S.Subbulaxmi vs Kumarasamy

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1737 OF 2007

S. SUBBULAXMI … APPELLANT

VERSUS

KUMARASAMY & ORS. … RESPONDENTS

JUDGMENT

N.V. RAMANA, J.

1. Aggrieved by the judgment dated 22nd March, 2005

passed by the High Court of Judicature at Madras in Criminal

Appeal No. 619 of 1997, the appellant (complainant) filed the

present appeal. By the judgment impugned herein, the High

Court has set aside the order of conviction passed by the trial

Court for the offences under Sections 34, 302 and 506(II) Indian Signature Not Verified Digitally signed by SUKHBIR PAUL KAUR Date: 2017.07.06 13:08:01 PKT Penal Code, 1860 (IPC) and acquitted the accused. Reason:

2. Brief facts leading to this appeal as discerned from the

prosecution case are that the members of victim as well as 2

accused groups are closely related to one another. S.

Subbulaxmi who is the appellant/complainant is the wife of the

deceased-Subramani. Respondent No 1 (A1) and Respondent

No. 3 (A3) are husband and wife. Respondent No. 2 (A2) is the

cousin brother of Respondent No.1 (A1). Respondent No. 3

(A3) is sister of the deceased-Subramani. Govindswamy

(DW2) is the father of A1. An amount of Rs.40,000/- was

handed over to the father of deceased at the time of marriage

of appellant with the deceased and the same was deposited in

a bank in the names of appellant and the deceased. The father

of deceased wanted his son (deceased) and daughter-in-law

(appellant) to lend an amount of Rs.40,000/- for the purpose of

purchasing some agricultural land in the names of his

son-in-law (A1) and his father (DW2). It appears that there was

an oral agreement between the deceased and his father to the

effect that in exchange of Rs.40,000/-, father of the deceased

will transfer three acres of land to his son. After some time, the

father of deceased, instead of transferring the promised three

acres of land to his son, leased out the same to the father of

A1, giving way to strained relations between the deceased and 3

his brother-in-law (A1) which further aggravated when the

deceased started cultivating paddy in the land leased out to the

father of A1. Thus, it appears there was a dispute between the

parties in respect of this piece of land.

3. In the evening hours of 15th September, 1994, the

appellant while cutting grass in her field saw the respondents

(A1 to A3) working in a nearby field who created a commotion

by saying to each other that they are not going to spare the

appellant’s husband Subramani (deceased) since he beat DW 2

(father of A1). Soon thereafter, respondent No. 1 (A1) left the

field carrying an iron rod used for removing coconut husk, along

with A2 and A3. Worried by their aggression, appellant/

complainant herein followed them, on the way she met PWs 2

and 3 and all of them (Pws 1, 2 & 3) followed the accused party,

and at the place of occurrence they saw DW2 sitting on the

road and husband of the appellant (deceased) standing at

some nearby place. On seeing the deceased, A1 ran towards

him and attacked with the iron rod giving a blow on his head

and stabbed on the left cheek. A2 and A3 also picked up some

cart twigs and continuously attacked on the legs and hands of 4

the deceased. After beating the deceased with iron rod and cart

twigs, all the accused threw away their arms and left the scene

of offence. After that, PW1 with the help of PW2, took her

husband to the Government Hospital, Erode in a taxi where the

Doctor (PW10) declared him dead, and informed police.

Sub-Inspector of Chennimalai Police Station (PW9) visited

hospital, recorded the statement of PW1 (Ext.P1) and

registered the same as Crime No. 398/94. Meanwhile, one

Ponnusamy (not examined) got admitted father of A1 (DW2) in

the same Government Hospital at Erode. The same Doctor

who had examined the deceased also examined DW2. Later

on, PW9 recorded DW2’s statement and registered Crime No.

399/94 against the deceased and undertook investigation in

both the cases. The inquest was conducted on the next day

and the dead body of the deceased was sent for postmortem.

