REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 168 OF 2008

 ABU THAKIR & ORS. … APPELLANTS

VERSUS

 STATE REP. BY INSPECTOR OF   POLICE, TAMIL NADU … RESPONDENT

JUDGMENT

B. SUDERSHAN REDDY, J.

This appeal by special leave arises out of judgment and  

order  dated  18th December,  2006  passed  by  the  High  Court  of  

Judicature  at  Madras,  whereby  the  High  Court  confirmed  the  

conviction and sentence of the appellants herein under Section  

302 of the Indian Penal Code (IPC) while setting aside conviction  

and sentence under Sections 120B, 148, 341, 147, 302 read with  

Sections 149 and 109, IPC.

2. The facts in brief, according to the prosecution story, are  

that  on  28th March,  2002  one  Murugesan  (deceased)  was  

murdered  at  about  7.30  a.m.  on  the  way  leading  to  

Badrakaliamman temple on Kovai Pudur Road in pursuance of a  

criminal  conspiracy  hatched  by  the  appellants  herein  and  

other accused forming themselves into unlawful assembly so

as to wreck vengeance of the murder that took place on 26th  

March, 2002 of one Sultan Meeran.   Before the incident,  

Kanakaraj (PW 1), brother of the deceased   went to the  

barber shop situated near the place of occurrence to have a  

shave, where his paternal uncle Subramani (PW 4) told him  

that the deceased and some other persons were quarrelling at  

East of Badrakaliamman temple.  Immediately, Kanakaraj (PW  

1), rushed towards the place of occurrence and found the  

deceased  lying  on  the  ground  unconsciously  with  bleeding  

injuries. Gopalakrishnan (PW5) and Rathinasamy (PW 28) who  

were returning from Badrakaliamman temple, on hearing the  

distress noise ran towards the place of occurrence and found  

Murugesan (deceased) lying in a pool of blood.  They told  

Kanakaraj (PW 1) that the assailants had fled away after  

they had attacked the deceased in revenge of earlier murder  

that  took  place  on  26th March,  2002  of  a  member  of  

assailants’  community.  Thereafter  within  ten  minutes  

Parvathy (PW 6), who owns a fruit vending shop near the  

temple, told Kanakaraj (PW 1) that earlier in the morning at  

about 6.30 A.M. she noticed two or three unknown persons  

near her shop in a car and on a scooter and then proceeding  

towards temple.  In the meanwhile, Ganesan (PW 15) reached  

at the spot. Thereafter Subramani (PW 4), uncle of Kanakaraj  

(PW  1),  along  with  Ganesan  (PW  15)  and  others  took  the  

injured (deceased) in his car to the Government Hospital,  

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Coimbatore. En route to the hospital, Ganesan (PW 15) gave  

information  about  the  incident  to  the  concerned  police  

station  over  his  mobile  phone.  The  duty  Doctor  (PW-21),  

after examining Murugesan, declared him dead.   On the basis  

of the information given by Ganesan (PW 15), Akbar Khan,  

Sub-Inspector  of  Police,  Pothanur  Police  Station  (PW  29)  

reached at the hospital at about 8.45 A.M where he came to  

know that Murugesan had already died. He examined Kanakaraj  

(PW 1) and recorded his statement which was registered as  

Crime No. 271/02 (Ex.P.1). Thereafter the first information  

report came to be printed as Ex. P.72.  Consequent upon the  

registration of crime, Ramachandran, Inspector of Police,  

Pothanur  Police  Station  (PW  30)  was  appointed  as  

Investigating Officer who visited the scene of occurrence at  

about  10.00  A.M  on  the  very  same  day  and  prepared  the  

observation  mahazar  (Ex.  P.30),  the  rough  sketch  of  the  

crime scene (Ex.P.74)  and also recovered material objects  

including a knife (MO-7) in the presence of Marudhachalam  

(PW-20) and other witnesses. Thereafter he proceeded to the  

Government Hospital where, in the presence of panchayatdars  

and witnesses, prepared inquest report (Ex.P.73) and gave  

requisition (Ex.P.47) to conduct post mortem. Sundarrajan,  

Professor,  Forensic  Science,  Coimbatore  Medical  College  

Hospital (PW 23) on receipt of Ex. P. 47 conducted post  

mortem (Ex. P. 48) at 12.25 P.M.  and opined that the death  

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was due to haemorrhage and shock resulting from multiple  

stab injuries over chest and corresponding internal injuries  

to heart and both lungs.

