KUMAR versus STATE REPRESENTED BY INSPECTOR OF POLICE on 11 May 2018

[2018] 5 S.C.R. 343

KUMAR

v.

STATE REPRESENTED BY INSPECTOR OF POLICE

(Criminal Appeal No. 409 of 2017)

MAY 11, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860: ss. 302 and 324 – Conviction by courtsbelow – Prosecution case was that the appellant-accused and thevictim-deceased had a verbal spat – On fateful day, appellant cameto spot and picked up fight with PW-1 – In the process ofinterference to prevent assault, PW-2 also got injured – Soonthereafter when victim-deceased appeared at the spot, the appellantpushed him into the canal and hit him with wooden log on his head– Villagers prevented the appellant from assaulting deceased therebycausing injuries to him – Both appellant and the deceased wereshifted to hospital where deceased succumbed to injuries – Trialcourt convicted appellant and awarded life imprisonment – HighCourt upheld the same – On appeal, held: Most of the prosecutionwitnesses were hearsay witnesses – They had deposed that both theappellant and the deceased participated in the fight with woodenlogs and appellant also got head injury at the hands of deceased –But, prosecution did not produce his medical record, nor the Doctorwas examined on the nature of injuries sustained by the appellant –In the circumstances in which the deceased, appellant and alsoPW-2 got injuries, it was obligatory on the part of IO. to examinethe doctor and seek information about the injuries sustained by theaccused and the same should have been made part of the record –The injuries alleged to have been caused to appellant were notproperly explained, rather an alternative story was set up whereinthe injuries were attributed to mob justice, such plea withoutsubstantive evidence cannot be accepted – Had there been a strongmotive to do away with the life of deceased, generally there wouldhave been more fatal injuries caused on the deceased not by a logbut by utilizing more dangerous weapons – These circumstancesshow that there is no reason to believe that motive was entertainedby the accused in the back drop of quarrel that took place prior to

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Athe date of occurrence – In the absence of positive proof of suchmotive, prosecution failed to prove its case beyond reasonable doubt– Conviction and sentence awarded by courts below set aside.

Investigation: Role of Investigating authority – Theinvestigative authority has a responsibility to investigate in a fairBmanner and elicit truth – The concerned authorities to take up theinvestigation in a neutral manner, without having regards to theultimate result.

Criminal law: Injuries on the accused – A duty is cast on theprosecution to furnish proper explanation to the Court how theCperson who has been accused of assaulting the victim receivedinjuries on his person in the same occurrence – Penal Code, 1860– ss.302 and 324.

Criminal law: Motive – Generally, in case prosecution desiresto place motive of the accused as a circumstance, like any otherDincriminating circumstance, it should also be fully established – Ifthe genesis of the motive of the occurrence is not proved, the oculartestimony of the witnesses as to the occurrence could not bediscarded only on the ground of absence of motive, if otherwise theevidence is worthy of reliance – Evidence.

EAllowing the appeal, the Court

Conclusion

HELD: 1. Most of the prosecution witnesses are hearsaywitnesses. Contrary to what complainant (PW-1) deposed, acombined reading of evidences of PWs 2, 3, 5, 15, 19 and 20show that both the accused and the deceased participated in thefight with wooden logs, accused got head injury at the hands ofFdeceased, PW-2 himself also received injury at the hands ofaccused while he was trying to protect PW-1 from assault of theaccused. The police reached the place of occurrence within tenminutes of the occurrence, that is well before the arrival ofambulance. At that point of time, Police enquired PW-1, PW2Gand other witnesses, drawn report, sketch map etc., and tooktheir signatures and sent the injured persons to hospital. Thatsequence of incidents shows that already investigation was startedby police. That means the information provided by PWs 1, 2 andother witnesses at about 6:30 P.M. at the place of occurrence H

should have ideally been the basis of the F.I.R. Whereas the F.I.R.shows that the information was received at police station at 9.30thp.m. on 20 August, 2009. The case involves a fight between twopersons – accused and the deceased. Majority of the eyewitnesses including PW-1, PW-3, have categorically stated thataccused-appellant was the aggressor. There were at least threedifferent versions which substantially weakens the prosecution’scase [Paras 19-23] [354-E-H; 355-C-E; 356-B-C]

