REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 168 OF 2008
ABU THAKIR & ORS. ... APPELLANTS
VERSUS
STATE REP. BY INSPECTOR OF
POLICE, TAMIL NADU ... RESPONDENT
JUDGMENT
B. SUDERSHAN REDDY, J.
This appeal by special leave arises out of judgment and
order dated 18th December, 2006 passed by the High Court of
Judicature at Madras, whereby the High Court confirmed the
conviction and sentence of the appellants herein under Section
302 of the Indian Penal Code (IPC) while setting aside conviction
and sentence under Sections 120B, 148, 341, 147, 302 read with
Sections 149 and 109, IPC.
2. The facts in brief, according to the prosecution story, are
that on 28th March, 2002 one Murugesan (deceased) was
murdered at about 7.30 a.m. on the way leading to
Badrakaliamman temple on Kovai Pudur Road in pursuance of a
criminal conspiracy hatched by the appellants herein and
other accused forming themselves into unlawful assembly so
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as to wreck vengeance of the murder that took place on 26th
March, 2002 of one Sultan Meeran. Before the incident,
Kanakaraj (PW 1), brother of the deceased went to the
barber shop situated near the place of occurrence to have a
shave, where his paternal uncle Subramani (PW 4) told him
that the deceased and some other persons were quarrelling at
East of Badrakaliamman temple. Immediately, Kanakaraj (PW
1), rushed towards the place of occurrence and found the
deceased lying on the ground unconsciously with bleeding
injuries. Gopalakrishnan (PW5) and Rathinasamy (PW 28) who
were returning from Badrakaliamman temple, on hearing the
distress noise ran towards the place of occurrence and found
Murugesan (deceased) lying in a pool of blood. They told
Kanakaraj (PW 1) that the assailants had fled away after
they had attacked the deceased in revenge of earlier murder
that took place on 26th March, 2002 of a member of
assailants’ community. Thereafter within ten minutes
Parvathy (PW 6), who owns a fruit vending shop near the
temple, told Kanakaraj (PW 1) that earlier in the morning at
about 6.30 A.M. she noticed two or three unknown persons
near her shop in a car and on a scooter and then proceeding
towards temple. In the meanwhile, Ganesan (PW 15) reached
at the spot. Thereafter Subramani (PW 4), uncle of Kanakaraj
(PW 1), along with Ganesan (PW 15) and others took the
injured (deceased) in his car to the Government Hospital,
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Coimbatore. En route to the hospital, Ganesan (PW 15) gave
information about the incident to the concerned police
station over his mobile phone. The duty Doctor (PW-21),
after examining Murugesan, declared him dead. On the basis
of the information given by Ganesan (PW 15), Akbar Khan,
Sub-Inspector of Police, Pothanur Police Station (PW 29)
reached at the hospital at about 8.45 A.M where he came to
know that Murugesan had already died. He examined Kanakaraj
(PW 1) and recorded his statement which was registered as
Crime No. 271/02 (Ex.P.1). Thereafter the first information
report came to be printed as Ex. P.72. Consequent upon the
registration of crime, Ramachandran, Inspector of Police,
Pothanur Police Station (PW 30) was appointed as
Investigating Officer who visited the scene of occurrence at
about 10.00 A.M on the very same day and prepared the
observation mahazar (Ex. P.30), the rough sketch of the
crime scene (Ex.P.74) and also recovered material objects
including a knife (MO-7) in the presence of Marudhachalam
(PW-20) and other witnesses. Thereafter he proceeded to the
Government Hospital where, in the presence of panchayatdars
and witnesses, prepared inquest report (Ex.P.73) and gave
requisition (Ex.P.47) to conduct post mortem. Sundarrajan,
Professor, Forensic Science, Coimbatore Medical College
Hospital (PW 23) on receipt of Ex. P. 47 conducted post
mortem (Ex. P. 48) at 12.25 P.M. and opined that the death
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was due to haemorrhage and shock resulting from multiple
stab injuries over chest and corresponding internal injuries
to heart and both lungs.
3. After completion of the investigation, the police filed
charge sheet against the appellants and five other co-
accused. The prosecution in all examined 30 witnesses (PWs
1 to 30) and got marked 77 documents in evidence. The
prosecution also produced material objects which were marked
as M.O. 1 to 43.
