REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 409 OF 2017

KUMAR   …APPELLANT(S)

VERSUS

STATE REPRESENTED BY INSPECTOR OF POLICE                …RESPONDENT(S)

JUDGMENT N.V. RAMANA, J.

1. This appeal is filed by the present appellant, aggrieved by

the  concurrent  findings  of  the  court  below,  which  has

upheld the culpability of the accused for culpable homicide

amounting  to  murder  under  Section 302 of  Indian Penal

Code  [hereinafter  ‘IPC’  for  brevity]  and  voluntary  causing

hurt by dangerous weapons or means under Section 324 of

IPC.  This  appeal  presently  impugns  the  High  Court

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judgment dated 22.02.2016, in Criminal Appeal No. 326 of

2013.

2. The prosecution story in a nut shell begins with an earlier

scuffle between the accused and deceased (Sakthivel), while

watching a street play conducted during a village festival. It

is alleged that the accused-appellant was rebuked by the

deceased  for  sitting  next  to  ladies.  In  this  context,  on

20.08.2009, at about 6:00 PM the accused came to the spot

where  Rajendran  (PW-1),  Arumugham  (PW-2)  and

Subramani  (PW-3)  were  savoring  idliis  from  the  stall  of

Sumathi  (PW-4),  when the accused-appellant arrived with

an intention to draw out Sakthivel (deceased), by picking up

a  quarrel  with  Rajendran  (PW-1),  who  was  his

brother-in-law.  Accordingly,  the  accused-appellant  arming

himself  with  a  wooden  log  lying  nearby,  assaulted

Arumugham  (PW-2),  who  came  to  the  rescue.  At  that

moment  the  Sakthivel  (deceased)  is  supposed  to  have

intervened.  Seeing  him,  the  accused  barged  on Sakthivel

claiming to finish him while kicking and pushing him into

the water canal. When he tried to climb up from the canal,

the accused hit  him with a wooden log on his head. The

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villagers present  at  the spot,  then prevented the  accused

while assaulting him on his head, thereby causing injuries

to the accused. Thereafter, both the injured Sakthivel and

accused  were  shifted  to  the  Government  Hospital,

Pudukottai  in  an  ambulance.  Ultimately  the  Sakthivel

succumbed to the injuries before reaching the Hospital.

3. Sub-Inspector Ramaswamy—PW-23 registered an FIR (Ext.

P1) against the accused for the offences punishable under

Sections  302  and  324  of  IPC  in  Crime  No.  47  of  2009.

Circle  Inspector  Subhakumar—PW-24,  undertook  the

investigation,  visited  the  place  of  occurrence,  prepared

observation mahazar and drew the rough sketch (Ext. P7).

The alleged weapon (wooden log—stick) (Ext. P8)  used in

the administration of crime was recovered from the spot. On

the next day, he conducted inquest vide report (Ext.P9) and

dead  body  of  the  deceased  Sakthivel  was  sent  for

postmortem.  Subsequently,  the  accused—appellant  was

reported  to  be  arrested  on  22nd August,  2009.  The  I.O.

recorded the  statements  of  Dr.  Lavanya,  the  Doctor,  who

treated  PW-2  (Arumugham),  and  Dr.  Illayaraja,  who

conducted  postmortem  of  the  deceased.  Thereafter  the

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authorities seized the clothes of the deceased reported in the

seizure report being M.O.4 to M.O.6. After completing the

investigation, the I.O. submitted his report to the learned

District  Munsif-cum-Judicial  Magistrate  levelling  charges

against  the  accused  for  the  offences  punishable  under

Sections  324  and  302  of  IPC.  The  learned  Judicial

Magistrate  in  turn  committed  the  case  to  the  Sessions

Court.  The accused pleaded not  guilty and claimed to be

tried.

