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Judgments of Supreme Court of India and High Courts

Manoharan vs State By Inspector Of Police, … on 7 November, 2019





CRIMINAL APPEAL NOS. 1174-1175 OF 2019

Manoharan ….. PETITIONER(S)


State by Inspector of Police, …..RESPONDENT(S)
Variety Hall Police Station, Coimbatore



These review petitions are directed against the judgment dated

01.08.2019 passed in Manoharan v. State by Inspector of Police 1, wherein

this three-Judge Bench had affirmed conviction of the accused Manoharan for

offences punishable under Sections 302, 376(2)(f) and (g) and 201 of the

Indian Penal Code (in short “IPC”) and by majority upheld the death sentence

confirmed by the High Court.

Signature Not Verified

Digitally signed by R
Date: 2019.11.07
16:26:36 IST

2. Brief facts of the present case are as follows:
1 (2019) 7 SCC 716.

Page 1
‘X’, a ten-year-old girl and ‘Y’, her 7-year-old brother were enrolled in Classes

V and II respectively in a private school at Coimbatore and would commute

around 7:45 a.m. in a pickup vehicle owned by one Kartikeyan (PW-2). On

29.10.2010 the children left as usual with their school bags and lunch boxes

and stood about two-hundred feet away from their home, in front of the

Vinayakar Temple. Around 8:00 a.m., PW-2 came to the designated pick-up

spot but did not find the children there. He contacted the children’s father,

Ranjith Kumar Jain (PW-5), over mobile to enquire about their absence. Being

in Hyderabad, PW-5 was unable to provide an immediate reply to the query of

PW-2 and hence called his wife, the children’s mother – Sangeetha (PW-8),

who informed him that both X and Y had already left home. Since the father of

the children (PW-5) was already on his way back to Coimbatore, he entrusted

his wife to look out for the children and co-ordinate with the van driver.

Sangeetha informed Karthikeyan that the children had already left the house,

whereafter she along with her relatives Vijay Kumar (PW-1) and Sanjai (PW-6)

started searching for the children.

3. Kamala Bai (PW-9), the paternal grandmother of the children had gone

to a Jain Temple around 8:00 a.m. in the morning. Upon returning home at

10:30 a.m. and finding Sangeetha in panic, Kamala Bai informed her that the

children had been picked up by a former van driver and it was conjectured that

the children must be in school. Vijay Kumar (PW-1) then went to the school

and found that the children had however not reached. After a frantic but futile

search, PW-1 lodged a police complaint (Ex. P1) with Vasuki (Sub-Inspector of

Page 2
Police, PW-42) at around 11AM under Section 363 of the Indian Penal Code

(in short “IPC”).

4. The Investigating Officer (“IO”, PW-47), thereafter, took over

investigation and recorded statements of the informant (PW-1), the school’s

principal – Anthony Raj (PW-10), as well as of the grandmother (PW-9) and the

just returned father of the children (PW-5). First trace of the missing children

was received at 6PM when Anthony Raj (PW-10) informed the IO (PW-47) that

one Chinnasamy (PW-22) had called to inform that two school bags with

identity cards bearing names of X and Y were found floating in and later fished

out from the Parambikulam-Axhiyar Project (“PAP”) Canal. A second lead

came to the Police from Karthikeyan (PW-2) who received a call from his

erstwhile employee – Anbu @ Gandhiraj (PW-7) who conveyed that one

Mohanakrishnan had borrowed a Maruti Omni Van from him that morning.

This aroused Karthikeyan’s suspicion since Mohanakrishnan was his former

employee whose services were terminated after it had been discovered that

he was borrowing money from the parents whose children were being

transported to school by PW-2’s agency. The IO (PW-47) accordingly advised

both Anbu (PW-7) and Karthikeyan (PW-2) to immediately alert the police

whenever Mohanakrishnan came to return the Omni Van. At around 9:45PM,

Anbu alerted the police that Mohanakrishnan had come to return the Van and

he had also confessed to the kidnapping, rape and murder of the two missing

children along with his friend Manoharan. Pursuant to the information received

by Anbu, Mohanakrishnan was arrested and a confessional statement was

Page 3
recorded in the presence of Anbu (PW-7) and one Santosh Kumar (not

examined as a witness). The Maruti Omni Van along with one Nokia

Cellphone and the driving license of Mohanakrishnan were also seized. The

IO consequently sent a report (Ex. P-30) for alteration of charge from under

Section 363, IPC to Sections 364(A), 376, 302 read with Section 201, IPC

which was received by the Magistrate at 11:45PM.

5. Having observed certain saliva and yellow-coloured stains on the seized

van, the IO requisitioned forensic assistance of Sarvanan (PW-43), Deputy

Director of Mobile Unit of Tamil Nadu Forensic Sciences Department. In the

presence Sarvanan (PW-43), Anbu (PW-7) and one Santosh Kumar

(unexamined), the van was thoroughly searched wherein a lady’s underwear

bearing the inscription “SBT Kidswear 75 c.m.” with hair strands was

recovered. Sarvanan (PW-43) further collected the betel nut saliva stains on

the left door of the van with a cotton swab for chemical examination, as well

as dried yellow-colour stains found on the seat and floormat, and the clothes

(namely pant, half shirt and underwear) worn by Mohanakrishnan (Mahazar

Exs. P-5 P-6). Mohanakrishnan subsequently led a police team to the place

where he claimed to have raped X as well as to Deepalapatti, the place from

where the children had allegedly been pushed into the running waters of the

PAP canal.

6. The girl child’s body was found the subsequent morning in the PAP

canal by villagers near Palladam Taluk at 9:30AM, and the boy’s body was

later recovered from the canal around 12 kms from Deepalapatti. Postmortem

Page 4
was conducted by Dr. Jayasingh (PW-46) at the Coimbatore Medical College

and Hospital, wherein the following injuries were recorded on X’s body:

“The body was first seen by the undersigned at 02.15 pm on
30.10.10. Its condition then was rigor mortis present all over the
body. Post mortem commenced at 02.15 pm on 30.10.10.
Appearances found at the postmortem:-

Moderately nourished body of a female aged 10 yrs. Finger and
toenails bluish in colour. The body wearing blue colour “T” shirt with
white colour sticker named as “Suguna Rips” noted left side, black
colour track suit with white line order, white colour socks and white
colour shoes and rose colour shimmis. White colour frothy secretions
noted over both nostrils and mout. Water suddening noted over both
palms and soles.”

