ABU THAKIR AND ORS.versusSTATE REP. BY INSPECTOR OF POLICE, TAMIL NADU

                        [2010] 4 S.C.R. 794


A                     ABU THAKIR AND ORS.
                                  v.
     STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU
              (Criminal Appeal No. 168 of 2008)

                          APRIL 19, 2010
B                                                          1
       [B. SUDERSHAN REDDY AND SURINDER SINGH
                      NIJJAR, JJ.)

         Penal Code, 1860: s. 302 - Conviction under, based on
C   evidence of eye witnesses - Challenged on the ground that
    presence of prosecution witnesses at the place of incident was
    doubtful and there was delay in submitting their evidence
    recorded under s.161 Cr.P.C. which would make their
    statements unacceptable - Held: The presence of eye
D   witnesses at the place of incident was well established by
    evidence - Investigating officer explained that delay in
    sending the s.161 statements was due to two murders in quick
    succession within his jurisdiction of which he was incharge to
    maintain law and order - The explanation for delay was
E   convincing - Thus, conviction was based on proper
    appreciation of evidence - No reason to interfere with the
    concurrent findings of facts in exercise of jurisdiction under
    Article 136 of the Constitution - Constitution of India, 1950 -
    Article 136 - Code of Criminal Procedure, 1973 - s.161 -
F   Evidence - Testimony of eye-witnesses.

       Code of Criminal Procedure, 1973: s.161 - Documents
  such as original report, the printed form of FIR, inquest report,
  statements of witnesses recorded under inquest and under
  s.161 - Importance of requirement of sending these
G documents to the Court without any delay and effect of delay
  in sending the documents on prosecution case - Discussed.

         Witness: Witness to a murder - Response or behavioral
    pattern of every person in such situation may not be similar.
                                 794
  ABU THAKIR v. STATE REP. BY INSPECTOR OF            795
            POLICE, TAMIL NADU
    Prosecution case was that the deceased was               A
murdered in pursuance of criminal conspiracy hatched
by the appellants and other accused persons to wreck
vengeance of the murder of one 'SM' l,ll(hich took place
two days prior to the incident. On the fateful day, PW-4
informed, PW-1, brother of the deceased that the             B
deceased and some other persons were quarreling
nearby. PW-1 rushed to the place near temple where he
found the deceased lying on the ground unconscious
with bleeding injuries. PW-5 and PW-28 who were
returning from the temple, heard the distress noise and      C
went towards the scene and found deceased lying in
pool of blood. Deceased was taken to hospital where he
was declared dead. The trial court accepted the case of
prosecution and believed the evidence of PWs 2 to 4 and
based on their evidence, convicted the appellants under
Sections 302, 1208, 148, 341, 147, 302 read with Sections    D
149 and 109 IPC. The High Court however, confirmed the
conviction of the appellants only under Section 302, IPC
and acquitted them of the rest of the charges and
completely acquitted rest of the accused.
                                                             E
     In appeal to this Court, it was contended for the
appellants that the presence of PW-2, PW-3 and PW-4 at
the place of incident was doubtful; and that there was
enormous delay in submitting the statements recorded
under Section 161 Cr.P.C. to the Court since they were       F
received by the Court after eleven days of recording the
statements.

    Dismissing the appeal, the Court
     HELD: 1. It was in the evidence of PWs 2 to 4 that      G
after witnessing the ghastly incident of attack, they fled
away from the scene of offence due to fear. The
response, beh.avioural pattern of individuals in such a
situation differs from person to person and it cannot be
said that response of every and any human being would        H
   796    SUPREME COURT REPORTS              [2010] 4 S.C.R.

A be similar on such occasions. May be PWs 2 to 4, were
  reeling under shock and nervousness. They roamed here
  and there and reached their respective houses only in the
  evening after 5 p.m. There was no question put in the
  cross-examination to PW30-lnvestigating Officer, as to
B why he did not examine PWs 2, 3 and 4 immediately at
  the time of inquest or thereafter. The mere fact that they
  were not examined during the inquest is of no
  consequence. It was nobody's case that they were
  present at the time of inquest and yet their statements
C were not recorded by the 1.0. On these grounds, the
  presence of PW2 at the scene of occurrence cannot be
  disbelieved. That apart, the evidence of PWs 2 to 4 that
  the appellants were the assailants, would get support
  from the evidence of PWs 5 and 28. While PWs 5 and 28
  were returning after worship at the temple, they heard a
D hue and cry which made them run towards the scene of
  offence, where they saw three persons running away
  from the scene of offence. PW5, in the test identific~tion
  parade, identified appellant No.2. PW 28 whose evidence
  was more or less same as that of PW5, also identified
E appellant Nos. 1 and 2 in the test identification parade.
  There was no reason to disbelieve the evidence of PWs
  5 and 28 that they had seen all the three assailants,
  namely, appellants escaping from the scene of offence.
  They were all independent witnesses, whose evidence
F cannot be rejected on any ground whatsoever. [Para 15)
  [810-G; 811-A-B; 811-C-G]
      2.1. Mere delay in sending the statements of PWs 2
  to 4 per se would not make their evidence unacceptable
G unless there is something glaring to doubt their very
  presence at the scene of offence. As rightly pointed out
  by the High Court, the evidence of PWs 2 to 4 was so
  clinching, .wherein they had stated in clear and
  categorical terms that three persons joining together
H stabbed one individual. That portion of the evidence
  ABU THAKIR v. STATE REP. BY INSPECTOR OF             797
            POLICE, TAMIL NADU
remained unshaken. It is true that the assailants were not ' A
previously known to PWs 2 to 4. But they later identified
the appellants as the persons who stabbed the deceased.
[Para 17) [813-B-D]

