Tamilselvan vs State Rep. by Inspector of Police, Tamil Nadu

Tamilselvan .. Appellant

-versus-

State Rep. by Inspector of Police, Tamil Nadu .. Respondent

JUDGMENT

MARKANDEY KATJU, J.

1. This appeal has been filed against the impugned judgment of the

Madras High Court dated 9.11.2004 in Criminal Appeal No. 1438 of 2002.

2. Heard learned counsels, Shri M. Karpagavinayagam for the appellant

and Shri V. Kanagaraj for the respondents.

3. Before the Trial Court there were 10 accused persons accused under

Section 302 and other provisions of the IPC. Accused nos.1 to 6 were

found guilty under Section 302 and the other provisions of the IPC by the

Trial Court and they were convicted to life imprisonment and awarded

various other punishments under various other provisions of the IPC.

4. On appeal before the High Court, accused nos.2 to 6 were acquitted

but the conviction of accused no.1, the appellant before us, under Section

302 etc. was upheld. Aggrieved, the accused no.1 has filed this appeal

before us.

5. The F.I.R. in the case was filed by one S. Elangovan, Forest Guard.

The FIR reads as follows:

"To the Inspector of police, Ayilpatti police station, subject the complaint regarding the death of Shri Swaminathan, Forest Guard, due to the firing of sandal wood smugglers in Pilenadu reserved forest during the prevention of smuggling activity duty. Humbly submitted, yesterday 27.1.1996 night about 10.30 p.m. myself along with Shri Kaliaperumal, Forest Guard of Pilenadu Beat, Shri Ramalingam, Forest Guard of Pudupatti West beat, Shri Rajendran, Forest Guard of Pilnadu North beat, Shri Swaminathan, Forest Guard of Namakkal range currently in the special duty in Rasipuram range. Chinnamnian Forest Guard and Raja the gardener were performing the vigilance duty in Kolladedu passage in Vialankuttai in Kanavai Patti village which is about = kilometers from the eastern boundary in Pilenadu Reserved Forest. At that time we saw a crowd coming towards us having sandalwood logs on their heads. They alerted ourselves and I fired in the air once with my double-barreled gun, warning them to download the wooden blocks. Immediately the assailants also fired at us from their direction. Mr. Ramalingam, Forest Guard, who was standing near to me, also fired once cautioning the assailants. We came to know that the assailants would be in a group of 50 to 60 in numbers. The above said persons after downloading the wooden blocks came towards us pelting stones and firing at us. That time Shri Swaminathan amoung us fell down on the spot after being shot down. As there was threat to our lives we ran away from the spot and came out of the reserved forest. After coming out of the forest I gave information to the Forest Ranger. The Forest Ranger came with a team and along with them I visited the place of occurrence. We found Swaminathan lying dead in a pool of blood. The sandalwood smugglers were not on the spot. We made arrangements for protection of the dead body and this complaint has been submitted after coming to the police station, Ayilpatti. I humbly request you to take action on my complaint. Copy to the Forest Ranger of Rasipuram for appropriate action".

6. On a perusal of the above FIR, it appears that nobody has been named

as an accused in the FIR. In column 6 at the beginning of the FIR the

accused have been described as `unidentified persons in a group consisting

of 50 persons'. This FIR was lodged on 28.1.1996 at 6.30 a.m., whereas the

date and time of the occurrence was 27.1.1996 at 10.30 p.m. Thus there is a

time gap of eight hours between the time of the occurrence and the lodging

of the FIR.

7. Although nobody was named in the FIR as an accused, Elangovan,

Forest Guard (who lodged the FIR) in his deposition before the Trial Court

has named accused 1 to 6 as the persons who fired guns in the incident. We

have carefully gone through the evidence before the Trial Court and we find

various material inconsistencies between the version given in his FIR and in

the deposition before the trial court.

8. Before dealing with these glaring inconsistencies it may be pointed

out that the incident occurred at 10.30 p.m. on 27.1.1996. It is alleged by the prosecution witnesses that they identified the accused in moonlight. We

find it difficult to accept this version of the prosecution witnesses that they

could have identified any of the accused merely by the moonlight. In the

evidence of the prosecution witnesses it is stated that the accused were

carrying torches, but there is no indication whether the victims, including

the Forest Guard Swaminathan (deceased) and Raju, Gardener, who

sustained fire injuries, carried torches.

