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India Law Library Web Version

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Docid # IndLawLib/1028131
(2017) AllSCR(Crl) 498 : (2017) CriLJ 739 : (2016) 4 Crimes 340 : (2017) 2
RCR(Criminal) 455 : (2017) 2 RecentApexJudgments(RAJ) 612 : (2016) 7 Scale 122
SUPREME COURT OF INDIA
DIVISION BENCH

SURESH — Appellant

Vs.

STATE REPRESENTED BY INSPECTOR OF POLICE — Respondent

( Before : A.K. Sikri and N.V. Ramana, JJ. )
Criminal Appeal No. 2332 of 2009
Decided on : 14-07-2016

Criminal Procedure Code, 1973 (CrPC) - Section 313

Penal Code, 1860 (IPC) - Section 406, Section 420

Murder — The deceased had lodged a complaint against A-1 in the

Usilampatti Police Station and a case was registered as Crime under Sections
406 and 420 of the Indian Penal Code — There were number of material
contradictions in the testimonies of PW-1 on the one hand and PW-22/23 on
the other hand and the Courts below could not have believed the version of
these witnesses insofar as A-4 and A-5 are concerned. An attempt was made to
submit that the introduction of PW-3 as eye-witness does not inspire any
confidence as there are many circumstances which clearly and rightly depict
that he is introduced at the behest of PW-1/PW-2 or by the Investigating
Officer themselves, at a later stage, just to rope in A-4 and A-5 — All the
circumstances create a reasonable doubt insofar as the presence and
participation of A-4 and A-5 is concerned — Appeal stands allowed
Counsel for Appearing Parties
V. Kanagaraj, Sr. Adv., Ms. Malini Poduval, B. Karunakaran, A. Radhakrishnan, Advocates,
for the Appellant; M. Yogesh Kanna, P.R. Kovilan, R.V. Kameshwaran, Advocates, for the
Respondent
Cases Referred

Alamelu Vs. State, represented by Inspector of Police, (2011) 2 SCC 385

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Arunachalam Vs. P.S.R. Sadhanatha, (1979) 2 SCC 297

Ganga Kumar Srivastava Vs. State of Bihar, (2005) 6 SCC 211
Mohd. Ali Vs. State of Uttar Pradesh, (2015) 7 SCC 272
State of U.P. Vs. Babul Nath, (1994) 6 SCC 29

ORDER

1. On 23rd September, 2005, at about 6 p.m., one person known as Kumaraguru, who was
a practicing lawyer, was murdered. According to the prosecution, this occurrence was
witnessed by PW-1(Ganesan), who is the brother of the deceased. He immediately went to
the police station narrating the details of the incident and on the basis of the statement,
First Information Report (FIR) was recorded by the Investigating Officer (IO) viz., M.
Kalifulla (PW-22). It was stated by him that his deceased brother was practicing as an
Advocate at Usilampatti Bar. He was a subscriber in a private chit run by Pon Pandian
alias Treasury Pandy, Accused No. 1 (A-1). As per the chit transaction, A-1 was liable to
pay a sum of Rs. 5,15,000/- to the deceased. Out of this, only a part sum of Rs. 1,40,000/-
was paid. Because of the non-payment of remaining amount, the deceased had lodged a
complaint against A-1 in the Usilampatti Police Station and a case was also registered as
Crime No. 1309 of 2003 under Sections 406 and 420 of the Indian Penal Code (IPC). It
was further stated that pursuant to the said registration of crime at the instance of the
deceased, the Inspector of Police had inquired into the matter and questioned A-1 in the
presence of his son Uma Sankar, Accused No. 2 (A-2) and his son-in-law S.Tamilraj,
Accused No. 6 (A-6). At that time, A-6 issued a cheque for part of the amount that was
due to the deceased and had also given in writing that he would make the balance payment
and settle the dispute amicably. On this basis, the said case was closed by the Police and
final report submitted in this behalf on the aforesaid settlement. However, what happened
in the Police Station was taken by A-1 as his insult and, therefore, A-1 as well as his son
A-2 kept on threatening the deceased and his wife (PW-12), who was a practicing Doctor
with, dire consequences. It is with this motive that on the fateful date, i.e., on 23rd
September, 2005 at 6 p.m., A-1 along with A-2 and A-6 and three more unknown persons
came to the place of occurrence. They saw the deceased coming in his Hero Honda Motor
Cycle bearing registration No. TN 58 H 5567 along with his son who was a school going
boy. On seeing the deceased, the Maruti Van in which the accused persons were sitting,
came and dashed in front of the motor cycle. As a result, the deceased fell down along
with his son. At that stage, A-1 instigated the other accused persons to attack the deceased
and kill him. A-6 also came there from a car and he also instigated others. On this, A-2
attacked the deceased with a patta knife and struck him on the right side of the jaw and the
neck and also instigated other accused persons to attack the deceased. Accused No. 3 (A-3)
also gave a blow on his right forehead and below right ear with patta knife which A-3 was
carrying. Likewise, Accused No. 4 (A-4) stabbed the deceased on his right chest and also
gave knife blow on the left side of the chest. At that time, PW-1, brother of the deceased,
was present there so was Ravi (PW-2), friend of PW-1. They tried to go nearby to
intervene and rescue the deceased but, at that stage, Accused No. 5 (A-5) who was armed
with a sickle threatened PW-1 and PW-2 not to intervene failing which they would also
suffer dire consequences. After inflicting the wounds on the person of the deceased in the
aforesaid manner, all the accused persons fled from the scene of occurrence. A-1 left in his