4. The trial court accepted the prosecution’s case and believed
the evidence of PWs 2 to 4 and based on their evidence,
convicted the appellants herein under Sections 302, 120B,
148, 341, 147, 302 read with Sections 149 and 109, of the
Indian Penal Code (IPC) and sentenced to life imprisonment
and various other terms of imprisonment to run concurrently.
The trial Court also convicted the other accused under
various Sections of the IPC. The trial court held that the
prosecution proved its case beyond reasonable doubt against
the appellants and held them guilty of having entered into a
criminal conspiracy, unlawful assembly and committing murder
of the deceased. The High court, however, confirmed the
conviction of the appellants only under Section 302, IPC and
acquitted them of the rest of the charges and completely
acquitted rest of the accused.
5
5. We have heard the learned counsel appearing for the
appellants as well as for the State and perused the material
available on record.
6. Shri N. Natarajan, learned senior counsel appearing on
behalf of the appellants submitted that the presence of the
so called eyewitnesses (PWs 2 to 4) at the scene of offence
is highly doubtful. The submission was, their evidence is
totally untrustworthy and suffers from material
contradictions. It was further submitted that the theory of
conspiracy set up by the prosecution was disbelieved by the
High Court and on the same analogy, the High Court ought to
have totally disbelieved PWs 2, 3 and 4 and if their
evidence is not taken into consideration, there is no other
evidence based on which the appellants could be convicted
for the charge under Section 302, IPC. It was also submitted
that there is enormous delay in submitting the statements
recorded under Section 161, Cr.P.C. to the Court since they
were received by the Court after eleven days of recording
the statements. The cumulative effect of these factors makes
the whole prosecution case doubtful and the appellants are
at least entitled to benefit of doubt.
7. The learned counsel for the State submitted that the
evidence of PWs 2 to 4, is cogent and there is no material
contradictions in their evidence even though they were
subjected to lengthy cross-examination. All of them have
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identified the appellants in the test identification parade.
Their presence at the scene of occurrence is very well
established by the evidence of Savithri (PW 8), Thangaraj
(PW 18) and Marudhachalam (PW 20) and there is no reason to
disbelieve their evidence. One of the important
circumstances highlighted by the learned counsel for the
State was matching of blood group of the deceased with the
blood found on the M.O. 6 series i.e., weapons used in the
commission of the offence. Further, the same blood group was
found on the clothes recovered from the appellants. The
delay in not sending the statements immediately was due to
the reason that, in quick succession two murders which were
very sensitive in nature, took place within the jurisdiction
of the Investigating Officer who was also entrusted with the
duty to maintain law and order in that area. The submission
was that mere delay in sending the statements per se would
not vitiate the entire prosecution case. The counsel further
submitted that the Courts below did not commit any error or
illegality in appreciating the evidence. The conviction is
based on proper appreciation of the evidence and there is no
reason or justification to interfere with the concurrent
finding of facts by this Court, so far as the appellants are
concerned, in exercise of jurisdiction under Article 136 of
the Constitution of India.
7
8. The Courts below held that the death of Murugesan was
homicidal in nature. As per post-mortem report (Ex.P-48),
the following ante mortem injuries were found on the dead
body:
1) Vertically oblique stab injury over front of right
side of chest measuring 5 cms x 2.5 cms x entering the
right thoracic cavity. The upper outer end of the
wound is 6 cms above and medial to right nipple. On
dissection the wound passes backwards, medially and
downwards in the right third inter costal space cutting
the inter costal muscles, vessels, nerves and cutting
the fourth rib close to sternum. Then it has caused a
stab injury in the underlying anterior aspect of lower
part of upper lobe of right lung measuring 2.5 cms x 1
cm x 1.5 cms and exited out in the inner aspect of
lower part of right lung measuring 2.25 cms x 1 cm.
Then it caused a cut in the right side of front of
pericardium measuring 1.75 cms x 1 cm and then caused a
stab in the anterior aspect of right ventricle
measuring 1.5 cms x 1 cm x cavity deep. Pericardial
sac contains 50 ml of blood with clots. Right pleural
cavity contains 750 ml of blood with clots. The depth
of the wound tract is about 10 cms. The margins of the
wound are regular and both ends are pointed.
