Alagarsamy Vs State By Deputy Superintendent of Police

“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1984 OF 2008

Alagarsamy & Ors. …. Appellants

Versus

State By Deputy Superintendent of Police …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This appeal is at the instance of the appellants, namely,

Alagarsamy, original accused No. 1 (A-1), Ponniah, original accused No. 3

(A-3), Jothi, original accused No. 4 (A-4), Manikandan, original accused

No. 5 (A-5), Andichami, original accused No. 7 (A-7), Manoharan, original

accused No. 8 (A-8), Renganathan, original accused No. 9 (A-9),

Markandan, original accused No. 11 (A-11), Rasam @ Ayyavu, original

accused No. 12 (A-12), Sakkaraimurthy, original accused No. 13 (A-13),

Alaghu, original accused No. 14 (A-14), Rajendran, original accused No.

15 (A-15), Sekar, original accused No. 18 (A-18), Chockanathan, original

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accused No. 20 (A-20), Selvam, original accused No. 21 (A-21), Chinna

Odugan @ Chinna Ulunthan, original accused No. 22 (A-22), Ramar,

original accused No. 40 (A-40). All these accused persons were convicted

by the Trial Court, whose judgment was confirmed by the High Court. All

of them were convicted for the offences under Section 302 read with

Section 34 of the Indian Penal Code (hereinafter called “IPC” for short)

and/or Section 149 IPC alongwith other persons on the allegation that they

had committed murder of as many as six persons belonging to Adidravida

(a Scheduled Caste) community on 30.6.1997. Basically, the charge

against all the 40 accused persons, who were tried, was that they were

inimical with the persons of Adidravida community in the Village

Melavalavu, as there was an election dispute. This dispute arose on

account of the election of Adidravida community person being elected to

the post of Pradhan (President), which was not liked by the Caste Hindus.

Ultimately, in order to wreck avenges against the people of Adidravida

community, an unlawful assembly was formed near a shop in the Village

Melavalavu and the persons belonging to Adidravida community were

attacked. The further allegation is that some of the Adidravida community

persons including the Pradhan and other office bearers had gone to

Madurai to meet the Government officials in pursuance of their demands

and while they were returning by bus, some of the accused persons

entered into the bus, armed, and when the bus came in the Village

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Melavalavu near Todi Shop, accused persons who had travelled in the bus

and others who had gathered near the spot, assaulted the persons

belonging to Adidravida community including the Pradhan and the other

office bearers of the Panchayat and murdered as many as six persons

belonging to Adidravida community. Various charges were levelled

against 40 persons including the charge under Sections 148 IPC, 302 read

with Section 149 IPC, 302 read with Section 34 IPC, 302 substantively, as

also the charge under Section 3 (1) (x) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989. As many as 17

persons were held guilty by the Sessions Judge under Sections 148 IPC

and also under Section 302 read with Section 34 IPC alongwith offences

under some other Sections. Three appeals were filed at the instance of

the accused persons. All the appeals were disposed of by a common

judgment of the High Court, dismissing all the appeals and that is how the

appellants are before us by way of the present appeal, challenging their

conviction and the sentences awarded by the Sessions Judge and

confirmed by the High Court.

2. Briefly stated, the prosecution case was as follows.

3. The gory incident which took place, had its seeds sown in mid 1996,

when Melavalavu Village Panchayat was declared to be reserved for the

Scheduled Caste people. This was not liked by the caste Hindus of the

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Village, generally belonging to Ambalakara community and thus, an

inimical feeling was being nurtured by the people of this community against

the Adidravida persons. So much so that when the elections were

declared in the year 1996, some of the houses belonging to the members

of the Scheduled Caste were burnt. The election was conducted on

31.12.1996 and one Scheduled Caste candidate namely Murugesan

(Deceased No. 1) was elected as President of Melavalavu Panchayat.

Even before this election, twice the election had to be cancelled, as on

both occasions, the whole election process was thwarted by the caste

Hindus.

4. On the fateful day, Murugesan (deceased No. 1), Mookan, Vice

President (deceased No. 2), Chelladurai (deceased No. 5), Sevagamoorthi

(deceased No. 3) and some others had gone to Collector’s Office, Madurai

for claiming compensation for the damage caused to the houses of three

persons, which houses were burnt. They could not meet the Collector, as

he was not available, therefore, one Kanchivanam (PW-12) was asked to

wait in their office and the others boarded the bus from Madurai.

