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TMI Blog2009 (10) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... Sivakami attended the day shift which was over by 3.30 p.m. whereafter PW's Ravi and Andy and some lady workers including Vadivu, Vijaya, Poongodi and Yasotha were to attend the half night shift from 4.00 p.m. to midnight. Of the four ladies referred to above, the first three were working in the Spinning Section of the mill. PW Ravi also reached the mill for his duty and while he was working on his machine in the Cording Section he was asked by Madam Sundarammal to look after the work as she was unwell and was leaving for the hospital alongwith her brother. It appears that there was an electricity breakdown between 6.13 p.m. and 7.19 p.m. and as several guests also came visiting, Madam Sundarammal did not go the hospital. PW Ravi also told her that he was going to buy coconuts and fruit for the pooja, as it was a Friday, and he was directed by her to get a packet of gold filter cigarettes for Rathinam as well. Ravi thereafter left for the shop belonging to PW7 and as he came to the spinning section of the mill, he met the deceased who was to work the night shift and told her that he was going out to buy coconuts and cigarettes. Ravi returned with the aforesaid articles and hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess found a watch, a 10 paisa coin, one ear ring and one hair pin near the well and on looking inside, she saw her daughter's body lying there. PW 1 also identified the watch that she had picked up, as belonging to Madam Sundarammal on which she confronted her with the fact whereafter Madam Sundarammal threatened her and did not permit her to even make a phone call. PW 1 thereafter left the mill premises and while on the way out met Ravi PW and enquired from him as to the deceased's whereabouts. Ravi, in reply, told her that he would tell her the story the next day. She also met Aruchamy PW 14 who took her to the house of one K. Vellingiri of the Communist Party of India whereafter PW 14 conveyed the information about the murder to the police on phone. On receiving the information, Sub-Inspector Saraswathy PW 56 alongwith a police party reached the factory premises and the well and recorded the statement of PW 1 on which an FIR was duly registered. The investigation into the murder was thereafter handed over to Inspector Anbazhagan on the directions of the Assistant Commissioner of Police, Selvraj. The Inspector also reached the scene of occurrence at about 6.30 p.m. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her investigation implicated Rathinam accused No. 1 as the main accused and the others for the offence under Section 201 of the Indian Penal Code. The Court observed that it was the duty of the Prosecution to establish the guilt of the accused beyond reasonable doubt and the two widely different theories cast a doubt on the prosecution story. The Court further opined that the incident had happened in the late evening of 22nd December 1995 and it was for the prosecution to prove through the so called eye-witnesses PWs 4 and 5 that all 6 accused had been involved in the incident as that was the finding of the investigating agencies after further investigation. The Court then examined the evidence and concluded that from a perusal of the various documents as well as the ocular evidence, that the deceased, who was to work the 12.00 midnight to 7.00 a.m. shift had not turned up for her work and the possibility that she had been raped and murdered well before midnight, could not be ruled out. The Court found that as per the statements of PW 1 her neighbour PW-2, and PW-3 the niece of the deceased that the latter had left for the mill with her mother at about 5.30 to 5.45 p.m. on the 22 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l yet in the light of the fact that he was a young boy of about 17 years of age at the time of incident and could have been intimidated by the circumstances, was perhaps a reason which could justify the delay. The Court fortified its conclusion by holding that the defence had not really challenged the factum that PW4 had been employed in the mill and his presence, therefore, during the incident was explained. The Court further held that there was ample evidence to show that the deceased was also an employee in the mill and was employed even on 22nd December 1995 i.e. on the date she had met her death and the possibility therefore that the incident had happened in the mill premises and had been seen by PW4, was a reality. The Court then examined the statement of PW5 to the effect that he had seen three of the accused carrying the body and throwing it into the well and was therefore a witness to the offence under Section 201 of the IPC and though his statement too had been recorded for the first time in the year 1999, once again reversed the finding of the trial court and held that PW5 was a good witness and his evidence inspired confidence. The High Court, accordingly, allowed the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2002) 7 SCC 317 it was observed thus: Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely, carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad withheld the information with regard to the incident for a period of 4 years, that is, when the further investigation taken over by PW-66 and it was only at that stage that they were emboldened to come out and to give their statements. 