Kumar vs State Rep. By Inspector Of Police

1. This appeal is filed by the present appellant, aggrieved by

the concurrent findings of the court below, which has

upheld the culpability of the accused for culpable homicide

amounting to murder under Section 302 of Indian Penal

Code [hereinafter ‘IPC’ for brevity] and voluntary causing

hurt by dangerous weapons or means under Section 324 of

IPC. This appeal presently impugns the High Court

1 judgment dated 22.02.2016, in Criminal Appeal No. 326 of

2013.

2. The prosecution story in a nut shell begins with an earlier

scuffle between the accused and deceased (Sakthivel), while

watching a street play conducted during a village festival. It

is alleged that the accused-appellant was rebuked by the

deceased for sitting next to ladies. In this context, on

20.08.2009, at about 6:00 PM the accused came to the spot

where Rajendran (PW-1), Arumugham (PW-2) and

Subramani (PW-3) were savoring idliis from the stall of

Sumathi (PW-4), when the accused-appellant arrived with

an intention to draw out Sakthivel (deceased), by picking up

a quarrel with Rajendran (PW-1), who was his

brother-in-law. Accordingly, the accused-appellant arming

himself with a wooden log lying nearby, assaulted

Arumugham (PW-2), who came to the rescue. At that

moment the Sakthivel (deceased) is supposed to have

intervened. Seeing him, the accused barged on Sakthivel

claiming to finish him while kicking and pushing him into

the water canal. When he tried to climb up from the canal,

the accused hit him with a wooden log on his head. The

2 villagers present at the spot, then prevented the accused

while assaulting him on his head, thereby causing injuries

to the accused. Thereafter, both the injured Sakthivel and

accused were shifted to the Government Hospital,

Pudukottai in an ambulance. Ultimately the Sakthivel

succumbed to the injuries before reaching the Hospital.

3. Sub-Inspector Ramaswamy—PW-23 registered an FIR (Ext.

P1) against the accused for the offences punishable under

Sections 302 and 324 of IPC in Crime No. 47 of 2009.

Circle Inspector Subhakumar—PW-24, undertook the

investigation, visited the place of occurrence, prepared

observation mahazar and drew the rough sketch (Ext. P7).

The alleged weapon (wooden log—stick) (Ext. P8) used in

the administration of crime was recovered from the spot. On

the next day, he conducted inquest vide report (Ext.P9) and

dead body of the deceased Sakthivel was sent for

postmortem. Subsequently, the accused—appellant was

reported to be arrested on 22 nd August, 2009. The I.O.

recorded the statements of Dr. Lavanya, the Doctor, who

treated PW-2 (Arumugham), and Dr. Illayaraja, who

conducted postmortem of the deceased. Thereafter the

3 authorities seized the clothes of the deceased reported in the

seizure report being M.O.4 to M.O.6. After completing the

investigation, the I.O. submitted his report to the learned

District Munsif-cum-Judicial Magistrate levelling charges

against the accused for the offences punishable under

Sections 324 and 302 of IPC. The learned Judicial

Magistrate in turn committed the case to the Sessions

Court. The accused pleaded not guilty and claimed to be

tried.

4. The Sessions court by order, dated 07.10.2013, awarded

conviction to the accused and directed him to suffer

rigorous imprisonment for life for the offence under Section

302 of IPC and to pay a fine of Rs. 5,000/-, in default of

payment of fine, to further suffer an imprisonment for a

period of one year. The accused was also sentenced to suffer

rigorous imprisonment for a period of one year for the

offence under Section 324 of IPC. Both the sentences were

however directed to run concurrently. The main reasons

given by the trail court for maintaining the conviction

against the appellant-accused are-

i. That the motive concerning the verbal spat between the accused and the deceased Sakthivel is proved by PW-1, PW-6, PW-8 and PW-7.