2. On the point of suppression of genesis of the crime, PW-20 (head constable) categorically stated that he was present beforethe Ambulance reached the place. Even though he wasextensively cross-examined, he has not budged from his positionthat there was no recording of any statement before theAmbulance reached. On the contrary PW-2 categorically remarksthat a statement was recorded by PW-20 before the ambulancearrived. Although the High Court has discredited the evidenceof PW-2 as the part which provides the aforesaid details was onrecalling after few days, therefore, in light of possibility of beingwon over, the credibility of the statement made by PW-2 needsto be viewed with this background fact. However, there seemsto be no logic of such assumption, when the prosecution has notdeclared the witness as hostile and more so, when his narrativeis corroborated by other witnesses. Therefore, PW-2’s evidenceneeds to be taken into fold. [Para 24] [356-C-E]

3. It is matter of record that the alleged accused-appellant,was arrested in a hurried manner after the day of the incidentfrom the hospital. It is also stated that the police authorities in anunusual manner got the appellant discharged from the hospitaland kept him illegally confined for a day. The action ofinvestigating authority in pursuing the case in the manner whichthey have done must be rebuked. The High Court on this aspect,correctly noticed that the police authorities have botched up thearrest for reasons best known to them. [Para 25] [356-E-F; 357-A]

4. The criminal justice must be above reproach. It isirrelevant whether the falsity lie in the statement of witnesses orthe guilt of the accused. The investigative authority has aresponsibility to investigate in a fair manner and elicit truth. In A

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Athis case at hand, the aspect wherein the police has activelyconnived to suppress the facts, cannot be ignored or overlooked.Generally failure of the prosecution to offer any explanation inthat regard shows that evidence of the prosecution witnessesrelating to the incident is not true or at any rate not whollytrue.[Paras 26, 27] [357-C-E, F]BMohar Rai and Bharath Rai v. The State of Bihar 1968CriLJ 1479 – relied on.

5. Admittedly, the accused-appellant was also injured in thesame occurrence and he too was admitted in the hospital. TheCtrial Court, instead of seeking proper explanation from theprosecution for the injuries sustained by the accused, appears tohave simply believed what prosecution witnesses deposed in onesentence that the accused had sustained simple injuries only. Inthe circumstances in which the deceased, accused and also PW-2 got injuries, it was obligatory on the part of I.O. to examine theDDoctor and seek information about the injuries sustained by theaccused and the same should have been made part of the record.[Paras 29, 30] [358-E-H; 359-A-B]

6. Motive of the accused to commit the crime is ascribedto the previous quarrel occasioned between the accused and theEdeceased during a drama at a village festival. Generally, in caseprosecution desires to place motive of the accused as acircumstance, like any other incriminating circumstance, it shouldalso be fully established. But in the case on hand, the evidence ofdirect witnesses is not satisfactory and on the other hand, it isdemonstrated that the deceased hit the accused on his head withFthe wooden log besides the testimony from the eye witnessesthat there was scuffle. In such a factual situation, certainly motivemay act as a double-edged sword. [Para 31] [359-C-F]

7. There is absence of extreme cruelty, even if it assumedGthat accused hit the deceased with the log. This show that thereis no reason to believe that motive was entertained by the accusedin the back drop of quarrel that took place during drama at thevillage festival, prior to the date of occurrence. In as much as theprosecution laid the foundation for the commission of crime bythe accused in the said quarrel as an element of motive, in theH

absence of proof of such motive, prosecution has to face the perilof failure in establishing that foundation. [Para 32][359-F-H; 360-A]

8. As regards the other charge under Section 324 of IPC,for causing injuries to PW-2. In light of the deficiencies, it can beeasily said that even the charge under Section 324 of IPC is notestablished. The injured witness himself has attributed the injuryon him to the deceased, instead of the accused. In such a situationconviction of the accused on the charge of Section 324 cannot besustained under law. [Para 33] [360-B-C]

9. Taking stock of the circumstances and depositions ofprosecution witnesses in this case, it would be difficult to holdthat prosecution has laid the case on real circumstances andproved its case beyond reasonable doubt. Normally this Courtdoes not interfere with the concurrent findings recorded by theCourts below, but in this case considering certain exceptionalcircumstances, this is a fit case for interference. In the peculiarfacts and circumstances of the case, definitely the benefit of doubtgoes to the accused-appellant. The judgments of the Courts belowawarding conviction and sentence to the accused-appellantrequires to be set aside. [Paras 34, 35] [360-C, E-F]

Parbhu v. Emperor AIR 1944 PC 73 – distinguished.