    2.2. There should be speedy despatch of the               B
documents, such as the original report, the printed form
of FIR, inquest report and statement of witnesses
recorded during inquest and the statements of witnesses
recorded under Section 161(3) Cr.P.C. There is no quarrel
with that proposition and the importance of requirement       C
of sending the vital documents to the Court without any
delay. But the delay may occur due to variety of factors
and circumstances. Delay in despatch of the said
documents by itself may not be fatal to the prosecution
in each and every case. The question as to what is the
effect of delay in sending the vital documents to the Court   D
may have to be assessed and appreciated on the facts
and circumstances of each case. It is not possible to lay
down that delay in despatch .of the vital documents in
each and every case defeats the prosecution's case.
[Para 19] [814-D-G]                                           E

     Thulia Kali v. The State of Tamil Nadu (1972) 3 SCC
393; Marudanal Augusti v. State of Kera/a (1980) 4 SCC 425,
distinguished.
                                                              F
     2.3. There was delay in sending the statements of
PWs 2 to 4 recorded under Section 161, Cr.P.C. The
explanation was available on record that the Investigating
Officer was also in charge of maintaining law and order
in the area that got vitiated after two murders in
succession leading to a lot of commotion and communal         G
strife. There was no reason to reject the explanation as
to why the statements recorded under Section 161
Cr.P.C. could not be promptly despatched to the Court.
It was obviously for the reasons beyond control of the
Investigating Officer. [Para 18] [813-H; 814-A-C]             h
    798      SUPREME COURT REPORTS                [2010) 4 S.C.R.


A         Karunakaran Jabamani Nadar In re. 1974 L.W.(Crl)
    1190, approved.

       2.4. Criminal justice should not be made a casualjy
  for the wrongs committed by the investigating officers in
8 the case. In other words, if the court is convinced that the
  testimony of a witness to the occurrence is true, the Court
  is free to act on it albeit the investigating officer's
  suspicious role in the case. [Para 21) [815-D-E]

          State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC
C 715, relied on.

         3. In the light of the direct evidence of PWs 2 to 4, and
    8 and 20, the motive part has no significance. Even
    otherwise, there is enough material available on record
o   that the motive for the murder was in retaliation to the
    murder of one 'SM' allegedly by a group of persons
    belonging to an outfit of which the deceased was stated
    to be a member. There is no reason whatsoever to
    interfere with the concurrent finding of fact arrived at by
E   the Courts below in order to convict the appellants for the
    offence punishable under Section 302, IPC. There is no
    reason to disbelieve the evidence of PWs 2, 3 and 4 along
    with the evidence of PWs 8 and 20 and the medical
    evidence. Once the evidence of these witnesses is found
F   acceptable, the inevitable consequence is to confirm the
    conviction of the appellants under Section 302, IPC. The
    High Court in its elaborate judgment critically assessed
    and analyzed every nuance of the evidence and found a
    clear case against the appellants. The reappreciation of
    the evidence by the appellate Court did not result in any
G   manifest injustice. The Courts befow did not commit any
    error whatsoever in accepting the evidence available on
    record. In the circumstances, the appellants miserably
    failed to make out any case requiring interference under
    Article 136 of the Constitution. [Paras 22, 23) [815-G-H;
H   816-A-E]
   ABU THAKIR v. STATE REP. BY INSPECTOR OF                   799
             POLICE, TAMIL NADU

                      Case Law Reference:                             A
    (1972) 3 sec 393            distinguished          Para 18
    (1980) 4 sec 425            distinguished          Para 18
    1974 L.W.(Crl) 1190         approved               Para 19        B
     (1999) 8 sec 115           relied on              Para 21
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 168 of 2008.

    From the Judgment & Order dated 18.12.2006 of the High            C
Court of Judicature at Madras in Crl. A.No. 338 of 2004

    N. Natarajan, Ramesh Babu M.R., Latheef for the
Appellants.
                                                                      D
     S. Thananjayan for the Respondent.       ·

     The Judgment of the Court was delivered by

     B. SUDERSHAN REDDY, J. 1. This appeal by special
leave arises out of judgment and order dated 18th December,           E
2006 passed by the High Court of Judicature at Madras,
whereby the High Court confirmed the conviction and sentence
of the appellants herein under Section 302 of the Indian Penal
Code (IPC) while setting aside conviction and sentence under
Sections 120B, 148, 341, 147, 302 read with Sections 149 and          F
109, IPC.

     2. The facts in brief, according to the prosecution story, are
that on 28th March, 2002 one Murugesan (deceased) was
murdered at about 7.30 a.m. on the way leading to
Badrakaliamman temple on Kovai Pudur Road in pursuance                G
of a criminal conspiracy hatched by the appellants herein and
other accused forming themselves into unlawful assembly so
as to wreck vengeance of the murder that took place on 26th
March, 2002 of one Sultan Meeran. Before the incident,
Kanakaraj (PW 1), brother of the deceased went to the barber          H
    800     SUPREME COURT REPORTS               [2010] 4 S.C.R.