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Ambassador Car, A-2, A-3 and A-5 in a Maruti Omni Van which was driven by A-4 while
A-6 left in his red colour Maruti Car.
2. All the six persons were tried for the offences under Sections 147, 148, 114, 506 (ii) and
120B of the IPC read with Section 149 of the IPC. The prosecution examined as many as
23 witnesses including PW-1 and PW-2. Another purported witness PW-3, an auto-driver,
was also examined who had also, allegedly, seen the occurrence. Thereafter, submissions
of the accused persons under Section 313 of the Code of Criminal Procedure (Cr.P.C.)
were recorded and arguments were heard by the Trial Court. The Trial Court returned the
findings to the effect that A-2, A-3, A-4 and A-5 were persons who had committed the
murder of the deceased. He, thus, convicted them under the aforesaid provisions and gave
life sentence. Insofar as A-1 and A-6 were concerned, they were acquitted by the Trial
Court. All four convicted accused persons, i.e., A-2 to A-5 filed appeals against their
conviction. On the other hand, State also preferred appeals challenging the acquittal of A-
1. The complainant, i.e., PW-1 also challenged the acquittal of A-1 and A-6 by filing two
separate review petitions. All the aforesaid appeals as well as review petitions were
consolidated and taken up together by the High Court for hearing which have culminated
in the impugned judgment dated 28.02.2008. By this judgment, appeals preferred by A-2
to A-5 have been dismissed and the conviction and sentence recorded by the Trial Court is
affirmed. During the pendency of the appeal before the High Court, A-1 died. While
examining the prosecution case qua the other accused persons and analysing the evidence,
the High Court found that A-1 was also guilty of murder along with A-2 to A-5. Thus,
even while recording his guilt, the appeal of the State and Revision Petition of PW-1
against him were treated as abated. Insofar as A-6 is concerned, his acquittal is maintained
by the High Court.
3. As far as A-2 and A-3 are concerned, it appears that they have accepted the verdict of
the High Court as there is no challenge to their conviction by them. However, A-4 and A-5
have challenged their conviction recorded by the Trial Court and upheld by the High
Court. Insofar as acquittal of A-6 is concerned, there is no further challenge either by the
State or PW-1 and, therefore, this attained finality.
4. From the aforesaid background, we are now concerned only with the conviction of A-4
and A-5 in the instant appeals. Therefore, we make it clear at the outset that the entire
matter is examined from the aforesaid perspective and any discussion which would ensue
hereinafter and the observations which would be made by us are confined to A-4 and A-5
and would have no concern with other accused persons, particularly A-2 and A-3, who
stand convicted and in whose case the conviction order has become final.
5. Coming to the role of A-4 and A-5 (appellants herein), we may mention at the outset
that they are stated to be the friends of A-2.
6. From the facts noted above, it becomes clear that the motive that is attributed is the
money which was to be recovered by the deceased from A-1 and for which the deceased
had filed complaint against A-1 in which he was summoned in the Police Station, where
along with him A-2, son of A-1, and A-6, son-in-law of A-1, had also gone accompanying
A-1. What happened was not liked by these accused persons and they treated this as an
insult of A-1 because of which A-1, A-2 and A-6 wanted to take revenge and as per the
prosecution, it is for this reason that they ultimately eliminated the deceased.
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7. Further, it also becomes clear from the aforesaid narration of events that A-3, A-4 and
A-5, been friends of A-2 had participated in the crime along with A-1, A-2 and A-6. It is
significant to mention at this stage that in his first submission that was given by PW-1 to
the Police, he did not name A-4 or A-5. Instead, he had stated that there was a driver who
was driving the Maruti Van and the other person who had threatened PW-1 and PW-2 not
to intervene when other accused persons were attacking the deceased was a person who
was 30 years of age. The description of the two persons given was that of a driver and of
the other as that of a person of 30 years of age.
8. In the statement given by PW-1 in the Court, he mentioned that after his complaint was
recorded and the IO (PW-22) came to spot for inquest, even before the inquest proceedings
started, he came to know the names of A-4 and A-5 who were stated to be a driver and
another as a 30 years old person and told PW-22 those names, viz., Pandiyarajan and
Suresh.
9. However, even in the inquest report which was prepared by the IO, these names are not
mentioned. The IO, as would be stated at a later point of time, did not touch and/or
