KUMARversusSTATE REPRESENTED BY INSPECTOR OF POLICE

                        [2018] 5 S.C.R. 343                            343


                            KUMAR                                      A
                                 v.
     STATE REPRESENTED BY INSPECTOR OF POLICE
                 (Criminal Appeal No. 409 of 2017)
                           MAY 11, 2018                                B
        [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
       Penal Code, 1860: ss. 302 and 324 – Conviction by courts
below – Prosecution case was that the appellant-accused and the
victim-deceased had a verbal spat – On fateful day, appellant came
                                                                       C
to spot and picked up fight with PW-1 – In the process of
interference to prevent assault, PW-2 also got injured – Soon
thereafter when victim-deceased appeared at the spot, the appellant
pushed him into the canal and hit him with wooden log on his head
– Villagers prevented the appellant from assaulting deceased thereby
causing injuries to him – Both appellant and the deceased were         D
shifted to hospital where deceased succumbed to injuries – Trial
court convicted appellant and awarded life imprisonment – High
Court upheld the same – On appeal, held: Most of the prosecution
witnesses were hearsay witnesses – They had deposed that both the
appellant and the deceased participated in the fight with wooden
                                                                       E
logs and appellant also got head injury at the hands of deceased –
But, prosecution did not produce his medical record, nor the Doctor
was examined on the nature of injuries sustained by the appellant –
In the circumstances in which the deceased, appellant and also
PW-2 got injuries, it was obligatory on the part of IO. to examine
the doctor and seek information about the injuries sustained by the    F
accused and the same should have been made part of the record –
The injuries alleged to have been caused to appellant were not
properly explained, rather an alternative story was set up wherein
the injuries were attributed to mob justice, such plea without
substantive evidence cannot be accepted – Had there been a strong
                                                                       G
motive to do away with the life of deceased, generally there would
have been more fatal injuries caused on the deceased not by a log
but by utilizing more dangerous weapons – These circumstances
show that there is no reason to believe that motive was entertained
by the accused in the back drop of quarrel that took place prior to
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A     the date of occurrence – In the absence of positive proof of such
      motive, prosecution failed to prove its case beyond reasonable doubt
      – Conviction and sentence awarded by courts below set aside.
            Investigation: Role of Investigating authority – The
      investigative authority has a responsibility to investigate in a fair
B     manner and elicit truth – The concerned authorities to take up the
      investigation in a neutral manner, without having regards to the
      ultimate result.
             Criminal law: Injuries on the accused – A duty is cast on the
      prosecution to furnish proper explanation to the Court how the
C     person who has been accused of assaulting the victim received
      injuries on his person in the same occurrence – Penal Code, 1860
      – ss.302 and 324.
            Criminal law: Motive – Generally, in case prosecution desires
      to place motive of the accused as a circumstance, like any other
D     incriminating circumstance, it should also be fully established – If
      the genesis of the motive of the occurrence is not proved, the ocular
      testimony of the witnesses as to the occurrence could not be
      discarded only on the ground of absence of motive, if otherwise the
      evidence is worthy of reliance – Evidence.

E           Allowing the appeal, the Court
            HELD: 1. Most of the prosecution witnesses are hearsay
      witnesses. Contrary to what complainant (PW-1) deposed, a
      combined reading of evidences of PWs 2, 3, 5, 15, 19 and 20
      show that both the accused and the deceased participated in the
F     fight with wooden logs, accused got head injury at the hands of
      deceased, PW-2 himself also received injury at the hands of
      accused while he was trying to protect PW-1 from assault of the
      accused. The police reached the place of occurrence within ten
      minutes of the occurrence, that is well before the arrival of
      ambulance. At that point of time, Police enquired PW-1, PW2
G     and other witnesses, drawn report, sketch map etc., and took
      their signatures and sent the injured persons to hospital. That
      sequence of incidents shows that already investigation was started
      by police. That means the information provided by PWs 1, 2 and
      other witnesses at about 6:30 P.M. at the place of occurrence
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    KUMAR v. STATE REPRESENTED BY INSPECTOR OF                           345
                      POLICE