A   shop situated near the place of occurrence to have a shave,
    where his paternal uncle Subramani (PW 4) told him that the
    deceased and some other persons were quarrelling at East of
    Badrakaliamman temple. Immediately, Kanakaraj (PW 1),
    rushed towards the place of occurrence and found the
s   deceased lying on the ground unconsciously with bleeding
    injuries. Gopalakrishnan (PW5) and Rathinasamy (PW 28) who
    were returning from Badrakaliamman temple, on hearing the
    distress noise ran towards the place of occurrence and found
    Murugesan (deceased) lying in a pool of blood. They told
C   Kanakaraj (PW 1) that the assailants had fled away after they
    had attacked the deceased in revenge of earlier murder that
    took place on 26th March, 2002 of a member of assailants'
    community. Thereafter within ten minutes Parvathy (PW 6), who
    owns a fruit vending shop near the temple, told Kanakaraj (PW
    1) that earlier in the morning at about 6.30 A.M. she noticed
0
    two or three unknown persons near her shop in a car and on a
    scooter and then proceeding towards temple. In the meanwhile,
    Ganesan (PW 15) reached at the spot. Thereafter Subramani
    (PW 4), uncle of Kanakaraj (PW 1), along with Ganesan (PW
    15) and others took the injured (deceased) in his car to the
E   Government Hospital, Coimbatore. En route to the hospital,
    Ganesar. (PW 15) gave information about the incident to the
    concerned police station over his mobile phone. The duty
    Doctor (PW-21 ), after examining Murugesan, declared him
    dead. On the basis of the information given by Ganesan (PW
F   15), Akbar Khan, Sub-Inspector of Police, Pothanur Police
    Station (PW 29) reached at the hospital at about 8.45 A.M
    where he came to know that Murugesan had already died. He
    examined Kanakaraj (PW 1) and recorded his statement which
    was registered as Crime No. 271/02 (Ex.P.1). Thereafter the
G   first information report came to be printed as Ex. P.72.
    Consequent upon the registration of crime, Ramachandran,
    Inspector of Police, Pothanur Police Station (PW 30) was
    appointed as Investigating Officer who visited the scene of
    occurrence at about 10.00 A.M on the very same day and
H
/


     ABU THAKIR v. STATE REP. BY INSPECTOR OF   801
    POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.)
    prepared the observation mahazar (Ex. P.30), the rough sketch       A
    of the crime scene (Ex.P.74) and also recovered material
    objects including a knife (M0-7) in the presence of
    Marudhachalam (PW-20) and other witnesses. Thereafter he
    proceeded to the Government Hospital where, in the presence
    of panchayatdars and witnesses, prepared inquest report             B
    (Ex.P.73) and gave requisition (Ex.P.47) to conduct post
    mortem. Sundarrajan, Professor, Forensic Science,
    Coimbatore Medical College Hospital (PW 23) on receipt of
    Ex. P. 47 conducted post mortem (Ex. P. 48) at 12.25 P.M. and
    opined that the death was due to haemorrhage and shock              c
    resulting from multiple stab injuries over chest and
    corresponding internal injuries to heart and both lungs.

         3. After completion of the investigation, the police filed
    charge sheet against the appellants and five other co-accused.
    The prosecution in all examined 30 witnesses (PWs 1 to 30)          D
    and got marked 77 documents in evidence. The prosecution
    also produced material objects which were marked as M.O. 1
    to 43.

          4. The trial court accepted the prosecution's case and        E
    believed the evidence of PWs 2 to 4 and based on their
    evidence, convicted the appellants herein under Sections 302,
    120B, 148, 341, 147, 302 read with Sections 149 and 109, of
    the Indian Penal Code (IPC) and sentenced to life imprisonment
    and various other terms of imprisonment to run concurrently. The    F
    trial Court also convicted the. other accused under various
    Sections of the IPC. The trial court held that the prosecution
    proved its case beyond reasonal;>le doubt against the
    appellants and held them guilty of having entered into a criminal
    conspiracy, unlawful assembly and committing murder of the          G
    deceased. The High court, however, confirmed the conviction
    of the appellants only under Section 302, IPC and acquitted
    them of the rest of the charges and completely acquitted rest
        .
    of the accused .

         5. We have heard the learned counsel appearing for the         H
    802     SUPREME COURT REPORTS                  (2010) 4 S.C.R.


A appellants as well as for the State and perused the material
  available on record.

       6. Shri N. Natarajan, learned senior counsel appearing on
  behalf of the appellants submitted that the presence of the so
  called eyewitnesses (PWs 2 to 4) at the scene of offence is
8
  highly doubtful. The submission was, their evidence is totally
  untrustworthy and suffers from material contradictions. It was
  further submitted that the theory of conspiracy set up by the
  prosecution was disbelieved by the High Court and on the
C same analogy, the High Court ought to have totally disbelieved
  PWs 2, 3 and 4 and if their evidence is not taken into
  consideration, there is no other evidence based on which the
  appellants could be convicted for the charge under Section 302,
  IPC. It was also submitted that there is enormous delay in
  submitting the statements recorded under Section 161, Cr.P.C.
D to the Court since they were received by the Court after eleven
  days of recording the statements. The cumulative effect of these
  factors makes the whole prosecution case doubtful and the
  appellants are at least entitled to benefit of doubt.