Prosecution alleged that one Krishnan (PW-1) was also travelling by the

said bus. When the bus reached Melavalavu, one Kumar (PW-2) and

Chinnaiya (PW-3) got at the bus and at that time, 5 accused persons,

namely, Algarsamy (A-1), Doraipandi (A-2), Jothi (A-4), Manikandan (A-5)

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and Manivasagam (A-6) boarded the bus. Prosecution alleges that they

were armed. When the bus reached Village Melavalavu, Doraipandi (A-2)

shouted at R. Nagaraju (PW-14), the Driver, to stop the bus. The Driver

(PW-14) stopped the bus and at that time, all the accused persons

surrounded the bus with weapons. They started murderous assault on

Murugesan (deceased No. 1) and others, who were in the bus, as also

some others, who were in the crowd. It has come in the evidence that

Murugesan was beheaded and his head was carried by Algarsamy (A-1).

This incident was seen by Krishnan (PW-1), Kumar (PW-2) and

Chinnaiyya (PW-3), who were also injured, having been assaulted by

some of the accused persons. The incident was also witnessed by

Moorthy (PW-4), Periyavar (PW-5), Palani (PW-6), Ganesan (PW-7),

Yeghadesi (PW-8), Mayavar (PW-9), Kalyani (PW-10) and Karuppan (PW-

11). Grief and fear stricken Krishnan (PW-1), Kumar (PW-2) and

Chinnaiyya (PW-3), who were injured, managed to reach Melur

Government Hospital on bicycle. They were given first-aid and were

provided transport for being taken to Madurai Government Hospital. The

incident came to the knowledge of Rajshekharan (PW-47), Inspector of

Police at about 5.30 p.m. He reached the Hospital, recorded the statement

of Krishnan (PW-1) and on the basis of the same, registered Crime No.

508 of 1997 for offences under Sections 147, 148, 341, 307 and 302 IPC,

as also under Section 3(1)(x) of the Scheduled Castes and Scheduled

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Tribes (Prevention of Atrocities) Act, 1989. He dispatched the copies of

the First Information Report (FIR) to the Judicial Magistrate, Melur, as also

to his superior Dy. Superintendent of Police, District Crime Branch,

Madurai. The DSP took up the investigation, formed a special team and

reached the spot without wasting any time and commenced the

investigation. Inquest Panchanamas and Spot Observation Panchanamas

were prepared. Blood stained articles were seized from the bus and from

other places. The bodies were also sent for Post Mortem. The blood

stained articles were sent to the forensic science laboratory and after

completing the investigation, the chargesheet came to be filed on

25.9.1997. At the Trial, as many as 50 witnesses were examined and 121

documents were got proved. 55 material objects were also produced. 2

defence witnesses were examined and as many as 19 documents were

got proved by the defence, they being D-1 to D-19. The accused pleaded

ignorance, however, as has been stated, as many as 17 persons came to

be convicted by the Sessions Judge. Their appeals were also dismissed

by the High Court. Before the High Court, some private individuals, who

were the witnesses, also had filed the revisions, challenging the acquittal

of few accused persons. However, the High Court, by a common

judgment, dismissed those revisions. Thus, we are left with the appellants

before us.

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4. Shri Altaf Ahmad, Learned Senior Counsel led the arguments on

behalf of the appellants, while Shri Kanagaraj, Learned Senior Counsel

represented the State.

5. The Learned Senior Counsel appearing on behalf of the appellants,

firstly, pointed out the order passed by this Court, whereby the prosecution

was directed to produce the FIR Book of the Melavalavu Police Station, in

which the FIR dated 30.6.1997 relating to Crime No. 508 of 1997 was

reflected. He then pointed out that the prosecution had not produced the

said FIR Books nor was there any plausible explanation for this non-

compliance. Based upon this argument, Shri Altaf Ahmad further invited

our attention to the two reports, they being, firstly, the report by Tahsildar

to Collector of the said date and the second being the one authored by

District Collector, Madurai sent to Secretary, Public Law and Order

Department, Secretariat at Chennai. Our attention was specifically invited

to the fact that though the Crime No. 508 of 1997 was reflected in the said

reports and though all the facts were also reflected regarding the ghastly

incident alongwith the names of the deceased persons and injured

persons, yet the names of the accused persons against whom the FIR was

filed, were conspicuously absent. We were taken through the reports,

particularly, report of the Tahsildar to Collector being Exhibit D-13 and it

was pointed out by the Learned Senior Counsel that there was a graphic

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description of the incident in that report. The background of the incident

was also reflected, but excepting the name of Duraipandi (A-2) no other

name of the accused persons was mentioned. The other accused persons

were referred to as “Fourteen others”. The Learned Senior Counsel

pointed out that in Exhibit D-18, which was a report from the Collector to

the Secretary and D-19, which was a second report from the Collector to

the Secretary, reporting the law and order situation in Melavalavu on

account of this incident, the names of the accused were not to be seen.

The Learned Senior Counsel also invited our attention that it is only in the

report dated 17.7.1997 that the Tahsildar has reported the names of as

many as 34 accused persons. From this, the Learned Senior Counsel

suggests that, in fact, the names of the accused persons were not known

to anybody even on that day nor were they reported to the Police Station.