Lakshmi Singh and Ors. v. State of Bihar 1976 CriLJ1736 – relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.409 of 2017.

From the Judgment and Order dated 22.02.2016 of the High Courtof Madras Madurai Bench in Criminal Appeal No. 326 of 2013.

S. Nagamuthu, M. P. Parthiban, A. S. Vairawan, S. Parthasarathi,Ankur Prakash, Advs. for the Appellant.

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AM. Yogesh Kanna, Ms. Sujatha Bayadhi, Advs. for theRespondent.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. This appeal is filed by the presentappellant, aggrieved by the concurrent findings of the court below, whichBhas upheld the culpability of the accused for culpable homicide amountingto murder under Section 302 of Indian Penal Code [hereinafter ‘IPC’for brevity] and voluntary causing hurt by dangerous weapons or meansunder Section 324 of IPC. This appeal presently impugns the High Courtjudgment dated 22.02.2016, in Criminal Appeal No. 326 of 2013.

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2. The prosecution story in a nut shell begins with an earlier scufflebetween the accused and deceased (Sakthivel), while watching a streetplay conducted during a village festival. It is alleged that the accused-appellant was rebuked by the deceased for sitting next to ladies. In thiscontext, on 20.08.2009, at about 6:00 PM the accused came to the spotDwhere Rajendran (PW-1), Arumugham (PW-2) and Subramani (PW-3)were savoring idliis from the stall of Sumathi (PW-4), when theaccused-appellant arrived with an intention to draw out Sakthivel(deceased), by picking up a quarrel with Rajendran (PW-1), who washis brother-in-law. Accordingly, the accused-appellant arming himselfwith a wooden log lying nearby, assaulted Arumugham (PW-2), whoEcame to the rescue. At that moment the Sakthivel (deceased) is supposedto have intervened. Seeing him, the accused barged on Sakthivel claimingto finish him while kicking and pushing him into the water canal. Whenhe tried to climb up from the canal, the accused hit him with a woodenlog on his head. The villagers present at the spot, then prevented theFaccused while assaulting him on his head, thereby causing injuries to theaccused. Thereafter, both the injured Sakthivel and accused were shiftedto the Government Hospital, Pudukottai in an ambulance. Ultimately theSakthivel succumbed to the injuries before reaching the Hospital.

3. Sub-Inspector Ramaswamy—PW-23 registered an FIRG(Ext. P1) against the accused for the offences punishable under Sections302 and 324 of IPC in Crime No. 47 of 2009. Circle InspectorSubhakumar—PW-24, undertook the investigation, visited the place ofoccurrence, prepared observation mahazar and drew the rough sketch(Ext. P7). The alleged weapon (wooden log—stick) (Ext. P8) used inthe administration of crime was recovered from the spot. On the nextHday, he conducted inquest vide report (Ext.P9) and dead body of the deceased Sakthivel was sent for postmortem. Subsequently, thendaccused—appellant was reported to be arrested on 22 August, 2009.The I.O. recorded the statements of Dr. Lavanya, the Doctor, who treatedPW-2 (Arumugham), and Dr. Illayaraja, who conducted postmortem ofthe deceased. Thereafter the authorities seized the clothes of the deceasedreported in the seizure report being M.O.4 to M.O.6. After completingthe investigation, the I.O. submitted his report to the learned DistrictMunsif-cum-Judicial Magistrate levelling charges against the accusedfor the offences punishable under Sections 324 and 302 of IPC. Thelearned Judicial Magistrate in turn committed the case to the SessionsCourt. The accused pleaded not guilty and claimed to be tried.

