REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1100 OF 2009

PALANI             …Appellant VERSUS

STATE OF TAMIL NADU    …Respondent

J U D G M E N T  

R. BANUMATHI, J

This  appeal  arises  out  of  the  judgment  dated  30.07.2008

passed  by  the  High  Court  of  Madras  at  Madurai  Bench  in  S.B.

Criminal Appeal No. 427 of 2007 in and by which the High Court has

dismissed  the  appeal  filed  by  the  appellant  herein  thereby

confirming his conviction under Section 148 IPC, Section 435 read

with Section 149 IPC and Section 302 read with Section 149 IPC

and the sentence of imprisonment imposed upon him by the trial

court.  

2. Kamala (PW-1) is mother of deceased Sankar and Iyyappan

(PW-2).  Vijayalakshmi is the wife of PW-2 and Abbas (PW-3) is

brother of PW-1.  The genealogy of the deceased party is as under:-

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Kamala (PW-1-Complainant)

Abbas (PW-3)   Maternal Uncle of deceased

Sankar (Deceased) Iyyappan (PW-2) Vijayalakshmi    Son of PW-1    Son of PW-1 Wife  of  PW-2 and elder  daughter  of A8

Case of the prosecution is that on 19.08.1996 at about 05.00-05.30

PM, Kamala (PW-1), mother of deceased Sankar, Iyappan (PW-2),

brother of deceased and Abbas (PW-3), maternal uncle of deceased

went in an auto to Harikesavanallur to see the child of PW-2 who

was born on 15.08.1996.  Deceased Sankar along with Abbas (PW-

3)  followed  them  on  a  motor  cycle.   When  they  reached  near

Pilaiyar  temple  in  Harikesavanallur,  eight  accused  persons

Balakrishnan (A1) having  aruval, Subramanian (A2) having aruval,

Jenakaran (A3) having knife, Mari @ Mariappan (A4) having knife,

Raja (A5) having knife, Kasi (A6) having aruval, appellant/accused

Palani (A7) having aruval and Jayalakshmi (A8) (since dead) having

match box surrounded the deceased Sankar.   On exhortation by

accused  Jayalakshmi,  accused  Mari  @  Mariappan  stabbed

deceased Sankar from the back and accused Jayalakshmi threw a

lighted  match  stick  into  the  petrol  tank  of  the  bike  of  deceased

Sankar  and  burn  it  into  fire.   On  seeing  this,  Kamala  (PW-1),

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deceased  Sankar  and  Abbas  (PW-3)  ran  in  various  directions.

Kamala (PW-1) followed her son deceased Sankar.  All the accused

followed them.  When they reached near the field, all the accused

surrounded Sankar and accused Balakrishnan cut the deceased on

the right  shoulder  and left  neck with  aruval;  accused Jenakaran,

Mari  @ Mariappan and Raja  stabbed the deceased with  knives;

accused Kasi and appellant/accused Palani cut deceased Sankar

with  aruval.  Profusely bleedings, deceased Sankar fell down and

died on the spot. Thereafter, Kamala (PW-1) went to Veeravanallur

Police Station at about 08.00 PM and narrated the whole incident

and  lodged  the  complaint  (Ex.-P1)  with  Ramaiah,  Sub-Inspector

(PW-11).  On receipt of the complaint (Ex.-P1), Sub-Inspector (PW-

11) registered the FIR (Ex.-P11) under Sections 147, 148, 435, 341

and 302 IPC in Crime No.150 of 1996 against all the accused.  

3. Dr. Ulagammal (PW-7) conducted post-mortem on the dead

body of deceased Sankar and after noting multiple injuries, issued

post-mortem certificate (Ex.-P6) opining that the death was caused

due to shock haemorrahage and multiple injuries.  On 04.09.1996,

Investigating  Officer  made  application  to  the  court  and   took

accused No.2, 4, 5 and 6 from judicial custody to police custody.

