, as to the whereabouts of her daughter.
She was told that she had not come to work the previous day.
Alarmed yet further, Bakyam PW 1 set out to look for her and
in that process found a watch, a 10 paisa coin, one ear ring
and one hair pin near the well and on looking inside, she saw
F her daughter's body lying there: PW 1 also identified the watch
that she had picked up, as belonging to Madam Sundarammal
on which she confronted her with the fact whereafter Madam
Sundarammal threatened her and did not permit her to even
make a phone call. PW 1 thereafter left the mill premises· and
G while on the way out met Ravi PW and enquired from him as
to the deceased's whereabouts. Ravi, in reply, told her that he
would tell her the story the next day. She also met Aruchamy
PW 14 who took her to the house of one K. Vellingiri of the.
Communist Party of India whereafter PW 14 conveyed the.
H information about the murder to the police on phone. On
RATHINAM@ RATHINAN v. STATE OF TAMIL NADU 881
AND ANR.
receiving the information, Sub-Inspector Saraswathy PW 56 A
alongwith a police party reached the factory premises and the
well and recorded the statement of PW 1 on which an FIR was
duly registered. The investigation into the murder was thereafter
handed over to Inspector Anbazhagan on the directions of the
Assistant Commissioner of Police, Selvraj. The Inspector also B
reached the scene of occurrence at about 6.30 p.m. and met
PW 1 and the other relatives of the deceased, Madam
Sundarammal, Andy PW and several others and also enquired
about the whereabouts of Ravi PW. The dead body was also
taken out of the well and was sent for the post-morte.m c
examination which was duly conducted by Dr. Ramalingam PW
60 who found several injuries thereon including a ligature mark
on both sides of the neck and a large number of other injuries
including injuries on the genital organs. A finger print expert
was also summoned who lifted some prints from the tiffin box
D
and found that they matched the finger prints of Sundarnm
accused no.4. Sundaram aforesaid also made an extra
judicial confession before Ruthramoorthy PW 24 which was
duly recorded. PW 1 however made her independent inquiries
and received information that the rape and murder had been
committed only by Rathinam, A-1 and that Sundaram, A-4 was E
innocent. The Communist Party of India also took up the matter
with the Chief Minister and other senior officials and an enquiry
by the CBCID was ordered which was carried out by senior
officers including Inspector Pichai. A report was thereafter
forwarded to the Commissioner of Police by the Assistant F
Commissioner of Police Selvraj that the allegations made by
PW 1 with respect to Rathinam were unfounded and that the
culprit was indeed Sundaram. PW 1 nevertheless persisted in
her efforts and compelled the prosecution to make an
application for further investigation and after an order by the G
Court, the further investigation was duly taken up by PW-66
Inspector Samuthrakani. This officer again recorded the
statements of all the witnesses referred to above and also
several other witnesses in addition and also had their
statements recorded under Section 164 of the Crl.P .C. A H
882 SUPREME COURT REPORTS [2010] 11 S.C.R.
A charge sheet was thereafter filed against Rathinam and 5
others including Sundaram aforesaid. They were duly brought
to trial and whereas Rathinam was charged for offences
punishable under Sections 376 and 302 read with Sections
1208 and 201 of the IPC, the others were charged under
8 Section 1208 and 201 of the IPC.
2. The Trial Court examined the matter very
comprehensively and observed that two reports had been filed
by the investigating agencies which were at variance with each
C other in as much that the first final report attributed the rape and
murder to Sundaram accused no.4 whereas the second final
report after further investigation implicated Rathinam accused
no.1 as the main accused and the others for the offence under
Section 201 of the Indian Penal Code. The Court observed that
it was the duty of the Prosecution to establish the guilt of the
D accused beyond reasonable doubt and the two widely different
theories cast a doubt on the prosecution story. The Court further
opined that the incident had happened in the late evening of
22nd December 1995 and it was for the prosecution to prove
through the so called eye-witnesses PWs 4 and 5 that all 6
E accused had been involved in the incident as that was the
finding of the investigating agencies after further investigation.