3. After  completion  of  the  investigation,  the  police  filed  

charge  sheet  against  the  appellants  and  five  other  co-

accused.  The prosecution in all examined 30 witnesses (PWs  

1 to 30) and got marked 77 documents in evidence.  The  

prosecution also produced material objects which were marked  

as  M.O. 1 to 43.

4. The trial court accepted the prosecution’s case and believed  

the evidence of PWs 2 to 4 and based on their evidence,  

convicted the appellants herein under Sections 302, 120B,  

148, 341, 147, 302 read with Sections 149 and 109, of the  

Indian Penal Code (IPC) and sentenced to life imprisonment  

and various other terms of imprisonment to run concurrently.  

The  trial  Court  also  convicted  the  other  accused  under  

various Sections of the IPC. The trial court held that the  

prosecution proved its case beyond reasonable doubt against  

the appellants and held them guilty of having entered into a  

criminal conspiracy, unlawful assembly and committing murder  

of  the  deceased.  The  High  court,  however,  confirmed  the  

conviction of the appellants only under Section 302, IPC and  

acquitted them of the rest of the charges and completely  

acquitted rest of the accused.

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5. We  have  heard  the  learned  counsel  appearing  for  the  

appellants as well as for the State and perused the material  

available on record.  

6. Shri  N.  Natarajan,  learned  senior  counsel  appearing  on  

behalf of the appellants submitted that the presence of the  

so called eyewitnesses (PWs 2 to 4) at the scene of offence  

is highly doubtful. The submission was, their evidence is  

totally  untrustworthy  and  suffers  from  material  

contradictions. It was further submitted that the theory of  

conspiracy set up by the prosecution was disbelieved by the  

High Court and on the same analogy, the High Court ought to  

have  totally  disbelieved  PWs  2,  3  and  4  and  if  their  

evidence is not taken into consideration, there is no other  

evidence based on which the appellants could be convicted  

for the charge under Section 302, IPC. It was also submitted  

that there is enormous delay in submitting the statements  

recorded under Section 161, Cr.P.C. to the Court since they  

were received by the Court after eleven days of recording  

the statements. The cumulative effect of these factors makes  

the whole prosecution case doubtful and the appellants are  

at least entitled to benefit of doubt.

7. The  learned  counsel  for  the  State  submitted  that  the  

evidence of PWs 2 to 4, is cogent and there is no material  

contradictions  in  their  evidence  even  though  they  were  

subjected  to  lengthy  cross-examination.  All  of  them  have  

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identified the appellants in the test identification parade.  

Their  presence  at  the  scene  of  occurrence  is  very  well  

established by the evidence of Savithri (PW 8), Thangaraj  

(PW 18) and Marudhachalam (PW 20) and there is no reason to  

disbelieve  their  evidence.  One  of  the  important  

circumstances  highlighted  by  the  learned  counsel  for  the  

State was matching of blood group of the deceased with the  

blood found on the M.O. 6 series i.e., weapons used in the  

commission of the offence. Further, the same blood group was  

found  on  the  clothes  recovered  from  the  appellants.  The  

delay in not sending the statements immediately was due to  

the reason that, in quick succession two murders which were  

very sensitive in nature, took place within the jurisdiction  

of the Investigating Officer who was also entrusted with the  

duty to maintain law and order in that area. The submission  

was that mere delay in sending the statements per se would  

not vitiate the entire prosecution case. The counsel further  

submitted that the Courts below did not commit any error or  

illegality in appreciating the evidence. The conviction is  

based on proper appreciation of the evidence and there is no  

reason  or  justification  to  interfere  with  the  concurrent  

finding of facts by this Court, so far as the appellants are  

concerned, in exercise of jurisdiction under Article 136 of  

the Constitution of India.