4 ii. That the delay was sufficiently explained, as the police were busy in conducting investigation in other case. iii. That the recovered objects from the scene of crime has been proved before the court.

iv. That the injury on the accused has been attributed to a scuffle between the deceased and the crowd, which stands corroborated by the witness, statement of PW-2, PW-3 and PW-5.

v. The trial recognizes that there were no step taken to identify the injury on the accused.

vi. That the mere wrong entry of timing in the inquest report, would not vitiate the post mortem report much less the prosecution case itself.

vii. That on the aspect of arrest, it is an acceptable inference, that the accused was forcefully discharged by the police personnel on 21.08.2009, and was confined by the police for one whole day, and the arrest was only shown on 22.08.2009. Further as there was no confession obtained due to such action by the police, the entire case cannot be vitiated.

viii. That publication of the story in a newspaper cannot be relied on, as the defense has not taken steps to mark the evidence or examine the editor.

ix. That the case was proved by the prosecution beyond reasonable doubt.

5. Aggrieved, the accused-appellant approached the High

Court. By the impugned order, the High Court dismissed

the appeal of the accused on the following grounds- i. That the contention of the defense concerning the statement of the PW-2 about recording by the police, just after the incident is a flimsy contradiction, which does not have the force to dislodge the entire case. ii. That PW-2’s cross examination after re-calling the witness, cannot be taken into consideration. iii. That failure to provide reasons for the injuries sustained by the accused, would not be sufficient to dislodge the prosecution’s case.

5 iv. That the nature of weapon and the injury would not mandate reduction in the sentence from the charge of murder to grievous injury.

6. Aggrieved, by the concurrent finding of the fact, the accused

has approached this court.

7. The main thrust of argument by the learned counsel for the

appellant is that the entire prosecution case is a fabricated

in such a way so as to implicate the appellant in the case as

culprit. The real circumstances of the case have been

concealed by the prosecution in order to help the

complainant. Even the motive projected by the prosecution

is false. There was no complaint lodged by the deceased or

his wife against the accused, which itself proves that the

motive ascribed to be the alleged verbal spat between the

deceased and accused at the drama in the village on the eve

of Kaliamman temple festival. Secondly, there was huge

delay in registering the FIR and the delay was caused only

to implicate the appellant. On the fateful day i.e. 20.8.2009

at about 6:23 P.M. police got the information about the

occurrence, but no FIR was lodged. At about 7:30 P.M.

police visited the spot, conducted enquiry, suspected PWs 1

to 3 to be the real culprits and took them into their custody.

6 Even PW2 informed police that he received injuries due to

the attack made by the deceased. The appellant has also

injured in the fight at the hands of deceased. But, police did

not register the complaint on the basis of actual occurrence,

and the courts below failed to appreciate the true aspects of

the case particularly non-explanation by the prosecution as

to the injuries sustained by the accused. Thereafter, the

accused—appellant and deceased were sent to the hospital

in same ambulance and till the discharge of the appellant

from hospital, police did not suspect him as a culprit. It is

only thereafter, police in connivance with complainant

cooked up a case against the appellant, the complaint was

suitably prepared and FIR (Ext. P1) registered. Even at the

time of framing charges against the accused a charge under

Section, 323, IPC was first charged but the trial Court

convicted the appellant under Section 324, IPC. The trial

Court as well as the High Court failed to notice the

suppression of facts by the prosecution and came to a

wrong conclusion without appreciating the evidence in

accordance with settled principles of law, and thereby

7 rendered a perverse judgment which is required to be set

aside by the interference of this Court.

8. On the other hand, learned counsel for the State supported

the view taken by the Courts below and submitted that

having regard to the facts and circumstances, the trial

Court assessed them in proper perspective and delivered a

reasoned judgment. The conviction and sentence passed

against the accused has also been affirmed by the High

Court by categorical findings which does not require

interference of this Court.

9. Having heard learned counsels for both parties, we

acknowledge that this case is a direct evidence case and

based on statement of eyewitnesses which mandates us to

observe statements of certain eye witnesses for the disposal

of this case at hand.