E       7. The learned counsel for the State submitted that the
  evidence of PWs 2 to 4, is cogent and there is no material
  contradictions in their evidence even though they were
  subjected to lengthy cross-examination. All of them have
  identified the appellants in the test identification parade. Their
F presence at the scene of occurrence is very well established
  by the evidence of Savithri (PW 8), Thangaraj (PW 18) and
  Marudhachalam (PW 20) and there is no reason to disbelieve
  their evidence. One of the important circumstances highlighted
  by the learned counsel for the State was matching of blood
G group of the deceased with the blood found on the M.O. 6
  series i.e., weapons used in the commission of the offence.
  Further, the same blood group was found on the clothes
  recovered from the appellants. The rfelay in not sending the
  statements immediately was due to the reason that, in quick
  succession two murders which were very sensitive in nature,
H
  ABU THAKIR v. STATE REP. BY INSPECTOR OF   803
 POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.]

took place within the jurisdiction of the Investigating Officer who    A
was also entrusted with the duty to maintain law and order in
that area. The submission was that mere delay in sending the
statements per se would not vitiate the entire prosecution case.
The counsel further submitted that the Courts below did not
commit any error or illegality in appreciating the evidence. The       B
conviction is based on proper appreciation of the evidence and
there is no reason or justification to interfere with the concurrent
finding of facts by this Court, so far as the appellants are
concerned, in exercise of jurisdiction under Article 136 of the
Constitution of India.                                                 c
     8. The Courts below held that the death of Murugesan was
homicidal in nature. As per post-mortem report (Ex.P-48), the
following ante mortem injuries were found on the dead body:
      (1)   Vertically oblique stab injury over front of right side    D
            of chest measuring 5 ems x 2.5 ems x entering the
            right thoracic cavity. The upper outer end of the
            wound is 6 ems above and medial to right nipple.
            On dissection the wound passes backwards,
            medially and downwards in the right third inter            E
            costal space cutting the inter costal muscles,
            vessels, nerves and cutting the fourth rib close to
            sternum. Then it has caused a stab injury in the
            underlying anterior aspect of lower part of upper
            lobe of right lung measuring 2.5 ems x 1 cm x 1.5
            ems and exited out in the inner aspect of lower part       F
            of right lung measuring 2.25 ems x 1 cm. Then it
            caused a cut in the right side of front of pericardium
            measuring 1. 75 ems x 1 cm and then caused a stab
            in the anterior aspect of right ventricle measuring
            1.5 ems x 1 cm x cavity deep. Pericardia! sac              G
            contains 50 ml of blood with clots. Right pleural
            cavity contains 750 ml of blood with clots. The depth
            of the wound tract is about 10 ems. The margins of
            the wound are regular and both ends are pointed.
                                                                       H
    804     SUPREME COURT REPORTS                    (201 OJ 4 S.C.R.


A         (2)   Transversely oblique stab injury over back of left
                side of upper chest measuring 3 ems x 1 cm x
                entering the left thoracic cavity. The lower medial
                end of the wound is 4 ems from the middle of T 3
                vertebra. The wound passes forward, downwards
B               and medially through the left third inter costal space
                causing a stab injury in the posterior aspect of upper
                lobe of left lung measuring 2 ems x 1 cm x 2 ems.
                The deepest part ending as a point. Both ends of
                the wound are pointed and the margins are regular.
c               The length of the wound tract is about 8 ems left
                pleural cavity contains 400 ml of blood with clots.
          (3)   Vertically oblique stab injury over back of right side
                of upper chest measuring 3 ems x 1 cm x entering
                the right thoracic cavity. The upper medial end of
D               the wound is 1 .5 ems from the middle of T 4
                vertebra. The wound passes downwards, laterally
                and forwards in the fourth right inter costal space
                cutting the right fourth rib in the posterior aspect
                and causing a stab injury in the middle lobe of right
E               lung measuring 2.5 ems x 1 cm x 2 ems and the
                deepest point ending as a point. The length of the
                wound tract is about 8 ems. Both ends of the
                wound are pointed and the margins are regular.
          (4)   Transversely oblique stab injury over back of left
F               side of upper chest close to midline measuring 3
                ems x 1 cm x 3.5 ems deep in the muscle plane.
                The lower inner end of the wound is close to middle
                of T3 vertebra. The wound passes downwards,
                laterally and forwards. Both ends of the wound are
G               pointed and margins are regular.
          (5)   Vertically oblique stab injury just below the right side
                of lower lip measuring 1 cm x 0.5 ems through and
                through and exiting through the buckle surface of the
                lower lip on the right side, wound measuring 0.75
H               x 0.5 cm. The wound passes upwards, backwards
 ABU THAKIR v. STATE REP. BY INSPECTOR OF                  805
POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.]
          and laterally. The length of the wound tract is about   A
          1 cm. The upper inner end of the wound is 1 cm
          right to midline of chin. The ends of the wound are
          pointed (both) and the margins are regular.
   (6)    Vertically oblique stab injury over the middle third
          of back of left arm measuring 4.5 ems x·2 ems x 6       B
          ems deep in the muscle plane. The distal outer end
          of the wound is 8 ems above left elbow. The wound
                                                .   l
          passes upwards, forwards and medially. Both the
          ends of the wound are pointed and margins are
          regular.                                                c
    (7)   Oblique stab injury over the posterior aspect ofJeft
          hip measuring 3 ems x 1 cm x 5 ems deep in the
          muscle plane. Both ends of the wound are pointed
          and the margins are regular. The lower outer end
          of the wound is 7 ems below and behind the left         D
          anterior superior iliac spine. The wound passes
          forwards, upwards and laterally.
    (8)   An oblique cut injury over left side of upper lip
          measurin.~ 3 ems x 1 cm x 1 cm muscle deep.
                                                                  E
    (9)   An oblique cut injury over left side of lower lip
          measuring 4 ems x 1 cm x 1 cm muscle deep.
   (10) Transversely oblique incised wound over front of
        upper part of neck just above thyroid cartilage
        measuring 3 ems x 1 cm x skin deep.                       F
   (11) Oblique incised wound in the middle of right infra
        clavicular region measuring 1 cm x 0.5 cm x skin
        deep. The upper inner end of the wound is 6 ems
        from the medial end of right clavicle.
                                                                  G
   (12) Transversely oblique skin deep incised wounds four
        in number in the left sub scapular region measuring
        5 ems x 1 cm, 3 ems x 1 cm, 2 ems x 0.5 cm and
        1cmx0.5 cm.
   (13) Transversely oblique skin deep incised wound over         H
    806      SUPREME COURT REPORTS                [2010) 4 S.C.R.


