2024 INSC 212 1|Criminal Appeal 270 and 271 of 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 270 OF 2019

PERIYASAMY …APPELLANT(S)

VERSUS

THE STATE REP.

BY THE INSPECTOR OF POLICE …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 271 OF 2019

J U D G M E N T

SANJAY KAROL J.

1. The present appeals arise from the final judgment and order dated 26

th

November 2014 passed by the Madurai Bench of Madras High Court, in Crl. A.

(MD) No. 238 and 240 of 2014, which confirmed the judgment and order dated

31

st

July 2014 in Sessions Case No. 109 of 2005 passed by the Sessions Court,

2|Criminal Appeal 270 and 271 of 2019

Tiruchirapalli, vide which the present appellants, Periyasamy

1

and

R. Manoharan

2

were convicted in the following terms under the Indian Penal

Code

3

:

S.No Name Crime Punishment Awarded

1. A1 – Periyasamy IPC – S.302 (2

counts)

Imprisonment for life and

Rs. 1,000 fine

IPC – S.307 (2

counts)

Rigorous Imprisonment for seven

years and Rs. 1,000 fine

2. A2 - R.

Manoharan

IPC – S.302 r/w

S.109

(1 count)

Imprisonment for life and Rs.

1,000 fine

IPC – S.307 r/w

S.109

(2 counts)

Rigorous Imprisonment for seven

years and Rs. 1,000 fine

2. The incident in question relates to the death of two persons after being

stabbed, allegedly by A-1 at the instigation of A-2. The prosecution case

emerging from the record, as also set out by the Courts below, is as follows:-

2.1 On 3

rd

March 2002, Dharmalingam

4

had after already having

procured liquor in an earlier completed transaction, half an hour later

demanded more brandy on credit from the owners and workers of

Saravana Wine Shop located in Neithalur Colony. A quarrel arose, and a

showcase of the shop was smashed, and the bottles stored therein were

damaged. In this course of events, it is alleged that D-1 retrieved a knife

1

Hereinafter ‘A-1’

2

Hereinafter ‘A-2’

3

Hereinafter ‘IPC’

4

Hereinafter ‘D1’

3|Criminal Appeal 270 and 271 of 2019

and stabbed one Thangavel

5

(one of the owners of the shop). A-1, with a

knife, caused fatal injuries to D-1. He also stabbed Sakthivel (son of

Muthuveeran)

6

in his stomach repeatedly. When D-2 intervened to prevent

the attack, A-1 stabbed him. While the injured persons were being taken to

hospital, on the way, both D-1 and D-2 succumbed to injuries.

2.2 Sakthivel, who was injured in the incident, reported it to

A. Rajasekar (PW-20), a Police Inspector at the Hospital. Upon this

statement, FIR no. 87/2002 came to be registered. Upon investigation on 1

st

July 2004, charges were framed against A-1 and A-2, as indicated in the

above table.

Trial Court Findings

3. In order to prove the charges, the prosecution examined 22 witnesses;

exhibited 33 documents and nine material objects. To repel the charges, the

defence produced a solitary witness and three documents.

4. The Trial Court has relied on ocular and medical evidence to establish the

charges against the accused persons. PW-1 and K. Sakthivel, son of Kaathaan

7

(PW-2) both deposed that in the quarrel between the deceased and accused

persons, though they tried to pacify the situation, A-2 handed a knife to A-1 with

which the latter stabbed the deceased persons.

5

Hereinafter ‘D2’

6

Hereinafter ‘PW-1

7

Hereinafter ‘PW2’

4|Criminal Appeal 270 and 271 of 2019

5. The Learned Trial Court found no substance in the challenge put forth by

the defence attempting to shake the prosecution's case. A-1 was held guilty on

two counts of Section 302, IPC, i.e., for the murder of D-1 and D-2; A-2 was held

guilty on one count only, i.e., for abetting the murder of D-1.

