REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 32-33 OF 2004

State of Kerala ...Appellant

Versus

Anilachandran @ Madhu and Ors. ....Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the Division Bench of

Kerala High Court allowing the appeal filed by the respondent. Five accused

persons  faced  trial  for  alleged  commission  of  offence  punishable  under

Sections 143, 147, 148, 323, 324 and 302 of the Indian Penal Code, 1860,

(in short the ‘IPC’).

2. All  the  accused  persons  denied  their  involvement  in  the  crime.

Learned First Additional Sessions Judge, Thiruvananthapuram found A1 to

A4 guilty, while A5 was acquitted. The  following  convictions  and

sentences were recorded:

“A.1 to A.4 are found guilty and A.1 is convicted and sentenced to undergo R.I for one month u/s 341 and also is  sentenced to undergo R.I  for one year u/s.  323 IPC and is also sentenced to undergo imprisonment for life and also to pay a fine of Rs.20,000/- in default to undergo  R.I  for  3  years  u/s.  302  IPC A2 and  A3 are convicted and sentenced to undergo R.I for one month each u/s. 341 IPC and also sentenced to undergo R.I for 3 years each u/s. 324 IPC and also sentenced to undergo imprisonment  for  life  and  also  to  pay  a  fine  of Rs.20,000/-  each in  default  to undergo R.I  for  3 years u/s. 302 IPC. A.4 is convicted and sentenced to undergo R.I for 2 years u/s. 324 IPC set off allowed u/s. 428 IPC sentences shall run concurrently.”

A.1 filed Criminal Appeal  No.529/1999 challenging the order of

conviction  and  sentence.  The  other  accused  filed  Criminal  Appeal

No.444./1999 against  the same judgment.  Both the appeals  were heard

together by the High Court.

3. Prosecution version as unfolded during trial is as follows: t

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Gangadharan Pillai (hereinafter referred to as the ‘deceased’) father

of PW1, and Raveendran, Al’s father's brother, were neighbours. A coconut

tree belonging to the said, Raveendran was slanting over the building of the

deceased.  On  the  allegation  of  falling  of  tender  coconut  etc.  from  the

coconut  trees,  there  were  frequent  quarrels  between  the  deceased  and

Raveendran. The deceased Gangadharan Pillai demanded to cut and remove

and  remove  the  said  coconut  tree.  On  27.10.1993  at  about  8.15  p.m.  a

quarrel  occurred  between  Raveendran  and  Gangadharan  Pillai  and

Reveendran sustained  injuries,  for  which the  Poonthura  Police  registered

Crime No.82 of 1993 for offences punishable under Sections 341, 323 read

with Section 34 IPC. Ext. D3 is the scene mahazar in respect of crime No.82

of  1993.  On account  of  the injuries  sustained by Raveendran,  Al to  A4,

close relatives of Raveendran, and A5, a friend of A1, decided to do away

the deceased and to inflict bodily harm on PWs 1 and 3. In prosecution of

their  common object  they  formed  themselves  into  an  unlawful  assembly

with deadly weapons like dagger, sword, Iron rod, iron bar etc. at 8.45 p.m.

on 27.10.1993  inside the coconut garden of one Mohammed Shah situated

by the side of the pathway that starts from Ambalathara-Poonthura Road at

Numari Chantha near the Vedanthara Bridge. Al caught hold of the collar of

the shirt of PWI and fisted thrice on his chest. A4 with the iron rod inflicted

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a blow on the back of PW1 and A3 with the iron bar inflicted four or five

blows on the right shoulder of PW 1. Then PW1 cried aloud. At that time,

Al inflicted a stab injury on PW1 with the dagger which was warded off by

PW1. On hearing the cry of PW1, his father Gangadharan Pillai (deceased)

rushed to the scene and tried to prevent the accused from causing further

harm to  PW1. At that  time A2 and A3 caught  hold of  the deceased and

wrongfully restrained him. Then Al with the dagger inflicted a stab injury

on the back at the left  side above the waist  on the deceased. A4 and A5

inflicted blows on the  body of the deceased with iron rods.  At that  time

PW3, mother  of  PW1 and wife  of  the  deceased,  intervened  and  tried  to

prevent the accused from causing further harm to the deceased and PW1. A2

with a sword, inflicted a cut injury on the head and two other cut injuries on

the thighs of PW3. A3 and A4 inflicted blows on many portions of the body

of  PW3  with  the  iron  rods.  The  deceased  and  PW3  were  taken  to  the

General  Hospital,  Thiruvananthapuram  in  an  autorikshaw.  PW3  was

admitted  at  the  General  Hospital  and  the  deceased  was  referred  to  the

Medical College Hospital. PW1 also went to the General Hospital and later

accompanied  the  deceased  to  the  Medical  College  Hospital.  PW1  was

admitted  there.  On  the  way  to  the  Medical  College  Hospital  itself  the

deceased succumbed to  the injuries  sustained  by him. The deceased was

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removed to the mortuary. This is the sum and substance of the prosecution

case.

