# MAOHU v. STATE OF KERALA

- **Citation:** [2012] 2 S.C.R. 986
- **Court:** Supreme Court of India
- **Decided:** 2012-01-13
- **Case number:** Criminal Appeal No. 522 of 2006
- **Bench:** Asok Kumar Ganguly, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maohu-v-state-of-kerala-28070
- **Pages:** 49

## Headnote

Pen'al Code, 1860- ss. 392 and 302 r/w s.34 - F1obbery
C and murder - Case based on circumstantial evidence -
Appellant-accused and a co-accused allegedly robbed a
woman of the gold ornaments worn by her and murdeired her
by forcibly drowning her, when she was sitting on the ghat
(place leading into water) steps leading to the paddy field,
o washing utensils - Conviction of appellant by Courts below
on basis of recovery of gold ornaments pursuant to
confessional statements made by the appellant and the coaccused before Police; and the factum of the accused having
been sighted close to the place of occurrence at or around
E the time of occurrence - Justification - Held: Not justified -
Evidence produced by the prosecution did not, in <my way,
establish the guilt of the accused - Confessional statements
made by appellant and the co-accused were not proved
against them, or to their detriment - This by itself removed
F the most vital link in the chain of events sought to be
established by the prosecution against the accused -
I
Evidence produced to establish the presence of the accused
near the place of occurrence, at or about the time of the
commission of the crime was also irrelevant, because, the
G · accused were in any case neighbours of the deceast~d - Theft
of the golden ornaments worn by the deceased was doubtful
- Explanation tendered by the prosecution of thei earrings
worn by the deceased when her body was recovered, also far
from satisfactory - No positive inference from the statement
H
986
MAOHU v. STATE OF KERALA
987
of the Doctor (who conducted post-mortem), and the
A·
surrounding facts that the deceased was first smothered and
then drowned as alleged by the prosecution - Also there were
serious contradictions in the deposition of the prosecution
witnesses - Prosecution was not able to connect the accused
with the alleged crime in any manner whatsoever - Appellant
B
liable to be acquitted.
Evidence Act, 1872 - ss. 25, 26 and 27 - Confessional
statements before police -
Relevance of -
Exception
postulated under s.27 - Applicability of - Robbery and C
murder case - Recovery of gold ornaments by police,
allegedly on basis of confessional statements made by the
accused -
Validity -
Held: Relevance of confessional
statements would depend on discovery of facts based on the
information supplied by the accused - If any fresh facts have
been discovered on the basis of the confessional statement D
made by the accused, the same would be relevant - If not,
the confessional statement cannot be. proved against the
accused, to the detriment of the accused - In the instant case,
the confessional statements made by the accused cannot be
said to have led to the discovery of an unknown fact, because
E
the statements of PW7, PW11, PW13 and PW15 reveal that
the factual position in respect of the/ recovery of the articles
from the place from where the same were shown to have been
eventually recovered, was known to the public at large well
before the confessional statements had been recorded - The
F
said statements were inadmissible inspite of the mandate
contained in s.27 of the Evidence Act for the simple reason,
that they cannot be stated to have resulted in the discovery
of some new fact - In the factual background of the case, the
gold ornaments which eventually came to be recovered by the
G
police, allegedly at the instance of accused, may well have
- been planted by the police.
Criminal Trial - Investigation - Inquest report - Held:
Genesis of crime should ordinarily emerge from inquest
H
988
SUPREME COURT REPORTS
(2012] 2 S.C.R.
A report, specially when it is in respect of a patent fact.
Criminal Trial - Circumstantial Evidence - Appmciation
of - Held: Only circumstantial evidence of a very high order
can satisfy the test of proof in a criminal prosecution - In a
8
case resting on circumstantial evidence, the prosecution must
establish a complete unbroken chain of events leading to the
determination that the inference being drawn

## Text

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A
B
[2012] 2 S.C.R. 986
MAOHU
v.
STATE OF KERALA
(Criminal Appeal No. 522 of 2006)
JANUARY 13, 2012
[ASOK KUMAR GANGULY AND JAGDISH SINGH
KHEHAR, JJ.]
Pen'al Code, 1860- ss. 392 and 302 r/w s.34 - F1obbery
C and murder - Case based on circumstantial evidence -
Appellant-accused and a co-accused allegedly robbed a
woman of the gold ornaments worn by her and murdeired her
by forcibly drowning her, when she was sitting on the ghat
(place leading into water) steps leading to the paddy field,
o washing utensils - Conviction of appellant by Courts below
on basis of recovery of gold ornaments pursuant to
confessional statements made by the appellant and the coaccused before Police; and the factum of the accused having
been sighted close to the place of occurrence at or around
E the time of occurrence - Justification - Held: Not justified -
Evidence produced by the prosecution did not, in <my way,
establish the guilt of the accused - Confessional statements
made by appellant and the co-accused were not proved
against them, or to their detriment - This by itself removed
F the most vital link in the chain of events sought to be
established by the prosecution against the accused -
I
Evidence produced to establish the presence of the accused
near the place of occurrence, at or about the time of the
commission of the crime was also irrelevant, because, the
G · accused were in any case neighbours of the deceast~d - Theft
of the golden ornaments worn by the deceased was doubtful
- Explanation tendered by the prosecution of thei earrings
worn by the deceased when her body was recovered, also far
from satisfactory - No positive inference from the statement
H
986
MAOHU v. STATE OF KERALA
987
of the Doctor (who conducted post-mortem), and the
A·
surrounding facts that the deceased was first smothered and
then drowned as alleged by the prosecution - Also there were
serious contradictions in the deposition of the prosecution
witnesses - Prosecution was not able to connect the accused
with the alleged crime in any manner whatsoever - Appellant
B
liable to be acquitted.