8. The first question raised by the learned Counsel which requires to be dealt with is with regard to the interference of the High Court in an acquittal appeal. It is now beyond dispute that interference in such an appeal should be made sparingly in a situation where the findings of the High Court are perverse and not possible on the evidence and if two views are possible the one leading to acquittal should not be disturbed. The presumption of innocence which is always raised in favour of an accused is further strengthened by an acquittal and bolsters the claim of the accused. The aforesaid time honored principles have been recently set out in the judgment of this Court in Arulvelu and Anr. v. State (2009) 10 SCC 206. 9. It is in this background that the facts of the case now need to be examined. We must re-emphasize that in the initial investigation, a charge-sheet had been filed with respect to A4 Sundaram only for the rape and murder a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross examination, could the reasons given by the learned trial Judge for disbelieving him can be said to be plausible reasons or are they palpably wrong? Now let us go into the reasons given by the learned trial Judge. In sum and substance, the learned trial Judge had decided to disbelieve the evidence of PW4 mainly for the following reasons: PW4 was totally silent about the incident till the re-investigation was done by PW66; there was utter darkness at the time when the crime is shown to have been committed and therefore it would not have been possible for PW4 to witness the crime; installation of the machines inside the mill premises would have definitely obstructed/ would not have enabled PW4 from viewing the crime; when the dead body was moved out of the mill premises, everyone would have been in a position to see and therefore the accused would not have dared to take the dead body of the mill premises as spoken to by PW4; the conduct of PW4 before, during and after the occurrence, if taken into account together, would show that PW4 could not be an eye witness at all; till the crime was committed, there was no threat at all to PW4 to act in any particular manner; PW4's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/1998, he was hardly 20 years of age. Therefore he would have been 17 years of age or so on the date of occurrence. He appears to be such a shy person that he does not even express in court by clear words that the victim was raped. From his evidence we find that he is avoiding any expression on sex and sexual activities. Therefore it is clear that PW4 is such a timid and shy person. Note: S.C. No. 110/98 was the Sessions Trial of Sundaram. To our mind, the above inferences drawn are somewhat unusual, more particularly (as the witness was not before the High Court which could have seen his demeanor) and belie the principle that it is for the prosecution to prove its case beyond reasonable doubt. 12. The Court then goes on to say that it was on account of fear that Ravi had not come forth in time and that it was after he had left the employment of the mill, that he had gathered the courage to do so. The trial Judge noted as per his statement he had left the employment some time in 1996. The High Court's finding that he had left in 1998 therefore appears to be erroneous. In his examination-in-chief recorded on 17th August 2000, PW4 deposed that he had worked in the mill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad told me that since there was illicit intimacy in between Rathinam and Chitra, they have murdered her. I have not stated so. When I was inquired by Inspector of Police, CBCID, they have recorded my statement and obtained my signature. 14. It will be seen that this statement is at complete variance with the prosecution case even after further investigation. Mr. Ranjit Kumar, therefore, appears to be right in submitting that in this uncertain evidence, the reliance of the High Court on Ravi's was not called for. We, therefore, find the High Court has gone wrong on this aspect. 15. Although the matter would, in the light of what has been held above, need no further discussion as the other material witness PW5 Andy was a witness to the removal and disposal of the dead body yet as the matter has been argued at length on this aspect, we have chosen to go into the evidence of this witness as well. As already mentioned above, Andy's statement was also recorded for the first time in the year 1999. Admittedly, PW5 Andy is not an eye witness to the rape and murder. The trial court has rejected his evidence for reasons similar to the case of PW Ravi and in particular the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not say a single word that he was threatened by anyone to keep quite about the incident, and the High Court has chosen to draw an inference (without any material) that he had kept away as he felt that he may be implicated in the murder. While referring to the evidence of PW 4 and 5, the High Court held: The conclusion arrived at by the learned trial Judge that PWs.4 and 5 did not respond in the manner in which the learned trial Judge expected them to respond after seeing the crime and therefore their evidence should be disbelieved, does not stand to rhyme or reason. Courts have been consistently holding that response of a person as a witness after seeing the crime would vary from individual to individual and therefore there cannot be any uniform rule that a witness has to respond only in a particular manner. In other words, the court, before which evidence of such witnesses come up for evaluation, must evaluate it, taking into account the several circumstances available in that case. In evaluating the evidence of PWs.4 and 5, in the background of the circumstances in which they were placed right from the date on which the occurrence was committed, we find that both PWs.4 and ..... 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