7. The following ante mortem injuries noted over the body:

“1. Liner vertical scratch marks 4 in numbers in varying size noted
over lateral aspect right elbow joint.

2. Transverse scratch abrasions 3 in number in varying size noted
over lateral aspect of left upper forearm.

3. A scratch mark 3 in number noted over lower part of left arm.

4. Contusion 2×1 cm x 0.5 depth noted over in the posterior
fourchettes and lateral wall of vagina. Hymen intact.

5. On examination of anus: – Anus found roomy measuring 3 cm
in diameter and mucosal tear 1×0.5 cm x mucosal deep noted over
left lateral aspect of the anus at the level of muco-cutaneous

On dissection of Thorax and Abdomen: Contusion 4 x 2 cm noted
over anterior aspect of lower end of uterus.”

8. Similarly, in Y’s postmortem examination, the following ante mortem

injuries were noted:

Page 5
“1. Bluish contusion 3 x 2 cm noted on middle of left side neck, 3
cm left to midline.

2. Bluish contusion 3 x 2 cm noted over outer aspect of right

3. Bluish contusion noted over right side third intercostal space.

4. On dissection of scalp, skull and dura: sub scalpel contusion 20
x 10 cm noted over bi frontal region and bi parietal region. Diffuse
sub dural and sub arachnoid haemorrhages noted on both cerebral

5. On bloodless dissection of neck: contusion 4 x 3 cm noted on
left side middle of neck. Hyoid bone found intact.”

9. The present review-petitioner, Manoharan (hereinafter “petitioner”) who

was stated to have perpetrated the crime along with Mohanakrishnan, was

arrested on 31.10.2010 at 7AM, as recorded in Ex. D-4. Manoharan made a

disclosure statement to the police (Ex. P-21) on the basis of which the IO

(PW-47) recovered lunch box of Y from his house. Further, after being

produced before the Magistrate the same day, the petitioner was sent to

judicial custody.

10. A Test Identification Parade was conducted on request of the IO

whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driver of the

van in which the children had been kidnapped. Subsequently, both the

petitioner and Mohanakrishnan were medically examined on 04.11.2010

whereby samples of their blood and saliva were sent to the Tamil Nadu

Forensic Science Laboratory for DNA Analysis. A potency test of the petitioner

was conducted by Dr. J.R. Singh (PW-46), who in his medical report (Ex. P-

Page 6

56) found him potent and further noticed signs of injury around his private


11. During recovery proceedings under Section 27 of the Indian Evidence

Act (in short “IEA”), whilst in police custody, Mohanakrishnan shot and

wounded two police officers and was consequently shot dead by the Police on

09.11.2010. Thus, the trial against Mohanakrishnan was abated and the

petitioner alone was left to be tried as an accused.

12. Succinctly, the prosecution’s version of events is that Mohanakrishnan

using a borrowed school van, picked up two children (X and Y) who were

waiting to go to school at about 7:50 a.m. He further picked up his friend,

Manoharan from his house at 9:30 a.m. and subsequently, they took the

children to a remote location where after the girl child was raped and

sodomised. Subsequently, Manoharan and Mohanakrishnan purchased cow

dung powder (a poisonous substance) which was mixed in milk and then

administered to the children to end their life. However, both the children spat

out the substance and only ingested a small portion. Since poisoning did not

work, Mohanakrishnan and the petitioner threw both the children into the

turbulent waters of a nearby Canal, hence drowning them.


13. Over the course of the trial, the prosecution examined forty-nine

witnesses in all including persons who witnessed abduction, purchase of milk

and cow dung powder and those having seen children in the custody of

Page 7
accused persons at various places. Further, various medical and forensic

evidence were produced, proving drowning and rape as well as injuries on

Petitioner’s body. A ‘last seen theory’ was built by the prosecution, in addition

to use of a confessional statement made by the petitioner under Section 164,

CrPC. The Trial Court ultimately held the Petitioner guilty under Section 120-

B, 364-A, 376, 302 r/w 34 and 201 IPC. Under Section 376, the Petitioner was

awarded life sentence and for offence under Section 302 IPC he was given

death sentence.

14. The Madras High Court set aside conviction of Petitioner under Sec.

120-B and 364A IPC but confirmed the sentences under Sec. 376, 302 r/w 34

and 201 IPC. After considering aggravating and mitigating circumstances, the

High Court confirmed death sentence awarded by the Trial Court.

15. Thereafter the Petitioner filed a Special Leave Petition under Article 136

whereby this Court dismissed his appeal and confirmed the death sentence by

majority, observing that the case fell in the category of the ‘rarest of rare’

cases. After considering all evidence on record and contentions of the

counsels, the majority opinion of this Court read as follows:

“In the circumstances, we have no doubt that the trial court and High
Court have correctly applied and balanced aggravating
circumstances with mitigating circumstances to find that the crime
committed was cold blooded and involves the rape of a minor girl
and murder of two children in the most heinous fashion possible. No
remorse has been shown by the Petitioner at all and given the nature
of the crime as stated in paragraph 84 of the High Court’s judgment it
is unlikely that the Petitioner, if set free, would not be capable of

Page 8
committing such a crime yet again. The fact that the Petitioner made
a confessional statement would not, on the facts of this case, mean
that he showed remorse for committing such a heinous crime. He did
not stand by this confessional statement, but falsely retracted only
those parts of the statement which implicated him of both the rape of
the young girl and the murder of both her and her little brother.
Consequently, we confirm the death sentence and dismiss the

16. Khanna J., in his minority opinion also upheld conviction under the

various offences concerned, but dissented on the quantum of sentence,

holding as follows:

“I would, therefore, uphold and maintain conviction of the appellant
under Sections 302, 376(2)(f) and (g) and 201 IPC and the
sentences awarded under Sections 376(2)(f) and (g) and 201 IPC.
To this extent the appeal is dismissed. In view of the aforesaid
discussion and on balancing aggravating and mitigating
circumstances, in my opinion, the present case does not fall under
the category of “rarest of the rare” case i.e. there is no alternative but
to impose death sentence. It would fall within the special category of
cases, where the appellant should be directed to suffer sentence for
life i.e. till his natural death, without remission/commutation under
Sections 432 and 433 CrPC. To this extent I would allow the appeal.”

