REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1071 OF 2006

Tamilselvan ..     Appellant  

-versus-

State Rep. by Inspector of  Police, Tamil Nadu .. Respondent

J U D G M E N T

MARKANDEY KATJU, J.

1. This  appeal  has  been  filed  against  the  impugned  judgment  of  the

Madras High Court dated 9.11.2004 in Criminal Appeal No. 1438 of 2002.

2. Heard learned counsels, Shri M. Karpagavinayagam for the appellant

and Shri V. Kanagaraj for the respondents.

3. Before the Trial Court there were 10 accused persons accused under

Section  302  and other  provisions  of  the  IPC.   Accused nos.1  to  6  were

found guilty under Section 302 and the other provisions of the IPC by the

Trial  Court  and  they  were  convicted  to  life  imprisonment  and  awarded

various other punishments under various other provisions of the IPC.

4. On appeal before the High Court, accused nos.2 to 6 were acquitted

but the conviction of accused no.1, the appellant before us, under Section

302 etc.  was  upheld.   Aggrieved,  the  accused  no.1  has  filed  this  appeal

before us.  

5. The F.I.R. in the case was filed by one S. Elangovan, Forest Guard.

The FIR reads as follows:

“To the Inspector of police, Ayilpatti police station, subject the

complaint  regarding  the  death  of  Shri  Swaminathan,  Forest

Guard, due to the firing of sandal wood smugglers in Pilenadu

reserved  forest  during  the  prevention  of  smuggling  activity

duty.   Humbly  submitted,  yesterday  27.1.1996  night  about

10.30 p.m. myself along with Shri Kaliaperumal, Forest Guard

of Pilenadu Beat, Shri Ramalingam, Forest Guard of Pudupatti

West beat, Shri Rajendran, Forest Guard of Pilnadu North beat,

Shri Swaminathan, Forest Guard of Namakkal range currently

in the special duty in Rasipuram range.  Chinnamnian Forest

Guard  and  Raja  the  gardener  were  performing  the  vigilance

duty  in  Kolladedu  passage  in  Vialankuttai  in  Kanavai  Patti

village which is about ½ kilometers from the eastern boundary

in  Pilenadu Reserved  Forest.   At  that  time we saw a crowd

coming  towards  us  having  sandalwood  logs  on  their  heads.

They  alerted  ourselves  and  I  fired  in  the  air  once  with  my

double-barreled  gun,  warning  them to  download  the  wooden

blocks.  Immediately the assailants also fired at us from their

direction.   Mr. Ramalingam, Forest Guard, who was standing

near to me, also fired once cautioning the assailants.  We came

to know that the assailants would be in a group of 50 to 60 in

numbers.   The  above  said  persons  after  downloading  the

wooden blocks came towards us pelting stones and firing at us.

That time Shri Swaminathan amoung us fell down on the spot

after being shot down.  As there was threat to our lives we ran

away from the spot and came out of the reserved forest.  After

coming  out  of  the  forest  I  gave  information  to  the  Forest

Ranger.  The Forest Ranger came with a team and along with

them I visited the place of occurrence. We found Swaminathan

lying dead in a pool of blood.  The sandalwood smugglers were

not on the spot.  We made arrangements for protection of the

dead body and this complaint has been submitted after coming

to the police station, Ayilpatti.  I humbly request you to take

action  on  my  complaint.   Copy  to  the  Forest  Ranger  of

Rasipuram for appropriate action”.   

6. On a perusal of the above FIR, it appears that nobody has been named

as an accused in  the FIR.  In column 6 at  the beginning of the  FIR the

accused have been described as ‘unidentified persons in a group consisting

of 50 persons’.  This FIR was lodged on 28.1.1996 at 6.30 a.m., whereas the

date and time of the occurrence was 27.1.1996 at 10.30 p.m.  Thus there is a

time gap of eight hours between the time of the occurrence and the lodging

of the FIR.  

7.  Although nobody was named in the FIR as an accused, Elangovan,

Forest Guard (who lodged the FIR) in his deposition before the Trial Court

has named accused 1 to 6 as the persons who fired guns in the incident.  We

have carefully gone through the evidence before the Trial Court and we find

various material inconsistencies between the version given in his FIR and in

the deposition before the trial court.       

8. Before dealing with these glaring inconsistencies it may be pointed

out that the incident occurred at 10.30 p.m. on 27.1.1996.   It is alleged by

the prosecution witnesses that they identified the accused in moonlight.  We

find it difficult to accept this version of the prosecution witnesses that they

could have identified any of the accused merely by the moonlight.  In the

evidence  of  the  prosecution  witnesses  it  is  stated  that  the  accused  were

carrying torches, but there is no indication whether the victims, including

the  Forest  Guard  Swaminathan  (deceased)  and  Raju,  Gardener,  who

sustained fire injuries, carried torches.   