Evidence Act, 1872 - ss. 25, 26 and 27 - Confessional
statements before police -
Relevance of -
Exception
postulated under s.27 - Applicability of - Robbery and C
murder case - Recovery of gold ornaments by police,
allegedly on basis of confessional statements made by the
accused -
Validity -
Held: Relevance of confessional
statements would depend on discovery of facts based on the
information supplied by the accused - If any fresh facts have
been discovered on the basis of the confessional statement D
made by the accused, the same would be relevant - If not,
the confessional statement cannot be. proved against the
accused, to the detriment of the accused - In the instant case,
the confessional statements made by the accused cannot be
said to have led to the discovery of an unknown fact, because
E
the statements of PW7, PW11, PW13 and PW15 reveal that
the factual position in respect of the/ recovery of the articles
from the place from where the same were shown to have been
eventually recovered, was known to the public at large well
before the confessional statements had been recorded - The
F
said statements were inadmissible inspite of the mandate
contained in s.27 of the Evidence Act for the simple reason,
that they cannot be stated to have resulted in the discovery
of some new fact - In the factual background of the case, the
gold ornaments which eventually came to be recovered by the
G
police, allegedly at the instance of accused, may well have
- been planted by the police.
Criminal Trial - Investigation - Inquest report - Held:
Genesis of crime should ordinarily emerge from inquest
H
988
SUPREME COURT REPORTS
(2012] 2 S.C.R.
A report, specially when it is in respect of a patent fact.
Criminal Trial - Circumstantial Evidence - Appmciation
of - Held: Only circumstantial evidence of a very high order
can satisfy the test of proof in a criminal prosecution - In a
8
case resting on circumstantial evidence, the prosecution must
establish a complete unbroken chain of events leading to the
determination that the inference being drawn from the
evidence is the only inescapable conclusion - In the absence
of convincing circumstantial evidence, an accused would be
entitled to the benefit of doubt.
c
Constitution of India, 1950 - Art. 136 - Interference in
criminal matters - Scope - Benefit of acquittal to similarly
placed non-appealing co-accused - Robbery and murder
case - Appellant-accused (A-1) and non-appealing coD accused (A-2) were convicted by Courts below on the same
evidence and for the same reasons - A-1 acquitted by
Supreme Court in instant appeal - Held: To do complete
justice, such relief extended to A-2 - A-2 a/so directed to be
acquitted - Penal Code, 1860 - ss. 392 and 302 rlw s.34.
E
The accused-appellant(A-1) and co-accused 'Sibi'(A2) were convicted by the Courts below under Sec:tion 302
and 392 r/w Section 34 IPC and sentenced to life
imprisonment for having robbed a woman 'P' of the gold
ornaments worn by her and for having murdered her by
F forcibly dragging her into the water and suffocating her
thereby causing her death by drowning, when she was
sitting on the ghat (place leading into water) steps leading
to the paddy field, washing utensils. The conviction of
the accused was based on circumstantial evidence.
G Principally, the conviction was ordered on the basis of
confessional statements made by the appellanft and the
co-accused to PW21, Circle Inspector of Police,
consequent to which the police recovered gold chain as
also six gold bangles. The other material evidence taken
H into consideration by the courts below, to rnturn the
MAOHU v. STATE OF KERALA
989
conviction of the appellant (as also the co-accused) was
A
~the factum of their having been sighted close to the place
of occurrence at or around the time of occurrence.
Appellant challenged his conviction before this Court.
Allowing the appeal, the Court
HELD: 1. Only circumstantial evidence of a very high
order can satisfy the test of proof in a criminal
prosecution. In a case resting on circumstantial evidence,
B
the prosecution must establish a complete unbroken
chain of events leading to the determination that the
C
inference being drawn from the evidence is the only
inescapable conclusion. In the absence of convincing
circumstantial evidence, an accused would be entitled to
the benefit of doubt. [Para 5] [1000-F-H]
D
2.1. The most significant issue in the present
controversy is the veracity of the confessional
statements made by the appellant and the other accused
Sibi before PW21, Circle Inspector of Police. It is evident
that the aforesaid statements were made by the accused
E
before a police officer while the accused were in custody
F
of the police. Section 25 of the Indian Evidence Act
postulates that a confession made by an accused to a
police officer cannot be proved against him. Additionally,
Section 26 of the Indian Evidence Act stipulates that a
confession made by an accused while in police custody
cannot be proved against him. It is evident from the
factual position, that the statements made by the
appellant and Sibi were made to a police officer while the
accused were in police custody. It is, therefore, apparent
that in terms of the mandate of Sections 25 and 26 of the
G
Indian Evidence Act, the said statements could not be
used against the appellant and the other accused Sibi.