The Court then examined the evidence and concluded that from
a perusal of the various documents as well as the ocular
evidence, that the deceased, who was to work the 12.00
F midnight to 7.00 a.m. shift had not turned up for her work and
the possibility that she had been raped and murdered well
before midnight, could not be ruled out. The Court found that
as per the statements of PW 1 her neighbour PW-2, and PW-
3. the niece of the deceased that the latter had left for the mill
G with her mother at about 5.30 to 5.45 p.m. on the 22 December
1995 and thereafter PW 1 had returned home alone. The Court
then examined the evidence of PW 1 and PW 4 and observed
that PW 1 had stated that she had left her daughter on the road
near the mill and therefore there was thus no reason
H whatsoever to accept the presence of the deceased inside the
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 883
AND ANR.
premises at about 6.00 p.m. as her shift was to start at A
midnight. The Court held that the explanation tendered by the
prosecution about the presence of the deceased at 6.00 p.m.
(that she was also doubling as a domestic servant in the house
of Madam Sundarammal) could not be believed as there was
absolutely no evidence to that effect. The Court, further, B
observed that Ravi's statement pertaining to the murder had
been recorded by the investigating officer for the first time on
further investigation about 4 years of the date of the incid«?nt
and. he had also admitted that during this period of four years
he had not revealed the facts of the incident to anyone including c
his co-workers, the relatives of t~eceased, the CID or the
police officials and this behaviour belied the truthfulness of his
evidence. The evidence of PW5 Andy who was a witness qua
the offence under Section 201 of the IPC was also rejected by
the trial court for the reason that he had not revealed the story D
to anyone and his statement too had been recorded by the first
time in the year 1999 on further investigation; though he
remained employed in the mill for several years after the crime.
The trial court, accordingly, acquitted all the accused.
3. The matter was thereafter taken in appeal before the E
High Court at the instance of the State. The High Court, while
noticing that the entire prosecution story with regard to the rape
and murder rested on the statements of PW4 Ravi and PW5
Andy (who was primarily the witness for destruction of
evidence), went into the matter independently. While dealing F
with the statement of PW4, it noted that though he was the
witness to the rape and murder on 22nd December 1995 he
had not informed anybody including PW1, the mother of the
deceased nor his co-workers, the police or the me·mbers of the
Communist Party which had taken up the case on behalf of the G
complainant for a period of four years and it was for the first
time during further investigation that he had made a statement
in the year 1998. The Court found that though this conduct was
rather unusual yet in the light of the fact that he was a young
boy of about 17 years of age at the time of incident and could H
884 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A have been intimidated by the circumstances, was perhaps a
reason which could justify the delay. The Court fortified its
conclusion by holding that the defence had not really challenged
the factum that PW4 had been employed in the mill and his
presence, therefore, during the incident was explained. The
s· Court further held that there was ample evidence to show that
the deceased was also an employee in the mill and was
employed even on 22nd December 1995 i.e. on the date she
had met her death and the possibility therefore that the incident
had happened in the mill premises and had been seen by PW4,
c was a reality. The Court then examined the statement of PW5
to the effect that he had seen three of the accused carrying the
body and throwing it into the well and was therefore a witness
to the offence under Section 201 of the IPC and though his
statement too had been recorded for the first time in the year
0 1999, once again reversed the finding of the trial court and held
that PW5 was a good witness and his evidence inspired
confidence. The High Court, accordingly, allowed the appeal
and awarded A1 Rathinam, the present appellant, a sentence
of 7 years RI under Section 376 of the IPC, life under Section
302 of the IPC and 3 years RI for the offence under Section
E 201 of the IPC. Compensation of Rs.2,00,000/- to be paid by
the appellant was also ordered for PW1, the mother of the
deceased. A2 was sentenced under Section 201 of the IPC to
2 years RI and to a fine of Rs.5,000/- and in default to undergo
RI for 6 months. A4 Sundaram was sentenced to undergo RI
F for one year for the offence under Section 201 of the IPC. The
acquittal of A3 and A5 was, however, maintained. The present
appeal has been filed by Rathinam, A1 alone.
