Holding

The High Court’s finding that the circumstantial evidence was insufficient and unreliable is correct, and the conviction cannot stand.

Summary

The Sessions Judge convicted Palanisamy (Selvan) for murder under s.302 IPC based on two pieces of circumstantial evidence: witnesses 1 and 2 who claimed to have seen the deceased with the accused at 11 p.m. on a dark night, and an alleged extra‑judicial confession made to the village head (PW‑3) on the following morning. The Madras High Court acquitted him, holding that the voice identification was unreliable because the witnesses were not closely acquainted with the accused and the night was dark, and that the extra‑judicial confession was not established as PW‑3 neither reduced it to writing nor surrendered the accused to police, showing suspicious conduct. The State of Tamil Nadu appealed to the Supreme Court, which upheld the High Court’s analysis, finding no infirmity in its reasoning and confirming the acquittal. The appeal was dismissed.

Issues considered

Whether identification of an accused by voice on a dark night, without proof of close acquaintance, is reliable for conviction under s.302 IPC.
Whether an alleged extra‑judicial confession, not reduced to writing or reported to police, can be proved through oral testimony of the village head.

Legislation cited

Subjects

circumstantial evidencevoice identificationextra‑judicial confessionmurders.302 IPCacquittalidentification reliability

Judgment

[2008] 14 S.C.R. 126
l-
A INSPECTOR OF POLICE, T.N. f1
v.
PALANISAMY @ SELVAN
(Criminal Appeal No. 177 of 2003)
OCTOBER 1, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.] ·:r

Evidence Act, 1872 - Circumstantial evidence - Con-
\
c viction under s.302 /PC on the basis of circumstance that wit- '•
nesses last saw <Jeceased in company of accused before the
incident and extra judicial confession made by accused be- ,_,
fore the village head - Acquittal by High Court _disbelieving
evidence of prosecution witnesses - Correctness of - Held:
Correct - The incident took place at night- Witnesses claimed
D
to have identified accused from his voice but such identifica-
tion was not possible as there was no evidence to show that \ -\-
witnesses were closely acquainted with the accused - Rea-
sons given by High Court to discard evidence of witness re-
garding extra judicial confession a/so did not suffer from any
E infirmity - Penal Code, 1860 - s. 302 - Extra judicial confes-
sion.
The trial court convicted the accused under s.302 IPC
on the basis of circumstantial evidence. The first circum-
F stance was that PWs1 and 2 saw the deceased in the com- Ji

pany of the accused around 11 O'clock in the night of ;,

5.6.1991 and second was an alleged extra judicial con-
fession made by accused on 12.6.1991 at 9 A.M. before
PW-3, the village head. On appeal, the High Court held
that the evidence of PWs-1 and 2 was not reliable. It also
G
did not accept the extra judicial confession made before
-~.
PW-3 on the ground that PW-3 was the former President
of Village Panchayat Board and being responsible wit-
ness ought to have surrendered the accused to police or

H 126 0
INSPECTOR OF POLICE, T.N. v. PALANISAMY 127
@SELVAN
l)
advised him to surrender at the police station immediately A
after the extra judicial confession was made before him.
The High Court accordingly ordered acquittal. Hence the
appeal.
Dismissing the appeal, the Court
8
HELD: The High Court found the possibility of iden-
-K
tification of the accused, as claimed by PWs1 and 2, an
impossibility. Undisputedly it was a dark night. They
claimed to have identified the accused from his voice.
Though such identification in some cases is possible, in c
the instant case, .no evidence was adduced to show that
the witnesses were closely acquainted with the accused
to even identify him from his voice, that too from a very
short replies, purported to have been given. This fact was
lost sight of by the trial court. So far as the purported ex-
D
/
tra judicial confession is concerned, the High Court found
that the same also has not established through the evi-
dence of PW3. The reasons given by the High Court to
discard the evidence of PW3 did not suffer from any infir-
mity. [Para 4] [128-E,F,G]
E
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 177 of 2003
From the final Judgment and Order dated 15.3.2001 of
't
the High Court of Judicature at Madras in Criminal Appeal No.
697 of 1992 F
..I
•
S. Thananjayan and Revathy Raghavan for the Appellant.
K. Sarada Devi for the Respondent.
The Judgment of the Court was delivered by G
DR. ARIJIT ASAYAT, J. Heard.
The State of Tamil Nadu questions the correctness of the
judgment rendered by a Division Bench of the Madras High
Court directing acquittal of the respondent. Learned Addiitonal H
128 SUPREME COURT REPORTS [2008] 14 S.C.R.