But then, there is an exception to the rule provided for
by Sections 25 and 26 aforesaid, under Section 27 of the
Indian Evidence Act. As an exception, Section 27 of the
H
990
SUPREME COURT REPORTS
[2012] ~~ S.C.R.
A Indian Evidence Act provides that a confessional
statement made to a police officer or while an accused
is in police custody, can be proved against him; if the
same leads to the discovery of an unknown fact. The
rationale of Sections 25 and 26 of the Indian Evidence Act
s is, that police may procure a confession by coercion or
threat. The exception postulated under Section 27 of the
Indian Evidence Act is applicable only if the confessional
statement leads to the discovery of some new 1'act. The
relevance under the exception postulated by Se,ction 27
c aforesaid, is limited " ... as it relates distinctly to the fact
thereby discovered .... ". The rationale behind SE!Ction 27
of the Indian Evidence Act is, that the facts in question
would have remained unknown but for the disc~osure of
the same by the accused. Discovery of facts itself,
0 therefore, substantiates the truth of the confessional
statement. And since it is truth that a court must
endeavour to search, Section 27 aforesaid has been
incorporated as an exception to the mandate c:ontained
in Sections 25 and 26 of the Indian Evidence Act. [Para
E 17] [1021-C-F, H; 1022-A-D]
2.2. The relevance of the confessional statements ·
would depend on the discovery of facts based on the
· information supplied by the accused. If any fresh facts
have been discovered on the basis of the conifessional
F statement made by the accused, the same would be
relevant. If not, the confessional statement c:annot be
proved against the accused, to the detriment of the
accused. The confessional statements made by the
accused (vide Exhibit P-9 and P-10) cannot be said to
G have led to the discovery of an unkriown. fact, because
the statements of PW7, PW11, PW13 and PV\f15 reveal
that the factual position in respect of the recovery of the
articles from the place from where the same were shown
to have been eventually recovered, was known to the
H public at large by noon (and certainly before 2.30 p.m.)
MAOHU v. STATE OF KERALA
991
i.e., well before the confessional statements had been
A
recorded. As per the deposition of P.J. Thomas {PW21),
Circle Inspector of Police, " ... A-2's confession statement
was recorded· at about 2.45 p.m .... ". The public had
become aware of the recovery by "noon", whereas,
appellant was arrested at 1.00 p.m., and Sibi-accused no.2
was arrested at 1.30 p.m. and their confessional
statements were recorded by the police after their arrest
B
In the background of the aforesaid factual position, it is
not possible to conclude that the confessional
statements made by appellant vide Exhibit P-10 and Sibi- c
accused no.2 vide Exhibit P-9, can be stated to have
resulted in the discovery of any fresh facts. The factual
position that recovery of stolen ornaments would be
made by the police was a matter of common knowledge
well before the confessional statements were. made. The
0
· said statements· recorded vide Exhibits P-9 and P-10 are
inadmissible inspite .of the mandate .contained in Section_
27 of the Indian Evidence Act for the simple reason, that
they cannot be stated to have resulted in the discovery
of some new fact. In the factual background of the
present controversy, the gold ornaments which
E
eventually came to be recovered by the police, allegedly
. at the instance of accused, may well have been planted
by the police; On account of the fact that the
confessional statements made by appellant and Sibiaccused no.2, which is the main linking factor in the
F
circumstantial evidence of the prosecution version of the
controversy, being inadmissible as the same cannot be
proved against. them, the prosecution's case stands fully
demolished. [Para 18] [1022-F-G; 1024-D-H; 1025-A-D]
3. The second significant conglomerate of evidence
to link the accused to the crime in question, is their
' alleged presence at or around the place of occurrence.
G
This evidence emerges from the statements made by
PW6 to PW9. The prosecution, through these witnesses,
H
992
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A have endeavoured to demonstrate the presence of the
accused, in the vicinity of the place of occurrenice, at
around the time of occurrence. The statement of PWG is
wholly insignificant to connect the accused with the~ crime
under reference. PW7 has given his version of having
B seen the accused close to the place of occurrenc:e. But
the statement of PW7 is so unrealistic, that it is worthy
of rejection without recording any reasons. It is strange
that PW7 reached the embankment by swimming upto it
since the last boat had already left. He claims to have kept
c his clothes afloat and above the water while he was
swimming through the water. It is, therefore, tlhat his
clothes had remained dry. Even though, in his statement,
he asserted that " ... I identified him as A-2 in the light of
my torch ... ". He subsequently stated that a person was
0 seen coming, flashing a torchlight towards east, and that,
he was identified by PW7 as appellant. As per the said
·statement, the identification was made on the basis of the .