I.O. seized bloodstained iron rod, cart twigs, bloodstained and

normal earth and recorded statements of the doctors. The

accused were arrested on 17 th September, 1994 from a

bus-stand, blood stained dhoti and shirt worn by A2 were

seized. All the material objects were sent for chemical analysis. 5

The investigation in Crime No. 399/94 was continued for about

three months and finally the proceedings were dropped by

PW11 - Inspector of Police for the reason that the accused in

that case has already died on 15-09-1994.

4. During the course of trial, to bring home the guilt of the

accused eleven witnesses were examined on behalf of the

prosecution and two witnesses were examined for defence.

After appreciating both oral and documentary evidence, the

Principal Sessions Judge came to the conclusion that

prosecution has successfully proved the guilt of the accused

beyond all reasonable doubt and found the accused guilty.

Accordingly, the 1st accused was sentenced to undergo life

imprisonment for the offence under Section 302 IPC. The 2 nd

and 3rd accused were sentenced to life imprisonment for the

offences under Section 34 read with Section 302 IPC. All the

three accused were further sentenced to suffer rigorous

imprisonment for three years for the offence under Section

506(II) IPC. All the sentences were however directed to run

concurrently.

6

5. All the three accused approached the High Court

questioning the order of conviction imposed by the trial Court.

Having not satisfied with the case of the prosecution, the High

Court acquitted all the three accused of all the charges framed

against them. Therefore, being unsatisfied with the order of

acquittal, the wife of the deceased/complainant is before us in

this appeal impugning the judgment passed by the High Court.

6. The learned senior counsel appearing for the

appellant/complainant contended that the High Court gravely

erred in not taking into consideration the unimpeachable

testimony of the eye witness which is cogent, consistent,

reliable, corroborating and establishes the guilt of the accused

beyond all reasonable doubt. The learned senior counsel

argued that the place of occurrence, recovery of weapons used,

the chemical analyst’s report clearly establish the case of the

prosecution and the High Court completely ignored to delve into

these material facts.

7. The learned senior counsel further advanced his

argument that the injuries on DW2 were clearly explained by

the prosecution. The statement of PW2 and the Accident 7

Information Report of DW2 support the case of the prosecution

and it is duly corroborated by the evidence of doctor. The

interpolation with regard to the time of incident, according to the

senior counsel, does not affect the case of the prosecution and

that cannot be a ground to acquit the accused.

8. The learned senior counsel summed up his arguments by

submitting that the judgment of the High Court is perverse and

untenable as it did not take into consideration the

unimpeachable evidence of independent witness and that the

view taken by the High Court in acquitting the accused is

unsustainable in law in the presence of overwhelming evidence

in the form of eye witness, observation mahazars, sketches,

forensic reports with regard to blood stains on material objects

and weapons used by the accused for committing the crime.

9. In support of his contention, learned senior counsel relied

upon the decision of this Court in Sadhu Saran Singh Vs.

State of Uttar Pradesh & Ors. (2016) 4 SCC 357, Hare

Krishna Singh & Ors. Vs. State of Bihar (1988) 2 SCC 95 and

Appabhai & Anr. Vs. State of Gujarat (1988) Supp. SCC 241. 8

10. Mr. Karpaga Vinayagam, learned senior counsel

appearing for the accused/respondents, supported the

impugned judgment. The learned senior counsel for the

accused submitted that the two FIRs are created by PW9 and

the entire investigation has been conducted in a partisan

manner in order to prove the alleged crime against the

accused. The police changed the original features of the

incident and projected as if there are two different incidents;

one at 4.00 p.m. and the other at 5.00 p.m. According to the

learned senior counsel, there is only one occurrence and it took

place at 4.00 p.m.

11. It is submitted by the learned senior counsel that in

fact it was the deceased who raised violence upon DW2 and

injured him badly. DW2 never gave a complaint to the police

but it is a creation by the police preventing the accused taking

the plea of self defence.