'(-i
A Sessions Judge, Erode had found the respondent guitly of of-
fence punishable under Section 302, Indian Penal Code (in short
,IPC') and convicted him accordingly and sentenced him to un-
dergo imprisonment for life. The case at hand rests on circum-
stantial evidence. The first circumstance which was highlighted
B by the prosecution was that Pws. 1 and 2 allegedly saw the
deceased in the company of the accused around 11 O' clock in
the night. The second was an alleged extra judicial confession
before PW3 the village head. Though the trial Court placed re-
liance on these factors to find the accused guilty the High Court
c found the evidence of Pws. 1 and 2 to be unreliable so far as
the claim to have seen accused and the Gleceased together
around 11 O'clock in the night. Similarly the High Court found
that the so-called extra judicial confession has not been estab-
lished by PW3. Learned counsel for the appellant-State sub-
mitted that the High Court should not have discarded the
D
evidencne of Pws 1 and 2 so far as the last seen aspect is
concerned. Similarly, the High Court should not have disbelieved
\_
PW3 about the alleged extra judicial confession. Learned coun-
sel for the respondent supported the judgment of!he High Court.

E We find that the High Court has analysed the evidence in
great detail and we find that the evidence of Pws 1 and 2 is not
truthful so far identification aspect is concerned. Undisputedly it
was a dark night. They claimed to have idenUfied them from
their voice. Though such· identification in some cases is pos-
F sible in the instant case no evidence was adduced to show that
the witnesses were closely ?Cquainted with the accused to even "'·
identify him from his voice, that too from a very short replies,
purported to have been given. This fact was lost sight of by the
Trial court. The High Court found the possibility of identification
as claimed by Pws 1 and 2 an impossibility. So far the pur-
G
ported extra judicial confession is concerned the High Court
ii..·
found that the same also has not been established through the
evidence of PW3. The reasons given by the High Court to dis-
card the evidence of PW3 do not suffer from any infirmity. The I-

High Court after analysing the evidence concluded as follows: r'
H t-
'
INSPECTOR OF POLICE, TN. v. PALANISAMY 129
@ SELVAN [DR. ARIJIT ASAYAT, J.]

, First we analysed the evidence of PW3 to find out whether A
the prosecution had established that the accused had given
the extra judicial confession to him. PW 3 would state that
the accused appeared before him on 12.6.1991 around
9.00 a.m. and confessed. The occurence was on 5.6.1991
and Nagarajan was found dead in the early morning on B
6.6.1991. PW3 is the former President of the Village
Panchayat Board of Kalangapalayam. If really the accused
appeared before him and gave the extra judicial
confession, then prudence on his part demands that he
should have surrendered the accused at the police station. C
He being responsible witness and on that day not holding
any office, nothing prevented him to reduce into writing
the extra judicial confession given by the accused. But, he
would state that he only advised the accused to go and
surrender at the police station for which the accused was D
not willing. Thereafter, he claims to have advised the
accused to surrender in court with the help of a lawyer.
These two advises as stated above which was given by
PW3 shows without any doubt that he is a man who knows
what to be done when an offender appears before him. E
lnspite of the accused appearing before him, he had not
chosen to reduce into writing the extra judicial confession
of the accused or produce him at the police sation. On the
contrary, he would state that on 12.6.1991 in the night he
went to the polcie station and informed the police officer F
about the extra judicial confession given by the accused.
What PW3 was doing right from 9.00 a.m. on 12.6.1991,
at which point of time the accused appeared before him
and gave the extra judicial confession, till late in the night
is a suspicious circumstances which make us to disbelieve G
his oral evidence.'

The appeal is dismissed.

D.G. Appeal dismissed.
H