should have ideally been the basis of the F.I.R. Whereas the F.I.R.      A
shows thatththe information was received at police station at 9.30
p.m. on 20 August, 2009. The case involves a fight between two
persons – accused and the deceased. Majority of the eye
witnesses including PW-1, PW-3, have categorically stated that
accused-appellant was the aggressor. There were at least three
                                                                         B
different versions which substantially weakens the prosecution’s
case [Paras 19-23] [354-E-H; 355-C-E; 356-B-C]
       2. On the point of suppression of genesis of the crime, PW-
20 (head constable) categorically stated that he was present before
the Ambulance reached the place. Even though he was
extensively cross-examined, he has not budged from his position          C
that there was no recording of any statement before the
Ambulance reached. On the contrary PW-2 categorically remarks
that a statement was recorded by PW-20 before the ambulance
arrived. Although the High Court has discredited the evidence
of PW-2 as the part which provides the aforesaid details was on          D
recalling after few days, therefore, in light of possibility of being
won over, the credibility of the statement made by PW-2 needs
to be viewed with this background fact. However, there seems
to be no logic of such assumption, when the prosecution has not
declared the witness as hostile and more so, when his narrative
is corroborated by other witnesses. Therefore, PW-2’s evidence           E
needs to be taken into fold. [Para 24] [356-C-E]
      3. It is matter of record that the alleged accused-appellant,
was arrested in a hurried manner after the day of the incident
from the hospital. It is also stated that the police authorities in an
unusual manner got the appellant discharged from the hospital            F
and kept him illegally confined for a day. The action of
investigating authority in pursuing the case in the manner which
they have done must be rebuked. The High Court on this aspect,
correctly noticed that the police authorities have botched up the
arrest for reasons best known to them. [Para 25] [356-E-F; 357-A]        G
      4. The criminal justice must be above reproach. It is
irrelevant whether the falsity lie in the statement of witnesses or
the guilt of the accused. The investigative authority has a
responsibility to investigate in a fair manner and elicit truth. In
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346            SUPREME COURT REPORTS                      [2018] 5 S.C.R.


A     this case at hand, the aspect wherein the police has actively
      connived to suppress the facts, cannot be ignored or overlooked.
      Generally failure of the prosecution to offer any explanation in
      that regard shows that evidence of the prosecution witnesses
      relating to the incident is not true or at any rate not wholly
      true.[Paras 26, 27] [357-C-E, F]
B
            Mohar Rai and Bharath Rai v. The State of Bihar 1968
            CriLJ 1479 – relied on.
             5. Admittedly, the accused-appellant was also injured in the
      same occurrence and he too was admitted in the hospital. The
C     trial Court, instead of seeking proper explanation from the
      prosecution for the injuries sustained by the accused, appears to
      have simply believed what prosecution witnesses deposed in one
      sentence that the accused had sustained simple injuries only. In
      the circumstances in which the deceased, accused and also PW-
      2 got injuries, it was obligatory on the part of I.O. to examine the
D     Doctor and seek information about the injuries sustained by the
      accused and the same should have been made part of the record.
      [Paras 29, 30] [358-E-H; 359-A-B]
            6. Motive of the accused to commit the crime is ascribed
      to the previous quarrel occasioned between the accused and the
E     deceased during a drama at a village festival. Generally, in case
      prosecution desires to place motive of the accused as a
      circumstance, like any other incriminating circumstance, it should
      also be fully established. But in the case on hand, the evidence of
      direct witnesses is not satisfactory and on the other hand, it is
F     demonstrated that the deceased hit the accused on his head with
      the wooden log besides the testimony from the eye witnesses
      that there was scuffle. In such a factual situation, certainly motive
      may act as a double-edged sword. [Para 31] [359-C-F]
             7. There is absence of extreme cruelty, even if it assumed
G     that accused hit the deceased with the log. This show that there
      is no reason to believe that motive was entertained by the accused
      in the back drop of quarrel that took place during drama at the
      village festival, prior to the date of occurrence. In as much as the
      prosecution laid the foundation for the commission of crime by
      the accused in the said quarrel as an element of motive, in the
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    KUMAR v. STATE REPRESENTED BY INSPECTOR OF                          347
                      POLICE

absence of proof of such motive, prosecution has to face the peril      A
of failure in establishing that foundation. [Para 32]
[359-F-H; 360-A]
      8. As regards the other charge under Section 324 of IPC,
for causing injuries to PW-2. In light of the deficiencies, it can be
easily said that even the charge under Section 324 of IPC is not        B
established. The injured witness himself has attributed the injury
on him to the deceased, instead of the accused. In such a situation
conviction of the accused on the charge of Section 324 cannot be
sustained under law. [Para 33] [360-B-C]
       9. Taking stock of the circumstances and depositions of          C
prosecution witnesses in this case, it would be difficult to hold
that prosecution has laid the case on real circumstances and
proved its case beyond reasonable doubt. Normally this Court
does not interfere with the concurrent findings recorded by the
Courts below, but in this case considering certain exceptional
circumstances, this is a fit case for interference. In the peculiar     D
facts and circumstances of the case, definitely the benefit of doubt
goes to the accused-appellant. The judgments of the Courts below
awarding conviction and sentence to the accused-appellant
requires to be set aside. [Paras 34, 35] [360-C, E-F]
      Parbhu v. Emperor AIR 1944 PC 73 – distinguished.                 E

