REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  162  OF 2002

The State of Tamil Nadu rep. by Secretary to Government …Appellant

Versus

Subair @ Mohamed Subair and Ors. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

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

Madras High Court directing acquittal  of the respondents.  Originally five

persons faced trial. The trial Court held the respondents guilty of offence

punishable under Section 302 of the Indian Penal Code, 1860 (in short the

‘IPC’). It however held that the charge levelled against all the five accused

persons under Section 120-B, IPC was not established.  It also held that the

charge against 5th accused under Section 302 read with Section 120B, IPC

was not established.  The four accused persons preferred appeal before the

High court which by the impugned judgment directed their acquittal.  

2. Prosecution version in a nutshell is as follows:

Veeraganesh  (hereinafter  referred  to  as  ‘deceased’)  and  his  friend

Ganesh (PW-1) @ Ganeshamoorthy and M. Ganesh (PW-2) were having

involvement in Hindu Munnani said to be a branch of  R.S.S.  The three

were friends. On 26.8.1989, Ganeshamoorthy (PW-1), M. Ganesh (PW-2)

met Veeraganesh  at Rangakonar Street  in  Kattoor and spoke to him for

about  ten  minutes.  Babu  (PW-4)  the  brother  of  Veeraganesh  was  also

present at the spot when PW-1 and PW-2 spoke to Veeraganesh at the said

place. After a brief discussion among themselves  for a while, Veeraganesh

went to Ganapathy along with PW-1 and PW-2 to meet his friend. As his

friend was not available at Ganapathy, they returned back to RSS office in

Ram  Nagar  and  the  three  discussed  among  themselves  for  about  ten

minutes. Then all the three came to the over-bridge via Kattoor. At about

7:30 in the night, the three were going from the round about of the over-

bridge towards the Post office road. On hearing somebody asking them to

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stop,  they  looked  back.  At  that  time,  A-I  to  A-4  who  were  armed with

weapons came towards Veeraganesh and PW-I and PW-2. A-1, A-2 and A-3

were  armed  with  knives  and  A-4  armed  with  Aruval  (sickle).  On

approaching towards Veeraganesh, they asked him to stop, and stated that

he was caught now and can not escape and was lost once for all. Saying so,

A-I stabbed Veeraganesh on his abdomen and chest. A-2 who was armed

with a knife stabbed Veeraganesh on the left side of his head, left shoulder,

left thigh and on his leg. A-3 armed with knife assaulted Veeraganesh on

the back of his chest and on the side of his chest. A-4 armed with aruval

assaulted Veeraganesh on his  head and face.  PW-I and PW-2 pleaded to

leave him. The injured Veeraganesh bled profusely and fell into a pool of

blood. A sodium vapour light was glowing at the place of occurrence at the

said  over-bridge.  PW-19,  the  line  man  of  Electricity  Board,  Coimbatore

Corporation stated that on the day of occurrence he switched on the lights in

the over bridge area at 6 PM in the evening and switched them off at 6 AM

on the next morning. PW-1 and PW-2 who pleaded to the accused to leave

Veeraganesh  fled  when  they  were  threatened  by  the  accused  rushing

towards them with weapons saying that they would also be done away with.

When they returned to the place after some time, they noticed large quantity

of blood. They learnt from the conversation of two or three persons at the

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spot that the injured had been removed to Hospital. The weapon of offence

used by A-4 at the time of occurrence is MO-1. The knives used by A-1 to

A-3 as weapons of offence are MOs:2 to 4.

PW-3  Selvaraj  drove  the  Auto  TAR-6474  from Railway  function,

Coimbatore to flower market via the over bridge. At that time a person was

lying with bleeding wounds at the round about of the over bridge. He asked

PW-3 to take him to Hospital. PW-3 accordingly took him to Hospital and

admitted him.

At about 8.15 PM, the deceased was brought to Emergency Ward by

Selvaraj (PW-3), the Auto driver. Dr. Radhakrishnan (PW-13) was on duty

at that time in emergency ward. At that time, the said Veeraganesh told PW-

13 that on that night, at about 7.30 p.m., at the over-bridge near the Head

Post office, Coimbatore, 4 known persons whose identity was well known

to  him,  assaulted  him with  knives  and  aruvals.  When  PW-13  examined

Veeraganesh, he noticed various injuries on his body.  PW-13 gave Tetanus

injection to Veeraganesh who had sustained the injuries and admitted him as

inpatient  in  the Trauma ward.  PW-13 gave his  opinion  in  which  he had

stated that the injuries caused to Veeraganesh could have been caused by

the weapons which are MO-1 and MO-2 to 4 and has also issued a copy of

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the  Accident  Register  in  this  regard  marked  exhibit  P-3.  He  sent  the

information furnished in exhibit P-14 to the out-post Police station located

in the premises of the Hospital.  