4. The  Sessions  court  by  order,  dated  07.10.2013,  awarded

conviction  to  the  accused  and  directed  him  to  suffer

rigorous imprisonment for life for the offence under Section

302 of IPC and to pay a fine of Rs. 5,000/-, in default of

payment  of  fine,  to  further  suffer  an imprisonment  for  a

period of one year. The accused was also sentenced to suffer

rigorous  imprisonment  for  a  period  of  one  year  for  the

offence under Section 324 of IPC. Both the sentences were

however  directed  to  run  concurrently.  The  main  reasons

given  by  the  trail  court  for  maintaining  the  conviction

against the appellant-accused are- i. That the motive concerning the verbal spat between the

accused and the deceased Sakthivel is proved by PW-1, PW-6, PW-8 and PW-7.

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ii. That the delay was sufficiently explained, as the police were busy in conducting investigation in other case.

iii. That the recovered objects from the scene of crime has been proved before the court.

iv. That the injury on the accused has been attributed to a scuffle  between  the  deceased  and  the  crowd,  which stands corroborated by the witness, statement of PW-2, PW-3 and PW-5.

v. The  trial  recognizes  that  there  were  no  step  taken  to identify the injury on the accused.

vi. That the mere wrong entry of timing in the inquest report, would not vitiate the post mortem report much less the prosecution case itself.

vii.That on the aspect of arrest, it is an acceptable inference, that the accused was forcefully discharged by the police personnel on 21.08.2009, and was confined by the police for  one whole  day,  and the  arrest  was only  shown on 22.08.2009. Further as there was no confession obtained due to such action by the police, the entire case cannot be vitiated.

viii. That publication of the story in a newspaper cannot be relied on, as the defense has not taken steps to mark the evidence or examine the editor.

ix. That  the  case  was  proved  by  the  prosecution  beyond reasonable doubt.

5. Aggrieved,  the  accused-appellant  approached  the  High

Court.  By the impugned order,  the High Court dismissed

the appeal of the accused on the following grounds- i. That  the  contention  of  the  defense  concerning  the

statement of the PW-2 about recording by the police, just after the incident is a flimsy contradiction, which does not have the force to dislodge the entire case.

ii. That  PW-2’s  cross  examination  after  re-calling  the witness, cannot be taken into consideration.

iii. That failure to provide reasons for the injuries sustained by the accused, would not be sufficient to dislodge the prosecution’s case.

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iv. That  the  nature  of  weapon  and  the  injury  would  not mandate  reduction in the  sentence  from the  charge  of murder to grievous injury.

6. Aggrieved, by the concurrent finding of the fact, the accused

has approached this court.

7. The main thrust of argument by the learned counsel for the

appellant is that the entire prosecution case is a fabricated

in such a way so as to implicate the appellant in the case as

culprit.  The  real  circumstances  of  the  case  have  been

concealed  by  the  prosecution  in  order  to  help  the

complainant. Even the motive projected by the prosecution

is false. There was no complaint lodged by the deceased or

his wife against the accused, which itself  proves that the

motive ascribed to be the alleged verbal spat between the

deceased and accused at the drama in the village on the eve

of  Kaliamman  temple  festival.  Secondly,  there  was  huge

delay in registering the FIR and the delay was caused only

to implicate the appellant. On the fateful day i.e. 20.8.2009

at  about  6:23  P.M.  police  got  the  information  about  the

occurrence,  but  no  FIR  was  lodged.  At  about  7:30  P.M.

police visited the spot, conducted enquiry, suspected PWs 1

to 3 to be the real culprits and took them into their custody.

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Even PW2 informed police that he received injuries due to

the attack made by the deceased. The appellant has also

injured in the fight at the hands of deceased. But, police did

not register the complaint on the basis of actual occurrence,

and the courts below failed to appreciate the true aspects of

the case particularly non-explanation by the prosecution as

to  the  injuries  sustained  by  the  accused.  Thereafter,  the

accused—appellant and deceased were sent to the hospital

in same ambulance and till the discharge of the appellant

from hospital, police did not suspect him as a culprit. It is

only  thereafter,  police  in  connivance  with  complainant

cooked up a case against the appellant, the complaint was

suitably prepared and FIR (Ext. P1) registered. Even at the

time of framing charges against the accused a charge under

Section,  323,  IPC  was  first  charged  but  the  trial  Court

convicted the appellant under Section 324, IPC. The trial

Court  as  well  as  the  High  Court  failed  to  notice  the

suppression  of  facts  by  the  prosecution  and  came  to  a

wrong  conclusion  without  appreciating  the  evidence  in

accordance  with  settled  principles  of  law,  and  thereby

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rendered a perverse judgment which is required to be set

aside by the interference of this Court.