      Lakshmi Singh and Ors. v. State of Bihar 1976 CriLJ
      1736 – relied on.
                       Case Law Reference
AIR 1944 PC 73                 distinguished           Para 25          F

1968 CriLJ 1479                relied on               Para 27
1976 CriLJ 1736                relied on               Para 28
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.              G
409 of 2017.
     From the Judgment and Order dated 22.02.2016 of the High Court
of Madras Madurai Bench in Criminal Appeal No. 326 of 2013.
     S. Nagamuthu, M. P. Parthiban, A. S. Vairawan, S. Parthasarathi,
Ankur Prakash, Advs. for the Appellant.                                 H
348             SUPREME COURT REPORTS                            [2018] 5 S.C.R.


A          M. Yogesh Kanna, Ms. Sujatha Bayadhi, Advs. for the
      Respondent.
            The Judgment of the Court was delivered by
             N. V. RAMANA, J. 1. This appeal is filed by the present
      appellant, aggrieved by the concurrent findings of the court below, which
B     has upheld the culpability of the accused for culpable homicide amounting
      to murder under Section 302 of Indian Penal Code [hereinafter ‘IPC’
      for brevity] and voluntary causing hurt by dangerous weapons or means
      under Section 324 of IPC. This appeal presently impugns the High Court
      judgment dated 22.02.2016, in Criminal Appeal No. 326 of 2013.
C            2. The prosecution story in a nut shell begins with an earlier scuffle
      between the accused and deceased (Sakthivel), while watching a street
      play conducted during a village festival. It is alleged that the accused-
      appellant was rebuked by the deceased for sitting next to ladies. In this
      context, on 20.08.2009, at about 6:00 PM the accused came to the spot
D     where Rajendran (PW-1), Arumugham (PW-2) and Subramani (PW-3)
      were savoring idliis from the stall of Sumathi (PW-4), when the
      accused-appellant arrived with an intention to draw out Sakthivel
      (deceased), by picking up a quarrel with Rajendran (PW-1), who was
      his brother-in-law. Accordingly, the accused-appellant arming himself
      with a wooden log lying nearby, assaulted Arumugham (PW-2), who
E     came to the rescue. At that moment the Sakthivel (deceased) is supposed
      to have intervened. Seeing him, the accused barged on Sakthivel claiming
      to finish him while kicking and pushing him into the water canal. When
      he tried to climb up from the canal, the accused hit him with a wooden
      log on his head. The villagers present at the spot, then prevented the
F     accused while assaulting him on his head, thereby causing injuries to the
      accused. Thereafter, both the injured Sakthivel and accused were shifted
      to the Government Hospital, Pudukottai in an ambulance. Ultimately the
      Sakthivel succumbed to the injuries before reaching the Hospital.
            3. Sub-Inspector Ramaswamy—PW-23 registered an FIR
G     (Ext. P1) against the accused for the offences punishable under Sections
      302 and 324 of IPC in Crime No. 47 of 2009. Circle Inspector
      Subhakumar—PW-24, undertook the investigation, visited the place of
      occurrence, prepared observation mahazar and drew the rough sketch
      (Ext. P7). The alleged weapon (wooden log—stick) (Ext. P8) used in
      the administration of crime was recovered from the spot. On the next
H     day, he conducted inquest vide report (Ext.P9) and dead body of the
     KUMAR v. STATE REPRESENTED BY INSPECTOR OF                               349
               POLICE [N. V. RAMANA, J.]