12. It is vehemently argued that when Subramani was

already declared dead on 15.09.1994 itself in the hospital, how

the complaint received from DW2 at 10.00 p.m. was registered

by the police at 2.00 a.m. in the night and the police prolonged 9

the investigation till 28.12.1994 and led a perfunctory

investigation.

13. The learned senior counsel relied upon State of

Andhra Pradesh Vs. Punati Ramulu & Ors. AIR 1993 SC

2644, and Ashish Batham Vs. State of M.P. (2002) 7 SCC

317.

14. The learned senior counsel pointed out at the

laches of the prosecution case with regard to non-mentioning of

the details in the Accident Register as to who brought the

deceased to the hospital and what is the time of incident. But,

contrary to this, in the Accident Register pertaining to DW2, it

was specifically mentioned that Ponnuswamy brought him to

hospital and the incident took place at

4.00 PM. Secondly, as per the post-mortem certificate, the

deceased sustained 6 serious bleeding injuries on scalp of the

head and according to the appellant/complainant, she brought

the accused to the hospital and she kept his head on her lap.

There is no material to show that her saree was stained with

blood nor was there any seizure of the same. Hence, it is a

fabricated story.

10

15. The learned senior counsel summed up his

argument by submitting that the police have led a tainted

investigation only to help the appellant by implicating A1 to A3

because of their long strained relationship. The statement of

DW2 was recorded by the police and admittedly he was

severely injured and the police did not obtain any certificate

from the Doctor before recording his statement which shows

that there is no legitimate enquiry. The police obtained the

thumb impression of DW2 on the ground that he sustained

injuries which proved to be wrong as DW2’s left forearm was

fractured. According to him, the entire prosecution story is

aimed at only implicating the accused persons in the false case,

which the High Court has rightly disbelieved and there is no

reason for this Court to interfere. Learned senior counsel relied

upon the decision of this Court in Joginder Singh Vs. State of

Haryana (2014) 11 SCC 335.

16. We have heard the learned counsel on either side

at length and perused the material available on record in detail.

In a case like this where the defence plea is that the

prosecution had withheld the actual occurrence and created 11

two separate incidents with tampered and suppressed

documents (Ext. P10 and Ext. P14), it was obligatory for the

Courts below to ensure whether the prosecution has come up

with the true version or merely presented a perfunctory and

tailored case to suit its plan of securing conviction of the

accused Now, the simple question that falls for our

consideration is — whether the High Court was right in

disbelieving the prosecution story and acquitting the accused/

respondents to avoid grave miscarriage of justice.

17. It is clear from the material placed before us that the

accused as well as victim parties are closely related persons

and they were at loggerheads over a land dispute which

created strained relationship between them leading to the

untoward incident. We have meticulously gone through the

Complaint (Ext. P1) of the appellant and the statement of DW2

(Ext. P14) recorded by PW9. It is on record that PW9 in his

examination categorically stated that on the day of incident at

7.30 pm, the Head Constable from Erode Government Hospital

Outpost Police Station informed him over phone that

Subramani (deceased) involved in the scuffle had died in the 12

hospital and DW2 was admitted with injuries. After that, he

visited hospital, received complaint (Ext. P1) from PW1 at 8.45

pm and registered it at 12.30 am (Ext. P9). He further deposed

that he received complaint from DW2 (Ext. P14) at 10 pm in the

hospital and registered it at 2.00 am on 16.9.1994 (Ext. P10).

However, it is somewhat mysterious that though he received

complaint from PW1 at 8.45 pm, he did not register it till 12.30

am, akin to this, the complaint from DW2 though received at 10

pm, was not registered till 2.00 am and no explanation is

forthcoming for the delay. On the other hand, DW2 made a

definite statement that Ext. P14 complaint was never given by

him to the police and police did not approach him at all.

18. It is the case of prosecution that Crime No. 399/94

was registered basing on the Complaint (Ext.P14) of DW2 and

PW11 investigated the case. Admittedly, PWs 9 and 11 are well

aware of the fact that the accused in Crime No. 399/94 has

already died on

15-09-1994. The record shows that prosecution has carried on

the investigation against the dead person till 28-12-1994 and

finally closed the proceedings on the very ground that the 13

accused has already died on 15-09-1994. Though the

investigation went on for three moths, the prosecution has

failed to bring on record statements of witnesses, if examined,

or any incriminating material that was seized.