After  investigation  was  completed  charge-sheet  was  filed.  Since

accused  persons  pleaded  innocence,  trial  was he1d  for  proving  the

occurrence. Four witnesses were primarily examined as eye witnesses. They

are PW.1, PW.3, PW.4 and PW.5. PW.1 is the son of the deceased while

PW.3  is  his  wife.  PWs.  4  and  5  turned  hostile  and  resiled  from  the

statements made during investigation.  PW.2 is the doctor who examined

PW.1 and issued wound certificate.  PW.3 was examined by PW.14 Doctor

and the wound certificate  was issued  by him.  PW.15 is  the Doctor  who

conducted post-mortem examination and Exhibit  P.13 is  the post-mortem

report.

The trial  Court  placed reliance  on the evidences  of PW.l and 3 to

record  conviction.  As  noted  above,  appeals  were  filed  by  the  accused

persons. Their stand in Court was that the evidence of PW.1 and 3 does not

inspire confidence. The original FIR which was produced in Court was not a

complete document and a vital part of it had been removed. It  was pointed

out that there  was  a considerable delay in sending the report to the Ilaka

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Magistrate.  The  High Court  found  the  submissions  to  be acceptable  and

directed  acquittal  of  the  accused,  which  is  being  questioned  in  these

appeals.

4. Learned counsel for the appellant State submitted that the trial Court

on analysis of evidences and the factual scenario, as supported by materials

on record, recorded conviction which should not have been set aside by the

High Court. It is pointed out that there were minor variations, if any, in the

evidences of PW.1 and PW.3 and that they should not have been construed

as a ground for directing acquittal. It is submitted that accusations in any

event  have  been  substantially  established  so  far  as  accused  No.1  is

concerned, and the High Court should not have directed acquittal. Learned

counsel for the respondents supported the judgment of the High Court.

5. High Court firstly dealt with the authenticity of the First Information

Report. The High Court has noted that PW 1 allegedly gave Exhibit P.1 FI

Statement. The original of the statement showed that the last page which

contained the signature was torn out.  The  Sessions Judge after seeing the

last page of Ext. P1 FI statement observed as follows:

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“The First Information Statement is shown to the witness. It is seen that the place of which the signature of the  informant  was  there  torn  off.  That  portion  of  the paper  is  seen  torn  and  removed.  From the  manner  in which is torn away, it is clear that it was not separated due  to  wear  and  tear,  but  that  portion  alone  is deliberately  removed.  The  FIS  is  handed  over  to  the witness.'

6. The  High  Court  made  comparison  of  the  document  with  other

documents and found that document  was  suspicious. Added to that it was

noted that the Exhibit P.1 was purportedly recorded on 27.10.1993 at 11.00

p.m. It is accepted that Ilaka Magistrate received  it on  28.10.1993 at 8.05

p.m. The High Court found that there  was  unexplained delay in receipt of

the occurrence report by the Magistrate.

7. It is true that the delay itself does not make the investigation tainted.

(See :  Pal Singh and another v. State   of Punjab   (AIR (1972) SC 2679). The

position was reiterated in Swaran Singh and others vs. State of Punjab (AIR

(1976  SC 2304)  where  it  was  observed that  the  police  should  not  make

unnecessary  delay  in  sending  the  FIR.  Delay  in  sending  the  FIR to  the

Magistrate  sometimes  afford  opportunity  to  introduce  improvement  and

embellishment  thereby resulting  in  a distorted  version  of  the  occurrence.

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Section 157 of the Code of Criminal Procedure, 1973 (in short the ‘Code’)

mandates that the report  should be sent to the Magistrate forthwith.  That

itself  indicates  the  urgency.  It  needs  to  be  noted  here  that  where  an

explanation is offered by the prosecution for the delay, that has to be tested.

The unexplained delay by itself may not be fatal, but is a certainly relevant

aspect which can be taken note of while considering the role of the accused

persons for the offence.  

8. In the instant case the High Court found that not only the document

appeared to be suspicious but in addition there was considerable delay in

sending it to Ilaka Magistrate. Added to the aforesaid aspects, the noticeable

variation in the evidence of  PWs.1 and 3 have been highlighted by the High

Court.  The  role  played  by  PWs.1  and  3  while  the  deceased  was  being

assaulted have been analysed in great detail.  The High Court has noticed

that even if the prosecution version about the role of A.1 is accepted to be

true, since the genesis of the  incident  has not been established, it  will be

unsafe to record his conviction. The High Court has noticed that crime was

not  committed  in  the  manner  as  suggested  by  the  prosecution  and  the

genesis of the incident is not established. Even if a plea of alibi is set up by

the  accused  and  is  discarded,  that  does  not  take  away  the  duty  of  the

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prosecution to prove beyond reasonable doubt that the accused persons were

guilty.  It  is  certainly the duty of the persons  who plead alibi  to  prove it

beyond  reasonable  doubt.   Merely  because  the  accused  was  not  able  to

prove his defence, it cannot be presumed that the prosecution case is proved

against him.

9. Above being so, we find that this is not a case in which interference is

called for.  The appeals are dismissed.  

…………………………………..J. (Dr. ARIJIT PASAYAT)

……………………………..……J. (LOKESHWAR SINGH PANTA)

……………………………..……J. (P. SATHASIVAM)

New Delhi, April 15, 2009   

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