State pf Kerala Vs.
Anilachandran @ Madhu & Ors.  INSC 763 (15 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 32-33 OF 2004
State of Kerala ...Appellant Versus Anilachandran @ Madhu and Ors.
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the Division Bench of Kerala High Court
allowing the appeal filed by the respondent. Five accused persons faced trial
for alleged commission of offence punishable under Sections 143, 147, 148, 323,
324 and 302 of the Indian Penal Code, 1860, (in short the `IPC').
the accused persons denied their involvement in the crime.
Additional Sessions Judge, Thiruvananthapuram found A1 to A4 guilty, while A5
was acquitted. The following convictions and sentences were recorded:
"A.1 to A.4 are
found guilty and A.1 is convicted and sentenced to undergo R.I for one month
u/s 341 and also is sentenced to undergo R.I for one year u/s. 323 IPC and is
also sentenced to undergo imprisonment for life and also to pay a fine of
Rs.20,000/- in default to undergo R.I for 3 years u/s. 302 IPC A2 and A3 are
convicted and sentenced to undergo R.I for one month each u/s. 341 IPC and also
sentenced to undergo R.I for 3 years each u/s. 324 IPC and also sentenced to
undergo imprisonment for life and also to pay a fine of Rs.20,000/- each in
default to undergo R.I for 3 years u/s. 302 IPC. A.4 is convicted and sentenced
to undergo R.I for 2 years u/s. 324 IPC set off allowed u/s. 428 IPC sentences shall
A.1 filed Criminal
Appeal No.529/1999 challenging the order of conviction and sentence. The other
accused filed Criminal Appeal No.444./1999 against the same judgment. Both the
appeals were heard together by the High Court.
version as unfolded during trial is as follows:
t 2 Gangadharan
Pillai (hereinafter referred to as the `deceased') father of PW1, and
Raveendran, Al's father's brother, were neighbours. A coconut tree belonging to
the said, Raveendran was slanting over the building of the deceased. On the
allegation of falling of tender coconut etc. from the coconut trees, there were
frequent quarrels between the deceased and Raveendran. The deceased Gangadharan
Pillai demanded to cut and remove and remove the said coconut tree. On
27.10.1993 at about 8.15 p.m. a quarrel occurred between Raveendran and
Gangadharan Pillai and Reveendran sustained injuries, for which the Poonthura
Police registered Crime No.82 of 1993 for offences punishable under Sections
341, 323 read with Section 34 IPC. Ext. D3 is the scene mahazar in respect of
crime No.82 of 1993. On account of the injuries sustained by Raveendran, Al to
A4, close relatives of Raveendran, and A5, a friend of A1, decided to do away
the deceased and to inflict bodily harm on PWs 1 and 3. In prosecution of their
common object they formed themselves into an unlawful assembly with deadly
weapons like dagger, sword, Iron rod, iron bar etc. at 8.45 p.m.
on 27.10.1993 inside
the coconut garden of one Mohammed Shah situated by the side of the pathway
that starts from Ambalathara-Poonthura Road at Numari Chantha near the
Vedanthara Bridge. Al caught hold of the collar of the shirt of PWI and fisted
thrice on his chest. A4 with the iron rod inflicted a blow on the back of PW1
and A3 with the iron bar inflicted four or five blows on the right shoulder of
PW 1. Then PW1 cried aloud. At that time, Al inflicted a stab injury on PW1
with the dagger which was warded off by PW1. On hearing the cry of PW1, his
father Gangadharan Pillai (deceased) rushed to the scene and tried to prevent
the accused from causing further harm to PW1. At that time A2 and A3 caught
hold of the deceased and wrongfully restrained him. Then Al with the dagger
inflicted a stab injury on the back at the left side above the waist on the
deceased. A4 and A5 inflicted blows on the body of the deceased with iron rods.
At that time PW3, mother of PW1 and wife of the deceased, intervened and tried
to prevent the accused from causing further harm to the deceased and PW1. A2
with a sword, inflicted a cut injury on the head and two other cut injuries on
the thighs of PW3. A3 and A4 inflicted blows on many portions of the body of
PW3 with the iron rods. The deceased and PW3 were taken to the General
Hospital, Thiruvananthapuram in an autorikshaw. PW3 was admitted at the General
Hospital and the deceased was referred to the Medical College Hospital. PW1
also went to the General Hospital and later accompanied the deceased to the
Medical College Hospital. PW1 was admitted there. On the way to the Medical
College Hospital itself the deceased succumbed to the injuries sustained by
him. The deceased was removed to the mortuary. This is the sum and substance of
the prosecution case.
was completed charge-sheet was filed. Since accused persons pleaded innocence,
trial was he1d for proving the occurrence. Four witnesses were primarily
examined as eye witnesses. They are PW.1, PW.3, PW.4 and PW.5. PW.1 is the son
of the deceased while PW.3 is his wife. PWs. 4 and 5 turned hostile and resiled
from the statements made during investigation. PW.2 is the doctor who examined
PW.1 and issued wound certificate. PW.3 was examined by PW.14 Doctor and the
wound certificate was issued by him. PW.15 is the Doctor who conducted
post-mortem examination and Exhibit P.13 is the post-mortem report.