8. On the other hand, learned counsel for the State supported

the  view  taken  by  the  Courts  below  and  submitted  that

having  regard  to  the  facts  and  circumstances,  the  trial

Court assessed them in proper perspective and delivered a

reasoned  judgment.  The  conviction  and  sentence  passed

against  the  accused  has  also  been  affirmed  by  the  High

Court  by  categorical  findings  which  does  not  require

interference of this Court.

9. Having  heard  learned  counsels  for  both  parties,  we

acknowledge that  this  case is  a direct  evidence case and

based on statement of eyewitnesses which mandates us to

observe statements of certain eye witnesses for the disposal

of this case at hand.

10. A  bare  perusal  of  the  evidence  deposed  by  the

complainant—PW-1  (Rajendran)  shows  that  while  the

complainant was in the company of Arumugham (PW2) and

Subramanian (PW-3) having idliis sold by Sumathi (PW4),

the accused appeared and picked up the assault on him. In

the process of interference to prevent the assault, PW2 also

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got  injured.  Soon  thereafter,  with  the  appearance  of  his

brother-in-law  (Sakthivel—deceased)  at  the  spot,  the

accused  pushed  him  into  canal  and  assaulted  with  a

wooden log on the forehead of Sakthivel. Then Rajinikanth

(PW15)  and Balasundaram (PW19)—another  co-brother  of

the  complainant,  called  the  ambulance  and  took  the

accused and Sakthivel to the hospital while the complainant

followed them on two-wheeler and at the hospital he came

to know about the death of the deceased, then he went to

Udayalipatti police station and lodged complaint (Ext.P1).

11. The  deposition  of  PW-2—Arumugham  @  Iyyer,  an

eyewitness to the incident, is to the effect that when he was

preventing the accused who was about to assault PW1, he

sustained injuries. At that point of time, the deceased came

with a wooden log in his hand and fought with the accused.

He has also asserted that the ambulance came after police

examined him and took his signature. He has further made

it clear that many persons, including nearby shop owners,

witnessed  the  incident,  but  it  is  a  matter  of  record  that

except  himself,  two  brothers-in-law  of  the  deceased  and

Rasu, no one else was made witness. He further deposed

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that the deceased assaulted the accused with the wooden

log on head due to which the accused got injury. When the

deceased was trying to hit the accused for a second time, he

intervened  due  to  which  he  got  injury  on  his  wrist.  On

suspicion, police took him along with PWs 1 and 3 to the

Keeranur  Police  Station  where  they  detained  him for  the

night and then sent to Government Hospital on the next day

morning. Before his examination in chief, they warned him

that if  he does not depose as instructed, they will  foist a

case against him.

12. In his cross-examination PW-2 reveals as under-

Immediately  after  the  occurrence, Udayalipatti  police  came  to  the  place  of occurrence and enquired about the incident and  get  my  signature  after  recording  my statement.  They  recorded  my  statement, before  the  arrival  of  108  ambulance  and before we took Sakthivel and Kumar. At the time,  rajendra  was  also  presented  and  the police recorded his  statement and obtained his signature. The police examined me only prior  to  the  arrival  of  108  ambulance  and never examined me after the arrival  of  108 ambulance.  

On recalling the PW-2, he states as under-

The  deceased  Sakthivel  assaulted  the accused in his head with the wooden log. I cam  there  and  the  accused  sustained injuries in his head before I reached there.

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When I intervene the second blow by the Sakthivel, I sustained injuries in my writ. The  accused  Kumar  also  sustained injuries  on  his  head.  The  Sakthivel  fell down in the channel due to the forceful attack by him and the accused also fell down.

(emphasis supplied)

It may be noted that PW-2 is not declared as hostile by the

prosecution.

