Kattavellai @ Devakar vs. The State Of Tamil Nadu

2025 INSC 845
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1672 OF 2019


KATTAVELLAI @ DEVAKAR … APPELLANT(S)


VERSUS


STATE OF TAMILNADU …RESPONDENT(S)




J U D G M E N T




Signature Not Verified
Digitally signed by
NAVEEN D
Date: 2025.07.15
17:55:01 IST
Reason:

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SANJAY KAROL, J.
For convenience and ease of reference, this judgment is divided
into the following parts:

INDEX
THE CHALLENGE ..................................................................................... 4
FACTUAL PRISM ...................................................................................... 4
TRIAL COURT JUDGMENT ................................................................... 10
THE IMPUGNED JUDGMENT ............................................................... 12
RIVAL CONTENTIONS ........................................................................... 13
(a) Appellant .................................................................................... 13
(b) Respondent ................................................................................. 17
ANALYSIS AND FINDINGS ................................................................... 19
Bird’s Eye View of the Testimonies ....................................................... 21
Circumstance One: The arrival of D1 &D2 at the scene of the crime ... 35
Circumstance Two: Last Seen Theory ................................................... 36
Circumstance Three: Arrest, Confession and Recovery ........................ 41
Arrest ................................................................................................. 41
Confession ......................................................................................... 44
Recovery ............................................................................................ 47
Circumstance Four: The Incident of Rape and DNA Evidence ............. 53
Circumstance Five: Motive .................................................................... 60
Circumstance Six: Test Identification Parade ........................................ 62
Two Additional Points............................................................................ 66
One: Other Suspects Remained Unexplored..................................... 66
Two: Non-examination of Bhagyalakshmi ........................................ 67
FAULTY INVESTIGATION ..................................................................... 69
CONCLUSION .......................................................................................... 70
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“A criminal trial is not like a fairy tale wherein one is
free to give flight to one's imagination and phantasy.
It concerns itself with the question as to whether the
accused arraigned at the trial is guilty of the crime
with which he is charged. Crime is an event in real
life and is the product of interplay of different human
emotions. In arriving at the conclusion about the guilt
of the accused charged with the commission of a
crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although
the benefit of every reasonable doubt should be given
to the accused, the courts should not at the same time
reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of
conjectures.”

H.R Khanna J., in
1
State of Punjab v. Jagir Singh


1. A visit to the forest, while a narrow escape for two persons,
turned fatal for another two. The genesis allegedly was greed,
with the accused person wanting to take away jewellery to put to
his use, but the end result was far worse. Two people who were
in the prime of their youth were hastily and brutally made to meet
their maker, well before they should have. This Court is now
tasked with examining the correctness of guilt of the person ( the
appellant ) who, according to the State, was responsible for this
barbarity.


1
(1974) 3 SCC 277
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THE CHALLENGE

2. The present Appeal arises from the judgment and order
th
dated 13 March 2019, in Referred Trial [MD] No.1 of 2018
passed by the High Court of Judicature at Madras, Madurai
Bench, which, in turn, was preferred against the judgment dated
th
07 March 2018 in Special Sessions Case No.9 of 2013 passed
by the Principal District and Sessions Judge, Theni, whereby the
conviction of the Appellant under Section 302, 376 and 397 of
2
the Indian Penal Code, 1860 , came to be affirmed. The Trial
Court imposed the death penalty on the Appellant-convict, which
also came to be affirmed by the High Court.

FACTUAL PRISM


3. The incident in question, relates to the unfortunate death
of two young people. The prosecution case as emerging from the
record, as also set out by the Courts below, is as follows:
th
3.1 On 14 May 2011, a young man named Ezhil
3
Muthalvan , left his house on his father’s motorbike under
4
the pretext of playing cricket. Similarly, the second victim
left home that morning telling her parents that she was going
to college. Unbeknownst to either set of parents, the two

2
Hereinafter referred to as “IPC”
3
Hereinafter D1
4
Hereinafter D2
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victims went to Suruli Falls, which was apparently a popular
meeting point for friends and lovers.
3.2 Already there, was another couple, one Rajkumar
5
(PW-5) and Bhagyalakshmi ( not examined ), eating food.
The two victims were also seated a short distance away,
approximately 60 meters from them. It is alleged that the
appellant-convict, first came to PW-5 and his partner asking
Bhagiyalakshmi, to part with her jewellery, which she did
but upon finding that they were not made of gold and instead
were imitation made of brass, he threw the same back at her
and approached the victims. PW-5 and his partner
subsequently fled from the place having noticed the former
having some conversation with the victims.
3.3 The appellant-convict is said to have threatened the
victims to part with money and gold, which they refused.
Such refusal, according to the prosecution is what led to him
killing the victims.
3.4 Given that D-2 was missing, her father Ganesan
th
(PW-4) lodged a complaint dated 15 May 2011 with All
Women Police Station, Theni, being Crime No.30 of 2011
under Section 366 of IPC alleging that D-1, son of
Thanganathi (PW-2) had kidnapped his daughter.

5
Numerous spellings have been used throughout the record for this name. For the
purpose of this judgment, we use ‘Bhagyalakshmi’
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th
3.5 On 15 May 2011, Ramesh (PW-11) who was the
proprietor of a tea stall near the Falls, informed forest
officials that a bike of Hero Honda make had been parked,
unattended near his tea stall for the last two days. On receipt
of such information, Forest Officials, namely, Thangaraj
(PW-1) and Chelladurai (PW-6) came to the spot and
informed higher officials as also the Sub-Inspector of
Police, Rayappanpatti Police Station about such fact. The
said vehicle was taken and parked at the forest bungalow.
th
On 18 May 2011, having come to know of this from a local
person Pitchai, PW-2 ( father of D-1 ) went there and
identified the bike to be belonging to him.
3.6 Thinking that since the bike was in the vicinity of
the jungle, D-1 must be nearby, they requested for grant of
permission to search the forest area. However, they were
asked to come the next day. Upon conducting the search the
following day, they found the two victims whose bodies had
decomposed considerably, lying face down. Certain
relatives were brought in, and due identification of the
bodies was conducted.
3.7 PW-1 made a complaint pursuant to which
Ramakrishnan (PW-38) the then Sub-Inspector of Police,
Cumbum North Police Station, registered the case as
Rayappanpatti P.S. Cr.No.145/11 under Section 174 Cr.P.C.,
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and forwarded the same to the Judicial Magistrate Court,
Uthamapalayam, and also to the higher officials through Mr.
L. Prasath, Spl. Sub Inspector (PW-39). Vinoji (PW-52)
Inspector of Police, Cumbum North Police Station, took
reigns of the investigation. Dr. Juliana Jeyanthi (PW-37)
conducted the postmortem of the victims at the spot of the
crime and noticed the following injuries, while concluding
that both the deaths were homicidal in nature, having
occurred 5-6 days prior to the autopsy :-

“D1

1) A chop wound of size 36 cms x 12 cms through and
through noted over the front, both sides and back of the
neck leaving a tag of skin of the length 4cms at the bruise
side of the back of the neck with the surrounding bruise
injuring the underlying muscles vessels, nerves and
bones. Margins were regular.

On dissection:
The wound passed downwards and inwards below the
seventh cervical vertebra, vertebral column and spinal
cord with the surrounding bruise.


D2

1) A chop wound of size 12 cms x 4.5 cms x 2.5 cms
noted over the left side of the face extending from left
eye to the left side of the chin with the surrounding bruise
injuring the underlying muscles, vessels an nerves.
Margins were regular.

On dissection:
The wound passed downwards and inwards injuring the
underlying muscles, vessels and nerves, with the
surrounding bruise.
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2) A chop wound of size 12 cms x 4.5 cms x through
and through noted over the right wrist joint, with the
surrounding bruise injuring the underlying muscles,
vessels, nerves and bones. Margins were regular. Right
hand was missing.

On dissection:
The wound passed downwards and inwards injuring the
underlying muslces, vessels, nerves and bones with the
surrounding bruise.

3) Chop wounds of sizes 2 cms x 1.5 cms x through
and through, 2 cms x 1 cm x through and through, 1.5
cms x 1 cm x through and through and 1 cm x 1 cm x
through and through seen over left second, third and
fourth fingers with the surrounding bruise injuring the
underlying muscles, vessels, nerves and bones. Margins
were regular.

On dissection:
The wound passed downwards and inwards injuring the
underlying muscles, vessels, nerves and bones with the
surrounding bruise.

4) A chop wound of size 23 cms x 10 cms x through
and through noted over the middle of the right leg with
the surrounding bruise injuring the underlying muscles,
vessels, nerves and bones. Margins were regular. The
chopped right leg was missing.

On dissection:
The wound passed downwards and inwards injuring the
underlying muscles, vessels, nerves and bones with the
surrounding bruise.

5) A chop wound of size 8 cms x 6 cms x through and
through noted over the left ankle joint, with the
surrounding bruise injuring the underlying muscles,
vessels, nerves and bones. Margins were regular.



Crl.A.No.1672/2019 Page 8 of 77


On dissection:
The wound passed downwards and inwards injuring the
underlying, muscles, vessels, nerves and bones with the
surrounding bruise.

6) A stab wound of size 4.5 cms x 3 cms x 2.5 cms
noted over the back of the right arm with the surrounding
bruise injuring the underlying muscles, vessels and
nerves. Margins were regular. One end was pointed and
the other end was rounded.

On dissection:
The wound passed downwards and inwards injuring the
underlying muscles, vessels and nerves with the
surrounding bruise.

7) Vaginal introits was torn (5cms x 3 cms x 2 cms) at
6'O clock position with the surrounding bruise injuring
the surrounding muscles, vessels, nerves. Margins were
irregular. Hymen was torn. Vagina freely admitted one
finger.”

3.8 PW-5 apparently came to know of the untimely
th
deaths of the victims and went to the Police Station on 20
May 2011 to inform the investigators of the events that took
th
place on the 14 May 2011.
3.9 ‘ Taking cue ’ from such information, the suspicion of
investigators zeroed in upon the appellant-convict who was
th
eventually arrested on 28 May 2011. Upon such arrest, he
gave a voluntary confession and effected recovery of certain
material objects from his own residence as also that of his
mother-in-law. The then I.O., noting that both the appellant-
convict and the victims belonged to backward communities,
added a charge under Section (3)(2)(v) of the Scheduled
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Caste and Scheduled Tribe (Prevention of Atrocities) Act,
6
1989 , along with two counts of Section 302; as also 379
and 376 IPC.
th
3.10 On 6 June 2011, the Police conducted a T.I. parade
wherein PW-5 positively identified the appellant-convict.
3.11 In total, to establish its case, the prosecution
examined 56 witnesses and exhibited 77 documents as also
29 material objects. The appellant-convict pleaded his
innocence but, however, did not examine any witnesses or
lead any other evidence.