torch held in the hands of the <l:tppellant. The aforesaid
contradiction is hard to digest. How PW7 retained the
E torch in his hand in a dry condition, while swimming, has
not been explained. If he was holding his torch in one
hand and clothes in the other, it is difficult to understand.
how he swam across the water. And if the accused
himself was carrying the torch, the light would n<>t fall on
his face, and in that situation, the accused could fllOt have
F loeen identified, because by then it was past 9 p.m. These
. and other such like discrepancies, when viewed closely,
leave no room to accept the credibility of the statement
made by PW7'. PW8 was the manager of Toddy Shop
No.86 at Kuttanad. As per the statement of PW8 both the
G accused purchased a bottle of toddy each, and after
drinking the toddy, they left the toddy shc>p. This
· statement does not establish the presence of accused at
or near the place of occurrence. PW9 is the only other
witness produced by the prosecution to show the
H presence of the accused close to the place of
MAOHU v. STATE OF KERALA
993
occurrence, at or around the time of occurrence, on
A
8.5.1998. The statement made by PW9, during the course
of his deposition before the Sessions Court, in
connection with his having seen the accused near the
place of occurrence, had not been disclosed by him even
to the police during the course of investigation. In fact
B
during the course of his cross-examination he
acknowledged " ... I have not told anybody-else about my
having met the accused persons there, I am speaking
about it for the first time in court ... ". In fact PW9 was
working as a labourer in the house of PW10. PW9 had not c
even disclosed the aforesaid factual position to his
employer PW10, even though he must have known, that
PW10 was the elder brother of husband of the deceased
'P'. In this situation it is difficult to consider the statement
of PW9 as credible. In view of the aforesaid evaluation of 0
the statements of witnesses examined by the
prosecution, to establish the presence of the accused, in
close vicinity of the place of occurrence, there remains
no proved connection of the accused with the
accusations levelled against them. Even otherwise, the
E .
presence of the accused close to the residence of 'P' is
inconsequential, because according to the statement of
PW2 (husband of the deceased 'P') both the accused
were known to him as they were his neighbours. Surely,
presence close to ones own residence cannot be the
basis for drawing an adverse inference. This Court is
F
therefore satisfied, that the statements of PW6 to PW9, do
not in any manner, further the case of the prosecution.
[Para 19] [1025-E-H; 1026-A-H; 1027-A-F]
4. There are other glaring discrepancies as well. A G
large number of witnesses, including PW1, PW3, PW4,
PW5, PW7, PW10, PW13, PW14, PW15 and PW16,
deposed, that they had seen utensils lying on the steps
of the ghat. Some of the witnesses had gone further to
explain, that some of the utensils were washed whereas
H
994
SUPREME COURT REPORTS
[2012] 2. S.C.R.
A some were still to be washed. These statements were
made by the witnesses so as to support the prosecution
version mentioned in the charge-sheet, whereini it was
projected that 'P' had gone out to the steps of the ghat
after taking the supper meal, to wash the dirty utensils.
B The inquest report (Exhibit P-3), however, does not
,disclose the presence of any utensils at the !~hat. In
c:onjunction with the aforesaid, it is relevant to notice, that
during the deposition of PW21, Circle Inspector o·f Police,
who carried out the investigation in the CiilSe, he
c categorically asserted (in response to a pointed question
posed to him), that when he reached the ghat there were
no utensils. He further stated, that none of the wiitnesses
told him, that there were utensils at the ghat 01r on the
. steps leading to the paddy fields. The absence! of any
0 evidence supporting the prosecution case depicting the
ll'eason for 'P' to go out of her house at late hours in the
night, so as to be found alone by the accused, reveals
the lack of evidence to project the prosecution version
reflected in the charge-sheet. But more than that, is the
E contradiction in the statements of PW1, PW3, PVV4, PWS,
PW7, PW10 and PW13 to PW16 on the one hand, and the
statement of PW21 coupled with the details mentioned in
the inquest report on the other. The genesis of the crime
should ordinarily emerge from the inquest report specially
when it is in respect of a patent fact. If utens;ils were
F . actually at the ghat, the mention thereof could not have
been left out therefrom. This would be so even if the
inquest report had been prepared with lhalf the
seriousness required in its preparation. A perus;al of the
inquest report reveals that the same was painstakingly
G recorded, and even minute details have been recorded
therein. It is difficult to state which of the two s;ides has
deposed correctly and/or which one of them has
· deposed falsely. All the same, the instant aspE!Ct of the
deposition creates a serious doubt about the c:redibility
H of the evidence on the instant factual aspect, irrespective
MAOHU v. STATE OF KERALA
995
of the significance thereof in proving the charges. [Para
A
20] [1027-G-H; 1028-A-H; 1029-A]
5.1. Additionally, the charge-sheet pointedly records
that appellant caught hold of the plated hair and neck of
'P', and Si bi-accused no.2 caught hold of her feet, and
B
forcibly dragged her into the water and suffocated her
thereby cause her death by drowning. This factual
position remained unproved as not a single prosecution
witness narrated the said factual position, so as to
establish the manner in which 'P' came to be drowned
by the two accused. [Para 21] [1029-B-C]
C
5.2. PW20 (who had conducted the post-mortem) had
expressed in the post mortem certificate dated 9.5.1998,
and he had affirmed during the course of his deposition
before the Sessions Court, that the death of 'P' had been
D
caused by drowning. The fact that she had been
smothered first and thereafter drowned by the appellant
and Si bi cannot be stated to have been established by
the prosecution. No injury whatsoever was suffered by
deceased 'P' either on her neck or on her feet. 'P' was
E
47 years old at the time of occurrence. She would not
have easily. allowed two drunkards, who were in a state
of intoxication, to carry her away by holding her by her
neck and feet as has been alleged in the charge-sheet..