Based  on  the  disclosure  statements  of  A2,  A4,  A5  and  A6,  the

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weapons – aruvals of different size (bill hooks) and knives (MO-17

to MO-20) were seized under Exts. P26 to P30 from various places

pointed out by the above accused.

4. To  prove  the  guilt  of  the  accused,  the  prosecution  has

examined  thirteen  witnesses  (PWs  1  to  13)  and  exhibited  thirty

three documents (Ex.P1 to P33) and twenty material objects (MOs 1

to 20).  The accused were questioned under Section 313 Cr.P.C.

about  the  incriminating  evidence  and  circumstances  and  the

accused denied all of them.

5. Upon consideration of evidence of eye-witness Kamala (PW-

1) supported by medical evidence and other evidence, the trial court

convicted all  the accused under  Sections 148,  Section 435 read

with Section 149 IPC and Section 302 read with Section 149 IPC

and sentenced all  of  them to  undergo  imprisonment  for  life.   In

appeal,  the  High  Court  dismissed  the  appeal  preferred  by  the

appellant/accused and also the appeals preferred by other accused

No.1, 3, 5 and 6 and affirmed the conviction of the appellant and

sentence  of  imprisonment  imposed by the trial  court.   The  High

Court  held  that  the  testimony  of  eye-witness  Kamala  (PW-1)  is

reliable and the same is corroborated by medical evidence.  The

High Court held that the delay in registration of FIR was not fatal to

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the prosecution case.  The High Court allowed the appeal preferred

by accused No.2 and acquitted him.   

6. Learned counsel for the appellant-accused submitted that the

testimony of  sole eye witness-PW-1 is  not  credible and that  she

could not have witnessed the occurrence at all and the courts below

erred in convicting the appellant based upon the testimony of PW-1.

Learned  counsel  for  the  appellant/accused  submitted  that  the

occurrence took place at 05.30 PM and the complaint (Ex.-P1) was

lodged at 08.00 PM and there was a delay of two and half hours in

lodging  the  complaint  which  has  not  been  explained  by  the

prosecution.   It  was  submitted  that  there  was  also  delay  in

dispatching the FIR to Judicial Magistrate that the FIR said to have

been registered at 08.00 PM and reached the court only on the next

day  early  morning  at  05.00  AM  on  20.08.1996  and  this  raises

serious doubt about the prosecution case.   

7. Learned counsel for the State submitted that the evidence of

eye-witness  PW-1  is  natural  and  amply  supported  by  medical

evidence and evidence of PWs 2 and 3.  It was submitted that both

the trial court and the High Court found that evidence of PW-1 is

credible,  reliable  and  trustworthy  and  the  concurrent  findings

recorded  by  the  courts  below  do  not  suffer  from  any  infirmity.

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Learned counsel for the State further submitted that the delay has

been properly explained by the prosecution.  Learned counsel for

the State submitted that the evidence of PW-1 is amply supported

by medical evidence and by the evidence of PWs 2 and 3 and also

corroborated by recovery of weapons from other co-accused.  It was

submitted that PW-1 has categorically stated about the overt act of

the appellant-accused No.7 and the findings recorded by the courts

below is based upon proper appreciation of evidence warranting no

interference.

8. We  have  carefully  considered  the  rival  contentions  and

perused the impugned judgment, evidence and materials placed on

record.   

9. Kamala  (PW-1),  mother  of  deceased  Sankar,  is  the  star

witness for the prosecution.  In her evidence, PW-1 stated that on

19.08.1996 at about 05.00/05.30 PM, she along with her younger

son deceased Sankar had been to Harikesavanallur in order to see

the new born baby of her elder son Iyyappan (PW-2). When they

alighted from the auto near Harikesavanallur Mukkuveetu Pillayar

Koli, A1 to A7 armed with dangerous weapon like knife and aruval

came towards  them and at  that  time,  Jayalakshmi  (A8)  shouted

“why are you simply watching, cut and kill”  and immediately Mari

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(A4) stabbed the deceased Sankar with knife on his back.  Accused

No.8 opened the petrol tank of the bike of deceased Sankar and put

lighted  matchstick  inside  it  and  burst  it  into  fire.   On  this,  the

deceased  party  ran  into  different  directions  to  save  themselves.