6. The charges of attempt to murder were found to be proven against both

A-1 and A-2. It relied on the evidence of PW-1, PW-2, and PW-3 to hold that

A-2 instigated A-1 to attack the deceased. The learned Trial Court observed that

the injuries sustained by PW-1 and K. Sakthivel (PW-2) were of such a nature

that the act of the accused would be termed as an act of attempt to murder.

High Court Findings

7. The High Court, in appeal, was faced with the question of the absence of

the name of A-2 in the FIR. Having referred to certain decisions of this Court, it

was observed that simply because the name was not mentioned in the FIR, an

accused can not be absolved of liability for having committed the offence. The

next question considered by the Court with respect to A-2 was his involvement

or lack thereof in the occurrence of this offence. The argument on his behalf relies

on the fact that PW-1's statement did not mention him, and neither did Exhs. P-6

and P-11, was considered unworthy, keeping in view the testimonies of injured

eyewitnesses PW-1 and PW-2 as also the statement of PW-3 under Section 161

(3) of the Code of Criminal Procedure, 1973; it was held that the involvement of

A-2 stood proved beyond reasonable doubt.

5|Criminal Appeal 270 and 271 of 2019

8. For A-1, three primary arguments were put forth, i.e., Dr. Radhakrishnan

8

(PW-17) Doctor at Seahorse Hospital did not give evidence in regard to the

surgical procedure undergone by PW-1; the injuries faced by A-1 were not

sufficiently explained by the prosecution; and about the occurrence, the owner of

the wine shop stood not examined.

9. It was observed that the genuineness of the statement made by PW-1 to the

police could not be doubted as he had told PW-17 that he was a victim of an

attack by A-1. Such genuineness stands buttressed by the fact that the document

reached the court on the same day.

10. On A-1's injuries being unexplained, it was observed that the same would

not be sufficient to dispel the entire prosecution case. Reference was made to

Amar Malla v. State of Tripura

9

. It was held that since both PW-1 and PW-2

are consistent on facts, including the place of occurrence, as also the same being

an admitted fact, the contention in that regard on behalf of A-1 has to be

negatived. Given that the presence of the owner of the shop has nowhere been

mentioned, his non-examination cannot be termed fatal to the prosecution case.

11. In such terms, the High Court confirmed the conviction and sentence

handed down by the Trial Court as regards A1 and A2.

Submissions

8

Hereinafter ‘PW-17’

9

(2002) 7 SCC 91

6|Criminal Appeal 270 and 271 of 2019

12. The present appeals are a challenge to the judgments of the Trial Court and

High Court. We have heard Mr. S Nagamuthu, learned senior counsel, Mr. S.

Arun Prakash for A-1, and Mr. Vipin Jai for A-2. Dr. Joseph Aristotle S. was

heard for the State.

Contentions on behalf of A-1

13. The primary ground urged on behalf of A-1 was that nearly all witnesses

were “interested” in the case's outcome and, therefore, unreliable; and none of

the witnesses examined were independent. Further, it was canvassed that the

delay in lodging the FIR stands unexplained, more so when the medical evidence

does not speak of PW-1 having undergone surgery. Also, it must be noted that

there was no prior animosity or reason for discord. The events as they unfolded

were the result of a spur-of-the-moment quarrel in which he also sustained

grievous injuries. The right of private defence has also been pleaded as an

alternate argument.

Contentions on behalf of A-2

14. It was argued on behalf of A-2 that his presence at the scene of the crime

was never established. Four limbs of A-1’s arguments, i.e., delay in lodging the

FIR; almost all witnesses qualifying as “interested witnesses”; there being no

enmity between the involved persons; and the lack of independent witnesses,

were adopted by A-2.

7|Criminal Appeal 270 and 271 of 2019

Submissions on behalf of the Respondent

15. The respondent has filed detailed submissions which attempt to discredit

as a whole the submissions on behalf of the accused persons. In doing so, the

State relied on various judgments from this Court. We have perused the written

submissions filed and also examined the cases referred.

