N.V. Ramana, J.— This appeal is filed by the present appellant, aggrieved by the concurrent findings of the court below, which has upheld the culpability of the accused for culpable homicide amounting to murder under Section 302 of the Penal Code, 1860 (hereinafter “IPC”, for brevity) and voluntarily causing hurt by dangerous weapons or means under Section 324 IPC. This appeal presently impugns the High Court judgment dated 22-2-2016, in Kumar v. State 2016 SCC OnLine Mad 4669.
2. The prosecution story in a nutshell begins with an earlier scuffle between the accused and deceased (Sakthivel), while watching a street play conducted during a village festival. It is alleged that the appellant-accused was rebuked by the deceased for sitting next to ladies. In this context, on 20-8-2009, at about 6.00 p.m. the accused came to the spot where Rajendran (PW 1), Arumugham (PW 2) and Subramani (PW 3) were savouring idlis from the stall of Sumathi (PW 4), when the appellant-accused arrived with an intention to draw out Sakthivel (deceased), by picking up a quarrel with Rajendran (PW 1), who was his brother-in-law. Accordingly, the appellant-accused arming himself with a wooden log lying nearby, assaulted Arumugham (PW 2), who came to the rescue. At that moment, Sakthivel (deceased) is supposed to have intervened. Seeing him, the accused barged on Sakthivel claiming to finish him while kicking and pushing him into the water canal. When he tried to climb up from the canal, the accused hit him with a wooden log on his head. The villagers present at the spot, then prevented the accused while assaulting him on his head, thereby causing injuries to the accused. Thereafter, both the injured Sakthivel and accused were shifted to Government Hospital, Pudukottai in an ambulance. Ultimately Sakthivel succumbed to the injuries before reaching the hospital.
3. Sub-Inspector Ramaswamy, PW 23 registered an FIR (Ext. P-1) against the accused for the offences punishable under Sections 302 and 324 IPC in Crime No. 47 of 2009. Circle Inspector Subhakumar, PW 24, undertook the investigation, visited the place of occurrence, prepared observation mahazar and drew the rough sketch (Ext. P-7). The alleged weapon (wooden log-stick) (Ext. P-8) used in the administration of crime was recovered from the spot. On the next day, he conducted inquest vide report (Ext. P-9) and dead body of the deceased Sakthivel was sent for post-mortem. Subsequently, the appellant-accused was reported to be arrested on 22-8-2009. The IO recorded the statements of Dr Lavanya, the doctor, who treated PW 2 (Arumugham), and Dr Illayaraja, who conducted post-mortem of the deceased. Thereafter the authorities seized the clothes of the deceased reported in the seizure report being MO 4 to MO 6. After completing the investigation, the IO submitted his report to the learned District Munsif-cum-Judicial Magistrate levelling charges against the accused for the offences punishable under Sections 324 and 302 IPC. The learned Judicial Magistrate in turn committed the case to the Sessions Court. The accused pleaded not guilty and claimed to be tried.
4. The Sessions Court by order, dated 7-10-2013, awarded conviction to the accused and directed him to suffer rigorous imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs 5000, in default of payment of fine, to further suffer an imprisonment for a period of one year. The accused was also sentenced to suffer rigorous imprisonment for a period of one year for the offence under Section 324 IPC. Both the sentences were, however, directed to run concurrently. The main reasons given by the trial court for maintaining the conviction against the appellant-accused are:
(i) That the motive concerning the verbal spat between the accused and the deceased Sakthivel is proved by PW 1, PW 6, PW 8 and PW 7.
(ii) That the delay was sufficiently explained, as the police were busy in conducting investigation in other case.
(iii) That the recovered objects from the scene of crime has been proved before the court.
(iv) That the injury on the accused has been attributed to a scuffle between the deceased and the crowd, which stands corroborated by the witness, statements of PW 2, PW 3 and PW 5.
(v) The trial court recognises that there were no steps taken to identify the injury on the accused.
(vi) That the mere wrong entry of timing in the inquest report, would not vitiate the post-mortem report much less the prosecution case itself.
(vii) That on the aspect of arrest, it is an acceptable inference, that the accused was forcefully discharged by the police personnel on 21-8-2009, and was confined by the police for one whole day, and the arrest was only shown on 22-8-2009. Further as there was no confession obtained due to such action by the police, the entire case cannot be vitiated.
(viii) That publication of the story in a newspaper cannot be relied on, as the defence has not taken steps to mark the evidence or examine the editor.
(ix) That the case was proved by the prosecution beyond reasonable doubt.