9. Since it  was the accused who allegedly carried torches,  we find it

difficult to believe how the prosecution witnesses could have identified the

assailants.  The position would have been different if the forest guards had

been carrying torches and had been pointing them at the assailants, but here

the position is just the reverse.   In fact due to the torches of the assailants

the prosecution witnesses would have been partially blinded by the light of

the torch light, and would not have been able to identify anybody.

10. As regards the material contradictions we have already stated above

that nobody has been named as an accused in the FIR.  It is only later that

the accused 1 to 6 have been implicated by name.  It has already been noted

above that the FIR was lodged 8 hours after the incident.  Thus there was

opportunity  of  subsequent  improvement  in  the  prosecution  case.  PW 1-

Elangovan, who was also the first  informant,  has stated in his deposition

before the Trial Court that he had not mentioned the names of the accused in

the FIR because he was shocked due to the assault and because of the death

of  Swaminathan,  and  hence  the  names of  the accused  did  not  strike  his

mind.  We find it difficult to accept this version because the FIR was not

lodged immediately after the incident,  but 8 hours  thereafter.   Hence the

shock in the mind of  Elangovan would have been subsided after  these 8

hours, and there was no good reason why he did not name the accused in the

FIR, if he had actually seen and identified them.

11. Another inconsistency in the deposition of Elangovan is that while in

his  cross-examination  he  has  mentioned  that  accused  no.1  (the  appellant

herein) had fired from a country made gun due to which Swaminathan the

Forest Guard and Raju the Gardener sustained fire injuries, but in his cross-

examination  he  has  stated  that  when  accused  no.1  fired  at  him nothing

happened to him or others but only Raju sustained wounds.  There is no

mention  in  the  cross  examination  that  Swaminathan  also  sustained  fire

injuries  by  the  firing  of  accused  no.1.   Thus  this  is  also  a  material

inconsistency in the statement of PW1- Elangovan.

12. It appears to us from the evidence that about six unidentified persons

had fired which caused the death of Swaminathan and injuries to Raju, and

that the rest had thrown stones, but the identity of these assailants was not

satisfactorily established, particularly since it  was 10.30 p.m. in the night

and there was no light except moonlight.  In our opinion it would be unsafe

to uphold the conviction of the appellant on these facts, and the appellant

has to be given the benefit of doubt which is an established principle for

criminal law.  Furthermore, there is no evidence to indicate that of the six

persons who are alleged to have fired, it was the shot fired by the appellant

which caused the death of Swaminathan.

13. We  are  also  in  agreement  with  Shri  Karpagavinayagam,  learned

counsel for the appellant, that the case of the appellant is not very different

from that of accused nos. 2 to 6 because in the evidence it has been stated

that all the six accused had fired.  Since accused 2 to 6 have been acquitted

we cannot uphold the conviction of appellant no.1 alone.

14. PW-3 Raju in his evidence has stated that he told the police during

the investigation  that  some unidentifiable  unknown persons  had fired on

him and others.  This also corroborates the defence version that in fact no

assailant  was  identified  by the  prosecution  witnesses,  and  it  was  only  a

subsequent improvement which was sought to be made in the prosecution

case.  

15. It  is  curious  to  note  that  while  PW-3  Raju  mentioned  in  his

examination-in-chief that the appellant had fired with a country made gun

which  caused  Swaminathan  and  him  to  sustain  injuries,  in  his  cross-

examination  he  has  stated  that  in  the  police  investigation  he  said  that

unidentified and unknown persons fired at them.  This is another glaring

inconsistency in the deposition of PW3-Raju.  Raju has also stated that after

the incident  the police inspector  did not  ask him to identify the accused.

Since  Raju  has  stated  that  unidentified  persons  had  fired  on  him  and

Swaminathan, his version in the examination-in-chief that accused no.1 had

fired at them cannot be believed.  We are of the opinion that unidentified

persons fired at Swaminathan and Raju.  At any event, the benefit of doubt

has to be given to the appellant.      

16. Learned  counsel  for  the  appellant  made  several  other  submissions

before us e.g. that no stones were recovered, there were no stone injuries on

anyone, there were no weapons on accused 1 to 6 at the time of their arrest,

the  pellets  were  not  sent  for  chemical  examination,  there  was  no  test

identification  parade,  etc.  but  it  is  not  necessary for  us  to  go  into  these

submissions.

17. On the facts of the case we are of the opinion that the prosecution has

not  been able to prove its case beyond reasonable doubt.   The appeal is,

therefore, allowed.  The conviction of the appellant under Section 302 and

other provisions of IPC is set aside.  The appellant shall be set at liberty

forthwith unless required in some other criminal case.   

18. Before  parting  with  the  case  we  would  like  to  state  that  learned

counsels for both the parties argued the case before us with great ability and

deep knowledge of criminal law.

……………………….J. (Altamas Kabir)

……………………….J. (Markandey Katju)

New Delhi; August 5, 2008