2) Transversely oblique stab injury over back of left
side of upper chest measuring 3 cms x 1 cm x entering
the left thoracic cavity. The lower medial end of the
wound is 4 cms from the middle of T 3 vertebra. The
wound passes forward, downwards and medially through
the left third inter costal space causing a stab injury
in the posterior aspect of upper lobe of left lung
measuring 2 cms x 1 cm x 2 cms. The deepest part
ending as a point. Both ends of the wound are pointed
and the margins are regular. The length of the wound
tract is about 8 cms left pleural cavity contains 400
ml of blood with clots.
3) Vertically oblique stab injury over back of right
side of upper chest measuring 3 cms x 1 cm x entering
the right thoracic cavity. The upper medial end of the
wound is 1.5 cms from the middle of T 4 vertebra. The
wound passes downwards, laterally and forwards in the
fourth right inter costal space cutting the right
fourth rib in the posterior aspect and causing a stab
injury in the middle lobe of right lung measuring 2.5
8
cms x 1 cm x 2 cms and the deepest point ending as a
point. The length of the wound tract is about 8 cms.
Both ends of the wound are pointed and the margins are
regular.
4) Transversely oblique stab injury over back of left
side of upper chest close to midline measuring 3 cms x
1 cm x 3.5 cms deep in the muscle plane. The lower
inner end of the wound is close to middle of T3
vertebra. The wound passes downwards, laterally and
forwards. Both ends of the wound are pointed and
margins are regular.
5) Vertically oblique stab injury just below the right
side of lower lip measuring 1 cm x 0.5 cms through and
through and exiting through the buckle surface of the
lower lip on the right side, wound measuring 0.75 x 0.5
cm. The wound passes upwards, backwards and laterally.
The length of the wound tract is about 1 cm. The upper
inner end of the wound is 1 cm right to midline of
chin. The ends of the wound are pointed (both) and the
margins are regular.
6) Vertically oblique stab injury over the middle
third of back of left arm measuring 4.5 cms x 2 cms x 6
cms deep in the muscle plane. The distal outer end of
the wound is 8 cms above left elbow. The wound passes
upwards, forwards and medially. Both the ends of the
wound are pointed and margins are regular.
7) Oblique stab injury over the posterior aspect of
left hip measuring 3 cms x 1 cm x 5 cms deep in the
muscle plane. Both ends of the wound are pointed and
the margins are regular. The lower outer end of the
wound is 7 cms below and behind the left anterior
superior iliac spine. The wound passes forwards,
upwards and laterally.
8) An oblique cut injury over left side of upper lip
measuring 3 cms x 1 cm x 1 cm muscle deep.
9) An oblique cut injury over left side of lower lip
measuring 4 cms x 1 cm x 1 cm muscle deep.
10) Transversely oblique incised wound over front of
upper part of neck just above thyroid cartilage
measuring 3 cms x 1 cm x skin deep.
11) Oblique incised wound in the middle of right infra
clavicular region measuring 1 cm x 0.5 cm x skin deep.
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The upper inner end of the wound is 6 cms from the
medial end of right clavicle.
12) Transversely oblique skin deep incised wounds four
in number in the left sub scapular region measuring 5
cms x 1 cm, 3 cms x 1 cm, 2 cms x 0.5 cm and 1 cm x 0.5
cm.
13) Transversely oblique skin deep incised wound over
upper inter scapular region on the right side measuring
2 cms x 1 cm.
14) Transversely oblique skin deep incised wound over
the back of right lower chest measuring 2 cms x 0.5
cms.
15) Vertically oblique skin deep incised wound over the
upper inter scapular region on the left side measuring
4 cms x 0.5 cm.
16) Vertically oblique skin deep incised wound over the
upper inter scapular region on the right side measuring
2 cms x 0.5 cms.
17) Transversely oblique skin deep incised wound over
the back of left side of upper abdomen measuring 2 cms
x 1 cm.
18) Transversely oblique skin deep incised wound over
the dorsum of right wrist measuring 5 cms x 0.5 cm.
19) Oblique cut injury over the dorsum right hand
measuring 5 cms x 1 cm x bone deep.
20) Another transversely oblique cut injury over the
dorsum of right hand close to right index finger
measuring 3 cms x 1 cm x bone deep.
21) Oblique cut injury over the radial aspect of right
palm measuring 2 cms x 0.5 cm x 1 cm muscle deep.
22) Oblique cut injury over the medial aspect of lower
third of right thigh 5 cms above right knee measuring 7
cms x 2 cms x 1 cm deep in the subcutaneous plane.