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8. The  Courts  below  held  that  the  death  of  Murugesan  was  

homicidal in nature.  As per post-mortem report (Ex.P-48),  

the following ante mortem injuries were found on the dead  

body:

1)  Vertically oblique stab injury over front of right  side of chest measuring 5 cms x 2.5 cms x entering the  right thoracic cavity.  The upper outer end of the  wound is 6 cms above and medial to right nipple.  On  dissection  the  wound  passes  backwards,  medially  and  downwards in the right third inter costal space cutting  the inter costal muscles, vessels, nerves and cutting  the fourth rib close to sternum.  Then it has caused a  stab injury in the  underlying anterior aspect of lower  part of upper lobe of right lung measuring 2.5 cms x 1  cm x 1.5 cms and exited out in the inner aspect of  lower part of right lung measuring 2.25 cms x 1 cm.  Then it caused a cut in the right side of front of  pericardium measuring 1.75 cms x 1 cm and then caused a  stab  in  the  anterior  aspect  of  right  ventricle  measuring 1.5 cms x 1 cm x cavity deep.  Pericardial  sac contains 50 ml of blood with clots.  Right pleural  cavity contains 750 ml of blood with clots.  The depth  of the wound tract is about 10 cms.  The margins of the  wound are regular and both ends are pointed.

2)  Transversely oblique stab injury over back of left  side of upper chest measuring 3 cms x 1 cm x entering  the left thoracic cavity.  The lower medial end of the  wound is 4 cms from the middle of T 3 vertebra.  The  wound passes forward, downwards and medially through  the left third inter costal space causing a stab injury  in the posterior aspect of upper lobe of left lung  measuring 2 cms x 1 cm x 2 cms.  The deepest part  ending as a point.  Both ends of the wound are pointed  and the margins are regular.  The length of the wound  tract is about 8 cms left pleural cavity contains 400  ml of blood with clots.  

3)  Vertically oblique stab injury over back of right  side of upper chest measuring 3 cms x 1 cm x entering  the right thoracic cavity.  The upper medial end of the  wound is 1.5 cms from the middle of T 4 vertebra.  The  wound passes downwards, laterally and forwards in the  fourth  right  inter  costal  space  cutting  the  right  fourth rib in the posterior aspect and causing a stab  injury in the middle lobe of right lung measuring 2.5  

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cms x 1 cm x 2 cms and the deepest point ending as a  point.  The length of the wound tract is about 8 cms.  Both ends of the wound are pointed and the margins are  regular.   

4)  Transversely oblique stab injury over back of left  side of upper chest close to midline measuring 3 cms x  1 cm x 3.5 cms deep in the muscle plane.  The lower  inner  end  of  the  wound  is  close  to  middle  of  T3  vertebra.  The wound passes downwards, laterally and  forwards.   Both  ends  of  the  wound  are  pointed  and  margins are regular.

5)  Vertically oblique stab injury just below the right  side of lower lip measuring 1 cm x 0.5 cms through and  through and exiting through the buckle surface of the  lower lip on the right side, wound measuring 0.75 x 0.5  cm.  The wound passes upwards, backwards and laterally.  The length of the wound tract is about 1 cm.  The upper  inner end of the wound is 1 cm right to midline of  chin.  The ends of the wound are pointed (both) and the  margins are regular.

6)   Vertically  oblique  stab  injury  over  the  middle  third of back of left arm measuring 4.5 cms x 2 cms x 6  cms deep in the muscle plane.  The distal outer end of  the wound is 8 cms above left elbow.  The wound passes  upwards, forwards and medially.  Both the ends of the  wound are pointed and margins are regular.

7)  Oblique stab injury over the posterior aspect of  left hip measuring 3 cms x 1 cm x 5 cms deep in the  muscle plane.  Both ends of the wound are pointed and  the margins are regular.  The lower outer end of the  wound  is  7  cms  below  and  behind  the  left  anterior  superior  iliac  spine.   The  wound  passes  forwards,  upwards and laterally.

8) An oblique cut injury over left side of upper lip  measuring 3 cms x 1 cm x 1 cm muscle deep.   

9) An oblique cut injury over left side of lower lip  measuring 4 cms x 1 cm x 1 cm muscle deep.

10) Transversely oblique incised wound over front of  upper  part  of  neck  just  above  thyroid  cartilage  measuring 3 cms x 1 cm x skin deep.

11) Oblique incised wound in the middle of right infra  clavicular region measuring 1 cm x 0.5 cm x skin deep.  

