Holding

The conviction under Section 302 IPC cannot be upheld as the identity of the accused was not proved beyond reasonable doubt.

Summary

The case involved six sandalwood smugglers accused of shooting a forest guard and injuring a gardener. The FIR described the assailants only as unidentified persons in a group of about 50, and no names were recorded. The trial court convicted all six under Section 302 IPC, but the High Court acquitted five, upholding only the appellant's conviction. The Supreme Court examined material inconsistencies between the FIR and witness statements, noted the implausibility of identification in moonlight and by torchlight, and observed that the informant’s delayed naming of the accused was unreliable. It held that the prosecution failed to establish the appellant’s identity beyond reasonable doubt and that the benefit of doubt must apply, especially since the other accused were acquitted. Consequently, the appellant’s conviction was set aside and the appeal allowed.

Issues considered

Whether the identity of the accused was established beyond reasonable doubt.
Whether the FIR’s failure to name accused and subsequent naming constitutes an impermissible subsequent improvement.
Whether a conviction can be sustained against one accused when co‑accused have been acquitted on similar evidence.
Whether the benefit of doubt principle applies in the absence of reliable identification.
Whether identification of the accused in moonlight and by torchlight is reliable evidence.

Legislation cited

Indian Penal Code, 1860s. 302

Subjects

murderculpable homicideidentification of accusedbenefit of doubtFIRprosecution evidencesandalwood smugglingconviction overturnedcriminal law

Judgment

[2008] 11 S.C.R. 888

"i
A TAMILSELVAN
v.
STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU
(Criminal Appeal No. 1071 of 2006)
AUGUST 5, 2008
8
(ALTAMAS KABIR AND MARKANDEY KAT JU, JJ.) .,
Criminal Trial:
Murder/Culpable homicide - Accused sandalwood
c smugglers allegedly shot down a forest guard and injured oth-
ers - Trial Court found six accused persons guilty of commit-
ting offence of murders punishable under S.302 /PC and sen-
tenced them to life imprisonment - High Court acquitted all
the accused except appellant - Correctness of - Held: No-
D body named as accused in FIR but later accused persons by
name have been implicated - Material inconsistencies found
between version given in FIR and deposition made before trial
Court - Prosecution witnesses could not have identified any of
the accused merely by moonlight or in the light of a torch a/leg-
E edly carried by accused - Thus, identity of accused not satis-
factorily established - On facts, prosecution failed to prove its
case beyond reasonable doubt - Since case of accused-ap-
pe//ant not different from accused nos. 2 to 6 who have been
acquitted by the High Court, conviction of appellant no. 1 alone
F can not be upheld - At any event, in the facts and circumstances
of the case, benefit of doubt has to be given to appellant.
):

Informant, a Forest Guard lodged an FIR in the Po-
lice Station stating that some Sandalwood Smugglers
shot c;lown a forest guard and injured a gardener while
G they were on vigilance duty in the forest area. Police in-
vestigated the matter and submitted the charge sheet
against the accused persons. Trial Court found accused
nos.1 to 6 guilty of committing the offence of murder pun- 't
ishable under S.302 IPC and sentenced them to life im-
H 888
TAMILSELVAN v. STATE REP. BY INSPECTOR 889
OF POLICE, TAMIL NADU

prisonment. On appeal, the High Court acquitted accused A
nos. 2 to 6 but upheld the conviction and sentence as
against accused No.1. Hence the present appeal.
Allowing the appeal, the Court
HELD: 1.1 On perusal of the FIR, it appears that no- B
body has been named as an accused in the FIR. The ac-
cused have been described as unidentified persons in a
group consisting of 50 persons. The FIR was lodged on
28.1.1996 at 6.30 a.m., whereas the date and time of the
occurrence was 27 .1.1996 at 10.30 p.m. Thus there is a c
· time gap of eight hours between the time of the occur-
rence and the lodging of the FIR. (Para - 6) [893-E-F]
1.2Various material inconsistencies have been found
between the version given in the FIR and in the deposi-
tion before the trial court. It is difficult to accept the ver- D
sion of the prosecution witnesses that they could have
identified any of the accused merely by the moonlight. In
the evidence of the prosecution witnesses it is stated that
the accused were carrying torches, but there is no indi-
cation whether the victims, including the deceased, the E
Forest Guard and other a Gardener, who sustained fire
injuries, carried torches. Since it was the accused who
allegedly carried torches, it is difficult to believe how the
prosecution witnesses could have identified the assail-
ants. The position would have been different if the forest F
guards had been carrying torches and had been point-·
ing them at the assailants, but here the position is just the
reverse. In fact due to the torches of the assailants the
prosecution witnesses would have been partially blinded
by the light of the torch, and would not have been able to G
identify anybody. (Paras - 7 & 9) [893-G,H, 894-C-D]
1.3 Nobody has been named as an accused in the
FIR. It is only later that the accused 1 to 6 have been impli-
cated by name. The FIR was lodged 8 hours after the inci.;
dent. Thus there was opportunity of subsequent improve- H
890 SUPREME COURT REPORTS . [2008] 11 S.C.R.