10. A bare perusal of the evidence deposed by the

complainant—PW-1 (Rajendran) shows that while the

complainant was in the company of Arumugham (PW2) and

Subramanian (PW-3) having idliis sold by Sumathi (PW4),

the accused appeared and picked up the assault on him. In

the process of interference to prevent the assault, PW2 also

8 got injured. Soon thereafter, with the appearance of his

brother-in-law (Sakthivel—deceased) at the spot, the

accused pushed him into canal and assaulted with a

wooden log on the forehead of Sakthivel. Then Rajinikanth

(PW15) and Balasundaram (PW19)—another co-brother of

the complainant, called the ambulance and took the

accused and Sakthivel to the hospital while the complainant

followed them on two-wheeler and at the hospital he came

to know about the death of the deceased, then he went to

Udayalipatti police station and lodged complaint (Ext.P1).

11. The deposition of PW-2—Arumugham @ Iyyer, an

eyewitness to the incident, is to the effect that when he was

preventing the accused who was about to assault PW1, he

sustained injuries. At that point of time, the deceased came

with a wooden log in his hand and fought with the accused.

He has also asserted that the ambulance came after police

examined him and took his signature. He has further made

it clear that many persons, including nearby shop owners,

witnessed the incident, but it is a matter of record that

except himself, two brothers-in-law of the deceased and

Rasu, no one else was made witness. He further deposed

9 that the deceased assaulted the accused with the wooden

log on head due to which the accused got injury. When the

deceased was trying to hit the accused for a second time, he

intervened due to which he got injury on his wrist. On

suspicion, police took him along with PWs 1 and 3 to the

Keeranur Police Station where they detained him for the

night and then sent to Government Hospital on the next day

morning. Before his examination in chief, they warned him

that if he does not depose as instructed, they will foist a

case against him.

12. In his cross-examination PW-2 reveals as under-

Immediately after the occurrence, Udayalipatti police came to the place of occurrence and enquired about the incident and get my signature after recording my statement. They recorded my statement, before the arrival of 108 ambulance and before we took Sakthivel and Kumar. At the time, rajendra was also presented and the police recorded his statement and obtained his signature. The police examined me only prior to the arrival of 108 ambulance and never examined me after the arrival of 108 ambulance.

On recalling the PW-2, he states as under-

The deceased Sakthivel assaulted the accused in his head with the wooden log. I cam there and the accused sustained injuries in his head before I reached there.

10 When I intervene the second blow by the Sakthivel, I sustained injuries in my writ. The accused Kumar also sustained injuries on his head. The Sakthivel fell down in the channel due to the forceful attack by him and the accused also fell down.

(emphasis supplied)

It may be noted that PW-2 is not declared as hostile by the

prosecution.

13. In his cross-examination, PW3—Subramanian, another

eyewitness and close relative of the deceased, also admitted

that the occurrence took place at 6 p.m. and the scuffle

between the accused and deceased was for five minutes. By

the time the occurrence was completed, there was darkness.

He further admits that he was examined by the Inspector of

Police at the place of occurrence and PWs 1 & 2 were also

present at that time. He was later taken to the Keeranur

police station along with PWs 1 and 2.

14. That PW-4 (Sumathi), who is alleged to be selling idliis, has

not supported the case of the prosecution.

15. PW5—Rasu, corroborates the version of PW-2, wherein he

states that both the accused and the deceased had held

11 sticks. During the scuffle both of them fell into the channel

and both were unconscious by the time they were pulled up.

16. Rajinikanth—PW-15 deposed that at 7:15 P.M., he went to

Kurunthankudi bridge upon hearing about the occurrence

and found the accused and deceased lying there and took

them to Government Hospital in ambulance. Then he came

back to the place of occurrence along with Village

Administrative Officer (PW-14) where police prepared a

rough sketch and took his signature. However, in his

cross-examination he deposed that, by the time he reached

the place of occurrence, police had already arrived there and

thereafter ambulance came. He further stated that PW-1—

Rajendran narrated to the police everything about the

incident and police reduced it into writing and his signature

was also obtained.

17. In his evidence, PW19—Balasundaram has also stated

categorically that the ambulance came to the place of

occurrence after the arrival of police and they seized the

wooden log. According to him doctors declared the death of

Sakthivel at about 8.45 p.m. and Rajendran—complainant—

PW1 was not present at that time, but Inspector,

12 Sub-Inspector and Head Constable were present who

examined him and PW15, but did not obtain his signature.