The Learned Senior Counsel, therefore, mocked at the prosecution’s claim

that the names of the accused persons or as the case may be, majority of

them, became known to the investigating agency immediately after the

incident through the statement of Krishnan (PW-1). Our attention then was

invited to the evidence of Krishnan (PW-1), the injured eye-witness,

Rajshekharan (PW-47), the Police Officer, who got the offence registered

in the Police Station and Nambi (PW-18), the Tahsildar, who was the

author of the report regarding the law and order situation in Village

Melavalavu. From this, the Learned Senior Counsel urged that the basic

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story, as revealed in the so-called FIR, Exhibit P-53 was itself shrouded

with mystery and there was absolutely no justification for accepting the

claim of prosecution that the names of the accused persons became

available to the investigating agency almost immediately. The Learned

Senior Counsel, therefore, urged that under such circumstances, the FIR

was liable to be thrown out on this ground alone and the FIR had lost all its

credibility, particularly, because the deliberate attempt on the part of the

prosecuting agency to suppress the FIR Book, which though demanded

right from Trial Court to this Court, was not supplied by the prosecution nor

was its mysterious absence explained.

6. As a sequel to his argument, it was urged that once the FIR itself

becomes a doubtful document, then the whole prosecution becomes

doubtful and it was obvious that the names of the accused persons

surfaced based on imagination. It was further pointed out that the First

Information Report was inconsistent with the station diary as the serial

number given to that FIR did not tally. In this behalf, our attention was

drawn to crime Nos. 506-507 which though earlier, bore subsequent

numbers as compared to crime No. 508. It was also pointed out that the

Tahsildar, Shri K. Pullani who had made the report Ex. D-13 had turned

hostile, so also the so-called author of the FIR, Krishnan (PW-1) also

turned hostile was of no use. The Learned Counsel also pressed into

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service the writ petition filed by Krishnan (PW-1) wherein he had alleged

that the real culprits were left out and were never proceeded against by the

investigating agency, meaning thereby the present accused persons had in

fact nothing to do with the incident. Our attention was also drawn to the

evidence of R. Santhanakrishnan (PW-13), the bus Conductor and R.

Nagaraju (PW-14), who was the Driver. It was pointed out that these two

persons claimed that they had reported the incident much earlier in the

same police station. On the basis of this material, the Learned Counsel

contended that the whole prosecution case was liable to be thrown as

being suspicious and the evidence was bound to be rejected and the

Courts below had erred in relying upon the prosecution witnesses and

convicting the accused persons. The Learned Counsel heavily relied on

the judgment reported as Sevi & Anr. v. State of Tamil Nadu in 1981

Suppl. SCC 43 wherein this Court had thrown the prosecution case on the

basis of non-production of the FIR Book.

7. As against this Learned Senior Counsel Shri Kanagraj took us

through the judgment of the Courts below as well as the relevant evidence.

According to Shri Kanagraj, the incident had taken place in broad day light,

wherein as many as six dalit persons were slaughtered and, therefore, the

eye witnesses had the full opportunity to watch the gory incident. He

pointed out that though some witnesses had turned hostile, yet there was

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enough evidence on record to convict the accused persons and they were

rightly convicted. According to Learned Senior Counsel, the FIR was not a

be-all and end-all of the matter and in fact, the report made by the

Tahsildar to the Collector and the two reports made by the Collector to the

Secretary were irrelevant and the whole FIR could not be tested on the

backdrop of those reports. He pointed out that these two officers

(Tahsildar and Collector) had nothing to do with the investigation and

merely because the names of the accused persons were not mentioned in

these reports, it did not affect the prosecution case at all. The Learned

Senior Counsel also pointed out further that the situation was tense,

inasmuch as, six dalit persons had been slaughtered, due to which there

was widespread violence in the village and under such circumstances, if

the FIR was recorded in some other book than the regular book, that by

itself, did not diminish the value of the FIR. It was further pointed out that

the evidence of Krishnan (PW-1) was not liable to be thrown altogether,

merely because he had turned hostile and it was clear that he turned

hostile only at the last stage of cross-examination and, therefore, the part

of the evidence was rightly accepted by the Trial Court and the Appellate

Court.

8. Shri Kanagraj, the Learned Senior Counsel did fairly accept that the

FIR book could not be produced, however, he pointed out that there was

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an affidavit on record, explaining that in spite of the honest efforts, the said

FIR book could not be found and that it could have been mis-placed.

However, merely because the FIR book was not found, that by itself did

not diminish the evidentiary value of the evidence of eye-witnesses, few of

whom were also the injured witnesses. The Learned Senior Counsel

invited our attention that the prosecution had fully established the presence

of the accused-appellants and their actual participation in the ghastly

incident. The prosecution had also examined the doctors, who had proved

the injuries of the injured witnesses to suggest that these injured witnesses

were actually injured in the incident, thus there presence could not have

been doubted.