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The upper inner end of the wound is 6 cms from the  medial end of right clavicle.

12) Transversely oblique skin deep incised wounds four  in number in the left sub scapular region measuring 5  cms x 1 cm, 3 cms x 1 cm, 2 cms x 0.5 cm and 1 cm x 0.5  cm.

13) Transversely oblique skin deep incised wound over  upper inter scapular region on the right side measuring  2 cms x 1 cm.   

14) Transversely oblique skin deep incised wound over  the back of right lower chest measuring 2 cms x 0.5  cms.   

15) Vertically oblique skin deep incised wound over the  upper inter scapular region on the left side measuring  4 cms x 0.5 cm.

16) Vertically oblique skin deep incised wound over the  upper inter scapular region on the right side measuring  2 cms x 0.5 cms.

17) Transversely oblique skin deep incised wound over  the back of left side of upper abdomen measuring 2 cms  x 1 cm.

18) Transversely oblique skin deep incised wound over  the dorsum of right wrist measuring 5 cms x 0.5 cm.

19)  Oblique  cut  injury  over  the  dorsum  right  hand  measuring 5 cms x 1 cm x bone deep.

20) Another transversely oblique cut injury over the  dorsum  of  right  hand  close  to  right  index  finger  measuring 3 cms x 1 cm x bone deep.

21) Oblique cut injury over the radial aspect of  right  palm measuring 2 cms x 0.5 cm x 1 cm muscle deep.

22) Oblique cut injury over the medial aspect of lower  third of right thigh 5 cms above right knee measuring 7  cms x 2 cms x 1 cm deep in the subcutaneous plane.  

23) Transversely oblique cut injury over the front of  upper part of left arm 12 cms below the top of left  shoulder measuring 2 cms x 1 cm x 1 cm deep in the  muscle plane.  

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24)  Oblique incised wound over the front of upper part  of left forearm 8 cms below left elbow measuring 3 cms  x 0.5 cm x skin deep.

25)  Abrasions seen in the following regions:

1 cm x 1 cm, 0.5 x 0.5 cm over right side of forehead. 3  cm x  0.25 cm  over right  lateral aspect  of lower  

chest.

2 cm x 1 cm, 0.5 cm x 0.5 cm over dorsum of proximal  

part of right forearm.

2 cm x 1 cm over back of right elbow.

3 cm x 1 cm, 2 cm x 1 cm over lateral aspect of upper  

part of right leg.  

4 cm x 3 cm over lateral aspect of middle third of  

right thigh.

2 cm x 1 cm over the lateral aspect of right hip.

7 cm x 4 cm over the lateral aspect of right gluteal  

region.

3 cm x 1 cm just below left mastoid.

4 cm x 1 cm and 3 cm x 1 cm over left lateral aspect of  

neck.

3 cm x 1 cm over left supra scapular region.

4 cm x 0.5 cm and 1 cm x 1 cm over lateral aspect of  

upper part of left arm.

1 cm x 1 cm over posterior aspect of lower part of left  

arm.

5 cm x 4 cm and 0.5 cm x 0.5 cm over posterior aspect  

of left elbow.

4 cm x 2 cm over lateral aspect of left hip.

Multiple tiny scratch abrasions over left knee, lower  

part of left forearm, right hand, right side of face,  

left side of forehead, dorsum of nose and over front  

of neck.

Other findings:

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Peritoneal cavity empty.

Lungs cut section pale.

Heart all chambers empty.  Coronaries patent.

Hyoid bone intact.

Stomach contains 150 ml of brown colour fluid without  

any specific smell. Mucosa pale.

Small  intestine  contains  20  ml  bile  stained  fluid  

without any specific smell.  Mucosa pale.   

Liver, spleen, kidneys and brain cut section pale.  

Urinary bladder empty.

External  genitalia  nil  injury.   Right  hydrocele  

present.

1. According  to  the  medical  opinion,  the  death  of  

Murugesan was caused due to excessive haemorrhage and  

shock on account of multiple stab injuries over chest  

and corresponding internal injuries to heart and both  

lungs.