Consideration and Conclusion

16. The question that we are called upon to decide is whether, in the sum total

of facts, circumstances, and the law applicable, the convictions handed down to

A-1 and A-2 are based on the standard of beyond reasonable doubt having been

met and, therefore, are sustainable.

17. It would be apposite for this Court to consider the law on the various facets

of the penal laws of the land, involved in this case.

The Right of Private Defence

18. A-1 has contended that his actions were covered under the ambit of the

right of private defence. The principle is best captured in the following words

found in Russel on Crime, 11th Edition Vol.I

“… a man is justified in resisting by force anyone who manifestly

intends and endeavours by violence or surprise to commit a known

felony against either his person, habitation or property. In these

cases, he is not obliged to retreat, and may not merely resist the attack

where he stands but may indeed pursue his adversary until the danger

is ended and if in a conflict between them he happens to kill his

attacker, such killing is justifiable”.

8|Criminal Appeal 270 and 271 of 2019

19. The right of private defence is not defined under the IPC. Whether under

the circumstances of each case, such a right is available or not is determined

within the said boundaries only. No test in the abstract can be laid down for

determining whether a person legitimately acted in private defence. The law only

provides that the person claiming such a right bears the onus

10

to prove the

legitimacy of the actions done in furtherance thereof and it is not for the Court to

presume the presence of such circumstances or the truth in such a plea being

taken. (See: Raghbir Singh & Ors. v. State of Haryana

11

.) The burden on the

person pleading the right of private defence has been succinctly explained in

James Martin v. State of Kerala

12

. This right has been held to be “very valuable,

serving a social purpose” and, therefore, it should not be construed narrowly.

(See: Vidhya Singh v. State of M.P.

13

)

20. This Court has summarised the principles in regard to the exercise of right

of private defence in Darshan Singh v State of Punjab & Anr.

14

as referred to in

Sukumaran v State

15

“(i) Self-preservation is the basic human instinct and is duly

recognised by the criminal jurisprudence of all civilised countries.

All free, democratic and civilised countries recognise the right of

private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is

suddenly confronted with the necessity of averting an impending

danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of

self-defence into operation. In other words, it is not necessary that

10

Section 105 Indian Evidence Act 1872

11

(2008) 16 SCC 33

12

(2004) 2 SCC 203

13

(1971) 3 SCC 244

14

(2010) 2 SCC 333

15

(2019) 15 SCC 117

9|Criminal Appeal 270 and 271 of 2019

there should be an actual commission of the offence in order to give

rise to the right of private defence. It is enough if the accused

apprehended that such an offence is contemplated and it is likely to

be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable

apprehension arises and it is coterminous with the duration of such

apprehension.

(v) It is unrealistic to expect a person under assault to modulate his

defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be

wholly disproportionate or much greater than necessary for

protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-

defence, it is open to consider such a plea if the same arises from the

material on record.

(viii) The accused need not prove the existence of the right of private

defence beyond reasonable doubt.

(ix) The Penal Code confers the right of private defence only when

that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his

life or limb may in exercise of self-defence inflict any harm even

extending to death on his assailant either when the assault is

attempted or directly threatened.”

However, this Court will only enter into the question of applicability of the right

of private defence if the primary submission of complete acquittal fails, for it has

been submitted by Mr. Nagamuthu, learned senior counsel that this submission

is an alternate to the arguments advanced by Mr. S. Arun Prakash, learned

counsel for A-1.

Independent and Related or Interested Witnesses

21. It is a well-recognised principle in law that the non-examination of

independent witnesses would not be fatal to a case set up by the prosecution. The

difference between a witness who is “interested” and one who is “related” stand

explained by a Bench of three learned Judges in State of Rajasthan v. Kalki

16

16

(1981) 2 SCC 752

10|Criminal Appeal 270 and 271 of 2019

“7. …“Related” is not equivalent to “interested”. A witness may be called

“interested” only when he or she derives some benefit from the result of a

litigation; in the decree in a civil case, or in seeing an accused person

punished. A witness who is a natural one and is the only possible

eyewitness in the circumstances of a case cannot be said to be “interested.”