TRIAL COURT JUDGMENT

th
4. Charges were framed against the accused on 8 October
2013 under Sections 302, 376, 392 r/w 397 IPC and (3)(2)(v) of
the SCST Act. The case rests entirely on circumstantial evidence.
The Principal District and Sessions Judge, Theni, in Special
th
Session Case 09/2013 vide judgment dated 7 March 2018 found
the accused (appellant-convict) before us guilty of the offences
under Section 302, 376 and 379, but declared not guilty under
Section 392. It was also observed that the charge under SCST
Act could not be taken into consideration. The punishment as
awarded is extracted as under:-


6
Hereinafter SCST Act
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“1. Enemy is sentenced to life for murdering
Ezhilmuthalvan under I.P.C. section 302, and penalty
Rs.2,000/- is also levied, if failed to pay the penalty, he
should undergo 2 months of imprisonment.
2. Enemy is sentenced to death under I.P.C. section 302
for murdering the girl accompanied by Ezhilmuthalvan,
death sentence should be carried out by hanging him on
neck until he dies, and no other penalty is sentenced as the
maximum punishment of death penalty is declared.
3. Enemy is sentenced to life under I.P.C. section 376
for the crime proven against him, and penalty of Rs.2,000/-
is also levied, if failed to pay the penalty, he should undergo
2 months of imprisonment.
4. This court is issuing the order that enemy is sentenced
to 7 years of severe imprisonment, and penalty of
Rs.1,000/- is also levied, if failed to pay the penalty, he
should undergo 1 month of imprisonment.
5. As it is determined that enemy is not the criminal
under I.P.C. section 397, the court releases him under
Cr.P.C. section 235(1) determining that he is not the
criminal under the alternate accusation under I.P.C section
392 accused on him and, this court determines that
Prevention of Atrocities rule against schedule and schedule
tribe cannot be taken into consideration to grant punishment
along with I.P.C. section 302, 376, 397 which has been
accused upon the enemy.
6. As the enemy is sentenced to death for number one
crime under I.P.C section 302, it is declared that all the
penalties sentenced under other sections should be carried
out along with the death penalty.
7. It is declared that the judgment declared on this case
and all the documents should be sent to Chennai High Court
to ensure the death penalty sentenced to the enemy under
the Code of Criminal Procedure, section 366(1)
8. Action should be taken to execute the death penalty
sentenced to the enemy only after the death penalty
sentenced to the enemy is ensured by the Honourable High
Court, Chennai, under the Code of Criminal Procedure,
section 368.
…”


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THE IMPUGNED JUDGMENT

5. Since the sentence imposed by the Trial Court was that of
death by hanging, the matter travelled up to the High Court in
7
terms of Section 366 of the Code of Criminal Procedure, 1973 ,
being Referred to Trial [MD] No.1 of 2018. The High Court
considered the evidence on record under the following heads: -
(a) Last seen theory;
(b) Arrest, confession and recovery;
(c) T.I. Parade;
(d) DNA Test; and
(e) Motive
The following is a tabular representation of the evidence
considered against each of the above heads:

7
Hereinafter referred to as “Cr.PC”
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Having examined the documents and exhibits as above, the
High Court found the following circumstances to be established
beyond reasonable doubt against the Appellant-convict :-
“(a) On the date of occurrence, D1 and D2 left their
respective house and came to the place of occurrence on
their own by bike (MO.1).
(b) D1 and D2 were lastly seen alive by PW5 with the
accused.
(c) The accused was seen with weapon by PW25 on the
date of occurrence.
(d) The link between the recovery of MOs.10 and 18
from the accused and the offence.
(e) The offence of rape committed by the accused was
proved through scientific evidence namely DNA report.
(f) Adverse inference against accused.”

6 . Challenging his conviction and sentence, the Appellant-
convict has approached this Court. We have heard Ms. V.
Mohana, learned senior counsel for the Appellant-convict and
Mr. V. Krishnamurthy, learned senior counsel for the State. To
be determined is whether the Courts below were justified in
handing down judgments of conviction for the offences, as
alleged and in connection therewith sentencing him to death.

RIVAL CONTENTIONS

(a) Appellant

7. The arguments advanced on behalf of the appellant can be
summarised, inter alia , as follows :
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Firstly , the learned senior counsel submitted that
PW-5 was, on the whole, an unreliable witness. Going so
far as to say that he was a planted witness introduced by
the Police. She highlighted that PW-5’s conduct of silence
regarding the incident was unnatural, particularly as he
was aware through Bhagyalakshmi, that D-2 her
collegemate had not attended college the next day. His
assumption that D-1 and D-2 ran away to get married
( which is the only plausible explanation for non-reporting )
is without basis since he himself admitted to having no
prior knowledge of any such plans or their relationship to
such an extent;
Secondly , the non-examination of Bhagyalakshmi,
is the absence of a material witness as she is the link
between PW-5, D-1 and D-2, since the former did not
know the two victims directly but only through her;
Thirdly , the T.I.P conducted is unbelievable given it
was conducted after a considerable delay of nine days from
the date of arrest of the appellant-convict. His identity was
well-known by such time since there had been news
reports regarding the incident. Further, by PW-5’s own
admission, the Police authorities had informed him prior
to the TIP that one Kattavellai @ Devakar had committed
the offence. Still further, he also states that within a week
Crl.A.No.1672/2019 Page 14 of 77


of his statement to the Police, PW-5 saw the appellant-
convict at the Cumbum Police Station;
Fourthly , the testimony of PW-25 is vague and
unreliable. He has not identified the accused particularly
such as through clothes recovered from the appellant-
convict nor through T.I.P;
Fifthly , there is no basis for suspicion against the
th
appellant-convict as on 28 May 2011. The story of the
prosecution is that the genesis of the suspicion is the
nd
attempted suicide by the Appellant-convict on 22 May
2011. However, no credible explanation has been offered
for the suspicion. The FIR pertaining to the attempted
rd
suicide was registered on 23 May 2011. However, no
steps in connection therewith were taken and neither was
any information given to Royappanpatti Police Station.
PW-52 and 54 (I.Os) both state that they learnt of the
suicide only after the arrest;
Sixthly , the circumstances of arrest are suspicious
since no records have been produced regarding appellant-
nd
convict’s admission in the hospital during the period 22
th
- 25 May 2011. There are no independent witnesses to
the arrest since PW-16 states that he was called there ten
minutes after the arrest. He has also accused the police of
torture at the police station;
Crl.A.No.1672/2019 Page 15 of 77


Seventhly , the disclosure statement and the
subsequent recovery of articles is surrounded by
suspicious circumstances – for instance, PW-4 identified
the chain in Court and deposed that he was shown a gold
chain by the police, it is unclear whether this was the same
chain that belonged to D-2. None of the witnesses
mentioned any distinctive feature thereof. The FIR makes
a mention of a gold chain of 2.5 sovereigns but does not
mention the ‘ ohm’ dollar; the weapon allegedly used for
the commission of the offence is not subjected to any
forensic examination; the clothes recovered from the
house of the appellant-convict are not subjected to any
forensic examination and cannot be linked to the crime.
The disclosure statement does not specify all articles such
as the jute bag, tiffin box and, therefore, their recovery is
not a consequence of the disclosure statement. The
independent witness, PW-16 does not depose the exact
location of the materials recovered from the house of the
appellant-convict;
Eighthly , the DNA evidence cannot be relied on
since there are several gaps in the chain of custody leaving
open the possibility of tampering. PW-37 states that she
took the vaginal swab and handed them over to the
Constable on duty but correspondingly PW-41 does not
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make any mention thereof when the samples were
packaged, sealed, kept at one location, safely or otherwise,
sent to another location etc., the record thereof is absent.
The semen sample of the Appellant-convict was taken on
th
13 June 2011, and they were allegedly sent to FSL,
Chennai. There is no record of the same being sent,
returned and/or thereafter being stored, preserved or
disposed of. A blood sample was collected from the
appellant-convict, but PW-37, the doctor concerned, does
not testify thereto, nor does PW-52, the concerned I.O.,
record anything regarding the same; and
Ninthly , motive has not been established. Various
articles other than the gold chain, also belonging to the
victims such as mobile phone, ring etc., were neither
recovered from the spot of the crime nor from the
Appellant-convict. Further, it is not the pleaded case of the
prosecution that he disposed of the articles.
In making the above submissions, the learned senior
counsels referred to certain decisions of this Court, which
we have perused and considered.

(b) Respondent

8. The Respondent-State submitted, inter-alia , as follows :
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First , relying on the observation of the High Court
that PW-5, upon finding out of the death of D1 and D2, he
himself went to the Police Station, it is submitted that there
is no actual delay in reporting of the incident by PW-5;
Second , calling into question the T.I.P. conducted
and the identification made therein, is unjustified since
PW-5 himself has never stated that prior to the T.I.P., he
had seen the picture of the convict appellant. The pictures
shown to him, in fact, were only of habitual offenders.
PW-25 who states that he had seen the appellant-convict
with a sickle on the date of the offence, corroborates and
lends strength to the statement of PW-5;
Third , regarding the confession statement (Ext.P-8)
it is submitted that whether or not the object discovered
would be considered relevant or not has to be decided in
accordance with State of Himachal Pradesh v. Jeet
8
Singh . It is submitted that the credibility of recovery is
sought to be questioned by the appellant saying that the
exact location of the recovery has not been disclosed,
however, it has been – his house, temple near the forest and
mother-in-law’s house. In regards gold chain, the
submission that PW-4 has categorically identified the
chain recovered, as belonging to D-2; and

8
(1999) 4 SCC 370
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Fourth , the testimony of PW-37 clearly establishes
the factum of rape upon D-2. DNA evidence, i.e., vaginal
swab, has been clearly and properly maintained, preserved
and utilised. This is said in reference to testimony of PWs
27, 48 and 34 and exhibits P-37, P-49, P-21, P-29 and
P-30.

ANALYSIS AND FINDINGS

9. In all 56 witnesses were examined by the prosecution.
10. Unquestionably, there is no eyewitness to the crime. The
appellant-convict has been directed to be sent to the gallows on
the basis of circumstantial evidence which, in the considered
view of the Courts below, forms a chain so complete that it rules
out any and all other possibility of any other person, except the
accused alone, having killed D-1 and D-2.
11. The law on this count is exceptionally well settled, and
although it does not require to be elaborately restated, we will
refer to a few judgments for the purposes of immediate recall.
9
11.1 In Hanumant v. State of M.P , a three-Judge Bench
of this Court, speaking through Mehr Chand Mahajan, J.,
(as his Lordship then was) observed thus:


9
(1952) 2 SCC 71
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“12. It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should
in the first instance be fully established, and all the facts
so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act much have been done by the accused.”

11.2 Sharad Birdhichand Sarda v. State of
10
Maharashtra lays down the ‘ Panchsheel Principles ’
which are extracted below :-
“ 153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be
or should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
where the observations were made: [SCC para 19, p.
807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between ‘may

10
(1984) 4 SCC 116
Crl.A.No.1672/2019 Page 20 of 77


be’ and ‘must be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.”