9. Lastly, the Learned Senior Counsel urged that the view taken by this

Court in Sevi & Anr. v. State of Tamil Nadu (cited supra) was restricted

to the facts in that case. According to the Learned Senior Counsel, it was

undoubtedly true that FIR book was an important document and it was

correct that the said FIR book would have been extremely important in

deciding upon the genuineness of the FIR in this case, yet merely because

the said book could not be made available, that by itself, would not result in

the whole prosecution case being thrown out. Learned Senior Counsel

was at pains to point out that the Court in the above cited decision had

disbelieved the evidence of the eye-witnesses on the ground that they

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were partisan witnesses. The Court had also commented upon the

dramatic nature of the evidence of witnesses and the case of the

prosecution. According to Learned Senior Counsel, such was not the

situation in the present case and the evidence was not only credible but

unmistakably pointed out to the guilt of the accused persons. Learned

Senior Counsel, therefore, contended that it was not possible to throw the

whole prosecution case for the failure of the prosecution to produce the

FIR book. He, however, pointed out that the accused persons were rightly

convicted and the Trial Court and the Appellate Court had properly

appreciated the evidence of the prosecution and convicted the accused

persons.

10. On these rival contentions, it is to be seen whether the whole

prosecution case is liable to be discarded on the basis of the

aforementioned irregularities, which mostly pertain to the FIR. The

importance of FIR cannot be underestimated, as it is first version, on the

basis of which the investigation proceeds. This Court, has from time to

time, emphasized the importance of the FIR and as such, there can be no

question about the necessity to examine the credibility of the FIR. In the

present case, by its order dated 8.3.2007, this Court held that :-

“The respondent State is directed to place before this Court FIR Diary within two weeks. Post the matter after two weeks for final hearing on any non-miscellaneous day.”

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This was obviously on the prayer to that effect made by the defence,

inasmuch as the defence, all through contended that everything was not

alright with the document of FIR. It was the basic contention of the

defence before the High Court, as also before us that the FIR in this case

was not a genuine document. This was based on the contention that the

FIR Book was not made available to the defence, though was asked for.

Section 154 (1) Cr.P.C. provides that the substance of FIR, when it is

registered, has to reflect in the FIR Book maintained by the Police Station.

Our attention was drawn to Exhibits D-9 and D-10, bearing Crime No. 506

of 1997 and Crime No. 507 of 1997 respectively and it was pointed out that

they were given the numbers 614642 and 614643 respectively. It was

then pointed out by the Learned Senior Counsel for the appellants that

Crime No. 508 of 1997, vide which the present FIR was registered,

however, bears No. 610327 and, therefore, according to the defence, it is

obvious that the FIR in this case was not taken in the regular FIR Book.

According to the defence, this is the first suspicious circumstance. The

Learned Senior Counsel suggested that the real FIR might have been

suppressed and in its place, the present FIR might have been substituted.

All this is on account of the circumstance that in the present FIR, on the

basis of which the present prosecution has proceeded, the names of 34

accused persons are reflected and the present appellants’ names are

found in those 34 accused persons. Perhaps that is why the Court had

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ordered that “this diary of FIR, or as the case may be, FIR, to be produced

before us”.

11. Shri Kanagaraj, Learned Senior Counsel for the respondent State,

however, very frankly and fairly admitted that the said FIR Book is not

available. Our attention was invited to the Counter Affidavit placed on

record, sworn by one S. Maran, working as Dy. Superintendent of Police,

Melur Police Sub Division, Madurai District, Tamil Nadu, wherein the

Deponent has referred to such mix up of the numbers and in his reply to

the Ground No. XXX and XXXI, pointed out that Exhibit P-53, which is the

present FIR, was the only FIR in this case. The Affidavit further goes on to

say that the Serial number of the FIR has also been proved. However, the

Deponent asserts that merely because the preceding Crime Numbers do

not tally, it cannot be concluded that the earlier FIR has been burked. It is

then pointed out in that affidavit that Krishnan (PW-1), who is the author of

the FIR, though had turned hostile, had not denied lodging of complaint to

the Police by him, marked as Exhibit P-1 and this is the basis of the printed

FIR (Exhibit P-53), which bore S.No. 610327. It is then asserted that

though Exhibit D-9 and D-10 carried out S.Nos. 614642 and 614643, that

by itself, did not falsify the prosecution case, since Krishnan (PW-1) was

not confronted with this position that he had given any other FIR than the

one which has surfaced in this case. On this basis, Shri Kanagaraj,

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Learned Senior Counsel for the respondent suggested that because of the