While  PW-20  Vivekanandan  was  on  duty  at  the  Out  Post  Police

Station of Coimbatore Medical  College Hospital  on 26.08.1989, received

the copy of the intimation regarding the admission of Veeraganesh with stab

injuries and at 7.45 PM, he informed Coimbatore B-I Bazaar Police station

over telephone. Subsequently, the information was entered in the OP Police

Station records,  and the Head Constable subsequently came and received

the intimation.

At  about  8.15  PM  while  Raja  Shanmugam  (PW-22),  the  Head

Constable  was on duty in  Coimbatore  B-1 Bazaar Police  Station,  on the

information  given  by  PW-20,  he  visited  the  OP  Police  Station  of  the

Hospital  and  received  the  intimation.  He  visited  the  Trauma  ward  and

recorded the statement of the said Veeraganesh and read over the same to

him and on his acceptance that it was recorded correct, he got his signature

in the statement. The said statement is exhibit P-21. Veeraganesh was in a

condition to give the statement at that time. Dr. Jayaprakash (PW-25) who

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was present  with PW-22 at that  time gave a certificate to  the effect  that

Veeraganesh  was  conscious  and  well  oriented  at  the  time  of  giving  the

above said statement. The said certificate (Exhibit P-30) is incorporated in

Exhibit P-21. PW-22 returned to Police Station at 9.30 PM and registered

the case in Cr.No.1027/1989 u/s 307 IPC and sent the FIR along with the

complaint to the Chief Judicial Magistrate. He sent the copies of the FIR to

the concerned Superior officers. The FIR prepared by him is PW-22.

Chandrasekar (PW-27) was the inspector  of  Police  of B-1 Bazaar

PS.  He came to the Police station at 21.30 hrs before setting out on night

rounds. He came to know of the registration of this case by PW-22. As law

and order problem existed at that time within the area under his control, he

had to be present  in that  area in his  station limits in view of the same.

While leaving the Police Station, he gave instructions to bring the FIR to

the SOC and accordingly after attending the law and order situation in his

limits, he came to the spot of occurrence in the night at 10.30 PM. The

place of occurrence was on the over bridge at Avinashi Road, Head Post

office road junction. He observed the scene of occurrence in the presence

of  PW-5  Krishnan  and  Anand  and  prepared  the  observation  mahazar

Exhibit P-1. The sketch of the scene is Exhibit P-31. PW-27 seized blood

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stained earth from the spot of occurrence, the control earth from the spot of

occurrence (unstained tar portion of  the road),  the torn  four yard dhoti,

currency  notes,  Hawai  chappal  and  other  materials  (MOs  5  to  15

mentioned  therein)  under  the  cover  of  mahazar,  in  the  presence  of

witnesses. After making arrangements to bring a photographer to the spot

of  occurrence,  he  visited  the  Hospital,  examined  and  recorded  the

statement of Veeraganesh, seized the blood stained shirt, brief worn at the

time by Veeraganesh, Exhibit P-16, Exhibit P-17 in the presence of PW-5

and in the presence of Anand under the cover of mahazar. As instructed by

PW-27, Johan (PW-26), the photographer, visited the spot of occurrence

on 26.08.1989 at 12 p.m and took photographs, which are MOs 19 to 26.

The negatives of the said photographs are MOs 27 to 34.  

Smt.S.  Kalavathi  who  was  the  Judicial  Magistrate  on  26.08.1989

received the requisition for recording the dying declaration (PW-11) at 10

PM, visited the Trauma ward in the Hospital and after knowing the details

regarding the concerned person, she examined him. After confirming that he

was conscious and well oriented, she recorded his statement. She took the

left thumb impression of the injured person on the dying declaration. The

said statement is Exhibit P-12. Doctor Balasubramaniam (PW-12), gave a

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certificate to the effect that the injured was conscious at the time of giving

the dying declaration.

On 29.08.89, as per the information received by him, PW-27 arrested

the accused A-1 Zubair, A-2 Mohammed Khan, A-3 Rafi at 12.00 a.m. at

Podanur-Pollachi  Road Junction  at  Aathupalam. When he  enquired them

separately,  they  gave  separate  statements,  which  were  recorded.  On  the

basis of these statements recoveries were made.  