19. There is also lack of satisfactory explanation from

the prosecution about interpolation carried out on Ext.P1 and

Ext. P9 changing the time of occurrence from 4 pm to 5 pm.

Undoubtedly, this lacuna goes to the root of the case inasmuch

as the interpolation in the printed version of First Information

Report creates any amount of doubt on the credibility of the

investigating agency and leads to the inference that mischief is

perpetuated by the investigating officer. At this point, the

contention of learned senior counsel for the accused gains

momentum that investigating agency deliberately tampered the

FIR interpolating the time so as to create a wrong impression

that two incidents of scuffle might have occurred.

20. Another circumstance that raises doubt on the

prosecution case is also due to the peculiar conduct of PW9

and PW11 who even though were aware of the fact that DW2 14

with serious bodily injuries was admitted in the same hospital

where the deceased was admitted, however, failed to perform

their duty as spontaneously as they should in ordinary course.

The Doctor (PW10) of Government Hospital deposed that at

6.05 pm on 15.9.1994 he attended the victim DW2 and noted

the following injuries (Ext. D2) on his body:

1. A crush wound 6 x 2 cms on the right side of the head exposing the skull was seen. There was bleeding in the said wound.

2. There was a cut injury 2 x ½ x ½ cm on the right eyebrow.

3. A bruise injury was seen on the right jaw. The movement of the jaw was less.

4. A crush injury 8 x 5 cm was seen on the right side of the head. There was bleeding in the said wound.

5. A crush injury 5 x 5 cm exposing the skull was seen on the right side of the head.

6. A cut injury 3 x ½ cm exposing the skull was seen on the top of the head.

7. A crush injury 4 x 4 cm exposing the skull was seen on the back of the head.

The Doctor (PW10) further deposed that X-rays of DW2’s rib, head

and left leg was also taken and there was a doubt of fracture in his

leg, hence he was referred to the Coimbatore Government Hospital

for further treatment.

15

21. It appears that police have not taken any interest to shift

the injured DW2 to the Government Hospital at Coimbatore. If PW9

really questioned DW2 in the hospital and prepared his statement

(Ext. P14), it is expedient and obligatory on his part to take due care,

consult the attending Doctor and conscientiously shift the injured to

the Government Hospital at Coimbatore on the advice of Doctor

(PW10). However, DW2 denies the same and states that police

never came to him and there is no reasonable explanation from the

prosecution side on this aspect. Rather, the statement of PW11 in this

connection is annoying that since the accused in the complaint given

by DW2 died, he did not make further enquiry with regard to the

particulars of private hospital and Doctor from whom DW2 got

treatment. Be that as it may, the injured DW2 got himself admitted in

a private hospital, namely, Devi Hospital at Erode on 16.9.1996

where Dr. S. Nataraj (DW1) found the following injuries (Ext. D1) on

the body of DW2:

1. There was a sutured wound 6 cm in length on the left side of the head.

2. There was a sutured wound 2 cm in length on the exterior of the left eye.

3. There was a sutured wound 8 cm in length on the right side of the head.

16 4. A sutured wound 3 cm in length is seen on the centre of the head.

5. A sutured wound 4 cm in length is seen in the back side of the head.

6. The lower part of the left forearm had swelling in it.

7. An 8 cm sutured wound was seen on the front side of the left leg swelling was there. Movement of the bone was also there.

The Doctor (DW1) further deposed that X rays of head, left forearm

and left leg were taken and on observation the ulna bone of his left

hand was seen to be fractured and both the two bones in the left leg

was also seen to be fractured. In his opinion, injuries 1 to 5

abovementioned are simple in nature but injury Nos. 6 and 7 are

grievous in nature.