'P' would have been expected to fight for her life,
F
consequent upon an assault on her, at the hands of the
appellant and Sibi. Injury nos.1 and 2 referred to by the
courts below, so as to infer smothering, is clearly
unacceptable in view of the fact that PW20, in his crossexamination, clearly asserted, that injury nos.1 and 2 are
G
possible if a person falls and during the course of that
fall the right side of the face comes in contact with a
rough hard surface. PW20 also stated during his crossexamination, that all the injuries suffered by 'P' were
superficial injuries. In the aforesaid view of the matter,
H
even the medical evidence produced by the prosecution,
996
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A does not suitably support the prosecution story, that the
deceased 'P' was, first assaulted by the appellant and
Sibi, and thereafter, drowned. The deceased is alle~1ed to
have been dragged, smothered and forcibly drowned.
The instant version of the prosecution story, is wholly
B unacceptable, keeping in mind the statement of PW20.
[Para 22] [1029-D-H; 1030-A-B]
6. The motive for the accused tn committing the
murder of 'P' is stated to be theft of her gold ornaments.
Appellant is a labourer, and Sibi-accused no.2 is a toddy
C trapper. If the motive had been theft, so as to snatch away
the jewellery of 'P', it is difficult to understand why the
accused only took away the golden chain around the
neck of the deceased, and the six bangles on heir right
arm, and forsake the earrings on the person 1Jf the
D deceased. It is relevant to mention, that the factum of the
earrings found on the person of the deceased has been
explained in a wishy-washy manner. PW21, Circle
Inspector of Police, has specifically deposed c>n the
recovery, retention and return of the earrings to the family
E of the deceased. The statement of PW21 reveals e11 sorry
state of affairs in handling the investigation of th1:! case
in hand. According to the statement of PW21, the earrings
were removed from the dead body of 'P', by one of the
policemen who was assisting him in the preparation of
F inquest report on 9.5.1998. There is no documentary
record of this. The earrings were then (according to
PW21) retained by the writer at the police station. This
again, without maintaining any record. On 11.6.1998, the
said earrings are stated to have been returned to PW2,
G husband of deceased 'P'. It was also deposed by PW21,
that PW2 had visited the police station to take back the
earrings. Accordingly, the earrings were returned to him.
Yet again, without maintaining any record. Coupled with
the conclusion drawn in respect of the gold chain and the
H six gold bangles, allegedly recovered at the instance of
MAOHU v. STATE OF KERALA
997
appellant and Sibi, this Court is of the view that it may well
A
be, that the ornaments were never taken away from the
person of the deceased 'P', because if the motive had
been theft of gold ornaments, then all the gold ornaments
would have been taken away, most certainly the earrings
which were openly and clearly visible. The accused were
B
poor persons, for them the earrings alone would have
meant a lot. If nothing else, the earrings would have
balanced (to some extent at least) the spoils in the hands
of the accused. It may well be, that the aforesaid
ornaments came to be planted only with the object of c
solving the case in hand. This aspect of the matter also
creates a serious doubt in the prosecution case. [Para 23]
[1030-C-H; 1031-A-C]
7. The evidence produced by the prosecution does
not, in any way, establish the guilt of the accused. The
D
prosecution had endeavoured to prove the allegations
levelled against the accused on the basis of
circumstantial evidence. The mainstay of the prosecution
evidence is the recovery of the gold ornaments belonging
to the deceased 'P' at the instance of the appellant and
E
Sibi. The statements made by the appellant and Sibi (vide
Exhibits P-10 and P-9 respectively) cannot be proved
against the accused, or to their detriment. This by itself
removes the most vital link in the chain of events sought
to be established by the prosecution against the
F
accused. Evidence produced to establish the presence
of the accused near the place of occurrence, at or about
the time of the commission of the crime has also been
found to be irrelevant. This because, the accused were
in any case neighbours of the deceased 'P'. The theft of G
. the golden ornaments worn by the deceased 'P' was also
doubtful. The explanation tendered by the prosecution of
the earrings worn by the deceased 'P' when her body
was recovered, is also far from satisfactory. From the
statement of PW20, and the surrounding facts, it cannot
H
998
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A be positively inferred that the deceased 'P' was first
smothered and then drowned as has been alleged by the
prosecution. Also there were serious contradictions ini the
deposition of the prosecution witnesses. The prosecution
has failed to establish an unbroken chain of evEmts
B lending to the determination, that the inference bE~ing
drawn from the evidence is the only inescapa1ble
conclusion. In fact the prosecution has not been able to
connect the accused with the alleged crime in any
manner whatsoever. The appellant is liable to be
. c acquitted of the charges levelled against him. [Paras 24,
25] [1031-D-H; 1032-A-C]
8. The evidence to establish the charges against the
co-accused Sibi was on the same lines as that projected
against the appellant-accused. Sibi-accused no.2 was
D accused of the allegations for exactly the same reasons,
as weighed with the courts below against the appellcmt.