4. Before we embark on a consideration of the
G submissions made by the learned counsel for the parties, we
would like to quote from the judgment of the High Court:
"Lef not the mighty and the rich think that Courts are their
paradise and in the legal arena they are the dominant
players; let this judgment make it clear that the weak and
H
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 885
AND ANR.
the poor would also have a level playing ground in the legal A
battle; and the 'Sun' cannot be kept under .clouds .for all
time to come, the truth, which may remain buried for
sometime under the thick carpet woven by the mighty,
would also come out in it's great splendour and the
Majesty of Law will march on forever, unmindful of people B
who come before it but ensuring that they are treated alike."
5. We must, however, understand that a particularly foul
crime imposes a greater caution on the court which must resist
the tendency to look beyond the file, and the insinuation that · C
the rich are always the aggressors and the poor always the
victims, is too broad and conjectural a supposition. It has been
emphasized repeatedly by this Court that a dispassionate
assessment of the evidence must be made and that the' Court
must not be swayed by the horror of the crime or the character
of the accused and that the judgment must not be .clouded .by D
the facts of the case. In Kashmira Singh vs. State of Madhya
Pradesh AIR 1.952 SC 159 it was observed as under:
"The murder was a particularly cruel and revolting
one and for that reason it will be necessary to examine the E
evidence with more .than ordinary care .lest the shocking
nature of the crime induce an instinctive reaction against
a dispassionate judicial scru' 1y of the facts and law."
Likewise in Ashish Batham vs. State of M.P. (2002) 7 :F
sec 317 it was observed thus:
"Realities or truth apart, the fundamental and basic
presumption in the administration ofcriminal law and justice
delivery system is the innocence ·Of the alleged accused
and till the charges are proved beyond reasonable doubt G
on the basis of clear, cogent, credible or unimpeachable
evidence, the question of indicting or punishing an accused
does not arise, merely, carried away by the heinous nature
of the crime or the gruesome manner in which it was found
to have been committed. Mere suspicion, however, strong H
886 SUPREME COURT REPORTS [2010] 11 S.C.R.
A or probable it may be is no effective substitute for the legal
proof required to substantiate the charge of commission
of a crime and graver the charge is, greater should be the
standard of proof required. Courts dealing with criminal
cases at least should constantly remember that there is a
B long mental distance between "may be true" and "must be
true" and this basic and golden rule only helps to maintain
the vital distinction between "conjectures" and "sure
conclusions" to be arrived at on the touchstone of a
dispassionatejudicial scrutiny based upon a complete and
c comprehensive appreciation of all features of the case as
well as quality and credibility of the evidence brought on
record."
6. We must, therefore, keep aside the High Court's
observations, profound as they are, in assessing the evidence.
D In this background, we must examine Mr. Ranjit Kumar's first
argument with regard to the interference of the High Court in
an appeal against acquittal. He has pointed out that though it
was open to the High Court to re-appraise the evidence in a
criminal matter, yet interference in a judgment of acquittal was
E to be made if it was palpably perverse and not possible on the
evidence and that if two views were possible the one taken by
the trial court was not to be disturbed. It has also been
emphasized that the presumption of innocence which was
avail~ble to an accused till proved guilty before a court of law
F was greatly strengthened by an acquittal recorded by the trial
court and for this additional reason as well, the High Court ought
to be slow in interfering with such an order. It has also been
pointed out that the case was concededly one of rape and
murder but the High Court had laboured its judgment in page
G after page by alluding to the medical evidence on these two
facets, but had completely misread and wrongly assessed the
evidence of PW4 and PW5 who were the only two material
witnesses to the incident and whose statements had been
· disbelieved by the trial court for very good reasons. It has been
H submitted that the case against the appellant was uncertain as
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 887
AND ANR.
in the two initial investigations the rape and murder had been A
attributed to A4 Sundaram, and it was during the course of his
trial proceedings that a further investigation had been ordered
by the court whereafter the entire scenario had changed and
the rape and murder attributed to the appellant whereas the
other accused including Sundaram, were sought to be B
implicated for the offence under Section 201 of the IPC. Mr.