A              upper inter scapular region on the right side
               measuring 2 ems x 1 cm.
          (14) Transversely oblique skin deep incised wound over
               the back of right lower chest measuring 2 ems x 0.5
               ems.
B
          (15) Vertically oblique skin deep incised wound over the
               upper inter scapular region on the left side
               measuring 4 ems x 0.5 cm.
          (16) Vertically oblique skin deep incised wound over the
c              upper inter scapular region on the right side
               measuring 2 ems x 0.5 ems.
          (17) Transversely oblique skin deep incised wound over
               the back of left side of upper abdomen measuring
               2 ems x 1 cm.
D         (18) Transversely oblique skin deep incised wound over
               the dorsum of right wrist measuring 5 ems x 0.5 cm.
          (19) Oblique cut injury over the dorsum right hand
               measuring 5 ems x 1 cm x bone deep.
E         (20) Another transversely oblique cut injury over the
               dorsum of right hand close to right index finger
               measuring 3 ems x 1 cm x bone deep.
          (21) Oblique cut injury over the radial aspect of right
               palm measuring 2 ems x 0.5 cm x 1 cm muscle
F              deep.
          (22) Oblique cut injury over the medial aspect of lower
               third of right thigh 5 ems above right knee
               measuring 7 ems x 2 ems x 1 cm deep in the
               subcutaneous plane.
G
          (23) Transversely oblique cut injury over the front of
               upper part of left arm 12 ems below the top of left
               shoulder measuring 2 ems x 1 cm x 1 cm deep in
               the muscle plane.
H         (24) Oblique incised wound over the front of upper part
 ABU THAKIR v. STATE REP. BY INSPECTOR. OF  807
POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.]
        of left forearm 8 ems below left elbow measuring 3      A
        ems x 0.5 cm x skin deep.
   (25) Abrasions seen in the following regions:
        1 cm x 1 cm, 0.5 x 0.5 cm over right side of
        forehead.
                                                                B
        3 cm x 0.25 cm over right lateral aspect of lower
        chest.
        2 cm x 1 cm, 0.5 cm x 0.5 cm over dorsum of
        proximal part of right forearm.
        2 cm x 1 cm over back of right elbow.
                                                                c
        3 cm x 1 cm, 2 cm x 1 cm over lateral aspect of
        upper part of right leg.
        4 cm x 3 cm over lateral aspect of middle third of
        right thigh.                                            D
        2 cm x 1 cm over the lateral aspect of right hip.
        7 cm x 4 cm over the lateral aspect of right gluteal
        region.
        3 cm x 1 cm just below left mastoid.                    E
        4 cm x 1 cm and 3 cm x 1 cm over left lateral
        aspect of neck.
        3 cm x 1 cm over left supra scapular region.
        4 cm x 0.5 cm and 1 cm x 1 cm over lateral aspect       F
        of upper part of left arm.
        1 cm x 1 cm over posterior aspect of lower part of
        left arm.
        5 cm x 4 cm and 0.5 cm x 0.5 cm over posterior
                                                                G
        aspect of left elbow.
        4 cm x 2 cm over lateral aspect of left hip.
        Multiple tiny scratch abrasions over left knee, lower
        part of left forearm, right hand, right side of face,
        left side of forehead, dorsum of nose and over front    H
    808     SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A              of neck.
                Other findings:
                Peritoneal cavity empty.
                Lungs cut section pale.
B               Heart all chambers empty. Coronaries patent.
                Hyoid bone intact.
               Stomach contains 150 ml of brown colour fluid
               without any specific smell. Mucosa pale.
c               Small intestine contains 20 ml bile stained fluid
                without any specific smell. Mucosa pale.
                Liver, spleen, kidneys and brain cut section pale.
                Urinary bladder empty.
D               External genitalia nil injury. Right hydrocele present.

       9. According to the medical opinion, the death of
  Murugesan was caused due to excessive haemorrhage and
  shock on account of multiple stab injuries over chest and
E corresponding internal injuries to heart and both lungs.

