{"id":154078,"date":"2010-04-19T00:00:00","date_gmt":"2010-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abu-thakir-ors-vs-state-rep-by-inspector-of-on-19-april-2010"},"modified":"2015-10-06T21:35:28","modified_gmt":"2015-10-06T16:05:28","slug":"abu-thakir-ors-vs-state-rep-by-inspector-of-on-19-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abu-thakir-ors-vs-state-rep-by-inspector-of-on-19-april-2010","title":{"rendered":"Abu Thakir & Ors vs State Rep. By Inspector Of … on 19 April, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Abu Thakir & Ors vs State Rep. By Inspector Of … on 19 April, 2010<\/div>\n
Author: B S Reddy<\/div>\n
Bench: B. Sudershan Reddy, Surinder Singh Nijjar<\/div>\n
                                                                                             REPORTABLE\n\n\n\n                           IN THE SUPREME COURT OF INDIA\n                          CRIMINAL APPELLATE JURISDICTION\n\n\n                          CRIMINAL APPEAL NO. 168 OF 2008\n\n\nABU THAKIR & ORS.                                                  ...     APPELLANTS\n\n                 VERSUS\n\nSTATE REP. BY INSPECTOR OF\nPOLICE, TAMIL NADU                                                 ...     RESPONDENT\n\n\n\n                                          JUDGMENT\n<\/pre>\n
B. SUDERSHAN REDDY, J.\n<\/p>\n
     This appeal by special leave arises out of judgment and<\/p>\n
order   dated     18th      December,    2006    passed    by    the     High   Court   of<\/p>\n
Judicature      at   Madras,         whereby    the   High      Court     confirmed     the<\/p>\n
conviction and sentence of the appellants herein under Section<\/p>\n
302 of the Indian Penal Code (IPC) while setting aside conviction<\/p>\n
and sentence under Sections 120B, 148, 341, 147, 302 read with<\/p>\n
Sections 149 and 109, IPC.\n<\/p>\n
  2. The facts in brief, according to the prosecution story, are<\/p>\n
     that    on      28th    March,     2002    one   Murugesan          (deceased)     was<\/p>\n
     murdered        at      about     7.30    a.m.   on     the     way    leading     to<\/p>\n
     Badrakaliamman temple on Kovai Pudur Road in pursuance of a<\/p>\n
     criminal conspiracy hatched by the appellants herein and<\/p>\n
     other accused forming themselves into unlawful assembly so
\n                                   2<\/span><\/p>\n
as to wreck vengeance of the murder that took place on 26th<\/p>\n
March, 2002 of one Sultan Meeran.                 Before the incident,<\/p>\n
Kanakaraj (PW 1), brother of the deceased                       went to the<\/p>\n
barber shop situated near the place of occurrence to have a<\/p>\n
shave, where his paternal uncle Subramani (PW 4) told him<\/p>\n
that the deceased and some other persons were quarrelling at<\/p>\n
East of Badrakaliamman temple.             Immediately, Kanakaraj (PW<\/p>\n
1), rushed towards the place of occurrence and found the<\/p>\n
deceased lying on the ground unconsciously with bleeding<\/p>\n
injuries. Gopalakrishnan (PW5) and Rathinasamy (PW 28) who<\/p>\n
were returning from Badrakaliamman temple, on hearing the<\/p>\n
distress noise ran towards the place of occurrence and found<\/p>\n
Murugesan (deceased) lying in a pool of blood.                    They told<\/p>\n
Kanakaraj (PW 1) that the assailants had fled away after<\/p>\n
they had attacked the deceased in revenge of earlier murder<\/p>\n
that   took   place    on   26th       March,   2002   of   a    member   of<\/p>\n
assailants’    community.      Thereafter         within    ten     minutes<\/p>\n
Parvathy (PW 6), who owns a fruit vending shop near the<\/p>\n
temple, told Kanakaraj (PW 1) that earlier in the morning at<\/p>\n
about 6.30 A.M. she noticed two or three unknown persons<\/p>\n
near her shop in a car and on a scooter and then proceeding<\/p>\n
towards temple.       In the meanwhile, Ganesan (PW 15) reached<\/p>\n
at the spot. Thereafter Subramani (PW 4), uncle of Kanakaraj<\/p>\n
(PW 1), along with Ganesan (PW 15) and others took the<\/p>\n
injured (deceased) in his car to the Government Hospital,
\n                                    3<\/span><\/p>\n
Coimbatore. En route to the hospital, Ganesan (PW 15) gave<\/p>\n
information     about    the   incident         to    the   concerned    police<\/p>\n
station    over his     mobile phone.          The duty       Doctor (PW-21),<\/p>\n
after examining Murugesan, declared him dead.                      On the basis<\/p>\n
of the information given by Ganesan (PW 15), Akbar Khan,<\/p>\n
Sub-Inspector of Police, Pothanur Police Station (PW 29)<\/p>\n
reached at the hospital at about 8.45 A.M where he came to<\/p>\n
know that Murugesan had already died. He examined Kanakaraj<\/p>\n
(PW 1) and recorded his statement which was registered as<\/p>\n
Crime No. 271\/02 (Ex.P.1). Thereafter the first information<\/p>\n
report came to be printed as Ex. P.72.                  Consequent upon the<\/p>\n
registration of crime, Ramachandran, Inspector of Police,<\/p>\n
Pothanur     Police      Station        (PW     30)     was       appointed    as<\/p>\n
Investigating Officer who visited the scene of occurrence at<\/p>\n
about   10.00    A.M    on   the   very       same    day   and    prepared   the<\/p>\n
observation     mahazar (Ex.       P.30), the          rough sketch      of the<\/p>\n
crime scene (Ex.P.74)          and also recovered material objects<\/p>\n
including a knife (MO-7) in the presence of Marudhachalam<\/p>\n
(PW-20) and other witnesses. Thereafter he proceeded to the<\/p>\n
Government Hospital where, in the presence of panchayatdars<\/p>\n
and witnesses, prepared inquest report (Ex.P.73) and gave<\/p>\n
requisition (Ex.P.47) to conduct post mortem. Sundarrajan,<\/p>\n
Professor,      Forensic     Science,     Coimbatore          Medical   College<\/p>\n
Hospital (PW 23) on receipt of Ex. P. 47 conducted post<\/p>\n
mortem (Ex. P. 48) at 12.25 P.M.                and opined that the death
\n                                       4<\/span><\/p>\n
  was due to haemorrhage and shock resulting from multiple<\/p>\n
