* Author
[2024] 3 S.C.R. 747 : 2024 INSC 212
Periyasamy
v.
The State Represented
by the Inspector of Police
(Criminal Appeal No. 270 of 2019)
18 March 2024
[Hrishikesh Roy and Sanjay Karol,* JJ.]
Issue for Consideration
Whether the High Court justified in affirming the judgment of trial
court convicting and sentencing the accused appellant, (A-1), for
the offence punishable under sections 302 & 307 of Penal Code,
1860 and accused appellant (A-2) for the offence punishable under
sections 302/109 & 307/109 of Penal Code, 1860.
Headnotes
Penal Code, 1860 – s. 302 and s.307 – Trial Court convicted
and sentenced appellants – Relying on ocular and medical
evidence – High Court confirmed the sentence and conviction
– Whether the sentence and conviction falls short of standard
of beyond reasonable doubt:
Held: Trial court primarily relied on testimonies of PW-1 to PW-3 –
PW-1 is an injured witness and a relative of D1 – PW-2 is also an
injured witness and a neighbor of D1 – The evidence of an injured
witness is considered to be on a higher pedestal than that of a
witness simpliciter – PW-2 deposed that were about 50 persons
at the scene of the crime – Then, how has the non-examination
of independent witness been countenanced by the prosecution
is something that escapes, or rather confounds this Court – The
evidence of PW-3 appears to be fraught with contradictions – His
actions not to be akin to that of a prudent man – When A-1 had
allegedly broken a bottle on the head of D1, PW-3 took the injured
D1 not to the hospital but to an STD booth located nearby – Why
a person would “hold” a person with a grievous head injury near
an STD booth and not take him to the hospital – Significant delay
in recording statements of PW-1 and PW-2 – Various lapses such
as these cumulatively affect the overall sanctity of the prosecution
748 [2024] 3 S.C.R.
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case, making it fall short of the threshold of beyond reasonable
doubt – Challenge on the grounds sustained, among others that,
(a) examined private persons were interested witnesses, with
inconsistencies amongst them; (b) no independent witnesses were
examined; (c) there was a delay in filing the FIR; (d) there were
interpolations on record; (e) there were numerous lapses in the
investigation; and (f) the medical and scientific evidence on record
does not support the prosecution’s version of events. [Paras 31,
33, 36, 39, 41, 47,48]
Penal Code, 1860 – s. 302 and s. 307– Role of an investigating
officer is that of the backbone of the entire criminal proceeding
in respect of the particular offence(s) he is charged with
investigating – Faulty Investigation - Examined.
Held: The investigation officer of a case is the charioteer tasked
with using the resources and personnel at his disposal to ensure
law and order as also that a person who has committed a crime
is brought to the book – Nowhere has it come on record as to
how the investigating officer (PW-22) reached the bus stand
from where A-2 was arrested – who informed the authorities
about A-2’s movement by bus – PW-22 made two visits to the
scene of the crime and that he also examined several witnesses
- how is there a striking lack of independent witnesses to lend
credence to the prosecution’s version of events – He also did
not conduct any scientific investigation at the spot of crime – The
wound certificate for PW-1 and PW-2 was issued by Doctor, who
had not been examined in the instant proceedings – Was it that
the initial investigation was being managed so as to shield the
real assailants, which could have been the complainant party
themselves? – Particularly when, as the record reveals, as is
so admitted by PW-22 of A-2 being a practicing advocate who
has been, (i) pursuing the matters against the officials of the
police station (ii) has been lodging complaints against the police
officials for inaction; and (iii) had nothing to do with the ownership,
management or control of the wine shop – The injured witnesses
and the Investigation Officer in their testimony together are not
inspiring confidence – The prosecution case stands shaken beyond
a point to which no conviction resting thereupon can be said to be
just in the eyes of law – appeals are allowed and the convictions
accordingly set aside. [Paras 43, 44, 46, 47]
[2024] 3 S.C.R. 749
Periyasamy v. The State Represented by the Inspector of Police
Case Law Cited
Raghbir Singh & Ors. v. State of Haryana [2008] 15
SCR 1108 : (2008) 16 SCC 33; James Martin v. State
of Kerala [2003] Suppl. 6 SCR 910 : (2004) 2 SCC
203; Vidhya Singh v. State of M.P. (1971) 3 SCC 244;
Darshan Singh v. State of Punjab & Anr. [2010] 1 SCR
642 : (2010) 2 SCC 333; State of Rajasthan v. Kalki
[1981] 3 SCR 504 : (1981) 2 SCC 752; Sarwan Singh
v. State of Punjab (1976) 4 SCC 369 (3J); Rajesh and
Anr. v. State of Madhya Pradesh [2023] 15 SCR 1 :
2023 SCC OnLine SC 1202 – referred to.
Books and Periodicals Cited
Russel on Crime, 11th Edition Volume I.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.