13. In  his  cross-examination,  PW3—Subramanian,  another

eyewitness and close relative of the deceased, also admitted

that  the  occurrence  took  place  at  6  p.m.  and  the  scuffle

between the accused and deceased was for five minutes. By

the time the occurrence was completed, there was darkness.

He further admits that he was examined by the Inspector of

Police at the place of occurrence and PWs 1 & 2 were also

present  at  that  time.  He  was later  taken to  the  Keeranur

police station along with PWs 1 and 2.  

14. That PW-4 (Sumathi), who is alleged to be selling idliis, has

not supported the case of the prosecution.

15. PW5—Rasu, corroborates the version of PW-2, wherein he

states  that  both the  accused and the  deceased had held

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sticks. During the scuffle both of them fell into the channel

and both were unconscious by the time they were pulled up.

16. Rajinikanth—PW-15 deposed that at 7:15 P.M., he went to

Kurunthankudi bridge upon hearing about the occurrence

and found the accused and deceased lying there and took

them to Government Hospital in ambulance. Then he came

back  to  the  place  of  occurrence  along  with  Village

Administrative  Officer  (PW-14)  where  police  prepared  a

rough  sketch  and  took  his  signature.  However,  in  his

cross-examination he deposed that, by the time he reached

the place of occurrence, police had already arrived there and

thereafter ambulance came. He further stated that PW-1—

Rajendran  narrated  to  the  police  everything  about  the

incident and police reduced it into writing and his signature

was also obtained.

17. In  his  evidence,  PW19—Balasundaram  has  also  stated

categorically  that  the  ambulance  came  to  the  place  of

occurrence  after  the  arrival  of  police  and they seized the

wooden log. According to him doctors declared the death of

Sakthivel at about 8.45 p.m. and Rajendran—complainant—

PW1  was  not  present  at  that  time,  but  Inspector,

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Sub-Inspector  and  Head  Constable  were  present  who

examined him and PW15, but did not obtain his signature.

18. Head  Constable  Mohan—PW20,  in  his  chief  examination

adduced that at 6.23 p.m. on the day of incident, while he

was  going  towards  Ulaghanathapatti  in  connection  with

investigation in some other case, he received a call on his

mobile phone about the occurrence. He immediately passed

on the message to his seniors and called an ambulance. At

7:00 P.M., when he reached the place of occurrence, they

found the deceased lying at Bridge Stone, Kurunkulam with

injuries  while  the  accused  was  lying  at  road  side.  He

immediately sent them to Government Hospital at 7:05 P.M.

However, in the cross examination, he stated that he had

enquired PW-1—brother-in-law of the deceased and did not

see the wounded accused and deceased when he reached

the place of occurrence.

19. We have also gone through the statements of PWs 6, 7, 8, 9,

10,  11,  12,  13,  16,  22  etc.  Most  of  them  are  hearsay

witnesses and nothing  important  seem to  come out  from

their depositions.

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20. Contrary to what Rajendran—Complainant (PW-1) deposed,

a combined reading of the evidences adduced by PWs 2, 3,

5, 15, 19 and 20 would make it abundantly clear that both

the accused and the deceased have participated in the fight

with wooden logs, accused has got head injury at the hands

of deceased, PW2 (Arumugham) himself also received injury

at the hands of accused while he was trying to protect PW1

(Rajendran) from the assault of the accused, police reached

the  place  of  occurrence  within  ten  minutes  of  the

occurrence, that is well  before the arrival of ambulance and

Rajendran—PW1  (complainant),  Arumugham  @  Ayyar

(PW2),  Subramanian (PW3) and other witnesses described

the incident to the police who then examined the persons

present  there,  rough  sketch  was  prepared  and  their

signatures were also obtained.

21. Having  observed  the  various  depositions,  we  are  of  the

considered  opinion  that  there  are  four  crucial  aspects

herein,  which  should  be  discussed  and  elaborated  upon.