deceased Sakthivel was sent for postmortem. Subsequently, nd
                                                                        the   A
accused—appellant was reported to be arrested on 22 August, 2009.
The I.O. recorded the statements of Dr. Lavanya, the Doctor, who treated
PW-2 (Arumugham), and Dr. Illayaraja, who conducted postmortem of
the deceased. Thereafter the authorities seized the clothes of the deceased
reported in the seizure report being M.O.4 to M.O.6. After completing
                                                                              B
the investigation, the I.O. submitted his report to the learned District
Munsif-cum-Judicial Magistrate levelling charges against the accused
for the offences punishable under Sections 324 and 302 of IPC. The
learned Judicial Magistrate in turn committed the case to the Sessions
Court. The accused pleaded not guilty and claimed to be tried.
       4. The Sessions court by order, dated 07.10.2013, awarded              C
conviction to the accused and directed him to suffer rigorous imprisonment
for life for the offence under Section 302 of IPC and to pay a fine of
Rs. 5,000/-, in default of payment of fine, to further suffer an
imprisonment for a period of one year. The accused was also sentenced
to suffer rigorous imprisonment for a period of one year for the offence      D
under Section 324 of IPC. Both the sentences were however directed
to run concurrently. The main reasons given by the trail court for
maintaining the conviction against the appellant-accused are-
      i. That the motive concerning the verbal spat between the accused
          and the deceased Sakthivel is proved by PW-1, PW-6, PW-8            E
          and PW-7.
      ii. That the delay was sufficiently explained, as the police were
          busy in conducting investigation in other case.
      iii. That the recovered objects from the scene of crime has been
           proved before the court.                                           F
      iv. That the injury on the accused has been attributed to a scuffle
          between the deceased and the crowd, which stands
          corroborated by the witness, statement of PW-2, PW-3 and
          PW-5.
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      v. The trial recognizes that there were no step taken to identify
          the injury on the accused.
      vi. That the mere wrong entry of timing in the inquest report,
          would not vitiate the post mortem report much less the
          prosecution case itself.
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350              SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A           vii. That on the aspect of arrest, it is an acceptable inference, that
                 the accused was forcefully discharged by the police personnel
                 on 21.08.2009, and was confined by the police for one whole
                 day, and the arrest was only shown on 22.08.2009. Further
                 as there was no confession obtained due to such action by
                 the police, the entire case cannot be vitiated.
B
            viii. That publication of the story in a newspaper cannot be relied
                  on, as the defense has not taken steps to mark the evidence
                  or examine the editor.
            ix. That the case was proved by the prosecution beyond reasonable
C                doubt.
            5. Aggrieved, the accused-appellant approached the High Court.
      By the impugned order, the High Court dismissed the appeal of the
      accused on the following grounds-
            i.   That the contention of the defense concerning the statement
D                of the PW-2 about recording by the police, just after the
                 incident is a flimsy contradiction, which does not have the
                 force to dislodge the entire case.
            ii. That PW-2’s cross examination after re-calling the witness,
                cannot be taken into consideration.
E
            iii. That failure to provide reasons for the injuries sustained by
                 the accused, would not be sufficient to dislodge the
                 prosecution’s case.
            iv. That the nature of weapon and the injury would not mandate
                reduction in the sentence from the charge of murder to
F
                grievous injury.
            6. Aggrieved, by the concurrent finding of the fact, the accused
      has approached this court.
            7. The main thrust of argument by the learned counsel for the
G     appellant is that the entire prosecution case is a fabricated in such a way
      so as to implicate the appellant in the case as culprit. The real
      circumstances of the case have been concealed by the prosecution in
      order to help the complainant. Even the motive projected by the
      prosecution is false. There was no complaint lodged by the deceased or

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     KUMAR v. STATE REPRESENTED BY INSPECTOR OF                                  351
               POLICE [N. V. RAMANA, J.]

his wife against the accused, which itself proves that the motive ascribed       A
to be the alleged verbal spat between the deceased and accused at the
drama in the village on the eve of Kaliammantemple festival. Secondly,
there was huge delay in registering the FIR and the delay was caused
only to implicate the appellant. On the fateful day i.e. 20.8.2009 at about
6:23 P.M. police got the information about the occurrence, but no FIR
                                                                                 B
was lodged. At about 7:30 P.M.police visited the spot, conducted enquiry,
suspected PWs 1 to 3 to be the real culprits and took them into their
custody. Even PW2 informed police that he received injuries due to the
attack made by the deceased. The appellant has also injured in the fight
at the hands of deceased. But, police did not register the complaint on
the basis of actual occurrence, and the courts below failed to appreciate        C
the true aspects of the case particularly non-explanation by the prosecution
as to the injuries sustained by the accused. Thereafter, the accused—
appellant and deceased were sent to the hospital in same ambulance
and till the discharge of the appellant from hospital, police did not suspect
him as a culprit. It is only thereafter, police in connivance with complainant
                                                                                 D
cooked up a case against the appellant, the complaint was suitably
prepared and FIR (Ext. P1) registered. Even at the time of framing
charges against the accused a charge under Section, 323, IPC was first
charged but the trial Court convicted the appellant under Section 324,
IPC. The trial Court as well as the High Court failed to notice the
suppression of facts by the prosecution and came to a wrong conclusion           E
without appreciating the evidence in accordance with settled principles
of law, and thereby rendered a perverse judgment which is required to
be set aside by the interference of this Court.
       8. On the other hand, learned counsel for the State supported the
view taken by the Courts below and submitted that having regard to the           F
facts and circumstances, the trial Court assessed them in proper
perspective and delivered a reasoned judgment. The conviction and
sentence passed against the accused has also been affirmed by the High
Court by categorical findings which does not require interference of this
Court.
                                                                                 G
       9. Having heard learned counsels for both parties, we acknowledge
that this case is a direct evidence case and based on statement of
eyewitnesses which mandates us to observe statements of certain eye
witnesses for the disposal of this case at hand.

