REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 755 OF 2001

State rep. by Inspector of police, Tamil Nadu        ….Appellant  

Versus

Rajendran & Ors. ….Respondents

WITH

CRIMINAL APPEAL NO. 756 OF 2001

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Criminal Appeal No. 755 of 2001 has been filed by the State while

Criminal Appeal No.756 of 2001 has been filed by the informant.

2. Challenge in both the appeals is to the judgment of a Division Bench

of the Madras High Court directing acquittal of the respondents who faced

trial for alleged commission of offences punishable under Section 302 of the

Indian Penal Code, 1860 (in short the ‘IPC’) so far as the respondents 1 to 4

are concerned and Section 25 of the Indian Arms Act, 1915 (in short the

‘Arms Act’)  so far  as  respondent  Nos.  1,  3 & 4 are  concerned.  Learned

Sessions  Judge,  Tirunvelli  held  them  guilty  and  sentenced  them  to

imprisonment  for  life  for  the  first  offence  but  no  separate  sentence  was

imposed for the later offence.  

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

Ruby  is  the  elder  sister  of  P.W.l.  Thiraviya  Nadar  (hereinafter

referred  to  as  the  ‘deceased’)  was  her  husband.  P.W.3 is  the  mother  of

P.Ws.l and 5.  P.W.5 was employed as a driver in the Government Transport

Corporation. At about 9.00 a.m. on 11-03-1989 when P.W.5 was to catch a

bus in the bus stand to go to his village, A2 and two others came there and

assaulted  P.W.5.  who  lodged  a  complaint  before  the  police  at  the

Palayamkottai  Police  Station.  Head  Constable,  P.W.12  received  that

complaint at 11.30 a.m. on that day and registered it in Crime No.906/89 for

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offences punishable under Sections 326 and 506 (II) I.P.C. Ex.P-4 is the

printed  F.I.R.  for  that  crime.  On  14-09-1989  at  10.00  a.m.  P.W.5  was

coming out of his work place in the company of the deceased. The younger

brother of P.W.5 was selling lottery tickets opposite to the work place of

P.W.5.   A3 assaulted P.W.5 with a cycle chain, which was attempted to be

prevented by P.W.5.  Al and A4 were also by the side of A3 at that time.

P.W.5 informed the control room of the police over phone and the police

arrived at the scene. Al, A3 and A4 ran away from the scene.  P.W.5 and the

deceased went to the police station at Palayamkotai and gave a complaint to

Constable,  P.W.6 which was registered  by him in Crime No.1016/89 for

offences punishable under Sections 341, 323 and 506(II) IPC. Ex.P-5 is the

F.I.R. At 12.00 noon on that day, A3 appeared at the police station and gave

a  complaint,  which  was  registered  in  Crime  no.  1017/89  for  offences

punishable  under Sections  294(B),  323 and 324 I.P.C. P.W.12 registered

that complaint and Ex.P-6 is the printed F.I.R.

The occurrence had taken place on 17-09-1989 at  about  6.00 p.m.

P.W.1, along with his mother P.W.3 was walking towards their residential

colony  from  west  to  east.  The  deceased  was  coming  in  the  opposite

direction.  On being questioned,  the  deceased informed them that  he was

going to  finalise  purchase  of  tender  coconuts  and he was  on his  way to

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Melamuneerpallam for that purpose. Two hundred feet east of that place, the

house of A2 is situated. A2, with an aruval and Al, A3 and A4 each with a

stick, came there. A2 asked the deceased as to the whereabouts of P.W.5.

The deceased replied that P.W.5 had gone to Madras. Thereafter A3 and A4

stated that it is the deceased, who always comes in support of P.W.5 and his

family and therefore he must be finished off. Immediately A2 attempted to

cut the deceased with an aruval, but the deceased ran towards south. All the

four accused chased him. Behind the house of one Athiappan @ Muthiah,

the deceased was surrounded by all  the four accused. A2 attacked on the

head of the deceased with "aruval".  Thiraviya Nadar thwarted that  attack

with his left hand but that attack landed on his left elbow. Al, with a metal

tipped stick, stabbed on the right side chest of the deceased. A4 stabbed on

the  left  side  back  of  the  deceased.  They  stabbed  him  indiscriminately.