He was also convicted for the same reasons. If Sibiaccused no.2 had preferred an appeal, the result wo11Jld
have been exactly the same, as it has been in the present
E appeal, in respect of the appellant. To do complete justiice,
it would be just and appropriate to extend the same
benefit as has been extended to the appellant, also to
Sibi-accused no.2. Therefore, for exactly the same
reasons as have weighed with this Court in the instcmt
F appeal, to determine the acquittal of the appellant, this
Court hereby orders the acquittal of Sibi-accused no.2 as
well, even though he has not preferred an appeal so •as
to assail the impugned judgment whereby he stands
G
H
convicted. [Para 27] [1032-F-G; 1034-E-F]
Gurucharan Kumar; & Anr. vs. State of Rajasthan (2003)
2 SCC 698:2003 (1) SCR 60 and Pawan Kumar v. State of
Haryana (2003) 11 SCC 241: 2003 (1) Suppl. SCR 710 -
relied on.
MAOHU v. STATE OF KERALA
Case Law Reference:
2003 (1) SCR 60
relied on
2003 (1) Suppl. SCR 710 relied on
999
Para 27
Para 27
A
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
B
No. 522 of 2006.
From the Judgment & Order dated 15.07 .2003 of the High
Court of Kerala at Ernakulam in Criminal Appeal No. 266 of
2001.
Asha Gopalan Nair, for the Appellant.
Liz Mathew, Sana A.R. Khan, for the Respondent.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. The appellant herein,
Madhu Kalikutty Panicker (hereinafter referred to as "Madhu")
· was charged along with Sibi Bhaskaran (hereinafter referred
to as "Sibi") for offences punishable under Section 302 and 392
read with Section 34 of the Indian Penal Code, for· having
robbed Padmini Devi alias Omana of her gold ornaments and
thereafter having murdered her on 8.5.1998 at her residence,
i.e., Kalathil House situated in Ward No.IV of Veliyanad Village.
Both Madhu (accused no.1) and Sibi (accused no.2) were also
residing in the neighbourhood of the deceased in the same
ward and village.
2. The Sessions Judge, Alappuzha convicted the accused
and sentenced them to undergo rigorous imprisonment for 10
years and to pay a fine of Rs.25,000/- under Section 392 of
c
D
E
F
the Indian Penal Code. The accused were sentenced to
G
imprisonment for life under Section 302 of the Indian Penal
Code. The Sessions Judge directed that the aforesaid
sentences would be suffered successively, i.e., one after the
other. In case of default of payment of fine, the accused were
to undergo further rigorous imprisonment for a period of three
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[2012] 2 S.C.R.
A years. The Sessions Judge also directed that the accused
· would be entitled to set off equivalent to the period of their
detention during the course of trial, under Section 428 of the
Criminal Procedure Code.
8
· 3. On appeal, the High Court of Kerala maintaim~d the
conviction of the two accused. On the question of sentence, the
High Court modified the order passed by the Sessions .Judge
to the extent that the sentences would run concurrently. Subject
to the aforesaid modification, even the sentences awarded by
the Sessions Court were maintained.
c
4. The conviction of the accused at the hands of the
Sessions Judge as also the High Court was based on
circumstantial evidence. Principally, the conviction was ordered
as a consequence of recovery of ornaments worn by the
D deceased, pursuant to the information furnished by the
accused. Based on the aforesaid recovery; the High Court,
relying on Section 114 of the Indian Evidence Act inferre?d that
the accused had committed the murder of Padmini Devi, and
thereupon, robbed her off the ornaments worn by her. The only
E other material evidence taken into consideration by the rcourts
below, to return the conviction of the appellant herein (as also
his co-accused Sibi) was the factum of their having been
sighted close to the place of occurrence at or around th1a time
of, occurrence.
F
5. The care and caution with which circumstantial evidence
has to be evaluated stands recognized by judicial prec1:ident.
Only circumstantial evidence of a very high order can satisfy
the test of proof in a criminal prosecution. In a case resting on
circumstantial evidence, the prosecution must establish a
G complete unbroken chain of events leading to the determination
that the inference being drawn from the evidence is th1a only
inescapable conclusion. In the absence of convincing
circumstantial evidence, an accused would be entitled to the
benefit of doubt. During the course of deliberations i:>f the
H present controversy, we shall endeavour to evaluate the
MAOHU v. STATE OF KERALA
[JAGDISH §INGH KHEHAR, J.]