List of Keywords
Standard of beyond reasonable doubt; Interested witness; Right
of private defence; Independent Witness; Related Witness; Police
Investigation; Star prosecution witness; Faulty Investigation; Delay
in filing FIR; Delay in Examination of Witness.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.270
of 2019
From the Judgment and Order dated 26.11.2014 of the High Court of
Madras at Madurai in CRLA No.240 of 2014
With
Criminal Appeal No.271 of 2019
Appearances for Parties
S. Arun Prakash, B. Balaji, Vipin Kumar Jai, Mrs. Gurinder Jai, Vipul
Jai, Ms. Sanjna Dua, Advs. for the Appellant.
Dr. Joseph Aristotle S., Ms. Shubhi Bhardwaj, Advs. for the
Respondent.
750 [2024] 3 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Sanjay Karol J.
1. The present appeals arise from the final judgment and order dated
26th November 2014 passed by the Madurai Bench of Madras High
Court, in Crl. A. (MD) No. 238 and 240 of 2014, which confirmed the
judgment and order dated 31st July 2014 in Sessions Case No. 109
of 2005 passed by the Sessions Court, Tiruchirapalli, vide which the
present appellants, Periyasamy1
and R. Manoharan2
were convicted
in the following terms under the Indian Penal Code3
:
S. No Name Crime Punishment Awarded
1. A1 –
Periyasamy
IPC – S.302
(2 counts)
Imprisonment for life and Rs.
1,000 fine
IPC – S.307
(2 counts)
Rigorous Imprisonment for
seven years and Rs. 1,000
fine
2. A2 - R.
Manoharan
IPC – S.302
r/w S.109
(1 count)
Imprisonment for life and Rs.
1,000 fine
IPC – S.307
r/w S.109
(2 counts)
Rigorous Imprisonment for
seven years and Rs. 1,000
fine
2. The incident in question relates to the death of two persons after being
stabbed, allegedly by A-1 at the instigation of A-2. The prosecution
case emerging from the record, as also set out by the Courts below,
is as follows:-
2.1 On 3rd March 2002, Dharmalingam4
had after already having
procured liquor in an earlier completed transaction, half an hour
later demanded more brandy on credit from the owners and
1 Hereinafter ‘A-1’
2 Hereinafter ‘A-2’
3 Hereinafter ‘IPC’
4 Hereinafter ‘D1’
[2024] 3 S.C.R. 751
Periyasamy v. The State Represented by the Inspector of Police
workers of Saravana Wine Shop located in Neithalur Colony.
A quarrel arose, and a showcase of the shop was smashed,
and the bottles stored therein were damaged. In this course
of events, it is alleged that D-1 retrieved a knife and stabbed
one Thangavel5
(one of the owners of the shop). A-1, with a
knife, caused fatal injuries to D-1. He also stabbed Sakthivel
(son of Muthuveeran)6
in his stomach repeatedly. When D-2
intervened to prevent the attack, A-1 stabbed him. While the
injured persons were being taken to hospital, on the way, both
D-1 and D-2 succumbed to injuries.
2.2 Sakthivel, who was injured in the incident, reported it to A.
Rajasekar (PW-20), a Police Inspector at the Hospital. Upon
this statement, FIR no. 87/2002 came to be registered. Upon
investigation on 1st July 2004, charges were framed against
A-1 and A-2, as indicated in the above table.
Trial Court Findings
3. In order to prove the charges, the prosecution examined 22
witnesses; exhibited 33 documents and nine material objects. To
repel the charges, the defence produced a solitary witness and
three documents.
4. The Trial Court has relied on ocular and medical evidence to establish
the charges against the accused persons. PW-1 and K. Sakthivel,
son of Kaathaan7
(PW-2) both deposed that in the quarrel between
the deceased and accused persons, though they tried to pacify the
situation, A-2 handed a knife to A-1 with which the latter stabbed
the deceased persons.
5. The Learned Trial Court found no substance in the challenge put
forth by the defence attempting to shake the prosecution’s case.
A-1 was held guilty on two counts of Section 302, IPC, i.e., for the
murder of D-1 and D-2; A-2 was held guilty on one count only, i.e.,
for abetting the murder of D-1.
6. The charges of attempt to murder were found to be proven against
both A-1 and A-2. It relied on the evidence of PW-1, PW-2, and PW-3
5 Hereinafter ‘D2’
6 Hereinafter ‘PW-1
7 Hereinafter ‘PW2’
752 [2024] 3 S.C.R.