         10. The short question that arises for our consideration in
    this appeal is as to whether the courts below committed any
    manifest error in relying on the evidence of eye witnesses,
    Natarajan (PW-2), Rajendran (PW-3) and Subramani (PW-4)
F   to convict the appellants for the charge under Section 302, IPC.

       11. Before analysing the evidence of PWs-2 to 4, let us
  have a look at the evidence of Savithri (PW 8) whose version
  is important to appreciate the contention regarding the very
G presence of PWs - 2 to 4 at the scene of offence.

       12. PW 8-Savithiri, was residing nearby Badrakaliamman
  Koil at Kovai Pudur Pirivu and her husband is a transport
  operator owning a lorry. It is in her evidence that on 28th March,
H 2002 at about 7 a.m. Natarajan (PW 2) along with two other
  ABU THAKIR v. STATE REP. BY INSPECTOR OF   809
 POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.]
persons came to her house when her husband was away,                  A
stating that they have come to know that her husband desired
to dispose of his lorry owned by him which they wanted to
purchase, and therefore, wanted to have a look at the lorry. The
lorry was stationed at a distance of about 30 feet from her
house. The distance between the lorry where it was stationed          B
and the footpath was about 20 to 25 feet. That, after finishing
her household work, she came out of the house at about 9 a.m.
and found that there was a heavy crowd near the footpath.
Meanwhile, her husband also reached the home. She was
examined on the same evening and she narrated the incident            c
to the police. She was not subjected to any cross-examination
by the appellants. Marudhachalam (PW 20) is the husband of
PW8-Savithiri. It is in his evidence that he was in deep financial
problems and proposed to dispose of his lorry and for that
purpose sought the assistance of some brokers including that          D
of Natarajan-PW2. He stated in his evidence that by the time
he returned home at about 9 a.m., he saw that there was a
crowd at a distance of 50 feet away from his house. He went
to the scene of occurrence at about 10 a.m. along with his
brother Paramasivam. The police were investigating the matter
                                                                      E
and the mahazar (Ext. P30) was prepared in which his brother
 Paramasivam had signed. It is also in his evidence that his wife
Savithri (PW8) informed him about Natarajan (PW2) and two
others came to inspect the lorry stating that they were interested
to purchase the same.
                                                                      F
     13. Natarajan (PW2), is an automobile broker dealing with
the sale and purchase of old trucks and cars. It is in his evidence
that his friend Subramani (PW 4), who at the relevant time was
doing business in sale and purchase of tomato in wholesale,
intended to purchase a lorry and in that connection went to the       G
house of Marudhachalam (PW 20), at Kovai Pudur. At that time,
they have heard noise "ayyo amma" and he along with other
two went running there and found that three persons were
stabbing the deceased repeatedly and the time was 7.00 or
7.30 a.m. It is also in his evidence that one among the accused       H
    810      SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A   sustained a cut injury on his right wrist. On seeing the incident,
    they ran away from the place and went to several places. They
    have reached their house at about 5 p.m. and in the evening
    at about 8.30 p.m., the Inspector of Pothanur police inquired
    from him as to what he had seen in the morning of that fateful
B   day. His statement was recorded. Thereafter, he was required
    to attend the identification parade to be held on 23rd April, 2002
    at Salem prison and on that day, he identified the appellantG 1
    and 2 before the Judicial Magistrate and later identified
    appellant No.3 in the Court. He further deposed that he is
c   assisted by Rajendran (PW-3) in his business. It is in his
    evidence that Subramani (PW-4) came to him to purchase~ a
     lorry sometime before the incident of the fateful day. He further
     stated that he knew that one lorry was available for sale with
     Marudhachalam (PW-20) and in that connection, he along with
     PWs-2 and 4 visited the residence of PW-20 at about 6.00 A.M.
0
     on the day of occurrence for the inspection of the lorry. It is in
     his evidence that at about 7.00 or 7.30 a.m. when they Wt:!re
     verifying the general condition of the lorry, three persons
     crossed them towards West and ten minutes thereafter, they
E    heard a cry in pain from that side, which made them to run
     towards that place, where they saw the deceased being
     stabbed by the accused with the knives in their hands. He
     specifically stated that one among the three assailants got a
     cut injury on the right hand. It is worthwhile to mention that he
     asserted in his statement that he could identify the three
F    assailants which he did in the test identification parade.