1001
worthiness of circumstantial evidence produced by the
A
prosecution to prove the guilt of the accused. But more
importantly, our endeavour would be to evaluate the
admissibility of the statements made by the accused to the
police, during the course of their detention by the police, .
resulting in the discovery of the gold ornaments, belonging to
B
Padmini Devi, after having committed her murder. This piece
of evidence has been relied upon to connect the accused with
the crime.
6. The prosecution case as is revealed from the chargesheet, notices that the accused with the deliberate intention of C
committing the murder of Padmini Devi with the motive of
robbing her of the ornaments worn by her, proceeded to Kalathil
House where the deceased was residing. Padmini Devi was
found alone, sitting on the ghat (place leading into water) steps
leading to the paddy field, washing utensils. The ghat was
D
situated at about 3 meters (2 meters and 75 ems.) from the last .
door step of the kitchen's eastern door of Padmini Devi's
house (Kalathil House). It is alleged that Madhu - accused no.1,
caught hold of the plated hair and neck of Padmini Devi and
Sibi-accused no.2, held her by her feet, and the two together
E
forcibly dragged her into the water. Thereupon, they suffocated
her. The act of drowning of Padmini Devi is alleged to have
been committed by the accused at a place 29 meters from the
south-east of the steps of the ghat. The accused are stated to
have dragged Padmini Devi to the spot from where her body
F
was eventually recovered, at a distance of 7 meters north-west
of the foundation of the Snake God Shrine, which is to the south
of the paddy field in question. Madhu-accused no.1, is alleged
to have removed six gold bangles worn by Padmini Devi (on
her left arm), whereas, Sibi-accused no.2, is alleged to have
G
removed a gold chain worn by Padmini Devi (around her neck).
The accused were thus alleged to have committed the murder
of Padmini Devi, and the theft of her ornaments jointly.
7. The son of the deceased Asuthosh PW3 is stated to
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[2012] 2 S.C.R.
A
hav1~ received a phone call from his sister Ambily PW4 at 9.45
p.m. on 8.5.1998. Since Ashutosh's sister Ambily informed him
that she would like to speak to her mother Padmini Devi,
Ashutosh PW3 who was sleeping at the time when the call was
received, got up to call his mother. He found his mother missing.
s He accordingly, approached his relations and neighbours. A
joint search was carried out. The husband of the deceased, i.e.,
Ayyappa Kurup PW2 who, at that point of time, was attending
to his night duty in the Telephone Exchange at Changanac:herry
was s~mmoned. Ayyappa Kurup PW2 reached Kalathil House
c at around 11.30 p.m. The body of the deceased was found at
about 11.45 p.m., from under the water in the field on the
eastern side of Kalathil House. Ayyappa Kurup PW2 asked
Purushottama Kurup PW1 to make a complaint to the police.
This decision was in fact, that the death of Padmini Devi was ·
D shrouded in suspicious circumstances. The aforesaid sus1:>icion
emi:irged on account of absence of her golden necklace {worn
by the deceased on her neck), as also, six bangles (worn by
the deceased around her left arm) when her body was
recovered. Accordingly, Purushothama Kurup PW1 reported
E the matter to the police, disclosing the aforesaid factual position
on the following morning i.e. on 9.5.1998 at 8.30 a.m ..
· 8. On the registration of the FIR, PJ Thomas PW21, Circle
Inspector of Police, reached the place of occurrence, and
prepared the inquest report (Exhibit P-3). As per the inquest
F report. the deceased Padmini Devi alias Omana was ag1ed 47
years. She was found by Karthikeyan Nair PW16, a neighbour
and.a resident of Thundiyil House in Ward No.IV, Veliyanad
Village at 11.45 p.m. from the paddy field on the eastern side
of his house. As per the inquest report, Padmini Devi was last
G seen alive at her residence by her son Aushutosh at 9.1 fi p.m.
on 8.5.1998. As per the inquest report, apart from the dress
worn by her she was wearing a gold chain around her nock of
"thara" fashion weighing about 5-1/2 sovereigns, besides 4-5
golden bangles in her left hand and golden earrings in her ears,
H when Aushutosh saw her for the last time. The inquest report
MAOHU v. STATE OF KERALA
[JAGDISH SINGH KHEHAR, J.]
1003
further depicts, that blood and water was oozing out from her
A
" nostrils on both sides, and her tongue was protruding out by Yi
inch, with the mouth slightly open. Water weeds were found
sticking to her hair. Ears had earrings of "claver" design. The
stomach was found to be slightly bloated. The inquest report
records, that at a distance of 2 meter 27 cm. of the first footB
step of the kitchen door, there is a ghat (place leading into
water) with three steps. The lower step of the ghat is immersed
in water. At a distance of 50 ems., from the lowest foot-step
the water is 75 ems. deep. The spot in the field from where the
dead body of Padmini Devi was recovered, was 29 meters c
from the lowest foot-step. The depth of the water at the place
from where the dead body was recovered is stated to be 82
ems. deep (32.28 inches, i.e., about 3 feet). The inquest report
also noted, that ornaments worn around the neck and in the left
arm by Padmini Devi were missing. According to the statement
0
of Aushutosh PW3, his mother must have gone to the ghat,
fallen into the water and somehow died. Yet, consequent upon
the discovery of the missing golden ornaments, those present
at the spot at the time of preparation of the inquest report,
expressed doubts about the death of Padmini Devi.
