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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.