4. The Sessions court by order, dated 07.10.2013, awardedconviction to the accused and directed him to suffer rigorous imprisonmentfor life for the offence under Section 302 of IPC and to pay a fine ofRs. 5,000/-, in default of payment of fine, to further suffer animprisonment for a period of one year. The accused was also sentencedto suffer rigorous imprisonment for a period of one year for the offenceunder Section 324 of IPC. Both the sentences were however directedto run concurrently. The main reasons given by the trail court formaintaining the conviction against the appellant-accused are-

i. That the motive concerning the verbal spat between the accusedand the deceased Sakthivel is proved by PW-1, PW-6, PW-8and PW-7.

ii. That the delay was sufficiently explained, as the police werebusy in conducting investigation in other case.

iii. That the recovered objects from the scene of crime has beenproved before the court.

iv. That the injury on the accused has been attributed to a scufflebetween the deceased and the crowd, which standscorroborated by the witness, statement of PW-2, PW-3 andPW-5.

v. The trial recognizes that there were no step taken to identifythe 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 theprosecution case itself.

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Avii. That on the aspect of arrest, it is an acceptable inference, thatthe accused was forcefully discharged by the police personnelon 21.08.2009, and was confined by the police for one wholeday, and the arrest was only shown on 22.08.2009. Furtheras there was no confession obtained due to such action bythe police, the entire case cannot be vitiated.B

viii. That publication of the story in a newspaper cannot be reliedon, as the defense has not taken steps to mark the evidenceor examine the editor.

ix. That the case was proved by the prosecution beyond reasonableCdoubt.

5. Aggrieved, the accused-appellant approached the High Court.By the impugned order, the High Court dismissed the appeal of theaccused on the following grounds-

i. That the contention of the defense concerning the statementDof the PW-2 about recording by the police, just after theincident is a flimsy contradiction, which does not have theforce to dislodge the entire case.

ii. That PW-2’s cross examination after re-calling the witness,cannot be taken into consideration.E

iii. That failure to provide reasons for the injuries sustained bythe accused, would not be sufficient to dislodge theprosecution’s case.

iv. That the nature of weapon and the injury would not mandatereduction in the sentence from the charge of murder toFgrievous injury.

6. Aggrieved, by the concurrent finding of the fact, the accusedhas approached this court.

7. The main thrust of argument by the learned counsel for theGappellant is that the entire prosecution case is a fabricated in such a wayso as to implicate the appellant in the case as culprit. The realcircumstances of the case have been concealed by the prosecution inorder to help the complainant. Even the motive projected by theprosecution is false. There was no complaint lodged by the deceased or H

his wife against the accused, which itself proves that the motive ascribedto be the alleged verbal spat between the deceased and accused at thedrama in the village on the eve of Kaliammantemple festival. Secondly,there was huge delay in registering the FIR and the delay was causedonly to implicate the appellant. On the fateful day i.e. 20.8.2009 at about6:23 P.M. police got the information about the occurrence, but no FIRwas 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 theircustody. Even PW2 informed police that he received injuries due to theattack made by the deceased. The appellant has also injured in the fightat the hands of deceased. But, police did not register the complaint onthe basis of actual occurrence, and the courts below failed to appreciatethe true aspects of the case particularly non-explanation by the prosecutionas to the injuries sustained by the accused. Thereafter, the accused—appellant and deceased were sent to the hospital in same ambulanceand till the discharge of the appellant from hospital, police did not suspecthim as a culprit. It is only thereafter, police in connivance with complainantcooked up a case against the appellant, the complaint was suitablyprepared and FIR (Ext. P1) registered. Even at the time of framingcharges against the accused a charge under Section, 323, IPC was firstcharged but the trial Court convicted the appellant under Section 324,IPC. The trial Court as well as the High Court failed to notice thesuppression of facts by the prosecution and came to a wrong conclusionwithout appreciating the evidence in accordance with settled principlesof law, and thereby rendered a perverse judgment which is required tobe set aside by the interference of this Court.

8. On the other hand, learned counsel for the State supported theview taken by the Courts below and submitted that having regard to thefacts and circumstances, the trial Court assessed them in properperspective and delivered a reasoned judgment. The conviction andsentence passed against the accused has also been affirmed by the HighCourt by categorical findings which does not require interference of thisCourt.

9. Having heard learned counsels for both parties, we acknowledgethat this case is a direct evidence case and based on statement ofeyewitnesses which mandates us to observe statements of certain eyewitnesses for the disposal of this case at hand.