18. Head Constable Mohan—PW20, in his chief examination

adduced that at 6.23 p.m. on the day of incident, while he

was going towards Ulaghanathapatti in connection with

investigation in some other case, he received a call on his

mobile phone about the occurrence. He immediately passed

on the message to his seniors and called an ambulance. At

7:00 P.M., when he reached the place of occurrence, they

found the deceased lying at Bridge Stone, Kurunkulam with

injuries while the accused was lying at road side. He

immediately sent them to Government Hospital at 7:05 P.M.

However, in the cross examination, he stated that he had

enquired PW-1—brother-in-law of the deceased and did not

see the wounded accused and deceased when he reached

the place of occurrence.

19. We have also gone through the statements of PWs 6, 7, 8, 9,

10, 11, 12, 13, 16, 22 etc. Most of them are hearsay

witnesses and nothing important seem to come out from

their depositions.

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20. Contrary to what Rajendran—Complainant (PW-1) deposed,

a combined reading of the evidences adduced by PWs 2, 3,

5, 15, 19 and 20 would make it abundantly clear that both

the accused and the deceased have participated in the fight

with wooden logs, accused has got head injury at the hands

of deceased, PW2 (Arumugham) himself also received injury

at the hands of accused while he was trying to protect PW1

(Rajendran) from the assault of the accused, police reached

the place of occurrence within ten minutes of the

occurrence, that is well before the arrival of ambulance and

Rajendran—PW1 (complainant), Arumugham @ Ayyar

(PW2), Subramanian (PW3) and other witnesses described

the incident to the police who then examined the persons

present there, rough sketch was prepared and their

signatures were also obtained.

21. Having observed the various depositions, we are of the

considered opinion that there are four crucial aspects

herein, which should be discussed and elaborated upon.

The above evidence if examined from the perspective of time,

the overall impression that can be drawn from the foregoing

discussion is that the occurrence took place at around 6.15

14 p.m., and the Head Constable Mohan (PW-20) received

information of occurrence at 6:23 P.M. and he passed on

the message to Sub-Inspector and Circle Inspector at 6:26

P.M., soon thereafter ambulance arrived at the spot of

occurrence at 6.30 p.m. At that point of time, Police have

enquired PW-1, PW2 and other witnesses, drawn report,

sketch map etc., and took their signatures and sent the

injured persons to hospital. That sequence of incidents

shows that already investigation was started by police. That

means the information provided by PWs 1, 2 and other

witnesses at about 6:30 P.M. at the place of occurrence

should have ideally been the basis of the F.I.R. Whereas the

F.I.R. (Ext.P1) shows that the information was received at

police station at 9.30 p.m. on 20th August, 2009.

22. We may note that this case involves a fight between two

persons-accused and the deceased. Majority of the eye

witnesses including PW-1, PW-3, have categorically stated

that accused-appellant was the aggressor. Interestingly, the

PW-2 states that, even the Sakthivel assaulted the accused

by a wooden log on the head, his statement should be given

credence for eight major reasons-

15 i. That the Police has subdued the statement of PW-2 taken moments after the incident.

ii. That PW-4 corroborates the version of PW-2. iii. That the injury on the accused has not be accounted for. iv. That the accused was also noted to be injured by all the prosecution witness, without specific statements as to the nature and all the prosecution witnesses state that the injury on the accused were imputed by the by-standers without much clarity.

v. That the mode of arrest by the police to have unauthorizedly discharged the accused from the hospital and illegally confining him for a day in police custody. vi. Active botch-up of investigation by the police authorities. vii. Unexplained delay in registering the FIR in the police station.

viii. He is alleged to be the person, who had been injured in the incident.

23. From the account of eye witness, we may observe that there

are at least three different versions which substantially

weakens the prosecution’s case.