Bird’s Eye View of the Testimonies

12. Let us now undertake an individual examination of each of
the circumstances found to be proved by the Courts below,
reproduced supra. In doing so, a bird’s eye view of the relevant
PWs is necessary.
12.1 PW-1 was the Forest Guard, Surulipatti. He has
deposed in connection with the bike using which D-1 had
come to the location where he ultimately met his end. He
was informed of the unattended bike, which he later parked
at the forest bungalow after informing the higher authorities.
He also testified to being a member of the search party that
discovered the bodies of the two victims. He described the
Crl.A.No.1672/2019 Page 21 of 77


identification undertaken by the relatives of the deceased
and that he lodged a complaint with the concerned police
station regarding the events. He made a positive
identification of the motorbike (M.O.-1) and the clothes
worn by D-1.
In his cross-examination, it has come forth, upon the
filing of complaint the concerned inspector came to the
location and confiscated the corpse.
12.2 PW-2 is the father of D-1. He deposed that when
his son did not return, he individually searched for him,
however, to no avail. He stated that PW-4’s second daughter
Kousalya, called the younger brother of D-1 inquiring about
D-2, when it was revealed that even D-1 had not returned
home. It is in this context that a complaint was made before
the All Women Police Station, Theni, alleging that D-1 had
kidnapped D-2. He submitted that prior to these unfortunate
events, he had suspected the involvement of four persons,
namely, Arjunan, Amnbazhagan, Viji and Francies. As such
he approached the High Court wanting the investigation of
the case to be transferred to the CBCID, which was
accepted. It has also come in his testimony that he came to
know of the arrest of the Appellant-convict through the
newspaper.
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12.3 Chellandiammal, PW-3 is the mother of D-1. She
th
deposed that on 19 May 2011, certain members of her
family went to search the forest where bodies of D-1 and
D-2 were found. Although she was not a member of search
party, but she has described the condition in which the same
were found. She deposed that bodies were brought to the
village where she identified D-1 and, thereafter, cremated
per customs.
In her cross-examination, it is revealed that she did,
th
in fact, go to Suruli on 19 May 2011. She made a
categorical statement about the identification of Jewellery
worn by D-2 through her parents.
12.4 PW-4 is the father of D-2. He stated that when D-2
did not return, through Kousalya, they inquired from D-1’s
brother about the whereabouts of D-2 when they found that
D-1 was also missing. He levelled accusations against D-1
for eloping with his daughter and as such filed a complaint
with the All Women Police Station, Theni. Upon
discovering the body of the victims, the gold chain which
was the alleged prime reason for this act of extreme violence
was found and positively identified. She was also wearing
a gold ring which, however, was not recovered. He testified
that the doctors conducted the post-mortem at the spot of the
Crl.A.No.1672/2019 Page 23 of 77


crime itself and thereafter handed the corpses to them for
performing final rites.
In the cross-examination, it is admitted that even
though D-2 was missing, he did not file a missing person’s
complaint regarding his daughter.
Regarding the complaint filed before the All-Women
Police Station, Theni, here only we may partly refer to the
testimony of PW-51, Peula Mary, who was the Inspector of
Police at that time has deposed of having perused the Police
Station Petition N/2011 filed by PW-4 as taken down by
Katturrani (PW-50). She deposed that her course of action
would have been to call both D-1 and D-2 and enquire about
their whereabouts. PW-4 told her that since both the parties
belong to the same caste, they would settle the matter
without the intervention of the police or the authorities, as
such the said complaint was closed. Thereafter, on another
th
complaint made by PW-4 on 19 May 2011 at 6:00 am
alleging that D-1 and his parents had kidnapped D-2, this
witness registered, Crime No.30/2011 under Section 366
IPC to an unknown outcome.
12.5 PW-5 is the star-witness of the prosecution. The
circumstances of the last-seen theory and motive are largely
dependent on his testimony. In fact, the hangman’s noose
Crl.A.No.1672/2019 Page 24 of 77


purely rests on his testimony. Considering the same it would
be appropriate to extract the same in its entirety.
“DEPOSITION OF WITNESS
(CHAPTER XXIII CODE OF CRIMINAL
PROCEDURE)
IN THE COURT OF THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE,
THENI

SPL.S.C.NO.9/2013
DEPOSITION OF P.W. 5

Chief Examination :-
I am residing at Kadamalaikundu. I am an Auto
Driver by profession. At the time of the occurrence of the
rd
case, I was studying 3 Year Economics in the College
of Madurai Kamaraj University, Aundipatti. I am having
relationship with one Bagyalakshmi, D/o Subburaj of
Theni. Bagyalakshmi was studying B.Ed., in Annai
Womens College, Aanaimalaiyanpatti. I know deceased
Ezhilmuthalvan. I know his lover Kasturi also. My lover
Bagyalakshmi and Kasturi were friends. Hence, I know
Kasturi and Ezhilmuthalvan. Ezhilmuthalvan is
belonging to SC Pallar community. His lover Kasturi is
also belonging to SC Pallar Community. I know the
accused present here. Previously, I saw the Accused for
the first time inside Suruli Falls Forest. On 14.05.2011,
I and Bagyalakshmi went to Suruli by bus.
Ezhilmuthalvan and Kasturi came to Suruli by bike.
After having talked in the hill forest, I and Bagyalakshmi
were sitting at a distance of about 60 meters for taking
food. At that time, the accused herein came to us with a
sickle in his hand and demanded the chain and Earring
worn by Bagyalakshmi. I told him that the jewels worn
by Bagyalakshmi are not gold jewels and they are
covering jewels. For which, the Accused shouted as to
whether you will give it or I will hack you. Out of fear,
Bagyalakshmi gave the jewels worn by her. The Accused
received it, verified and threw away since they are
covering jewels. When Bagyalakshmi took the said
Crl.A.No.1672/2019 Page 25 of 77


jewels, the Accused told us, “Are you worthy of love
affair? Get lost”. After sending us, he went to the place
where Ezhilmuthalvan was. After some time, when I
went to bring Ezhilmuthalvan, the Accused was
threatening Ezhilmuthalvan and Kasturi to give the
jewels. I thought that the Accused will threaten them like
he threatened us and then he will leave them, myself and
Bagyalakshmi came down. After coming down, I phoned
Ezhilmuthalvan’s cell phone. But Ezhilmuthalvan did
not attend the phone. Then, I and Bagyalakshmi took the
bus and came to Theni and I dropped Bagyalakshmi at
Theni and went to my village. On the next day,
Bagyalakshmi phoned me and said that Kasturi did not
come to the college. We were of the assumption that both
of them might have gone to get married. Thereafter,
Bagyalakshmi informed me over phone that
Ezhilmuthalvan and Kasturi have been murdered in a
suspicious manner. Then I was enquired at
Royappanpatti Police Station. Then, police have
informed me that Ezhilmuthalvan and Kasturi were
murdered by one Kattavellai @ Dhivakar of K.M. Patti
and that police have confiscated the jewels of Kasturi.
They asked me whether I can identify the person if I see
him. I said that I can identify. On 06.06.2011, they
brought me to Central Prison, Madurai. They conducted
identification parade there. There were 9 persons. Judge
was present. The Judge told me to identify the person
who was seen by me at the place of occurrence by
touching him. I have identified the person who was seen
by me at the place of occurrence by touching him. He
told me to wait outside and after changing the persons,
he told me to identify. Similarly, I have identified three
times. Thereafter, on 15.06.2011, they brought me to
Bodi Court. The Judge has obtained secret statement
from me. I have given statement in respect of the
occurrence took place. The statement given by me was
recorded in the court and my signature was obtained
therein. The signature shown to me is the signature I put
up in the Court. My 164 Cr.P.C statement is Ex. P.2.
Royappanpatti Police, Cumbum Police and DSPs have
enquired me with regard to this case.
… … …
Crl.A.No.1672/2019 Page 26 of 77


31.07.2014 - Spl S.C. No. 9/2013
On 20.05.2011, I was enquired at Royappanpatti,
Cumbum and Uthamapalayam I was enquired for 3 days.
th
Firstly, Royppanpatti Police enquired me on 20
Royappanpatti Police did not enquire. DSP Pandiarajan
has enquired on 2th I went to Royappanpati Police did
not enquire. DSP Pandiarajan has enquired On 20th I
st
went to Royappanpatti Police. On 21 at 3.00 Hours, I
went to Royappanpatti Police. SI in Royappanpatti
Police enquired me. I don’t remember as to whether
Royappanpatti Police and Uthamapalayam DSP have
written what I have stated. They did not obtain my
nd
signature for the said 3 days. On 22 , I was enquired at
Cumbum Police Station. I don’t remember as to whether
they have written anything there. Even thereafter, I was
enquired at Cumbum and Theni CBCID Office.
Undertaking was obtained from me at Collector Office
that I have to come for enquiry as and when called. On
th
14 , I saw Kasturi for the first time in Hill area. Even
after the Accused chased us away, I went to the hill area
again. I went there to bring them. We used to go that side
and they also used to come there then and there. Kasturi
and Bagyalakshmi have decided to go there on the date
of occurrence. She brought Dosa. We ate it. I did not
notice whether Kasturi brought food. We ate it separately
so as to be secluded. When the Accused threatened us by
showing the sickle, I did not have the thought to call
Ezhilmuthalvan by shouting. I thought that he will
threaten and go away and hence I did not take it as
serious Kasturi and Ezhilmuthalvan did not see the
Accused threatening us. It is a dense forest. Normally
even those who are near won’t be visible. I don’t know
whether the jewels worn by Kasturi are gold jewels. If
asked whether the accused has the chance for seeing
them, there is chance. It is not correct that the Accused
did not threaten me. If it is said that I have alerted
through cell phone that the Accused is coming, I phoned
only after coming down. I can’t do anything due to
anxiety. It is not correct that he did not threaten me and
that I am suppressing it. We can reach the basement
within 10 minutes. I trued to talk through cell phone, but
it was not reached. It is not correct that I have not tried
Crl.A.No.1672/2019 Page 27 of 77


anything and I am lying. I did not say it thinking that he
will threaten the deceased like he threatened me. If it is
said can we four of us intercept the Accused, the Accused
has sickle in his hand. If it is asked whether I have
informed either in the house of Kasturi or in the house of
Ezhilmuthalvan, even after hearing the news through
Bagyalakshmi that Kasturi did not come to the College
on 16.05.2014, I did not inform. Previously, they did not
tell me that they are going to elope and marry. It is not
correct that I did not go to Suruli along with Bagya
Lakshmi and that if I went there, I would have given the
th
information. Lastly, when phoned on 14 , it was replied
as Not available. Hence, I have not phoned again. After
th th
14 up to 20 I did not tell anyone either about the
threatening of the accused or about the threatening of
th
Ezhilmuthalvan. After 20 , for the first time, I told
Uthamapalayam Police Station about the treatening by
the Accused. About within a week, I saw the Accused at
Cumbum Police Station. On 20, 21 and 22, Police have
shown many photos and asked me to identify. They
asked me at Suruli. Uthamapalayam Police have asked
me. I don’t know whether the covering jewels worn by
Bagyalakshmi were confiscated by the Police.
Bagyalakshmi also did not ask me. I did not give any
separate complaint about the Accused threatened me. It
is not correct that I did not go to Suruli and that there was
no such occurrence took place. It is not correct that I am
giving false evidence as taught by the Police. It is not
correct that I have given statement in Judicial Magistrate
Court as taught by the Police. It is not correct that I am
giving false evidence since the Police have threatened
me that they will implead me in the case.
My lover Bagyalakshmi and Kasturi are friends.
Hence, I know Kasturi and Ezhilmuthalvan. If it is asked
whether I have stated in the police enquiry that
Ezhilmuthalvan is belonging to SC Pallar Community
and his lover Kasturi is also belonging to S.C Pallar
Community, I have stated that. After we were sent, when
we went up to bring Ezhilmuthalvan, the accused was
threatening Ezhilmuthalvan and Kasturi with the sickle
to give their jewels. If it is asked as to whether I have
told in the police enquiry as to whether I thought that the
Crl.A.No.1672/2019 Page 28 of 77


Accused will threaten them also like he threatened, I and
Bagyalakshmi came down.
… … …”