PW-1 followed deceased Sankar.   

10. Regarding  the  second  transaction  of  the  occurrence  which

was in the paddy field, PW-1 clearly stated that when they reached

in  the  paddy  field,  A1  to  A7  surrounded  Sankar  and  accused

Balakrishnan cut deceased Sankar with aruval on his right shoulder

and left side of neck.  Accused Janakaran, Mari @ Mariyappan and

Raja repeatedly stabbed Sankar  with knives.   Accused Kasi  and

Palani  (appellant)  cut  Sankar with  aruval.   Sankar fell  down with

bleeding from his head and died on the spot.   The evidence of PW-

1  is  clear  that  the  accused  persons  had  caused  the  injuries  as

stated by her.  The overt act of the accused herein namely Palani

(A7) that he cut the deceased with  aruval had been categorically

spoken by PW-1.  

11. Assailing  the  evidence  of  PW-1,  learned  counsel  for  the

appellant submitted that having regard to the place of occurrence –

paddy field  with  paddy  of  about  one and half  feet  height,  PW-1

could not have been in a position to see the overt act of each of the

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accused.  It was further submitted that the evidence of PW-1 is not

natural as she did not even lift her son Sankar after the occurrence.

It was contended that the clothes of PW-1 were all mud-stained but

there was no blood-stains present on the clothes of PW-1 and the

conduct of PW-1 is quite unnatural and that she did not even lift the

body of her son Sankar.

12. In her cross-examination, PW-1 stated that she did not lift her

son Sankar after his death.  PW-1, however, stated that her clothes

were mud-stained.  Merely because, no blood-stains were found on

the clothes of PW-1, her evidence cannot be doubted.  Likewise, we

find no merit in the contention that PW-1 could not have witnessed

the overt act of the accused.  As pointed out in Ext.-P6-Post-Mortem

Certificate,  deceased  Sankar  sustained  about  eleven  incised

wounds and that the body of the deceased was mutilated and the

thumb and palmer aspect of left index finger were missing.  There

were also deep cut injuries on the back of the neck and several

other deep cut injuries.  The injuries inflicted on the deceased were

so deep that there could be no doubt that PW-1 had not witnessed

the inflicting of  injuries  on Sankar  even though the paddy crops

were about one and a half feet high.   

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13. Learned counsel  for  the  appellant  submitted  that  there are

contradictions between the ocular and medical evidence and that all

the injuries as narrated by PW-1 are not corroborated as per the

post-mortem report.  As per the opinion of PW-7-Dr. Ulgammal, the

injuries inflicted by the accused persons on deceased were caused

by  sharp  edged  weapons  like  bill  hook  (aruval).   In  her  cross-

examination, doctor has stated that it  is possible that the injuries

could  be  caused by  any  sharp-edged weapons like  axe.   PW-7

further  stated  that  the  width  and  the  depth  of  injuries  can  be

increased  depending  on  the  manner  in  which  the  weapon  was

wielded and injury was inflicted.  The overt acts described by PW-1

in  the  FIR  has  been  substantially  corroborated  by  the  medical

evidence.   