suspected A-4 and A-5 and in his statement in the Court he had mentioned that PW-1
never disclosed these names at the time of inquest or even till the date he carried out the
investigation. After 6-7 days, another IO took over the investigation viz, A. Suruliyandi
(PW-23). At that stage, he arrested A-4 on 07.10.2005. A-5 surrendered on 13.10.2005. He
recorded the statement of PW-3 who was stated to be another eye witness and who had
also named these two persons. It is on this basis that A-4 and A-5 were roped in and put to
crime. Needless to mention, since they are convicted by the Trial Court which conviction
is upheld by the High Court, testimonies of PW-1, 2 and 3 regarding the presence and the
role attributed to A-4 and A-5 have been believed by both the Courts below.
10. It was argued by learned senior counsel appearing for A-5 that there were number of
material contradictions in the testimonies of PW-1 on the one hand and PW-22/23 on the
other hand and, therefore, the Courts below could not have believed the version of these
witnesses insofar as A-4 and A-5 are concerned. An attempt was also made to submit that
the introduction of PW-3 as eye-witness does not inspire any confidence as there are many
circumstances which clearly and rightly depict that he is introduced at the behest of PW-
1/PW-2 or by the Investigating Officer themselves, at a later stage, just to rope in A-4 and
A-5. It was also argued that the main reason for believing the testimonies of PW-1 and
PW-3 was that A-4 and A-5 were identified by these witnesses in the Court. It was the
submission of the learned counsel that while doing so, the Courts did not take into
consideration a major flaw that had occurred in the Test Identification Parade (TIP) which
was conducted inasmuch as though A-4 was arrested on 07.10.2005 and A-5 surrendered
on 13.10.2005, their TIP was conducted 1 months thereafter, i.e., on 28.11.2005 and, in the
meantime, photographs of these two persons, i.e. A-4 and A-5, were not only published in
the newspapers but even flashed on television media. Therefore, their identity was
revealed to the world at large and the very purpose of conducting the TIP had been
frustrated.
11. On the aforesaid arguments which are advanced by the learned senior counsel
appearing for A-5 and supported by the learned counsel appearing for A-4, we have
minutely gone through the depositions of PW-1, PW-2, PW-3, PW-22, PW-23 and other
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witnesses. We have also heard learned counsel for the complainant as well as learned
counsel for the State who argued that the alleged contradictions pointed out by the defence
were of no consequence and there was plethora of evidence to nail both A-4 and A-5 as
well, as rightly done by the Courts below. For this purpose, both the counsel had taken us
through the relevant portion of the judgments of the Trial Court as well as that of the High
Court and the reasons which were given by the Courts below in accepting the
creditworthiness of these witnesses in coming to the conclusion that the guilt against A4
and A5 had been proved beyond reasonable doubt.
12. Before we proceed to discuss the arguments advanced before us, we would like to put
it on record that we are conscious of the scope of jurisdiction of this Court under Article
136 of the Constitution.
13. Two courts below have recorded findings of facts holding that culpability of A-4 and
A-5 stands established. Normally, when on appreciation of evidence which is surfaced on
record finding of facts are recorded, this Court is not to interfere with the same unless it is
found to be perverse or where it is palpably wrong and the evidence on record did not
warrant such a conclusion. This position in law has been recapitulated in a recent judgment
of this Court in Mohd. Ali v. State of Uttar Pradesh, (2015) 7 SCC 272, wherein note of
few earlier judgments were taken and the principle curled out in the following manner:
"12.In Arunachalam v. P.S.R. Sadhanatha and Anr., (1979) 2 SCC 297, it has been
expressed thus:
"The power is plenary in the sense that there are no words in Article 136 itself qualifying
that power. But, the very nature of the power has led the court to set limits to itself within
which to exercise such power. It is now the well-established practice of this Court to
permit the invocation of the power under Article 136 only in very exceptional
circumstances, as when a question of law of general public importance arises or a decision
shocks the conscience of the court. But, within the restrictions imposed by itself, this Court
has the undoubted power to interfere even with findings of fact, making no distinction
between judgments of acquittal and conviction, if the High Court, in arriving at those
findings, has acted `perversely or otherwise improperly'.
[emphasis supplied]"