We may refer to the observation in Sarwan Singh v. State of Punjab

17

as under

to appreciate the evidentiary value of such testimonies: –

“...Moreover, it is not the law that the evidence of an interested witness

should be equated with that of a tainted evidence or that of an approver so

as to require corroboration as a matter of necessity. The evidence of an

interested witness does not suffer from any infirmity as such, but the courts

require as a rule of prudence, not as a rule of law, that the evidence of such

witnesses should be scrutinised with a little care. Once that approach is

made and the court is satisfied that the evidence of interested witnesses

have a ring of truth such evidence could be relied upon even without

corroboration. Indeed there may be circumstances where only interested

evidence may be available and no other, e.g. when an occurrence takes

place at midnight in the house when the only witnesses who could see the

occurrence may be the family members. In such cases it would not be

proper to insist that the evidence of the family members should be

disbelieved merely because of their interestedness…”

In other words, if witnesses examined are found to be ‘interested’ then, the

examination of independent witnesses would assume importance.

Faulty Police Investigation

22. Recently, this Court in Rajesh and Anr. v. State of Madhya Pradesh (3-

Judge Bench)

18

, while setting aside the conviction of the three Appellants

therein, remarked:

“39. Before parting with the case with our verdict, we may note with deep

and profound concern the disappointing standards of police investigation

that seem to be the invariable norm. As long back as in the year 2003, the

Report of Dr. Justice V.S. Malimath's ‘Committee on Reforms of Criminal

Justice System’ had recorded thus:

‘The manner in which police investigations are conducted is of

critical importance to the functioning of the Criminal Justice

17

(1976) 4 SCC 369 (3J)

18

2023 SCC OnLine SC 1202

11|Criminal Appeal 270 and 271 of 2019

System. Not only serious miscarriage of justice will result if the

collection of evidence is vitiated by error or malpractice, but

successful prosecution of the guilty depends on a thorough and

careful search for truth and collection of evidence which is both

admissible and probative. In undertaking this search, it is the

duty of the police to investigate fairly and thoroughly and collect

all evidence, whether for or against the suspect. Protection of

the society being the paramount consideration, the laws,

procedures and police practices must be such as to ensure that

the guilty are apprehended and punished with utmost dispatch

and in the process the innocent are not harassed. The aim of the

investigation and, in fact, the entire Criminal Justice System is

to search for truth. ……The standard of police investigation in

India remains poor and there is considerable room for

improvement. The Bihar Police Commission (1961) noted with

dismay that “during the course of tours and examination of

witnesses, no complaint has been so universally made before the

Commission as that regarding the poor quality of police

investigation”. Besides inefficiency, the members of public

complained of rudeness, intimidation, suppression of evidence,

concoction of evidence and malicious padding of cases…..’

40. Echoing the same sentiment in its Report No. 239 in March, 2012, the

Law Commission of India observed that the principal causes of low rate of

conviction in our country, inter alia, included inept, unscientific

investigation by the police and lack of proper coordination between police

and prosecution machinery. Despite passage of considerable time since

these gloomy insights, we are dismayed to say that they remain sadly true

even to this day. This is a case in point….”

23. A perusal of the judgment of the Trial Court shows that for both counts

before it, reliance primarily has been placed on PW-1 to PW-3. Apart from these

three-star prosecution witnesses, the Investigating Officer (PW-22), by virtue of