22. Considering the nature of injuries found on the body of

DW2, it gives way to a serious doubt in our mind on the credibility of

the prosecution theory that according to PW9, DW2 affixed his left

thumb impression on the Complaint (Ext. P14) which was registered

basing on the FIR (Ext. P10), as he could not sign due to injuries on

his hand. Moreover, on an assessment of Ext. P10 and Ext. P14 with

the evidence of DW1 and the wound certificate (Ext. D1), it is crystal 17

clear that the reason given by the prosecution for taking thumb

impression in the Complaint is baseless as fracture was found only

on the left forearm of DW2 and there was no injury on his right hand

with which he could have signed being a literate man. In this context,

absence of any reasonable explanation from the prosecution also

assumes significance and consequently affects the veracity of the

case projected by the prosecution. Added to this, there is no

corroborative evidence with regard to the injuries sustained by DW2

with that of Accident Register (Ext.P11). There are also contradictions

as to the correctness of injuries sustained by DW2 in Ext. P14,

Accident Register (Ext. P11), depositions of PW10 (Doctor), DW1

(Doctor), PW9 and DW2 himself. Thus, considering the

circumstances as a whole, we feel that the investigating agency

should have acted with more diligence to ensure fulfillment of its

solemn duty. But the record predominantly shows that the

prosecution has adopted a very casual and callous approach.

23. In the light of the statement given by DW2 to PW9 (Ext.

P14), we have come across another glaring defect in the prosecution

case. As per the prosecution case, DW2, who has suffered serious 18

injuries on his body including head injuries, has given statement to

PW9 (Ext. P14) in the following terms:

“Due to the injuries sustained by me, I became unconscious. I had been admitted to the Government Hospital Erode for treating of my injuries. After gaining consciousness and on enquiry, I came to know that my son Kumarasamy, my relative’s son Palanisamy, my daughter-in-law Vasanthamani, all the three on hearing the information about my sustaining injuries in the quarrel went and hit Mani @ Subramani who was standing in the place where he hit me, on his head and both of his legs and inflicted severe injuries and that he died on way while he was being carried to the Erode Hospital for treatment”.

After going through the above part of the complaint, we are

quite surprised how a person who fell unconscious owing to serious

head injuries gives statement to a police officer implicating his own

family members including son and daughter-in-law. Other deviating

feature of this testimony is that as per Ext. P14, DW2 sustained

injuries only on his left leg and head. But as per prosecution versions

and Accident Register (Ext. P11), he suffered injuries on various other

parts such as jaw, mandibles, left forearm, chest etc. Undoubtedly, if

DW2 had really made the complaint, the injuries mentioned in the

Accident Register (Ext.P11) would have found place in the Ext. P14.

The careful evaluation of these discrepancies strengthens the doubt

in our mind and we find force in the contention of the learned senior

counsel for the accused/respondents that Ext. P14 is only the 19

oblivious and unduly creation of investigating agency to magnify the

case of prosecution. Having carefully considered this aspect of the

matter and due to the doubtful nature of the very circumstance, we

are unable to agree with the case put forth by the prosecution.