          14. The evidence of Rajendran-PW3 and Subramani (PW
    4) is more or less the same as that of PW2-Natarajan.

       15. It is in the evidence of PWs 2 to 4 that after witnessing
G the ghastly incident of attack, they fled away from the scene of
  offence due to fear. We are unable to appreciate the criticism
  levelled by the learned senior counsel appearing for 'the
  appellants that if PWs 2 to 4 were really present at the scene
  of occurrence, nothing prevented them from informing 'the
H
  ABU THAKIR v. STATE REP. BY INSPECTOR OF 811
 POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.]
police. The response, behavioural patterns of individuals in A
such a situation differs from person to person and it cannot be
said that response of every and any human being would be
similar on such occasions. May be PWs 2 to 4, were reeling
under shock and nervousness. They were roaming here and
there and as is evident from their evidence, they have reached B
their respective houses only in the evening after 5 p.m. The
further criticism was that they were examined only in the
evening of 28th March, 2002 and there is no reason offered
by the 1.0. for not examining them immediately but only in the
night of 28th March, 2002. Be it noted, there was no question c
put in the cross-examination to PW30-lnvestigating Officer, as
to why he did not chose to examine PWs 2, 3 and 4
immediately at the time of inquest or thereafter. The mere fact
that they were not examined during the inquest is of no
consequence. It is nobody's case that they were present at the D
time of inquest and yet their statement was not recorded by the
1.0. On these grounds, the presence of PW2 at the scene of
occurrence cannot be disbelieved. That apart, the evidence of
 PWs 2 to 4 that the appellants are the assailants, gets support
from the evidence of PWs 5 and 28. While PWs 5 and 28 were
 returning after worship at the temple, they heard a hue and cry E
which made them to run towards the scene of offence, where
they saw three persons running away from the scene of offence.
PW5, in the test identification parade, identified appellant No.2.
PW28 (Rathinasamy), whose evidence is more or less same
as that of PW5, had also identified appellant Nos. 1 and 2 in F
the test identification parade held on 23rd April, 2002. It is in
the evidence of PWs 5 and 28, that they have seen Murugesan
(since deceased) just crossing the temple while they were
going into the temple to offer prayers. There is no reason to
disbelieve the evidence of PWs 5 and 28 that they have seen ~
all the three assailants, namely, appellants herein escaping from
the scene of offence. They are all independent witnesses,
whose evidence cannot be rejected on any ground whatsoever.
     16. There is no reason to reject or disbelieve the evidence   H
    812    SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A of Gopalakrishnan (PW-5) and Rathinasamy (PW-28)
  altogether as both of them gave similar version in their
  evidence. Gopalakrishnan (PW-5) who is a resident of
  Palakadu-Coimbatore road at Kovai Pudur Pirivu road,
  deposed in his testimony that at about 7.15 AM. he went to
B Badrakaliamman temple for worshipping on 28.3.2002 and at
  the same time Rathinasamy, who is also a resident of the same
  locality came to the said temple. He further stated that when
  both of them were returning after worship, Murugesan
  (deceased) was found crossing the temple. It is in his evidence
c that at the same time they heard the accused shouting
  "yesterday you closed one Sultan Meeran, as a retaliation we
  are closing you now". On hearing the said dialogue, they rushed
  towards the place of occurrence and found Murugesan lying on
  the ground in a pool of blood while the assailants were running
  towards South of the scene of occurrence. He further stated in
0
  his evidence that on seeing the said Murugesan lying in a pool
  of blood, they were shocked and stood there itself for a while.
  He knew that the deceased Murugesan belonged to RSS and
  therefore, he alongwith Rathinasamy (PW28) were proceeding
  to inform Ganesan (PW 15) who was in charge of BJP party in
E the area and found that Ganesan (PW 15) was coming in the
  opposite direction. Two or three persons came running along
  with Ganesan and all of them took the injured Murugesan in a
  car to the hospital. Subramani (PW 4), uncle of Murugesan was
  one amongst them.
F
       17. Now we proceed to consider the submission of the
  learned senior counsel that the statements of PWs 2 to 4
  (eyewitnesses), though purported to have been recorded on
  29th March, 2002, had reached the Court only on 11.4.2002
G which according to him makes the whole prosecution story
  doubtful. In fact, PW30-the Investigating Officer explained that
  in the case of murder of Sultan Meeran on 26th March, 2002,
  and the murder of Murugesan (deceased) on 28th March, 2002
  in succession, the entire city of Coimbatore and surrounding
H areas were in a highly disturbed state and widespread
  ABU THAKIR v. STATE REP. BY INSPECTOR OF 813
 POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.]
bandobasth was arrang~d in surrounding areas. Adverting to           A
this aspect of the matter, the High Court in clear and categorical
terms, upon reappreciation of the evidence, held that in such a
situation, no one could find fault with the Investigating Officer
in not sending the statements of PWs 2, 3 and 4 to the Court
before 11th April, 2002. Mere delay in sending the statements        B
of PWs 2 to 4 per se would not make their evidence
unacceptable unless something glaring is brought to our notice
to doubt their very presence at the scene of offence. As right)y
pointed out by the High Court, the evidence of PWs 2 to 4 is
so clinching, wherein they have stated in clear and categorical      c
terms that three persons joining together stabbed one
individual. That portion of the evidence remains unshaken. It is
true that the assailants were not previously known to PWs 2 to
4. But they have later identified the appellants as the persons
who stabbed the deceased.                                            D
     18. Learned senior counsel relied upon the judgment of this
Court in Thulia Kali vs. The State of Tamil Nadu 1 and
Marudanal Augusti vs. State of Kerala 2 in support of his
submission that the delay in sending the statements recorded
under Section 161, Cr.P.C. to the Court is fatal to the              E
prosecution's case. Thulia Kali deals with importance of timely
despatch of the first information report which is an extremely
vital and valuable piece of evidence for the purpose of
corroborating oral evidence adduced at the trial. In Marudanal
Augusti, this Court on the facts held that there was a delay of      F
as many as 28 hours in submitting FIR to the Special
Magistrate which remained unexplained by the Investigating
Officer in spite of being questioned. The Court came to the
conclusion that there was no proper explanation as to why there
was delay in sending the FIR to the Court. We fail to appreciate     G
as to how those judgments would help the defence in this case
since there is no delay in sending the FIR in the present case.
There is a delay in sending the statements of PWs 2 to 4
1.   (1992) 3 sec 393.
2.   (1980) 4 sec 425.                                               H
    814        SUPREME COURT REPORTS               [2010] 4 S.C.R.