having been “in the driver’s seat” of the case, acquires importance. The salient

points that can be appreciated from an assay of their respective testimonies may

be referred to as follows:-

23.1 PW-1 is Sakthivel, S/o Muthuveeran. It was stated that upon

information that D-1 and Senthilkumar were quarreling with the owner

of the wine shop, he and Sakthivel, S/o Kathan rushed to the shop. It is

12|Criminal Appeal 270 and 271 of 2019

there that upon the instigation of A-2, who handed A-1 a knife he stabbed

the witness thrice in the stomach of PW-1 and PW-2, D-1, and D-2 as

well. SI, Kulithalai, interrogated him at 4.30 a.m. on 4

th

March 2002, and

the statement made thereunder is Exh.P-1. In his cross-examination, it has

come forth that upon his arrival at Seahorse Hospital by 10:00 p.m., he

was conscious, and it is upon administration of anesthesia for surgery that

he became unconscious. Regarding the location of a wine shop, it has

been deposed that the same is located in a crowded area and has a regular

stream of visitors in and around the area.

23.2 With respect to A-2, it has been deposed that whether or not he

was an owner of the wine shop is unclear, but he certainly was a visitor.

23.3 However, he contradicts his earlier version that upon reaching

the hospital, he was not in a position to speak and had not informed the

doctor of the incident, and instead, it was the people who accompanied

him who briefed the doctor.

24. Sakthivel, S/o Kathan (PW-2) stated that A-1 stabbed him in the stomach

twice, which was at the instigation of A-2. According to this witness, A-1, A-2,

and D-2, along with other persons, worked in the wine shop. His statement was

recorded in the evening after the incident. He states that the showcase upon his

reaching the wine shop was intact. Further, D-1 was under the influence of

alcohol when PW-2 saw him, but, significantly, D-1 had not stabbed A-1, and as

such, no blood was seen on the hands of A-1.

13|Criminal Appeal 270 and 271 of 2019

25. Senthilkumar (PW-3) states that he was interrogated the morning after the

incident at 7.30 a.m. His deposition reveals him not to know as to whether D-1

(Dharmalingam) was in a state of intoxication before going to the wine shop. Nor

has he seen the showcase of the shop in a broken condition.

26. The learned Trial Court found sufficient evidence to convict both A-1 and

A-2 based on these three testimonies.

27. K. Raajasekar (PW-22) (the Investigating Officer) at the relevant time

Inspector of Police, Kulithalai, took charge of the investigation of the incident on

4

th

March 2002. In his examination-in-chief, he has described how the

investigation proceeded. It was deposed that on 5

th

March 2002 at about 12 noon,

he arrested A-2 from the Pettavaithalai bus stand. He also deposed, having visited

the scene of the crime twice and interrogated several witnesses. On 9

th

April

2002, he examined the witnesses (medical evidence) who had allegedly furnished

wound certificates for A-1 and A-2. Further witnesses were examined on 10

th

July 2002, and a chargesheet was filed on 15

th

July 2002.

28. It is undisputed that PWs 1 and 2 are injured witnesses. It is a well-

established principle of law, not requiring any underscoring or reiteration, that

the evidence of an injured witness is considered to be on a higher pedestal than

that of a witness simpliciter.

29. The learned Trial Court observed that for the reasons, (a) that the

witnesses had nothing to gain from deposing against the accused persons;

14|Criminal Appeal 270 and 271 of 2019

(b) there is no suggestion that any rival business interest was to be benefitted by

Sarvana Wines being embroiled in the controversy; (c) A-2 was in fact a “good

Samaritan” ; (d) that the witnesses were deposing the accused persons at the

behest of the police being an unsubstantiated claim; and (e) that the witnesses

cannot be said to be “interested”. The concept of interested witness, as referred

to hereinabove, shows that for a person to be such, he ought to have an interest

in seeing the accused persons punished.

30. There is a direct statement by PW-1 that D-1 was his relative, i.e., son of

his paternal uncle. D-2 was a relative of the owner of the wine shop, who,

according to him, was A-1, but in another instance, he states that A-1 was only a

worker. In respect of A-2, the only statement is that it was upon his instigation

that A-1 stabbed them.