17. The Petitioner then filed the present petition for review of the said

judgement and order dated 01.08.2019, which was heard at considerable

length in open Court following the parameters evolved in Mohd. Arif @

Ashfaq v. Registrar, Supreme Court of India 2, wherein a Constitutional

Bench of this Court held that in cases of death penalty, since the punishment

is irreversible and Article 21 of the convict is violated, it is necessary to provide

at least one opportunity for oral arguments on the question of sentence.

2 (2014) 9 SCC 737.

Page 9

18. At the outset, it may be clarified that the scope of Review even in death

penalty cases has been narrowed down in Vikram Singh v. State of Punjab3,

laying down that review can only be on a glaring error apparent on the face of

the judgement or order. A mere change or addition of grounds cannot be

allowed at the stage of review. This Court thus held as follows:

“23. In view of the above, it is clear that scope, ambit and parameters
of review jurisdiction are well defined. Normally in a criminal
proceeding, review applications cannot be entertained except on the
ground of error apparent on the face of the record. Further, the
power given to this Court under Article 137 is wider and in an
appropriate case can be exercised to mitigate a manifest injustice.
By review application an applicant cannot be allowed to reargue the
appeal on the grounds which were urged at the time of the hearing of
the criminal appeal. Even if the applicant succeeds in establishing
that there may be another view possible on the conviction or
sentence of the accused that is not a sufficient ground for review.
This Court shall exercise its jurisdiction to review only when a glaring
omission or patent mistake has crept in the earlier decision due to
judicial fallibility. There has to be an error apparent on the face of the
record leading to miscarriage of justice to exercise the review
jurisdiction under Article 137 read with Order 40 Rule 1. There has to
be a material error manifest on the face of the record with results in
the miscarriage of justice.”

19. The above cited decision was reiterated in Mukesh v. State of (NCT

of Delhi)4 where also similar restrictive principles were applied and re-affirmed

while considering the scope of review in death penalty cases. Reliance was

placed on the dictum in Kamlesh Verma v. Mayawati5, prescribing that

3 (2017) 8 SCC 518.

4 (2018) 8 SCC 149.

5 (2013) 8 SCC 320.

Page 10
Courts should refrain from re-appreciating the entirety of evidence only to

arrive at a different possible conclusion, besides illustrating an inexhaustible

list of instances where review shall not be maintainable. The relevant part

reads as follows:

“20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen
concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing
of the case.

(iv) Review is not maintainable unless the material error, manifest on
the face of the order, undermines its soundness or results in
miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected but lies only for patent

(vi) The mere possibility of two views on the subject cannot be a
ground for review.

(vii) The error apparent on the face of the record should not be an
error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain
of the appellate court, it cannot be permitted to be advanced in the
review petition.

(ix) Review is not maintainable when the same relief sought at the
time of arguing the main matter had been negatived.”

20. It is, therefore, to be kept in mind that the scope of a Review is more

constrained than that of an appeal. A party cannot be allowed to reurge the

case on merits to effectively seek re-appreciation of evidence when the matter

has already been decided earlier, even if on different grounds. Interference in

the earlier judgement assailed in a Review is permissible only on the basis of

Page 11
an error apparent on the face of record or discovery of important new

evidence which has a direct bearing on the ultimate outcome of the case and

if not well appreciated, would cause manifest injustice.

21. Learned Senior Counsel for the petitioner, Mr. Siddharth Luthra has

made a deft challenge to our judgment, through a multifaceted attack on both

merits and procedure of the case. He forcefully urged for setting aside the

conviction and in the alternate, requested commutation of the sentence of



22. The arguments for the Petitioner begun with challenge to reliance by

this Court on confessional statement of the accused. Mr. Luthra strenuously

contended that strict compliance with the safeguards for recording a

confessional statement as mandated under Section 164 are mandatory, as

ruled in Shivappa v. State of Karnataka6. He strongly disputed the

admissibility of the confessional statement made by the petitioner before a

Magistrate on 20.11.2010 on the premise that:

(a) Confession was coerced and involuntary, and in contravention of

Section 163, CrPC and Section 24, IEA for first, the petitioner had been

physically assaulted by the police whilst in custody, as evidenced

through answer to Question 8 posed by the Magistrate during

preliminary examination on 19.11.2010. Second, the petitioner was

6 (1995) 2 SCC 76

Page 12
under severe psychological stress owing to the in-custody killing of the

co-accused Mohanakrishnan on 09.11.2010; and third, circumstances

surrounding confession were suspicious, for the IO (PW-47) moved an

application stating that the petitioner was ready to volunteer a

confession when he was in judicial and not police custody.

(b) The Magistrate failed to comply with the mandatory procedure as

prescribed under Section 164, CrPC since he did not inform the

petitioner that he would not be sent to police custody after recording of

the confessional statement.

23. In light of the vehement attempt at assailing the confessional statement

as being non-voluntary and violative of the right guaranteed under Article

20(3) of the Constitution and in the alternate its reliance for having been

retracted by the petitioner, it may be briefly noticed that on a conjoint reading

of the confessional scheme comprising of Sections 163, 164 CrPC and

Section 24 IEA as construed in a catena of decisions of this Court, it is

obvious that even in the absence of an express provision for retracting a

confessionary statement once made, the Courts have preferred a rule of

prudence whereby in case of retraction, the Court reduces the probative value

of such confessionary statements and seeks corroborating evidence.

