D.THAMODARAN Vs KANDASAMY
Bench: PINAKI CHANDRA GHOSE,R.K. AGRAWAL
Case number: Crl.A. No.-000341-000341 / 2012
Diary number: 15721 / 2011
Advocates: SENTHIL JAGADEESAN Vs
SHIV PRAKASH PANDEY
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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.
1. 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.
2. The facts of this case, as unfolded by the prosecution, are
that the appellant (PW1) was running a Soda Factory under the
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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.
3. 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
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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.
4. 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.
5. 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.
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6. 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.
7. 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
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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.
8. 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
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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.
9. 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.
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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.
10. 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
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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.
11. 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.
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12. 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.
13. 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).
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14. 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.
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15. 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.