The above evidence if examined from the perspective of time,

the overall impression that can be drawn from the foregoing

discussion is that the occurrence took place at around 6.15

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p.m.,  and  the  Head  Constable  Mohan  (PW-20)  received

information of occurrence at 6:23 P.M. and he passed on

the message to Sub-Inspector and Circle Inspector at 6:26

P.M.,  soon  thereafter  ambulance  arrived  at  the  spot  of

occurrence at 6.30 p.m. At that point of time, Police have

enquired  PW-1,  PW2  and  other  witnesses,  drawn  report,

sketch  map etc.,  and took  their  signatures  and  sent  the

injured  persons  to  hospital.  That  sequence  of  incidents

shows that already investigation was started by police. That

means  the  information  provided  by  PWs  1,  2  and  other

witnesses  at  about  6:30  P.M.  at  the  place  of  occurrence

should have ideally been the basis of the F.I.R. Whereas the

F.I.R. (Ext.P1) shows that the information was received at

police station at 9.30 p.m. on 20th August, 2009.  

22. We may note that  this  case involves a fight  between two

persons-accused  and  the  deceased.  Majority  of  the  eye

witnesses including PW-1, PW-3, have categorically stated

that accused-appellant was the aggressor. Interestingly, the

PW-2 states that, even the Sakthivel assaulted the accused

by a wooden log on the head, his statement should be given

credence for eight major reasons-

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i. That the Police has subdued the statement of PW-2 taken moments after the incident.

ii. That PW-4 corroborates the version of PW-2. iii. That the injury on the accused has not be accounted for. iv. That the accused was also noted to be injured by all the

prosecution witness, without specific statements as to the nature and all the prosecution witnesses state that the injury on the accused were imputed by the by-standers without much clarity.

v. That  the  mode  of  arrest  by  the  police  to  have unauthorizedly discharged the accused from the hospital and illegally confining him for a day in police custody.

vi. Active botch-up of investigation by the police authorities. vii.Unexplained  delay  in  registering  the  FIR  in  the  police

station. viii. He is alleged to be the person, who had been injured in

the incident.

23. From the account of eye witness, we may observe that there

are  at  least  three  different  versions  which  substantially

weakens the prosecution’s case.

24. On the point of suppression of genesis of the crime, PW-20

(head  constable)  categorically  states  that  he  was  present

before the Ambulance had reached the place. Even though

he was extensively cross-examined, he has not budged from

his position that there was no recording of any statement

before  the  Ambulance  recorded.  On  the  contrary  PW-2

categorically  remarks  that  a  statement  was  recorded  by

PW-20  before  the  ambulance  arrived.  Although  the  High

Court  has  discredited  the  evidence  of  PW-2  as  the  part

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which provides the aforesaid details was on recalling after

few days, therefore, in light of possibility of being won over,

the credibility of the statement made by PW-2 needs to be

viewed  with  this  background  fact.  However,  we  fail  to

understand  internal  logic  of  such  assumption,  when  the

prosecution  has  not  declared  the  witness  as  hostile  and

more  so,  when  his  narrative  is  corroborated  by  other

witnesses. Therefore, PW-2’s evidence needs to be taken into

fold.

25. It  is  matter  of  record  that  the  alleged accused-appellant,

was  arrested  in  a  hurried  manner  after  the  day  of  the

incident from the hospital. It is also stated that the police

authorities  in  an  unusual  manner  got  the  appellant

discharged from the hospital and kept him illegally confined

for  a  day.  Moreover,  PW-2  has  categorically  stated  the

following on the action of the police-

The  police  enquired me about  the  incident and I narrated the same. The police and the Sub-inspector  of  Police  on  suspicion  taken myself,  PW-1  (Rajendran)  and  PW-3 (Subramanian) to Keeranur Police Station. I was  detained  in  Keeranur  police  station during  the  night  and  on  the  next  day morning,  I  was  sent  to  Keeranur Government  Hospital  for  treatment. Before  I  was  examined  in  chief,  they

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warned me that if I have not deposed as instructed  them,  they  will  foist  a  case against  me  and  only  for  that  reason,  I have stated like that.