  stab injuries over chest and corresponding internal injuries<\/p>\n
  to heart and both lungs.\n<\/p>\n
3. After   completion     of   the     investigation,    the    police   filed<\/p>\n
  charge    sheet    against     the    appellants    and     five   other   co-<\/p>\n
  accused.       The prosecution in all examined 30 witnesses (PWs<\/p>\n
  1 to 30) and got marked 77 documents in evidence.                          The<\/p>\n
  prosecution also produced material objects which were marked<\/p>\n
  as    M.O. 1 to 43.\n<\/p>\n
4. The trial court accepted the prosecution’s case and believed<\/p>\n
  the evidence of PWs 2 to 4 and based on their evidence,<\/p>\n
  convicted the appellants herein under Sections 302, 120B,<\/p>\n
  148, 341, 147, 302 read with Sections 149 and 109, of the<\/p>\n
  Indian Penal Code (IPC) and sentenced to life imprisonment<\/p>\n
  and various other terms of imprisonment to run concurrently.<\/p>\n
  The    trial    Court   also   convicted      the   other    accused   under<\/p>\n
  various Sections of the IPC. The trial court held that the<\/p>\n
  prosecution proved its case beyond reasonable doubt against<\/p>\n
  the appellants and held them guilty of having entered into a<\/p>\n
  criminal conspiracy, unlawful assembly and committing murder<\/p>\n
  of    the deceased.     The High         court, however,     confirmed the<\/p>\n
  conviction of the appellants only under Section 302, IPC and<\/p>\n
  acquitted them of the rest of the charges and completely<\/p>\n
  acquitted rest of the accused.\n<\/p>\n
                                        5<\/span><\/p>\n
5. We     have   heard    the   learned       counsel     appearing       for     the<\/p>\n
  appellants as well as for the State and perused the material<\/p>\n
  available on record.\n<\/p>\n
6. Shri    N.    Natarajan,     learned      senior    counsel     appearing       on<\/p>\n
  behalf of the appellants submitted that the presence of the<\/p>\n
  so called eyewitnesses (PWs 2 to 4) at the scene of offence<\/p>\n
  is highly doubtful. The submission was, their evidence is<\/p>\n
  totally        untrustworthy         and      suffers         from      material<\/p>\n
  contradictions. It was further submitted that the theory of<\/p>\n
  conspiracy set up by the prosecution was disbelieved by the<\/p>\n
  High Court and on the same analogy, the High Court ought to<\/p>\n
  have     totally   disbelieved       PWs    2,   3    and    4   and    if    their<\/p>\n
  evidence is not taken into consideration, there is no other<\/p>\n
  evidence based on which the appellants could be convicted<\/p>\n
  for the charge under Section 302, IPC. It was also submitted<\/p>\n
  that there is enormous delay in submitting the statements<\/p>\n
  recorded under Section 161, Cr.P.C. to the Court since they<\/p>\n
  were received by the Court after eleven days of recording<\/p>\n
  the statements. The cumulative effect of these factors makes<\/p>\n
  the whole prosecution case doubtful and the appellants are<\/p>\n
  at least entitled to benefit of doubt.\n<\/p>\n
7. The    learned    counsel     for    the    State     submitted       that     the<\/p>\n
  evidence of PWs 2 to 4, is cogent and there is no material<\/p>\n
  contradictions         in   their    evidence    even       though     they    were<\/p>\n
  subjected to lengthy cross-examination. All of them have
\n                                 6<\/span><\/p>\n
identified the appellants in the test identification parade.<\/p>\n
Their   presence    at   the   scene   of    occurrence   is   very   well<\/p>\n
established by the evidence of Savithri (PW 8), Thangaraj<\/p>\n
(PW 18) and Marudhachalam (PW 20) and there is no reason to<\/p>\n
disbelieve    their       evidence.         One   of   the     important<\/p>\n
circumstances highlighted by the learned counsel for the<\/p>\n
State was matching of blood group of the deceased with the<\/p>\n
blood found on the M.O. 6 series i.e., weapons used in the<\/p>\n
commission of the offence. Further, the same blood group was<\/p>\n
found   on the     clothes recovered        from the   appellants. The<\/p>\n
delay in not sending the statements immediately was due to<\/p>\n
the reason that, in quick succession two murders which were<\/p>\n
very sensitive in nature, took place within the jurisdiction<\/p>\n
of the Investigating Officer who was also entrusted with the<\/p>\n
duty to maintain law and order in that area. The submission<\/p>\n
was that mere delay in sending the statements per se would<\/p>\n
not vitiate the entire prosecution case. The counsel further<\/p>\n
submitted that the Courts below did not commit any error or<\/p>\n
illegality in appreciating the evidence. The conviction is<\/p>\n
based on proper appreciation of the evidence and there is no<\/p>\n
reason or justification to interfere with the concurrent<\/p>\n
finding of facts by this Court, so far as the appellants are<\/p>\n
concerned, in exercise of jurisdiction under Article 136 of<\/p>\n
the Constitution of India.\n<\/p>\n
                                   7<\/span><\/p>\n
8. The   Courts   below   held   that   the   death   of   Murugesan   was<\/p>\n
  homicidal in nature.       As per post-mortem report (Ex.P-48),<\/p>\n
  the following ante mortem injuries were found on the dead<\/p>\n
  body:\n<\/p>\n
     1) Vertically oblique stab injury over front of right
\n     side of chest measuring 5 cms x 2.5 cms x entering the
\n     right thoracic cavity.    The upper outer end of the
\n     wound is 6 cms above and medial to right nipple.      On
\n     dissection the wound passes backwards, medially and
\n     downwards in the right third inter costal space cutting
\n     the inter costal muscles, vessels, nerves and cutting
\n     the fourth rib close to sternum. Then it has caused a
\n     stab injury in the underlying anterior aspect of lower
\n     part of upper lobe of right lung measuring 2.5 cms x 1
\n     cm x 1.5 cms and exited out in the inner aspect of
\n     lower part of right lung measuring 2.25 cms x 1 cm.