Ranjit Kumar, has in this background, pleaded that the
prosecution itself being uncertain as to the widely differing
theories projected by three investigating officers from.different
agencies, the appellant was entftled to claim an acquittal. c
7. The learned counsel for the State has, however,
emphasized that the High Court was justified in interfering on
the premise that the appellant belonged to an affluent family and
was in a dominant position over Ravi and Andy and it was for
that reason that they had withheld the information with regard D
to the incident for a period of 4 years, that is, when the further
investigation taken over by PW-66 and it was only at that stage
that they were emboldened to come out and to give their
statements.
E
8. The first question raised by the learned counsel which
requires to be dealt with is with regard to the interference of
the High Court in an acquittal ar:,.. aal. It is now beyond dispute
that interference in such an appeal should be made sparingly
in a situation where the findings of the High Court are perverse F
and not possible on the evidence and if two views are possible
the one leading to acquittal should not be disturbed. The
presumption of innocence which is always raised in favour of
an accused is further strengthened by an acquittal and bolsters
the claim of the accused. The aforesaid time honored principles G
have been recently set out in the judgment of this Court in
Arulvelu and Anr. vs. State (2009) 10 SCC 206.
9. It is in this background that the facts of the case now
need to be examined. We must re-emphasize that in the initial
investigation, a charge-sheet had been filed with respect to A4 H
888 SUPREME COURT REPORTS [201 O] 11 S.C.R.
A Sundaram only for the rape and murder and it was during his
trial that further investigation was ordered by the Court in
circumstances already mentioned above. This factor has been
noticed by the High Court as well. The High Court further noted
that in the course of the trial of Sundaram that all the witnesses
'8 had turned hostile and it was at that stage that further
investigation was ordered on an ·application made by the
prosecuting agency. Curiously on the filing of the final report
after further investigation, Inspector Anbazhagan who had filed
the final report in the case against Sundaram alone moved the
c Court that Sundaram could not te tried in the new sessions trial.
The trial Judge passed an order accepting the plea and the trial
of Sundaram proceeded separately as the sole accused in a
different sessions Gase, though with respect to the same
incident. This trial also ended in acquittal and the State went
D in appea1 in the High Court in that case also, but without
success.
10. At the very outset, we will assume that the death of the
victim was romicidal and that she had been raped before the
murder. With this background, we must examine the
E statements of PWs.4 and 5 as the fate of the appeal would
hinge on their evidence. PW4 Ravi had appeared as a
prosecution witness in the sessions trial against Sundaram as
well and had been declared hostile. In the present case, PW4's
statement is comprehensively different vis-a-vis the statement
F he had given in the other sessions trial. In his cross-examination
he admitted that he had not referred to his meeting with PW1
Bagy,am, although he had met her the very next day and had
undertaken to convey the entire information to her· and that had
not even given any information to PW Inspector Anbazhagan
G or during his examination-in-chief in the Sundaram's Sessions
Trial and it was for the first time in the year 1998 in the further
investigation that he had named the appellant, and the others.
He also admitted that he had been working in the mill for about
three and half years after 1993 and further clarified that he had
H worked till the year 1998. We see from the judgment of the Trial
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 889
AND ANR.