31. It is hard to conceive how the Trial Court concluded that despite being the

first cousin of D-1 and himself a person injured in the incident, PW-1 was not an

interested witness. Further, we find a categorical statement that, “the wine shop

is in the main road’ and “the wine shop would be crowded always”. In such a

situation, the joining of independent witnesses ought not to have been a difficult

task but, yet, it remained unachieved.

32. Further, we note that he admits variation in his statement (Exh.P-1) in

different ink and hand. He further states that there wasn't much light at the spot

15|Criminal Appeal 270 and 271 of 2019

of the incident, but then denies it to be “too dark” when the occurrence has

happened.

33. This Court has to strike a balance between the testimony of the injured

witness and that of an interested witness. It is also not a case that PW-1 was a

natural witness, as he stated that he had not been to the wine shop and was only

near the STD booth where the ensuing quarrel was separated. In striking the

above-stated balance, other factors must also be considered, which will be

discussed subsequently.

34. PW-2 was a neighbour of D-1. Upon being informed of the quarrel

between A-1 and D-1, he and PW-1 allegedly went there and separated the

parties. He claims to be an eyewitness to the incident. After having undergone

surgery, he regained consciousness the next day at 6.30 a.m.

35. It was that evening when the police recorded his statement. At the time

of recording these statements in Court, i.e., 14

th

November 2005, a separate case

preferred by the accused persons was under trial and PW-2 was made an accused

thereunder. Now, having been made an accused in a case, as also having been

injured with two stabs in the stomach and additionally being the neighbour of

D-1, it is difficult to reconcile that PW-2 would be a witness of unquestionable

integrity upon whose statement convictions can be based. Once again, we find

that in regard to A2 the only thing stated is that upon the instigation of A-2, A-1

stabbed them. There is no other statement as to what may have been said by

16|Criminal Appeal 270 and 271 of 2019

A-2 to enrage him enough that even after the quarrelling parties were separated

and they had dispersed in their respective directions, A-1 went ahead angrily and

repeatedly stabbed them.

36. He has also deposed that there were about 50 persons at the scene of the

crime, then, how has the non-examination of independent witness been

countenanced by the prosecution and “approved” by the Courts below, is

something that escapes us, or rather confounds us.

37. Another essential aspect to be examined is that the statement of PW-1 was

recorded at 4.30 a.m. on 4

th

March 2002 wherein as summarised above, he has

clearly mentioned the role of PW-2, however, the latter’s examination by the

police was only at 5.00 p.m., that too when per his own statement he had regained

consciousness from his surgery at 6.30 a.m. itself. This gap is entirely

unexplained and wholly overlooked by the Courts below.

38. Coming to the version of PW-2 again, we notice him to be extremely

evasive on the issue as to whether the police had visited the spot in the night

intervening 3/4

th

March 2002 or not. He denies being interrogated by the police

before 4

th

March 2002 till about 5.00 p.m. He admits having visited a private

hospital and, yet, as discussed earlier, failed to report the matter to the police,

more so the cause of injuries sustained by him or for that matter others present

on the spot.

17|Criminal Appeal 270 and 271 of 2019

39. The evidence of PW-3, upon which the counsel has laid considerable

emphasis for the respondent, appears to us to be fraught with contradictions. In

his examination-in-chief, it is recorded that D-1 had asked A-2 and A-1 for a

bottle of liquor on credit, which the latter two refused and scolded him, upon

which he pushed down the showcase, leading A-1 to grab a beer bottle and break

it on the head of D-1. When he was cross-examined he deposed as follows:

“The police recorded what all I have stated and obtained my signature. It

is not correct to state that Dharmalingam asked 1

st

Accused in the wine

shop to provide bottle on credit; that as he has refused, Dharmalingam

picked up the quarrel, pushed the show case and broken into pieces; that

Thangavel appeared there to question it; that we and Dharmalingam

stabbed his relatives and Thangavel;….”

