REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

        CRIMINAL APPEAL NO.  584     OF 2008

SIVANMOORTHY & ORS. ..  APPELLANT(S)

vs.

STATE REP. BY INSPECTOR OF POLICE ..  RESPONDENT(S)

WITH

CRIMINAL  APPEAL  NOS.  767-768  OF 2008

O  R D E R

The facts leading to these appeals are as under:

On 28th October, 2001, at 8.00 p.m. accused A.1 to  

A.8 armed with sickles (aruvals) and accused 9 to 15 armed  

with sticks went to the house of the deceased Seeniappa  

Nadar and inquired about PW.13 Mariappan, his son.  The  

deceased  informed  the  accused  that  Mariappan  was  not  

present in the house. Annoyed at this answer A.13 Ayyanar

Nadar instigated the other accused and all of them attacked  

the deceased with their weapons killing him on the spot. As  

per the prosecution story the motive for the incident was  

the  serious animosity between Mariappan Nadar PW.13 on the  

one hand, and A.13 Ayyanar Nadar accused on the other with  

regard to the affairs of the Nadar community inasmuch that  

they represented two different groups in the Committee run  

by the community.  It also  appears from the record that  

even prior to this incident, several incidents had taken  

place between the parties with complaints  inter se, not  

only in court but even in the police station.  The incident  

in question was witnessed by Sornammal, the wife of the  

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deceased, her daughter P.Chellam (PW.1) who was living in a  

house about 100 yards away and  Muthu (PW.2) the grandson  

of  the  deceased.   Sornammal  then  rushed  to  the  police  

station and lodged the report within a short time.  The  

Investigating  Officer  (PW.25)  also  reached  the  place  of  

incident, made the necessary inquiries and sent the dead  

boy to the hospital for the post-mortem examination.  The  

post-mortem conducted by Dr. Ramesh (PW.17) revealed the  

presence of nine incised wounds on the dead body.  After  

investigation PW.25  filed the charge-sheet against A.6,  

A.7,  A.9,  A.10  and  A.11  and  one  Paneerselvam,  was  

subsequently charge-sheeted as well.  As the complainant  

was not satisfied with the investigation, she moved the  

Madras High Court for further investigation in the matter

and the High Court by its order dated 11th December, 2001,  

directed that the Superintendent of Police CBCID (PW.27) to  

examine the proceedings himself and in case he found  that  

the  investigation  made  by  PW.25  was  faulty,  to  further  

investigate  the matter as postulated by  Section 173(8) of  

Cr.P.C.  It appears that further investigation was indeed  

made by PW.27 whereafter he filed a charge-sheet against  

all the 15 named persons leaving out Paneerselvam the 16th  

accused.  The matter was thereafter brought to trial before  

the Sessions Judge who by his judgment and order dated 16th  

June, 2006, held all the accused (Save A.7 who had died)  

guilty as follows :

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Appellants Convictions under Sentence Awarded Sections.

A-1 to A-6 148,341 and 302 1.One year rigorus   & A-8 IPC imprisonment of each of  

the accused for the  offence under Seciton   148 IPC.  2.One month Simple  

imprisonment for each   of them for the offence  under Section 341 IPC. 3.Life imprisonment for  the offence under  Section 302 IPC for  each of the accused.

A-9 to A-15 147,341 and 302 1.Six months rigorous   Read with 149 IPC imprisonment for the  

offence under Section   147 IPC for each of the  Accused. 2.One month simple

imprisonment for the  offence under Section   341 IPC. 3.Life imprisonment for  the offence under  Section 302 read with  149 IPC for each of the  accused.

A-13 323 IPC Six months simple  imprisonment for the  offence under Section  323 IPC.

An appeal was thereafter taken by the accused to the  

High Court. The High Court maintained the conviction of  

A.1 to A.6 and A.8 and acquitted the other accused.

Two appeals have been filed against the order of the  

High  Court,  one  by  the  convicted  accused  in  

Crl.A.No.584/2008 and the second Crl.A.Nos.767-768/2008 by

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PW.1 the daughter of the complainant seeking a reversal of  

the High Court's judgment insofar as some of the accused  

had been acquitted and as the complainant had died before  

the evidence could be recorded in the trial Court.  Leave  

has been granted in both these matters and we have heard  

the learned counsel for the parties today in extenso.