14. As per the alleged variance between the medical and ocular

evidence concerned, it is well-settled that oral evidence has to get

primacy and the medical evidence is basically opinionative and that

the medical evidence states that the injury could have been caused

in the manner alleged and nothing more.  The testimony of the eye

witness cannot be thrown out on the ground of inconsistency.  In

State of Haryana v. Bhagirath and others (1999) 5 SCC 96, it was

held as under:-

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“15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation………”  

When the opinion given is not inconsistent with the probability of the

case,  the  court  cannot  discard  the  credible  direct  evidence

otherwise  the  administration  of  justice  is  to  depend  on  the

opinionative evidence of medical expert.  The medical jurisprudence

is not an exact science with precision; but merely opinionative.  In

the case in hand, the contradictions pointed out between the oral

and medical evidence are not so grave in nature that can prove fatal

to the prosecution case.

15. So far as the contention of the appellant/accused that PWs 2

and 3 have not stated anything about the second transaction in the

paddy field, as submitted by the learned counsel for the State, when

the deceased was attacked by Mari (A4) and the motor-cycle was

set ablaze, PWs 1 to 3 and deceased Sankar scattered and ran in

different  directions.  PW-1  followed  the  direction  in  which  the

deceased ran that is towards the paddy field where the deceased

was  surrounded  by  the  accused  persons.   Even  though,  PW-1

shouted  not  to  cut  the  deceased,  the  accused  persons  inflicted

injuries on the deceased and also threatened PW-1.  When PWs 2

and 3 ran in different directions, it is quite natural that they could not

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have seen the occurrence.  The evidence of PWs 2 and 3 is natural

as they did not claim to be eye witnesses to the second transaction

wherein the deceased was cut and stabbed at the paddy field by

accused  including  the  appellant-accused  No.7.   The  arguments

advanced by the learned counsel for the appellant that PWs 2 and 3

have criminal antecedents and were involved in other criminal cases

are not relevant to be reckoned with.   

16. Case of the prosecution is assailed on the ground that there

was delay in registration of FIR and that the FIR reached the court

only  at  05.00  AM on  the  next  day  i.e.  on  20.08.1996  after  the

inquest was over.  Learned counsel for the appellant submitted that

only after the inquest was over, complaint was prepared and FIR

was registered and that is why, the FIR is verbatim repetition of the

inquest  report.   After  referring  to  the  prosecution  evidence,  in

particular,  evidence  of  PW-10,  the  courts  below  rejected  the

arguments of the defence as to the delay in registration of FIR.  For

the  occurrence  at  05.00/05.30  PM  on  19.08.1996,  FIR  was

registered at 08.00 PM. Of course, there was a delay of two and

half hours in registration of FIR; there was also delay in receipt of

FIR by the Judicial Magistrate that is at 05.00 AM on 20.08.1996.

There was attack on PW-1’s son-deceased Sankar in the first part

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near  the  temple.   Thereafter,  in  the  second part,  deceased was

chased  by  accused  persons  and  on  reaching  the  paddy  field,

accused  persons  surrounded  the  deceased  and  attacked  him.

Therefore, it is quite clear that the entire occurrence did not take

place in a split second.  The occurrence was held in two parts and

in those circumstances, it is quite natural that there is some time

gap  before  the  complaint  (Ex.-P1)  was  lodged  at  08.00  PM.

Deceased  Sankar  was  brutally  murdered  with  eleven  incised

wounds; naturally it must have taken some time for PW-1-sole eye

witness to come to her normal and then discuss with her relatives

and  then  proceed  to  the  police  station  which  is  situated  at  a

distance of four kilometres, to lodge the complaint.   

17. So far as dispatching FIR, Murugaiah, Head Constable (PW-

10)  submitted  that  the  distance  between  the  police  station,

Veeravanallur and house of Judicial Magistrate, Cheranmadevi was

seven kilometres and due to this murder, the buses on the route

from  Tirunelvelli  to  Nagarcoil  were  not  plying  on  that  day  and

therefore, he had to travel to the house of Judicial Magistrate by

walking.   Here  again,  courts  below  found  that  there  is  nothing

abnormal in the receipt of the FIR by the Magistrate as to affect the

prosecution case.

