Case: KUMAR Vs. STATE REP. BY INSPECTOR OF POLICE

2. The prosecution story in a nut shell 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 thewas rebuked by the deceased for sitting next to ladies. In this context, on 20.08.2009, at about 6:00 PM the accused came to the spot where RajendranArumugham (PW2) and Subramaniwere savoring idliis from the stall of Sumathiant arrived with an intention to draw out Sakthivel (deceased), by picking up a quarrel with Rajendranwho was hisant arming himself with a wooden log lying nearby, assaulted Arumughamwho came to the rescue. At that moment the 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 the Government Hospital, Pudukottai in an ambulance. Ultimately the Sakthivel succumbed to the injuries before reaching the Hospital.3.3 registered an FIR (Ext. P1) against the accused for the offences punishable under Sections 302 and 324 of IPC in Crime No. 47 of 2009. Circle Inspectorundertook the investigation, visited the place of occurrence, prepared observation mahazar and drew the rough sketch (Ext. P7). The alleged weapon (wooden log—stick) (Ext. P8) used in the administration of crime was recovered from the spot. On the next day, he conducted inquest vide report (Ext.P9) and dead body of the deceased Sakthivel was sent for postmortem. Subsequently, the accused—appellant was reported to be arrested on 22 nd August, 2009. The I.O. recorded the statements of Dr. Lavanya, the Doctor, who treated(Arumugham), and Dr. Illayaraja, who conducted postmortem of the deceased. Thereafter the authorities seized the clothes of the deceased reported in the seizure report being M.O.4 to M.O.6. After completing the investigation, the I.O. submitted his report to the learned DistrictMagistrate levelling charges against the accused for the offences punishable under Sections 324 and 302 of 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 07.10.2013, awarded conviction to the accused and directed him to suffer rigorous imprisonment for life for the offence under Section 302 of IPC and to pay a fine of Rs.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 of IPC. Both the sentences were however directed to run concurrently. The main reasons given by the trail court for maintaining the conviction against thei. That the motive concerning the verbal spat between the accused and the deceased Sakthivel is proved by. 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, statement ofv. The trial recognizes that there were no step 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.Further as there was no confession obtained due to such action by the police, the entirecase cannot be vitiated.viii. That publication of the story in a newspaper cannot be relied on, as the defense has not taken steps to mark the evidence or examine the editor.ix. That the case was proved by the prosecution beyond reasonable doubt.ant approached the High Court. By the impugned order, the High Court dismissed the appeal of the accused on the following groundsi. That the contention of the defense concerning the statement of theabout recording by the police, just after the incident is a flimsy contradiction, which does not have the force to dislodge the entire case.cross examination afterthe 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 thev. That the nature of weapon and the injury would not mandate reduction in the sentence from the charge of murder to grievous injury.Aggrieved, by the concurrent finding of the fact, the accused has approached this court.The prosecution story in a nut shell 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 thes rebuked by the deceased for sitting next to ladies. In this context, on 20.08.2009, at about 6:00 PM the accused came to the spot where Rajendranm (PW2) and Subramanie savoring idliis from the stall of Sumathiant arrived with an intention to draw out Sakthivel (deceased), by picking up a quarrel with Rajendranwho was hisant arming himself with a wooden log lying nearby, assaulted Arumughamo came to the rescue. At that moment the 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 the Government Hospital, Pudukottai in an ambulance. Ultimately the Sakthivel succumbed to the injuries before reaching the Hospital.3.3 registered an FIR (Ext. P1) against the accused for the offences punishable under Sections 302 and 324 of IPC in Crime No. 47 of 2009. Circle Inspectork the investigation, visited the place of occurrence, prepared observation mahazar and drew the rough sketch (Ext. P7). The alleged weapon (wooden log—stick) (Ext. P8) used in the administration of crime was recovered from the spot. On the next day, he conducted inquest vide report (Ext.P9) and dead body of the deceased Sakthivel was sent for postmortem. Subsequently, the accused—appellant was reported to be arrested on 22 nd August, 2009. The I.O. recorded the statements of Dr. Lavanya, the Doctor, who treated, and Dr. Illayaraja, who conducted postmortem of the deceased. Thereafter the authorities seized the clothes of the deceased reported in the seizure report being M.O.4 to M.O.6. After completing the investigation, the I.O. submitted his report to the learned Districte levelling charges against the accused for the offences punishable under Sections 324 and 302 of 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 07.10.2013, awarded conviction to the accused and directed him to suffer rigorous imprisonment for life for the offence under Section 302 of IPC and to pay a fine of Rs.n 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 of IPC. Both the sentences were however directed to run concurrently. The main reasons given by the trail court for maintaining the conviction against the. That the motive concerning the verbal spat between the accused and the deceased Sakthivel is proved byi. That thedelay was sufficiently explained, as the police were busy in conducting investigation in other case.red objects from the scene of crime has been proved before the court.That the injury on the accused has been attributed to a scuffle between the deceased and the crowd, which stands corroborated by the witness, statement ofv. The trial recognizes that there were no step taken to identify the injury