23) Transversely oblique cut injury over the front of
upper part of left arm 12 cms below the top of left
shoulder measuring 2 cms x 1 cm x 1 cm deep in the
muscle plane.
1
24) Oblique incised wound over the front of upper part
of left forearm 8 cms below left elbow measuring 3 cms
x 0.5 cm x skin deep.
25) Abrasions seen in the following regions:
1 cm x 1 cm, 0.5 x 0.5 cm over right side of forehead.
3 cm x 0.25 cm over right lateral aspect of lower
chest.
2 cm x 1 cm, 0.5 cm x 0.5 cm over dorsum of proximal
part of right forearm.
2 cm x 1 cm over back of right elbow.
3 cm x 1 cm, 2 cm x 1 cm over lateral aspect of upper
part of right leg.
4 cm x 3 cm over lateral aspect of middle third of
right thigh.
2 cm x 1 cm over the lateral aspect of right hip.
7 cm x 4 cm over the lateral aspect of right gluteal
region.
3 cm x 1 cm just below left mastoid.
4 cm x 1 cm and 3 cm x 1 cm over left lateral aspect of
neck.
3 cm x 1 cm over left supra scapular region.
4 cm x 0.5 cm and 1 cm x 1 cm over lateral aspect of
upper part of left arm.
1 cm x 1 cm over posterior aspect of lower part of left
arm.
5 cm x 4 cm and 0.5 cm x 0.5 cm over posterior aspect
of left elbow.
4 cm x 2 cm over lateral aspect of left hip.
Multiple tiny scratch abrasions over left knee, lower
part of left forearm, right hand, right side of face,
left side of forehead, dorsum of nose and over front
of neck.
Other findings:
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Peritoneal cavity empty.
Lungs cut section pale.
Heart all chambers empty. Coronaries patent.
Hyoid bone intact.
Stomach contains 150 ml of brown colour fluid without
any specific smell. Mucosa pale.
Small intestine contains 20 ml bile stained fluid
without any specific smell. Mucosa pale.
Liver, spleen, kidneys and brain cut section pale.
Urinary bladder empty.
External genitalia nil injury. Right hydrocele
present.
1. According to the medical opinion, the death of
Murugesan was caused due to excessive haemorrhage and
shock on account of multiple stab injuries over chest
and corresponding internal injuries to heart and both
lungs.
2. The short question that arises for our consideration in
this appeal is as to whether the courts below committed
any manifest error in relying on the evidence of eye
witnesses, Natarajan (PW-2), Rajendran (PW-3) and
Subramani (PW-4) to convict the appellants for the
charge under Section 302, IPC.
3. Before analysing the evidence of PWs-2 to 4, let us
have a look at the evidence of Savithri (PW 8) whose
version is important to appreciate the contention
regarding the very presence of PWs – 2 to 4 at the
scene of offence.
1
4. PW 8-Savithiri, was residing nearby Badrakaliamman Koil
at Kovai Pudur Pirivu and her husband is a transport
operator owning a lorry. It is in her evidence that on
28th March, 2002 at about 7 a.m. Natarajan (PW 2) along
with two other persons came to her house when her
husband was away, stating that they have come to know
that her husband desired to dispose of his lorry owned
by him which they wanted to purchase, and therefore,
wanted to have a look at the lorry. The lorry was
stationed at a distance of about 30 feet from her
house. The distance between the lorry where it was
stationed and the footpath was about 20 to 25 feet.
That, after finishing her household work, she came out
of the house at about 9 a.m. and found that there was a
heavy crowd near the footpath. Meanwhile, her husband
also reached the home. She was examined on the same
evening and she narrated the incident to the police.
She was not subjected to any cross-examination by the
appellants. Marudhachalam (PW 20) is the husband of
PW8-Savithiri. It is in his evidence that he was in
deep financial problems and proposed to dispose of his
lorry and for that purpose sought the assistance of
some brokers including that of Natarajan-PW2. He stated
in his evidence that by the time he returned home at
about 9 a.m., he saw that there was a crowd at a
1
distance of 50 feet away from his house. He went to the
scene of occurrence at about 10 a.m. along with his
brother Paramasivam. The police were investigating the
matter and the mahazar (Ext. P30) was prepared in which
his brother Paramasivam had signed. It is also in his
evidence that his wife Savithri (PW8) informed him
about Natarajan (PW2) and two others came to inspect
the lorry stating that they were interested to purchase
the same.