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18. Delay in setting the law into motion by lodging the complaint is

normally  viewed  by  the  courts  in  suspicion  because  there  is

possibility of concoction of evidence against the accused.  In such

cases,  it  becomes necessary  for  the  prosecution to  satisfactorily

explain the delay in registration of FIR.  But there may be cases

where the delay in registration of FIR is inevitable and the same has

to  be  considered.   Even  a  long  delay  can  be  condoned  if  the

witness has no motive for falsely implicating the accused.  In the

present case, PW-1 had no motive to falsely implicate the accused.

As  pointed  out  earlier,  PW-1  seeing  her  own  son  being  brutally

attacked, the effect of the incident on the mind of the mother cannot

be measured.  Being saddened by the death of her son, it  must

have taken sometime for PW-1 to come out of her shock and then

proceed to police station to lodge the FIR.  The delay of two and

half hours in lodging the complaint and registration of FIR and the

delay in receipt of the FIR by the Magistrate was rightly held as not

fatal to the prosecution case.

19. Learned counsel for the appellant has further submitted that

as  per  the  prosecution  case,  the  motive  of  the  crime  is

misunderstanding between the families of accused and deceased

relating to a marriage proposal with respect to the Vijayalakshmi’s

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sister and deceased.  It was submitted that the alleged motive is

very  weak and could  not  have  been the reason for  causing  the

murder of deceased Sankar.   

20. Where the case of the prosecution is based on the evidence

of  eye  witnesses,  the  existence  or  non-existence  of  motive,

sufficiency or insufficiency of motive will not play such a major role

as in the case which is based on circumstantial evidence.  If  the

prosecution  is  able  to  prove  its  case  or  motive,  it  will  be  a

corroborative piece of evidence; but if the prosecution had not been

able to  prove its  case or  motive or  the motive suggested is  too

slender, that will  not be a ground to doubt the prosecution case.

When other evidence against the accused is clear and cogent as in

the present case, absence of motive or insufficiency of motive is of

no importance.

21. It  was  further  submitted  that  PWs  2  and  3  have  criminal

antecedents having murder cases registered against them including

the murder of Jayalakshmi (A8).  It was contended that PWs 1 to 3

have  falsely  implicated  the  accused  persons  because  accused

No.1-Balakrishnan’s  mother  gave  a  complaint  against  PW-2  in

which he was sentenced to undergo four months imprisonment.  It

was  submitted  by  learned  counsel  for  the  State  that  PW-2  was

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sentenced to undergo imprisonment in the said criminal case after

the  present  incident  and  not  before  it.   Both  the  courts  below

recorded concurrent findings of fact rejecting the contention of false

implication,  we  find  no  ground  to  interfere  with  such  concurrent

findings of fact.

22. It is pertinent to note that the other accused (A1, A4 and A6)

whose  conviction  was  affirmed  by  the  High  Court  have  already

served their sentence and were released on remission granted by

the State.  The appeals preferred by accused No.1, 4 and 6 have

been  dismissed  as  withdrawn  by  this  Court  vide order  dated

31.10.2018.

23. Evidence of PW-1 is cogent and consistent and her evidence

is amply supported by medical evidence and other evidence.  Upon

proper appreciation of evidence, the trial  court has convicted the

appellant/accused  for  causing  the  murder  of  deceased  Sankar

which  was  affirmed  by  the  High  Court.   Upon  appreciation  of

evidence, the courts below recorded concurrent findings of fact qua

appellant-accused  that  he  along  with  other  accused  caused  the

murder  of  deceased  Sankar.   We do  not  find  any  good  ground

warranting interference with the verdict of conviction.

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24. In the result, the appeal is dismissed.  The appellant-accused

is directed to surrender himself within a period of two weeks from

today, failing which he shall be taken into custody to serve out the

remaining sentence.

…………….……………J.  [R. BANUMATHI]

…………….……………J.      [INDIRA BANERJEE]

New Delhi; November 27, 2018

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