12.6 PW-16 was the village administrative officer. He
th
testified that upon the arrest of the Appellant-convict on 28
May 2011, he gave a voluntary confession statement. He
also deposed that the latter brought them to his house from
where certain material objects were recovered and thereafter
the house of his mother-in-law from where a chain was
recovered (M.O. 10).
12.7 Maheswari (PW-17), Mayakkal (PW-18) and Raja
(PW-19) have deposed in connection with a gold chain
which PW-4 has positively identified as belonging to D-2.
Hence, they are dealt with collectively. PW-18 having
received a chain through her daughter-in-law gave it to
PW-17, who pledged it with the Cumbum Primary
Agricultural Cooperative Society for Rs.10,000/-. PW-19
testifies that the said amount along with interest of Rs.52/-
th
was returned on 27 May, 2011.
12.8 PW-31, namely, Dr. S. Chellapandian, was the
doctor who examined the appellant-convict when he was
brought to the Government Medical College Hospital, Theni
having consumed an unidentified poison. While under
treatment the doctor came to know about his involvement in
Crl.A.No.1672/2019 Page 29 of 77


the offences subject matter of appeal. The appellant-convict
th
was discharged on 25 May 2011.
12.9 PW-32, namely, Udaiyali was the Special Sub
Inspector, Gudalur South Police Station. He received
th
information on 25 May 2011 that the appellant-convict had
been admitted to hospital having consumed poison.
Accordingly, he registered Gudalur North PS Crime
No.120/2011, under Section 309 IPC. In connection
therewith he also recorded the statement of one Vijaya,
mother of the convict-appellant.
12.10 PW-34, namely, Dr. Kamalashi Krishnamoorthy, the
Additional Director and Director (I/c) of Forensic Science
Department, Chennai, had examined the DNA extracted
from semen stains and the vaginal swab. She has concluded
the DNA present on both the stains and the swab match.
12.11 PW-37 is Dr. Juliana Jeyanthi, who conducted the
postmortem of the two victims. We have already noted
supra, the injuries sustained by them, earlier in this
judgment. She has further testified that the convict-
appellant had no injuries whatsoever; she has also stated that
she may have handed over (though not certain) the vaginal
swabs taken by her to the constable on duty.
12.12 PW-38, namely, Ramakrishnan, was the Sub
Inspector of Police, Cumbum North Police Station at the
Crl.A.No.1672/2019 Page 30 of 77


relevant time. He was the one who registered FIR in Crime
No.145/2011 under the category of suspicious death, upon
receipt of a complaint from PW-1. He testified to the
th
transferring of the case to CBCID on 6 September 2011.
12.13 PW-41, namely, Mohd. Abul Rashid, was the
Special Sub Inspector of Police, Cumbum North Police
Station. He was appointed to assist the Investigating Officer
(PW-52). He conducted the inquest of the body of D-2. The
body was handed over to him which he then handed over to
PW-37, accompanying her to the hospital therefor, and after
the postmortem he gave the same to the relatives of the
victims. The organs of the victims were received by him and
sent to the regional FSL at Madurai for chemical analysis.
Later, Viscera was handed over to the Judicial Magistrate’s
Court at Uthamapalayam.
12.14 PW-42, Pandiarajan, who then was a Head
Constable at Royappanpatti Police Station, stated that upon
th
instructions of the Inspector of Police, Cumbum PS, on 29
June 2011 he took two vaginal swabs taken from the body
of D-2 and deposited the same with the Judicial Magistrate’s
Court at Uthamapalayam. There is a corresponding entry in
the Pocket Note maintained at Royappanpatti PS. Regarding
the said vaginal swabs, PW-27, Vijayendran, an employee
Crl.A.No.1672/2019 Page 31 of 77


at FSL Madurai, deposed that he received the vaginal swabs
th
of D-2 through sealed letter dated 29 June 2011.
12.15 PW-52, Vinoji was the main Investigating Officer of
the case. Since I.Os. are the charioteers of an investigation,
their testimony has to be accorded necessary importance and
attention. Having taken charge of the case, he went to the
spot of the crime and prepared the observation mahazar and
rough sketch and confiscated certain articles from there such
as hair pins, bangles, blood stained sand and also sand
otherwise. Subsequently, he went to the spot where the body
of D2 was discovered and undertook the same processes. He
carried out enquiry from the witnesses present there after
having completed the inquest upon D2. The next day, he
confiscated the bike of D1 and recorded statements of
th
certain witnesses. On 28 May 2011 he recorded the
confession statement of the Appellant-convict.
In his cross-examination, it is revealed that he has no
recollection of the number of persons present at the place of
occurrence; he had not himself prepared the observation
mahazar and sketch - neither does he recall as to who the
concerned constable was, who had prepared such
documents. He had not obtained their statements under
Section 161(3) Cr.P.C; It has also come on record that
despite a search, the amputated parts of the deceased’s body
Crl.A.No.1672/2019 Page 32 of 77


were not recovered; regarding the collection of blood-
stained sand, it was suggested that the same was not
collected neither it was sent for testing; regarding the
Appellant-convict it comes forth in the cross-examination
that he had no information as to the latter being admitted at
the Government Hospital; when it comes to the vaginal
swab, he is unclear about its status and in whose possession
the same was safely kept. He simply stated that had it been
given to the police officials, it would have been mentioned
in the case diary; the source of suspicion which made him
pursue the appellant-convict as a suspect and make
enquiries is unclear; he further admits that the confession
statements of the Appellant-convict were not written by
him, nor does he recall the particulars of the assistant who
allegedly wrote the same. He also states that such assistant
had not signed upon the statements and it had only been
signed by the Village Administrative Officer, Village
Assistant, Appellant-convict and himself; he denies having
brought into the case, as witnesses PW-16 and Manikandan
from other villages and no person from the village
concerned where the offence took place, so as to make it
easier for him to get testimonies in favour of the case put
forth by the prosecution.
Crl.A.No.1672/2019 Page 33 of 77


12.16 PW-54, namely, R. Pandiarajan, took reins of the
investigation from Inspector of Police, Cumbum North P.S.
on the basis of the order of District Superintendent of Police
th
dated 28 May 2011. In the chief examination, the witness
has listed out the various persons he examined in the course
of investigation.
His cross-examination reveals that he did not know as
to how he came to have the knowledge of the Appellant-
convict’s attempt of suicide. Further, it has been stated
therein that there is no clarity as to which of the two victims
was killed first; and that it would not be wrong to say that
PW-37 handed over the sample taken to the Constable on
duty.
12.17 PW-55, MXB. Stanli, took over investigation from
PW-54. In his cross-examination, he states that PW-54
th
ought to have gone to the scene of occurrence on 19 May
2011 as per Rules; according to him it is not correct that a
semen sample was taken from the Appellant-convict and
th
kept in the custody of the police department till 13 June
2011; he has confirmed the giving of a confession statement
and recovery of material objects at the instance of
Appellant-convict; the factum of the latter’s possession of a
mobile phone remained un-investigated.
Crl.A.No.1672/2019 Page 34 of 77


12.18 PW-56 – Tr. Dayalan Tamilselvan, was the DSP,
CBCID, Madurai. He undertook investigation in
accordance with the order of the Additional Director
General of Police, CBCID, Chennai. The examination-in-
chief details the process of investigation, carried out on
various dates. Further, it is admitted that there is no specific
reason for the non-examination of Bhagyalakshmi.

13. We now proceed to consider each of the circumstances
held to be proven against the Appellant-convict by the courts
below.

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

14. The first circumstance is that D-1 and D-2 came to the
scene of the occurrence on their own. While that is a true
statement of fact as evidenced by the testimonies of PW-2, 3 and
4, we are at a loss to understand how that is a circumstance that
can be; ought to be and is proved as a circumstance against the
accused. The two lovers had plans to meet, and so they did. They
left their houses under completely different pretexts, which is
also not an occurrence out of the ordinary or the usual when
young, budding romances are often sought to be hidden from
family, which is evidenced by the fact that the parents of the
victims were not aware of the relationship between them. Had it
Crl.A.No.1672/2019 Page 35 of 77


been the case that the Appellant-convict, by some act, had
encouraged or furthered the reason for D1 and D2 coming to the
spot of the crime, then it could have been a suggested thought
and premeditation on his part, qualifying to be counted as a
circumstance against his innocence. This, most certainly, is not
the pleaded case of the prosecution. This circumstance, therefore,
is only a circumstance in name and of no value whatsoever.

Circumstance Two: Last Seen Theory

15. The next circumstance that is to consider is the last seen
theory. It is well established that this is a weak piece of evidence
11
and cannot be the sole basis of conviction. We may further refer
to certain judgments that expand upon the application of this
theory.
12
15.1 In Ravasaheb v. State of Karnataka , a three Judge
Bench ( which included two of us, Nath and Karol JJ .)
observed thus:

“ 29. On its own, last seen theory is considered to be a
weak basis for conviction. However, when the same is
coupled with other factors such as when the deceased
was last seen with the accused, proximity of time to the
recovery of the body of the deceased, etc. The accused is
bound to give an explanation under Section 106 of the
Evidence Act, 1872. If he does not do so, or furnishes
what may be termed as wrong explanation or if a motive

11
Nizam v. State of Rajasthan, (2016) 1 SCC 550
12
(2023) 5 SCC 391
Crl.A.No.1672/2019 Page 36 of 77


is established — pleading securely to the conviction of
the accused closing out the possibility of any other
hypothesis, then a conviction can be based thereon.
[ Satpal v. State of Haryana [ Satpal v. State of Haryana ,
(2018) 6 SCC 610] and Ram Gopal v. State of M.P. [ Ram
Gopal v. State of M.P. , (2023) 5 SCC 534]]”

13
[See also: Sanjay v. State of U.P. ]
15.2 The application of Section 106 of the Indian
Evidence Act, 1872, doesn’t absolve the prosecution of its
duty to establish its case against the accused, beyond
14
reasonable doubt. [See: Sawal Das v. State of Bihar and
15
Shivaji Chintappa Patil v. State of Maharashtra ]
15.3 In applying the last-seen theory, Courts should keep
in mind the totality of the circumstances, or the case put
forward by the prosecution. In other words, also to be seen
is, what preceded and followed the accused person being
last seen with the deceased. [See: Surajdeo Mahto v. State
16
of Bihar ]
17
15.4 In Veerendra v. State of M.P . , referring to Nizam
(supra) it was observed that when the time between the ‘ last
seen ’ and the ‘ time of occurrence ’ is significant, conviction
thereon would not be advisable or sustainable.

13
2025 SCC OnLine SC 572
14
(1974) 4 SCC 193
15
(2021) 5 SCC 626
16
(2022) 11 SCC 800
17
(2022) 8 SCC 668
Crl.A.No.1672/2019 Page 37 of 77


15.5 The converse of the above is that the theory comes
into play “where the time gap between the point of time
when the accused and the deceased were last seen alive and
when the deceased is found dead is so small that possibility
of any person other than the accused being the author of the
crime becomes impossible.” [See: Bodhraj v. State of
18 19
J&K , State of U.P. v. Shyam Behari and Sambhubhai
20
Raisangbhai Padhiyar v. State of Gujarat ]
16. The two witnesses relied on by the prosecution to establish
the evidence of last seen are PW-5 and PW-25. The High Court
found the evidence of PW-5 to be inspiring in confidence,
rejecting the argument advanced on behalf of the Appellant-
th th
convict that his silence from 14 May 2011 to 20 May 2011
renders his testimony doubtful. This was done on the ground that
the reaction of PW-5 – relief of having escaped the negative
consequence of attempted robbery of Bhagyalakshmi’s jewels;
the assumption that D1 and D2 would have faced something
similar; would be alive and well; also, would have gone into the
forest to get married, an entirely plausible manner of perceiving
the event having taken place. The question is – Is it so?