5. Natarajan (PW2), is an automobile broker dealing with
the sale and purchase of old trucks and cars. It is in
his evidence that his friend Subramani (PW 4), who at
the relevant time was doing business in sale and
purchase of tomato in wholesale, intended to purchase a
lorry and in that connection went to the house of
Marudhachalam (PW 20), at Kovai Pudur. At that time,
they have heard noise “ayyo amma” and he along with
other two went running there and found that three
persons were stabbing the deceased repeatedly and the
time was 7.00 or 7.30 a.m. It is also in his evidence
that one among the accused sustained a cut injury on
his right wrist. On seeing the incident, they ran away
from the place and went to several places. They have
reached their house at about 5 p.m. and in the evening
at about 8.30 p.m., the Inspector of Pothanur police
1
inquired from him as to what he had seen in the morning
of that fateful day. His statement was recorded.
Thereafter, he was required to attend the
identification parade to be held on 23rd April, 2002 at
Salem prison and on that day, he identified the
appellants 1 and 2 before the Judicial Magistrate and
later identified appellant No.3 in the Court. He
further deposed that he is assisted by Rajendran (PW-
3) in his business. It is in his evidence that
Subramani (PW-4) came to him to purchase a lorry
sometime before the incident of the fateful day. He
further stated that he knew that one lorry was
available for sale with Marudhachalam (PW-20) and in
that connection, he along with PWs-2 and 4 visited the
residence of PW-20 at about 6.00 A.M. on the day of
occurrence for the inspection of the lorry. It is in
his evidence that at about 7.00 or 7.30 a.m. when they
were verifying the general condition of the lorry,
three persons crossed them towards West and ten minutes
thereafter, they heard a cry in pain from that side,
which made them to run towards that place, where they
saw the deceased being stabbed by the accused with the
knives in their hands. He specifically stated that one
among the three assailants got a cut injury on the
right hand. It is worthwhile to mention that he
1
asserted in his statement that he could identify the
three assailants which he did in the test
identification parade.
6. The evidence of Rajendran-PW3 and Subramani (PW 4) is
more or less the same as that of PW2-Natarajan.
7. It is in the evidence of PWs 2 to 4 that after
witnessing the ghastly incident of attack, they fled
away from the scene of offence due to fear. We are
unable to appreciate the criticism levelled by the
learned senior counsel appearing for the appellants
that if PWs 2 to 4 were really present at the scene of
occurrence, nothing prevented them from informing the
police. The response, behavioural patterns of
individuals in such a situation differs from person to
person and it cannot be said that response of every and
any human being would be similar on such occasions. May
be PWs 2 to 4, were reeling under shock and
nervousness. They were roaming here and there and as is
evident from their evidence, they have reached their
respective houses only in the evening after 5 p.m. The
further criticism was that they were examined only in
the evening of 28th March, 2002 and there is no reason
offered by the I.O. for not examining them immediately
but only in the night of 28th March, 2002. Be it noted,
there was no question put in the cross-examination to
1
PW30-Investigating Officer, as to why he did not chose
to examine PWs 2, 3 and 4 immediately at the time of
inquest or thereafter. The mere fact that they were not
examined during the inquest is of no consequence. It is
nobody’s case that they were present at the time of
inquest and yet their statement was not recorded by the
I.O. On these grounds, the presence of PW2 at the scene
of occurrence cannot be disbelieved. That apart, the
evidence of PWs 2 to 4 that the appellants are the
assailants, gets support from the evidence of PWs 5 and
28. While PWs 5 and 28 were returning after worship at
the temple, they heard a hue and cry which made them to
run towards the scene of offence, where they saw three
persons running away from the scene of offence. PW5, in
the test identification parade, identified appellant
No.2. PW28 (Rathinasamy), whose evidence is more or
less same as that of PW5, had also identified appellant
Nos. 1 and 2 in the test identification parade held on
23rd April, 2002. It is in the evidence of PWs 5 and
28, that they have seen Murugesan (since deceased) just
crossing the temple while they were going into the
temple to offer prayers. There is no reason to
disbelieve the evidence of PWs 5 and 28 that they have
seen all the three assailants, namely, appellants
herein escaping from the scene of offence. They are all
1
independent witnesses, whose evidence cannot be
rejected on any ground whatsoever.