5. Aggrieved, the appellant-accused approached the High Court. By the impugned order, the High Court dismissed the appeal of the accused on the following grounds:
(i) That the contention of the defence concerning the statement of PW 2 about recording by the police, just after the incident is a flimsy contradiction, which does not have the force to dislodge the entire case.
(ii) That PW 2's cross-examination after recalling the witness, cannot be taken into consideration.
(iii) That failure to provide reasons for the injuries sustained by the accused, would not be sufficient to dislodge the prosecution's case.
(iv) That the nature of weapon and the injury would not mandate reduction in the sentence from the charge of murder to grievous injury.
6. Aggrieved, by the concurrent finding of the fact, the accused has approached this Court.
7. The main thrust of argument by the learned counsel for the appellant is that the entire prosecution case is fabricated in such a way so as to implicate the appellant in the case as culprit. The real circumstances of the case have been concealed by the prosecution in order to help the complainant. Even the motive projected by the prosecution is false. There was no complaint lodged by the deceased or his wife against the accused, which itself proves that the motive ascribed to be the alleged verbal spat between the deceased and accused at the drama in the village on the eve of Kaliamman temple festival. Secondly, there was huge delay in registering the FIR and the delay was caused only to implicate the appellant. On the fateful day i.e. 20-8-2009 at about 6.23 p.m. police got the information about the occurrence, but no FIR was lodged. At about 7.30 p.m. police visited the spot, conducted enquiry, suspected PWs 1 to 3 to be the real culprits and took them into their custody. Even PW 2 informed police that he received injuries due to the attack made by the deceased. The appellant has also been injured in the fight at the hands of the deceased. But, police did not register the complaint on the basis of actual occurrence, and the courts below failed to appreciate the true aspects of the case particularly non-explanation by the prosecution as to the injuries sustained by the accused. Thereafter, the appellant-accused and the deceased were sent to the hospital in same ambulance and till the discharge of the appellant from hospital, police did not suspect him as a culprit. It is only thereafter, police in connivance with complainant cooked up a case against the appellant, the complaint was suitably prepared and FIR (Ext. P-1) registered. Even at the time of framing charges against the accused a charge under Section 323 IPC was first charged but the trial court convicted the appellant under Section 324 IPC. The trial court as well as the High Court failed to notice the suppression of facts by the prosecution and came to a wrong conclusion without appreciating the evidence in accordance with settled principles of law, and thereby rendered a perverse judgment which is required to be set aside by the interference of this Court.
8. On the other hand, the learned counsel for the State supported the view taken by the courts below and submitted that having regard to the facts and circumstances, the trial court assessed them in proper perspective and delivered a reasoned judgment. The conviction and sentence passed against the accused has also been affirmed by the High Court by categorical findings which does not require interference of this Court.
9. Having heard the learned counsel for both parties, we acknowledge that this case is a direct evidence case and based on statement of eyewitnesses which mandates us to observe statements of certain eyewitnesses for the disposal of this case at hand.
10. A bare perusal of the evidence deposed by the complainant, PW 1 (Rajendran) shows that while the complainant was in the company of Arumugham (PW 2) and Subramanian (PW 3) having idlis sold by Sumathi (PW 4), the accused appeared and picked up the assault on him. In the process of interference to prevent the assault, PW 2 also got injured. Soon thereafter, with the appearance of his brother-in-law (Sakthivel, deceased) at the spot, the accused pushed him into canal and assaulted with a wooden log on the forehead of Sakthivel. Then Rajinikanth (PW 15) and Balasundaram (PW 19), another co-brother of the complainant, called the ambulance and took the accused and Sakthivel to the hospital while the complainant followed them on two-wheeler and at the hospital he came to know about the death of the deceased, then he went to Udayalipatti Police Station and lodged complaint (Ext. P-1).
11. The deposition of PW 2, Arumugham alias Iyyer, an eyewitness to the incident, is to the effect that when he was preventing the accused who was about to assault PW 1, he sustained injuries. At that point of time, the deceased came with a wooden log in his hand and fought with the accused. He has also asserted that the ambulance came after police examined him and took his signature. He has further made it clear that many persons, including nearby shop owners, witnessed the incident, but it is a matter of record that except himself, two brothers-in-law of the deceased and Rasu, no one else was made witness. He further deposed that the deceased assaulted the accused with the wooden log on head due to which the accused got injury. When the deceased was trying to hit the accused for a second time, he intervened due to which he got injury on his wrist. On suspicion, police took him along with PWs 1 and 3 to Keeranur Police Station where they detained him for the night and then sent to government hospital on the next day morning. Before his examination-in-chief, they warned him that if he does not depose as instructed, they will foist a case against him.