18
(2002) 8 SCC 45
19
(2009) 15 SCC 548
20
(2025) 2 SCC 399
Crl.A.No.1672/2019 Page 38 of 77


17. The evidence of PW-5 stands extracted in toto, supra. On
independent analysis, while we acknowledge the point of view of
the High Court that no two persons can act in the same manner,
we are unable to record our agreement with the findings returned
qua this witness. It is a settled proposition of law that if two
interpretations of a given situation are possible, the one favouring
the accused will be taken. But, at the same time, the principle in
judging the conduct of a person is the reasonable man test. The
examination that we must undertake is whether the act of PW-5
satisfies this understanding. Certain questions, therefore, arise.
First and foremost, why did he not inform anyone about the
th th
occurrence between the 14 and the 20 ; Second, having seen
that the Appellant-convict was threatening D1 and D2, and
finding that D1 did not pick up the phone when this witness
called after coming down the hill-ordinarily should have raised
sufficient concern in PW-5 to have taken further steps, for
instance, himself intervening, to support D1 and D2 against the
actions of the Appellant-convict, or alerting the forest rangers of
unruly behaviour, contacting police authorities or informing them
of the near theft/threat they had received as also seen others
receiving et cetera ; yet further when Bhagyalakshmi informed
PW-5, that on the next day D2 did not attend college, yet again
there was no action on part of PW-5 – In fact, stoic silence, any
which way. He testified that they assumed that the Appellant-
Crl.A.No.1672/2019 Page 39 of 77


convict would let D1 and D2 go, as he did to them, and that they
would have gone off into the woods to get married. Striking quite
the opposite tone, in his cross-examination it appears that there
had been no discussion whatsoever of this possibility. The
question then is how such an assumption could be justified. The
High Court held this exploration to be valid and possible but then
the record speaks differently. These circumstances, taken
cumulatively, appear to be sufficient enough to ring alarm bells
th
and yet he sat quietly and waited till the 20 May 2011 to inform
any of the investigating authorities or any other person in regards
to what he had seen at the hill. Can this be termed as the conduct
of a reasonable man or, in other terms be so plausible that it be
chalked out to differences in human behaviour. Considering the
above discussion, we find the testimony of PW-5 who is the star
witness of the prosecution to be full of holes, stretches and
surmises. With far too much emphasis being given on the
possibility of such an action being reasonable. Knowing both the
victims, having seen them be threatened, finding them missing
from everyday activity and even out of contact, and yet not even
uttering so much as a whisper to anybody, is hard to conceive as
reasonable. In our considered view, therefore, there are sufficient
holes in the testimony of PW-5 for it to be cast in doubt. This
then takes us to the question as to whether he is a witness worthy
of credence and his testimony believable. We are afraid not so.
Crl.A.No.1672/2019 Page 40 of 77


Particularly, as he himself admits having been repeatedly
questioned by all the investigating officers.
18. The next witness relied on by the prosecution to establish
last seen is PW-25 who is a Forest Guide. His statement is limited
to the fact of seeing the Appellant-convict with a Sickle or
‘ Aruval ’, which is the alleged murder weapon, on the day of the
occurrence. In ordinary circumstances, this would have been an
important piece of evidence. However, in the attending facts and
circumstances of this case, particularly that the Appellant-convict
was employed as a ‘ coconut cutter ’ as can be seen from the
testimony of PW-23, further substantiated by the testimonies of
PW-10 and PW-24, who are also similarly placed men, this job is
done with the use of an ‘ Aruval ’, and so, it cannot be held to be
strange that a person who is, in the course of his employment,
regularly using such an instrument has it in his possession. In
other words, the evidence of PW-25 is a mere statement and
cannot help, in any way in the case against the Appellant-convict.

Circumstance Three: Arrest, Confession and Recovery
Arrest
19. The next aspect to be considered is the arrest of the
Appellant-convict. The sequence of events leading up to the
th
arrest is that the bodies of the victims were discovered on 19
th
May, 2011; PW-5 spoke to the investigating authorities on 20
Crl.A.No.1672/2019 Page 41 of 77


May 2011; as a consequence of unrelated actions, the Appellant-
convict attempts suicide, such attempt is thwarted-he is admitted
nd
to the Government Medical College Hospital, Theni, on 22
May, 2011 brought by certain constables; he was later sent to K.
th
Vilakku Hospital and discharged on 25 of May, 2011, after
having received treatment at the hands of PW-31; and he is
th
arrested on 28 May 2011. The High Court judgment, curiously,
records that the investigating authorities, “ taking a cue ” from the
th
statement of PW-5, arrested the Appellant-convict on 28 May,
2011. However, the record is unclear how such an arrest order
was passed.
20. PW-31, in his cross-examination states that while the
Appellant-convict was admitted under his care, he came to know
either on the day of the latter’s admission, or the next day, that he
was involved in a murder investigation. For clarity, it may be
nd rd
stated that this occurrence happened either on 22 or 23 of May
2011. We notice that PW-32, who, at the relevant point of time,
was a Special Sub Inspector, Gudalur South PS, states that he
th
received information on 25 May, 2011 that the Appellant-
convict had been admitted there. It has come forth in his
statement that when he reached, the latter was accompanied only
by his mother. Apparently, his mother's statement was also
recorded; however, the same is not on record. There is an
Crl.A.No.1672/2019 Page 42 of 77


apparent difference in the sequence of events, as narrated by
these two witnesses.
21. The Appellant-convict came to be arrested, according to
th
the prosecution, on 28 May, 2011 ( which fact he denies in his
statement under section 313 Cr.P.C .). PW-16, who is the Village
Administrative Official, testified that the Inspector of Police,
Cumbum, arrested him and relayed such information. The only
reason for such an arrest is suspicion. As we have already
observed, the other statement relating to the arrest of the
Appellant-convict is that he was arrested, taking a cue from the
statement of PW-5. The record is conspicuously silent as to the
genesis of the suspicion the authorities cast upon him or what cue
or hint they took from the statement of PW-5. So, how one thing
led to another is unclear. We may also observe that it is strange
that the Courts below did not emphasize how such an arrest came
to be, particularly when none of the witnesses examined for the
prosecution stated with ample clarity regarding the same. The
arrest of the Appellant-convict itself is cast under serious doubt,
since the circumstances leading to the same are missing from the
record. Various questions that ought to have been answered were
in fact not done so - such as what led the police to suspect him,
when this suspicion arose; what processes were undertaken to
lend credence to such suspicion, before making an arrest, et
cetera . The High Court, in para 32 of the impugned judgment,
Crl.A.No.1672/2019 Page 43 of 77


records that the Appellant-convict had been arrested in the
presence of PW-16 and one Manikandan. This appears to be
incorrect on the face of the record. The cross-examination of
PW-16 reads :
“…if it is said that the accused was arrested at about
11:30 AM on 28 May 2011 by the Inspector of police, he
was brought for enquiry. The Inspector caught the
accused at 11:30 AM and informed me after 15 minutes.
He informed me through cell phone. I was in the office
of the Village Administrative Officer, Surulipatti, when
the Inspector informed me. 10 minutes after I left, police
have enquired. The enquiry was started where the
accused was caught…”
(Emphasis supplied)

It is clear that at the time of arrest, there was no independent
witness. The evidence of Manikandan, if taken, is not on record.

Confession

22. The appellant convict made two confession statements
th
before the police authorities, Ex. P.8 dated 28 May, 2011 and
st
Ex. P.75 dated 31 May, 2012. The evidentiary value of such a
confession has been considered many a times before this Court.
21
In Nikhil Chandra Mondal v. State of W.B. B.R Gavai, J., ( as
his Lordship then was ) discussed the law as follows :


21
(2023) 6 SCC
Crl.A.No.1672/2019 Page 44 of 77


“ 16. It is a settled principle of law that extra-judicial
confession is a weak piece of evidence. It has been held
that where an extra-judicial confession is surrounded by
suspicious circumstances, its credibility becomes
doubtful and it loses its importance. It has further been
held that it is well-settled that it is a rule of caution where
the court would generally look for an independent
reliable corroboration before placing any reliance upon
such extra-judicial confession. It has been held that there
is no doubt that conviction can be based on extra-judicial
confession, but in the very nature of things, it is a weak
piece of evidence.

17. Reliance in this respect could be placed on the
judgment of this Court in Sahadevan v. State of
T.N. [ Sahadevan v. State of T.N. , (2012) 6 SCC 403 :
(2012) 3 SCC (Cri) 146] This Court, in the said case,
after referring to various earlier judgments on the point,
observed thus : (SCC pp. 412-13, para 16)
“ 16 . Upon a proper analysis of the abovereferred
judgments of this Court, it will be appropriate to state the
principles which would make an extra-judicial
confession an admissible piece of evidence capable of
forming the basis of conviction of an accused. These
precepts would guide the judicial mind while dealing
with the veracity of cases where the prosecution heavily
relies upon an extra-judicial confession alleged to have
been made by the accused:

( i ) The extra-judicial confession is a weak evidence by
itself. It has to be examined by the court with greater care
and caution.
( ii ) It should be made voluntarily and should be truthful.
( iii ) It should inspire confidence.
( iv ) An extra-judicial confession attains greater
credibility and evidentiary value if it is supported by a
chain of cogent circumstances and is further
corroborated by other prosecution evidence.
( v ) For an extra-judicial confession to be the basis of
conviction, it should not suffer from any material
discrepancies and inherent improbabilities.
Crl.A.No.1672/2019 Page 45 of 77


( vi ) Such statement essentially has to be proved like any
other fact and in accordance with law.”

23. Keeping in view the aforesaid principles of law, we have
th
perused both the confessions. In the first confession dated 28
May, 2011 after giving a background of his upbringing and also
previous involvement in petty crimes, coming to the instant crime
he admitted that he struck a blow on D1 who, as a result thereof,
started bleeding. PW-54, to some extent corroborates this stating
that he had recovered sand both with and without blood near the
corpse of D2. However, contrary to this version of events, PW-
28 who is the Scientific Officer at the Regional Laboratory states
that from the material recovered, there was no blood to be found.
The confessional statement records that having hacked the body
of D2, he threw the severed limbs in the nearby bushes but, it is
a matter of record that despite an extensive search, they could not
be located. It is also unclear that a man, who by his own
admission, has been in the past involved in petty crimes would
take stolen articles not only back to his own home but also give
one of them to be pledged in order to get money - the natural
question is that once he has stolen the said chain, it would be
easier to dispose it of and get whatever money it is worth rather
than using it as collateral to get money from other, more
legitimate sources leaving open the possibility of it being traced
back .
Crl.A.No.1672/2019 Page 46 of 77


24. That apart, we find that the record is silent as to why there
was a need to record a second confession more than a year after
the date of offence. The Deputy Superintendent of Police upon
order of the Additional Director General of Police, CBCID,
Chennai, commenced investigation in the matter following the
th
latter’s order dated 13 August, 2011 and, thereafter, enquired
and examined various witnesses. Given that the Appellant-
convict was already in custody, the recording of a second
confession without any reason therefor, or clearly stating that the
Appellant-convict upon his own volition wished to give a second
confession, in our view, is unjustified. As recorded supra, it has
been held that if the circumstances surrounding the recording of
the confession are suspicious, placing reliance thereon is totally
unsafe, and that too without any corroboration. We find there to
be an apparent lack of corroboration to any of the statements
made by the Appellant-convict and as such, find that the
confessions are truly unreliable. This is, of course, over and
above the settled position of law that confessions made to a police
officer are wholly inadmissible as evidence in a Court of law.