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352            SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A           10. A bare perusal of the evidence deposed by the complainant—
      PW-1 (Rajendran) shows that while the complainant was in the company
      of Arumugham (PW2) and Subramanian (PW-3)having idliis sold by
      Sumathi (PW4), the accused appeared and picked up the assault on
      him. In the process of interference to prevent the assault, PW2 also got
      injured. Soon thereafter, with the appearance of his brother-in-law
B
      (Sakthivel—deceased) at the spot, the accused pushed him into canal
      and assaulted with a wooden log on the forehead of Sakthivel. Then
      Rajinikanth (PW15) and Balasundaram (PW19)—another co-brother
      of the complainant, called the ambulance and took the accused and
      Sakthivel to the hospital while the complainant followed them on two-
C     wheeler and at the hospital he came to know about the death of the
      deceased, then he went to Udayalipatti police station and lodged complaint
      (Ext.P1).
              11. The deposition of PW-2—Arumugham @ Iyyer, an eyewitness
      to the incident, is to the effect that when he was preventing the accused
D     who was about to assault PW1, he sustained injuries. At that point of
      time, the deceased came with a wooden log in his hand and fought with
      the accused. He has also asserted that the ambulance came after police
      examined him and took his signature. He has further made it clear that
      many persons, including nearby shop owners, witnessed the incident,
      but it is a matter of record that except himself, two brothers-in-law of
E     the deceased and Rasu, no one else was made witness. He further
      deposed that the deceased assaulted the accused with the wooden log
      on head due to which the accused got injury. When the deceased was
      trying to hit the accused for a second time, he intervened due to which
      he got injury on his wrist. On suspicion, police took him along with PWs
F     1 and 3 to the Keeranur Police Station where they detained him for the
      night and then sent to Government Hospital on the next day morning.
      Before his examination in chief, they warned him that if he does not
      depose as instructed, they will foist a case against him.
            12. In his cross-examination PW-2 reveals as under-
G           Immediately after the occurrence, Udayalipatti police came to
            the place of occurrence and enquired about the incident and get
            my signature after recording my statement. They recorded my
            statement, before the arrival of 108 ambulance and before we
            took Sakthivel and Kumar. At the time, rajendra was also presented
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    KUMAR v. STATE REPRESENTED BY INSPECTOR OF                             353
              POLICE [N. V. RAMANA, J.]

      and the police recorded his statement and obtained his signature.    A
      The police examined me only prior to the arrival of 108 ambulance
      and never examined me after the arrival of 108 ambulance.
      On recalling the PW-2, he states as under-
       The deceased Sakthivel assaulted the accused in his head
       with the wooden log. I cam there and the accused sustained          B
       injuries in his head before I reached there. When I
       intervene the second blow by the Sakthivel, I sustained
       injuries in my writ. The accused Kumar also sustained
       injuries on his head. The Sakthivel fell down in the channel
       due to the forceful attack by him and the accused also fell         C
       down.
                                                 (emphasis supplied)
It may be noted that PW-2 is not declared as hostile by the prosecution.
      13. In his cross-examination, PW3—Subramanian, another               D
eyewitness and close relative of the deceased, also admitted that the
occurrence took place at 6 p.m. and the scuffle between the accused
and deceased was for five minutes. By the time the occurrence was
completed, there was darkness. He further admits that he was examined
by the Inspector of Police at the place of occurrence and PWs 1 & 2
were also present at that time. He was later taken to the Keeranur         E
police station along with PWs 1 and 2.
      14. That PW-4 (Sumathi), who is alleged to be selling idliis, has
not supported the case of the prosecution.
       15. PW5—Rasu, corroborates the version of PW-2, wherein he
                                                                           F
states that both the accused and the deceased had held sticks. During
the scuffle both of them fell into the channel and both were unconscious
by the time they were pulled up.
      16. Rajinikanth—PW-15 deposed that at 7:15 P.M., he went to
Kurunthankudi bridge upon hearing about the occurrence and found the
accused and deceased lying there and took them to Government Hospital      G
in ambulance. Then he came back to the place of occurrence along with
Village Administrative Officer (PW-14) where police prepared a rough
sketch and took his signature. However, in his cross-examination he
deposed that, by the time he reached the place of occurrence, police had
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354            SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A     already arrived there and thereafter ambulance came. He further stated
      that PW-1—Rajendran narrated to the police everything about the incident
      and police reduced it into writing and his signature was also obtained.
             17. In his evidence, PW19—Balasundaramhas also stated
      categorically that the ambulance came to the place of occurrence after
B     the arrival of police and they seized the wooden log. According to him
      doctors declared the death of Sakthivel at about 8.45 p.m. and
      Rajendran—complainant—PW1 was not present at that time, but
      Inspector, Sub-Inspector and Head Constable were present who examined
      him and PW15, but did not obtain his signature.
C            18. Head Constable Mohan—PW20, in his chief examination
      adduced that at 6.23 p.m. on the day of incident, while he was going
      towards Ulaghanathapatti in connection with investigation in some other
      case, he received a call on his mobile phone about the occurrence. He
      immediately passed on the message to his seniors and called an
      ambulance. At 7:00P.M., when he reached the place of occurrence,
D     they found the deceased lying at Bridge Stone, Kurunkulam with injuries
      while the accused was lying at road side. He immediately sent them to
      Government Hospital at 7:05 P.M. However, in the cross examination,
      he stated that he had enquired PW-1—brother-in-law of the deceased
      and did not see the wounded accused and deceased when he reached
E     the place of occurrence.
             19. We have also gone through the statements of PWs 6, 7, 8, 9,
      10, 11, 12, 13, 16, 22 etc. Most of them are hearsay witnesses and nothing
      important seem to come out from their depositions.
             20. Contrary to what Rajendran—Complainant (PW-1) deposed,
F     a combined reading of the evidences adduced by PWs 2, 3, 5, 15, 19 and
      20 would make it abundantly clear that both the accused and the deceased
      have participated in the fight with wooden logs, accused has got head
      injury at the hands of deceased, PW2 (Arumugham) himself also received
      injury at the hands of accused while he was trying to protect PW1
G     (Rajendran) from the assault of the accused, police reached the place of
      occurrence within ten minutes of the occurrence, that is well before the
      arrival of ambulance and Rajendran—PW1 (complainant), Arumugham
      @ Ayyar (PW2), Subramanian (PW3) and other witnesses described
      the incident to the police who then examined the persons present there,
      rough sketch was prepared and their signatures were also obtained.
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     KUMAR v. STATE REPRESENTED BY INSPECTOR OF                               355
               POLICE [N. V. RAMANA, J.]