24. Hence, the cornerstone of a valid confession in India is only whether

such a statement was made in compliance with statutory provisions which

mandate that the same must be before the Magistrate after compliance with

Page 13
certain safeguards meant to ensure voluntariness and lack of coercion by the

police. This has been so noted by this Court in Bharat v. State of U.P.7:

“7. … Confessions can be acted upon if the court is satisfied that
they are voluntary and that they are true. The voluntary nature of the
confession depends upon whether there was any threat, inducement
or promise and its truth is judged in the context of the entire
prosecution case. The confession must fit into the proved facts and
not run counter to them. When the voluntary character of the
confession and its truth are accepted it is safe to rely on it. Indeed a
confession, if it is voluntary and true and not made under any
inducement or threat or promise, is the most patent piece of
evidence against the maker. Retracted confession, however, stands
on a slightly different footing. As the Privy Council once stated, in
India it is the rule to find a confession and to find it retracted later. A
court may take into account the retracted confession, but it must look
for the reasons for the making of the confession as well as for its
retraction, and must weigh the two to determine whether the
retraction affects the voluntary nature of the confession or not. If the
court is satisfied that it was retracted because of an after thought or
advice, the retraction may not weigh with the court if the general
facts proved in the case and the tenor of the confession as made
and the circumstances of its making and withdrawal warrant its user.
All the same, the courts do not act upon the retracted confession
without finding assurance from some other sources as to the guilt of
the accused. Therefore, it can be stated that a true confession made
voluntarily may be acted upon with slight evidence to corroborate it,
but a retracted confession requires the general assurance that the
retraction was an after thought and that the earlier statement was
true. …”

25. The objective behind such a provision has been explored by this Court

in various decisions wherein it has been noted that provisions permitting use

of confessionary statements in criminal trials were statutorily included as an

acknowledgement of the possibility that in certain circumstances an accused

may voluntarily confess to his offence(s).

7 (1971) 3 SCC 950

Page 14

26. From a chronological analysis of the confessional statement of

Petitioner dated 20.11.2010 (Ex.P.18) as well as the preliminary examination

held on 19.11.2010, it is apparent that the learned Magistrate – S.S.

Sathiamoorthy (PW-28) duly complied with all procedural requirements for

recording of a confessional statement and affirmatively satisfied himself of the

voluntariness of the petitioner’s confession:

a. During preliminary examination, the petitioner informed the

Magistrate that he was brought from Central Jail, Coimbatore on

19.11.2010, hence abridging the possibility of any coercion or

influence by the police. Further, a perusal of the record shows that

petitioner was last in police custody only on 11.11.2010 and hence

there is no doubt that he had been in judicial custody for some time

prior to giving a confessional statement. Hence per Abdul Razak

Murlaza Dafadar v. State of Maharashtra8 it can be inferred that he

was not under the influence of the investigating agency.

b. In reply to Question 8 during preliminary examination on 19.11.2010,

when asked by the Magistrate whether someone tortured him, the

petitioner does say that he was beaten by the police. However, when

asked whether the “police tortured and compel you to give statement

like this”, the petitioner denied any such torture or compulsion.

Similarly, when the Magistrate asked him whether he was told some

sweet words such as “the confession statement will be beneficial or

8 AIR 1970 SC 283.

Page 15
where you threatened by police or by anybody else that if statement

was not given”, the petitioner specifically denied the same. He also

acknowledged the fact that he was not under compulsion to give a

confession statement and that he was aware of the fact that such

statement could be used against him. Further, when re-questioned

by the Magistrate if the petitioner was tortured, he answered in the

negative. Hence, not only was the petitioner inconsistent in his

claims, but further it is evident that the alleged physical assault by

the police, if at all, would have been committed weeks before the

confession. Vague and passing claims of police assault, supposedly

committed far before the confessional date, cannot be a ground for

holding the confession as coerced.

c. After preliminary questioning on 19.11.2010, the petitioner was

entrusted to the Prison Warden and sent back to judicial custody for

reflection “after duly informing him that he was not under obligation

to give confessional statement.” The petitioner was re-produced

before the Magistrate on the next day at 2PM and was again given

an opportunity to change his mind and not confess. The Magistrate

once more satisfied himself of the voluntariness of the petitioner and

the absence of any police influence. Hence, it is clear that an

adequate opportunity to recant was provided and the Magistrate

ensured that any possible lingering effects of alleged beatings or

psychological stress post encounter of co-accused, would have been

Page 16
mitigated. It is also apparent that the Magistarte duly informed the

petitioner about the repurcussions of his confessional statement, and

made no false assurance of it helping his case, as had been made in

State of Assam v. Rabindra Nath Guha 9, which has erroneously

been relied upon by Mr. Luthra.

d. The statement once recorded, was thereafter read out to the

petitioner who signed it to be correct. The Magistrate signed the

statement at 4:30PM on 20.11.2010, and afterwards sent the

petitioner to judicial custody. The Magistrate thus was fully conscious

of his statutory obligation and factually ensured that the petitioner

was not sent to police custody post the confessional statement. It is

further clear that the petitioner was kept in judicial custody for almost

twenty months after the confession, over the course of which there

was no likelihood of him being entrusted to police, and still no protest

or attempt to retract the confession was made by him.

e. The fact that the application to record the petitioner’s statement was

moved by the IO is inconsequential, as the petitioner was neither in

police custody nor, as acknowledged by him, the police officials

interacted with him during judicial custody. It is thus far-fetched to

use the fact that police put forth the request for recording of

confession to suggest that the confession was involuntary or secured

at the behest of police.

9 1982 Cri LJ 216.

Page 17

27. Further, it is essential to note that the petitioner failed to put forth any

protest against the confessional statement despite having multiple

opportunities during the course of trial. This Court has held earlier in

Shankaria v. State of Rajasthan10 that retractions must be made by the

accused as soon as possible, otherwise there would be a strong presumption

of voluntariness in the confession.

28. The confession, in the present case, was not challenged during stage of

framing of charge or over the course of examination of forty-seven prosecution

witnesses, but instead only partly disputed through a letter written in secret

just before petitioner’s examination under Section 313 of the Code. It is thus

evident that such retraction at the fag-end of the trial, was not natural but

rather meticulously formulated, perhaps as a part of defence strategy. Hence,

there remains no doubt about the voluntariness of the confession of

20.11.2010 or it being unaffected by subsequent retraction.

29. That apart, even if the confession dated 20.11.2010 were to be treated

as being retracted vide letter dated 25.07.2012 (as adopted during

examination under Section 313 of the Code), still the original confession can

be relied upon. Coupled with corroborating evidence, conviction can also be

secured on the strength of such confession. The rule regarding use of such

retracted confessions was noted by this Court in Subramania Goundan v.