Recovery

25. The Courts below have found that since, in the confessions
given by the Appellant-convict, certain information regarding the
location of material objects was divulged, that limited portion of
Crl.A.No.1672/2019 Page 47 of 77


the confession becomes admissible according to Section 27 of the
Indian Evidence Act,1872. That is the correct proposition in law.
Reference may be made to some judgments of this Court as
follows :
25.1 Surya Kant J., writing for a Bench of three Hon’ble
22
Judges of this Court in Bijender v. State of Haryana , held
as under :

“ 16. We have implored ourselves with abounding
pronouncements of this Court on this point. It may be
true that at times the court can convict an accused
exclusively on the basis of his disclosure statement and
the resultant recovery of inculpatory material. However,
in order to sustain the guilt of such accused, the recovery
should be unimpeachable and not be shrouded with
elements of doubt. [ Vijay Thakur v. State of H.P. , (2014)
14 SCC 609 : (2015) 1 SCC (Cri) 454] We may hasten
to add that circumstances such as : ( i ) the period of
interval between the malfeasance and the disclosure; ( ii )
commonality of the recovered object and its availability
in the market; ( iii ) nature of the object and its relevance
to the crime; ( iv ) ease of transferability of the object; ( v )
the testimony and trustworthiness of the attesting
witness before the court and/or other like factors, are
weighty considerations that aid in gauging the intrinsic
evidentiary value and credibility of the recovery. (See
: Tulsiram Kanu v. State [ Tulsiram Kanu v. State , 1951
SCC 92 : AIR 1954 SC 1] , Pancho v. State of
Haryana [ Pancho v. State of Haryana , (2011) 10 SCC
165 : (2012) 1 SCC (Cri) 223] , State of
Rajasthan v. Talevar [ State of Rajasthan v. Talevar ,
(2011) 11 SCC 666 : (2011) 3 SCC (Cri) 457]
and Bharama Parasram Kudhachkar v. State of
Karnataka [ Bharama Parasram Kudhachkar v. State of

22
(2022) 1 SCC 92
Crl.A.No.1672/2019 Page 48 of 77


Karnataka , (2014) 14 SCC 431 : (2015) 1 SCC (Cri)
395] )

17. Incontrovertibly, where the prosecution fails to
inspire confidence in the manner and/or contents of the
recovery with regard to its nexus to the alleged offence,
the court ought to stretch the benefit of doubt to the
accused. It is nearly three centuries old cardinal principle
of criminal jurisprudence that “ it is better that ten guilty
persons escape, than that one innocent suffer ” [ W.
Blackstone, Commentaries on the Laws of England ,
Book IV, c. 27 (1897), p. 358. Ed. : see R. v. John Paul
Lepage , 1995 SCC OnLine Can SC 19.] . The doctrine
of extending benefit of doubt to an accused,
notwithstanding the proof of a strong suspicion, holds its
fort on the premise that “ the acquittal of a guilty person
constitutes a miscarriage of justice just as much as the
conviction of the innocent ”.
(Emphasis supplied)

23
25.2 Earlier in K. Chinnaswamy Reddy v. State of A.P. ,
a three-Judge Bench had summarised the situation as under:

“ Pulukuri Kotayya v. King-Emperor [ (1946) 74 IA 65]
where a part of the statement leading to the recovery of
a knife in a murder case was held inadmissible by the
Judicial Committee. In that case the Judicial Committee
considered Section 27 of the Indian Evidence Act, which
is in these terms:

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


23
1962 SCC OnLine SC 32
Crl.A.No.1672/2019 Page 49 of 77


This section is an exception to Sections 25 and 26,
which prohibit the proof of a confession made to a
police officer or a confession made while a person is in
police custody, unless it is made in immediate presence
of a Magistrate. Section 27 allows that part of the
statement made by the accused to the police “whether
it amounts to a confession or not” which relates
distinctly to the fact thereby discovered to be proved.
Thus even a confessional statement before the police
which distinctly relates to the discovery of a fact may
be proved under Section 27. The Judicial Committee
had in that case to consider how much of the
information given by the accused to the police would
be admissible under Section 27 and laid stress on the
words “so much of such information … as relates
distinctly to the fact thereby discovered” in that
connection. It held that the extent of the information
admissible must depend on the exact nature of the fact
discovered to which such information is required to
relate. It was further pointed out that “the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this
fact”.

26. In the preceding paragraph, we have considered the law
laid down by this Court on that issue. Let us now consider the
circumstances in which the recovery was made from the locations
as disclosed. It cannot be questioned that such recovery would
be relevant since the Appellant-convict could have affected the
recovery only if he had specific knowledge of the location. This,
however, in our view, is not sufficient to take the recovery of the
objects as a circumstance against the Appellant convict. This we
say for the reason that the objects recovered also have to be
verified and tested. Now, this was not done. His statement is said
Crl.A.No.1672/2019 Page 50 of 77


to have led to the recovery of - (i) a sickle, (ii) a jute bag, (iii) a
green coloured lungi, (iv) a blue colour checked shirt, and (v) a
red and yellow colour striped towel from his house.
27. How any and/or all of these articles related to the alleged
murder of two victims and rape of one of them is undemonstrated
from the record. None of the relatives of either D1 or D2 have
testified to any of these belongings being that of the victims.
28. Still further, we would separately deal with the recovery of
each of the articles relating to the guilt of the Appellant-convict:
(a) Sickle - The sickle, M.O. 18, has not been sent for FSL-in
other words, on what basis is it established that this very
sickle was used to hack the victims? Also, sickle is an
easily available item for a person like the accused whose
work is to cut coconut. No blood was found on the
weapon. Even the doctor doesn’t state that the injuries on
the body of the deceased could have been caused with the
same. There is a total disconnect with the weapon and the
injuries resulting into death. None has also testified the
weapon to be owned by the Appellant-convict.
(b) Semen or Blood - There is no forensic report as to the
recovery of either semen or blood on the clothes so
recovered; the manner in which it was preserved and kept
in whose custody.
Crl.A.No.1672/2019 Page 51 of 77


(c) Jute Bag - There is no identification of the owner and
possessor of the jute bag.
(d) Black bag, a different box and a book - recoveries were
also made of a black bag, a different box, and a book -
M.Os.23, 24 and 25, from the bushes near Karuppasamy
Temple. These items, too, were not verified or ownership
established. In other words, how they are to be considered
to be the ‘material objects’ for the purpose of this case?
More so, when these items were recovered on the basis of
confessional statement of the accused himself, as recorded
by PW-52, but the confessional statement is in itself not
reliable, even otherwise to what effect.
(e) Gold chain - Further, insofar as the gold chain is
concerned, it is the uncontroverted testimony of PW-16
that a chain of such a design is readily available in stores.
That apart, the testimony of PW-18 reveals that she came
into possession of the said chain through her adopted
daughter, who is the wife of the Appellant convict. Such
wife, namely Pavithra, was not examined to establish the
chain's ownership or the source of such acquisition on her
part. The parents of D-2 have indeed identified the chain
(M.O.10) as hers, but we record our surprise that only the
chain was produced before them for identification and
none of the other material allegedly recovered at the
Crl.A.No.1672/2019 Page 52 of 77


instance of the Appellant-convict. Be that as it may, even
if the identification of the chain by the parents of D2 is
taken at face value, even then, to affix the gauntlet of guilt
upon the Appellant-convict on this count alone, would be
entirely unwarranted.

Circumstance Four: The Incident of Rape and DNA
Evidence


28. According to the prosecution, since the vaginal swabs
collected from D2 show penetrative sexual assault and since the
DNA found, matches that of the Appellant-convict, the factum of
rape is established. The case put up by the Appellant-convict, on
the other hand, is that DNA evidence, in the facts and
circumstances of this case is unreliable, and therefore, the fact of
rape cannot be established. The primary ground urged in this
regard is concerning the chain of custody of the DNA. A
sequence of events concerning DNA evidence, as per the
prosecution may be useful to be noted at this stage:

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

29. The first limb of considering the DNA evidence is the
vagina swabs taken from D-2. PW-37 in her chief examination,
stated that once she took the said samples, they were sent to FSL
Madurai, for DNA test, but striking an entirely different tone in
Crl.A.No.1672/2019 Page 54 of 77


her cross-examination, she said that having taken these samples
she ‘might have’ handed over the said swabs to the constable on
duty. It is noteworthy to observe here itself that PW-41, who was
the constable on duty, makes no such mention of having received
the swabs from PW-37. PWs 52 and 54 both state that upon
collection, the samples remained with PW-37 at the Government
Hospital. Per contra, PW-56 states that the samples were kept at
Royappanpatti Police Station. PW-42, who is a police carrier,
states that he collected the samples from the Government
Medical College and took them to the Regional Forensic Science
th
Laboratory, Madurai, on 29 June, 2011. This means they were
sent to the FSL after a delay of 41 days, having been taken on
th
19 May, 2011. The prosecution has not been able to explain the
reason as to why this delay took place. We find force in the
argument made on behalf of the Appellant-convict that the
circumstances under which the samples were sent from FSL,
Madurai to FSL, Chennai, are unclear. PW-27, who is a Scientific
Officer only states that after his analysis of the swab, he sent the
same to the DNA wing of the FSL Chennai. No reason is
forthcoming as to why and under whose orders the same were
sent to a different city. The final DNA report was prepared by
PW-34. He, however, in his evidence does not mention when the
samples were received by him or his office. Nor does he depose
the conditions in which the sample was received. In this regard,
Crl.A.No.1672/2019 Page 55 of 77


the Appellant-convict contended that the swab itself was received
by speed post. We find that to be an incorrect statement of facts.
PW-34 states that the report prepared by him was DNA 152/2011.
24
A perusal of the annexure to the DNA report shows the label
given to the document sent by speed post as matching that of the
report prepared by PW-34. So, it is clear that the report was what
was sent by speed post, not the swab itself. That apart, had it
actually been that the swab was sent by speed post, we would be
nothing short of aghast. Time and again, this Court has
emphasized the importance of maintaining the sanctity of these
samples and, the investigating authorities actually doing
something so glaringly irresponsible would be an affront to any
and all observations that have been made by this Court over the
years.
30. Having noticed various gaps as above, the logical question
that arises is where were the swabs?; why were they sent for
forensic analysis belatedly?; were they properly stored?; whether
the Malkhana of the Police Station where they were kept
according to some of the witnesses, was sufficiently equipped or
not; if the same were kept in the hospital, was it ensured that no
other member of the staff could have had access to them?; in
whose custody were they?; if the swabs were damaged, who shall
be held responsible for the destruction of vital evidence, etc.