(emphasis supplied)

The action of investigating authority in pursuing the case in

the manner which they have done must be rebuked. The

High Court on this aspect, correctly notices that the police

authorities  have  botched  up  the  arrest  for  reasons  best

known to  them.  Although we  are  aware  of  the  ratio  laid

down in Parbhu v. Emperor, AIR 1944 PC 73, wherein the

court  had  ruled  that  irregularity  and  illegality  of  arrest

would not affect the culpability of the offence if the same is

proved by cogent evidence, yet in this case at hand, such

irregularity should be shown deference as the investigating

authorities are responsible for suppression of facts.  

26. The criminal justice must be above reproach. It is irrelevant

whether the falsity lie in the statement of witnesses or the

guilt  of  the  accused.  The  investigative  authority  has  a

responsibility to investigate in a fair manner and elicit truth.

At  the  cost  of  repetition,  I  must  remind  the  concerned

authorities to take up the investigation in a neutral manner,

without having regards to the ultimate result. In this case at

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hand,  we  cannot  close  our  eyes  to  what  has  happened;

regardless  of  guilt  or  the  asserted  persuasiveness  of  the

evidence,  the  aspect  wherein  the  police  has  actively

connived  to  suppress  the  facts,  cannot  be  ignored  or

overlooked.

27. Another point put forth by the learned counsel on behalf of

the  accused—appellant  is  that  the  prosecution  has  not

explained the injuries suffered by the accused and hence

prosecution case should not be believed. At the outset,  it

would be relevant to note the settled principles of law on

this aspect. Generally failure of the prosecution to offer any

explanation  in  that  regard  shows  that  evidence  of  the

prosecution witnesses relating to the incident is not true or

at any rate not wholly true [See : Mohar Rai and Bharath

Rai v. The State of Bihar, 1968 CriLJ 1479].

28. In Lakshmi Singh and Ors. v. State of Bihar, 1976 CriLJ

1736 this Court observed:

“Where the prosecution fails to explain the injuries on the accused, two results follow : (1)  that  the  evidence  of  the prosecution witnesses is untrue; and (2)    that  the injuries  probabilise the plea taken by the appellants.

It was further observed that:

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In a murder case, the non-explanation of the  injuries  sustained  by  the  accused  at about the time of the occurrence or in the course  of  altercation  is  a  very  important circumstance  from  which  the  Court  can draw the following inferences :

(1) that  the  prosecution  has suppressed  the  genesis  and  the origin  of  the  occurrence  and  has thus not presented the true version;

(2) that  the  witnesses  who  have denied the presence of the injuries on the person of the accused are lying on a  most  material  point  and,  therefore, their evidence is unreliable;

(3) that  in  case  there  is  a  defence version which explains the injuries on the  person  of  the  accused  assumes much  greater  importance  where  the evidence  consists  of  interested  or inimical witnesses or where the defence gives  a  version  which  competes  in probability with that of the prosecution one.”

29. In  the  case  on  hand,  admittedly,  the  accused—appellant

was also injured in the same occurrence and he too was

admitted in the hospital. But, prosecution did not produce

his  medical  record,  nor  the  Doctor  was examined on the

nature of injuries sustained by the accused. The trial Court,

instead of seeking proper explanation from the prosecution

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for the injuries sustained by the accused, appears to have

simply believed what prosecution witnesses deposed in one

sentence  that  the  accused  had  sustained  simple  injuries

only.

30. From the evidence of I.O.—PW24 it is apparent that in the

scuffle PW2 (Arumugham) received “simple” injuries and he

had taken the statement of Dr. Lavanya (PW17) who treated

PW2.  He  had  also  examined  Dr.  Illayaraj  (PW18)  who

conducted postmortem on the body of the deceased. But, in

the case of accused—appellant, PW24—I.O. admits that he

was  aware  of  the  fact  that  the  accused-appellant  was

admitted  as  in-patient  and  the  accused-appellant  had

sustained  injuries.  He  further  states  that  neither  did  he

arrest the accused nor he examined the Doctor in regard to

the injuries of accused. In the circumstances in which the

deceased, accused and also PW-2 (Arumugham) got injuries,

it is obligatory on the part of I.O. to examine the Doctor and

seek  information  about  the  injuries  sustained  by  the

accused and the same should have been made part of the

record. A duty is cast on the prosecution to furnish proper

explanation  to  the  Court  how  the  person  who  has  been

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accused of assaulting the deceased, received injuries on his

person  in  the  same  occurrence.   We  may  note  that  the

injuries  alleged  to  have  been  caused  are  not  properly

explained. An alternative story is set up wherein the injuries

are  attributed  to  mob  justice,  such  allegations  without

substantive evidence cannot be accepted.