prevailing tension and the terrible chaos, which had been caused due to

slaughtering of 6 Dalits and the further violence which followed the

unfortunate incident, the Investigating Officer might have used a different

Book for recording the present FIR. The Learned Senior Counsel argued

that the concerned FIR is based on complaint Exhibit P-1, which was given

to Rajshekharan (Investigating Officer) (PW-47) only in the hospital. When

we see the original FIR, it is apparent that the date and time of information

mentioned in the same is 30.6.1997 at 20.00 Hrs., whereas when we see

the original complaint, it is recorded at 18.30 Hrs. in Madurai Rajaji

Hospital and is sent to the Melur Police Station at 20.00 Hrs. when the

offence is registered. It is a long complaint, in which Krishnan (PW-1) has

specifically spoken about the attack at one place. It is stated in the

complaint that:-

“When that Bus stopped at Melur Bus Stand, the Ambalakara

community people of Melavalavu Doraipandi, Jayaraman, Ex.

President Alagarsamy, Ponniah, Muthuvel and Jothi of

Nagappanpaddi, Manikandan and our community people Kumar,

Chinniah boarded in that bus. When the bus was nearing the

Kallukadai Medu Bus Stop, one Doraipandi was standing and

shouting near the seat of the driver. The driver stopped the bus.

About 40 persons under the leadership of one Ramar, Panchayat

President of Sennagarampatti stood around the bus with aruval and

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knife with them. Alagarsamy who was in the bus, questioned

Murugesan by saying “you down caste fellow need the President

Post and compensation” and stabbed in the shoulder of Murugesan

with a lengthy knife. Ourselves, the injured Murugesan and the

passengers scattered, deboarded from the bus and ran away.

Alagarsamy who was standing in the backside steps held the head

of Murugesan and cut on his neck and head repeatedly. The head

of Murugesan was beheaded. Ramar hacked on the left side head

of Raja. Jothi chased Mookan with aruval in the field side.

Manikandan stabbed in the left side of the neck and left hib of

Chelladurai. One Manivasagam of Malamapatti hacked in the back

portion of the neck and in the right side ear of Sevugamoorthy.

Sevugamoorthy fell down with alarming sound. Ponniah hacked on

the ear and neck of Boopathy. Jayaraman stabbed in the stomach

of Boopathy. Doraipandi hacked me in the right shoulder in the back

side. Manivasagam, Andichamay, Manoharan, Ranganathan,

Alagarsamy, Manoharan, Dinakaran, Markandan, Rasam @ Ayyavu,

Sarkaraimoorthy, Alagu, Rajendran, Baskaran, Karanthamalai,

Sekar, Tamilan, Selvam, Chinna Odungan, Chockanathan,

Elavarsan, Amblam, Sethu, Kalangiam, Mani, Sevugaperumal and

10 other unidentifiable persons were there and rounded up the bus

with lethal weapons. They assaulted Kumar and Chinniah and the

above said injured persons with aruval and patta knife repeatedly.

Alagarsamy holding the head of Murugesan, ran away to the field of

one Paganeri Chettiar in the western side. The persons who were

with lethal weapons threatened one Periyavar, Egathesi, Mayavar,

Kalyani, Karuppan and the people from other community by saying

that we will kill you if you come closer to us and to run away back.

The persons who were having the lethal weapons went towards the

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western side. The Driver and Conductor of the bus who got afraid of

the incident took the vacant bus towards Melur.”

12. Thus, it is obvious that the witness had lodged a complaint with

Rajshekharan (PW-47) with this graphic description of the assault. The

witness himself was injured and with great difficulty, had gone to the

hospital on a bicycle. When we visualize the whole scene, it is obvious

that the fear-stricken witness, who had seen 6 persons being slaughtered

ruthlessly, had with great difficulty managed to run away in an injured

condition to the hospital and getting the cue of the whole incident, the

Investigating Officer went and recorded his complaint there in the hospital

itself barely within one and half hours from the incident. That certainly

would have taken some time and without wasting any time further, the said

FIR was sent not only to the Police Station, but the copies thereof were

sent immediately to the Magistrate. The sending of the FIR to the

Magistrate could not be disputed by the defence either before the Trial and

Appellate Court or even before us. Therefore, thought from any angle, it

cannot be imagined that in such a short time, a fake FIR can be prepared

with graphic description, not only of the incident, but the occurrences which

took place prior to the incident and subsequent thereto also, with the

names of the accused persons, the weapons handled by them and the role

played by them, individually, as well as, collectively. We have very

carefully seen the evidence of Krishnan (PW-1). We do not find in his

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evidence, any suggestion that he had not made the said complaint to

Rajshekharan (PW-47) in the hospital. There can be no dispute that the

witness, at the fag end of his evidence, was declared hostile. There can

also be no dispute that after the evidence commenced, he went to Madras

and also filed a Writ Petition. We shall consider that part of the evidence in

the later stage of this judgment, but the fact of the matter, which emerges

is that the witness had certainly written the complaint, duly signed by him,

which complaint, without any waste of time, was sent to the Police Station,

on the basis of which the printed FIR was registered and then a copy

thereof was sent to the Magistrate instantaneously. It completely rules out

the FIR being a bogus document or a doctored document. We have

already referred to an affidavit of Dy. Superintendent of Police, Melur

Police Sub Division, Madurai District, Tamil Nadu, who has given his

reasons. However, we have also another affidavit on record, explaining

that the said FIR Book was lost and was not traceable in the Police Station

record.