2. The short question that arises for our consideration in  

this appeal is as to whether the courts below committed  

any manifest error in relying on the evidence of eye  

witnesses,  Natarajan  (PW-2),  Rajendran  (PW-3)  and  

Subramani  (PW-4)  to  convict  the  appellants  for  the  

charge under Section 302, IPC.

3. Before analysing the evidence of PWs-2 to 4, let us  

have a look at the evidence of Savithri (PW 8) whose  

version  is  important  to  appreciate  the  contention  

regarding the very presence of PWs - 2 to 4 at the  

scene of offence.

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4. PW 8-Savithiri, was residing nearby Badrakaliamman Koil  

at Kovai Pudur Pirivu and her husband is a transport  

operator owning a lorry. It is in her evidence that on  

28th March, 2002 at about 7 a.m. Natarajan (PW 2) along  

with  two  other  persons  came  to  her  house  when  her  

husband was away, stating that they have come to know  

that her husband desired to dispose of his lorry owned  

by him which they wanted to purchase, and therefore,  

wanted  to have  a look  at the  lorry. The  lorry was  

stationed  at  a  distance  of  about  30  feet  from  her  

house.  The  distance  between  the  lorry  where  it  was  

stationed and the footpath  was about 20 to 25 feet.  

That, after finishing her household work, she came out  

of the house at about 9 a.m. and found that there was a  

heavy crowd near the footpath. Meanwhile, her husband  

also reached the home. She was examined on the same  

evening and she narrated the incident to the police.  

She was not subjected to any cross-examination by the  

appellants. Marudhachalam (PW 20) is the husband of  

PW8-Savithiri. It is in his evidence that he was in  

deep financial problems and proposed to dispose of his  

lorry and for that purpose sought the assistance of  

some brokers including that of Natarajan-PW2. He stated  

in his evidence that by the time he returned home at  

about  9  a.m.,  he  saw  that  there  was  a  crowd  at  a  

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distance of 50 feet away from his house. He went to the  

scene of occurrence at about 10 a.m. along with his  

brother Paramasivam. The police were investigating the  

matter and the mahazar (Ext. P30) was prepared in which  

his brother Paramasivam had signed. It is also in his  

evidence  that  his  wife  Savithri  (PW8)  informed  him  

about Natarajan (PW2) and two others came to inspect  

the lorry stating that they were interested to purchase  

the same.

5. Natarajan (PW2), is an automobile broker dealing with  

the sale and purchase of old trucks and cars. It is in  

his evidence that his friend Subramani (PW 4), who at  

the  relevant  time  was  doing  business  in  sale  and  

purchase of tomato in wholesale, intended to purchase a  

lorry  and  in  that  connection  went  to  the  house  of  

Marudhachalam (PW 20), at Kovai Pudur. At that time,  

they have heard noise “ayyo amma” and he along with  

other  two  went  running  there  and  found  that  three  

persons were stabbing the deceased repeatedly and the  

time was 7.00 or 7.30 a.m. It is also in his evidence  

that one among the accused sustained a cut injury on  

his right wrist. On seeing the incident, they ran away  

from the place and went to several places. They have  

reached their house at about 5 p.m. and in the evening  

at about 8.30 p.m., the Inspector of Pothanur police  

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inquired from him as to what he had seen in the morning  

of  that  fateful  day.  His  statement  was  recorded.  

Thereafter,  he  was  required  to  attend  the  

identification parade to be held on 23rd April, 2002 at  

Salem  prison  and  on  that  day,  he  identified  the  

appellants 1 and 2 before the Judicial Magistrate and  

later  identified  appellant  No.3  in  the  Court.  He  

further deposed that he is assisted by  Rajendran (PW-

3)  in  his  business.  It  is  in  his  evidence  that  

Subramani  (PW-4)  came  to  him  to  purchase  a  lorry  

sometime before the incident of the fateful day.  He  

further  stated  that  he  knew  that  one  lorry  was  

available for sale with Marudhachalam (PW-20) and in  

that connection, he along with PWs-2 and 4 visited the  

residence of PW-20 at about 6.00 A.M.  on the day of  

occurrence for the inspection of the lorry. It is in  

his evidence that at about 7.00 or 7.30 a.m. when they  

were  verifying  the  general  condition  of  the  lorry,  

three persons crossed them towards West and ten minutes  

thereafter, they heard a cry in pain from that side,  

which made them to run towards that place, where they  

saw the deceased being stabbed by the accused with the  

knives in their hands. He specifically stated that one  

among the three assailants got a cut injury on the  

right  hand.   It  is  worthwhile  to  mention  that  he  

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asserted in his statement that he could identify the  

three  assailants   which  he  did  in  the  test  

identification parade.

