Tamilselvan Vs. State
Rep. by Inspector of Police,T.Nadu  INSC 1315 (5 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1071 OF 2006
Tamilselvan .. Appellant -versus- State Rep. by Inspector of Police, Tamil Nadu
MARKANDEY KATJU, J.
appeal has been filed against the impugned judgment of the Madras High Court
dated 9.11.2004 in Criminal Appeal No. 1438 of 2002.
learned counsels, Shri M. Karpagavinayagam for the appellant and Shri V.
Kanagaraj for the respondents.
the Trial Court there were 10 accused persons accused under Section 302 and
other provisions of the IPC. Accused nos.1 to 6 were found guilty under Section
302 and the other provisions of the IPC by the Trial Court and they were
convicted to life imprisonment and awarded various other punishments under
various other provisions of the IPC.
appeal before the High Court, accused nos.2 to 6 were acquitted but the
conviction of accused no.1, the appellant before us, under Section 302 etc. was
upheld. Aggrieved, the accused no.1 has filed this appeal before us.
F.I.R. in the case was filed by one S. Elangovan, Forest Guard.
The FIR reads as
Inspector of police, Ayilpatti police station, subject the complaint regarding
the death of Shri Swaminathan, Forest Guard, due to the firing of sandal wood
smugglers in Pilenadu reserved forest during the prevention of smuggling
activity duty. Humbly submitted, yesterday 27.1.1996 night about10.30 p.m.
myself along with Shri Kaliaperumal, Forest Guard of Pilenadu Beat, Shri
Ramalingam, Forest Guard of Pudupatti West beat, Shri Rajendran, Forest Guard
of Pilnadu North beat, Shri Swaminathan, Forest Guard of Namakkal range
currently in the special duty in Rasipuram range. Chinnamnian Forest Guard and
Raja the gardener were performing the vigilance duty in Kolladedu passage in
Vialankuttai in Kanavai Patti village which is about = kilometers from the eastern
boundary in Pilenadu Reserved Forest. At that time we saw a crowd coming
towards us having sandalwood logs on their heads.
ourselves and I fired in the air once with my double-barreled gun, warning them
to download the wooden blocks. Immediately the assailants also fired at us from
their direction. Mr. Ramalingam, Forest Guard, who was standing near to me,
also fired once cautioning the assailants. We came to know that the assailants
would be in a group of 50 to 60 in numbers. The above said persons after
downloading the wooden blocks came towards us pelting stones and firing at us.
That time Shri
Swaminathan amoung us fell down on the spot after being shot down. As there was
threat to our lives we ran away from the spot and came out of the reserved
forest. After coming out of the forest I gave information to the Forest Ranger.
The Forest Ranger came with a team and along with them I visited the place of
occurrence. We found Swaminathan lying dead in a pool of blood. The sandalwood
smugglers were not on the spot. We made arrangements for protection of the dead
body and this complaint has been submitted after coming to the police station,
Ayilpatti. I humbly request you to take action on my complaint. Copy to the
Forest Ranger of Rasipuram for appropriate action".
a perusal of the above FIR, it appears that nobody has been named as an accused
in the FIR. In column 6 at the beginning of the FIR the accused have been
described as `unidentified persons in a group consisting of 50 persons'. This
FIR was lodged on 28.1.1996 at 6.30 a.m., whereas the date and time of the
occurrence was 27.1.1996 at 10.30 p.m. Thus there is a time gap of eight hours
between the time of the occurrence and the lodging of the FIR.
nobody was named in the FIR as an accused, Elangovan, Forest Guard (who lodged
the FIR) in his deposition before the Trial Court has named accused 1 to 6 as
the persons who fired guns in the incident. We have carefully gone through the
evidence before the Trial Court and we find various material inconsistencies
between the version given in his FIR and in the deposition before the trial
dealing with these glaring inconsistencies it may be pointed out that the
incident occurred at 10.30 p.m. on 27.1.1996. It is alleged bythe prosecution
witnesses that they identified the accused in moonlight. We find it difficult
to accept this version of the prosecution witnesses that they could have
identified any of the accused merely by the moonlight. In the evidence of the
prosecution witnesses it is stated that the accused were carrying torches, but
there is no indication whether the victims, including the Forest Guard
Swaminathan (deceased) and Raju, Gardener, who sustained fire injuries, carried
it was the accused who allegedly carried torches, we find it difficult to
believe how the prosecution witnesses could have identified the assailants. The
position would have been different if the forest guards had been carrying
torches and had been pointing them at the assailants, but here the position is
just the reverse. In fact due to the torches of the assailants the prosecution
witnesses would have been partially blinded by the light of the torch light,
and would not have been able to identify anybody.