\n     Then it caused a cut in the right side of front of
\n     pericardium measuring 1.75 cms x 1 cm and then caused a
\n     stab in the anterior aspect of right ventricle
\n     measuring 1.5 cms x 1 cm x cavity deep.      Pericardial
\n     sac contains 50 ml of blood with clots. Right pleural
\n     cavity contains 750 ml of blood with clots. The depth
\n     of the wound tract is about 10 cms. The margins of the
\n     wound are regular and both ends are pointed.<\/p>\n
     2) Transversely oblique stab injury over back of left
\n     side of upper chest measuring 3 cms x 1 cm x entering
\n     the left thoracic cavity. The lower medial end of the
\n     wound is 4 cms from the middle of T 3 vertebra.     The
\n     wound passes forward, downwards and medially through
\n     the left third inter costal space causing a stab injury
\n     in the posterior aspect of upper lobe of left lung
\n     measuring 2 cms x 1 cm x 2 cms.       The deepest part
\n     ending as a point. Both ends of the wound are pointed
\n     and the margins are regular. The length of the wound
\n     tract is about 8 cms left pleural cavity contains 400
\n     ml of blood with clots.\n<\/p>\n
     3) Vertically oblique stab injury over back of right
\n     side of upper chest measuring 3 cms x 1 cm x entering
\n     the right thoracic cavity. The upper medial end of the
\n     wound is 1.5 cms from the middle of T 4 vertebra. The
\n     wound passes downwards, laterally and forwards in the
\n     fourth right inter costal space cutting the right
\n     fourth rib in the posterior aspect and causing a stab
\n     injury in the middle lobe of right lung measuring 2.5
\n                        8<\/span><\/p>\n
cms x 1 cm x 2 cms and the deepest point ending as a
\npoint. The length of the wound tract is about 8 cms.
\nBoth ends of the wound are pointed and the margins are
\nregular.\n<\/p>\n
4) Transversely oblique stab injury over back of left
\nside of upper chest close to midline measuring 3 cms x
\n1 cm x 3.5 cms deep in the muscle plane.     The lower
\ninner end of the wound is close to middle of T3
\nvertebra.   The wound passes downwards, laterally and
\nforwards.   Both ends of the wound are pointed and
\nmargins are regular.\n<\/p>\n
5) Vertically oblique stab injury just below the right
\nside of lower lip measuring 1 cm x 0.5 cms through and
\nthrough and exiting through the buckle surface of the
\nlower lip on the right side, wound measuring 0.75 x 0.5
\ncm. The wound passes upwards, backwards and laterally.
\nThe length of the wound tract is about 1 cm. The upper
\ninner end of the wound is 1 cm right to midline of
\nchin. The ends of the wound are pointed (both) and the
\nmargins are regular.\n<\/p>\n
6)   Vertically oblique stab injury over the middle
\nthird of back of left arm measuring 4.5 cms x 2 cms x 6
\ncms deep in the muscle plane. The distal outer end of
\nthe wound is 8 cms above left elbow. The wound passes
\nupwards, forwards and medially. Both the ends of the
\nwound are pointed and margins are regular.<\/p>\n
7)   Oblique stab injury over the posterior aspect of
\nleft hip measuring 3 cms x 1 cm x 5 cms deep in the
\nmuscle plane. Both ends of the wound are pointed and
\nthe margins are regular.   The lower outer end of the
\nwound is 7 cms below and behind the left anterior
\nsuperior iliac spine.     The wound passes forwards,
\nupwards and laterally.\n<\/p>\n
8) An oblique cut injury over left side of upper lip
\nmeasuring 3 cms x 1 cm x 1 cm muscle deep.\n<\/p>\n
9) An oblique cut injury over left side of lower lip
\nmeasuring 4 cms x 1 cm x 1 cm muscle deep.\n<\/p>\n
10) Transversely oblique incised wound over front of
\nupper part of neck just above thyroid cartilage
\nmeasuring 3 cms x 1 cm x skin deep.\n<\/p>\n
11) Oblique incised wound in the middle of right infra
\nclavicular region measuring 1 cm x 0.5 cm x skin deep.