       21. Having observed the various depositions, we are of the             A
considered opinion that there are four crucial aspects herein, which should
be discussed and elaborated upon. The above evidence if examined from
the perspective of time, the overall impression that can be drawn from
the foregoing discussion is that the occurrence took place at around 6.15
p.m., and the Head Constable Mohan (PW-20) received information of
                                                                              B
occurrence at 6:23 P.M. and he passed on the message to Sub-Inspector
and Circle Inspector at 6:26 P.M., soon thereafter ambulance arrived at
the spot of occurrence at 6.30 p.m. At that point of time, Police have
enquired PW-1, PW2 and other witnesses, drawn report, sketch map
etc., and took their signatures and sent the injured persons to hospital.
That sequence of incidents shows that already investigation was started       C
by police. That means the information provided by PWs 1, 2 and other
witnesses at about 6:30 P.M. at the place of occurrence should have
ideally been the basis of the F.I.R. Whereas the F.I.R. (Ext.P1) showsth
that the information was received at police station at 9.30 p.m. on 20
August, 2009.
                                                                              D
      22. We may note that this case involves a fight between two
persons-accused and the deceased.Majority of the eye witnesses
including PW-1, PW-3, have categorically stated that accused-appellant
was the aggressor. Interestingly, the PW-2 states that, even the Sakthivel
assaulted the accused by a wooden log on the head, his statement should
be given credence for eight major reasons-                                    E

      i.   That the Police has subdued the statement of PW-2 taken
           moments after the incident.
      ii. That PW-4 corroborates the version of PW-2.
      iii. That the injury on the accused has not be accounted for.           F
      iv. That the accused was also noted to be injured by all the
          prosecution witness, without specific statements as to the
          nature and all the prosecution witnesses state that the injury
          on the accused were imputed by the by-standers without much
          clarity.                                                            G
      v. That the mode of arrest by the police to have unauthorizedly
         discharged the accused from the hospital and illegally
         confining him for a day in police custody.

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356             SUPREME COURT REPORTS                            [2018] 5 S.C.R.