40. As is apparent, he states, for one, that D-1 had indeed broken the showcase

but subsequently states that to depose the same would be incorrect. Furthermore,

we find his actions not to be akin to that of a prudent man. When A-1 had

allegedly broken a bottle on the head of D-1, PW-3 took the injured D-1 not to

the hospital but to an STD booth located nearby, where a quarrel ensued between

him and A-1, which was eventually separated by PWs 1 and 2. Even more so,

when A-1 was allegedly stabbing PW-2, he was still at the STD booth with D-1,

yet not having gone to the hospital and also not having made any attempt to stop

such stabbing. Why a person would “hold” a person with a grievous head injury

near an STD booth and not take him to the hospital or, additionally, not try and

stop others from being grievously injured is something that compromises, in our

mind, the credibility of the version of PW-3.

18|Criminal Appeal 270 and 271 of 2019

41. Apart from the three star witnesses of the prosecution, in our considered

view, failing the standard of scrutiny applied to a criminal proceeding, a perusal

of the records reveals another facet, compromising in nature to the prosecution

case. It has come forth in the evidence of PW-1 that upon his arrival at the

hospital, he was in a conscious state, so why the recording of the statement

delayed till 4.30 a.m. is unsubstantiated. This is further so because while PW-1

speaks of being operated upon, none of the witnesses examined as medical

witnesses corroborate such a statement. For emphasis, we may refer to the

statement of PW-17, the medical officer in the Seahorse Hospital, at the relevant

time. He stated that upon admission, PW-1 was fully conscious. The wound

certificate was issued by Dr. Pon Shanthi, who has not been examined.

42. The delay therefore renders the circumstances questionable. Also, as we

have alluded to earlier, there is a significant gap in the examination of PW-2 as

well. For all the aforesaid reasons, it cannot be said that the prosecution had

succeeded in establishing its case against the two accused persons beyond

reasonable doubt warranting a conviction under Section 302 IPC.

43. We further examine the role of the I.O. The investigation officer of a case

is the charioteer tasked with using the resources and personnel at his disposal to

ensure law and order as also that a person who has committed a crime is brought

to the book. In other words, the role of an investigating officer is that of the

backbone of the entire criminal proceeding in respect of the particular offence(s)

he is charged with investigating. A perusal of his testimony reveals certain

19|Criminal Appeal 270 and 271 of 2019

problematic statements. Nowhere has it come on record as to how the

investigation reached the bus stand from where A-2 was arrested – who informed

the authorities about A-2's movement by bus? Further, he has deposed that he

made two visits to the scene of the crime and that he also examined several

witnesses. Then how is there a striking lack of independent witnesses to lend

credence to the prosecution's version of events? He does not know where D-1

had expired. How? He also did not conduct any scientific investigation at the spot

of crime. Such an investigation carried out most casually and callously is sought

to be made the basis by the police in seeking the conviction of the accused.

44. Another direct contradiction concerns his examination of the doctors who

allegedly gave wound certificates for PWs 1 and 2. In the testimony of PW-17, it

is clear that he was not the one who gave the wound certificate as he was only on

duty from 9 a.m. to 9 p.m., and PW-1 was brought to the hospital at 10 p.m. The

wound certificate was issued by Dr. Pon Shanthi, who had not been examined in

the instant proceedings.

45. For the charges under Section 307 IPC, the learned Trial Court also

considered the evidence of PWs 1, 2, and 3. We have considered the evidence of

these three witnesses in detail and are of the opinion that for the reasons afore-

stated, the said witnesses cannot be relied upon.

46. In addition to the person who led the investigation, we must consider the

testimonies of the people who aided in it.