24
page 215 of the Appellants Convenience compilation
Crl.A.No.1672/2019 Page 56 of 77


Similar questions arise in connection with the semen sample
taken from the accused as a consequence of an order passed by
th
the Judicial Magistrate, Uthamapalayam, on 13 June, 2011. PW-
th
56 states that the said samples were sent to FSL, Chennai, on 16
June, 2011 but subsequently returned. It is unclear, yet again, that
th th
between 13 and 16 June 2011 where such samples were stored;
who was in charge thereof and whether he had kept them in safe
custody?; how and in what condition they were sent; when and
why they were returned - unfortunately, all these questions have
no answer forthcoming from the record.
25
31. In Anil v. State of Maharashtra this Court observed that
DNA profiles have had a tremendous impact on criminal
investigations. A DNA profile is valid and reliable, but the same
depends on quality control and procedures in the laboratory. We
may add to this position and say, that quality control and
procedures outside the laboratory matter equally as much in
ensuring that the best results can be derived from the samples
collected. We record with some sadness that there are quite a few
cases in which DNA evidence, despite being there, has to be
rejected for the reason that the manner, in which the samples were
handled during and after collection by the concerned doctor, in
transit to the lab, inside the lab and the results drawn therefrom,
are not in accordance with the best possible practices which

25
(2014) 4 SCC 69
Crl.A.No.1672/2019 Page 57 of 77


would focus on ensuring that throughout this process the samples
remain in pristine, hygienic and biologically suitable conditions.
32. One such instance where DNA evidence had to be rejected,
fairly recently, was a three-Judge Bench decision in Manoj v.
26
State of M.P. . The Appellants in the said case had been
st
sentenced to death by the 1 Additional Sessions Judge, Indore,
for the murder in the course of the robbery of 3 women.
Ultimately, the Court commuted the death sentence to life
imprisonment with a minimum 25 years sentence; while dealing
with such evidence, it made detailed references to a 2007 paper
titled DNA Profiling In Justice Delivery System published by the
Central Forensic Science Laboratory, Kolkata and the previous
judgments of this Court wherein the topic of DNA has been dealt
th
with, as also the 185 report of the Law Commission of India.
In this case, DNA was rejected on the ground that recovery,
which was affected, was made from an open place, and the
likelihood of its contamination cannot be ruled out. It is also
observed that the bloodstains found on the articles were
disintegrated, and the quantity was insufficient to run any
classification tests.
33. Rahul (supra) was a case concerning the kidnap, rape and
murder of a woman, wherein 3 persons were convicted by the
Special Fast-Track Court, Dwarka Courts in Sessions Case No.91

26
(2023) 2 SCC 353
Crl.A.No.1672/2019 Page 58 of 77


of 2013. These persons had kidnapped a woman as she returned
from work, proceeded to do horrible things to her, and then
dumped her lifeless remains in a field, from where it was
discovered four days later. The DNA evidence, here, was rejected
because it remained in the police Malkhana for two months and
in such time, the possibility of tampering could not be ruled out.
It was also held that neither the Trial Court nor the High Court
had examined the underlying basis of the findings in the DNA
reports or whether the techniques used had been reliably applied
by the concerned expert. As such, it was concluded that the DNA
profile, in the absence of such evidence, had become highly
vulnerable when the collection and sealing of the samples sent
for examination was not free from suspicion.
27
34. Prakash Nishad v. State of Maharashtra was a case
concerning the rape and murder of a 6-year-old child. Similar to
the present case, it was a case of circumstantial evidence. Based
on the disclosure statement made by the Appellant therein, the
police found certain garments as also traces of semen of the
Appellant on the vaginal smear of the minor victim, based on
which he was sought to be convicted. DNA evidence had to be
rejected by this Court on the grounds that there was a delay in
sending the samples to the FSL, which was unexplained. It was
observed that because of the delay, the concomitant prospect of

27
(2023) 16 SCC 357
Crl.A.No.1672/2019 Page 59 of 77


contamination could not be ruled out. The need for expediency
in sending samples to the concerned laboratories was
underscored.
35. This case, incidentally, if not unfortunately, is another one
of the like of the above. Despite the presence of DNA evidence,
it has to be discarded for the reason that proper methods and
procedures were not followed in the collection, sealing, storage,
and employment of the evidence in the course of the Appellant-
convict's conviction. DNA, as we have observed, has been held
to be largely dependable, even though this evidence is only of
probative value, subject to the condition that it is properly dealt
with. Over the past decades, many cases have come to their
logical conclusion with the aid of DNA evidence in many regions
across the world. It is also equally true that many persons
wrongly convicted have finally had justice served, with them
being declared innocent because of advancements in this
technology. It is unfortunate that, alongside such advancements,
we still have cases where, despite the evidence being present, it
has to be rejected for the reason that the concerned persons, either
doctors or investigators, have been careless in the handling of
such sensitive evidence.

Circumstance Five: Motive
36. It is settled law that, in a case of circumstantial evidence
as this one is, motive forms one of the chains of circumstance
Crl.A.No.1672/2019 Page 60 of 77


which can collectively point to the guilt of the accused.
According to the prosecution, robbery was the Appellant-
convict's motive for ending the lives of D1 and D2. On first
blush, this hypothesis appears to be attractive for the reason that
the robbery of gold ornaments worn by Bhagyalakshmi at the
first instance, and subsequently D2, is what eventually gave way
to the crimes for which he stands convicted concurrently by the
Courts below. The counsel for the Appellant-convict seeks to
dispel the presence of motive by stating that there were other
instruments/ornaments of the two victims, which could have
been taken by the Appellant-convict and put to his own use or
sold off for one sum of money or another; however, that was not
the case. The ring worn by D2 and the mobile phone of D1, which
undoubtedly were in their possession, were neither found in the
possession of the Appellant-convict nor near the scene of the
crime.
37. It has come on record that the Appellant-convict, due to
various factors, had taken to crime. As we have already
discussed, it is not the case of the prosecution that the said objects
were taken by the Appellant-convict and then misused or sold.
When the identity of the gold chain could not be unquestionably
established and the fact that the other goods that were in
possession of the victims at the time of the crime were also not
Crl.A.No.1672/2019 Page 61 of 77


recovered from or at the instance of the Appellant-convict, we
find it difficult to ascribe any motive on his part.

Circumstance Six: Test Identification Parade

38. The investigating authorities conducted a test
identification parade - asking PW-5 to identify the Appellant-
convict from a long line of habitual offenders. He did so thrice.
This has been taken as another circumstance against the convict
Appellant. Before proceeding to the merits of this circumstance,
let us appreciate the law on this point.
38.1 No provision of law casts an obligation upon the
investigating authorities to conduct a test identification
parade. If it is conducted, the provision that governs is
Section 162, Cr.P.C. [See: Munshi Singh Gautam v. State
28 29
of M.P . ; Malkhansingh v. State of M.P. ; Visveswaran v.
30 31
State ; and Ashok Debbarma v. State of Tripura .]
38.2 The onus to show that the T.I.P. has been conducted
in accordance with law lies on the prosecution, and only
after this burden stands prima facie discharged, does the

28
(2005) 9 SCC 631
29
(2003) 5 SCC 746
30
(2003) 6 SCC 73
31
(2014) 4 SCC 747
Crl.A.No.1672/2019 Page 62 of 77


question of considering objections in this regard arise. [See:
32
Umesh Chandra v. State of Uttarakhand .]
38.3 It is not a substantive piece of evidence. Its only
purpose is for the investigating authorities to analyse the
correctness, or lack thereof, of the direction in which they
are steering the investigation. [See : Hari Nath v. State of
33 34
U.P . ; and Iqbal v. State of U.P. ]
38.4 If the prosecution does not establish, by
examination of witnesses to the T.I.P., and the Magistrate
entrusted therewith, it cannot be said that it was conducted
per law. [See: Umesh Chandra (supra).]
38.5 There is no hard and fast rule about delay in
conducting T.I.P. being fatal to the case of the prosecution.
In certain cases, relatively small delay has been considered
fatal yet in others, a delay of as much as 40 days is not fatal.
35
[See: Raja v. State .]
38.6 The prosecution must establish that prior to the test
identification parade being conducted, the witness had no
opportunity to see the accused. In other words, the accused

32
(2021) 17 SCC 616
33
(1988) 1 SCC 14
34
(2015) 6 SCC 623
35
(2020) 15 SCC 562
Crl.A.No.1672/2019 Page 63 of 77


must be kept ‘baparda’ . [See: Gireesan Nair v. State of
36 37
Kerala ; and Budhsen v. State of U.P. . ]
38.7 If the above has not been ensured, the evidence of
the T.I.P. becomes inadmissible. It has also been held that if,
prior to the T.I.P. the witness has the opportunity to see even
the photograph of the accused person, such process becomes
inconsequential. [See: Maya Kaur Baldevsingh Sardar v.
38 39
State of Maharashtra ; C. Muniappan v. State of T.N. ;
40
and Sk. Umar Ahmed Shaikh v. State of Maharashtra .]
38.8 Dock identification by the informant, even in the
absence of T.I.P., can be accepted, but generally, as a matter
of prudence, a witness’s identification of an accused in
Court is sought to be corroborated by the identification by
the former of the latter in previously conducted
41
identification proceedings [ Rajesh v. State of Haryana ;
42
and Mukesh v. State (NCT of Delhi) .]
38.9 Considering the facts and circumstances of the case
at hand, it is open for the Court to draw an adverse inference
against the witness, should they put forth a refusal to

36
(2023) 1 SCC 180
37
(1970) 2 SCC 128
38
(2007) 12 SCC 654
39
(2010) 9 SCC 567
40
(1998) 5 SCC 103
41
(2021) 1 SCC 118
42
(2017) 6 SCC 1
Crl.A.No.1672/2019 Page 64 of 77


participate in the identification proceedings. [See: Mohd.
43
Anwar v. State (NCT of Delhi) .]
39. It is plain as day that the above principles were not
observed in the present case. We are constrained to record our
astonishment as to how the Courts below considered the
identification proceedings as a circumstance accruing against the
Appellant-convict. It is undoubted that PW-50, in his testimony,
gives sufficient detail as to the procedure followed in conducting
the T.I.P., and on that count, no assault can be made thereon,
however, as the preceding paragraph establishes, there are other
equally crucial factors. It is a matter of record that PW-5 ( the
witness who participated in the T.I.P. ), in his testimony, stated
that about a week after he gave information to the concerned
th
police about the incident of 14 May, 2011, he saw the Appellant-
convict at the said police station. Most importantly, as has come
on record, the police officials had informed him about the
Appellant-convict committing the crime. As held by Budhsen
(supra) as far back as the year 1970, by Suryamoorthy v.
44
Govindaswamy in 1989, Suresh Chandra Bahri v. State of
45 46
Bihar in 1995, Mulla v. State of U.P in 2010, i.e., well before
the judgment of the learned Trial Court was pronounced, that if

43
(2020) 7 SCC 391
44
(1989) 3 SCC 24
45
1995 Supp. (1) SCC 80
46
(2010) 3 SCC 508
Crl.A.No.1672/2019 Page 65 of 77


the said witness had the opportunity to see the accused, in any
form, after the incident the subject matter of testimony, but prior
to the identification proceedings, it would render the same to be
ineffective. Then, in our view, the courts below committed an
error of elephantine proportions in considering these proceedings
as forming one of the chains of circumstances against the
Appellant-convict.

Two Additional Points
One: Other Suspects Remained Unexplored

40. Most importantly, PW-2, the father of D1 in his testimony
deposed that he feared the involvement of four other persons. In
order to have that possibility sufficiently explored, he filed a case
before the High Court seeking transfer of the investigation to
CBCID. PW-56, the Investigating Officer on behalf of the
th
CBCID submitted that on 8 August, 2011, he recorded the
statements of PW-5 (Rajkumar), Bhagyalakshmi, and suspects -
Francis, Arjunan, Ambazhagan. These statements are not on
record. How these statements were pursued, verified, and taken
to their logical conclusion is unknown to record, more so, to the
findings of the Courts below. PW-56, in his own deposition, also
does not give any details as to what they may have said to him
during his examination. Curiously, if Bhagyalakshmi had been
examined by him, why her statement was not produced before
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the Trial Court is a question which remains unanswered. The
prosecution has nowhere stated that PW-2's suspicion on these
persons was unfounded or misguided. That being the case, the
non-pursuance of these suspects is a circumstance to be taken
against the prosecution case.