Mr. N. Natarajan, the learned senior counsel for the  

appellants  in  Criminal  Appeal  No.584/2008  has  raised  

several issues during the course of hearing.  He has first  

pointed  out  that  Section  173(8)  of  the  Cr.P.C.  and  the  

order  of  the  High  Court  referred  to  above  visualized

“further  investigation”  in  the  matter  and  not  re-

investigation but it appeared from the record that PW.27  

had in fact re-investigated the matter and that in this  

eventually  the  evidence  collected  by  him  could  not  be  

looked  into  for  the  purpose  of  recording  a  conviction  

against the appellants. He has also submitted that even  

assuming that the further investigation was in order but in  

the background that the investigation made by PW.25  was at  

complete variance with that made by PW.27,  no credence  

could be attached to the investigations whatsoever and that  

it was thus open to the appellants to contend that the  

evidence collected by both the police officers was liable  

to be disbelieved.  He has further pointed out that in the  

background of the fact that there were as many as 15 or 16

accused there was no way to identify and to adjudicate upon  

the culpability of one set of accused from the other and as  

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such all the appellants were entitled to acquittal.  He has  

also  pointed  out  that  no  independent  witness  had  been  

examined though many were available in the village in which  

the incident happened and this too cast a  doubt  on the  

prosecution story.   

The learned counsel for the State, Mr. S.Thananjayan  

has on the contrary, submitted  that the matter had been  

further  investigated  and  a  fresh  charge-sheet  had  been  

filed and a  perusal of the charge-sheet would reveal that

the statements of witnesses who had been examined by PW.25  

had  been  reexamined   as  also  the  statements  of  several  

other  persons  had  been  recorded  in  addition  to  some  

statements  under  Sec.164  Cr.P.C.   He  has,  accordingly,  

urged that in a case where the Court felt (as in this case  

the High Court did) that the investigation had been side  

tracked it was always open to the Court to direct further  

investigation  in  the  interest  of  justice  and  could  not  

leave it to the whims of a dishonest police officer to  

scuttle an investigation. The learned counsel has relied on  

several judgments in support of his plea as well.  It has  

further been submitted that PW.1 and PW.2 were the daughter  

and the grandson of the deceased and as their presence was  

natural, there was absolutely no reason to disbelieve them,

the  more so, as PW.2 was an educated witness  studying for  

his  Law degree. It has also been pleaded that the High  

Court had in any case separated the grain from the chaff  

and given the benefit to such of the accused whose presence  

was felt to be doubtful.  

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Mr. S.B.Sanyal, the learned senior counsel for the  

complainant-appellant  in  Crl.A.Nos.  767-768/2008  has  

pointed out that Section 149 of the IPC had been applied to  

the case and even assuming that no injury had been caused  

by the acquitted accused their mere presence was enough on  

the facts of the case to involve them in the incident.  He  

has also urged that the reasons given by the High Court in

acquitting the accused were not justified.

We  have  considered  the  arguments  advanced  by  the  

learned counsel for the parties.  Section 173(8) read as  

under:

“173(8):  Notwithstanding  in  this  Section  shall be deemed to preclude further investigation  in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate  

and,  whereupon such investigation, the officer in  charge  of  the  police  station  obtains  further  evidence, oral or documentary, he shall forward to  the  Magistrate  a  further  report  or  reports  regarding such evidence in the form prescribed;  and  the  provisions  of  sub-sections  (2)  to  (6)  shall, as far as may be, apply in relation to such  report  as  they  apply  in  relation  to  a  report  forwarded under sub-section (2).”

Sub-section  (8)  of  Section  173  does  talks  about  

“further investigation”. The term “Further investigation”

has,  however,  not  been  defined  in  the  Code  and  must  

therefore depend on the facts of each case as culled from  

the record.  We find from a perusal thereof that PW.27 had  

made a comprehensive further investigation, recorded the  

statements of the witnesses who had already been  examined  

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by PW.25 and in addition the statements of several other  

witnesses as well and their their statements under Sec. 164  

of the Cr.P.C. and on reappraisal had filed a fresh charge-

sheet. We also notice that the question as to whether this  

procedure  amounted  to  a  further  investigation  or  re-

investigation had been taken up by the accused in the trial  

Court as well,  had been discussed comprehensively and had

been repelled.  When this matter came to the High Court a  

slight deviation had been made from the stand taken  in the  

Trial Court and the submissions made by the learned senior  

counsel were recorded verbatim  as under:

”Though  P.W.27  continued  the  further  investigation on the basis of the order passed by  the High Court, Madras, it cannot be said that  PW.27 has conducted a fair investigation and filed  the final report.”