A            vi. Active botch-up of investigation by the police authorities.
             vii. Unexplained delay in registering the FIR in the police station.
             viii. He is alleged to be the person, who had been injured in the
                   incident.
B            23. From the account of eye witness, we may observe that there
      are at least three different versions which substantially weakens the
      prosecution’s case.
             24. On the point of suppression of genesis of the crime, PW-20
      (head constable) categorically states that he was present before the
C     Ambulance had reached the place. Even though he was extensively
      cross-examined, he has not budged from his position that there was no
      recording of any statement before the Ambulance recorded. On the
      contrary PW-2 categorically remarks that a statement was recorded by
      PW-20 before the ambulance arrived. Although the High Court has
      discredited the evidence of PW-2 as the part which provides the aforesaid
D     details was on recalling after few days, therefore, in light of possibility of
      being won over, the credibility of the statement made by PW-2 needs to
      be viewed with this background fact. However, we fail to understand
      internal logic of such assumption, when the prosecution has not declared
      the witness as hostile and more so, when his narrative is corroborated
E     by other witnesses.Therefore, PW-2’s evidence needs to be taken into
      fold.
              25. It is matter of record that the alleged accused-appellant, was
      arrested in a hurried manner after the day of the incident from the hospital.
      It is also stated that the police authorities in an unusual manner got the
F     appellant discharged from the hospital and kept him illegally confined for
      a day. Moreover, PW-2 has categorically stated the following on the
      action of the police-
             The police enquired me about the incident and I narrated the same.
             The police and the Sub-inspector of Police on suspicion taken
             myself, PW-1 (Rajendran) and PW-3 (Subramanian) to Keeranur
G
             Police Station. I was detained in Keeranur police station during
             the night and on the next day morning, I was sent to Keeranur
             Government Hospital for treatment. Before I was examined
             in chief, they warned me that if I have not deposed as

H
     KUMAR v. STATE REPRESENTED BY INSPECTOR OF                                     357
               POLICE [N. V. RAMANA, J.]

       instructed them, they will foist a case against me and only                  A
       for that reason, I have stated like that.
                                                       (emphasis supplied)
The action of investigating authority in pursuing the case in the manner
which they have done must be rebuked. The High Court on this aspect,
correctly notices that the police authorities have botched up the arrest            B
for reasons best known to them. Although we are aware of the ratio laid
down in Parbhu v. Emperor, AIR 1944 PC 73, wherein the court had
ruled that irregularity and illegality of arrest would not affect the culpability
of the offence if the same is proved by cogent evidence, yet in this case
at hand, such irregularity should be shown deference as the investigating           C
authorities are responsible for suppression of facts.
       26. The criminal justice must be above reproach. It is irrelevant
whether the falsity lie in the statement of witnesses or the guilt of the
accused. The investigative authority has a responsibility to investigate in
a fair manner and elicit truth. At the cost of repetition, I must remind the        D
concerned authorities to take up the investigation in a neutral manner,
without having regards to the ultimate result. In this case at hand, we
cannot close our eyes to what has happened; regardless of guilt or the
asserted persuasiveness of the evidence, the aspect wherein the police
has actively connived to suppress the facts, cannot be ignored or
overlooked.                                                                         E

       27. Another point put forth by the learned counsel on behalf of the
accused—appellant is that the prosecution has not explained the injuries
suffered by the accused and hence prosecution case should not be
believed. At the outset, it would be relevant to note the settled principles
of law on this aspect. Generally failure of the prosecution to offer any            F
explanation in that regard shows that evidence of the prosecution
witnesses relating to the incident is not true or at any rate not wholly true
[See :Mohar Rai and Bharath Rai v. The State of Bihar, 1968 CriLJ
1479].
      28. In Lakshmi Singh and Ors. v. State of Bihar, 1976 CriLJ                   G
1736 this Court observed:
       “Where the prosecution fails to explain the injuries on the accused,
       two results follow :

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358            SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A           (1) that the evidence of the prosecution witnesses is untrue;
            and
            (2) that the injuries probabilise the plea taken by the
            appellants.
          It was further observed that:
B
            In a murder case, the non-explanation of the injuries sustained by
            the accused at about the time of the occurrence or in the course
            of altercation is a very important circumstance from which the
            Court can draw the following inferences :

C               (1) that the prosecution has suppressed the genesis and
                the origin of the occurrence and has thus not presented
                the true version;
                (2) that the witnesses who have denied the presence of the
                injuries on the person of the accused are lying on a most
D               material point and, therefore, their evidence is unreliable;
                (3) that in case there is a defence version which explains the
                injuries on the person of the accused assumes much greater
                importance where the evidence consists of interested or inimical
                witnesses or where the defence gives a version which
                competes in probability with that of the prosecution one.”
E
             29. In the case on hand, admittedly, the accused—appellant was
      also injured in the same occurrence and he too was admitted in the
      hospital. But, prosecution did not produce his medical record, nor the
      Doctor was examined on the nature of injuries sustained by the accused.
      The trial Court, instead of seeking proper explanation from the prosecution
F
      for the injuries sustained by the accused, appears to have simply believed
      what prosecution witnesses deposed in one sentence that the accused
      had sustained simple injuries only.
             30. From the evidence of I.O.—PW24 it is apparent that in the
      scuffle PW2 (Arumugham) received “simple” injuries and he had taken
G     the statement of Dr. Lavanya (PW17) who treated PW2. He had also
      examined Dr. Illayaraj (PW18) who conducted postmortem on the body
      of the deceased. But, in the case of accused—appellant, PW24—I.O.
      admits that he was aware of the fact that the accused-appellant was
      admitted as in-patient and the accused-appellant had sustained injuries.He
H
     KUMAR v. STATE REPRESENTED BY INSPECTOR OF                                359
               POLICE [N. V. RAMANA, J.]