12. In his cross-examination, PW 2 reveals as under:
Immediately after the occurrence, Udayalipatti Police came to the place of occurrence and enquired about the incident and get my signature after recording my statement. They recorded my statement, before the arrival of 108 ambulance and before we took Sakthivel and Kumar. At the time, Rajendra was also presented and the police recorded his statement and obtained his signature. The police examined me only prior to the arrival of 108 ambulance and never examined me after the arrival of 108 ambulance.
13. On recalling PW 2, he states as under:
The deceased Sakthivel assaulted the accused in his head with the wooden log. I came there and the accused sustained injuries in his head before I reached there. When I intervened the second blow by Sakthivel, I sustained injuries in my wrist. The accused Kumar also sustained injuries on his head. Sakthivel fell down in the channel due to the forceful attack by him and the accused also fell down.
(emphasis supplied)
It may be noted that PW 2 is not declared as hostile by the prosecution.
14. In his cross-examination, PW 3 Subramanian, another eyewitness and close relative of the deceased, also admitted that the occurrence took place at 6 p.m. and the scuffle between the accused and deceased was for five minutes. By the time the occurrence was completed, there was darkness. He further admits that he was examined by the Inspector of Police at the place of occurrence and PWs 1 and 2 were also present at that time. He was later taken to Keeranur Police Station along with PWs 1 and 2.
15. That PW 4 (Sumathi), who is alleged to be selling idlis, has not supported the case of the prosecution.
16. PW 5 Rasu, corroborates the version of PW 2, wherein he states that both the accused and the deceased had held sticks. During the scuffle both of them fell into the channel and both were unconscious by the time they were pulled up.
17. Rajinikanth, PW 15 deposed that at 7.15 p.m., he went to Kurunthankudi bridge upon hearing about the occurrence and found the accused and deceased lying there and took them to government hospital in ambulance. Then he came back to the place of occurrence along with Village Administrative Officer (PW 14) where police prepared a rough sketch and took his signature. However, in his cross-examination he deposed that, by the time he reached the place of occurrence, police had already arrived there and thereafter ambulance came. He further stated that PW 1 Rajendran narrated to the police everything about the incident and police reduced it into writing and his signature was also obtained.
18. In his evidence, PW 19 Balasundaram has also stated categorically that the ambulance came to the place of occurrence after the arrival of police and they seized the wooden log. According to him doctors declared the death of Sakthivel at about 8.45 p.m. and Rajendran, complainant, PW 1 was not present at that time, but Inspector, Sub-Inspector and Head Constable were present who examined him and PW 15, but did not obtain his signature.
19. Head Constable Mohan, PW 20, in his chief-examination adduced that at 6.23 p.m. on the day of the incident, while he was going towards Ulaghanathapatti in connection with investigation in some other case, he received a call on his mobile phone about the occurrence. He immediately passed on the message to his seniors and called an ambulance. At 7.00 p.m., when he reached the place of occurrence, they found the deceased lying at Bridge Stone, Kurunkulam with injuries while the accused was lying at roadside. He immediately sent them to Government Hospital at 7.05 p.m. However, in the cross-examination, he stated that he had enquired PW 1, brother-in-law of the deceased and did not see the wounded accused and deceased when he reached the place of occurrence.
20. We have also gone through the statements of PWs 6, 7, 8, 9, 10, 11, 12, 13, 16, 22, etc. Most of them are hearsay witnesses and nothing important seems to come out from their depositions.
21. Contrary to what Rajendran, complainant (PW 1) deposed, a combined reading of the evidence adduced by PWs 2, 3, 5, 15, 19 and 20 would make it abundantly clear that both the accused and the deceased have participated in the fight with wooden logs, accused has got head injury at the hands of deceased, PW 2 (Arumugham) himself also received injury at the hands of the accused while he was trying to protect PW 1 (Rajendran) from the assault of the accused, police reached the place of occurrence within ten minutes of the occurrence, that is well before the arrival of ambulance and Rajendran PW 1 (complainant), Arumugham alias Ayyar (PW 2), Subramanian (PW 3) and other witnesses described the incident to the police who then examined the persons present there, rough sketch was prepared and their signatures were also obtained.