31. Coming  to  the  other  aspect  of  the  case,  motive  of  the

accused to  commit  the  crime is  ascribed to  the  previous

quarrel occasioned between the accused and the deceased

during  a  drama  at  a  village  festival.  Generally,  in  case

prosecution  desires  to  place  motive  of  the  accused  as  a

circumstance, like any other incriminating circumstance, it

should also be fully established. We are alive to the fact that

if the genesis of the motive of the occurrence is not proved,

the ocular testimony of the witnesses as to the occurrence

could not be discarded only on the ground of  absence of

motive, if otherwise the evidence is worthy of reliance. But

in the case on hand, as we have already discussed in the

above paragraphs,  the evidence of  direct  witnesses is  not

satisfactory and on the other hand, it is demonstrated that

the deceased hit the accused on his head with the wooden

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log besides the testimony from the eye witnesses that there

was  scuffle.  In  such  a  factual  situation,  certainly  motive

may act as a double-edged sword.

32. In the light of the settled law thus by this Court and also

from what is clear from the evidence, there is absence of

extreme cruelty,  even if  it  assumed that  accused  hit  the

deceased with the log. Had there been a strong motive to do

away with the life of deceased, generally there would have

been more fatal injuries caused on the deceased not by a log

but  by  utilizing  more  dangerous  weapons.  These

circumstances  would  tell  us  that  there  is  no  reason  to

believe that motive was entertained by the accused in the

back drop of quarrel that took place during drama at the

village festival, prior to the date of occurrence. In as much

as the prosecution laid the foundation for the commission of

crime by the accused in the said quarrel as an element of

motive,  in  the  absence  of  positive  proof  of  such  motive,

prosecution has to face the peril  of failure in establishing

that foundation.  

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33. Now coming to other charge under Section 324 of IPC, for

causing injuries to Arumugham @ Ayyar [PW-2]. In light of

the deficiencies noted above, it can be easily said that even

the charge under Section 324 of IPC is not established. The

aforesaid conclusion is clearly buttressed by the fact that

the injured witness himself has attributed the injury on him

to the deceased, instead of the accused. In such a situation

conviction  of  the  accused  on  the  charge  of  Section  324

cannot be sustained under law.

34. Taking  stock  of  the  circumstances  and  depositions  of

prosecution witnesses in this case, it would be difficult to

hold  that  prosecution  has  laid  the  case  on  real

circumstances  and  proved  its  case  beyond  reasonable

doubt. We are surprised at the way in which Courts below

have perceived the facts and circumstances of this case. We

are not in agreement with the views drawn by the trial Court

as well as the High Court while dealing with the matter.

35. Normally this Court does not interfere with the concurrent

findings recorded by the Courts below, but in this case we

find certain exceptional  circumstances as narrated above,

considering these aspects we feel that this is a fit case for

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our interference. In our opinion, instead of dealing with the

intrinsic  merits  of  the  evidence  of  witnesses,  both  the

Courts below have acted perversely. Once we arrive at the

conclusion that we cannot lend credence to the genuineness

of the F.I.R. and the prosecution case, there is no need of

further enquiry as the assertion made by the prosecution

are  not  proved  beyond reasonable  doubt.  In  the  peculiar

facts and circumstances of the case, definitely the benefit of

doubt goes to the accused—appellant. Viewed in that angle,

the judgments of the Courts below awarding conviction and

sentence to the accused—appellant requires to be set aside.

36. In the result, the appeal is allowed and the conviction and

sentence  awarded  by  the  Courts  below  is  set  aside.  The

accused—appellant  stands  acquitted  from all  the  charges

levelled against him. The appellant is stated to be in jail. He

may be set at liberty forthwith, if not required in any other

case.

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

..................................J.       (S. ABDUL NAZEER)

NEW DELHI, May 11, 2018.

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