Rathinam @ Rathinan vs State Of Tamilnadu & Anr

By this judgment we propose to dispose of Criminal Appeal nos. 905-906 of 2007. The facts have been taken from Criminal Appeal no. 905 of 2007. They are as under:

Ravi returned with the aforesaid articles and handed them alongwith the balance change to Madam Sundarammal. As he was entering the spinning section he noticed that a tiffin box and a bag belonging to the deceased were lying at the entrance and also heard her voice from inside the premises and accused no.2 Dhanusu coming out from the building. Ravi thereupon enquired from Dhanusu as to what was happening on which he made a vague reply and advised him to go to his own section and to see that nobody came in that direction. Ravi went outside but returned after a short while as he was overtaken by curiosity and again entered the spinning section through a side gate and found Dhanusu standing near the wall and Rathinam pushing the deceased on to the floor and saying that she should not be afraid and not to worry as he was with her. On seeing all this Ravi returned to his own department but was soon called by Dhanusu and asked to assist in carrying the deceased to the bed room as she had become unconscious. He was later told that she was dead and was also threatened that if he revealed the facts to anybody, he would face dire consequences. Ravi was thereafter asked to get liquor, which he obtained from M.R. Wines and after consuming the same, accused nos. 1, 2, 3 and 4 asked Ravi to wait near the spinning room whereafter the body was carried outside towards the road leading to Chinnavedampatty. Ravi was, however, advised to go inside and work on his machine. It also appears that PW Andy who was working in the mill at about 8.15 p.m. had also seen accused nos. 1, 2 and 4 carrying the body towards the road. He, however, continued to work on his machine and after having completed his allotted work, and after taking Madam Sundarammal's permission, left for his residence. In the meanwhile accused no.5 Krishnan also reached the mill premises at about 11.30 p.m. and saw that accused nos. 1, 2 and 4 had returned to the mill. PW 11 Palanisamy too reached the mill premises at about 11.55 p.m. whereupon Ravi left for his residence and after having watched TV for sometime, went to sleep. The next morning, Bakyam PW 1, the mother of the deceased, alarmed at the fact that her daughter had not returned home, came to the mill and asked Madam Sundarammal, as to the whereabouts of her daughter. She was told that she had not come to work the previous day. Alarmed yet further, Bakyam PW 1 set out to look for her and in that process found a watch, a 10 paisa coin, one ear ring and one hair pin near the well and on looking inside, she saw 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 met PW 1 and the other relatives of the deceased, Madam Sundarammal, Andy PW and several others and also enquired about the whereabouts of Ravi PW. The dead body was also taken out of the well and was sent for the post-mortem examination which was duly conducted by Dr. Ramalingam PW 60 who found several injuries thereon including a ligature mark on both sides of the neck and a large number of other injuries including injuries on the genital organs. A finger print expert was also summoned who lifted some prints from the tiffin box and found that they matched the finger prints of Sundaram accused no.4. Sundaram aforesaid also made an extra judicial confession before Ruthramoorthy PW 24 which was duly recorded. PW 1 however made her independent inquiries and received information that the rape and murder had been committed only by Rathinam, A-1 and that Sundaram, A-4 was innocent. The Communist Party of India also took up the matter with the Chief Minister and other senior officials and an enquiry by the CBCID was ordered which was carried out by senior officers including Inspector Pichai. A report was thereafter forwarded to the Commissioner of Police by the Assistant Commissioner of Police Selvraj that the allegations made by PW 1 with respect to Rathinam were unfounded and that the culprit was indeed Sundaram. PW 1 nevertheless persisted in her efforts and compelled the prosecution to make an application for further investigation and after an order by the Court, the further investigation was duly taken up by PW-66 Inspector Samuthrakani. This officer again recorded the statements of all the witnesses referred to above and also several other witnesses in addition and also had their statements recorded under Section 164 of the Crl.P.C. A charge sheet was thereafter filed against Rathinam and 5 others including Sundaram aforesaid. They were duly brought to trial and whereas Rathinam was charged for offences punishable under Sections 376 and 302 read with Sections 120B and 201 of the IPC, the others were charged under Section 120B and 201 of the IPC.

2. The Trial Court examined the matter very comprehensively and observed that two reports had been filed by the investigating agencies which were at variance with each other in as much that the first final report attributed the rape and murder to Sundaram accused no.4 whereas the second final report after further investigation implicated Rathinam accused no.1 as the main accused and the others for the offence under Section 201 of the Indian Penal Code. The Court observed that it was the duty of the Prosecution to establish the guilt of the 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 December 1995 and thereafter PW 1 had returned home alone. The Court then examined the evidence of PW 1 and PW 4 and observed that PW 1 had stated that she had left her daughter on the road near the mill and therefore there was thus no reason whatsoever to accept the presence of the deceased inside the premises at about 6.00 p.m. as her shift was to start at midnight. The Court held that the explanation tendered by the prosecution about the presence of the deceased at 6.00 p.m. (that she was also doubling as a domestic servant in the house of Madam Sundarammal) could not be believed as there was absolutely no evidence to that effect. The Court, further, observed that Ravi's statement pertaining to the murder had been recorded by the investigating officer for the first time on further investigation about 4 years of the date of the incident and he had also admitted that during this period of four years he had not revealed the facts of the incident to anyone including his co- workers, the relatives of the deceased, the CID or the police officials and this behaviour belied the truthfulness of his evidence. The evidence of PW5 Andy who was a witness qua the offence under Section 201 of the IPC was also rejected by the trial court for the reason that he had not revealed the story to anyone and his statement too had been recorded by the first time in the year 1999 on further investigation; though he remained employed in the mill for several years after the crime. The trial court, accordingly, acquitted all the accused.

3. The matter was thereafter taken in appeal before the High Court at the instance of the State. The High Court, while noticing that the entire prosecution story with regard to the rape and murder rested on the statements of PW4 Ravi and PW5 Andy (who was primarily the witness for destruction of evidence), went into the matter independently. While dealing with the statement of PW4, it noted that though he was the witness to the rape and murder on 22nd December 1995 he had not informed anybody including PW1, the mother of the deceased nor his co-workers, the police or the members of the Communist Party which had taken up the case on behalf of the complainant for a period of four years and it was for the first time during further investigation that he had made a statement in the year 1998. The Court found that though this conduct was rather unusual yet in the light of the fact that he was a young boy of about 17 years of age at the time of incident and could 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 appeal and awarded A1 Rathinam, the present appellant, a sentence of 7 years RI under Section 376 of the IPC, life under Section 302 of the IPC and 3 years RI for the offence under Section 201 of the IPC. Compensation of Rs.2,00,000/- to be paid by the appellant was also ordered for PW1, the mother of the deceased. A2 was sentenced under Section 201 of the IPC to 2 years RI and to a fine of Rs.5,000/- and in default to undergo RI for 6 months. A4 Sundaram was sentenced to undergo RI for one year for the offence under Section 201 of the IPC. The acquittal of A3 and A5 was, however, maintained. The present appeal has been filed by Rathinam, A1 alone.

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.

18. In the light of what has been held above, the other circumstances with regard to the recoveries etc. do not implicate the appellant in any manner. We, accordingly, allow the appeals, set aside the judgment of the Division Bench and order the acquittal of the appellant.

CRIMINAL APPEAL No.1619/2007:

In the light of what has been held above in the connected Criminal Appeal Nos. 905-906 of 2007, we find that the present appeal needs to be allowed as it is not possible on the evidence to ascertain as to whether the appellant was, in fact, guilty of the offence alleged against him. We make an order in the above terms and order his acquittal.