D.THAMODARAN Vs. KANDASAMY & ANR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 341 of 2012, Judgment Date: Oct 07, 2015
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 341 OF 2012
D. THAMODARAN APPELLANT
VERSUS
KANDASAMY & ANR. RESPONDENTS
J U D G M E N T
Pinaki Chandra Ghose, J.
This appeal, by special leave, has been directed against the judgment and
order dated 30.07.2010 passed by the High Court of Judicature at Madras in
Criminal Appeal No.1030 of 2003, whereby the High Court allowed the
criminal appeal filed by respondent No.1 herein and acquitted him.
The facts of this case, as unfolded by the prosecution, are that the
appellant (PW1) was running a Soda Factory under the name and style of
“Suvai” and the 1st respondent herein was also running a Soda Factory under
the name and style of “Rusi”. As the soda bottles of the 1st respondent
were said to have been used by the appellant, their relations were strained
and consequently there was enmity between them.
On 13.04.2002 at about 9.00 pm, when the appellant (PW1) was talking with
Nedunchezhian (PW2), Iyengar (PW4) and Ramesh (PW5) at the Bus Stand near
the Ladapuram Mariamman Temple, accused Nos.1 to 6 came there and accused
No.1 (1st respondent herein) questioned the appellant as to how the soda
bottles from his factory had come to the appellant’s factory. Soon the
argument between them grew hot and the appellant was surrounded by accused
Nos.2 to 6. Accused No.1 abused the appellant and started beating him. Then
the father of the appellant – Durairaj (deceased) came there and tried to
dispel the quarrel and pacify them. At that point of time, it is alleged
that respondent No.1 ran to the mini lorry parked nearby and took out an
iron rod (used for removing tyres) and gave a blow on the head of Durairaj.
Durairaj fell down, bleeding with injuries, and was taken to the hospital
but he was declared dead. There were other allegations of beating, stone
pelting, beatings by glass tumbler, wooden canes given by the other accused
persons and PW1 and PW2 also suffered injuries. On hearing the hue and cry,
the village people gathered at the place of occurrence. The appellant
lodged the report same day at 11.30 p.m. at the Perambalur Police Station
and the case was registered as Crime No.174 of 2002 for offences under
Sections 147, 148, 323, 302 and 341 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”). The accused persons were arrested on
18.04.2002, and the alleged recovery of the weapon was made at the instance
of Respondent No.1.
The post-mortem on the dead body was conducted on 14.04.2002 and it was
opined that the deceased could have died due to shock and hemorrhage due to
injuries sustained in vital parts, like brain and head and bone fracture.
Police filed challan against six accused and thereafter charges were framed
against them under section 147, 148, 341, 323 and 302 of IPC. The charges
were read over and explained to them. All the accused persons pleaded not
guilty and claimed trial.
The Trial Court by its judgment and order dated 27.06.2003, convicted
Accused No.1 (respondent No.1 herein) for the offence punishable under
Section 304 part II IPC, and acquitted Accused Nos.2 to 6, disbelieving
the prosecution case. Aggrieved by the judgment and order passed by the
Trial Court, respondent No.1 filed an appeal before the High Court. The
High Court by the impugned judgment and order allowed the appeal and
acquitted respondent No.1 on the ground that the prosecution case suffered
from various infirmities, inconsistencies and inherent improbabilities and
hence the conviction was unsustainable in law.
The appellant (son of the deceased) has challenged before us the judgment
of acquittal passed by the High Court. Mr. Basant R., learned senior
counsel appearing for the appellant vehemently argued that the
prosecution has established a clear and cogent story which is consistent
with the evidence of PWs. 2, 4 and 5 and which is further corroborated by
the medical evidence of PW3 (Doctor). The said eyewitnesses have clearly
established the role of respondent No.1 in the occurrence and there is no
material contradiction in respect of the place of occurrence, the weapon
used and the single blow given on the deceased. To strengthen its case, the
recovery of the weapon used was made at the instance of respondent No.1.
Learned senior counsel for the appellant further argued that there was no
undue delay in lodging the FIR (Ex.P-1) and in sending the FIR to the area
Magistrate.
Mr. Karpagavinayagam, learned senior counsel appearing on behalf of
respondent No.1 argued that the High Court has categorically dealt with
each of the argument and passed a detailed judgment pointing out serious
lacunae. Further, it was argued that the recovery of the weapon was not
proved as both the attesting witnesses turned hostile. The iron rod
recovered was not found to have any contamination of blood. The defence
witness (DW1) successfully proved that weapon was in the hands of PW2 which
accidentally hit the deceased when it was aimed at respondent No.1. The
other articles used in the attack i.e. glass tumbler, bottles, stones and
wooden canes were not recovered. Also blood stained clothes of the
witnesses were not taken into custody and there exist serious
contradictions in the depositions of the witnesses. This is in addition to
the fact that all the witnesses are interested witnesses and despite the
occurrence alleged to have taken place near a bus stand, no independent
witness was called. Finally, the learned senior counsel for the respondent
argued that there was inordinate delay in lodging the FIR and its
genuineness itself was doubtful on the ground that though PW1 had deposed
that he had given a written report by himself, but there was a difference
in handwriting between the contents of the report and the signatures.