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A10. A bare perusal of the evidence deposed by the complainant—PW-1 (Rajendran) shows that while the complainant was in the companyof Arumugham (PW2) and Subramanian (PW-3)having idliis sold bySumathi (PW4), the accused appeared and picked up the assault onhim. In the process of interference to prevent the assault, PW2 also gotinjured. Soon thereafter, with the appearance of his brother-in-lawB(Sakthivel—deceased) at the spot, the accused pushed him into canaland assaulted with a wooden log on the forehead of Sakthivel. ThenRajinikanth (PW15) and Balasundaram (PW19)—another co-brotherof the complainant, called the ambulance and took the accused andSakthivel to the hospital while the complainant followed them on two-Cwheeler and at the hospital he came to know about the death of thedeceased, then he went to Udayalipatti police station and lodged complaint(Ext.P1).

11. The deposition of PW-2—Arumugham @ Iyyer, an eyewitnessto the incident, is to the effect that when he was preventing the accusedDwho was about to assault PW1, he sustained injuries. At that point oftime, the deceased came with a wooden log in his hand and fought withthe accused. He has also asserted that the ambulance came after policeexamined him and took his signature. He has further made it clear thatmany persons, including nearby shop owners, witnessed the incident,but it is a matter of record that except himself, two brothers-in-law ofEthe deceased and Rasu, no one else was made witness. He furtherdeposed that the deceased assaulted the accused with the wooden logon head due to which the accused got injury. When the deceased wastrying to hit the accused for a second time, he intervened due to whichhe got injury on his wrist. On suspicion, police took him along with PWs F1 and 3 to the Keeranur Police Station where they detained him for thenight and then sent to Government Hospital on the next day morning.Before his examination in chief, they warned him that if he does notdepose as instructed, they will foist a case against him.

12. In his cross-examination PW-2 reveals as under-GImmediately after the occurrence, Udayalipatti police came tothe place of occurrence and enquired about the incident and getmy signature after recording my statement. They recorded mystatement, before the arrival of 108 ambulance and before wetook Sakthivel and Kumar. At the time, rajendra was also presented H

and the police recorded his statement and obtained his signature.The police examined me only prior to the arrival of 108 ambulanceand never examined me after the arrival of 108 ambulance.

On recalling the PW-2, he states as under- The deceased Sakthivel assaulted the accused in his headwith the wooden log. I cam there and the accused sustainedinjuries in his head before I reached there. When Iintervene the second blow by the Sakthivel, I sustainedinjuries in my writ. The accused Kumar also sustainedinjuries on his head. The Sakthivel fell down in the channeldue to the forceful attack by him and the accused also felldown.

(emphasis supplied)

It may be noted that PW-2 is not declared as hostile by the prosecution.

13. In his cross-examination, PW3—Subramanian, anothereyewitness and close relative of the deceased, also admitted that theoccurrence took place at 6 p.m. and the scuffle between the accusedand deceased was for five minutes. By the time the occurrence wascompleted, there was darkness. He further admits that he was examinedby the Inspector of Police at the place of occurrence and PWs 1 & 2were also present at that time. He was later taken to the Keeranurpolice station along with PWs 1 and 2.

14. That PW-4 (Sumathi), who is alleged to be selling idliis, hasnot supported the case of the prosecution.

15. PW5—Rasu, corroborates the version of PW-2, wherein hestates that both the accused and the deceased had held sticks. Duringthe scuffle both of them fell into the channel and both were unconsciousby the time they were pulled up.

16. Rajinikanth—PW-15 deposed that at 7:15 P.M., he went toKurunthankudi bridge upon hearing about the occurrence and found theaccused and deceased lying there and took them to Government Hospitalin ambulance. Then he came back to the place of occurrence along withVillage Administrative Officer (PW-14) where police prepared a roughsketch and took his signature. However, in his cross-examination hedeposed that, by the time he reached the place of occurrence, police had A

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Aalready arrived there and thereafter ambulance came. He further statedthat PW-1—Rajendran narrated to the police everything about the incidentand police reduced it into writing and his signature was also obtained.