Judge that several reasons had weighed with him while A
discarding !he evidence of PW4. We reproduce herein below
the relevant portion of the said judgment:
"The question that follows is, whether in the face of the
evidence of PW4, both in his chief examination and in
B
cross examination, could the reasons given by the learned
trial Judge for disbelieving him can be said to be plausible
reasons or are they palpc:bly wrong? Now let us go into
the reasons given by the learned trial Judge. In sum and
substance, the learned trial Judge had decided to
disbeliev,,e the evidence of PW4 mainly for the following C
reasons:
"PW4 was totally silent about the incident ~I the re-
investigation was done by PW66; there was utter darkness
at the time when the crime is shown to have been D
committed and therefore it would not have been possible
for PW4 to witness the crime; installation of the machines
inside the mill premises would have definitely obstructed/
would not have enabled PW4 from viewing the crime; when
the dead body was moved out of the mill premises, E
everyone would have been in a position to see and
therefore the accused would not have dared to take the
dead body of the mill premises as spoken to by PW4; the
conduct of PW4 before, during and after the occurrence,
iif taken into account together, would show that PW4 could F
not be an eye witness at all; till the crime was committed,
there was no threat at all to PW4 to act in any particular
manner; PW4's evidence shows that for concealing the
dead body, the witnesses have taken a longer route than
ti1e shorter one available, which is against the normal G
conduct of any offender; PW4 was calm and composed
at all times prior to the occurrence; during the occurrence
and immediately after the occurrence and even after the
occurrence till such tim~ re-investigation commenced;· if
really P\/1/4 informed PW1 within five or six months after
H
890 SUPREME COURT REPORTS [2010] 11 S.C.R.
A the crime about the incident, then in Exs.P1 and P2, the
names of all the accused are not mentioned; though the
silence on the part of PW4 could be appreciated so long
as he was under the employment of the offender i.e., till
Deepavali 1896, he continued silence thereafter till re-
B investigation commenced would go against his oral
evidence before court now; if really PW4 was under threat
from any quarters, then, there is no reason as to why he
chose to implicate A4 at the first instance; the evidence
of his witness in s.c.r·Jo.110/1998 eliminating the
c presence of PW1 's daughter in the mill premises during
the occurrence time would doubt his evidence now that the
victim was present in the mill premises at the occurrence
time; the prosecution had not established the presence of
PW1 's daughter inside the mill premises and for this
reason the learned ,ludge was not inclined to believe the
D
evidence of PW1 ."
11. The High Court also examined these findings and
concluded that Ravi as well as the deceased had been
employed in the mill at the relevant time and noted that Ravi
E had made a statement for the first time only during further
investigation. The High Court, however, glossed over the fact
that Ravi had been projected as an eye witness in the sessions
trial pertaining to Sundaram A4 and his statement had been
disbelieved and he had been declared hostile. We are
F somewhat surprised that in this situation the High Court found
it proper to believe his evidence in the present case. This is
what the High Court had to say:
"Let us now find out from the evidence of PW4 as to
whether he was under any compulsion at any point of time
to speak other than the truth. We hereunder extract the
relevant portions in his evidence in this regard. Before
.:..extracting the relevant portion" of his evidence, we want
to understand the character of this witness. He appears
to be a timid person. On the day when he gave evidence
H
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 891
AND ANR.
in court in 1998 in S.C.No.110/1998, he was hardly 20 A
years of age. Therefore he would have been 17 years of
age or so on the date of occurrence. He appears to oe
such a shy person that he does not even express in court
by clear words that the victim was raped. From his
evidence we find that he is avoiding any expression on sex B
and sexual activities. Therefore it is clear that PW4 is such
a timid and shy person."
Note : S.C. No.110/98 was the Sessions Trial of
Sundaram. ·
c
To our mind, the above inferences drawn are somewhat
unusual, more particularly (as the witness was not before the
High Court which could have seen his demeanor) and belie the
principle that it is for the prosecution to prove its case beyond
reasonable doubt. D
12. The Court then goes on to say that it was on account
of fear that Ravi had not come forth in time and that it was after
he had left the employment of the mill, that he had gathered the
courage to do so. The trial Judge noted as per his statement E
he had left the employment some time in 1996. The High
Court's finding that he had left in 1998 therefore appears to be
erroneous. In his examination-in-chief recorded on 17th August
2000, PW4 deposed that he had worked in the mill about three
and half years from 1993 but again said that he had worked till F
1998. We are of the opinion that it is open to the defence to
contend that the statement of this witness that he had worked
till 1996 which is beneficial to the accused must be accepted.