6. The evidence of Rajendran-PW3 and Subramani (PW 4) is  

more or less the same as that of PW2-Natarajan.

7. It  is  in  the  evidence  of  PWs  2  to  4  that  after  

witnessing the ghastly incident of attack, they fled  

away from the scene of offence due to fear. We are  

unable  to  appreciate  the  criticism  levelled  by  the  

learned  senior  counsel  appearing  for  the  appellants  

that if PWs 2 to 4 were really present at the scene of  

occurrence, nothing prevented them from informing the  

police.   The  response,  behavioural  patterns  of  

individuals in such a situation differs from person to  

person and it cannot be said that response of every and  

any human being would be similar on such occasions. May  

be  PWs  2  to  4,  were  reeling  under  shock  and  

nervousness. They were roaming here and there and as is  

evident from their evidence, they have reached their  

respective houses only in the evening after 5 p.m. The  

further criticism was that they were examined only in  

the evening of 28th March, 2002 and there is no reason  

offered by the I.O. for not examining them immediately  

but only in the night of 28th March, 2002. Be it noted,  

there was no question put in the cross-examination to  

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PW30-Investigating Officer, as to why he did not chose  

to examine PWs 2, 3 and 4 immediately at the time of  

inquest or thereafter. The mere fact that they were not  

examined during the inquest is of no consequence. It is  

nobody’s case that they were present at the time of  

inquest and yet their statement was not recorded by the  

I.O. On these grounds, the presence of PW2 at the scene  

of occurrence cannot be disbelieved. That apart, the  

evidence of PWs 2 to 4 that the appellants are the  

assailants, gets support from the evidence of PWs 5 and  

28. While PWs 5 and 28 were returning after worship at  

the temple, they heard a hue and cry which made them to  

run towards the scene of offence, where they saw three  

persons running away from the scene of offence. PW5, in  

the  test  identification  parade,  identified  appellant  

No.2. PW28 (Rathinasamy), whose evidence is more or  

less same as that of PW5, had also identified appellant  

Nos. 1 and 2 in the test identification parade held on  

23rd April, 2002. It is in the evidence of PWs 5 and  

28, that they have seen Murugesan (since deceased) just  

crossing  the  temple  while  they  were  going  into  the  

temple  to  offer  prayers.  There  is  no  reason  to  

disbelieve the evidence of PWs 5 and 28 that they have  

seen  all  the  three  assailants,  namely,  appellants  

herein escaping from the scene of offence. They are all  

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independent  witnesses,  whose  evidence  cannot  be  

rejected on any ground whatsoever.

8. There is no reason to reject or disbelieve the evidence  

of  Gopalakrishnan  (PW-5)  and  Rathinasamy  (PW-28)  

altogether  as  both  of  them  gave  similar  version  in  

their evidence. Gopalakrishnan (PW-5) who is a resident  

of Palakadu-Coimbatore road at Kovai Pudur Pirivu road,  

deposed in his testimony that at about 7.15 A.M. he  

went  to  Badrakaliamman  temple  for  worshipping  on  

28.3.2002 and at the same time Rathinasamy, who is also  

a  resident  of  the  same  locality  came  to  the  said  

temple. He further stated that when both of them were  

returning after worship, Murugesan (deceased) was found  

crossing the temple.  It is in his evidence that at the  

same time they heard the accused shouting “yesterday  

you closed one Sultan Meeran, as a retaliation we are  

closing you now”. On hearing the said dialogue, they  

rushed  towards  the  place  of  occurrence  and  found  

Murugesan lying on the ground in a pool of blood while  

the assailants were running towards South of the scene  

of occurrence. He further stated in his evidence that  

on seeing the said Murugesan lying in a pool of blood,  

they were shocked and stood there itself for a while.  