We have heard the learned senior counsel for the parties and perused all
the evidences and records of the case. At the foremost, the infirmities in
the depositions of the witnesses are argued. The four witnesses produced
are interested witnesses; three being in blood relation to the deceased and
the fourth is a business partner of PW1. From the depositions of the
witnesses it is clear that all the witnesses lived within close proximity
to the place of incident and the said place is close to a temple, bus stand
and tea stall. PW1 has specifically deposed that around 20 people were
present at the time of incident and more people came there when the scuffle
grew. The High Court rightly pointed out the lacunae in the investigation
that despite the place of occurrence being a busy place, no independent eye
witness was examined by the prosecution. The depositions made by the four
witnesses also could not firmly established a unified story as their
versions differed on the point of the exact place of incident and the
sequence of events.
The High Court rightly held that the delay in lodging the FIR has not been
explained by the prosecution. The incident is alleged to have occurred at
around 9:30pm; thereafter the deceased was lying at the spot for about 20
minutes; the deceased was taken to the hospital at about 10:00-10:15pm; and
the FIR was lodged by PW1 by giving a report in his own handwriting at
11:30pm. The distance between the place of occurrence and the Perambalur
Government Hospital is about 15km, and further 200 meters away is the
Police Station. According to PW1, he brought the deceased to the Perambalur
Government Hospital at 10pm. However, it is improbable that he covered a
distance of 15 km in very short time but took more than an hour to reach
the Police Station which was just 200 meters away. Thus, there occurred an
undue delay in lodging the FIR. Another infirmity in the genuineness of the
FIR was pointed out by the defence as PW1 stated that he made the FIR in
his own handwriting. However, upon examination the handwriting and the
signature on the FIR were proved to be not matching with those of PW1.
The prosecution based on the medical opinion argued that there was only one
blow which resulted into three injuries. The doctor without seeing the
weapon opined that the three injuries could have been possible with a
single blow by iron rod and even after seeing the weapon held on to his
opinion. Even though the above is proved, the prosecution has failed to
prove the recovery of M.O.1 i.e. the iron rod. The prosecution witnesses
specifically stated that the weapon used was an iron pipe, however, alleged
recovery was made of one iron rod. There is difference between an iron pipe
and an iron rod. The alleged recovery was not proved by the witnesses, as
PW7 and PW11 turned hostile. Upon examination there was no blood stain
found on the weapon. Therefore, the prosecution failed to connect the
alleged recovered weapon with the weapon used in the incident.
The prosecution also failed to explain as to why the blood-stained clothes
of PWs were not seized. The said fact would have testified the presence of
witnesses at the place of occurrence. Also, the witnesses, at any time, did
not depose or produce before the Court their blood-stained clothes. In
light of the above, an adverse inference is drawn against the role of the
prosecution which already made a material flaw by not examining any
independent witness.
Another view which disproves the prosecution story is that the witnesses
deposed that they were attacked by glass tumblers, bottles, stones and
wooden canes. However, none of these articles were recovered or seized by
the prosecution from the place of incident. PW1 and PW2 though suffered
simple injuries, the doctor (PW3) opined that the injuries could be
sustained when entangled in a rough surface, if fallen on a rough surface,
bruises could be sustained. There exists a possibility of minor scuffle at
the place of incident. PW4 also deposed that there was a scuffle between
respondent No.1 and the appellant (PW1).
The prosecution has been able to prove the injuries sustained by the
deceased. However, serious discrepancies arise from the depositions of the
prosecution witnesses. The place of incident and the sequence of events are
not proved. The weapon recovered could not be linked to the incident. The
recovery itself is not proved. There is inordinate delay in lodging the
FIR, which is in addition to the lack of genuineness of the FIR document
itself. The possibility of subsequent material alterations cannot be ruled
out. The defence examined one independent witness who deposed that the rod
was in the hands of PW2 who accidentally struck the deceased while he
intended the same on respondent No.1. It appears from the chain of events
and previous enmity between the parties that there occurred a scuffle which
grew hot and led to an injury which resulted into the death. However, it is
not correct to impute the culpability on the accused when various
inconsistencies occur in the evidences which are fatal to the case of the
prosecution.
Thus, in the light of the above discussion, we are of the opinion that the
present appeal is devoid of merits, and we find no ground to interfere with
the judgment passed by the High Court. The appeal is, accordingly,
dismissed.
…....................................J
(Pinaki Chandra Ghose)
…...................................J
(R.K. Agrawal)
New Delhi;
October 07, 2015.
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