22. Having observed the various depositions, we are of the considered opinion that there are four crucial aspects herein, which should be discussed and elaborated upon. The above evidence if examined from the perspective of time, the overall impression that can be drawn from the foregoing discussion is that the occurrence took place at around 6.15 p.m., and the Head Constable Mohan (PW 20) received information of occurrence at 6.23 p.m. and he passed on the message to Sub-Inspector and Circle Inspector at 6.26 p.m., soon thereafter ambulance arrived at the spot of occurrence at 6.30 p.m. At that point of time, police have enquired PW 1, PW 2 and other witnesses, drawn report, sketch map, etc., and took their signatures and sent the injured persons to hospital. That sequence of incidents shows that already investigation was started by police. That means the information provided by PWs 1, 2 and other witnesses at about 6.30 p.m. at the place of occurrence should have ideally been the basis of the FIR. Whereas the FIR (Ext. P-1) shows that the information was received at police station at 9.30 p.m. on 20-8-2009.
23. We may note that this case involves a fight between two persons—accused and the deceased. Majority of the eyewitnesses including PW 1, PW 3, have categorically stated that the appellant-accused was the aggressor. Interestingly, PW 2 states that, even Sakthivel assaulted the accused by a wooden log on the head, his statement should be given credence for eight major reasons:
(i) That the police has subdued the statement of PW 2 taken moments after the incident.
(ii) That PW 4 corroborates the version of PW 2.
(iii) That the injury on the accused has not be accounted for.
(iv) That the accused was also noted to be injured by all the prosecution witness, without specific statements as to the nature and all the prosecution witnesses state that the injuries on the accused were imputed by the bystanders without much clarity.
(v) That the mode of arrest by the police to have unauthorisedly discharged the accused from the hospital and illegally confining him for a day in police custody.
(vi) Active botch-up of investigation by the police authorities.
(vii) Unexplained delay in registering the FIR in the police station.
(viii) He is alleged to be the person, who had been injured in the incident.
24. From the account of eyewitnesses, we may observe that there are at least three different versions which substantially weaken the prosecution's case.
25. On the point of suppression of genesis of the crime, PW 20 (Head Constable) categorically states that he was present before the ambulance had reached the place. Even though he was extensively cross-examined, he has not budged from his position that there was no recording of any statement before the ambulance reached. On the contrary PW 2 categorically remarks that a statement was recorded by PW 20 before the ambulance arrived. Although the High Court has discredited the evidence of PW 2 as the part which provides the aforesaid details was on recalling after few days, therefore, in light of possibility of being won over, the credibility of the statement made by PW 2 needs to be viewed with this background fact. However, we fail to understand internal logic of such assumption, when the prosecution has not declared the witness as hostile and more so, when his narrative is corroborated by other witnesses. Therefore, PW 2's evidence needs to be taken into fold.
26. It is matter of record that the alleged appellant-accused, was arrested in a hurried manner after the day of the incident from the hospital. It is also stated that the police authorities in an unusual manner got the appellant discharged from the hospital and kept him illegally confined for a day. Moreover, PW 2 has categorically stated the following on the action of the police:
The police enquired me about the incident and I narrated the same. The police and the Sub-Inspector of Police on suspicion taken myself, PW 1 (Rajendran) and PW 3 (Subramanian) to Keeranur Police Station. I was detained in Keeranur Police Station during the night and on the next day morning, I was sent to Keeranur Government Hospital for treatment. Before I was examined in chief, they warned me that if I have not deposed as instructed by them, they will foist a case against me and only for that reason, I have stated like that.
(emphasis supplied)
27. The action of investigating authority in pursuing the case in the manner in which they have done must be rebuked. The High Court on this aspect, correctly notices that the police authorities have botched up the arrest for reasons best known to them. Although we are aware of the ratio laid down in Parbhu v. King Emperor 1944 SCC OnLine PC 1, AIR 1944 PC 73, wherein the Court had ruled that irregularity and illegality of arrest would not affect the culpability of the offence if the same is proved by cogent evidence, yet in this case at hand, such irregularity should be shown deference as the investigating authorities are responsible for suppression of facts.
28. The criminal justice must be above reproach. It is irrelevant whether the falsity lie in the statement of witnesses or the guilt of the accused. The investigative authority has a responsibility to investigate in a fair manner and elicit truth. At the cost of repetition, I must remind the authorities concerned to take up the investigation in a neutral manner, without having regard to the ultimate result. In this case at hand, we cannot close our eyes to what has happened; regardless of guilt or the asserted persuasiveness of the evidence, the aspect wherein the police has actively connived to suppress the facts, cannot be ignored or overlooked.