13. In State of U.P. v. Babul Nath, (1994) 6 SCC 29, a two Judge Bench has laid down
thus:
"At the very outset we may mention that in an appeal under Article 136 of the Constitution
this Court does not normally reappraise the evidence by itself and go into the question of
credibility of the witnesses and the assessment of the evidence by the High Court is
accepted by the Supreme Court as final unless, of course, the appreciation of evidence and
finding is vitiated by any error of law of procedure or found contrary to the principles of
natural justice, errors of record and misreading of the evidence, or where the conclusions
of the High Court are manifestly perverse and unsupportable from the evidence on record."
14. In Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211, the Court after
referring to series of decisions on exercise of the power of this Court under Article 136 of
the Constitution culled out following principles:
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"(i) The powers of this Court under Article 136 of the Constitution are very wide but in
criminal appeals this Court does not interfere with the concurrent findings of fact save in
exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact given by the High Court, if
the High Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional
circumstances as and when a question of law of general public importance arises or a
decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution fell short of the test of reliability and
acceptability and as such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of the High Court are manifestly
perverse and unsupportable from the evidence on record."
15. In Alamelu and Another v. State, represented by Inspector of Police, (2011) 2 SCC
385, it has been stated that even though the powers of this Court under Article 136 of the
Constitution are very wide, but in criminal appeals, this Court would not interfere with the
concurrent findings of fact save in very exceptional cases. In an appeal under Article 136
of the Constitution, this Court does not normally appreciate the evidence by itself and go
into the question of credibility of witness. Elaborating further, the Court has opined that
the assessment of the evidence by the High Court is accepted as final except where the
conclusions recorded by the High Court are manifestly perverse and unsupportable by the
evidence on record."
Fully conscious of the aforesaid parameters, we have examined the arguments raised in
these appeals.
14. Coming to the first submission that was made by the learned counsel for the appellants,
we may point out that though PW-1 has stated to the effect that he came to know about the
names of the accused persons A-4 and A-5 around 10.45 a.m. and he had informed the IO
about the same at the time of inquest, the IO (PW-22) has stated to the contrary. In his
deposition, the IO has mentioned that these names were never given to him by PW-1 or
even PW-2. We find that this plea was specifically raised by the appellants before the High
Court and the High Court has even recorded the same while taking note of the submissions
of the appellants. However, nowhere this argument is discussed or dealt with.
15. Therefore, in these circumstances, it would always be open for this Court to consider
the weight of the aforesaid submission.
16. It cannot be disputed and not even disputed by the learned counsel for the respondents,
that the testimonies of PW-1 and PW-2 on the one hand and that of PW-22 on the other
hand contradicted each other on this aspect. The question is as to whether this
contradiction is explained or taken care of by the prosecution? We do not find it to be so. If
PW-1 is correct in his deposition and the names of A-4 and A-5 were told to the IO (PW-