8. There is no reason to reject or disbelieve the evidence
of Gopalakrishnan (PW-5) and Rathinasamy (PW-28)
altogether as both of them gave similar version in
their evidence. Gopalakrishnan (PW-5) who is a resident
of Palakadu-Coimbatore road at Kovai Pudur Pirivu road,
deposed in his testimony that at about 7.15 A.M. he
went to Badrakaliamman temple for worshipping on
28.3.2002 and at the same time Rathinasamy, who is also
a resident of the same locality came to the said
temple. He further stated that when both of them were
returning after worship, Murugesan (deceased) was found
crossing the temple. It is in his evidence that at the
same time they heard the accused shouting “yesterday
you closed one Sultan Meeran, as a retaliation we are
closing you now”. On hearing the said dialogue, they
rushed towards the place of occurrence and found
Murugesan lying on the ground in a pool of blood while
the assailants were running towards South of the scene
of occurrence. He further stated in his evidence that
on seeing the said Murugesan lying in a pool of blood,
they were shocked and stood there itself for a while.
He knew that the deceased Murugesan belonged to RSS and
therefore, he alongwith Rathinasamy (PW28) were
1
proceeding to inform Ganesan (PW 15) who was in charge
of BJP party in the area and found that Ganesan (PW 15)
was coming in the opposite direction. Two or three
persons came running along with Ganesan and all of them
took the injured Murugesan in a car to the hospital.
Subramani (PW 4), uncle of Murugesan was one amongst
them.
9. Now we proceed to consider the submission of the
learned senior counsel that the statements of PWs 2 to
4 (eyewitnesses), though purported to have been
recorded on 29th March, 2002, had reached the Court
only on 11.4.2002 which according to him makes the
whole prosecution story doubtful. In fact, PW30-the
Investigating Officer explained that in the case of
murder of Sultan Meeran on 26th March, 2002, and the
murder of Murugesan (deceased) on 28th March, 2002 in
succession, the entire city of Coimbatore and
surrounding areas were in a highly disturbed state and
widespread bandobasth was arranged in surrounding
areas. Adverting to this aspect of the matter, the High
Court in clear and categorical terms, upon
reappreciation of the evidence, held that in such a
situation, no one could find fault with the
Investigating Officer in not sending the statements of
PWs 2, 3 and 4 to the Court before 11th April, 2002.
1
Mere delay in sending the statements of PWs 2 to 4 per
se would not make their evidence unacceptable unless
something glaring is brought to our notice to doubt
their very presence at the scene of offence. As rightly
pointed out by the High Court, the evidence of PWs 2 to
4 is so clinching, wherein they have stated in clear
and categorical terms that three persons joining
together stabbed one individual. That portion of the
evidence remains unshaken. It is true that the
assailants were not previously known to PWs 2 to 4. But
they have later identified the appellants as the
persons who stabbed the deceased.
10. Learned senior counsel relied upon the judgment of this
Court in Thulia Kali Vs. The State of Tamil Nadu1 and
Marudanal Augusti Vs. State of Kerala2 in support of
his submission that the delay in sending the statements
recorded under Section 161, Cr.P.C. to the Court is
fatal to the prosecution’s case. Thulia Kali deals with
importance of timely despatch of the first information
report which is an extremely vital and valuable piece
of evidence for the purpose of corroborating oral
evidence adduced at the trial. In Marudanal Augusti,
this Court on the facts held that there was a delay of
as many as 28 hours in submitting FIR to the Special
1
(1972) 3 SCC 393
2
(1980) 4 SCC 425
2
Magistrate which remained unexplained by the
Investigating Officer in spite of being questioned. The
Court came to the conclusion that there was no proper
explanation as to why there was delay in sending the
FIR to the Court. We fail to appreciate as to how those
judgments would help the defence in this case since
there is no delay in sending the FIR in the present
case. There is a delay in sending the statements of PWs
2 to 4 recorded under Section 161, Cr.P.C. There is a
clear explanation available on record that the
Investigating Officer was also in charge of maintaining
law and order in the area that got vitiated after two
murders in succession leading to a lot of commotion and
communal strife. There is no reason to reject the
explanation as to why the statements recorded under
Section 161 Cr.P.C. could not be promptly despatched to
the Court. It was obviously for the reasons beyond
control of the Investigating Officer. Nothing is
further suggested to accept the theory propounded by
the learned senior counsel. It is nobody’s case that
such statements were not recorded by the Investigating
Officer at all. The suggestion made in this regard to
PWs 2 to 4 was denied by them.