24. On the point of suppression of genesis of the crime, PW-20

(head constable) categorically states that he was present

before the Ambulance had reached the place. Even though

he was extensively cross-examined, he has not budged from

his position that there was no recording of any statement

before the Ambulance recorded. On the contrary PW-2

categorically remarks that a statement was recorded by

PW-20 before the ambulance arrived. Although the High

Court has discredited the evidence of PW-2 as the part

16 which provides the aforesaid details was on recalling after

few days, therefore, in light of possibility of being won over,

the credibility of the statement made by PW-2 needs to be

viewed with this background fact. However, we fail to

understand internal logic of such assumption, when the

prosecution has not declared the witness as hostile and

more so, when his narrative is corroborated by other

witnesses. Therefore, PW-2’s evidence needs to be taken into

fold.

25. It is matter of record that the alleged accused-appellant,

was arrested in a hurried manner after the day of the

incident from the hospital. It is also stated that the police

authorities in an unusual manner got the appellant

discharged from the hospital and kept him illegally confined

for a day. Moreover, PW-2 has categorically stated the

following on the action of the police-

The police enquired me about the incident and I narrated the same. The police and the Sub-inspector of Police on suspicion taken myself, PW-1 (Rajendran) and PW-3 (Subramanian) to Keeranur Police Station. I was detained in Keeranur police station during the night and on the next day morning, I was sent to Keeranur Government Hospital for treatment.

Before I was examined in chief, they

17 warned me that if I have not deposed as instructed them, they will foist a case against me and only for that reason, I have stated like that.

(emphasis supplied)

The action of investigating authority in pursuing the case in

the manner which they have done must be rebuked. The

High Court on this aspect, correctly notices that the police

authorities have botched up the arrest for reasons best

known to them. Although we are aware of the ratio laid

down in Parbhu v. Emperor, AIR 1944 PC 73, wherein the

court had ruled that irregularity and illegality of arrest

would not affect the culpability of the offence if the same is

proved by cogent evidence, yet in this case at hand, such

irregularity should be shown deference as the investigating

authorities are responsible for suppression of facts.

26. The criminal justice must be above reproach. It is irrelevant

whether the falsity lie in the statement of witnesses or the

guilt of the accused. The investigative authority has a

responsibility to investigate in a fair manner and elicit truth.

At the cost of repetition, I must remind the concerned

authorities to take up the investigation in a neutral manner,

without having regards to the ultimate result. In this case at

18 hand, we cannot close our eyes to what has happened;

regardless of guilt or the asserted persuasiveness of the

evidence, the aspect wherein the police has actively

connived to suppress the facts, cannot be ignored or

overlooked.

27. Another point put forth by the learned counsel on behalf of

the accused—appellant is that the prosecution has not

explained the injuries suffered by the accused and hence

prosecution case should not be believed. At the outset, it

would be relevant to note the settled principles of law on

this aspect. Generally failure of the prosecution to offer any

explanation in that regard shows that evidence of the

prosecution witnesses relating to the incident is not true or

at any rate not wholly true [See : Mohar Rai and Bharath

Rai v. The State of Bihar, 1968 CriLJ 1479].

28. In Lakshmi Singh and Ors. v. State of Bihar, 1976 CriLJ

1736 this Court observed:

“Where the prosecution fails to explain the injuries on the accused, two results follow :

(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.

It was further observed that:

19 In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.”

29. In the case on hand, admittedly, the accused—appellant

was also injured in the same occurrence and he too was

admitted in the hospital. But, prosecution did not produce

his medical record, nor the Doctor was examined on the

nature of injuries sustained by the accused. The trial Court,

instead of seeking proper explanation from the prosecution

20 for the injuries sustained by the accused, appears to have

simply believed what prosecution witnesses deposed in one

sentence that the accused had sustained simple injuries

only.