He knew that the deceased Murugesan belonged to RSS and  

therefore,  he  alongwith  Rathinasamy  (PW28)  were  

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proceeding to inform Ganesan (PW 15) who was in charge  

of BJP party in the area and found that Ganesan (PW 15)  

was  coming  in  the  opposite  direction.  Two  or  three  

persons came running along with Ganesan and all of them  

took the injured Murugesan in a car to the hospital.  

Subramani (PW 4), uncle of Murugesan was one amongst  

them.

9. Now  we  proceed  to  consider  the  submission  of  the  

learned senior counsel that the statements of PWs 2 to  

4  (eyewitnesses),  though  purported  to  have  been  

recorded  on  29th March,  2002,  had  reached  the  Court  

only  on  11.4.2002  which  according  to  him  makes  the  

whole  prosecution  story  doubtful.  In  fact,  PW30-the  

Investigating Officer explained that in the case of  

murder of Sultan Meeran on 26th March, 2002, and the  

murder of Murugesan (deceased) on 28th March, 2002 in  

succession,  the  entire  city  of  Coimbatore  and  

surrounding areas were in a highly disturbed state and  

widespread  bandobasth was  arranged  in  surrounding  

areas. Adverting to this aspect of the matter, the High  

Court  in  clear  and  categorical  terms,  upon  

reappreciation of the evidence, held that in such a  

situation,  no  one  could  find  fault  with  the  

Investigating Officer in not sending the statements of  

PWs 2, 3 and 4 to the Court before 11th April, 2002.  

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Mere delay in sending the statements of PWs 2 to 4 per  

se would not make their evidence unacceptable unless  

something glaring is brought to our notice to doubt  

their very presence at the scene of offence. As rightly  

pointed out by the High Court, the evidence of PWs 2 to  

4 is so clinching, wherein they have stated in clear  

and  categorical  terms  that  three  persons  joining  

together stabbed one individual. That portion of the  

evidence  remains  unshaken.  It  is  true  that  the  

assailants were not previously known to PWs 2 to 4. But  

they  have  later  identified  the  appellants  as  the  

persons who stabbed the deceased.

10. Learned senior counsel relied upon the judgment of this  

Court in Thulia Kali Vs. The State of Tamil Nadu1 and  

Marudanal Augusti Vs. State of Kerala2 in support of  

his submission that the delay in sending the statements  

recorded under Section 161, Cr.P.C. to the Court is  

fatal to the prosecution’s case. Thulia Kali deals with  

importance of timely despatch of the first information  

report which is an extremely vital and valuable piece  

of  evidence  for  the  purpose  of  corroborating  oral  

evidence adduced at the trial. In  Marudanal Augusti,  

this Court on the facts held that there was a delay of  

as many as 28 hours in submitting FIR to the Special  

1 (1972) 3 SCC 393 2 (1980) 4 SCC 425  

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Magistrate  which  remained  unexplained  by  the  

Investigating Officer in spite of being questioned. The  

Court came to the conclusion that there was no proper  

explanation as to why there was delay in sending the  

FIR to the Court. We fail to appreciate as to how those  

judgments would help the defence in this case since  

there is no delay in sending the FIR in the present  

case. There is a delay in sending the statements of PWs  

2 to 4 recorded under Section 161, Cr.P.C. There is a  

clear  explanation  available  on  record  that  the  

Investigating Officer was also in charge of maintaining  

law and order in the area that got vitiated after two  

murders in succession leading to a lot of commotion and  

communal  strife.  There  is  no  reason  to  reject  the  

explanation as to why the statements recorded under  

Section 161 Cr.P.C. could not be promptly despatched to  

the  Court.  It  was  obviously  for  the  reasons  beyond  

control  of  the  Investigating  Officer.  Nothing  is  

further suggested to accept the theory propounded by  

the learned senior counsel. It is nobody’s case that  

such statements were not recorded by the Investigating  

Officer at all. The suggestion made in this regard to  

PWs 2 to 4 was denied by them.

