IN THE  SUPRE M E  COU RT  OF   INDIA           CRIMINAL  APPELLATE  JURISDICTION   

     CRIMINAL  APPEAL  NO. 1055   OF  2007

ANIL KU M A R ..  APPELLANT(S)

vs.

STATE  REP. BY  INSPECTO R  OF  POLICE..  RESP O N D E N T(S)

O  R  D  E  R

This appeal by  a  solitary appellant arises out of the following  

facts:

On  11/8/1998 the deceased  Ponnusamy  boarded  a  van  bearing  

No.TN-72-Z-9171  belonging  to PW.7  in order to bring  some  fish from   

Tuticorin to his village Puliyankkudi-PW.1  was  the driver of the vehicle and   

PW.2  was  its cleaner.  As  the van was  on  its way  to Tuticorin the appellant  

Anil Ku mar  also boarded  the van.  It appears that at about 11.00 p.m. PW.1  

was  driving the vehicle whereas  PW.2  was  sleeping  when  some  quarrel  

took place between  the appellant and  the deceased  and  consequent to the  

quarrel the appellant pushed  the deceased  out of the van  and  then  ran  

away. As  the deceased  had  not returned home  till 16/8/1998 his wife PW.4   

went in search of him  but to  no  avail. Thereafter, Subramanian, a brother  

in law of the deceased, went to the police station and  lodged  a report and   

on  its basis an  FIR was  registered.  As  the number   of vehicle had  been   

disclosed   in  the   report,  the  police  examined   

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the owner the driver, and  the cleaner after the dead  body  had  been  found   

on  16/8/1998. Both  the Pws  in their statements  under  Sec.161  Cr.P.C.

narrated the story as given above. The  dead  body  was  also subjected to a  

post-mortem  examination  by  the Doctor, PW.3  who  found  nine  injuries  

thereon  and  opined  that the death  was  due  to multiple injuries to vital  

organs.  He  further opined  that the death could  have  happened  between   

32-48 hours prior to the post-mortem  examination.  On  the completion of  

the trial, the accused  was  charged  under Sec.302  of the IPC  and  as  he  

pleaded   not guilty, he was  brought to trial.   

The  learned Sessions  Judge  relying primarily on  the evidence  of  

PW.2  (PW.1 having turned hostile), and  PW.3  the Doctor and  the recovery  

of the murder weapon, a knife,  at the instance of the appellant, and  the  

fact that the deceased  and  the appellant had  been  last seen  together  in  

the van, convicted the appellant for an  offence under Sec.302 of the IPC  

and  sentenced  him  to  undergo  imprisonment  for life and  a  fine of  

Rs.2,000/-; in default, to undergo  RI for a period of 2 years.  This judgment  

has been  affirmed  by the High Court in appeal.  The  matter is before us by  

way  of special leave.

Mr. Gireesh  Ku mar, the learned  counsel for the appellant has  

raised several arguments during the hearing of the appeal.  He  has pointed  

out that as PW.1, the driver had   

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turned  hostile, the reliance  of the Courts, though  insignificant, on  his  

statement, to corroborate the evidence  of PW.2, was  not justified.  He  has   

also submitted that the evidence of PW.2  itself was  ambivalent not only as  

to the actual incident but also  on  the question  of the  identity of the  

appellant and  as such, could not be  believed.  He  has  further argued  that  

as per the case  of the prosecution,  the murder had  taken taken place on   

11/8/1998  and  the  post  mortem  had  been  done  in the  afternoon  on   

17/8/1998 and  as per the doctor's report, the death had  occurred between   

3-4  days  prior to the post mortem,  falsified the prosecution story as  it

brought the date of murder to 13 or 14 August, 1998.

Mr. S.Thanjayan, learned  counsel for the  State has, however,  

supported the judgment of the trial Court and  submitted that there was  no  

reason  whatsoever  to disbelieve  PW.2, who  was  a  truly independent  

witness and  bore no  animosity with the appellant and  none  had  even  been   

suggested  by  the  defence. He  has  further submitted  that the  minor  

discrepancy  in his statement with regard to the date of the murder being  

either 10th August 1998 or 11th August 1998, could be attributed to a failure  

in me m ory  as his statement  had  been  recorded more  than four years after  

the incident.