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to hold that A-2 instigated A-1 to attack the deceased. The learned
Trial Court observed that the injuries sustained by PW-1 and K.
Sakthivel (PW-2) were of such a nature that the act of the accused
would be termed as an act of attempt to murder.
High Court Findings
7. The High Court, in appeal, was faced with the question of the absence
of the name of A-2 in the FIR. Having referred to certain decisions of
this Court, it was observed that simply because the name was not
mentioned in the FIR, an accused can not be absolved of liability
for having committed the offence. The next question considered by
the Court with respect to A-2 was his involvement or lack thereof
in the occurrence of this offence. The argument on his behalf relies
on the fact that PW-1’s statement did not mention him, and neither
did Exhs. P-6 and P-11, was considered unworthy, keeping in view
the testimonies of injured eyewitnesses PW-1 and PW-2 as also the
statement of PW-3 under Section 161 (3) of the Code of Criminal
Procedure, 1973; it was held that the involvement of A-2 stood proved
beyond reasonable doubt.
8. For A-1, three primary arguments were put forth, i.e., Dr.
Radhakrishnan8
(PW-17) Doctor at Seahorse Hospital did not give
evidence in regard to the surgical procedure undergone by PW1; the injuries faced by A-1 were not sufficiently explained by the
prosecution; and about the occurrence, the owner of the wine shop
stood not examined.
9. It was observed that the genuineness of the statement made by
PW-1 to the police could not be doubted as he had told PW-17
that he was a victim of an attack by A-1. Such genuineness stands
buttressed by the fact that the document reached the court on the
same day.
10. On A-1’s injuries being unexplained, it was observed that the
same would not be sufficient to dispel the entire prosecution case.
Reference was made to Amar Malla v. State of Tripura9
. It was held
that since both PW-1 and PW-2 are consistent on facts, including
the place of occurrence, as also the same being an admitted fact,
8 Hereinafter ‘PW-17’
9 (2002) 7 SCC 91
[2024] 3 S.C.R. 753
Periyasamy v. The State Represented by the Inspector of Police
the contention in that regard on behalf of A-1 has to be negatived.
Given that the presence of the owner of the shop has nowhere
been mentioned, his non-examination cannot be termed fatal to
the prosecution case.
11. In such terms, the High Court confirmed the conviction and sentence
handed down by the Trial Court as regards A1 and A2.
Submissions
12. The present appeals are a challenge to the judgments of the Trial
Court and High Court. We have heard Mr. S Nagamuthu, learned
senior counsel, Mr. S. Arun Prakash for A-1, and Mr. Vipin Jai for
A-2. Dr. Joseph Aristotle S. was heard for the State.
Contentions on behalf of A-1
13. The primary ground urged on behalf of A-1 was that nearly all
witnesses were “interested” in the case’s outcome and, therefore,
unreliable; and none of the witnesses examined were independent.
Further, it was canvassed that the delay in lodging the FIR stands
unexplained, more so when the medical evidence does not speak
of PW-1 having undergone surgery. Also, it must be noted that there
was no prior animosity or reason for discord. The events as they
unfolded were the result of a spur-of-the-moment quarrel in which
he also sustained grievous injuries. The right of private defence has
also been pleaded as an alternate argument.
Contentions on behalf of A-2
14. It was argued on behalf of A-2 that his presence at the scene of
the crime was never established. Four limbs of A-1’s arguments,
i.e., delay in lodging the FIR; almost all witnesses qualifying as
“interested witnesses”; there being no enmity between the involved
persons; and the lack of independent witnesses, were adopted by
A-2.
Submissions on behalf of the Respondent
15. The respondent has filed detailed submissions which attempt to
discredit as a whole the submissions on behalf of the accused
persons. In doing so, the State relied on various judgments from
this Court. We have perused the written submissions filed and also
examined the cases referred.
754 [2024] 3 S.C.R.
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Consideration and Conclusion
16. The question that we are called upon to decide is whether, in
the sum total of facts, circumstances, and the law applicable, the
convictions handed down to A-1 and A-2 are based on the standard
of beyond reasonable doubt having been met and, therefore, are
sustainable.
17. It would be apposite for this Court to consider the law on the various
facets of the penal laws of the land, involved in this case.
The Right of Private Defence
18. A-1 has contended that his actions were covered under the ambit
of the right of private defence. The principle is best captured in the
following words found in Russel on Crime, 11th Edition Vol.I
“… a man is justified in resisting by force anyone
who manifestly intends and endeavours by violence or
surprise to commit a known felony against either his
person, habitation or property. In these cases, he is not
obliged to retreat, and may not merely resist the attack
where he stands but may indeed pursue his adversary
until the danger is ended and if in a conflict between
them he happens to kill his attacker, such killing is
justifiable”.