10 (1978) 3 SCC 435.

Page 18
State of Madras11 as well as by a four-Judge Bench of this Court in Pyare Lal

Bhargava v. State of Rajasthan12, holding that:

“A retracted confession may form the legal basis of a conviction if
the court is satisfied that it was true and was voluntarily made. But it
has been held that a court shall not base a conviction on such a
confession without corroboration. It is not a rule of law, but is only a
rule of prudence. It cannot even be laid down as an inflexible rule of
practice or prudence that under no circumstances such a conviction
can be made without corroboration, for a court may, in a particular
case, be convinced of the absolute truth of a confession and
prepared to act upon it without corroboration; but it may be laid down
as a general rule of practice that it is unsafe to rely upon a
confession, much less on a retracted confession, unless the court is
satisfied that the retracted confession is true and voluntarily made
and has been corroborated in material particulars.”

30. Still further, it is clear that even in the retraction statement, the petitioner

has made substantial admissions which read together with prosecution

evidence, are sufficient to convict him. Through the letter dated 25.07.2012,

the Petitioner merely restates his confession with certain omissions and a few

denials as compared to his earlier statement. Although he agrees to be at the

place of the occurrence along with the now deceased Mohanakrishnan

throughout the incident, instead of admitting an equal role in commission of

rape and murder, he portrays himself to be a mere helpless bystander. The

petitioner has attempted to justify his retraction by stating that he had told the

truth to the Magistrate but his statement was not read out to him and hence

the Magistrate’s affirmation under Section 164 of the Code is incorrect.

11 AIR 1958 SC 66.

12 AIR 1963 SC 1094.

Page 19

31. A comparison of the retraction with the confession dated 20.11.2010

further shows that it is merely an improvement. The Petitioner has admitted to

all the general circumstances of the incident, i.e. having been present at the

scene of all crimes, being friend of the co-accused and of the offences as

claimed by the prosecution to have occurred. However, he merely contends

that the crimes were committed by the co-accused and not by the Petitioner

himself. Regardless thereto, there are sufficient inculpatory admissions in the

letter dated 25.07.2012 to place a strong burden of proof on the Petitioner

under Section 106 of the IEA.

32. Moreover, we must note that the petitioner has not been convicted by

the Courts below or this Court, solely on the basis of his confession made

under Section 164 of the Code. The confession has been corroborated by

enough evidence and it would not be a stretch to state that even independent

of such confessional statement, this Court would nevertheless have reached a

firm conclusion of guilt.


33. The second contention raised by Mr. Luthra is that this Court decided

the appeal without independently re-appreciating all the material on record.

We are in strong disagreement with this contention. This Court critically

analysed all the material witnesses and documents exhibited on record which

were referred to during the course of arguments. A careful examination of

such evidence lead to a unanimous finding of guilt against the Petitioner. It

was noted by the majority that:

Page 20
“PW.20, PW.25 and PW.23 all saw the two accused together with the
children at different times on 29.10.2010. Indeed, even if one were to
read the confessional statement of the Appellant together with the
retraction thereof, the fact that he purchased milk at 1.00 p.m. from
PW.23 is clearly made out and the fact that Mohanakrishnan went to
meet the tailor, was also admitted by him in both the original
confessional statement as well as the retraction. It is clear therefore
that the evidence of PW.20 and 23 are corroborated by the
confessional statement and the retraction made by the Appellant and
therefore the factum of the two accused being with the two children
in the vehicle is clearly made out and thus the High Court’s
conclusion that the last seen theory can be relied upon cannot
possibly be assailed.”

34. Such an independent re-appreciation was also conducted by Khanna J.

in his minority opinion in para nos. 23 to 29.


35. Mr. Luthra seeks to make a third core challenge by placing reliance on

Article 21 of the Constitution of India, claiming that it mandates adequate and

efficient legal assistance, the denial whereof would amount to condemning

one unheard.

36. There cannot be any quarrel with the cited proposition for it is a

fundamental tenet of criminal jurisprudence, least not because of our

Constitution, that every person has a right to effective legal assistance. In

case an accused cannot afford the same, then it is the responsibility of the

State to provide free legal aid, as definitively noted in Hussainara Khatoon v.

State of Bihar13. However, we feel that such a right has been protected in the

13 (1980) 1 SCC 98.

Page 21
present case and the legal representation accorded to the petitioner was not


37. At the outset, as noted in State v. Navjot Sandhu14 judicial scrutiny of a

counsel’s performance must be careful, deferential and circumspect for not

doing so would give rise to the dangerous possibility of convicts raising such

pleas of inadequate legal assistance after adverse verdicts. It would also be

useful to cite Strickland v. Washington15 wherein the Supreme Court of the

United States, laid down that to demand re-trial or acquittal on grounds of

inadequate legal representation, the accused must show both that the

assistance of the counsel was deficient per an objective standard of

reasonableness as developed by customary practice, as well as that such

deficiency has with a reasonable probability affected the outcome of the case,

such that had he received adequate representation, the result would have

been different.

38. It is clear that the petitioner has failed to demonstrate either of these

legs in the present case. Although it is correct that seven counsels refused to

defend the Petitioner and there was a resolution by the bar to not take up his

brief, but the Trial Court ensured the services of a legal aid counsel who ably

conducted petitioner’s defence during the trial. The record reveals that from

23.02.2011 till 18.06.2012, no effective proceedings were held and post

18.06.2012, legal aid counsel Mrs. A. Sharmila appeared on behalf of the

petitioner. The length and quality of cross-examination conducted by the court-
14 (2005) 11 SCC 600.

15 466 U.S. 668 (1984).

Page 22
appointed counsel testifies her legal acumen and professional ability. Hence,

there can be no question on the adequacy of counsel’s performance.