17. In his evidence, PW19—Balasundaramhas also statedcategorically that the ambulance came to the place of occurrence afterBthe arrival of police and they seized the wooden log. According to himdoctors declared the death of Sakthivel at about 8.45 p.m. andRajendran—complainant—PW1 was not present at that time, butInspector, Sub-Inspector and Head Constable were present who examinedhim and PW15, but did not obtain his signature.

C18. Head Constable Mohan—PW20, in his chief examinationadduced that at 6.23 p.m. on the day of incident, while he was goingtowards Ulaghanathapatti in connection with investigation in some othercase, he received a call on his mobile phone about the occurrence. Heimmediately passed on the message to his seniors and called anambulance. At 7:00P.M., when he reached the place of occurrence,Dthey found the deceased lying at Bridge Stone, Kurunkulam with injurieswhile the accused was lying at road side. He immediately sent them toGovernment Hospital at 7:05 P.M. However, in the cross examination,he stated that he had enquired PW-1—brother-in-law of the deceasedand did not see the wounded accused and deceased when he reachedEthe place of occurrence.

19. 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 nothingimportant seem to come out from their depositions.

20. Contrary to what Rajendran—Complainant (PW-1) deposed,Fa combined reading of the evidences adduced by PWs 2, 3, 5, 15, 19 and20 would make it abundantly clear that both the accused and the deceasedhave participated in the fight with wooden logs, accused has got headinjury at the hands of deceased, PW2 (Arumugham) himself also receivedinjury at the hands of accused while he was trying to protect PW1G(Rajendran) from the assault of the accused, police reached the place ofoccurrence within ten minutes of the occurrence, that is well before thearrival of ambulance and Rajendran—PW1 (complainant), Arumugham@ Ayyar (PW2), Subramanian (PW3) and other witnesses describedthe incident to the police who then examined the persons present there,rough sketch was prepared and their signatures were also obtained.H

21. Having observed the various depositions, we are of theconsidered opinion that there are four crucial aspects herein, which shouldbe discussed and elaborated upon. The above evidence if examined fromthe perspective of time, the overall impression that can be drawn fromthe foregoing discussion is that the occurrence took place at around 6.15p.m., and the Head Constable Mohan (PW-20) received information ofoccurrence at 6:23 P.M. and he passed on the message to Sub-Inspectorand Circle Inspector at 6:26 P.M., soon thereafter ambulance arrived atthe spot of occurrence at 6.30 p.m. At that point of time, Police haveenquired PW-1, PW2 and other witnesses, drawn report, sketch mapetc., and took their signatures and sent the injured persons to hospital.That sequence of incidents shows that already investigation was startedby police. That means the information provided by PWs 1, 2 and otherwitnesses at about 6:30 P.M. at the place of occurrence should haveideally been the basis of the F.I.R. Whereas the F.I.R. (Ext.P1) showsththat the information was received at police station at 9.30 p.m. on 20August, 2009.

22. We may note that this case involves a fight between twopersons-accused and the deceased.Majority of the eye witnessesincluding PW-1, PW-3, have categorically stated that accused-appellantwas the aggressor. Interestingly, the PW-2 states that, even the Sakthivelassaulted the accused by a wooden log on the head, his statement shouldbe given credence for eight major reasons-

i. That the Police has subdued the statement of PW-2 takenmoments 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 theprosecution witness, without specific statements as to thenature and all the prosecution witnesses state that the injuryon the accused were imputed by the by-standers without muchclarity.

v. That the mode of arrest by the police to have unauthorizedlydischarged the accused from the hospital and illegallyconfining him for a day in police custody.

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Avi. 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 theincident.

B23. From the account of eye witness, we may observe that thereare at least three different versions which substantially weakens theprosecution’s case.

24. On the point of suppression of genesis of the crime, PW-20(head constable) categorically states that he was present before theCAmbulance had reached the place. Even though he was extensivelycross-examined, he has not budged from his position that there was norecording of any statement before the Ambulance recorded. On thecontrary PW-2 categorically remarks that a statement was recorded byPW-20 before the ambulance arrived. Although the High Court hasdiscredited the evidence of PW-2 as the part which provides the aforesaidDdetails was on recalling after few days, therefore, in light of possibility ofbeing won over, the credibility of the statement made by PW-2 needs tobe viewed with this background fact. However, we fail to understandinternal logic of such assumption, when the prosecution has not declaredthe witness as hostile and more so, when his narrative is corroboratedEby other witnesses.Therefore, PW-2’s evidence needs to be taken intofold.