19. The right of private defence is not defined under the IPC. Whether
under the circumstances of each case, such a right is available or not
is determined within the said boundaries only. No test in the abstract
can be laid down for determining whether a person legitimately acted
in private defence. The law only provides that the person claiming
such a right bears the onus10 to prove the legitimacy of the actions
done in furtherance thereof and it is not for the Court to presume
the presence of such circumstances or the truth in such a plea
being taken. (See: Raghbir Singh & Ors. v. State of Haryana11.)
The burden on the person pleading the right of private defence has
been succinctly explained in James Martin v. State of Kerala12. This
right has been held to be “very valuable, serving a social purpose”
10 Section 105 Indian Evidence Act 1872
11 [2008] 15 SCR 1108 : (2008) 16 SCC 33
12 [2003] Suppl. 6 SCR 910 : (2004) 2 SCC 203
[2024] 3 S.C.R. 755
Periyasamy v. The State Represented by the Inspector of Police
and, therefore, it should not be construed narrowly. (See: Vidhya
Singh v. State of M.P.13)
20. This Court has summarised the principles in regard to the exercise
of right of private defence in Darshan Singh v State of Punjab &
Anr.14 as referred to in Sukumaran v State15
"(i) Self-preservation is the basic human instinct and is duly
recognised by the criminal jurisprudence of all civilised
countries. All free, democratic and civilised countries
recognise the right of private defence within certain
reasonable limits.
(ii) The right of private defence is available only to one who
is suddenly confronted with the necessity of averting an
impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the
right of self-defence into operation. In other words, it is
not necessary that there should be an actual commission
of the offence in order to give rise to the right of private
defence. It is enough if the accused apprehended that such
an offence is contemplated and it is likely to be committed
if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a
reasonable apprehension arises and it is coterminous with
the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate
his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought
not to be wholly disproportionate or much greater than
necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead
self-defence, it is open to consider such a plea if the same
arises from the material on record.
13 (1971) 3 SCC 244
14 (2010) 2 SCC 333
15 (2019) 15 SCC 117
756 [2024] 3 S.C.R.
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(viii) The accused need not prove the existence of the right of
private defence beyond reasonable doubt.
(ix) The Penal Code confers the right of private defence only
when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of
losing his life or limb may in exercise of self-defence inflict
any harm even extending to death on his assailant either
when the assault is attempted or directly threatened.”
However, this Court will only enter into the question of applicability
of the right of private defence if the primary submission of complete
acquittal fails, for it has been submitted by Mr. Nagamuthu, learned
senior counsel that this submission is an alternate to the arguments
advanced by Mr. S. Arun Prakash, learned counsel for A-1.
Independent and Related or Interested Witnesses
21. It is a well-recognised principle in law that the non-examination of
independent witnesses would not be fatal to a case set up by the
prosecution. The difference between a witness who is “interested”
and one who is “related” stand explained by a Bench of three learned
Judges in State of Rajasthan v. Kalki16
“7. …“Related” is not equivalent to “interested”. A witness
may be called “interested” only when he or she derives
some benefit from the result of a litigation; in the decree
in a civil case, or in seeing an accused person punished.
A witness who is a natural one and is the only possible
eyewitness in the circumstances of a case cannot be said
to be “interested.”
We may refer to the observation in Sarwan Singh v. State of Punjab17
as under to appreciate the evidentiary value of such testimonies: –
“...Moreover, it is not the law that the evidence of an
interested witness should be equated with that of a
tainted evidence or that of an approver so as to require
corroboration as a matter of necessity. The evidence of
16 [1981] 3 SCR 504 : (1981) 2 SCC 752
17 (1976) 4 SCC 369 (3J)
[2024] 3 S.C.R. 757
Periyasamy v. The State Represented by the Inspector of Police
an interested witness does not suffer from any infirmity as
such, but the courts require as a rule of prudence, not as a
rule of law, that the evidence of such witnesses should be
scrutinised with a little care. Once that approach is made
and the court is satisfied that the evidence of interested
witnesses have a ring of truth such evidence could be
relied upon even without corroboration. Indeed there may
be circumstances where only interested evidence may be
available and no other, e.g. when an occurrence takes
place at midnight in the house when the only witnesses
who could see the occurrence may be the family members.