It will be seen from a perusal of the aforesaid  

quote  that there was no criticism as to direction of the  

further investigation by PW.27 but the point raised was  

that  the  said  investigation  had  not  been  fair.  We  are,  

therefore, of the opinion that in fact   PW.27 had carried  

out a further investigation in the matter and not a re-

investigation.   Mr.  Natarajan  has  relied  on  several  

judgments in  support of his plea that what had been done

was  a  re-investigation.   They  are  1998(5)  SCC  223  

(K.Chandrashekharan vs. State of Kerala & Ors.), 2008(5)  

SCC 413 (Ramachaudhary vs. R.Dodhaya Kuamar and Anr.), 2009  

(6) SCC 346 (Mitha Bai Pasabai Patel & Ors. vs. State of  

Gujarat) and 332 (Rama Chandran vs. State of Bihar).  The  

judgments merely reiterate the legal position that further  

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investigation and not a fresh re-investigation can be made  

but,   as  already  mentioned  above,  the  nature  of  the  

investigation whether it amounts to a  further or a re-

investigation  has  to  be  seen  from  the  nature  of  the  

investigation  conducted.  On  facts  we  find  that  the

investigation conducted by PW.27 was in the nature of a  

further investigation.

We have also considered Mr. Natarajan's arguments  

with respect to the finding recorded by the High Court on  

the evidence.  He has first and foremost pointed out that  

though the trial Court had convicted all the accused, the  

High Court in appeal had acquitted several of them and it  

had, therefore, to be presumed that the evidence did not  

justify  a  conviction.   We  notice  that  necessary  

investigation into the facts  has already been made by the  

High Court as also by the trial Court.  We would ordinarily  

be  hesitant  to  re-appraise  the  evidence.  We  have  

nevertheless done so and have gone through the statements  

of the two primary witnesses PW.1 and 3 We find absolutely

no reason to disbelieve their statements as fortified  by  

the  medical  evidence  given  by  PW.17  Dr.  Ramesh  who  had  

found the following injuries:

1 A  deep  cut  injury  in  the  centre  of  the  head  with  

fracture of parietal bone on left side size 10cm x  

3cm. Blood coming from the fracture site.

2 A cut injury on left parietal region size 5 cm x 3 cm  

near lest ear.

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1 A deep cut injury with fracture of occipital bone size  

6cmx3cm.  Blood coming from fracture site.

2 A cut injury near left eye size 4cmx2cm.

3 A cut injury on left jaw size 4cmx2cm.

4 A cut injury on left shoulder size 3cmx2cm.

5 A cut injury on left forearm size 3cmx2cm.

6 Two cut inury on the back on left side of lower chest  

size 3cmx1 ½ cm.

7 A cut injury near right back side ear size 2cmx1cm.  

Hyoid Bone is intact.”

Both the trial court as well as the High Court had  

found that the eye witnesses' account stands substantiated  

by the medical evidence.  It must also be borne in mind  

that the factum of animosity between the parties stands  

admitted.  In such a case the real assailants would not be  

left out although false implication could be a possibility.

It is in this background that the High Court has already  

granted  the  benefit  to  some  of  the  accused  on  the  

understanding that the medical evidence did not indicate  

their presence as the acquitted persons were armed with  

sticks and no blunt weapon injuries had been detected by  

the doctor.

Likewise we are of the opinion that the Crl.A.Nos.  

767-768/08   filed  by  P.Chellam  also  lack  merit  for  the  

reasons  given  above.  This  court  would  be  hesitant  to  

reverse a finding of acquittal recorded by the trial Court  

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or the High Court where the circumstances are not palpably  

wrong  and the judgment is not perverse.  These adjectives  

cannot be applied to  the judgment of the High Court in the  

present case.   

Accordingly, all the appeals are dismissed.

                     .................J.          (HARJIT SINGH BEDI)

     .................J.

                                    (J.M. PANCHAL) New Delhi, November 11, 2009.