The trial Court
placed reliance on the evidences of PW.l and 3 to record conviction. As noted
above, appeals were filed by the accused persons. Their stand in Court was that
the evidence of PW.1 and 3 does not inspire confidence. The original FIR which
was produced in Court was not a complete document and a vital part of it had
been removed. It was pointed out that there was a considerable delay in sending
the report to the Ilaka Magistrate. The High Court found the submissions to be
acceptable and directed acquittal of the accused, which is being questioned in
counsel for the appellant State submitted that the trial Court on analysis of
evidences and the factual scenario, as supported by materials on record,
recorded conviction which should not have been set aside by the High Court. It
is pointed out that there were minor variations, if any, in the evidences of
PW.1 and PW.3 and that they should not have been construed as a ground for
directing acquittal. It is submitted that accusations in any event have been
substantially established so far as accused No.1 is concerned, and the High
Court should not have directed acquittal. Learned counsel for the respondents
supported the judgment of the High Court.
Court firstly dealt with the authenticity of the First Information Report. The
High Court has noted that PW 1 allegedly gave Exhibit P.1 FI Statement. The
original of the statement showed that the last page which contained the
signature was torn out. The Sessions Judge after seeing the last page of Ext.
P1 FI statement observed as follows:
"The First Information Statement is shown to the witness. It is seen that
the place of which the signature of the informant was there torn off. That
portion of the paper is seen torn and removed. From the manner in which is torn
away, it is clear that it was not separated due to wear and tear, but that
portion alone is deliberately removed. The FIS is handed over to the witness.'
High Court made comparison of the document with other documents and found that
document was suspicious. Added to that it was noted that the Exhibit P.1 was
purportedly recorded on 27.10.1993 at 11.00 p.m. It is accepted that Ilaka
Magistrate received it on 28.10.1993 at 8.05 p.m. The High Court found that
there was unexplained delay in receipt of the occurrence report by the
is true that the delay itself does not make the investigation tainted.
(See : Pal Singh and
another v. State of Punjab (AIR (1972) SC 2679). The position was reiterated in
Swaran Singh and others vs. State of Punjab (AIR (1976 SC 2304) where it was
observed that the police should not make unnecessary delay in sending the FIR.
Delay in sending the FIR to the Magistrate sometimes afford opportunity to
introduce improvement and embellishment thereby resulting in a distorted
version of the occurrence.
Section 157 of the
Code of Criminal Procedure, 1973 (in short the `Code') mandates that the report
should be sent to the Magistrate forthwith. That itself indicates the urgency.
It needs to be noted here that where an explanation is offered by the
prosecution for the delay, that has to be tested.
The unexplained delay
by itself may not be fatal, but is a certainly relevant aspect which can be
taken note of while considering the role of the accused persons for the
8. In the instant
case the High Court found that not only the document appeared to be suspicious
but in addition there was considerable delay in sending it to Ilaka Magistrate.
Added to the aforesaid aspects, the noticeable variation in the evidence of
PWs.1 and 3 have been highlighted by the High Court. The role played by PWs.1
and 3 while the deceased was being assaulted have been analysed in great
detail. The High Court has noticed that even if the prosecution version about
the role of A.1 is accepted to be true, since the genesis of the incident has
not been established, it will be unsafe to record his conviction. The High Court
has noticed that crime was not committed in the manner as suggested by the
prosecution and the genesis of the incident is not established. Even if a plea
of alibi is set up by the accused and is discarded, that does not take away the
duty of the prosecution to prove beyond reasonable doubt that the accused
persons were guilty. It is certainly the duty of the persons who plead alibi to
prove it beyond reasonable doubt. Merely because the accused was not able to
prove his defence, it cannot be presumed that the prosecution case is proved
9. Above being so, we
find that this is not a case in which interference is called for. The appeals
(Dr. ARIJIT PASAYAT)
(LOKESHWAR SINGH PANTA)