In such cases it would not be proper to insist that the
evidence of the family members should be disbelieved
merely because of their interestedness…”
In other words, if witnesses examined are found to be ‘interested’
then, the examination of independent witnesses would assume
importance.
Faulty Police Investigation
22. Recently, this Court in Rajesh and Anr. v. State of Madhya Pradesh
(3-Judge Bench)18, while setting aside the conviction of the three
Appellants therein, remarked:
“39. Before parting with the case with our verdict, we may
note with deep and profound concern the disappointing
standards of police investigation that seem to be the
invariable norm. As long back as in the year 2003, the
Report of Dr. Justice V.S. Malimath’s ‘Committee on
Reforms of Criminal Justice System’ had recorded thus:
‘The manner in which police investigations
are conducted is of critical importance to the
functioning of the Criminal Justice System. Not
only serious miscarriage of justice will result if
the collection of evidence is vitiated by error
or malpractice, but successful prosecution of
the guilty depends on a thorough and careful
search for truth and collection of evidence which
18 2023 SCC OnLine SC 1202
758 [2024] 3 S.C.R.
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is both admissible and probative. In undertaking
this search, it is the duty of the police to
investigate fairly and thoroughly and collect all
evidence, whether for or against the suspect.
Protection of the society being the paramount
consideration, the laws, procedures and police
practices must be such as to ensure that the
guilty are apprehended and punished with
utmost dispatch and in the process the innocent
are not harassed. The aim of the investigation
and, in fact, the entire Criminal Justice System
is to search for truth. ……The standard of police
investigation in India remains poor and there is
considerable room for improvement. The Bihar
Police Commission (1961) noted with dismay that
“during the course of tours and examination of
witnesses, no complaint has been so universally
made before the Commission as that regarding
the poor quality of police investigation”. Besides
inefficiency, the members of public complained of
rudeness, intimidation, suppression of evidence,
concoction of evidence and malicious padding
of cases…..’
40. Echoing the same sentiment in its Report No. 239 in
March, 2012, the Law Commission of India observed that
the principal causes of low rate of conviction in our country,
inter alia, included inept, unscientific investigation by the
police and lack of proper coordination between police and
prosecution machinery. Despite passage of considerable
time since these gloomy insights, we are dismayed to
say that they remain sadly true even to this day. This is
a case in point….”
23. A perusal of the judgment of the Trial Court shows that for both
counts before it, reliance primarily has been placed on PW-1 to
PW-3. Apart from these three-star prosecution witnesses, the
Investigating Officer (PW-22), by virtue of having been “in the driver’s
seat” of the case, acquires importance. The salient points that can
be appreciated from an assay of their respective testimonies may
be referred to as follows:-
[2024] 3 S.C.R. 759
Periyasamy v. The State Represented by the Inspector of Police
23.1 PW-1 is Sakthivel, S/o Muthuveeran. It was stated that upon
information that D-1 and Senthilkumar were quarreling with the
owner of the wine shop, he and Sakthivel, S/o Kathan rushed to
the shop. It is there that upon the instigation of A-2, who handed
A-1 a knife he stabbed the witness thrice in the stomach of PW-1
and PW-2, D-1, and D-2 as well. SI, Kulithalai, interrogated him at
4.30 a.m. on 4th March 2002, and the statement made thereunder
is Exh.P-1. In his cross-examination, it has come forth that upon
his arrival at Seahorse Hospital by 10:00 p.m., he was conscious,
and it is upon administration of anesthesia for surgery that he
became unconscious. Regarding the location of a wine shop, it
has been deposed that the same is located in a crowded area
and has a regular stream of visitors in and around the area.
23.2 With respect to A-2, it has been deposed that whether or not
he was an owner of the wine shop is unclear, but he certainly
was a visitor.
23.3 However, he contradicts his earlier version that upon reaching
the hospital, he was not in a position to speak and had not
informed the doctor of the incident, and instead, it was the
people who accompanied him who briefed the doctor.
24. Sakthivel, S/o Kathan (PW-2) stated that A-1 stabbed him in the
stomach twice, which was at the instigation of A-2. According to
this witness, A-1, A-2, and D-2, along with other persons, worked in
the wine shop. His statement was recorded in the evening after the
incident. He states that the showcase upon his reaching the wine
shop was intact. Further, D-1 was under the influence of alcohol
when PW-2 saw him, but, significantly, D-1 had not stabbed A-1,
and as such, no blood was seen on the hands of A-1.
25. Senthilkumar (PW-3) states that he was interrogated the morning after
the incident at 7.30 a.m. His deposition reveals him not to know as
to whether D-1 (Dharmalingam) was in a state of intoxication before
going to the wine shop. Nor has he seen the showcase of the shop
in a broken condition.