39. Notwithstanding the above determination, we must note that in the

present facts no prejudice has been caused to the petitioner for want of

adequate or proper legal assistance. Not only did the High Court reappreciate

the entire evidence, but it also conducted another examination of the

Petitioner under Section 313, CrPC. Furthermore, the High Court appointed a

Senior Advocate, Mr. A Raghunathan, in addition to Advocate Smt. Vairam, to

provide the best legal services to the Petitioner. Similarly, in appeal, this Court

both re-appreciated the evidence and ensured due legal representation. Even

in the present Review, the petitioner’s interests are protected by an

outstanding Senior Counsel and as a matter of abundant caution, we have

also conducted an elaborate analysis. We thus do not find this to be a case of

deficient legal assistance, affecting the Petitioner’s rights under Article 21 of

the Constitution.

40. The plea regarding absence of a counsel during proceedings before the

Magistrate under section 164, CrPC resulting into any prejudice, are

misconceived. What mandatorily is needed, as noted earlier, is that the

Magistrate must satisfy himself of the voluntariness of the statement and all

the statutory safeguards which includes bringing the repercussions and the

voluntariness of making confessions to the knowledge of the accused, must

be meticulously complied with. It is pertinent to take note of the first Proviso to

Section 164(1), added with effect from 31.12.2009, which specifies that:

Page 23
“Provided that any confession or statement made under this sub-

section may also be recorded by audio-video electronic means in the
presence of the advocate of the person accused of an offence.”
(emphasis supplied)

41. Section 164 of the Code thus does not contemplate that a confession or

statement should necessarily be made in the presence of the advocate(s),

except, when such confessional statement is recorded with audio-video

electronic means.


42. The next contention of Mr. Luthra revolves around the date of arrest of

the petitioner. According to him, the petitioner was arrested from his village

Anglapurchi post-midnight on 29.10.2010 and not on 31.10.2010 at 7:00 a.m.

The petitioner was not sent to custody after formal arrest till an alleged

confession was recorded before the Village Administrative Officer, S. Ganesan

(PW-30). Mr. Luthra relies upon the cross-examination of PW-47 where he is

stated to have admitted that the petitioner was caught in his village after

midnight of 29.10.2010.

43. Not only is the dispute re: the date of arrest immaterial for determination

of petitioner’s guilt in the present case, but we otherwise do not find any

substance therein. First, the petitioner’s arrest on 31.10.2010 at 7:00 a.m. is

proved by Exhibit D4 which is duly signed by his father (DW-1). P. Ramasamy

(DW-1) has admitted his signatures on the Exhibit D4, proving the date and

time of the arrest. Second, the plea at best assumes violation of Section 167

of CrPC which mandates production of the suspect before the jurisdictional

Page 24
magistrate within 24 hours of arrest. The adverse impact of such assumed

variation on the Judicial proceedings has also not been convincingly

demonstrated. Mr. Luthra’s contention would have carried some weight had it

been a case of making confessional statement by the petitioner before the

Judicial Magistrate on 30/31.10.2010, that is, when he was allegedly in police


44. Mr. Luthra very ably made an attempt to cast doubt on the recovery of

the underwear of the deceased girl as well as the presence of pubic hair of the

Petitioner on the said underwear. It was argued that the underwear worn by

the deceased remained in the custody of the police till 01.11.2010, therefore

plantation of hair on the panty cannot be ruled out.

45. Firstly, such a plea is at variance from the submission made before the

High Court where it was argued that police had planted the pubic hair on

04.11.2010. Secondly, there is no factual discrepancy in the prosecution case

as may be seen from the following facts:

i. The police found Mohanakrishnan in the house of one A. Anbu

(PW-7) on 29.10.2010 at about 9:45 pm. Pursuant to this, the

Maruti Van was inspected by the police in presence of PW-7 and

one Santosh Kumar. Appropriately, Mahazar (Ex.P.4) was prepared

by the police incorporating details of seizure of van and presence of

stains on its doors and floor mat.

Page 25
ii. Thereafter, A. Sarvanan (PW-43), Deputy Director of Mobile Unit of

Tamil Nadu Forensic Sciences Department was called by the IO

(PW-47) at around midnight of 29/30.10.2010. PW-43 examined

the van whereby the underwear of the deceased girl (MO-1) was

found with hair strands. Cellophane tape was applied to the hair

strands by PW-43, to keep them at their spot and the MO-1 was

then put in a cover and sealed. Further, PW-47 sealed the same in

an ‘Angelform’ brassieres cardboard box, obtained from vicinity and

seized it as Mahazar (Ex.P.5).

iii. Accordingly, Ex.P.5 reached the Judicial Magistrate on 30.10.2010

along with Form 95 pertaining to the MO-1. This explains the delay

of one day in production of Ex.P.5 before the Judicial Magistrate.

iv. Moreover, since 30.10.2010 was a Saturday, the Judicial

Magistrate directed Ex.P.5 to be produced again on the next

working day i.e. 01.11.2010. Hence, the box was re-produced

before the Judicial Magistrate on 01.12.2010 and was then

forwarded to Tamil Nadu Forensic Sciences Department for further


46. PW-43 prepared his report (Ex.P.38) and sent it to the IO for further

forensic examination, wherein it was recorded that:

“a) A Pink coloured panty printed letters “SBT kids wear” “75cms”
with pale brownish starchy like stains with small hair pieces on its
inner surface was found beneath the back seat of the vehicle was
identified, collected. The place where the hair pieces were seen were

Page 26
marked and pasted with cellphone tape in order to safety transport
the vital cue materials for comprehensive Forensic analysis.”

47. Additionally, Mrs. Lakshmi Balasubramanian (PW-49), Deputy Director

of DNA Division of the Forensic Science Department stated in her cross-

examination that the underwear was received by her for examination, in a

sealed parcel. She has said:

“It is correct to state that my first prerogative is to satisfy that the seal
of the container in which the items received for testing, is not broken.
It is correct to state that the items and the paper covers would be
sealed with the Medical Officer’s seal. The parcel received by me
contained the Medical Officer’s seal and not any Court seal. It is
correct to state that in my report I have not mentioned that the seals
were not broken.

By “correct seals”, I mean that the same seal on the letter and the
sample seal on the paper covers are the same.”

48. Analysis of the depositions as reproduced above prove that the

underwear was recovered and sent for forensic examination without any

tampering. The seal on the parcel containing the underwear was still intact

when PW-49 received it for forensic examination.