In this view of the matter, the observation of the High Court that
Ravi continued to be under the fear of the mill owner up till the
year 1998 is palpably wrong as he has already left the services G
of the mill some time in the year 1996 and that he had appeared
as a witness in the sessions trial pertaining to Sundaram in the
year 1998 in which he did not give a statement as in the present
matter and did not support the prosecution and was declared
hostile. H
892 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 13. Some support for the prosecution story could perhaps
have been found from the statement of PW1, Thirumathi
Bagiyam, the mother of the victim. In her cross-examination-in-
chief she supported the plea taken by Ravi that when she had
met him on the day after the rape and murder she had asked
B him to come out with the true story to which he had replied that
he would tell her the next day or on some other day.
Concededly, she never made any enquiry from him thereafter.
In cross-examination, she has given very peculiar story. She
pointed out th.at she had given details to Thangavel by going
C on the instructions of the Communist Party and further stated
as under:
"That I went to CBCID Office and saw Sundarasamy, who
was in custody, and he told me that when he was in his
place after day shift was over, his colleague Ravi had
D came at about 7.00 P.M. and told that their owner called
him; that he went to Mill at about 7.30 P.M. and heard
sound from inside room, he peeped the room, where
Thanuskodi, son of co-brother of their owner, had attacked
Chitra with iron rod and Aunty and their owner's were there;
E that after some time they all have put Chitra in a cotton bale
and cover her and he had directly seen that occurrence. I
have not given that information. If it is say so that I have
further said to Thangavel that Sundarasami had told me
that the above said three persons and Ammasai have
F taken the body of Chitra and thrown into well of Rangasami
Gounder at about 11.00 P.M. and threatened him not to
disclose what he had seen on that night, I have not told such
things to Thangavel. If it is say so that I have further said
to Thangavel that Sundarasami had told me that since
G there was illicit intimacy in between Rathiriam and Chitra,
they have murdered her. I have not stated so. When I was
inquired by Inspector of Police, CBCID, they have recorded
my statement and obtained my signature."
14. It will be seen that this statement is at complete
H
RATHINAM @ RATHINAN v. STATE OF TAMIL NADU 893
AND ANR.
variance with the prosecution case even after further A
investigation. Mr. Ranjit Kumar, therefore, appears to be right
in submitting that in this uncertain evidence, the reliance of the
High Court on Ravi's was not called for. We, therefore, find the
High Court has gone wrong on this aspect.
B
15. Although the matter would, in the light of what has been
held above, need no further discussion as the other material
witness PW5 Andy was a witness to the removal and disposal
of the dead body yet as the matter has been argued at length
on this aspect, we have chosen to go into the evidence of this C
witness as well. As already mentioned above, Andy's
statement was also recorded for the first time in the year 1999.
Admittedly, PW5 Andy is not an eye witness to the rape and
murder. The trial court has rejected his evidence for reasons
similar to the case of PW Ravi and in particular the fact that
his statement had also been recorded for the first time during D
further inv$stigation by PW66. The High Court has, however,
explained 'this gap of six years by stating that there was no
tb
evidence show that this witness had been seen in the village
after the incident. The High Court has observed that as the
earlier investigation was deliberately misdirected, was reason E
enough to believe PW5. We notice, however, that trial court had
given not one but several reasons for disbelieving this witness
and they have been noted in the High Court's judgment as under:
"(a) For the first time he was examined only in the year F
1999 during re-investigation done by PW66;
(b) no steps were taken to examine him earlier;
(c) PW5's presence in the mill on the day of
occurrence is not established; G
(d) PW4 does not speak about the presence of PW5
in his statement recorded under 164 of the Code
of Criminal Procedure during re-investigation;