further states that neither did he arrest the accused nor he examined the      A
Doctor in regard to the injuries of accused. In the circumstances in
which the deceased, accused and also PW-2 (Arumugham) got injuries,
it is obligatory on the part of I.O. to examine the Doctor and seek
information about the injuries sustained by the accused and the same
should have been made part of the record. A duty is cast on the prosecution
                                                                               B
to furnish proper explanation to the Court how the person who has been
accused of assaulting the deceased, received injuries on his person in
the same occurrence. We may note that the injuries alleged to have
been caused are not properly explained. An alternative story is set up
wherein the injuries are attributed to mob justice, such allegations without
substantive evidence cannot be accepted.                                       C
       31. Coming to the other aspect of the case, motive of the accused
to commit the crime is ascribed to the previous quarrel occasioned
between the accused and the deceased during a drama at a village festival.
Generally, in case prosecution desires to place motive of the accused as
a circumstance, like any other incriminating circumstance, it should also      D
be fully established. We are alive to the fact that if the genesis of the
motive of the occurrence is not proved, the ocular testimony of the
witnesses as to the occurrence could not be discarded only on the ground
of absence of motive, if otherwise the evidence is worthy of reliance.
But in the case on hand, as we have already discussed in the above
paragraphs, the evidence of direct witnesses is not satisfactory and on        E
the other hand, it is demonstrated that the deceased hit the accused on
his head with the wooden log besides the testimony from the eye witnesses
that there was scuffle. In such a factual situation, certainly motive may
act as a double-edged sword.
       32. In the light of the settled law thus by this Court and also from    F
what is clear from the evidence, there is absence of extreme cruelty,
even if it assumed that accused hit the deceased with the log. Had there
been a strong motive to do away with the life of deceased, generally
there would have been more fatal injuries caused on the deceased not
by a log but by utilizing more dangerous weapons. These circumstances          G
would tell us that there is no reason to believe that motive was entertained
by the accused in the back drop of quarrel that took place during drama
at the village festival, prior to the date of occurrence. In as much as the
prosecution laid the foundation for the commission of crime by the accused
in the said quarrel as an element of motive, in the absence of positive
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360              SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A     proof of such motive, prosecution has to face the peril of failure in
      establishing that foundation.
             33. Now coming to other charge under Section 324 of IPC, for
      causing injuries to Arumugham @ Ayyar [PW-2]. In light of the
      deficiencies noted above, it can be easily said that even the charge under
B     Section 324 of IPC is not established. The aforesaid conclusion is clearly
      buttressed by the fact that the injured witness himself has attributed the
      injury on him to the deceased, instead of the accused. In such a situation
      conviction of the accused on the charge of Section 324 cannot be
      sustained under law.
C            34. Taking stock of the circumstances and depositions of
      prosecution witnesses in this case, it would be difficult to hold that
      prosecution has laid the case on real circumstances and proved its case
      beyond reasonable doubt. We are surprised at the way in which Courts
      below have perceived the facts and circumstances of this case. We are
      not in agreement with the views drawn by the trial Court as well as the
D     High Court while dealing with the matter.
             35. Normally this Court does not interfere with the concurrent
      findings recorded by the Courts below, but in this case we find certain
      exceptional circumstances as narrated above, considering these aspects
      we feel that this is a fit case for our interference. In our opinion, instead
E     of dealing with the intrinsic merits of the evidence of witnesses, both the
      Courts below have acted perversely. Once we arrive at the conclusion
      that we cannot lend credence to the genuineness of the F.I.R. and the
      prosecution case, there is no need of further enquiry as the assertion
      made by the prosecution are notproved beyond reasonable doubt. In the
F     peculiar facts and circumstances of the case, definitely the benefit of
      doubt goes to the accused—appellant. Viewed in that angle, the judgments
      of the Courts below awarding conviction and sentence to the accused—
      appellant requires to be set aside.
            36. In the result, the appeal is allowed and the conviction and
G     sentence awarded by the Courts below is set aside. The accused—
      appellant stands acquitted from all the charges levelled against him. The
      appellant is stated to be in jail. He may be set at liberty forthwith, if not
      required in any other case.


H     Devika Gujral                                                  Appeal allowed.