9. Since it was the accused who allegedly carried torches, we find it

difficult to believe how the prosecution witnesses could have identified the

assailants. The position would have been different if the forest guards had

been carrying torches and had been pointing them at the assailants, but here

the position is just the reverse. In fact due to the torches of the assailants

the prosecution witnesses would have been partially blinded by the light of

the torch light, and would not have been able to identify anybody.

10. As regards the material contradictions we have already stated above

that nobody has been named as an accused in the FIR. It is only later that

the accused 1 to 6 have been implicated by name. It has already been noted

above that the FIR was lodged 8 hours after the incident. Thus there was opportunity of subsequent improvement in the prosecution case. PW 1-

Elangovan, who was also the first informant, has stated in his deposition

before the Trial Court that he had not mentioned the names of the accused in

the FIR because he was shocked due to the assault and because of the death

of Swaminathan, and hence the names of the accused did not strike his

mind. We find it difficult to accept this version because the FIR was not

lodged immediately after the incident, but 8 hours thereafter. Hence the

shock in the mind of Elangovan would have been subsided after these 8

hours, and there was no good reason why he did not name the accused in the

FIR, if he had actually seen and identified them.

11. Another inconsistency in the deposition of Elangovan is that while in

his cross-examination he has mentioned that accused no.1 (the appellant

herein) had fired from a country made gun due to which Swaminathan the

Forest Guard and Raju the Gardener sustained fire injuries, but in his cross-

examination he has stated that when accused no.1 fired at him nothing

happened to him or others but only Raju sustained wounds. There is no

mention in the cross examination that Swaminathan also sustained fire

injuries by the firing of accused no.1. Thus this is also a material

inconsistency in the statement of PW1- Elangovan.

12. It appears to us from the evidence that about six unidentified persons

had fired which caused the death of Swaminathan and injuries to Raju, and

that the rest had thrown stones, but the identity of these assailants was not

satisfactorily established, particularly since it was 10.30 p.m. in the night

and there was no light except moonlight. In our opinion it would be unsafe

to uphold the conviction of the appellant on these facts, and the appellant

has to be given the benefit of doubt which is an established principle for

criminal law. Furthermore, there is no evidence to indicate that of the six

persons who are alleged to have fired, it was the shot fired by the appellant

which caused the death of Swaminathan.

13. We are also in agreement with Shri Karpagavinayagam, learned

counsel for the appellant, that the case of the appellant is not very different

from that of accused nos. 2 to 6 because in the evidence it has been stated

that all the six accused had fired. Since accused 2 to 6 have been acquitted

we cannot uphold the conviction of appellant no.1 alone.

14. PW-3 Raju in his evidence has stated that he told the police during

the investigation that some unidentifiable unknown persons had fired on him and others. This also corroborates the defence version that in fact no

assailant was identified by the prosecution witnesses, and it was only a

subsequent improvement which was sought to be made in the prosecution

case.

15. It is curious to note that while PW-3 Raju mentioned in his

examination-in-chief that the appellant had fired with a country made gun

which caused Swaminathan and him to sustain injuries, in his cross-

examination he has stated that in the police investigation he said that

unidentified and unknown persons fired at them. This is another glaring

inconsistency in the deposition of PW3-Raju. Raju has also stated that after

the incident the police inspector did not ask him to identify the accused.

Since Raju has stated that unidentified persons had fired on him and

Swaminathan, his version in the examination-in-chief that accused no.1 had

fired at them cannot be believed. We are of the opinion that unidentified

persons fired at Swaminathan and Raju. At any event, the benefit of doubt

has to be given to the appellant.

16. Learned counsel for the appellant made several other submissions

before us e.g. that no stones were recovered, there were no stone injuries on anyone, there were no weapons on accused 1 to 6 at the time of their arrest,

the pellets were not sent for chemical examination, there was no test

identification parade, etc. but it is not necessary for us to go into these

submissions.

17. On the facts of the case we are of the opinion that the prosecution has

not been able to prove its case beyond reasonable doubt. The appeal is,

therefore, allowed. The conviction of the appellant under Section 302 and

other provisions of IPC is set aside. The appellant shall be set at liberty

forthwith unless required in some other criminal case.

18. Before parting with the case we would like to state that learned

counsels for both the parties argued the case before us with great ability and

deep knowledge of criminal law.

............................J. (Altamas Kabir)

............................J. (Markandey Katju) New Delhi;

August 5, 2008