22) at the time of inquest, we fail to understand why these names were not mentioned in
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the inquest report. Further, if such names were disclosed, the IO would have immediately
carried further investigation and taken action on the basis of the aforesaid information
provided to him by PW-1. But, it did not happen. Admittedly for next 6-7 days when PW-
22 was in-charge of the investigation, he neither questioned A-4 and A-5 nor arrested
them. In fact, for this period they were not in picture at all. Therefore, one may intend to
believe the testimony of PW-22, viz., the names were not disclosed to him by PW-1 or
PW-2 and to this extent, these two witnesses have not told the truth.
17. Proceeding on this basis and that too, relying upon the deposition of PW-22 in this
behalf, the next question that arises is as to at what point of time or at what stage, the
accusing finger was raised at A-4 and A-5 and how it was revealed that the driver and the
person who was 30 years old as stated by PW-1 in his complaint were none else than A-4
and A-5. No explanation worth the name is coming forward. An attempt was made on
behalf of the learned counsel for the respondents to argue that PW-3 who is also an eye
witness had named A-4 and A-5 and thereupon, A-4 was arrested and A-5 surrendered.
18. However, on this aspect, we find that the testimony of PW-3 is also shrouded by
suspicion. He is stated to be an auto-driver who, according to him, when was crossing the
road, saw the occurrence. At the same time, he stated that he left the place and went to
Theni. It could not be pointed out as to at whose instance it became known that PW-3 was
also an eye-witness. Admittedly, PW-1 and PW-2 did not name him as an eye-witness, at
least in their initial statements. His statement is recorded by the second IO (PW-23) after
seven days of occurrence. For this purpose, we had minutely gone through the statement of
PW-3 and arrived at an irresistible conclusion that this witness was introduced at a later
stage for the purpose of roping in A-4 and A-5.
19. At some place, PW-3 has stated that at the time of occurrence, he was driving the auto
and at other place, it is stated that he was standing at a corner when he saw the incidence.
It has also come on record that he was known to the family of the victim. In fact, for the
last number of years he had been taking PW-12 (widow of the deceased) to the hospital.
Therefore, this possibility cannot be ruled out that at the instance of the family members of
the deceased, he agreed to give the statement. Otherwise, his conduct, if he had, in fact,
seen the occurrence, appears to be little abnormal which shakes the very credibility of his
statement. He was known to the family of the victim and if he had seen the occurrence, he
would not have gone away but would have stood by their side along with PW-1 and PW-2.
However, he has stated that as he was afraid after the threats were given by the culprits to
PW-1 and PW-2 and on seeing the blood at the place of occurrence, he had gone away
from that place. If this reason is to be believed, he has not explained thereafter as to how
he could muster the courage and give his statement to the police.
20. All these circumstances create a reasonable doubt insofar as the presence and
participation of A-4 and A-5 is concerned. We, thus, are inclined to allow these appeals
giving benefit of doubt to A-4 and A-5.
21. Accordingly, the appeals are allowed and the conviction recorded in respect of A-4 and
A-5 (appellants herein) is, thus, set aside.
22. These two appellants shall, thus, be released forthwith unless they are required in any
other case.
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