Anil Kumar vs State Rep.By Inspector Of Police

IN TH E S U P R E M E C O U R T O F INDIA C RI MIN A L AP P E L L A T E JU RIS DICTIO N

C RI MIN A L AP P E A L N O. 1055 O F 2007

A NIL K U M A R .. AP P E L L A N T(S)

vs.

ST A T E R E P. B Y INSP E C T O R O F P O LIC E.. R E S P O N D E N T( S)

O R D E R

This appeal by a solitary appellant arises out of the following

facts:

O n 11/8/1998 the deceased Ponnusa m y boarded a van bearing

No.TN-72-Z-9171 belonging to P W.7 in order to bring so m e fish from

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

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

Anil Ku m ar also boarded the van. Itappears that at about 11.00 p.m. P W.1 was driving the vehicle w h ereas P W.2 was sleeping w he n so m e 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 ho m e till16/8/1998 his wife P W.4

went in search of him but to no avail.Thereafter, Subra m a nian, 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 nu m b er of vehicle had been

disclosed in the report, the police exa mined

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the o w n er the driver, and the cleaner after the dead body had been found

on 16/8/1998. Both the P w s in their statements under Sec.161 Cr.P.C. narrated the story as given above. The dead body was also subjected to a

post-m orte m exa mination by the Doctor, P W.3 w h o found nine injuries

thereon and opined that the death was due to m ultiple injuries to vital

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

32-48 hours prior to the post-m orte m exa mination. O n the co m pletion 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

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

of the m urder weap o n, 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 imprison m e nt for life and a fine of

Rs.2,000/- in default,to undergo RI for a period of 2 years. This judg m e nt ;

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

way of special leave.

Mr. Gireesh Ku m ar, the learned counsel for the appellant has

raised several argu m e nts during the hearing of the appeal. He has pointed

out that as P W.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 P W.2, was not justified. He has

also sub mitted that the evidence of P W.2 itselfwas a m bivalent 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 m urder had taken taken place on

11/8/1998 and the post m orte m 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 m orte m, falsified the prosecution story as it brought the date of m urder to 13 or 14 August, 1998.

Mr. S.Thanjayan, learned counsel for the State has, ho w ever,

supported the judg m e nt of the trialCourt and sub mitted that there was no

reason w hatsoever to disbelieve P W.2, w h o was a truly independent

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

suggested by the defence. He has further sub mitted that the minor

discrepancy in his statement with regard to the date of the m urder being

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

in m e m ory as his statement had been recorded m ore than four years after

the incident.

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W e have heard learned counsel for the parties and gone through the record. It is true that P W.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,

ho w ever, 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

m a d e. P W.2 belongs to village Puthukottai near Puliyangudi w hereas the

appellant belonged to village Sankarankoli and the villages are 16

kilometers apart though on the National High w ay. This witness was

exa mined on 12 th June, 2002, and in his exa mination in chief deposed that

he kne w the the deceased Ponn usa m y and also the appellant. In cross

exa mination, ho w ever, he toned do w n his categoric statement by stating

that he did not kno w the na m e of the appellant and that he had co m e to

kno w his na m e only on the previous date of hearing of the case. He

further stated that he did not kno w the na m e of his father and had not told

his na m e or that of his father to the police or anybody else. He also

candidly ad mitted and that he had not even seen the appellant properly before the last date of hearing and itwas on that day and after he had been

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

Undo u btedly an identification of an accused by a witness in Court for the

firsttime 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 beco m e s m e a ningless. 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 High w ay. It has co m e in the evidence of P W.7 the o w n er 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. W e find that this story itself does not

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

thrown on the National High w ay from a running vehicle it w o uld have

fallen at a very short distance therefrom and had the police actually m a d e

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

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

sa m e was lying, as suggested, in a pit.W e find that in the face of P W.2's

a m bivalent, and certain evidence, and as no support can be taken from

the statement of P W.1 the driver of the vehicle w h o 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. -6-

So m e support could perhaps be found for the prosecution from

the m e dical evidence. P w.3 the Doctor deposed that at the time of the post

m orte m exa mination on 17/8/1998 that dead body was deco m p o s e d and

crawling with m a g g ots, the brain had deco m p o s e d and was in an oozing

state and that death had occurred between 32-48 hours and as m a g g ots

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

m orte m. W e find that in this situation the incident could not have been

happened on 11/8/1998 and w o uld have happened either on 13th or 14tth

August, 1998, m a king the presence of P W.2 unlikely. W e also find that the

doctor's statement finds full support from M o di's M e dical jurisprudence

and Toxicology T w enty-third Edition pages 438-442. O n page 438 a table

reveals that the m a g g ots co m e onto the body between 39 to 43 hours on

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

certain variable factors).W hile dealing with the condition of the brain M o di

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 beco m e s soft ad pulpy within 24 to 48 hours

in su m m e r, and beco m e s a liquid m a ss from three to four

days."

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The inferences that e m erge from the above discussion is that the

m e dical evidence far from supporting the prosecution story destroys its

very substratum.

W e, therefore, find that the conviction of the appellant cannot be

sustained.

The appeal is, accordingly, allowed, the judg m e nt of the courts

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

he has been charged.

.... . . . . . . .

. . . . . . .J (HA RJIT SIN G H B E DI)

.... . . . . . . .

. . . . . . .J (J.M. PA N C H A L) Ne w Delhi, August 4, 2009.