A recorded under Section 161, Cr.P.C. There is a clear
  explanation available on record that the Investigating Officer
  was also in charge of maintaining law and order in the area
  that got vitiated after two murders in succession leading to a
  lot of commotion and communal strife. There is no reason to
B reject the explanation as to why the statements recorded under
  Section 161 Cr.P.C. could not be promptly despatched to the
  Court. It was obviously for the reasons beyond control of the
  Investigating Officer. Nothing is further suggested to accept the
  theory propounded by the learned senior counsel. It is nobody's
c case that such statements were not recorded by the
  Investigating Officer at all. The suggestion made in this regard
  to PWs 2 to 4 was denied by them.

          19. The learned senior counsel placed heavy reliance on
    judgment of the Madras High Court in Karunakaran Jabamani
D   Nadar In re. 3 where the Madras High Court underscored the
    importance of speedy despatch of the documents, such as the
    original report, the printed form of FIR, inquest report and
    statement of witnesses recorded during inquest and the
    statements of witnesses recorded under Section 161 (3) of
E   Cr.P.C. There is no quarrel with that proposition and the
     importance of requirement of sending the vital documents to
    the Court without any delay. But the delay may occur due to
    variety of facts and circumstances. Delay in despatch of the
     said documents by itself may not be fatal to the prosecution in
F   each and every case. The question as to what is the effect of
    delay in sending the vital documents to the Court may have to
     be assessed and appreciated on the facts and circumstances
     of each case. It is not possible to lay down that delay in
     despatch of the vital documents in each and every case defeats
G    the prosecution's case.

         20. We do not find any material on record to accept the
    submissions made during the course of hearing of this appeal
    that PW 20, did not own any lorry with him so as to be sold

H 3.      1974 L.W. (Crl) 1190.
 ABU THAKIR v. STATE REP. BY INSPECTOR OF                       815
POLICE, TAMIL NADU [B. SUDERSHAN REDDY, J.]
and the said lorry was not stationed nearby the scene of               A
occurrence. We do not find any reason to disbelieve the
statement of PWs 8 and 20 in this regard whiqh is clear,
categorical and forthcoming which we ,have discussed in the
preceding paragraphs. The submission is accordingly rejected.
                                                                         B
      21. We may have to deal with yet another submission
made by the learned senior counsel for the appellants that the
investigation was not fair as there were many missing links in
the process of investigation. This submission was made by the
learned counsel contending that the investigation does not C
reveal as to how the Investigating Officer came to know about
the presence of PWs 2 to 4 at the scene of occurrence and for
recording their statements in that regard. This Court in State
of Karnataka vs. K. Yarappa Reddy4 held that "even if the
investigation is illegal or even suspicious the rest of the
evidence must be scrutinized independently of the impact of it. D
Otherwise the criminal trial will plummet to the level of the
investigating officers ruling the roost. ... Criminal justice should
 not be made a casualty for the wrongs committed by the
 investigating officers in the case. In other words, if the court is
 convinced that the testimony of a witness to the occurrence is E
 true, the Court is free to act on it albeit the investigating officer's
 suspicious role in the case". The ratio of the judgment in that
 case is the complete answer to the submission made by· the
                                                                             \
 learned senior counsel for the appellants.
                                                                        F
     22. One more submission of the learned senior counsel
was that the prosecution failed to establish the motive for
committing the crime by the appellants. In the light of the direct
evidence of PWs 2 to 4, and 8 and 20, the motive part has no
significance. Even otherwise there is enough material available         G
on record in the present case that the motive for the present
murder was in retaliation to the murder of one Sultan Meeran
allegedly by a group of persons belonging to an outfit of which
the deceased was stated to be a member.
4.   (1999) a sec 715.                                                  H
    816     SUPREME COURT REPORTS                [2010] 4 S.C.R.


A       23. We do not find any reason whatsoever to interfere with
  the concurrent finding of fact arrived at by the Courts below in
  order to convict the appellants for the offence punishable under
  Section 302, IPC. We do not find any reason or justification to
  disbelieve the evidence of PWs 2, 3 and 4 along with the
B evidence of PWs 8 and 20 and the medical evidence. Once
  the evidence of these witnesses is found acceptable, the
  inevitable consequence is to confirm the conviction of the
  appellants under Section 302, IPC. The High Court in its
  elaborate judgment critically assessed and analyzed every
c nuance of the evidence and found a clear case against the
  appellants. The reappreciation of the evidence by the appellate
  Court did not result in any manifest injustice. We have looked
  into the evidence to satisfy ourselves as to whether the Courts
  below have committed any manifest error in appreciating the
  evidence available on record and on such scrutiny, we find that
0
  the Courts below did not commit any error whatsoever in
  accepting the evidence available on record. In the
  circumstances, we hold that the appellants miserably failed to
  make out any case requiring our interference under Article 136
  of the Constitution.
E
        24. We accordingly find no merit in the appeal and the
  same is accordingly dismissed.

    D.G.                                      Appeal dismissed.