49. We find that the contention of the learned Senior Counsel, pertaining to

non-production of the property room Register is of no force since it has not

been raised before at any stage of the proceedings and thus cannot be

allowed to be argued afresh at the stage of Review. Furthermore, casting a

doubt on the identification of MO-1 by the father of deceased (PW-1) is also

baseless and holds no ground. Merely because PW-1 did not dress his

Page 27
daughter on the date of the incident does not imply that he would not

recognize a piece of clothing of his daughter. PW-1 has clearly deposed that

MO-1 belongs to his daughter.


50. In the judgment-under-review, it was argued by Mr. Luthra that even per

the confessional statement, the accused only committed anal intercourse

which is punishable under Section 377 IPC, and he has been wrongly

convicted under Section 376 IPC. Such a plea, however, does not find support

from the overwhelming evidence to the contrary. First, relevant portions of the

confessional statement need to be extracted:

“… I asked him to give me a chance. He asked me to do it with the
girl. Seated from the front seat, Mohan saw. I went and saw the girl
who was without a pant. I placed my penis on the front side when the
girl cried saying it was paining. Then I did through backside through
anus. Even that did not come good for me. Then I masturbated and
brought out semen. …”

51. The confessional statement lucidly reveals that the accused placed his

penis on the vagina of the deceased girl consequent to which she cried. This

act of the Petitioner satisfies all relevant ingredients of Section 376 as it

existed at the relevant time. The only dispute that remains is whether the

Petitioner committed peno-vaginal penetration or not. However, the medical

evidence shows that vaginal intercourse had been committed with X and that

there was a contusion on the petitioner’s private part. Relevant portions of the

post-mortem of X as deposed by PW-46 are reproduced below:

Page 28
“… The anti-mortem injuries that had been caused on the body are:


4) A contusion of 2 x 1 cm x 0.5 cm on the inner lower aspect of
Vagina and the inner edge of uterus. Hymen was in tact.

5) When anus was examined, it was found to be bigger in size, 3 cm

52. Furthermore, following the orders of Magistrate on 04.11.2010, Dr.

Jeyasingh examined Manoharan and observed an injury on his penis in his

report (Ex.P.56) as:

“A dark colour contusion noted over proximal part of glands penis
around urethral orifice.”

53. It is evident from the deposition of PW-46 that the vagina of X was

penetrated. Also, Dr. Jeyasingh (PW-46), who conducted the autopsy on the

body of X had stated in his final opinion (Ex.P.50):

“The deceased would appear to have died of DROWNING. Injuries
noted on the vagina and anus due to forcible sexual assault.”

54. Furthermore, the evidence of his pubic hair found in the girl’s underwear

coupled with DNA Report that those were his hair belies his plea of not having

committed the ghastly crime. The DNA Report, as deposed by Mrs. Lakshmi

Balasubramanian (PW-49), affirms the pubic hair found in the underwear of X

to be that of the petitioner. Relevant portion of the statement of PW-49,

delineating the DNA Report reads as follows:

“Conclusion: From the DNA typing results of the above samples, it is
found that the pubic hair in item [8] belongs to a human male
individual and is that of alleged accused -2 Manoharan. The report
DNA 220/2010 is given and signed by me. The said report with four
annexures is marked as Ex.P.48B.”

Page 29

55. Considering the final opinion of Dr. Jeyasingh stating that the girl was

subjected to sexual assault; injury on the penis of petitioner; recovery of dead

body of X without underwear; recovery of underwear from the Maruti Van;

father of X recognising the underwear; finding hair on the recovered

underwear and matching of DNA of hair with that of Manoharan, we are of the

view that even in absence of the confessional statement of the petitioner, it is

established the petitioner committed offence under Section 376 IPC. The

retraction dated 25.07.2012 may merely eclipse some part of the inculpatory

evidence but cannot be construed to render the entire evidence exculpatory.

Hence, we do not find any substance in the contention of Mr. Luthra and are of

the view that the petitioner is justly convicted for offence under Section 376



56. It was then urged that this Court ought not to have relied on a recent

amendment to the Protection of Children from Sexual Offences (POCSO) Act,

2012 to justify death penalty, as the new law was non-existent on the date of

occurrence and hence cannot be applied retrospectively in derogation to

Article 20 of the Constitution.

57. Although the plea is attractive at first glance, it must be noted that the

Petitioner has not been convicted or sentenced under the POCSO Act.

Instead, only a passing reference was made to pinpoint whether the present

case was rarest of the rare and whether it would shock the conscience of the

Page 30
society. It has been noted by this Court in Macchi Singh v. State of Punjab16

and various other judgments that in order to uphold the guarantee under

Article 21 and to reduce arbitrariness caused by discretion of judges in

sentencing, it should be the opinion of the society and not the personal

opinion of the judge which should be considered whilst awarding sentence of

death. Towards the same, a change in law during pendency of the case is an

apt indicator of societal opinion as legislated by elected representatives. It is

not the case here that Petitioner has not been convicted of an offence

otherwise not punishable with death.


58. Lastly, Mr. Luthra impassionedly urged that this is not a fit case for

award of death penalty, especially when, the death penalty has been

confirmed only by way of 2:1 split decision. Relying on the minority opinion of

Thomas J. in Suthenraraja v. State,17 he vehemently argued that in a case

where one of the Hon’ble Judges did not deem it appropriate to award death

penalty, that in itself ought to be a sufficient ground to commute death

sentence in Review. He also urged this to be a case of ‘residual doubt’, as

evolved in Ravishankar v. State of Madhya Pradesh18, which is also a

mitigating circumstance to be taken note of by the Court whilst considering

whether the case falls in the category of “rarest of rare cases”. He further

16 AIR 1983 SC 957.

17 (1999) 9 SCC 323.

18 2019 SCC OnLine SC 1290

Page 31
argued that neither the High Court or this Court gave due weightage to

mitigating circumstances such as:

(i) Lack of adequate opportunity to place on record material/evidence of

mitigating circumstances.

(ii) Young age (less than 30 years) of petitioner, and aged parents.

(iii) Absence of any previous criminal history.

(iv) Backward socio-economic background.

(v) Death ought not to be awarded in cases of circumstantial evidence.