26. The learned Trial Court found sufficient evidence to convict both A-1
and A-2 based on these three testimonies.
27. K. Raajasekar (PW-22) (the Investigating Officer) at the relevant
time Inspector of Police, Kulithalai, took charge of the investigation
760 [2024] 3 S.C.R.
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of the incident on 4th March 2002. In his examination-in-chief, he
has described how the investigation proceeded. It was deposed
that on 5th March 2002 at about 12 noon, he arrested A-2 from
the Pettavaithalai bus stand. He also deposed, having visited the
scene of the crime twice and interrogated several witnesses. On
9th April 2002, he examined the witnesses (medical evidence) who
had allegedly furnished wound certificates for A-1 and A-2. Further
witnesses were examined on 10th July 2002, and a chargesheet was
filed on 15th July 2002.
28. It is undisputed that PWs 1 and 2 are injured witnesses. It is a
well-established principle of law, not requiring any underscoring or
reiteration, that the evidence of an injured witness is considered to
be on a higher pedestal than that of a witness simpliciter.
29. The learned Trial Court observed that for the reasons, (a) that the
witnesses had nothing to gain from deposing against the accused
persons; (b) there is no suggestion that any rival business interest
was to be benefitted by Sarvana Wines being embroiled in the
controversy; (c) A-2 was in fact a “good Samaritan” ; (d) that the
witnesses were deposing the accused persons at the behest of the
police being an unsubstantiated claim; and (e) that the witnesses
cannot be said to be “interested”. The concept of interested witness,
as referred to hereinabove, shows that for a person to be such, he
ought to have an interest in seeing the accused persons punished.
30. There is a direct statement by PW-1 that D-1 was his relative, i.e.,
son of his paternal uncle. D-2 was a relative of the owner of the
wine shop, who, according to him, was A-1, but in another instance,
he states that A-1 was only a worker. In respect of A-2, the only
statement is that it was upon his instigation that A-1 stabbed them.
31. It is hard to conceive how the Trial Court concluded that despite being
the first cousin of D-1 and himself a person injured in the incident,
PW-1 was not an interested witness. Further, we find a categorical
statement that, “the wine shop is in the main road’ and “the wine
shop would be crowded always”. In such a situation, the joining of
independent witnesses ought not to have been a difficult task but,
yet, it remained unachieved.
32. Further, we note that he admits variation in his statement (Exh.P-1)
in different ink and hand. He further states that there wasn’t much
[2024] 3 S.C.R. 761
Periyasamy v. The State Represented by the Inspector of Police
light at the spot of the incident, but then denies it to be “too dark”
when the occurrence has happened.
33. This Court has to strike a balance between the testimony of the injured
witness and that of an interested witness. It is also not a case that
PW-1 was a natural witness, as he stated that he had not been to
the wine shop and was only near the STD booth where the ensuing
quarrel was separated. In striking the above-stated balance, other
factors must also be considered, which will be discussed subsequently.
34. PW-2 was a neighbour of D-1. Upon being informed of the quarrel
between A-1 and D-1, he and PW-1 allegedly went there and
separated the parties. He claims to be an eyewitness to the incident.
After having undergone surgery, he regained consciousness the next
day at 6.30 a.m.
35. It was that evening when the police recorded his statement. At the
time of recording these statements in Court, i.e., 14th November
2005, a separate case preferred by the accused persons was under
trial and PW-2 was made an accused thereunder. Now, having been
made an accused in a case, as also having been injured with two
stabs in the stomach and additionally being the neighbour of D-1, it is
difficult to reconcile that PW-2 would be a witness of unquestionable
integrity upon whose statement convictions can be based. Once
again, we find that in regard to A2 the only thing stated is that upon
the instigation of A-2, A-1 stabbed them. There is no other statement
as to what may have been said by A-2 to enrage him enough that
even after the quarrelling parties were separated and they had
dispersed in their respective directions, A-1 went ahead angrily and
repeatedly stabbed them.
36. He has also deposed that there were about 50 persons at the scene
of the crime, then, how has the non-examination of independent
witness been countenanced by the prosecution and “approved” by the
Courts below, is something that escapes us, or rather confounds us.
37. Another essential aspect to be examined is that the statement of
PW-1 was recorded at 4.30 a.m. on 4th March 2002 wherein as
summarised above, he has clearly mentioned the role of PW-2,
however, the latter’s examination by the police was only at 5.00 p.m.,
that too when per his own statement he had regained consciousness
from his surgery at 6.30 a.m. itself. This gap is entirely unexplained
and wholly overlooked by the Courts below.
762 [2024] 3 S.C.R.