\n                        9<\/span><\/p>\n
The upper inner end of the wound is 6 cms from the
\nmedial end of right clavicle.\n<\/p>\n
12) Transversely oblique skin deep incised wounds four
\nin number in the left sub scapular region measuring 5
\ncms x 1 cm, 3 cms x 1 cm, 2 cms x 0.5 cm and 1 cm x 0.5
\ncm.\n<\/p>\n
13) Transversely oblique skin deep incised wound over
\nupper inter scapular region on the right side measuring
\n2 cms x 1 cm.\n<\/p>\n
14) Transversely oblique skin deep incised wound over
\nthe back of right lower chest measuring 2 cms x 0.5
\ncms.\n<\/p>\n
15) Vertically oblique skin deep incised wound over the
\nupper inter scapular region on the left side measuring
\n4 cms x 0.5 cm.\n<\/p>\n
16) Vertically oblique skin deep incised wound over the
\nupper inter scapular region on the right side measuring
\n2 cms x 0.5 cms.\n<\/p>\n
17) Transversely oblique skin deep incised wound over
\nthe back of left side of upper abdomen measuring 2 cms
\nx 1 cm.\n<\/p>\n
18) Transversely oblique skin deep incised wound over
\nthe dorsum of right wrist measuring 5 cms x 0.5 cm.<\/p>\n
19) Oblique cut injury over the dorsum      right   hand
\nmeasuring 5 cms x 1 cm x bone deep.\n<\/p>\n
20) Another transversely oblique cut injury over the
\ndorsum of right hand close to right index finger
\nmeasuring 3 cms x 1 cm x bone deep.\n<\/p>\n
21) Oblique cut injury over the radial aspect of right
\npalm measuring 2 cms x 0.5 cm x 1 cm muscle deep.<\/p>\n
22) Oblique cut injury over the medial aspect of lower
\nthird of right thigh 5 cms above right knee measuring 7
\ncms x 2 cms x 1 cm deep in the subcutaneous plane.<\/p>\n
23) Transversely oblique cut injury over the front of
\nupper part of left arm 12 cms below the top of left
\nshoulder measuring 2 cms x 1 cm x 1 cm deep in the
\nmuscle plane.\n<\/p>\n
                          1<\/span><\/p>\n
24) Oblique incised wound over the front of upper part
\nof left forearm 8 cms below left elbow measuring 3 cms
\nx 0.5 cm x skin deep.\n<\/p>\n
25)    Abrasions seen in the following regions:<\/p>\n
1 cm x 1 cm, 0.5 x 0.5 cm over right side of forehead.
\n3 cm x 0.25 cm over right lateral aspect of lower
\nchest.\n<\/p>\n
2 cm x 1 cm, 0.5 cm x 0.5 cm over dorsum of proximal
\npart of right forearm.\n<\/p>\n
2 cm x 1 cm over back of right elbow.\n<\/p>\n
3 cm x 1 cm, 2 cm x 1 cm over lateral aspect of upper
\npart of right leg.\n<\/p>\n
4 cm x 3 cm over lateral aspect of middle third of
\nright thigh.\n<\/p>\n
2 cm x 1 cm over the lateral aspect of right hip.
\n7 cm x 4 cm over the lateral aspect of right gluteal
\nregion.\n<\/p>\n
3 cm x 1 cm just below left mastoid.\n<\/p>\n
4 cm x 1 cm and 3 cm x 1 cm over left lateral aspect of
\nneck.\n<\/p>\n
3 cm x 1 cm over left supra scapular region.
\n4 cm x 0.5 cm and 1 cm x 1 cm over lateral aspect of
\nupper part of left arm.\n<\/p>\n
1 cm x 1 cm over posterior aspect of lower part of left
\narm.\n<\/p>\n
5 cm x 4 cm and 0.5 cm x 0.5 cm over posterior aspect
\nof left elbow.\n<\/p>\n
4 cm x 2 cm over lateral aspect of left hip.
\nMultiple tiny scratch abrasions over left knee, lower<\/p>\n
part of left forearm, right hand, right side of face,<\/p>\n
left side of forehead, dorsum of nose and over front<\/p>\n
of neck.\n<\/p>\n
Other findings:\n<\/p>\n
                                     1<\/span><\/p>\n
Peritoneal cavity empty.\n<\/p>\n
Lungs cut section pale.\n<\/p>\n
Heart all chambers empty.                 Coronaries patent.
\nHyoid bone intact.\n<\/p>\n
Stomach contains 150 ml of brown colour fluid without
\nany specific smell. Mucosa pale.\n<\/p>\n
Small   intestine        contains         20    ml   bile    stained    fluid
\nwithout any specific smell.                   Mucosa pale.
\nLiver, spleen, kidneys and brain cut section pale.