20|Criminal Appeal 270 and 271 of 2019

46.1 PW-20 was the Sub-Inspector, Kulithalai Police Station, at the

relevant time. His testimony appears to be evasive and full of

improvements, needing to explain the material interpolations on the

medical record. He admits not having recorded any information received

from the Seahorse Hospital on the night of 3

rd

of March, 2022 at 11.00

hours. He admits not to have added a version in the sentence - Exhs. P-1

and P-24, which, as we notice, record the name of the assailant. He admits

the jurisdictional police station to carry out the investigation, was not his

(Tirupathur Town Police Station) but only Kulithalai. He admits that

neither he nor any one of the police officers from any of the police stations

visited the spot till the morning after the date of the incident, despite the

travel distance being less than half an hour. No explanation is forthcoming

as to why one of the most essential aspects of the criminal investigation

was ignored or delayed. We notice the witness to have admitted having

informed the details of the incident both to the Deputy Superintendent of

Police and K. Rajasekar (PW-22). Was it that the initial investigation was

being managed so as to shield the real assailants, which could have been

the complainant party themselves? Or was it that the police were trying to

frame the accused? Particularly when, as the record reveals, as is so

admitted by PW-22 of A-2 being a practicing advocate who has been, (i)

pursuing the matters against the officials of the police station; (ii) has been

21|Criminal Appeal 270 and 271 of 2019

lodging complaints against the police officials for inaction; and (iii) had

nothing to do with the ownership, management or control of the wine shop.

46.2 There is yet another disturbing feature emanating from his

statement. Why is it that the police used a private vehicle for carrying out

the investigation, as was admitted by this witness in any case, whose owner

and driver in any event not examined during trial or investigation? The

prosecution doesn’t contend that at the relevant time, no government

vehicle was available at the police station or that the said private vehicle

was hired by them. It is also significant that PW-21 admits that PW-1 had

not named A-2 in his statement, and, PW-22 when speaking about A-2,

only states, “On 5.3.2002 at 12.00 noon, I arrested the accused Manoharan

at Pettavaithalai Bus Stand after enquired sent him to the Court Custody

on the same day.”

46.3 In respect of PW-21, we find him to have not denied but feigned

ignorance of the fact that Sundaravadivel had held Paramasivam S/o

Kaalimoopan against whom a false case stood fastened by Inspector

Sundaravadivel, under the Tamil Nadu Prevention of Dangerous Activities

of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders,

Forest Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act,

1982

19

. He only states that “being an Advocate the 2

nd

accused came to

19

Hereinafter referred to as ‘Goondas Act’

22|Criminal Appeal 270 and 271 of 2019

the area police stations.” This in no way discloses what led either PW-22

or him to suspect and thence, act on the complicity of A-2 in the crime.

47. Various lapses such as these cumulatively affect the overall sanctity of the

prosecution case, making it fall short of the threshold of beyond reasonable

doubt. It is in such circumstances, on analysis of the record, that we are unable

to sustain the conviction handed down by the Courts below to A-1 and A-2. The

injured witnesses and the Investigation Officer in their testimony together are not

inspiring confidence, and in our own estimation the prosecution case stands

shaken beyond a point to which no conviction resting thereupon can be said to

be just in the eyes of law.

48. We sustain the challenge on the grounds, among others that, (a) examined

private persons were interested witnesses, with inconsistencies amongst them;

(b) no independent witnesses were examined; (c) there was a delay in filing the

FIR; (d) there were interpolations on record; (e) there were numerous lapses in

the investigation; and (f) the medical and scientific evidence on record does not

support the prosecution's version of events.

49. During the course of submissions on behalf of A-1, the learned senior

counsel appearing on his behalf had urged the right of private defence as a

secondary submission, in the event of the arguments in favour of complete

acquittal on finding favour with the court. Given that, upon consideration and

analysis of the submissions made and the material on record, we have found that

23|Criminal Appeal 270 and 271 of 2019

the convictions cannot stand in the eyes of law, we need not delineate on that

submission.

50. In that view of the matter, the appeals are allowed and the convictions

subject matter thereof, are accordingly set aside. Both appellants are directed to

be released forthwith, if not required in any other case. Pending application(s), if

any, shall stand disposed of.

…………….....……….J

(HRISHIKESH ROY)

…………….....……….J

(SANJAY KAROL)

New Delhi;

18

th

March 2024.