On 29.08.1989 at 7.30 P.M. while Dr. Govindaraj (PW-18) was on

duty  in  emergency ward,  the  accused  Mohammed Zubair  along with  the

medical memo given by the inspector of Police, B-I Bazaar Police station,

came for treatment. He was having following injuries on his person:

1. A skin deep cut injury on his left index finger, it was of 2 cuts

length on the outer aspect of the finger. It was in a half healed state.

2. A small cut injury on his left thumb.

3. A contusion beneath his left ear.

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He was treated as out patient. In this regard a copy of the exhibit P-19 was

issued. On the same day PW-18 examined A-3 Rafi and found the following

injuries on his person:-

1. A small cut injury on his right index finger.

2. A cut injury of about 1cm length sking deep on his left thumb.

He was also treated as out patient and a copy of the AR register, Exhibit P-

20 was issued.

Dr.  Perumalrajan  (PW-14)  gave  treatment  to  Veeraganesh  on

27.08.89.  He  treated  him  to  stabilise his general  condition  and  blood

pressure  to  prepare  him  for  the  surgical  operation.  He  performed  the

surgery on him at 10:45 PM.

Dr.  Baskaran  (PW-16)  examined  Veeraganesh  on  the  night  of

31.08.89 at 9.30 PM and found his condition critical. Despite the intensive

treatment given Veeraganesh died at 11.25 PM on that night. In this regard

he  sent  an intimation  Exhibit  P-15.  PW-27,  the  Inspector  of  Police  who

received the intimation altered the section of law and submitted the express

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report,  altering  the  section  into  302  IPC,  Exhibit  P-32,  to  the  Judicial

Magistrate. Subsequently, he held inquest on the dead body of Veeraganesh

in the presence of witnesses at the Hospital and prepared the inquest report,

Exhibit  P-33. He sent the requisition for post mortem  examination of the

dead  body,  Exhibit  P-17  through  PW-21,  the  Police  constable  John

Viswanathan.  On  receipt  of  the  requisition  PW-17  Dr.  Diwakaran,  the

Additional Professor of Coimbatore Medical College Hospital, commenced

the post  mortem examination at  8 AM on 01.09.89.  During post  mortem

examination he noticed abrasions with reddish brown scab, over the right

fore arm, over the back of the left shoulder, over the outer aspect of the left

arm, over the front of right knee and above the right big toe. Apart from

them, he noticed incised sutured wounds of muscle deep over the center of

the forehead, over the root of the nose, over the bridge of the nose, below

the lower lips, over the right side of the chin, over the right cheek, over the

lower portion of the right ear, over the right side of the angle of the jaw,

over the right side of the outer aspect of the neck, behind the right ear on the

scalp, over the parieto-occipital area, over the mid-occipital area, over the

root of the neck and left side of the front chest, over the right side aspect of

the chest, over the right side outer aspect of the chest. These injuries were

mentioned from 6 to 22.  He also gave the measurements  of the wounds.

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Further, he mentioned the surgical wounds from 23 to 44. He also gave the

locations  of  the  wounds  and  their  measurements.  He  gave  post  mortem

certificate with his opinion, Exhibit  P-28 stating that the deceased would

have  died  of  septic  complication  of  stab  injuries  over  the  abdomen.  He

further stated that the injuries 41 to 44 were sufficient to cause the death of

an ordinary man. These injuries 41 to 44 were found on the small intestines.

PW-27 submitted a requisition, Exhibit P-23 sending the properties

seized in this case for chemical analysis. Rajamani (PW-23), the Head Clerk

deposed about the details regarding the details of the forwarding note sent

to the Forensic science Laboratory, Exhibit P-24 and regarding the reports

received from the said lab, Exhibit P-25  and Exhibit P-26.