\nUrinary bladder empty.\n<\/p>\n
External    genitalia          nil       injury.         Right      hydrocele
\npresent.\n<\/p>\n
1. According        to   the    medical          opinion,     the    death      of<\/p>\n
  Murugesan was caused due to excessive haemorrhage and<\/p>\n
  shock on account of multiple stab injuries over chest<\/p>\n
  and corresponding internal injuries to heart and both<\/p>\n
  lungs.\n<\/p>\n
2. The short question that arises for our consideration in<\/p>\n
  this appeal is as to whether the courts below committed<\/p>\n
  any manifest error in relying on the evidence of eye<\/p>\n
  witnesses,        Natarajan        (PW-2),         Rajendran      (PW-3)   and<\/p>\n
  Subramani     (PW-4)     to    convict         the   appellants      for   the<\/p>\n
  charge under Section 302, IPC.\n<\/p>\n
3. Before analysing the evidence of PWs-2 to 4, let us<\/p>\n
  have a look at the evidence of Savithri (PW 8) whose<\/p>\n
  version      is    important           to    appreciate    the     contention<\/p>\n
  regarding the very presence of PWs – 2 to 4 at the<\/p>\n
  scene of offence.\n<\/p>\n
                             1<\/span><\/p>\n
4. PW 8-Savithiri, was residing nearby Badrakaliamman Koil<\/p>\n
  at Kovai Pudur Pirivu and her husband is a transport<\/p>\n
  operator owning a lorry. It is in her evidence that on<\/p>\n
  28th March, 2002 at about 7 a.m. Natarajan (PW 2) along<\/p>\n
  with   two   other    persons    came   to   her     house   when   her<\/p>\n
  husband was away, stating that they have come to know<\/p>\n
  that her husband desired to dispose of his lorry owned<\/p>\n
  by him which they wanted to purchase, and therefore,<\/p>\n
  wanted to have a look at the lorry. The lorry was<\/p>\n
  stationed    at   a   distance    of    about   30    feet   from   her<\/p>\n
  house. The distance between the lorry where it was<\/p>\n
  stationed and the footpath             was about 20 to 25 feet.<\/p>\n
  That, after finishing her household work, she came out<\/p>\n
  of the house at about 9 a.m. and found that there was a<\/p>\n
  heavy crowd near the footpath. Meanwhile, her husband<\/p>\n
  also reached the home. She was examined on the same<\/p>\n
  evening and she narrated the incident to the police.<\/p>\n
  She was not subjected to any cross-examination by the<\/p>\n
  appellants. Marudhachalam (PW 20) is the husband of<\/p>\n
  PW8-Savithiri. It is in his evidence that he was in<\/p>\n
  deep financial problems and proposed to dispose of his<\/p>\n
  lorry and for that purpose sought the assistance of<\/p>\n
  some brokers including that of Natarajan-PW2. He stated<\/p>\n
  in his evidence that by the time he returned home at<\/p>\n
  about 9 a.m., he saw that there was a crowd at a
\n                                1<\/span><\/p>\n
  distance of 50 feet away from his house. He went to the<\/p>\n
  scene of occurrence at about 10 a.m. along with his<\/p>\n
  brother Paramasivam. The police were investigating the<\/p>\n
  matter and the mahazar (Ext. P30) was prepared in which<\/p>\n
  his brother Paramasivam had signed. It is also in his<\/p>\n
  evidence      that   his    wife   Savithri   (PW8)    informed       him<\/p>\n
  about Natarajan (PW2) and two others came to inspect<\/p>\n
  the lorry stating that they were interested to purchase<\/p>\n
  the same.\n<\/p>\n
5. Natarajan (PW2), is an automobile broker dealing with<\/p>\n
  the sale and purchase of old trucks and cars. It is in<\/p>\n
  his evidence that his friend Subramani (PW 4), who at<\/p>\n
  the   relevant       time   was    doing   business    in    sale     and<\/p>\n
  purchase of tomato in wholesale, intended to purchase a<\/p>\n
  lorry   and    in    that   connection     went   to   the    house    of<\/p>\n
  Marudhachalam (PW 20), at Kovai Pudur. At that time,<\/p>\n
  they have heard noise “ayyo amma” and he along with<\/p>\n
  other   two    went    running     there   and    found     that   three<\/p>\n
  persons were stabbing the deceased repeatedly and the<\/p>\n
  time was 7.00 or 7.30 a.m. It is also in his evidence<\/p>\n
  that one among the accused sustained a cut injury on<\/p>\n
  his right wrist. On seeing the incident, they ran away<\/p>\n
  from the place and went to several places. They have<\/p>\n
  reached their house at about 5 p.m. and in the evening<\/p>\n
  at about 8.30 p.m., the Inspector of Pothanur police
\n                                       1<\/span><\/p>\n
inquired from him as to what he had seen in the morning<\/p>\n
of     that     fateful      day.           His    statement            was    recorded.<\/p>\n
Thereafter,           he         was         required             to        attend     the<\/p>\n
identification parade to be held on 23rd April, 2002 at<\/p>\n
Salem       prison    and        on        that    day,       he       identified      the<\/p>\n
appellants 1 and 2 before the Judicial Magistrate and<\/p>\n
later       identified       appellant             No.3       in       the    Court.    He<\/p>\n
further deposed that he is assisted by                                  Rajendran (PW-<\/p>\n
3)     in     his    business.             It     is    in    his       evidence       that<\/p>\n
Subramani       (PW-4)       came          to     him    to       purchase      a     lorry<\/p>\n
sometime before the incident of the fateful day.                                         He<\/p>\n
further        stated      that        he       knew     that          one    lorry     was<\/p>\n
available for sale with Marudhachalam (PW-20) and in<\/p>\n
that connection, he along with PWs-2 and 4 visited the<\/p>\n
residence of PW-20 at about 6.00 A.M.                                   on the day of<\/p>\n
occurrence for the inspection of the lorry. It is in<\/p>\n
his evidence that at about 7.00 or 7.30 a.m. when they<\/p>\n
were    verifying          the    general          condition           of     the    lorry,<\/p>\n
three persons crossed them towards West and ten minutes<\/p>\n
thereafter, they heard a cry in pain from that side,<\/p>\n
which made them to run towards that place, where they<\/p>\n
saw the deceased being stabbed by the accused with the<\/p>\n
knives in their hands. He specifically stated that one<\/p>\n
among the three assailants got a cut injury on the<\/p>\n
right       hand.       It   is        worthwhile            to    mention      that     he
\n                                     1<\/span><\/p>\n
  asserted in his statement that he could identify the<\/p>\n
  three       assailants             which       he    did     in     the        test<\/p>\n