13. Considering the unprecedented nature of this prosecution, the chaos

that it caused in the otherwise peaceful life of the Village and the

enormousness of the whole affair, the number of persons murdered, the

number of witnesses collected and the enormousness of the investigation,

we cannot blame the investigating agency and the prosecution for not

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being able to trace out the FIR Book. There are always wheels within the

wheels and, therefore, there can also be possibility of some interested

person, secreting the said FIR Book, though in the absence of any

concrete or positive evidence, we would not be justified in so holding.

However, possibility of such eventuality cannot be ruled out altogether, still

the question is whether the non-availability of the FIR Book, by itself, could

invite the suspicious glance from the Court. In our opinion, that

circumstance, by itself, will not persuade us to throw the whole prosecution

case.

14. This brings us to the other leg of the argument of Shri Altaf Ahmad,

Learned Senior Counsel for the appellants, whereby the Learned Senior

Counsel drew our attention to the report Exhibit D-13, by Shri K. Pullani,

Tahsildar, Melur, which is the first report regarding the incident, sent by

him to the Collector. Shri Ahmad pointed out that in this report, there is a

detailed description of how the incident took place, the names of the

persons who lost their lives and the names of 3 persons who were injured

and were admitted in the Melur Government Hospital. Significantly

enough, the name of Krishnan (PW-1) is to be found in this report also.

Our attention was specifically invited by the Learned Senior Counsel that

the report contained the basic reasons for these untoward incident. It was

also pointed out that the wounded victim Krishnan (PW-1) had lodged a

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complaint with the Melur Police Station and a case was registered in the

Crime No. 508 of 1997. The Learned Senior Counsel further pointed out

that the report says that the case was registered against Doraipandi S/o

Markandan and 14 others. Thereby the Learned Senior Counsel said that

by that time, the FIR was registered and yet there were no names

mentioned of the accused persons. Our attention was also invited to

Exhibit D-18, which is a report from the District Collector to the Secretary,

Public (Law and Order) Department, Secretariat, Chennai, which is of the

same date. The Learned Senior Counsel also pointed out that even this

report is totally silent about the names of the accused persons. Our

attention then was invited to the report of the same date, marked as Exhibit

D-19, sent by Kasinathan, District Collector, Madurai to the Secretary to

Chief Minister, Chennai and which is a second report and a more detailed

report, as compared to the earlier report of the Collector. The Learned

Senior Counsel pointed out that excepting the name of Doraipandi and 14

other known persons, the report is silent. Lastly, our attention was also

invited to D-14, the report dated 17.7.1997, sent by Shri K. Pullani,

Tahsildar, Melur to the District Collector, Madurai, where, for the first time,

the names of the 34 accused persons surfaced. From this, the Learned

Senior Counsel suggested that till 17.7.1997, these responsible Revenue

Officers, who were in charge of the whole law and order situation in the

Village, did not disclose the names of the accused persons. Learned

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Senior Counsel pointed out that had the FIR (Exhibit P-53) been a genuine

document, then such thing could not have happened and the names of at

least those persons who had surfaced in the complaint of Krishnan (PW-1),

would certainly have found place in the report of the Tahsildar, as well as,

the Collector. According to the Learned Senior Counsel, the absence of

these names puts the FIR in the darkness of suspicion. The Learned

Senior Counsel pointed out that in the backdrop of the fact that there is mix

up of the Serial numbers of the FIR, this situation assumes great

importance.

15. We have deeply considered the above mentioned three reports, as

also the contentions raised that coupled with earlier circumstance of the

FIR Book not being made available, the whole prosecution story would be

rendered extremely suspicious. We are unable to agree. All the three

reports would be of no consequence, as the two concerned Officers had

nothing to do with the investigation of the offence. The mere fact that in

his (Tahsildar’s) report Exhibit D-13 and also the second report, the names

of the accused persons did not figure, does not, in our opinion, amount to a

very clinching circumstance. Law and order in the village was the prime

concern of this Revenue Officer, who sent these two reports. It was not his

task to investigate the offence. He was merely reporting the prevailing

situation in his village to his superiors as per his duty. Therefore, merely

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because the names of the accused persons did not figure in his report,

would not, in our opinion, matter. It is nobody’s case that he was actively

assisting or was directly connected or cooperating with the Investigating

Officer. By these reports, he merely did his duty of informing his Collector,

the prevalent situation, which was undoubtedly tense. Therefore, the non-

mention of those names in the aforementioned reports, would, in our

opinion, be of no consequence. Similarly, for the report by the Collector to

the Secretary, the same comment is applicable. The Collector was not a

man on the spot. He was merely acting on the basis of the report sent to

him by the local officer. Therefore, his report is also of no consequence.