Thiraviya Nadar fell down on the spot and all the accused persons ran away

with weapons of offence. Thiraviya Nadar died. P.Ws.2 & 3 had seen the

occurrence. P.W.2 is a neighbour of P.W. 1.  P.W.1 went to Munneerpallam

Police Station to give a complaint. M.O. 1 is the weapon of offence in the

hands  of  A2 and  M.0.2  is  the  weapon  of  offence  in  the  hands  of  A 1.

Thiraviya Nadar was wearing a white colour shirt at the time of assault and

the entire shirt  became blood stained.  M.0.3 is  the shirt  and M.0.4 is  the

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lungi  worn  by him.  After  completion  of  investigation,  charge  sheet  was

filed.  As the accused persons pleaded innocence, trial was held.   

The trial court found the evidence of the eye witnesses 1 and 3 to be

cogent  and  credible  and  held  the  accused  persons  guilty  as  aforenoted.

Before the High Court the primary stand was that there was serious doubt as

to preparation and registration of the Ex.P1, it was pointed out that Ex.P1

came to  be  registered  around  7  P.M.  on  17.9.1989  at  the  police  station

which is hardly 2 k.m. away from the scene of occurrence. According to

prosecution, the occurrence had taken place on 17.9.1989 at about 6 P.M.

But Ex.P1 according to PW7 was sent at 3.45 a.m. on 18.9.1989 alongwith

P18, the inquest report.  The names of PWs. 2& 3 were not found mentioned

in the inquest  report.  Therefore,  it  was submitted  that  the  preparation  of

Ex.P1  is  shrouded  in  mystery.  The  High  Court  noted  that  the  evidence

offered by the prosecution against the accused was that the deceased was

always in the company of PW 5 and whenever PW 5 was in trouble, the

deceased used to help him.  A reference was made to Ex.P5, information

that is the FIR in Crime No. 1016 of 1989. There was an earlier FIR Ex.P4

in  Crime  No.  355  of  1989.   According  to  prosecution,  when  Ex.P5,

information was lodged by PW5, deceased was in his company and both of

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them went to the police station. According to the High Court Ex. P5 does

not disclose the presence of the deceased at or about the time when PW 5

was sought to be attacked by the accused.  High Court observed that except

oral evidence of PWs. 1& 3 that PW 5 was always found in the company of

the deceased, there was no other legal material on record.  The omission to

mention about the presence of the deceased in the company of PW 5 when

he lodged Ex.P5- information with the police was found to be a suspicious

circumstance.  It was observed that the motive ascribed was very weak.  It

was further noted that there was an element of doubt as to why A2 would

ask the deceased about the whereabouts of PW 5. Evidence shows that the

deceased answered by stating that PW5 has gone to Madras.  High Court

was of the view that some material should have been brought on record to

show that PW 5 was not actually in town and had gone to Madras or any

other  place.   The  High  Court  thereafter  came  to  the  conclusion  which

according to us, is totally absurd that it was not possible to infer from the

evidence  of  PW5  that  he  had  gone  to  Madras  and,  therefore,  the  very

question by A2 to the deceased and the answer that came out appears to be

artificial.  Probably, according to the High Court the prosecution wanted to

have a platform from which they wanted to develop their case.  It was also

found that there was considerable delay in sending Ex.P1 to P7 to the court.

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It  was  therefore  held  that  the  credibility  of  Ex.P1 to  P7 were in  serious

doubt and therefore the prosecution case was vulnerable.

Additionally,  it  was  held  that  certain  partly  digested  food  articles

were found in the stomach of the deceased. According to the High Court,

evidence  should  have  been  led  to  show as  to  at  what  point  of  time the

deceased took his last meal.