  identification parade.\n<\/p>\n
6. The evidence of Rajendran-PW3 and Subramani (PW 4) is<\/p>\n
  more or less the same as that of PW2-Natarajan.<\/p>\n
7. It   is    in       the   evidence      of   PWs   2   to    4    that     after<\/p>\n
  witnessing the ghastly incident of attack, they fled<\/p>\n
  away from the scene of offence due to fear. We are<\/p>\n
  unable      to       appreciate    the    criticism        levelled       by   the<\/p>\n
  learned      senior        counsel     appearing     for     the    appellants<\/p>\n
  that if PWs 2 to 4 were really present at the scene of<\/p>\n
  occurrence, nothing prevented them from informing the<\/p>\n
  police.              The    response,         behavioural         patterns      of<\/p>\n
  individuals in such a situation differs from person to<\/p>\n
  person and it cannot be said that response of every and<\/p>\n
  any human being would be similar on such occasions. May<\/p>\n
  be    PWs        2    to    4,    were     reeling      under       shock       and<\/p>\n
  nervousness. They were roaming here and there and as is<\/p>\n
  evident from their evidence, they have reached their<\/p>\n
  respective houses only in the evening after 5 p.m. The<\/p>\n
  further criticism was that they were examined only in<\/p>\n
  the evening of 28th March, 2002 and there is no reason<\/p>\n
  offered by the I.O. for not examining them immediately<\/p>\n
  but only in the night of 28th March, 2002. Be it noted,<\/p>\n
  there was no question put in the cross-examination to
\n                              1<\/span><\/p>\n
PW30-Investigating Officer, as to why he did not chose<\/p>\n
to examine PWs 2, 3 and 4 immediately at the time of<\/p>\n
inquest or thereafter. The mere fact that they were not<\/p>\n
examined during the inquest is of no consequence. It is<\/p>\n
nobody’s case that they were present at the time of<\/p>\n
inquest and yet their statement was not recorded by the<\/p>\n
I.O. On these grounds, the presence of PW2 at the scene<\/p>\n
of occurrence cannot be disbelieved. That apart, the<\/p>\n
evidence of PWs 2 to 4 that the appellants are the<\/p>\n
assailants, gets support from the evidence of PWs 5 and<\/p>\n
28. While PWs 5 and 28 were returning after worship at<\/p>\n
the temple, they heard a hue and cry which made them to<\/p>\n
run towards the scene of offence, where they saw three<\/p>\n
persons running away from the scene of offence. PW5, in<\/p>\n
the test identification parade, identified appellant<\/p>\n
No.2. PW28 (Rathinasamy), whose evidence is more or<\/p>\n
less same as that of PW5, had also identified appellant<\/p>\n
Nos. 1 and 2 in the test identification parade held on<\/p>\n
23rd April, 2002. It is in the evidence of PWs 5 and<\/p>\n
28, that they have seen Murugesan (since deceased) just<\/p>\n
crossing the temple while they were going into the<\/p>\n
temple     to    offer   prayers.   There   is   no   reason   to<\/p>\n
disbelieve the evidence of PWs 5 and 28 that they have<\/p>\n
seen     all    the   three   assailants,   namely,   appellants<\/p>\n
herein escaping from the scene of offence. They are all
\n                               1<\/span><\/p>\n
  independent      witnesses,       whose     evidence     cannot       be<\/p>\n
  rejected on any ground whatsoever.\n<\/p>\n
8. There is no reason to reject or disbelieve the evidence<\/p>\n
  of     Gopalakrishnan      (PW-5)     and    Rathinasamy          (PW-28)<\/p>\n
  altogether as both of them gave similar version in<\/p>\n
  their evidence. Gopalakrishnan (PW-5) who is a resident<\/p>\n
  of Palakadu-Coimbatore road at Kovai Pudur Pirivu road,<\/p>\n
  deposed in his testimony that at about 7.15 A.M. he<\/p>\n
  went     to   Badrakaliamman      temple     for   worshipping        on<\/p>\n
  28.3.2002 and at the same time Rathinasamy, who is also<\/p>\n
  a    resident   of   the   same     locality   came    to    the     said<\/p>\n
  temple. He further stated that when both of them were<\/p>\n
  returning after worship, Murugesan (deceased) was found<\/p>\n
  crossing the temple.        It is in his evidence that at the<\/p>\n
  same time they heard the accused shouting “yesterday<\/p>\n
  you closed one Sultan Meeran, as a retaliation we are<\/p>\n
  closing you now”. On hearing the said dialogue, they<\/p>\n
  rushed    towards    the    place     of    occurrence      and    found<\/p>\n
  Murugesan lying on the ground in a pool of blood while<\/p>\n
  the assailants were running towards South of the scene<\/p>\n
  of occurrence. He further stated in his evidence that<\/p>\n
  on seeing the said Murugesan lying in a pool of blood,<\/p>\n
  they were shocked and stood there itself for a while.<\/p>\n
  He knew that the deceased Murugesan belonged to RSS and<\/p>\n
  therefore,      he   alongwith       Rathinasamy       (PW28)       were
\n                                   1<\/span><\/p>\n
  proceeding to inform Ganesan (PW 15) who was in charge<\/p>\n
  of BJP party in the area and found that Ganesan (PW 15)<\/p>\n
  was coming in the opposite direction. Two or three<\/p>\n
  persons came running along with Ganesan and all of them<\/p>\n
  took the injured Murugesan in a car to the hospital.<\/p>\n
  Subramani (PW 4), uncle of Murugesan was one amongst<\/p>\n
  them.\n<\/p>\n
9. Now    we   proceed     to    consider       the    submission          of    the<\/p>\n
  learned senior counsel that the statements of PWs 2 to<\/p>\n
  4      (eyewitnesses),         though       purported      to     have        been<\/p>\n
  recorded on 29th March, 2002, had reached the Court<\/p>\n
  only on 11.4.2002 which according to him makes the<\/p>\n
  whole     prosecution      story      doubtful.       In    fact,    PW30-the<\/p>\n
  Investigating Officer explained that in the case of<\/p>\n
  murder of Sultan Meeran on 26th March, 2002, and the<\/p>\n
  murder of Murugesan (deceased) on 28th March, 2002 in<\/p>\n
  succession,        the     entire          city     of     Coimbatore          and<\/p>\n
  surrounding areas were in a highly disturbed state and<\/p>\n
  widespread        bandobasth         was    arranged       in     surrounding<\/p>\n
  areas. Adverting to this aspect of the matter, the High<\/p>\n
  Court        in    clear       and         categorical          terms,        upon<\/p>\n
  reappreciation of the evidence, held that in such a<\/p>\n
  situation,        no     one     could        find       fault     with        the<\/p>\n
  Investigating Officer in not sending the statements of<\/p>\n
  PWs 2, 3 and 4 to the Court before 11th April, 2002.