11. The learned senior counsel placed heavy reliance on
judgment of the Madras High Court in Karunakaran
2
Jabamani Nadar In re.3 where the Madras High Court
underscored the importance of speedy despatch of the
documents, such as the original report, the printed
form of FIR, inquest report and statement of witnesses
recorded during inquest and the statements of witnesses
recorded under Section 161(3) of Cr.P.C. There is no
quarrel with that proposition and the importance of
requirement of sending the vital documents to the Court
without any delay. But the delay may occur due to
variety of facts and circumstances. Delay in despatch
of the said documents by itself may not be fatal to the
prosecution in each and every case. The question as to
what is the effect of delay in sending the vital
documents to the Court may have to be assessed and
appreciated on the facts and circumstances of each
case. It is not possible to lay down that delay in
despatch of the vital documents in each and every case
defeats the prosecution’s case.
12.We do not find any material on record to accept the
submissions made during the course of hearing of this
appeal that PW 20, did not own any lorry with him so as
to be sold and the said lorry was not stationed nearby
the scene of occurrence. We do not find any reason to
disbelieve the statement of PWs 8 and 20 in this regard
which is clear, categorical and forthcoming which we
3
1974 L.W.(Crl) 1190
2
have discussed in the preceding paragraphs. The
submission is accordingly rejected.
13. We may have to deal with yet another submission made by
the learned senior counsel for the appellants that the
investigation was not fair as there were many missing
links in the process of investigation. This submission
was made by the learned counsel contending that the
investigation does not reveal as to how the
Investigating Officer came to know about the presence
of PWs 2 to 4 at the scene of occurrence and for
recording their statements in that regard. This Court
in State of Karnataka Vs. K. Yarappa Reddy4 held that
“even if the investigation is illegal or even
suspicious the rest of the evidence must be scrutinized
independently of the impact of it. Otherwise the
criminal trial will plummet to the level of the
investigating officers ruling the roost. … Criminal
justice should not be made a casualty for the wrongs
committed by the investigating officers in the case. In
other words, if the court is convinced that the
testimony of a witness to the occurrence is true, the
Court is free to act on it albeit the investigating
officer’s suspicious role in the case”. The ratio of
the judgment in that case is the complete answer to the
4
(1999) 8 SCC 715
2
submission made by the learned senior counsel for the
appellants.
14.One more submission of the learned senior counsel was
that the prosecution failed to establish the motive for
committing the crime by the appellants. In the light of
the direct evidence of PWs 2 to 4, and 8 and 20, the
motive part has no significance. Even otherwise there
is enough material available on record in the present
case that the motive for the present murder was in
retaliation to the murder of one Sultan Meeran
allegedly by a group of persons belonging to an outfit
of which the deceased was stated to be a member.
15.We do not find any reason whatsoever to interfere with
the concurrent finding of fact arrived at by the Courts
below in order to convict the appellants for the
offence punishable under Section 302, IPC. We do not
find any reason or justification to disbelieve the
evidence of PWs 2, 3 and 4 along with the evidence of
PWs 8 and 20 and the medical evidence. Once the
evidence of these witnesses is found acceptable, the
inevitable consequence is to confirm the conviction of
the appellants under Section 302, IPC. The High Court
in its elaborate judgment critically assessed and
analyzed every nuance of the evidence and found a clear
case against the appellants. The reappreciation of the
2
evidence by the appellate Court did not result in any
manifest injustice. We have looked into the evidence to
satisfy ourselves as to whether the Courts below have
committed any manifest error in appreciating the
evidence available on record and on such scrutiny, we
find that the Courts below did not commit any error
whatsoever in accepting the evidence available on
record. In the circumstances, we hold that the
appellants miserably failed to make out any case
requiring our interference under Article 136 of the
Constitution.
16.We accordingly find no merit in the appeal and the
same is accordingly dismissed.
…………………….J.
(B. SUDERSHAN REDDY)
…………………….J.
(SURINDER SINGH NIJJAR)
New Delhi,
April 19, 2010.