Some of the witnesses spoke regarding the motive for the murder of

Veeraganesh and the criminal conspiracy hatched by the accused to murder

him. Durai (PW-7) stated to have witnessed all the accused on the night of

13.7.1989 at Oppanakara Street and also witnessed A-5 having a notice in

his hand and accused Hyder Ali having a tin box with glue in his hand. PW-

7 also witnessed them pasting the notice on a petty shop located opposite to

a  bank.  The  notice  contained  the  wordings,  "Islamic  Fatwa.  We  would

murder  the  RSS  Mookambigai  Mani,  Sampath,  Paramasivam who  incite

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religious ill-feelings, within a week" which also contained the word "jihad"

in it. PW-7 also spoke about having witnessed the four accused coming out

of a mosque discussing among themselves and later, going to the shop of

one Bilal Hajiyar and continuing the discussion in his shop about four days

prior  to  the  occurrence.  In  the  deposition  given  by  Devan  (PW-8),  has

spoken  about  having  witnessed  the  accused  two  or  three  times,  at  Bilal

Hardwares shop and discussing among themselves and also about having

witnessed the accused A-5 threatening Veeraganesh at Race course, in front

of cosmopolitan club, saying that "my anger would subside only if you are

murdered", Prior to a week before the occurrence. PW-8 further spoke about

having  witnessed  the  four,  five  accused  secretly  discussing  among

themselves in front of big mosque and their subsequent going in to the Bilal

Hardware shop.

In the evidence given by Sankar (PW-10), has stated that in about the

first  week of August  1989, on a particular  day, when he was going with

Veeraganesh near the over-bridge, the said five accused stared at him and

A-5 told Veeraganesh, "we are waiting for you only, wait" and further stated

that,  when  PW-10  hurriedly  took  Veeraganesh  in  an  Auto  and  fled  the

scene, A-5 told Veeraganesh, "you escaped today, how many days will you

have some one with you".

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Sekar  (PW-24),  the  Inspector  of  Police  has  given  evidence  with

regard to the cases registered against Veeraganesh and the accused. PW-24

has deposed about the Coimbatore B-1 Bazaar PS Cr. No.440/1998 u/s 141,

302, 149 IPC registered against Veeraganesh and 22 others, B-1 Bazaar PS

Cr.No.420/1998  u/s  141,  148,  341,  302  r/w  149  IPC  registered  against

Ramnarayan,  Veeraganesh,  Mookambikai  Mani,  Paramasivam  and

Sampath; B-1 Bazaar PS Cr.No.3Z55/1998 registered against Basha and 10

others  belonging  to  Muslim  community.  The  accused  were  muslim

fundamentalists and the deceased Veeraganesh and others belonged to the

organisation  Hindu Munnani  and that  a number of  cases  were registered

against  them. Saraswathy (PW-9) is  the mother of Veeraganesh.  She had

spoken that her son was the District organiser in Hindu Munnani and that he

used to speak in the Public Platforms and that the muslims had an animosity

against him as a result of his speeches made in the public meetings.  

Murugasamy  (PW-5),  the  Inspector  of  Police,  CB-CID,  took

examination in this case on 2.9.1989. After examination of witnesses as per

the  information  received  by  him,  he  arrested  the  accused  Hyder  Ali  at

Ambrampalayam  on 7.9.1989  at  6  AM  and  subsequently  sent  him  to

Judicial custody.

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Mukkambu (PW-29), the Inspector of Police, CB-CID., arrested A-5

at  Bilal  Hardware  in  N.H,  Road,  Coimbatore  on  23.09.1989.  As  per  the

statements  of  witnesses  Devan,  Durai  and  Sankar,  he  arrested  A-5  and

remanded him. He completed the investigation in this case and on 20.8.1990

he submitted the charge sheet against the accused u/s 120(B),  302 and 120

(B) read with Section 302 IPC against the accused.

After  taking the evidences of the prosecution witnesses,  as per  the

Section 313 of Code of Criminal Procedure, 1973 (in short the ‘Code’) the

accused were questioned with regard to the evidence led against them by the

prosecution. A-1 stated that it was a false case foisted against him and that

was not concerned in that case. A-2 submitted that the case was a false case

and that he was the first younger brother of Basha. A-3 stated that the case

registered against him was a false case and his father’s name was Hanifa

and that Shajahan was not his father’s name. A-4 stated that he was not at

all concerned in the case. A-5 stated that it was a false case intentionally

foisted against  them. No defence witness was examined on behalf of the

accused.  

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On the basis of complaint filed, first information report was lodged

and investigation was undertaken. On completion of investigation, charge

sheet  was  filed.  Since  the  accused  persons  pleaded  innocence,  trial  was

held.   Twenty  nine  witnesses  were  examined  to  further  the  prosecution

version. The trial Court found the accused guilty.  In appeal, the High Court

found the evidence of PWs 1 and 2 as well as the so called dying declaration

to be not credible and cogent and directed acquittal.