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38. Coming to the version of PW-2 again, we notice him to be extremely
evasive on the issue as to whether the police had visited the spot
in the night intervening 3/4th March 2002 or not. He denies being
interrogated by the police before 4th March 2002 till about 5.00 p.m.
He admits having visited a private hospital and, yet, as discussed
earlier, failed to report the matter to the police, more so the cause of
injuries sustained by him or for that matter others present on the spot.
39. The evidence of PW-3, upon which the counsel has laid considerable
emphasis for the respondent, appears to us to be fraught with
contradictions. In his examination-in-chief, it is recorded that D-1
had asked A-2 and A-1 for a bottle of liquor on credit, which the
latter two refused and scolded him, upon which he pushed down
the showcase, leading A-1 to grab a beer bottle and break it on the
head of D-1. When he was cross-examined he deposed as follows:
“The police recorded what all I have stated and obtained
my signature. It is not correct to state that Dharmalingam
asked 1st Accused in the wine shop to provide bottle on
credit; that as he has refused, Dharmalingam picked up
the quarrel, pushed the show case and broken into pieces;
that Thangavel appeared there to question it; that we and
Dharmalingam stabbed his relatives and Thangavel;….”
40. As is apparent, he states, for one, that D-1 had indeed broken the
showcase but subsequently states that to depose the same would
be incorrect. Furthermore, we find his actions not to be akin to that
of a prudent man. When A-1 had allegedly broken a bottle on the
head of D-1, PW-3 took the injured D-1 not to the hospital but to an
STD booth located nearby, where a quarrel ensued between him
and A-1, which was eventually separated by PWs 1 and 2. Even
more so, when A-1 was allegedly stabbing PW-2, he was still at the
STD booth with D-1, yet not having gone to the hospital and also not
having made any attempt to stop such stabbing. Why a person would
“hold” a person with a grievous head injury near an STD booth and
not take him to the hospital or, additionally, not try and stop others
from being grievously injured is something that compromises, in our
mind, the credibility of the version of PW-3.
41. Apart from the three star witnesses of the prosecution, in our
considered view, failing the standard of scrutiny applied to a
criminal proceeding, a perusal of the records reveals another facet,
[2024] 3 S.C.R. 763
Periyasamy v. The State Represented by the Inspector of Police
compromising in nature to the prosecution case. It has come forth
in the evidence of PW-1 that upon his arrival at the hospital, he
was in a conscious state, so why the recording of the statement
delayed till 4.30 a.m. is unsubstantiated. This is further so because
while PW-1 speaks of being operated upon, none of the witnesses
examined as medical witnesses corroborate such a statement. For
emphasis, we may refer to the statement of PW-17, the medical
officer in the Seahorse Hospital, at the relevant time. He stated that
upon admission, PW-1 was fully conscious. The wound certificate
was issued by Dr. Pon Shanthi, who has not been examined.
42. The delay therefore renders the circumstances questionable. Also, as
we have alluded to earlier, there is a significant gap in the examination
of PW-2 as well. For all the aforesaid reasons, it cannot be said
that the prosecution had succeeded in establishing its case against
the two accused persons beyond reasonable doubt warranting a
conviction under Section 302 IPC.
43. We further examine the role of the I.O. The investigation officer
of a case is the charioteer tasked with using the resources and
personnel at his disposal to ensure law and order as also that a
person who has committed a crime is brought to the book. In other
words, the role of an investigating officer is that of the backbone of
the entire criminal proceeding in respect of the particular offence(s)
he is charged with investigating. A perusal of his testimony reveals
certain problematic statements. Nowhere has it come on record
as to how the investigation reached the bus stand from where A-2
was arrested – who informed the authorities about A-2’s movement
by bus? Further, he has deposed that he made two visits to the
scene of the crime and that he also examined several witnesses.
Then how is there a striking lack of independent witnesses to lend
credence to the prosecution’s version of events? He does not know
where D-1 had expired. How? He also did not conduct any scientific
investigation at the spot of crime. Such an investigation carried out
most casually and callously is sought to be made the basis by the
police in seeking the conviction of the accused.
44. Another direct contradiction concerns his examination of the doctors
who allegedly gave wound certificates for PWs 1 and 2. In the
testimony of PW-17, it is clear that he was not the one who gave the
wound certificate as he was only on duty from 9 a.m. to 9 p.m., and
764 [2024] 3 S.C.R.
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PW-1 was brought to the hospital at 10 p.m. The wound certificate
was issued by Dr. Pon Shanthi, who had not been examined in the
instant proceedings.