25. It is matter of record that the alleged accused-appellant, wasarrested 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 theappellant discharged from the hospital and kept him illegally confined forFa day. Moreover, PW-2 has categorically stated the following on theaction 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 takenmyself, PW-1 (Rajendran) and PW-3 (Subramanian) to KeeranurGPolice Station. I was detained in Keeranur police station duringthe night and on the next day morning, I was sent to KeeranurGovernment Hospital for treatment. Before I was examinedin chief, they warned me that if I have not deposed as H

instructed them, they will foist a case against me and onlyfor that reason, I have stated like that.

(emphasis supplied)

The action of investigating authority in pursuing the case in the mannerwhich they have done must be rebuked. The High Court on this aspect,correctly notices that the police authorities have botched up the arrestfor reasons best known to them. Although we are aware of the ratio laiddown in Parbhu v. Emperor, AIR 1944 PC 73, wherein the court hadruled that irregularity and illegality of arrest would not affect the culpabilityof the offence if the same is proved by cogent evidence, yet in this caseat hand, such irregularity should be shown deference as the investigatingauthorities are responsible for suppression of facts.

26. The criminal justice must be above reproach. It is irrelevantwhether the falsity lie in the statement of witnesses or the guilt of theaccused. The investigative authority has a responsibility to investigate ina fair manner and elicit truth. At the cost of repetition, I must remind theconcerned authorities to take up the investigation in a neutral manner,without having regards to the ultimate result. In this case at hand, wecannot close our eyes to what has happened; regardless of guilt or theasserted persuasiveness of the evidence, the aspect wherein the policehas actively connived to suppress the facts, cannot be ignored oroverlooked.

27. Another point put forth by the learned counsel on behalf of theaccused—appellant is that the prosecution has not explained the injuriessuffered by the accused and hence prosecution case should not bebelieved. At the outset, it would be relevant to note the settled principlesof law on this aspect. Generally failure of the prosecution to offer anyexplanation in that regard shows that evidence of the prosecutionwitnesses relating to the incident is not true or at any rate not wholly true[See :Mohar Rai and Bharath Rai v. The State of Bihar, 1968 CriLJ1479].

28. In Lakshmi Singh and Ors. v. State of Bihar, 1976 CriLJ1736 this Court observed:

“Where the prosecution fails to explain the injuries on the accused,two results follow :

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A(1) that the evidence of the prosecution witnesses is untrue;and

(2) that the injuries probabilise the plea taken by theappellants.

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In a murder case, the non-explanation of the injuries sustained bythe accused at about the time of the occurrence or in the courseof altercation is a very important circumstance from which theCourt can draw the following inferences :

C(1) that the prosecution has suppressed the genesis andthe origin of the occurrence and has thus not presentedthe true version;

(2) that the witnesses who have denied the presence of theinjuries on the person of the accused are lying on a mostmaterial point and, therefore, their evidence is unreliable; D

(3) that in case there is a defence version which explains theinjuries on the person of the accused assumes much greaterimportance where the evidence consists of interested or inimicalwitnesses or where the defence gives a version whichcompetes in probability with that of the prosecution one.”

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29. In the case on hand, admittedly, the accused—appellant wasalso injured in the same occurrence and he too was admitted in thehospital. But, prosecution did not produce his medical record, nor theDoctor was examined on the nature of injuries sustained by the accused.The trial Court, instead of seeking proper explanation from the prosecutionFfor the injuries sustained by the accused, appears to have simply believedwhat prosecution witnesses deposed in one sentence that the accusedhad sustained simple injuries only.