11. The learned senior counsel placed heavy reliance on  

judgment  of  the  Madras  High  Court  in  Karunakaran  

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Jabamani  Nadar  In  re.3 where  the  Madras  High  Court  

underscored the importance of speedy despatch of  the  

documents, such as the original report, the printed  

form of FIR, inquest report and statement of witnesses  

recorded during inquest and the statements of witnesses  

recorded under Section 161(3) of Cr.P.C. There is no  

quarrel with that proposition and the importance of  

requirement of sending the vital documents to the Court  

without  any  delay.  But  the  delay  may  occur  due  to  

variety of facts and circumstances. Delay in despatch  

of the said documents by itself may not be fatal to the  

prosecution in each and every case. The question as to  

what  is  the  effect  of  delay  in  sending  the  vital  

documents to the Court may have to be assessed and  

appreciated  on  the  facts  and  circumstances  of  each  

case. It is not possible to lay down that delay in  

despatch of the vital documents in each and every case  

defeats the prosecution’s case.

12.We do not find any material on record to accept the  

submissions made during the course of hearing of this  

appeal that PW 20, did not own any lorry with him so as  

to be sold and the said lorry was not stationed nearby  

the scene of occurrence. We do not find any reason to  

disbelieve the statement of PWs 8 and 20 in this regard  

which is clear, categorical and forthcoming which we  

3 1974 L.W.(Crl) 1190

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have  discussed  in  the  preceding  paragraphs.  The  

submission is accordingly rejected.

13. We may have to deal with yet another submission made by  

the learned senior counsel for the appellants that the  

investigation was not fair as there were many missing  

links in the process of investigation. This submission  

was made by the learned counsel contending that the  

investigation  does  not  reveal  as  to  how  the  

Investigating Officer came to know about the presence  

of  PWs  2  to  4  at  the  scene  of  occurrence  and  for  

recording their statements in that regard. This Court  

in State of Karnataka Vs. K. Yarappa Reddy4 held that  

“even  if  the  investigation  is  illegal  or  even  

suspicious the rest of the evidence must be scrutinized  

independently  of  the  impact  of  it.  Otherwise  the  

criminal  trial  will  plummet  to  the  level  of  the  

investigating  officers  ruling  the  roost.  …  Criminal  

justice should not be made a casualty for the wrongs  

committed by the investigating officers in the case. In  

other  words,  if  the  court  is  convinced  that  the  

testimony of a witness to the occurrence is true, the  

Court is free to act on it albeit the investigating  

officer’s suspicious role in the case”. The ratio of  

the judgment in that case is the complete answer to the  

4 (1999) 8 SCC 715

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submission made by the learned senior counsel for the  

appellants.

14.One more submission of the learned senior counsel was  

that the prosecution failed to establish the motive for  

committing the crime by the appellants. In the light of  

the direct evidence of PWs 2 to 4, and 8 and 20, the  

motive part has no significance. Even otherwise there  

is enough material available on record in the present  

case that the motive for the present murder was in  

retaliation  to  the  murder  of  one  Sultan  Meeran  

allegedly by a group of persons belonging to an outfit  

of which the deceased was stated to be a member.

15.We do not find any reason whatsoever to interfere with  

the concurrent finding of fact arrived at by the Courts  

below  in  order  to  convict  the  appellants  for  the  

offence punishable under Section 302, IPC. We do not  

find  any  reason  or  justification  to  disbelieve  the  

evidence of PWs 2, 3 and 4 along with the evidence of  

PWs  8  and  20  and  the  medical  evidence.  Once  the  

evidence of these witnesses is found acceptable, the  

inevitable consequence is to confirm the conviction of  

the appellants under Section 302, IPC. The High Court  

in  its  elaborate  judgment  critically  assessed  and  

analyzed every nuance of the evidence and found a clear  

case against the appellants. The reappreciation of the  

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evidence by the appellate Court did not result in any  

manifest injustice. We have looked into the evidence to  

satisfy ourselves as to whether the Courts below have  

committed  any  manifest  error  in  appreciating  the  

evidence available on record and on such scrutiny, we  

find that the Courts below did not commit any error  

whatsoever  in  accepting  the  evidence  available  on  

record.  In  the  circumstances,  we  hold  that  the  

appellants  miserably  failed  to  make  out  any  case  

requiring our interference under Article 136 of the  

Constitution.

16.We accordingly find no merit in the appeal and the  

same is accordingly dismissed.

.........................J. (B. SUDERSHAN REDDY)

.........................J. (SURINDER SINGH NIJJAR)

New Delhi, April 19, 2010.

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