\n                                                      1<\/span><\/p>\n
                       Mere delay in sending the statements of PWs 2 to 4 per<\/p>\n
                       se would not make their evidence unacceptable unless<\/p>\n
                       something glaring is brought to our notice to doubt<\/p>\n
                       their very presence at the scene of offence. As rightly<\/p>\n
                       pointed out by the High Court, the evidence of PWs 2 to<\/p>\n
                       4 is so clinching, wherein they have stated in clear<\/p>\n
                       and    categorical       terms     that    three      persons   joining<\/p>\n
                       together stabbed one individual. That portion of the<\/p>\n
                       evidence       remains    unshaken.        It    is   true   that     the<\/p>\n
                       assailants were not previously known to PWs 2 to 4. But<\/p>\n
                       they    have     later   identified        the   appellants     as    the<\/p>\n
                       persons who stabbed the deceased.\n<\/p>\n
                 10. Learned senior counsel relied upon the judgment of this<\/p>\n
                       Court in Thulia Kali Vs. The State of Tamil Nadu1 and<\/p>\n
                       Marudanal Augusti Vs. State of Kerala2 in support of<\/p>\n
                       his submission that the delay in sending the statements<\/p>\n
                       recorded under Section 161, Cr.P.C. to the Court is<\/p>\n
                       fatal to the prosecution’s case. Thulia Kali deals with<\/p>\n
                       importance of timely despatch of the first information<\/p>\n
                       report which is an extremely vital and valuable piece<\/p>\n
                       of    evidence    for    the     purpose    of    corroborating      oral<\/p>\n
                       evidence adduced at the trial. In Marudanal Augusti,<\/p>\n
                       this Court on the facts held that there was a delay of<\/p>\n
                       as many as 28 hours in submitting FIR to the Special<\/p>\n
1<\/span>
\n    (1972) 3 SCC 393
\n2<\/span>
\n    (1980) 4 SCC 425
\n                               2<\/span><\/p>\n
  Magistrate       which     remained         unexplained     by      the<\/p>\n
  Investigating Officer in spite of being questioned. The<\/p>\n
  Court came to the conclusion that there was no proper<\/p>\n
  explanation as to why there was delay in sending the<\/p>\n
  FIR to the Court. We fail to appreciate as to how those<\/p>\n
  judgments would help the defence in this case since<\/p>\n
  there is no delay in sending the FIR in the present<\/p>\n
  case. There is a delay in sending the statements of PWs<\/p>\n
  2 to 4 recorded under Section 161, Cr.P.C. There is a<\/p>\n
  clear     explanation      available        on   record    that     the<\/p>\n
  Investigating Officer was also in charge of maintaining<\/p>\n
  law and order in the area that got vitiated after two<\/p>\n
  murders in succession leading to a lot of commotion and<\/p>\n
  communal    strife.      There    is   no   reason   to   reject    the<\/p>\n
  explanation as to why the statements recorded under<\/p>\n
  Section 161 Cr.P.C. could not be promptly despatched to<\/p>\n
  the Court. It was obviously for the reasons beyond<\/p>\n
  control    of    the     Investigating       Officer.     Nothing   is<\/p>\n
  further suggested to accept the theory propounded by<\/p>\n
  the learned senior counsel. It is nobody’s case that<\/p>\n
  such statements were not recorded by the Investigating<\/p>\n
  Officer at all. The suggestion made in this regard to<\/p>\n
  PWs 2 to 4 was denied by them.\n<\/p>\n
11. The learned senior counsel placed heavy reliance on<\/p>\n
  judgment    of   the     Madras    High     Court    in   Karunakaran
\n                                                      2<\/span><\/p>\n
                      Jabamani     Nadar     In    re.3   where    the    Madras    High     Court<\/p>\n
                      underscored the importance of speedy despatch of                           the<\/p>\n
                      documents, such as the original report, the printed<\/p>\n
                      form of FIR, inquest report and statement of witnesses<\/p>\n
                      recorded during inquest and the statements of witnesses<\/p>\n
                      recorded under Section 161(3) of Cr.P.C. There is no<\/p>\n
                      quarrel with that proposition and the importance of<\/p>\n
                      requirement of sending the vital documents to the Court<\/p>\n
                      without     any   delay.      But   the     delay   may   occur      due    to<\/p>\n
                      variety of facts and circumstances. Delay in despatch<\/p>\n
                      of the said documents by itself may not be fatal to the<\/p>\n
                      prosecution in each and every case. The question as to<\/p>\n
                      what   is   the    effect      of   delay     in    sending   the      vital<\/p>\n
                      documents to the Court may have to be assessed and<\/p>\n
                      appreciated       on   the    facts   and     circumstances       of    each<\/p>\n
                      case. It is not possible to lay down that delay in<\/p>\n
                      despatch of the vital documents in each and every case<\/p>\n
                      defeats the prosecution’s case.\n<\/p>\n
                 12.We do not find any material on record to accept the<\/p>\n
                      submissions made during the course of hearing of this<\/p>\n
                      appeal that PW 20, did not own any lorry with him so as<\/p>\n
                      to be sold and the said lorry was not stationed nearby<\/p>\n
                      the scene of occurrence. We do not find any reason to<\/p>\n
                      disbelieve the statement of PWs 8 and 20 in this regard<\/p>\n