Two: Non-examination of Bhagyalakshami

41. PW-5 in his testimony states that he knew both the victims,
D1 and D2 through Bhagyakshami. Undisputably, D2 and she
were friends. She was obviously there at the time of the incident.
She was the one who had informed PW-5 that D2 did not attend
college the next day. Further, she was the one who told PW-5
that they had been murdered in suspicious circumstances which
th
led the latter to go to the police on 20 May, 2011 and tell them
th
his version of events on the fateful day of 14 May 2011. All of
these essential happenings have a link, i.e., the lover of PW-5.
Then, why she remained unexamined by the prosecution is a
mystery. Still further, it has come on record, as we have noticed
supra that PW-56 recorded her statement. However, how it
escaped the attention of both the Courts below that the statement
was not on record, is surprising. She could have given essential
testimony for the last seen theory to be applied to the present
case; she could have deposed as to the relationship between D1
and D2; the possibility of an elopement which formed the basis
Crl.A.No.1672/2019 Page 67 of 77


of PW-5 not approaching the authorities even after he came to
know from her that D2 did not attend college. She could have
further been an additional witness in the T.I.P., which would have
lent credence to the prosecution case. Undoubtedly, she would
have been a material witness, and her non-examination is a
negative circumstance against the prosecution’s case. We are
supported in our conclusion by the observations made Takhaji
47
Hiraji v. Thakore Kubersing Chamansing , which are extracted
as follows :

“ 19… It is true that if a material witness, who would
unfold the genesis of the incident or an essential part of
the prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the
prosecution case which could have been supplied or
made good by examining a witness who though available
is not examined, the prosecution case can be termed as
suffering from a deficiency and withholding of such a
material witness would oblige the court to draw an
adverse inference against the prosecution by holding that
if the witness would have been examined it would not
have supported the prosecution case. On the other hand
if already overwhelming evidence is available and
examination of other witnesses would only be a
repetition or duplication of the evidence already
adduced, non-examination of such other witnesses may
not be material. In such a case the court ought to
scrutinise the worth of the evidence adduced. The court
of facts must ask itself — whether in the facts and
circumstances of the case, it was necessary to examine
such other witness, and if so, whether such witness was
available to be examined and yet was being withheld
from the court. If the answer be positive then only a
question of drawing an adverse inference may arise. If

47
(2001) 6 SCC 145
Crl.A.No.1672/2019 Page 68 of 77


the witnesses already examined are reliable and the
testimony coming from their mouth is unimpeachable
the court can safely act upon it, uninfluenced by the
factum of non-examination of other witnesses.”

FAULTY INVESTIGATION

42. A common thread that can be seen to be running through
the entire process that has culminated by way of this judgment,
is that of faulty investigation. Since we have already discussed
the evidence on record in detail, we may only point out various
instances :
A) The identity of the accused could not be sufficiently
protected leading to its disclosure well before the T.I.P. was
conducted;
B) Although there is no straight-jacket formula as to when
T.I.P. can be/cannot be conducted, the delay in doing so has to be
examined in the facts and circumstances of the case. The nine-
day delay herein is entirely unexplained;
C) Lack of coordination between investigating agencies.
Bhagyalakshmi has not been arrayed as a witness, despite
examination by PW-56 who is the person concerned at the
CBCID. The other investigating officer did not examine her
despite a clear link to the deceased persons and the star witness
of the prosecution;
D) Requisite care regarding the sensitive evidence (DNA etc.)
was not taken in the slightest. There are large gaps in the chain
of custody which are unexplained;
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E) Surprisingly and shockingly, we may say that the post-
mortem of the deceased persons was conducted at the spot of the
crime without due regard to the possibility of contamination,
effect of such examination being conducted in the open, etc.
None of the Courts below have found this to be objectionable;
F) Possibility of ruling out the involvement of third party in
the crime.

DNA- A NECISSITATED ADDENDUM

43. As we have discussed earlier in this judgment, the DNA
evidence collected has been rendered unusable. It suffers from
various shortcomings in as much as there is large amount of
unexplained delay; the chain of custody cannot be established;
possibility of contamination cannot be ruled out etc. We have
also referred to instances in the recent past where, similar to the
case at hand the DNA evidence was rendered unusable on
account of similar lapses. A perusal of the various documents
released by a number of bodies such as the Standard Operating
Procedure for Crime Scene Investigation issued by the
Directorate of Forensic Science Service, Ministry of Home
48
Affairs and Government of India ; Guidelines for collection,
storage and transportation of Crime Scene DNA samples issued
by the Central Forensic Science Laboratory, Directorate of

48
http://164.100.117.138/pdfs/crime%20scene%20manual%20full_organized.pdf
Crl.A.No.1672/2019 Page 70 of 77


Forensic Science Service, Ministry of Home Affairs and
49
Government of India ; a Forensic Guide for Crime Investigators
(Standard Operating Procedures) issued by LNJN National
Institute of Criminology and Forensic Science, Ministry of Home
50
Affairs, Government of India show that, although, procedures
have been suggested, there is no uniformity nor there is a
common procedure which is required to be followed by all
investigating authorities. This, obviously, has the potential to
have an impact on the cases investigated. When it comes to
procedure followed by the police generally, differences therein
are understandable keeping in view the difference in society,
regional complexities as also other factors given the wide length
and breadth of the Country, however, the same yardstick cannot
be applied when it comes to sensitive evidence such as DNA for
the concerns, causes of its dilution in evidentiary value and
requirements for it to be collected and maintained in pristine
condition is not subject to the same factors. So, even though
‘Police’, ‘Public Order’ are subjects mentioned in List-II of the
Seventh Schedule of the Constitution of India that in itself cannot
permit differing procedures and sensitivities to such evidence, to
rule the roost. The aspects in which we find there to be errors

49
https://www.cfslchandigarh.gov.in/Uploads/Media/Original/20180627121024_IO-
SOP%20Final.pdf
50
https://jhpolice.gov.in/sites/default/files/documents-
reports/jhpolice_ebook_a_forensic_guide_for_crime_investigators.pdf
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committed regularly are in fact procedural aspects which aid the
sanctity of the evidence.
44. This lack of a common procedure to be followed, is
concerning. As such, we issue the following directions which
shall be followed henceforth, in all cases where DNA Evidence
is involved:

1. The collection of DNA samples once made after due care
and compliance of all necessary procedure including swift
and appropriate packaging including a) FIR number and
date; b) Section and the statute involved therein; c) details
of I.O., Police station; and d) requisite serial number shall
be duly documented. The document recording the
collection shall have the signatures and designations of the
medical professional present, the investigating officer and
independent witnesses. Here only we may clarify that the
absence of independent witnesses shall not be taken to be
compromising to the collection of such evidence, but the
efforts made to join such witnesses and the eventual
inability to do so shall be duly put down in record.
2. The Investigating Officer shall be responsible for the
transportation of the DNA evidence to the concerned
police station or the hospital concerned, as the case may
be. He shall also be responsible for ensuring that the
samples so taken reach the concerned forensic science
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laboratory with dispatch and in any case not later than 48-
hours from the time of collection. Should any extraneous
circumstance present itself and the 48-hours timeline
cannot be complied with, the reason for the delay shall be
duly recorded in the case diary. Throughout, the requisite
efforts be made to preserve the samples as per the
requirement corresponding to the nature of the sample
taken.
3. In the time that the DNA samples are stored pending trial
appeal etc., no package shall be opened, altered or resealed
without express authorisation of the Trial Court acting
upon a statement of a duly qualified and experienced
medical professional to the effect that the same shall not
have a negative impact on the sanctity of the evidence and
with the Court being assured that such a step is necessary
for proper and just outcome of the Investigation/Trial.
4. Right from the point of collection to the logical end, i.e.,
conviction or acquittal of the accused, a Chain of Custody
Register shall be maintained wherein each and every
movement of the evidence shall be recorded with counter
sign at each end thereof stating also the reason therefor.
This Chain of Custody Register shall necessarily be
appended as part of the Trial Court record. Failure to
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maintain the same shall render the I.O. responsible for
explaining such lapse.
The Directors General of Police of all the States shall
prepare sample forms of the Chain of Custody Register and all
other documentation directed above and ensure its dispatch to all
districts with necessary instruction as may be required.

CONCLUSION

45. Consequent to the above discussion, we have no hesitation
in holding that none of the circumstances posited by the
prosecution are found to be conclusively proved against the
Appellant-convict. The chain of circumstantial evidence in no
way points to a singular hypothesis, that is the guilt of the
accused, ruling out his innocence or involvement of none else in
the crime. As a result, the conviction of the Appellant-convict is
vacated. He is directed to be released forthwith if not required in
any other case. The appeal is allowed.
46. Recently, this Court, in a case concerning violation of the
51
Prevention of Money Laundering Act, 2002 and where the
accused person had been in prolonged detention, made some
observations regarding Article 21 of the Constitution of India.
They are extracted below for reference :

51
V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement-2024 INSC 739
Crl.A.No.1672/2019 Page 74 of 77



“28. Some day, the courts, especially the
Constitutional Courts, will have to take a call on a
peculiar situation that arises in our justice delivery
system. There are cases where clean acquittal is
granted by the criminal courts to the accused after
very long incarceration as an undertrial. When we say
clean acquittal, we are excluding the cases where the
witnesses have turned hostile or there is a bona fide
defective investigation. In such cases of clean
acquittal, crucial years in the life of the accused are
lost. In a given case, it may amount to violation of
rights of the accused under Article 21 of the
Constitution which may give rise to a claim for
compensation.
29. As stated earlier, the appellant has been
incarcerated for 15 months or more for the offence
punishable under the PMLA. In the facts of the case,
the trial of the scheduled offences and, consequently,
the PMLA offence is not likely to be completed in
three to four years or even more. If the appellant’s
detention is continued, it will amount to an
infringement of his fundamental right under Article
21 of the Constitution of India of speedy trial.”


Kattavellai @ Devakar has secured a clean acquittal here as well.
Let it be clarified that we are not commenting as to whether the
day of reckoning with this question has arrived, but we may only
see that in case such an approach is adopted, we would not be
breaking new ground but only affirming our commitment to the
constitutional guarantee of Right to Life under Article 21 of the
th
Constitution of India. The Law Commission of India in its 277
report titled ‘ Wrongful Prosecution Miscarriage of Justice: Legal
Remedies ’ dealt with this issue. However, the Report confined the
Crl.A.No.1672/2019 Page 75 of 77


understanding of ‘ wrongful prosecution ’ to include only
malicious prosecution, and the prosecution initiated without good
faith. It does not, therefore, directly deal with the situation with
which we are confronted. In this case, as is obvious, the accused
was taken into custody, and it is the judicial process that has taken
such a long time to come to a conclusion. The worrying feature
here is that the conviction had no legs to stand on whatsoever and
yet the Appellant-convict has been in custody for years. In
52
foreign jurisdictions such as the United States of America ,
acquittal after a long period of incarceration has led Courts to
direct States to award compensation to the persons who suffered
behind bars, only to be eventually held innocent. This right to
compensation has been recognised by both Federal and State
statutes. There are two ways that compensation can be claimed
– tort claims/civil rights suits/moral bills of obligation and,
statutory claims. Given the variety of statutes across jurisdictions
grounds for compensations/procedures vary significantly.
Well, it is for the legislature to consider this aspect.
The Registry is directed to send a copy of this judgment to
all High Courts and also the Directors General of the Police of all
States to ensure necessary compliance. The Police Academies of

52
M.J. Ryan, “Compensation for Wrongful Convictions in the United States” in
Compensation for Wrongful Convictions – a Comparative Perspective, Jasinski and
Kremens (Eds.) 2023.
Crl.A.No.1672/2019 Page 76 of 77


the States are requested to examine the necessity of conducting
training of the Investigating Officers to ensure full compliance
with the requisite precautions and procedures in accordance with
the directions issued herein above.
Pending applications, if any, shall stand disposed of.


…………………………J.
(VIKRAM NATH)


…………………………J.
(SANJAY KAROL)



…………………………J.
(SANDEEP MEHTA)
New Delhi
July 15, 2025.
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