3. It was submitted that the reasons given by the High Court to direct

acquittal are without any basis.  There is no appearance for the respondents.

4. It is seen that PWs 1 and 2 stated that they had left  the injured in

lurch and had disappeared from the scene making deceased to cringe an auto

driver to take him to hospital. Would any close friend of a person involved

in  the  movement  allow  such  a  thing  to  happen  to  him  is  the  question

looming large and there is no explanation for it. Further, it is curious to note

that  both  PWs  1  and  2  have  stated  that  they  did  not  inform about  the

occurrence to anybody till they were asked by the police in the mid night of

the  date  of  occurrence.  The  conduct  of  PWs 1  and  2  is  un-natural  and

unbelievable and their presence at the time of occurrence is doubtful and the

testimonies of PWs 1 and 2 cannot be accepted.  

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5. Veera  Ganesan  did  not  state  in  his  dying  declaration  before  the

Judicial  Magistrate  that  accused  Nos.  1  to  4  were  his  assailants  in  the

occurrence.  Ex.P-12  is  the  dying  declaration  of  deceased  recorded  by,

Judicial  Magistrate  Kalavathi  (PW-11)  at  Coimbatore  Medical  College

Hospital. According to dying declaration of deceased from the hospital at

10.00 p.m. on 26.8.1989 she went and saw deceased in the Trauma Ward

and she put some questions to him and was satisfied that the injured was in

a fit condition and she recorded Ex.P-12 statement given by deceased in the

presence  of PW-12 and she obtained the left hand thumb impression of him

in it. PW-12 has also given a certificate in Ex.P-12 that the patient was fully

conscious and was able to speak throughout the recording of the statement.

From the  above,  it  is  clear  that  the  Judicial  Magistrate  after  observing

formalities had recorded the dying declaration of deceased in the presence

of duty doctor. In that Ex.P-12 dying  declaration. Deceased had stated as

follows:

“Today night four persons chased and stabbed me near the fly-over.  Their  names are not  known. One month before, they exhibited  posters  that  we would  all  be  killed.  It  is  not known who are they.”

(Underlined for emphasis)

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6. Deceased in the above statement has stated that four persons attackd

him and he did not know their names. According to the prosecution case,

deceased knew all the accused very well since he had an encounter with all

of them a few days before the occurrence as is evident from the testimony of

PW-10. In such circumstance,  if really accused Nos. 1 to 4 had attacked

deceased, definitely he would have told the names or identification of the

assailants. The prosecution relied on Ex.P-21 statement given by deceased

to PW-22 Head Constable in the Coimbatore Medical College Hospital as

his  dying  declaration.  According  to  PW-22 Head  Constable,  he received

intimation about the admission of deceased in Government Hospital  at 8.15

p.m. and he went to Trauma Ward in the hospital and enquiry deceased at

9.30  p.m.  and  recorded  Ex.P-21  statement   given  by  him  and  Dr.

Jayaprakash (PW-25) had given a certificate in it. PW-25 was not the doctor

on duty in Trauma ward at the time of recording Ex.P-21 statement and he

himself in  the cross examination has stated that usually the doctor incharge

of the ward alone would certify in the dying declaration. Ex.P-21 statement

of deceased runs to two full  pages and the names of the accused and the

overt  acts  on   their  part  were  mentioned  in  detail  and  the  signature  of

deceased is also found in it. Ex.P-21 was recorded  at 9.30 p.m. by the Head

constable  and  Ex.P-12  was  recorded  at  10.15  p.m.  by  the  Judicial

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Magistrate. There is vast difference in both the statements with regard to the

contents  and  it  is  pertinent  to  note  that  Ex.P-22  first  information  report

based  on  Ex.P-21  complaint  was  received  in  the  court  at  6.40  a.m.  on

27.8.1989 and  Ex.P-21  statement  as  such  had reached  the  court  only on

28.8.1989.  The  actual  complaint  was  not  sent  along  with  the  first

information report and it leads to a serious suspicion as noted by the High

Court.  In  the  circumstances,  the  dying  declaration  recorded  by  Judicial

Magistrate  (PW-11)  deserves  acceptance  and  in  it  deceased  did  not

implicate accused Nos. 1 to 4 as his assailants.    

7. The High Court highlighted the above said aspects to direct acquittal.

We find that the analysis made by the High Court to direct acquittal cannot

be faulted. The appeal is without merit and dismissed accordingly.  

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

…………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 18, 2008

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