regards the material contradictions we have already stated above that nobody
has been named as an accused in the FIR. It is only later that the accused 1 to
6 have been implicated by name. It has already been noted above that the FIR
was lodged 8 hours after the incident. Thus there wasopportunity of subsequent
improvement in the prosecution case. PW 1- Elangovan, who was also the first
informant, has stated in his deposition before the Trial Court that he had not
mentioned the names of the accused in the FIR because he was shocked due to the
assault and because of the death of Swaminathan, and hence the names of the
accused did not strike his mind. We find it difficult to accept this version
because the FIR was not lodged immediately after the incident, but 8 hours thereafter.
Hence the shock in the mind of Elangovan would have been subsided after these 8
hours, and there was no good reason why he did not name the accused in the FIR,
if he had actually seen and identified them.
inconsistency in the deposition of Elangovan is that while in his
cross-examination he has mentioned that accused no.1 (the appellant herein) had
fired from a country made gun due to which Swaminathan the Forest Guard and
Raju the Gardener sustained fire injuries, but in his cross- examination he has
stated that when accused no.1 fired at him nothing happened to him or others
but only Raju sustained wounds. There is no mention in the cross examination
that Swaminathan also sustained fire injuries by the firing of accused no.1.
Thus this is also a material inconsistency in the statement of PW1- Elangovan.
appears to us from the evidence that about six unidentified persons had fired
which caused the death of Swaminathan and injuries to Raju, and that the rest
had thrown stones, but the identity of these assailants was not satisfactorily
established, particularly since it was 10.30 p.m. in the night and there was no
light except moonlight. In our opinion it would be unsafe to uphold the
conviction of the appellant on these facts, and the appellant has to be given
the benefit of doubt which is an established principle for criminal law.
Furthermore, there is no evidence to indicate that of the six persons who are
alleged to have fired, it was the shot fired by the appellant which caused the
death of Swaminathan.
are also in agreement with Shri Karpagavinayagam, learned counsel for the
appellant, that the case of the appellant is not very different from that of
accused nos. 2 to 6 because in the evidence it has been stated that all the six
accused had fired. Since accused 2 to 6 have been acquitted we cannot uphold
the conviction of appellant no.1 alone.
Raju in his evidence has stated that he told the police during the
investigation that some unidentifiable unknown persons had fired onhim and
others. This also corroborates the defence version that in fact no assailant
was identified by the prosecution witnesses, and it was only a subsequent
improvement which was sought to be made in the prosecution case.
is curious to note that while PW-3 Raju mentioned in his examination-in-chief
that the appellant had fired with a country made gun which caused Swaminathan
and him to sustain injuries, in his cross- examination he has stated that in
the police investigation he said that unidentified and unknown persons fired at
them. This is another glaring inconsistency in the deposition of PW3-Raju. Raju
has also stated that after the incident the police inspector did not ask him to
identify the accused.
Since Raju has stated
that unidentified persons had fired on him and Swaminathan, his version in the
examination-in-chief that accused no.1 had fired at them cannot be believed. We
are of the opinion that unidentified persons fired at Swaminathan and Raju. At
any event, the benefit of doubt has to be given to the appellant.
counsel for the appellant made several other submissions before us e.g. that no
stones were recovered, there were no stone injuries onanyone, there were no
weapons on accused 1 to 6 at the time of their arrest, the pellets were not
sent for chemical examination, there was no test identification parade, etc.
but it is not necessary for us to go into these submissions.
the facts of the case we are of the opinion that the prosecution has not been
able to prove its case beyond reasonable doubt. The appeal is, therefore,
allowed. The conviction of the appellant under Section 302 and other provisions
of IPC is set aside. The appellant shall be set at liberty forthwith unless
required in some other criminal case.
parting with the case we would like to state that learned counsels for both the
parties argued the case before us with great ability and deep knowledge of