24. It is also the case of the prosecution that upon hearing the

news of deceased attacking DW2, Accused Nos. 1, 2 and 3 rushed to

the scene of occurrence and saw DW2 with serious injuries while the

deceased was found standing at a distance of 80 feet away and they

instantaneously attacked him and left the place. The conduct of

accused persons in fleeing away from the place of offence leaving

behind severely injured relative raises a serious doubt on the

genuineness of prosecution case. The fundamental and basic

presumption one can derive from the circumstance is that when

severely wounded DW2 is sitting at the place of occurrence suffering

with bodily injuries, as a matter of general human conduct, accused

Nos. 1 and 3, being the own son and daughter-in-law of injured DW2,

would have run to him for offering first aid and taking appropriate

steps for his immediate treatment. But, unlike normal human

behavior, the accused, as per prosecution, rushed to the deceased

who was still present at the place of offence for one hour after hitting 20

DW2. If the prosecution story is to be believed, the accused after

indulging in a fight with the deceased, threw their weapons at the

place of offence and ran away ignoring and leaving the severely

injured DW2. Evidently, the incident took place on 15.9.1994 and all

the accused were arrested from a bus-stand on 17.9.1994. On

arrest, a blood-stained shirt and dhoti worn by A2 was recovered but

no recovery was made from A1 and A3. It is quite unbelievable that

the accused No. 2 from the time of occurrence of the incident on

15.9.1994 till his arrest on 17.9.1994, wore the same blood-stained

shirt and dhoti. If that is so, it is also implausible that there were no

bloodstains on the clothes of other accused, particularly A1, who as

per the evidence of PW1, aggressively participated in the crime.

25. Analyzing the evidence of PW1 (complainant), we doubt

the plausibility of her depositions in the facts and circumstances of

the case. Undisputedly, as per postmortem report (Ext. P3), the

deceased sustained six serious and bleeding injuries on the scalp of

his head. PW1 stated that she carried her husband in a car keeping

his head in her lap from the place of occurrence to Government

Hospital, Erode. The Accident Register (Ext. P12) does not indicate

the fact that it was PW1 who brought the deceased to the hospital. As 21

per record, no bloodstains were reported to be found on her clothes,

nor was there any seizure. Her conduct in the situation raises doubt

that when her husband with severe grievous injuries was struggling

for life, she should have first taken him to the nearest hospital and

complained at the nearest police station. But, strangely, PW1 neither

went to the Chennimalai Government Hospital which is nearest to the

place of occurrence and falls on the way to Erode, nor lodged

complaint at the Chennamalai Police Station. On the contrary, she

opted for a distant Government Hospital and a distant police station.

A meticulous examination of her evidence makes it improbable and

suffice it to say that she is not a reliable witness basing on whose

evidence, the accused can be convicted.

26. Thus, applying our dispassionate judicial scrutiny to the

facts and circumstances of the case, we feel that the prosecution

story is not trustworthy to show the guilt of the accused. The material

on record portrays huge suspicion in our mind and the evidence

adduced on record is full of contradictions and basing on such

evidence, it is not safe to fasten the liability on the accused. It

appears to us that the investigating agency ignored its paramount

duty of bringing home the guilt of the accused with probable evidence 22

as admissible under law. Rather, the investigating agency appears to

have spent time and mind on creating two occurrences and

substantiating the same with the circumstances. The prosecution

failed to exonerate itself from the duty of proving the guilt of the

accused beyond reasonable doubt.

27. The defence side has also raised certain other

discrepancies in the prosecution case, such as the reliability of

statement of PW2 (Kandasamy), injuries sustained by DW2 on left

eye-brow, lower jaw, chest, mandible etc. and disparity in the

statements of prosecution witnesses, but we feel there is no need to

further delve into the matter.

28. In our considered view, the High Court has compelling

and substantial reasons to set aside the conviction and sentence

awarded by the trial Court against the accused and no interference

can be made out with the same. Hence, we are of the considered

opinion that the appeal is devoid of merits and accordingly stands

dismissed.

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

.................................J (PRAFULLA C. PANT ) NEW DELHI DATED: July 6, 2017 23

ITEM NO.1501 COURT NO.9 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1737/2007

S.SUBBULAXMI Appellant(s)

VERSUS

KUMARASAMY Respondent(s)

(HEARD BY HON'BLE MR. JUSTICE N.V. RAMANA AND HON'BLE MR. JUSTICE PRAFULLA C. PANT)

Date : 06-07-2017 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Jayanth Muth Raj, Adv.

Mrs. Malavika J., Adv.

Mr. C. K. Sasi, AOR For Respondent(s)

Mr. M. Yogesh Kanna, AOR

Mr. R. Nedumaran, AOR

Hon'ble Mr. Justice N.V. Ramana pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Prafulla C. Pant.

The appeal is dismissed in terms of the signed reportable judgment.

(SUKHBIR PAUL KAUR) (SHAKTI P. SHARMA) AR CUM PS ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)