on the accused.ere wrong entry of timing in the inquest report, would not vitiate the post mortem report much less the prosecution caseon the aspect of arrest, it is an acceptable inference, that the accused was forcefully discharged by the police personnel on 21.08.2009, and was confined by the police for one whole day, and the arrest was only shown on 22.08.2009.Further as there was no confession obtained due to such action by the police, the entirecase cannot be vitiated.That publication of the story in a newspaper cannot be relied on, as the defense has not taken steps to mark the evidence or examine the editor.That the case was proved by the prosecution beyond reasonable doubt.ant approached the High Court. By the impugned order, the High Court dismissed the appeal of the accused on the following groundsi. That thecontention of the defense concerning the statement of thet recording by the police, just after the incident is a flimsy contradiction, which does not have the force to dislodge the entire case.cross examination afterthe witness, cannot be taken into consideration.That failure to provide reasons for the injuries sustained by the accused, would not be sufficient to dislodge the. That the nature of weapon and the injury would not mandate reduction in the sentence from the charge of murder to grievous injury., by the concurrent finding of the fact, the accused has approached this court.

Reasoning:
20. Contrary to what Rajendran—Complainantdeposed, a combined reading of the evidences 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, PW2 (Arumugham) himself also received injury at the hands of accused while he was trying to protect PW1 (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—PW1 (complainant), Arumugham @ Ayyar (PW2), Subramanian (PW3) 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.From the account of eye witness, we may observe that there are at least three different versions which substantially weakens thecase.24. On the point of suppression of genesis of the crime,(head constable) categorically states that he was present before the Ambulance had reached the place. Even though he was extensivelyhe has not budged from his position that there was no recording of any statement before the Ambulance recorded. On the contrarycategorically remarks that a statement was recorded bybefore the ambulance arrived. Although the High Court has discredited the evidence ofas 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 byneeds 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,evidence needs to be taken into fold.25. It is matter of record that the allegedwas 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,has categorically stated the following on the action of the policeThe police enquired me about the incident and I narrated the same. The police and theof Police on suspicion taken myself,(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 them, they will foist a case against me and only for that reason, I have stated like that. (emphasis supplied)The action of investigating authority in pursuing the case in the manner 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. Emperor, 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.26. 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 concerned authorities to take up the investigation in a neutral manner, without having regards 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.27.Another point put forth by the learned counsel on behalf of the accused—appellant is that the prosecution has not explained the injuries suffered by the accused and hence 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 and Bharath Rai v. The State of Bihar, 1968 CriLJ 1479 ].In the case on hand, admittedly, the accused—appellant was also injured in the same occurrence and he too was admitted in the hospital. But, 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.30. From the evidence of I.O.—PW24 it is apparent that in the scuffle PW2 (Arumugham) receivedinjuries and he had taken the statement of Dr. Lavanya (PW17) who treated PW2. He had also examined Dr. Illayaraj (PW18) who conducted postmortem on the body of the deceased. But, in the case of accused—appellant, PW24—I.O. admits that he was aware of the fact that thewas admitted asant had sustained injuries. He further states that neither did he arrest the accused nor he examined the Doctor in regard to the injuries of accused. In the circumstances in which the deceased, accused and also(Arumugham) got injuries, it is obligatory on the part of I.O. 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.31. 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 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 eye witnesses that there was scuffle. In such a factual situation, certainly motive may act as asword.32. 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 assumed that accused hit the deceased with the log. Had there been a strong motive to do away with the life of deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilizing more dangerous weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the back drop of quarrel that took place during drama at the village festival, prior to the date of occurrence. In as much 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, prosecution has to face the peril of failure in establishing that foundation.33. Now coming to other charge under Section 324 of IPC, for causing injuries to Arumugham @ AyyarIn light of the deficiencies noted above, it can be easily said that even the charge under Section 324 of 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.34. Taking stock of the circumstances and depositions of prosecution witnesses in this case, it would be difficult to hold that 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.35. 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 F.I.R. and the prosecution case, there is no need of further enquiry as the assertion made by the prosecution are not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the accused—appellant. Viewed in that angle, the judgments of the Courts below awarding conviction and sentence to the accused—appellant requires to be set aside.