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We  have heard learned counsel for the parties and  gone  through  

the  record.  It is true that PW.2, does  prima  facie, appear  to be  an  

independent witness  and  there is not even  the  slightest suggestion from   

the defence that he was  in any way  inimical to the appellant. To  our mind,  

however, this is not only the test in order to determine  the veracity of a  

prosecution witness  and  an  over view  of the entire  evidence  has  to be  

made.  PW.2  belongs  to village Puthukottai near Puliyangudi whereas  the  

appellant belonged  to  village  Sankarankoli and  the  villages  are   16  

kilometers apart though   on  the National Highway.  This witness  was   

examined  on  12th June, 2002, and  in his examination in chief deposed   that  

he  knew  the the deceased  Ponnusamy  and  also the appellant.  In cross  

examination, however, he  toned  down   his categoric statement by stating  

that he  did not know  the name  of the appellant and  that he  had  come  to  

know  his name  only on  the previous  date of hearing  of the case.  He   

further stated that he did not know  the name  of his father  and  had  not told  

his name  or that of his father to the police or anybody  else.  He  also  

candidly admitted and  that he  had  not even  seen  the appellant properly

before the last date of hearing and  it was  on that day and  after he had  been   

pointed  out  to  him  by  the  police  that he  had  seen  him  properly.  

Undoubtedly an  identification of an  accused  by a witness in Court for the  

first time is on  the face of it  

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weak  evidence, but even  if  this evidence  is tainted as  the police had   

identified the appellant to the witness  in Court, the very basis of the  

identification  even  in  the  Court  becomes  meaningless.  It is also  

significant that as per the prosecution story the deceased  had  been  done   

to death on  the night of 11/8/1998 and  his body  had  been  thrown  alongside  

the National Highway.  It has  come  in the evidence  of PW.7  the owner  of  

the vehicle that he had  informed  the police on  12/8/1998 about the incident

and  that the police had   that very evening gone  to that place on  a routine  

check  and  had  found  no  body. We  find that this story itself does  not  

inspire confidence for the simple reason  that had  the dead  body  had  been   

thrown  on  the National Highway  from   a running  vehicle it would   have   

fallen at a very short distance therefrom   and  had  the police actually made   

an  attempt to inspect the place, there is no  reason  as  to why  the dead   

body  could not have been  found  on  the 12/8/1998, even  assuming  that the  

same  was   lying, as suggested,  in a pit. We  find that in the face of PW.2's  

ambivalent, and   certain evidence, and  as no  support can  be  taken  from   

the statement of PW.1  the driver of the vehicle who  had  turned hostile and   

did not support the prosecution and  denied the incident all together, the  

other ocular evidence too does  not really advance  the prosecution's case.

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Some  support could perhaps  be  found  for the prosecution from   

the medical evidence.  Pw.3 the Doctor deposed  that at the time of the post  

mortem  examination on  17/8/1998 that dead  body  was  decomposed  and   

crawling with maggots, the brain had  decomposed  and  was  in an  oozing  

state  and  that death had  occurred between  32-48 hours and  as maggots  

were  present death could have  occurred even  three days  before the post  

mortem.  We  find that in this situation the incident could not have  been   

happened  on  11/8/1998 and  would  have  happened  either on  13th or 14tth  

August, 1998,  making  the presence  of PW.2  unlikely.  We  also find that the  

doctor's statement finds full support from  Modi's Medical jurisprudence   

and  Toxicology  Twenty-third Edition pages  438-442. On  page  438 a table  

reveals that the maggots  come  onto the body  between  39 to 43 hours on   

an  average  (although  a longer and  shorter period is also possible given  

certain variable factors). While dealing with the condition of the brain Modi  

says at page  440:

“(h)Adult Brain: The  putrefaction of the adult brain  initially begins  at its base, and  then  proceeds  to the upper  surface.  It is hastened  if any  injury to the brain or skull is  present. The  brain becomes  soft ad pulpy within 24 to 48 hours  in sum mer, and  becomes   a  liquid mass  from  three to four  days.”

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The  inferences that emerge  from   the above  discussion is that the  

medical evidence  far from  supporting  the prosecution story  destroys its  

very substratum.

We, therefore, find that the conviction of the appellant cannot be  

sustained.   

The  appeal is, accordingly, allowed,  the judgment of the courts  

below  are set aside and  the appellant is acquitted of the offence for which   

he has been  charged.

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

     .................J.

                                    (J.M. PANC H AL) New  Delhi, August 4, 2009.