29. Another point put forth by the learned counsel on behalf of the appellant-accused is that the prosecution has not explained the injuries suffered by the accused and hence the prosecution case should not be believed. At the outset, it would be relevant to note the settled principles of law on this aspect. Generally failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true (see Mohar Rai v. State of Bihar AIR 1968 SC 1281, 1968 Cri LJ 1479).
30. In Lakshmi Singh v. State of Bihar (1976) 4 SCC 394, 1976 Cri LJ 1736 this Court observed:
“12. … where the prosecution fails to explain the injuries on the accused, two results follow:
(1) that the evidence of the prosecution witnesses is untrue; and
(2) that the injuries probabilise the plea taken by the appellants.”
It was further observed that:
“12. … in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.”
(emphasis supplied)
31. In the case on hand, admittedly, the appellant-accused was also injured in the same occurrence and he too was admitted in the hospital. But, the prosecution did not produce his medical record, nor the doctor was examined on the nature of injuries sustained by the accused. The trial court, instead of seeking proper explanation from the prosecution for the injuries sustained by the accused, appears to have simply believed what prosecution witnesses deposed in one sentence that the accused had sustained simple injuries only.
32. From the evidence of IO, PW 24 it is apparent that in the scuffle PW 2 (Arumugham) received “simple” injuries and he had taken the statement of Dr Lavanya (PW 17) who treated PW 2. He had also examined Dr Illayaraj (PW 18) who conducted post-mortem on the body of the deceased. But, in the case of appellant-accused, PW 24, IO admits that he was aware of the fact that the appellant-accused was admitted as in-patient and the appellant-accused had sustained injuries. He further states that neither did he arrest the accused nor he examined the doctor in regard to the injuries of the accused. In the circumstances in which the deceased, accused and also PW 2 (Arumugham) got injuries, it is obligatory on the part of IO to examine the doctor and seek information about the injuries sustained by the accused and the same should have been made part of the record. A duty is cast on the prosecution to furnish proper explanation to the court how the person who has been accused of assaulting the deceased, received injuries on his person in the same occurrence. We may note that the injuries alleged to have been caused are not properly explained. An alternative story is set up wherein the injuries are attributed to mob justice, such allegations without substantive evidence cannot be accepted.
33. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in the case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. But in the case on hand, as we have already discussed in the above paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand, it is demonstrated that the deceased hit the accused on his head with the wooden log besides the testimony from the eyewitnesses that there was scuffle. In such a factual situation, certainly motive may act as a double-edged sword.
34. In the light of the settled law thus by this Court and also from what is clear from the evidence, there is absence of extreme cruelty, even if it is assumed that the accused hit the deceased with the log. Had there been a strong motive to do away with the life of the deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilising more dangerous weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the backdrop of quarrel that took place during drama at the village festival, prior to the date of occurrence. Inasmuch as the prosecution laid the foundation for the commission of crime by the accused in the said quarrel as an element of motive, in the absence of positive proof of such motive, the prosecution has to face the peril of failure in establishing that foundation.
35. Now coming to other charge under Section 324 IPC, for causing injuries to Arumugham alias Ayyar (PW 2). In light of the deficiencies noted above, it can be easily said that even the charge under Section 324 IPC is not established. The aforesaid conclusion is clearly buttressed by the fact that the injured witness himself has attributed the injury on him to the deceased, instead of the accused. In such a situation conviction of the accused on the charge of Section 324 cannot be sustained under law.
36. Taking stock of the circumstances and depositions of prosecution witnesses in this case, it would be difficult to hold that the prosecution has laid the case on real circumstances and proved its case beyond reasonable doubt. We are surprised at the way in which courts below have perceived the facts and circumstances of this case. We are not in agreement with the views drawn by the trial court as well as the High Court while dealing with the matter.
37. Normally this Court does not interfere with the concurrent findings recorded by the courts below, but in this case we find certain exceptional circumstances as narrated above, considering these aspects we feel that this is a fit case for our interference. In our opinion, instead of dealing with the intrinsic merits of the evidence of witnesses, both the courts below have acted perversely. Once we arrive at the conclusion that we cannot lend credence to the genuineness of the FIR and the prosecution case, there is no need of further enquiry as the assertion made by the prosecution is not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the appellant-accused. Viewed in that angle, the judgments of the courts below awarding conviction and sentence to the appellant-accused require to be set aside.
38. In the result, the appeal is allowed and the conviction and sentence awarded by the courts below is set aside. The appellant-accused stands acquitted from all the charges levelled against him. The appellant is stated to be in jail. He may be set at liberty forthwith, if not required in any other case.
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