                      which is clear, categorical and forthcoming which we
\n3<\/span>
\n    1974 L.W.(Crl) 1190
\n                                                         2<\/span><\/p>\n
                       have    discussed         in      the    preceding      paragraphs.           The<\/p>\n
                       submission is accordingly rejected.\n<\/p>\n
                 13. We may have to deal with yet another submission made by<\/p>\n
                       the learned senior counsel for the appellants that the<\/p>\n
                       investigation was not fair as there were many missing<\/p>\n
                       links in the process of investigation. This submission<\/p>\n
                       was made by the learned counsel contending that the<\/p>\n
                       investigation         does        not     reveal      as    to         how    the<\/p>\n
                       Investigating Officer came to know about the presence<\/p>\n
                       of PWs 2 to 4 at the scene of occurrence and for<\/p>\n
                       recording their statements in that regard. This Court<\/p>\n
                       in State of Karnataka Vs. K. Yarappa Reddy4 held that<\/p>\n
                       “even    if    the        investigation         is     illegal         or     even<\/p>\n
                       suspicious the rest of the evidence must be scrutinized<\/p>\n
                       independently        of     the       impact   of     it.   Otherwise         the<\/p>\n
                       criminal      trial       will     plummet     to     the   level        of   the<\/p>\n
                       investigating     officers            ruling   the    roost.     …   Criminal<\/p>\n
                       justice should not be made a casualty for the wrongs<\/p>\n
                       committed by the investigating officers in the case. In<\/p>\n
                       other   words,       if     the       court    is    convinced         that   the<\/p>\n
                       testimony of a witness to the occurrence is true, the<\/p>\n
                       Court is free to act on it albeit the investigating<\/p>\n
                       officer’s suspicious role in the case”. The ratio of<\/p>\n
                       the judgment in that case is the complete answer to the<\/p>\n
4<\/span>
\n    (1999) 8 SCC 715
\n                                    2<\/span><\/p>\n
  submission made by the learned senior counsel for the<\/p>\n
  appellants.\n<\/p>\n
14.One more submission of the learned senior counsel was<\/p>\n
  that the prosecution failed to establish the motive for<\/p>\n
  committing the crime by the appellants. In the light of<\/p>\n
  the direct evidence of PWs 2 to 4, and 8 and 20, the<\/p>\n
  motive part has no significance. Even otherwise there<\/p>\n
  is enough material available on record in the present<\/p>\n
  case that the motive for the present murder was in<\/p>\n
  retaliation         to     the    murder    of   one    Sultan    Meeran<\/p>\n
  allegedly by a group of persons belonging to an outfit<\/p>\n
  of which the deceased was stated to be a member.<\/p>\n
15.We do not find any reason whatsoever to interfere with<\/p>\n
  the concurrent finding of fact arrived at by the Courts<\/p>\n
  below      in    order     to    convict   the   appellants      for   the<\/p>\n
  offence punishable under Section 302, IPC. We do not<\/p>\n
  find    any      reason     or   justification    to    disbelieve     the<\/p>\n
  evidence of PWs 2, 3 and 4 along with the evidence of<\/p>\n
  PWs    8     and   20     and    the   medical   evidence.    Once     the<\/p>\n
  evidence of these witnesses is found acceptable, the<\/p>\n
  inevitable consequence is to confirm the conviction of<\/p>\n
  the appellants under Section 302, IPC. The High Court<\/p>\n
  in     its      elaborate       judgment   critically    assessed      and<\/p>\n
  analyzed every nuance of the evidence and found a clear<\/p>\n
  case against the appellants. The reappreciation of the
\n                                   2<\/span><\/p>\n
      evidence by the appellate Court did not result in any<\/p>\n
      manifest injustice. We have looked into the evidence to<\/p>\n
      satisfy ourselves as to whether the Courts below have<\/p>\n
      committed    any      manifest    error      in    appreciating    the<\/p>\n
      evidence available on record and on such scrutiny, we<\/p>\n
      find that the Courts below did not commit any error<\/p>\n
      whatsoever       in   accepting   the     evidence     available    on<\/p>\n
      record.     In    the   circumstances,        we     hold   that   the<\/p>\n
      appellants       miserably   failed     to    make    out   any    case<\/p>\n
      requiring our interference under Article 136 of the<\/p>\n
      Constitution.\n<\/p>\n
    16.We accordingly find no merit in the appeal and the<\/p>\n
      same is accordingly dismissed.\n<\/p>\n<\/p>\n
                                         …………………….J.\n<\/p>\n
                                         (B. SUDERSHAN REDDY)<\/p>\n
                                         …………………….J.\n<\/p>\n
                                         (SURINDER SINGH NIJJAR)<\/p>\n
New Delhi,
\nApril 19, 2010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Abu Thakir & Ors vs State Rep. By Inspector Of … on 19 April, 2010 Author: B S Reddy Bench: B. Sudershan Reddy, Surinder Singh Nijjar REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 168 OF 2008 ABU THAKIR & ORS. … APPELLANTS VERSUS STATE REP. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-154078","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAbu Thakir & Ors vs State Rep. By Inspector Of ... on 19 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abu-thakir-ors-vs-state-rep-by-inspector-of-on-19-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abu Thakir & Ors vs State Rep. 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