Accordingly, even though at Serial no.XI of the inquest report,
it stands recorded that Padmini Devi alias Omana had died
due to drowning, at Serial no.XVI it was mentioned that since
the ornaments worn by her were missing, the persons present
had unanimously raised a doubt about the cause of her death.
E
F
9. The cqntents of the First Information Report, as also, the
Inquest Report constituted the first factual depiction of an
occurrence. These are of utmost importance. The evidence
produced by the prosecution during the course of trial, will
accordingly have to be evaluated along with the aforesaid
G
reports conjointly to substantiate the credibility of the charges
levelled against the accused. During the course of hearing,
some salient facts which constituted the foundation for
establishing the prosecution version emerged. The first and the
foremost in the sequence of events, is the fact that Padmini
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[2012) 2 S.C.R.
A Devi is alleged to have gone to·the steps of the ghat after hc:1ving
_taken supper, for washing utensils. The second important.
feature of the prosecution story is the absence of a gold
necklace from around the neck of Padmini Devi, and six gold
bangles worn by her on her left arm. Gold earrings worn by the
B deceased Padmini Devi were found intact on her ears. The
third facet is the factum of the state of body of deceased
Padmini Devi. The prosecution version is that Padmini Devi
was first smothered and thereafter drowned. Thereby inferring
murder, as against death by accidental drowning. The fourth
c component of the prosecution case was the presenc:e of
Madhu-accused no.1 and Sibi-accused no.2 in the vicinity of
the place of occurrence at or around the time of occurrence on
the fateful day i.e., on 8.5.1998. The final and the clinching basis
for establishing the guilt of the accused were the confessional
D statements made by Madhu-accused no.1, i.e., the appE~llant
herein, on 13.5.1998 (Exhibit P-10) to P.J. Thomas P\N21,
Circle Inspector of Police that he had wrapped six gold bangles
belonging to Padmini Devi, in an old plastic paper, and had
hidden them under the earth near the field on the southern side
of his house. He offered that if he was taken to his hous1e, he
E could produce the bangles. Likewise, is the confessional
statement of Sibi-accused no.2 (Exhibit P-9) recorded on
13.5.1998 by PJ Thomas PW21, Circle Inspector of Police, that
he had wrapped the gold chain of Padmini Devi, in a plastic
paper, and had kept the same inside a "chadjan leaf of a
F coconut tree, standing on the eastern side of his house. He
further stated, that he could show the coconut tree and produce
the chain. Consequent upon the aforesaid confessional
statements, (Exhibits P-10 and P-9 respectively), the police
recovered the gold chain as also the six gold bangle!s on
G 13.5.1998 at the instance of the accused. These ornaments
came to be identified as the necklace and bangles worn by the
deceased Padmini Devi.
10. The evidence produced by the prosecution also falls
H in different compartments. One set of witnesses were
MAOHU v. STATE OF KERALA
[JAGDISH SINGH KHEHAR, J.]
1005
produced to establish the search conducted for the recovery
A
of the body of the deceased Padmini Devi on 8.5.1998. The
same set ofwitnesses deposed about the presence of utensils
on the steps of the ghat. The second set of witnesses was
produced by the prosecution to establish the presence of
Madhu-accused no.1 and Sibi-accused no.2, near the place of
B
occurrence, at or around the time of occurrence on the fateful
day i.e., on 8.5.1998. The third set of witnesses deposed about
the recovery of the missing gold ornaments, at the instance of
. the accused. Besides the aforesaid three sets of witnesses,
the prosecution examined Dr.Radhakrishnan, Principal, Medical c
College, Alappuzha as PW20. Dr.Radhakrishnan had
conducted the post mortem examination of the body of the
deceased. The only other witness whose statement was
recorded was PJ Thomas PW21, the then Circle Inspector of
Police, whose statement was recorded to show the course and
D .
process of investigation.
, ...
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1 ·
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1~~
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11. Since the prosecution cendeavoured to establish the
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t .
crime on the basis of circumstantial.,evidence, it shall. be
necessary for us to record a bird's eye view. pf the statements .
of witnesses produced by th~ pros~~~tior}. ': . : .. :
. , ·~ rj -E
First and
foremost"'the·~ pros·ecuHo"n · produc'e'd
Purushotharna Kurup as PW1 .~Puru~llothama Kurup, 'depdse'ci
that he had recorded trye Firl?t lnformatiop Report, He also
asserted, that he had called the husband of the deceased
F
Ayyappa Kurup (PW2) on telephone, to infornfhimthat Padmini
Devi was missing.