30. From the evidence of I.O.—PW24 it is apparent that in the

scuffle PW2 (Arumugham) received “simple” injuries and he

had taken the statement of Dr. Lavanya (PW17) who treated

PW2. He had also examined Dr. Illayaraj (PW18) who

conducted postmortem on the body of the deceased. But, in

the case of accused—appellant, PW24—I.O. admits that he

was aware of the fact that the accused-appellant was

admitted as in-patient and the accused-appellant had

sustained injuries. He further states that neither did he

arrest the accused nor he examined the Doctor in regard to

the injuries of accused. In the circumstances in which the

deceased, accused and also PW-2 (Arumugham) got injuries,

it is obligatory on the part of I.O. to examine the Doctor and

seek information about the injuries sustained by the

accused and the same should have been made part of the

record. A duty is cast on the prosecution to furnish proper

explanation to the Court how the person who has been

21 accused of assaulting the deceased, received injuries on his

person in the same occurrence. We may note that the

injuries alleged to have been caused are not properly

explained. An alternative story is set up wherein the injuries

are attributed to mob justice, such allegations without

substantive evidence cannot be accepted.

31. Coming to the other aspect of the case, motive of the

accused to commit the crime is ascribed to the previous

quarrel occasioned between the accused and the deceased

during a drama at a village festival. Generally, in case

prosecution desires to place motive of the accused as a

circumstance, like any other incriminating circumstance, it

should also be fully established. We are alive to the fact that

if the genesis of the motive of the occurrence is not proved,

the ocular testimony of the witnesses as to the occurrence

could not be discarded only on the ground of absence of

motive, if otherwise the evidence is worthy of reliance. But

in the case on hand, as we have already discussed in the

above paragraphs, the evidence of direct witnesses is not

satisfactory and on the other hand, it is demonstrated that

the deceased hit the accused on his head with the wooden

22 log besides the testimony from the eye witnesses that there

was scuffle. In such a factual situation, certainly motive

may act as a double-edged sword.

32. In the light of the settled law thus by this Court and also

from what is clear from the evidence, there is absence of

extreme cruelty, even if it assumed that accused hit the

deceased with the log. Had there been a strong motive to do

away with the life of deceased, generally there would have

been more fatal injuries caused on the deceased not by a log

but by utilizing more dangerous weapons. These

circumstances would tell us that there is no reason to

believe that motive was entertained by the accused in the

back drop of quarrel that took place during drama at the

village festival, prior to the date of occurrence. In as much

as the prosecution laid the foundation for the commission of

crime by the accused in the said quarrel as an element of

motive, in the absence of positive proof of such motive,

prosecution has to face the peril of failure in establishing

that foundation.

23

33. Now coming to other charge under Section 324 of IPC, for

causing injuries to Arumugham @ Ayyar [PW-2]. In light of

the deficiencies noted above, it can be easily said that even

the charge under Section 324 of IPC is not established. The

aforesaid conclusion is clearly buttressed by the fact that

the injured witness himself has attributed the injury on him

to the deceased, instead of the accused. In such a situation

conviction of the accused on the charge of Section 324

cannot be sustained under law.

34. Taking stock of the circumstances and depositions of

prosecution witnesses in this case, it would be difficult to

hold that prosecution has laid the case on real

circumstances and proved its case beyond reasonable

doubt. We are surprised at the way in which Courts below

have perceived the facts and circumstances of this case. We

are not in agreement with the views drawn by the trial Court

as well as the High Court while dealing with the matter.

35. Normally this Court does not interfere with the concurrent

findings recorded by the Courts below, but in this case we

find certain exceptional circumstances as narrated above,

considering these aspects we feel that this is a fit case for

24 our interference. In our opinion, instead of dealing with the

intrinsic merits of the evidence of witnesses, both the

Courts below have acted perversely. Once we arrive at the

conclusion that we cannot lend credence to the genuineness

of the F.I.R. and the prosecution case, there is no need of

further enquiry as the assertion made by the prosecution

are not proved beyond reasonable doubt. In the peculiar

facts and circumstances of the case, definitely the benefit of

doubt goes to the accused—appellant. Viewed in that angle,

the judgments of the Courts below awarding conviction and

sentence to the accused—appellant requires to be set aside.

36. In the result, the appeal is allowed and the conviction and

sentence awarded by the Courts below is set aside. The

accused—appellant stands acquitted from all the charges

levelled against him. The appellant is stated to be in jail. He

may be set at liberty forthwith, if not required in any other

case.

…………......................J. (N.V. RAMANA)

..................................J. (S. ABDUL NAZEER) NEW DELHI, May 11, 2018.

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