45. For the charges under Section 307 IPC, the learned Trial Court also
considered the evidence of PWs 1, 2, and 3. We have considered
the evidence of these three witnesses in detail and are of the opinion
that for the reasons afore-stated, the said witnesses cannot be relied
upon.
46. In addition to the person who led the investigation, we must consider
the testimonies of the people who aided in it.
46.1. PW-20 was the Sub-Inspector, Kulithalai Police Station,
at the relevant time. His testimony appears to be evasive
and full of improvements, needing to explain the material
interpolations on the medical record. He admits not having
recorded any information received from the Seahorse Hospital
on the night of 3rd of March, 2022 at 11.00 hours. He admits
not to have added a version in the sentence - Exhs. P-1 and
P-24, which, as we notice, record the name of the assailant.
He admits the jurisdictional police station to carry out the
investigation, was not his (Tirupathur Town Police Station)
but only Kulithalai. He admits that neither he nor any one of
the police officers from any of the police stations visited the
spot till the morning after the date of the incident, despite the
travel distance being less than half an hour. No explanation
is forthcoming as to why one of the most essential aspects of
the criminal investigation was ignored or delayed. We notice
the witness to have admitted having informed the details of
the incident both to the Deputy Superintendent of Police and
K. Rajasekar (PW-22). Was it that the initial investigation was
being managed so as to shield the real assailants, which
could have been the complainant party themselves? Or was it
that the police were trying to frame the accused? Particularly
when, as the record reveals, as is so admitted by PW-22 of
A-2 being a practicing advocate who has been, (i) pursuing
the matters against the officials of the police station; (ii) has
been lodging complaints against the police officials for inaction;
and (iii) had nothing to do with the ownership, management
or control of the wine shop.
[2024] 3 S.C.R. 765
Periyasamy v. The State Represented by the Inspector of Police
46.2.There is yet another disturbing feature emanating from his
statement. Why is it that the police used a private vehicle for
carrying out the investigation, as was admitted by this witness
in any case, whose owner and driver in any event not examined
during trial or investigation? The prosecution doesn’t contend
that at the relevant time, no government vehicle was available
at the police station or that the said private vehicle was hired by
them. It is also significant that PW-21 admits that PW-1 had not
named A-2 in his statement, and, PW-22 when speaking about
A-2, only states, “On 5.3.2002 at 12.00 noon, I arrested the
accused Manoharan at Pettavaithalai Bus Stand after enquired
sent him to the Court Custody on the same day.”
46.3.In respect of PW-21, we find him to have not denied but feigned
ignorance of the fact that Sundaravadivel had held Paramasivam
S/o Kaalimoopan against whom a false case stood fastened by
Inspector Sundaravadivel, under the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Drug Offenders, Goondas,
Immoral Traffic Offenders, Forest Offenders, Sand Offenders,
Slum-Grabbers and Video Pirates Act, 198219 . He only states
that “being an Advocate the 2nd accused came to the area police
stations.” This in no way discloses what led either PW-22 or him
to suspect and thence, act on the complicity of A-2 in the crime.
47. Various lapses such as these cumulatively affect the overall sanctity
of the prosecution case, making it fall short of the threshold of
beyond reasonable doubt. It is in such circumstances, on analysis
of the record, that we are unable to sustain the conviction handed
down by the Courts below to A-1 and A-2. The injured witnesses and
the Investigation Officer in their testimony together are not inspiring
confidence, and in our own estimation the prosecution case stands
shaken beyond a point to which no conviction resting thereupon can
be said to be just in the eyes of law.
48. We sustain the challenge on the grounds, among others that,
(a) examined private persons were interested witnesses, with
inconsistencies amongst them; (b) no independent witnesses were
examined; (c) there was a delay in filing the FIR; (d) there were
interpolations on record; (e) there were numerous lapses in the
19 Hereinafter referred to as ‘Goondas Act’
766 [2024] 3 S.C.R.
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investigation; and (f) the medical and scientific evidence on record
does not support the prosecution’s version of events.
49. During the course of submissions on behalf of A-1, the learned
senior counsel appearing on his behalf had urged the right of private
defence as a secondary submission, in the event of the arguments
in favour of complete acquittal on finding favour with the court. Given
that, upon consideration and analysis of the submissions made and
the material on record, we have found that the convictions cannot
stand in the eyes of law, we need not delineate on that submission.
50. In that view of the matter, the appeals are allowed and the convictions
subject matter thereof, are accordingly set aside. Both appellants are
directed to be released forthwith, if not required in any other case.
Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Result of the case:
Gaurav Upadhyay, Hony. Associate Editor Appeals allowed.
(Verified by: Kanu Agrawal, Adv.)