59. At this juncture, it is necessary to highlight that the contention of Mr.

Luthra urging that death ought not to be awarded in case of a single dissent,

notwithstanding the opinion of the majority is unsupported in view of more

than one decisions of this Court. In Devender Pal Singh v. State of NCT of

Delhi19 and also in Krishna Mochi v. State of Bihar20, a concurrent Bench

had refused to review the death sentence which had earlier been upheld in

appeal by two out of three judges of this Court. The reliance on

Suthendraraja (supra) itself is erroneous for the proposition relied upon was

delivered in a minority opinion, which was unsupported both by the order of

the Court and also was disagreed with by Quadri J., who noted:

“The ambit of Rule XL(1) of the Supreme Court Rules which provides
grounds for review, as interpreted by this Court in P.N. Eswara
Iyer v. Registrar, Supreme Court of India [(1980) 4 SCC 680] vis-à-

vis criminal proceedings, is not confined to “an error apparent on the
face of the record”. Even so by the process of interpretation it cannot
be stretched to embrace the premise indicated by my learned brother

19 (2003) 2 SCC 501.

20 (2003) 2 SCC 501.

Page 32
as a ground for review. That apart there are two difficulties in the
way. The first is that the acceptance of the said proposition would
result in equating the opinion of the majority to a ground analogous
to “an error apparent on the face of the record” and secondly in a
Bench of three Judges or of greater strength if a learned Judge is not
inclined to confirm the death sentence imposed on a convict, the
majority will be precluded from confirming the death sentence as that
per se would become open to review.

60. Further, even sans the aforesaid decisions, we are not inclined to

accept such a reasoning for it is contrary to the established jurisprudence of

precedents and interpretation of verdicts with multiple opinions. It is settled in

law that dissenting opinions have little precedential value and that there is no

difference in operation between decisions rendered unanimously or those

tendered by majority, albeit with minority dissenting views.

61. Although Mr. Luthra’s contention that the petitioner has not received

adequate opportunity to place material regarding his circumstances is

unsubstantiated, we have nevertheless re-considered sentencing. We have

re-visited the mitigating circumstances against aggravating circumstances, as

well as a report commissioned by this Court during the course of appeal and

submitted by the jail superintendent which reveals that the conduct of the

Petitioner is merely satisfactory and he has not undertaken any study or

anything else to show any signs of reformation.

62. It has been made clear in the preceding parts of this judgment that the

prosecution case has been established through numerous evidences in

addition to there being a clear confession, which proves the Petitioner’s guilt

beyond any residual doubt. Conflicting versions have been deposed by the

Page 33
Petitioner and the defence witnesses, and no explanation to discharge the

onus under Section 106 has been provided. Hence, it is not a case fit for

application of the theory of “residual doubt” as noted in Ravishankar (supra).

Accordingly, even the contention that death ought not to be awarded

considering that the present case is one involving circumstantial evidence is

unfounded. It is no longer res integra that there can be no hard rule of not

awarding death in cases based on circumstantial evidence owing to recent

developments in medical science and the possibility of abuse by seasoned


63. Furthermore, there is nothing to support the characterisation of the

accused as being a helpless, illiterate young adult who is a victim of his socio-

economic circumstances. Far from being so, it is clear through the version of

events that the accused had the presence of mind to craft his own defence

and attempt to retract his confession through an elaborately written eleven

page letter addressed to the Magistrate and had further received adequate

legal representation.

64. Mr. Luthra’s reliance on the retraction letter to contend that in so far as

the statement shows that he stopped the co-accused from committing rape, is

evident of the fact that he has remorse which entitles him to commutation, if

not acquittal, is misplaced. As noted earlier, the retraction was extremely

belated and only a defence to shield himself. Further, medical evidence has

proved that rape was committed on the deceased girl. It is hence factually

incorrect to state that the Petitioner prevented the co-accused from raping the

Page 34
girl and is nothing more than a belated lie at the end of the trial. Hence, the

exculpatory parts ought to be excluded per Nishi Kant Jha v. State of


65. Even observed devoid of any aggravating circumstances, mere young

age and presence of aged parents cannot be grounds for commutation. One

may view that such young age poses a continuous burden on the State and

presents a longer risk to society, hence warranting more serious intervention

by Courts. Similarly, just because the now deceased co-accused

Mohanakrishnan was the mastermind whose offence was comparatively more

egregious, we cannot commute the otherwise barbarically shocking offences

of the petitioner. We are also not inclined to give leeway of the lack of criminal

record, considering that the current crime was not just one offence, but

comprised of multiple offences over the series of many hours.

66. Even if the cases involving confession merit some leniency and

compassion, however, as was earlier noted in our majority opinion, the

attempted retraction of the statement shows how the petitioner was in fact

remorseless. Such belated retractions further lay rise to the fear that any

remorse or repentance being shown by the petitioner now may be temporary

and that he can relapse to his old ways. Irrespective of the underlying reasons

behind such retraction, whether it be the fear of death or feeling that he was

not getting any benefit of his earlier confession, but the possibility of recidivism

21 1969 SCC (1) 347.

Page 35
has only been heightened and we can no longer look at the initial confession

in a vacuum.

67. Rather, the present case is essentially one where two accused misused

societal trust to hold as captive two innocent school-going children, one of

whom was brutally raped and sodomised, and thereupon administered poison

and finally, drowned by throwing them into a canal. It was not in the spur of the

moment or a crime of passion; but craftily planned, meticulously executed and

with multiple opportunities to cease and desist. We are of the view that the

present offence(s) of the Petitioner are so grave as to shock the conscience of

this Court and of society and would without doubt amount to rarest of the rare.

68. Hence, we find that there exist no grounds to review our judgment

upholding conviction and death penalty. The review petitions are accordingly


…………………………….. J.



DATED : 07.11.2019

Page 36



CRIMINAL APPEAL NOS. 1174-1175 OF 2019




I entirely agree and concur with the reasons given by my

brother Surya Kant, J in dismissing the review petitions upholding the

conviction of Manoharan under Sections 302, 376(2)(f) and (g) and

201 of the Indian Penal Code. On the question of sentence, I do not

see any good ground and reasons to review my observations and

findings in the minority judgment. Accordingly, the review petitions

are dismissed.



NOVEMBER 07, 2019.

Page 37

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