The High Court has considered these contentions in Paras 14 and 15 of

the impugned judgment and the High Court has come to the conclusion

that the contention that original FIR was suppressed and the present FIR is

a concocted FIR, was liable to be rejected. The High Court, has in its

finding, accepted the explanation given by Rajshekharan (PW-47) and has

recorded his satisfaction on that explanation. We do not agree with some

expression in Para 15 of the impugned judgment, which is to the following

effect:-

“As rightly pointed out, when the entire village was under the grip of fear on account of 6 murders, that too between two communities in the same village, it cannot be said that the Investigating Officer was sitting idle in doing the investigation systematically and as per rules.”

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We do not think that the Investigating Officer was expected to act

contrary to the rules and we do not think that in the investigation, he has

acted contrary to the rules. We agree with the High Court’s subsequent

comment that Rajshekharan (PW-47) had acted diligently and quickly and,

therefore, the confusion regarding the FIR could not be such a

discrepancy, which would taint the FIR with illegality. The High Court has

correctly relied on the reported Judgment in the case of State of

Karnataka Vs. K. Yarappa Reddy [1999 (8) SCC 715], where this Court

observed:-

“But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-high settled 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. The Court must have predominance and pre-eminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made a casualty for the wrongs committed by the Investigating Officers in this 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.”

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16. The other decisions relied upon by the High Court, for example,

decision in the case of Nirmal Singh Vs. State of Bihar reported in

2005(9) SCC 725 and Sanganagouda A. Vs. Veeranagouda Vs. State of

Karnataka reported in 2005(12) SCC 468 also give out the position that

merely because doubts are raised about the FIR and the nature of

prosecution case, that by itself, would be fatal to the prosecution case.

17. After all, the FIR is not a be-all and end-all of the matter, though it is

undoubtedly, a very important document. In most of the cases, the FIR

provides corroboration to the evidence of the maker thereof. It provides a

direction to the Investigating Officer and the necessary clues about the

crime and the perpetrator thereof. True it is that a concocted FIR, wherein

some innocent persons are deliberately introduced as the accused

persons, raises a reasonable doubt about the prosecution story, however,

a vigilant, competent and searching investigation can despoil all the doubts

of the Court and on the basis of the evidence led before the Court, the

Court can weigh the inconsistencies in the FIR and the direct evidence led

by the prosecution. It is not a universal rule that once FIR is found to be

with discrepancies, the whole prosecution case, as a rule, has to be

thrown. Such can never be the law. In the decision relied upon by Shri

Altaf Ahmad, Learned Senior Counsel for the appellants in Sevi & Anr. v.

State of Tamil Nadu (cited supra), it is clear that the Court had thrown

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the prosecution case not merely because the FIR was doubtful, but as the

Court found that the prosecution case and the evidence of the eye-

witnesses, even otherwise, was liable to be rejected, as they were the

partisan witnesses. The Court took into account the dramatic pattern of

the evidence of the witnesses and, therefore, thrown the prosecution case

because of the non-availability of the FIR Book. The importance of the FIR

Book cannot be under-estimated. At the same time, however, if the

investigating agency is able to collect reasonable evidence against the

accused persons and such evidence stands the scrutiny of the Court, then

such a discrepancy, as shown in that case, need not be fatal. The High

Court has precisely taken that view. The reasons given by the High Court

in Paras 15 to 20 of the impugned order, are the cogent and correct

reasons. We are in complete agreement with the High Court’s finding that

the evidence of eye-witnesses, which included injured eye-witnesses, was

supported and corroborated by the other witnesses and such evidence

could not be disturbed or ignored for the mere reason that FIR Book was

not produced or that there was doubt regarding the names of the accused

persons, which were to be found in Exhibit P-1 (complaint). Those

accused persons, against whom the evidence was not acceptable, have

been accredited, inspite of their names figuring in the FIR. If the argument

of the Learned Senior Counsel to the effect that a suspicious and doubtful

FIR would have the effect of throwing out the whole prosecution case, is

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accepted, then there would be no necessity of leading any evidence. The

correct view would be to weigh all the situations including the

discrepancies found in the FIR, as also the other evidences made

available before the Court and after carefully appreciating the same, to

come to the correct conclusion. That is precisely what has been done in

this case.