It was also held that the evidence of PWs 1 & 3 shows that they could

not have been present at the place of occurrence as the investigating officer

had not examined anybody to conclude that PW 1&3 were present at  the

spot of occurrence.  It was also noted that in the inquest report, the name of

PW 3 was  not  there  and,  therefore,  he  was  not  present.  Accordingly,  as

aforesaid, the acquittal was directed.

4. Learned counsel for the State submitted that the conclusions of the

High Court are not only contrary to evidence on record but also are based on

surmises  and  conjectures.  There  was  really  no  delay in  sending  the  FIR

and/or inquest report  to the court.   The suggestions given by the accused

probabilised the presence of the eye witnesses.  It was indirectly accepted in

the cross examination that A1,A3 and A4 repeatedly stabbed the deceased

with velsticks but the suggestion was that the witnesses had not counted the

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number of times the stabs were given by A1, A3 and A4.  The reason why

the documents reached magistrate’s court late has been explained by PW 8

whose evidence has not at all being discussed.  So far as the inquest report

is concerned, it is not necessary that names of all the witnesses should be

mentioned.  Even otherwise the name of PW 1 has been specifically noted.

That  was sufficient.  So far  as  the partly digested  food  is  concerned,  the

doctor has categorically stated that in the absence of the time when the last

meal  was  taken,  it  could  not  have  been  inferred.  The  doctor  has

categorically stated that the time of death was the time as stated by the eye

witnesses.   

5. In response, learned counsel for the respondent submitted that there

was partly digested food as found by the doctor PW 10.  The inquest report

does not show the presence of PW 3, so, in any event PW1 whose name has

been  stated  becomes  the  solitary  witness.  The  foundational  facts  are  in

doubt and the view taken by the High Court is a possible view and so there

is no scope for interference as the High Court has considered the totality of

the circumstances and there was manipulation of times.  

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6. To begin with, we find the High Court’s judgment is full of abrupt

conclusions and some times contrary to the evidence on record.  The High

Court has considered certain factors to be material whereas in fact they are

not so.  For example the non-mention of the name of the deceased in the

company of PW 5 in Ex.P5 has been considered to be a vital omission.  No

basis for such a conclusion has been indicated. There was nothing to discard

the evidence of the eye witnesses on the ground that material should have

been shown to show that PW 5 was actually not in town and had gone to

Madras or any other place.  It is surprising that the High Court rests its view

on  a  totally  unfounded  conclusion  that  the  question  put  by  A2 and  the

answer by PW5 appear to be artificial.  So far as the delay in sending Ex.P1

and P2 is concerned, the evidence of PW 8 is clear and cogent as to why the

document reached the court late.  There is not even any discussion as to why

the explanation given was not acceptable.  So far as the presence of partly

digested food is concerned, the High Court came to a conclusion on purely

surmises that  it  can be reasonably presumed that  the deceased had taken

food  before  the  occurrence  had  taken  place  and  the  presence  of  food

particles postponed the time of occurrence.  It again came to an abrupt and

absurd  conclusion  that  probably the  time of  occurrence  could have been

fixed after 7.30 or 8 PM on the day in question.  The High Court came to

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another erroneous conclusion that PW 8 had carried Ex.P18. The material

on  record  clearly  shows  that  it  is  not  really  so.  The  conclusion  that  the

investigating officer should have examined somebody else to conclude that

PWs  1  and  3  were  present  at  the  scene  of  occurrence  is  legally

unsupportable. As rightly submitted, the inquest report need not contain the

names of  all  the  witnesses.  In  any event  the  name of  PW 1 was stated.

There is no discussion as to in what manner the evidence of PWs 1 & 3

suffered from any infirmity.  The High Court seems to have been obsessed

with  the  idea  that  there  was  alleged  delay in  dispatch,  casting  doubt  on

authenticity of the FIR, the inquest report. Conclusions arrived at are totally

without foundation. The High Court’s order is indefensible and is set aside.

7. The appeals are allowed.  The respondents shall surrender to custody

forthwith to serve the remainder of sentence.

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

………………………......................... J.

        (Dr. MUKUNDAKAM SHARMA) New Delhi, November 25, 2008

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