30. From the evidence of I.O.—PW24 it is apparent that in thescuffle PW2 (Arumugham) received “simple” injuries and he had takenGthe statement of Dr. Lavanya (PW17) who treated PW2. He had alsoexamined Dr. Illayaraj (PW18) who conducted postmortem on the bodyof the deceased. But, in the case of accused—appellant, PW24—I.O.admits that he was aware of the fact that the accused-appellant wasadmitted as in-patient and the accused-appellant had sustained injuries.He H

further states that neither did he arrest the accused nor he examined theDoctor in regard to the injuries of accused. In the circumstances inwhich the deceased, accused and also PW-2 (Arumugham) got injuries,it is obligatory on the part of I.O. to examine the Doctor and seekinformation about the injuries sustained by the accused and the sameshould have been made part of the record. A duty is cast on the prosecutionto furnish proper explanation to the Court how the person who has beenaccused of assaulting the deceased, received injuries on his person inthe same occurrence. We may note that the injuries alleged to havebeen caused are not properly explained. An alternative story is set upwherein the injuries are attributed to mob justice, such allegations withoutsubstantive evidence cannot be accepted.

31. Coming to the other aspect of the case, motive of the accusedto commit the crime is ascribed to the previous quarrel occasionedbetween the accused and the deceased during a drama at a village festival.Generally, in case prosecution desires to place motive of the accused asa circumstance, like any other incriminating circumstance, it should alsobe fully established. We are alive to the fact that if the genesis of themotive of the occurrence is not proved, the ocular testimony of thewitnesses as to the occurrence could not be discarded only on the groundof absence of motive, if otherwise the evidence is worthy of reliance.But in the case on hand, as we have already discussed in the aboveparagraphs, the evidence of direct witnesses is not satisfactory and onthe other hand, it is demonstrated that the deceased hit the accused onhis head with the wooden log besides the testimony from the eye witnessesthat there was scuffle. In such a factual situation, certainly motive mayact as a double-edged sword.

32. In the light of the settled law thus by this Court and also fromwhat is clear from the evidence, there is absence of extreme cruelty,even if it assumed that accused hit the deceased with the log. Had therebeen a strong motive to do away with the life of deceased, generallythere would have been more fatal injuries caused on the deceased notby a log but by utilizing more dangerous weapons. These circumstanceswould tell us that there is no reason to believe that motive was entertainedby the accused in the back drop of quarrel that took place during dramaat the village festival, prior to the date of occurrence. In as much as theprosecution laid the foundation for the commission of crime by the accusedin the said quarrel as an element of motive, in the absence of positive AB

C

D

E

F

G

H

Aproof of such motive, prosecution has to face the peril of failure inestablishing that foundation.

33. Now coming to other charge under Section 324 of IPC, forcausing injuries to Arumugham @ Ayyar [PW-2]. In light of thedeficiencies noted above, it can be easily said that even the charge underBSection 324 of IPC is not established. The aforesaid conclusion is clearlybuttressed by the fact that the injured witness himself has attributed theinjury on him to the deceased, instead of the accused. In such a situationconviction of the accused on the charge of Section 324 cannot besustained under law.

C34. Taking stock of the circumstances and depositions ofprosecution witnesses in this case, it would be difficult to hold thatprosecution has laid the case on real circumstances and proved its casebeyond reasonable doubt. We are surprised at the way in which Courtsbelow have perceived the facts and circumstances of this case. We arenot in agreement with the views drawn by the trial Court as well as theDHigh Court while dealing with the matter.

35. Normally this Court does not interfere with the concurrentfindings recorded by the Courts below, but in this case we find certainexceptional circumstances as narrated above, considering these aspectswe feel that this is a fit case for our interference. In our opinion, insteadEof dealing with the intrinsic merits of the evidence of witnesses, both theCourts below have acted perversely. Once we arrive at the conclusionthat we cannot lend credence to the genuineness of the F.I.R. and theprosecution case, there is no need of further enquiry as the assertionmade by the prosecution are notproved beyond reasonable doubt. In theFpeculiar facts and circumstances of the case, definitely the benefit ofdoubt goes to the accused—appellant. Viewed in that angle, the judgmentsof the Courts below awarding conviction and sentence to the accused—appellant requires to be set aside.

36. In the result, the appeal is allowed and the conviction andGsentence awarded by the Courts below is set aside. The accused—appellant stands acquitted from all the charges levelled against him. Theappellant is stated to be in jail. He may be set at liberty forthwith, if notrequired in any other case.

H

Devika Gujral Appeal allowed.