18. In fact, barring the aforementioned argument regarding the FIR, no

arguments were led before us, assailing the evidence of the eye-

witnesses, as also the injured witnesses and the other corroborating

circumstances relied on by the Courts below.

19. As many as 11 witnesses were examined by the prosecution, which

included 3 injured witnesses. The evidence of Krishnan (PW-1), Kumar

(PW-2) and Chinnaiya (PW-3) was of paramount importance, as they were

the injured eye-witnesses. The other eye-witnesses were Moorthy (PW-4),

Periyavar (PW-5), Palani (PW-6), Ganesan (PW-7), Yeghadesi (PW-8),

Myavar (PW-9), Kalyani (PW-10) and Karuppan (PW-11). We have

checked the evidence of these witnesses. Though some of them hostile,

however, on the basis of the appreciation of these witnesses, the case

against the present appellants was accepted by the High Court. With

these, we have also considered the evidence of Rajshekharan (PW-47),

the Investigating Officer, who has rightly been believed by the High Court.

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The evidence of Dr. Venkatachalam (PW-23), who was the Assistant Duty

Officer of the Casualty Ward, was also extremely important and provide

corroboration to the evidence of Krishnan (PW-1). Much was said against

Krishnan (PW-1), who was declared hostile at the fag end of his cross-

examination. He was also taken to Chennai to file a Writ Petition,

questioning the correctness of the prosecution. However, the Courts

below have chosen to rely on part of the evidence. The High Court has

noted that his Examination-in-Chief was recorded on 2.4.2001 and on the

same day, he was cross-examined by the three defence counsel. Then

only later, on 26.6.2001, when he was recalled, he was treated as a hostile

witness. We agree with the comment of the High Court that the witness

was tried to be won-over after his cross examination. Much was made

about Exhibit D-1, which is the affidavit of Krishnan (PW-1) in the Writ

Petition filed by him, wherein he had stated that he was afraid of the

prosecution party. Strangely enough, this affidavit was sworn for the first

time after one and half years of the incident. Even in his cross-

examination on 2.4.2001, he had stated that he was taken and his

signatures were obtained under threat. He appears to be a poor villager

and his affidavit appears to have been “obtained” and there is much to be

stated about this affidavit. The High Court has dealt with it and had

chosen to rely on the earlier part of his evidence. The law is now well

settled that merely because the witness is declared as hostile witness,

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whole of his evidence is not liable to be thrown away [See reported

decisions in Syed Akbar Vs. State of Karnataka reported in 1980 (1)

SCC 30, Rabindra Kumar Dey Vs. State of Orissa reported in 1976 (4)

SCC 233 and Bhagwan Singh Vs. State of Haryana reported in 1976 (1)

SCC 389]. We agree with the High Court in its appreciation of the

evidence of this witness and the acceptance thereof. Even the evidence of

Palani (PW-6) and Ganesan (PW-7) was relied upon by the High Court

besides the first three witnesses, though that evidence was rejected by the

Trial Court. The High Court has given good reasons why it has chosen to

accept the evidence of Palani (PW-6) and Ganesan (PW-7). The High

Court has also referred to the evidence of Periyavar (PW-5), Yeghadesi

(PW-8), Mayavar (PW-9) and Kalyani (PW-10) and has accepted that their

evidence corroborate the evidence of Krishnan (PW-1), Kumar (PW-2) and

Chinnaiya (PW-3). Again in Para 45 of the impugned judgment, the High

Court has referred to the aspect of FIR Register and Exhibits D-13 (report

of the Tahsildar to Collector), D-18 (report from the District Collector to

Secretary, Public (Law and Order) Department, Secretariat, Chennai) and

D-19 (second report from the Collector to the Secretary) and had chosen

to accept the explanation given by Rajshekharan (PW-47) in his evidence.

20. In short, the High Court has considered the whole matter in details

and has recorded its finding that inspite of the discrepancies about non-

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availability of the FIR Book, the confusion about the principles of FIR,

some inconsistencies in the evidence of Krishnan (PW-1) and the Writ

Petition filed by him and his affidavit (Exhibit D-1) therein, there was ample

evidence available to come to the conclusion regarding the guilt of the

appellants.

21. We are convinced that the findings of the Trial Court and the

Appellate Court are correct findings in law. We find that there is no merit in

the Appeal and it deserves to be dismissed. It is accordingly dismissed.

………………………………..J. [V.S. SIRPURKAR]

.………………………………..J. [DEEPAK VERMA]

New Delhi; October 22, 2009

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ALAGARSAMY Vs STATE BY DEPUTY SUPERINTENDENT OF POLICE

ALAGARSAMY Vs STATE BY DEPUTY SUPERINTENDENT OF POLICE