(e) gunny bags stuffed with cotton would be hung in the H
894 SUPREME COURT REPORTS [2010] 11 S.C.R.
A roof railings in the mill and his would have disabled
PW5 from seeing the movement of the offenders
outside the mill premises;
(f) PW5's conduct in continuing his work normally,
B despite knowing that the offence had been
committed and even thereafter not divulging the
crime to anybody ,would go against him;
(g) PW6 not corroborating PW5's evidence that he
asked him about the watch (M.0.13) and PW6
c replying that he had sold it to A4 would affect PW5's
evidence;
(h) though witnesses admitted that sniffer dog was
brought to the crime scene, the dog track record is
D not produced and therefore an adverse inference
must be drawn against the prosecution;
(i) when there was no threat to PW5, there is no
reason for him to be absent in the crime village; and
lastly
E
0) how PW66 came to know that PW5's examination
may throw light."
16. Curiously enough, it has also been observed that PW5
had left the village, after the murder, though PW-5 does not say
F
so himself. Moreover, it is significant that PW4 did not even
refer to the presence of the PW5 in the mill premises on the
day in question in his evidence or even in his statement under
Section 164. It is for this reason that the trial court had
concluded that the possibility that PW5 had not been present
G or employed in the mill could not be ruled out. It is equally true
that PW5 in his evidence does not say a single word that he
was threatened by anyone to keep quite about the incident, and
the High Court has chosen to draw an inference (without any
material) that he had kept away as he felt that he may be
H
RATHINAM@ RATHINAN v. STATE OF TAMIL NADU 895
AND ANR.
implicated in the murder. While referring to the evidence of PW A
4 and 5, the High Court held :
"The conclusion arrived at by the learned trial Judge that
PWs.4 and 5 did not respond in the manner in which the
learned trial Judge expected them to respond after seeing
8
the crime and therefore their evidence should be
disbelieved, does not stand to rhyme or reason. Courts
have been consistently holding that response of a person
as a witness after seeing the crime would vary from
individual to individual and therefore there cannot be any C
uniform rule that a witness has to respond only in a
particular manner. In other words, the court, before which
evidence of such witnesses come up for evaluation, must
evaluate it, taking into account the several circumstances
available in that case. In evaluating the evidence of PWs.4
and 5, in the background of the circumstances in which they D
were placed right from the date on which the occurrence
was committed, we find that both PWs.4 and 5 are truthful
and natural witnesses and there are no legal and justifiable
reasons to disbelieve their evidence. As noted earlier,
rejection of their evidence by the lower court is based on E
surmises and conjectures and facts perceived by the
learned trial Judge at the time of local inspection held
sometime in the year 2000."
17. With great respect to the Division Bench, we differ with F
the rather broad proposition highlighted above. It must be
remembered that the best check on the veracity of a witness
is the test of normal human behaviour. To our mind, if the
behaviour of a witness is unnatural and grossly against normal
human conduct that itself is a strong circumstance in doubting G
the story projected by him. The conduct of PW-4 and PW-5 in
not coming forth as witnesses for about 4 years is, thus,
unacceptable measured by any yardstick.
18. In the light of what has been held above, the other
circumstances with regard to the recoveries etc. do not implicate H
896 SUPREME COURT REPORTS [201 O] 11 S.C.R.
A the appellant in any manner. We, accordingly, allow the appeals,
set aside the judgment of the Division Bench and order the
acquittal of the appellant.
CRIMINAL APPEAL No.1619/2007: We have heard the
learned counsel for the parties as well. The appellant herein was
8
the Investigating Officer from 23.12.1995 to 23.3.1996 in the
rape and murder of Chitra. The allegation against the appellant
was that he had deliberately shielded the real offenders in the
murder case and was accordingly liable for the offence under
Section 201 of the IPC. The Sessions Court acquitted the
C appellant, which judgment-has been reversed by the High Court,
leading to this appeal. In the light of what has been held above
in the connected Criminal Appeal Nos. 905-906 of 2007, we
find that the present appeal needs to be allowed as it is not
possible on the evidence to ascertain as to whether the
D appellant was, in fact, guilty of the offence alleged against him.
We make an order in the above terms and order his acquittal.
R.P. Appeals allowed.
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