A ment in the prosecution case. PW 1, the Forest Guard,
the first i.nformant, has stated in his deposition before the
Trial Court that he had not mentioned the names of the
accused in the FIR because he was shocked due to the
assault and because of the death of the another Forest
8 Guard, ·and hence the names of the accused did not strike
his mind. This version of the informant cannot be accepted 1
because the FIR was not lodged immediately after the in-
cident, but 8 hours thereafter. Hence the shock in the mind
of the informant would have subsided after these 8 hours,
c and there was no good reason why he did not name the
accused in the FIR, if he had actually seen and identified
them. (Para - 10) [894-E-F,G,H]
1.4 PW-3, the Gardener, in his evidence has stated that
he told the police during the investigation that some uni-
D dentifiable unknown persons had fired on him and others.
This also corroborates the defence version that in fact no
assailant was identified by the prosecution witnesses, and
it Was only a subsequent improvement which was sought
to be made in the prosecution case. PW. 3 has also stated
E that after the incident the police inspector did not ask him
to identify the accused. Since he has stated that unidenti-
fied persons had fired on him and the deceased, his ver-
sion in the examination-in-chief that accused no.1 had fired
at them cannot be believed. This Court is of the opinion
F that unidentified persons fired at the deceased and another.
At any event, the benefit of doubt has to be given to the
).
appellant. (Paras - 14 & 15) (895 G,H, 896-8,C]
1.5 Another inconsistency in the deposition of the
informant, PW 1 is that while in his cross-examination he
G has mention.ed that accused no.1 had fired from a coun-
try made gun due to which the deceased, the Forest Guard
and another, the Gardener sustained fire injuries, but in
his cross-examination he has stated that when accused
no.1 fired at him nothing happened to him or others but
H only the Gardener sustained wounds. There is no men-
~

TAMILSELVAN v. STATE REP. BY INSPECTOR 891
OF POLICE, TAMIL NADU
.., tion in the cross examination that deceased also sus- A
tained fire injuries by the firing of accused no.1. (Para -
11) [895-A,B,C]
2.1 It appears from the evidence that about six uni-
dentified persons had fired which caused the death of a
forest Guard and injuries to a Gardener, and that the rest B
~ had thrown stones, but the identity of these assailants
was not satisfactorily established, particularly since it was
10.30 p.m. in the night and there was no light except moon-
light. It would be unsafe to uphold the conviction of the
appellant on these facts, and the appellant has to be given c
the benefit of doubt which is an established principle in
criminal law. Furthermore, there is no evidence .to indi-
cate that of the six persons who are alleged to have fired,
it was the shot fired by the appellant which caused the
death of the deceased. (Para - 12) [895 C D E] D
2.2 The case of the appellant is not very different from
)"' that of accused nos. 2 to 6 because in the evidence it has
been stated that all the six accused had fired. Since ac-
cused 2 to 6 have been acquitted, conviction of appellant
no.1 alone cannot be upheld. (Para - 13) [895 E,F] E

2.3 On the facts of the case the prosecution has not
been able to prove its case beyond reasonable doubt.
( Hence, the conviction of the appellant under Section 302
and other provisions of IPC is set aside. (Para -17) [896 E,F] F
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1071 of 2006
From the final Judgment and Order dated 9/11/2004 of
the High Court of Judicature at Madras in Criminal Appeal No.
G
1438 of 2002
M. Karpaga Vinayagam, B. Balaji, R. Rajeswaran,
...-
· Vinayagam Balan and Satya Mitra Garg for the Appellant.
V.G. Pragasam for the Respondent.
H
892 SUPREME COURT REPORTS [2008] 11 S.C.R.

A '-' - The Judgment of the Court was delivered by
. .
MARKANDEY KAT JU, J. 1. This appeal has been filed
against the impugned judgment of the Madras High Court dated
9.11.2004 in Criminal Appeal No. 1438 of 2002.
s 2. Heard learned counsels, Shri M. Karpagavinayagam
for the appellant and Shri V. Kanagaraj for the respondents.
3. Before the Trial Court there were 10 accused persons
accused under Section 302 and other provisions of the IPC.
Accused nos.1 to 6 were found guilty under Section 302 and
C the other provisions of the IPC by the Trial Court and they were
convicted to life imprisonment and awarded various other pun-
ishments under various other provisions of the IPC.
4. On appeal before the High Court, accused nos.2 to 6
were acquitted but the conviction of accused no.1, the appel-
0
lant before us, under Section 302 etc. was upheld. Aggrieved,
the accused no.1 has filed this appeal before us.
5. The F.l.R. in the case was filed by one S. Elangovan,
Forest Guard. The FIR reads as follows:
E "To the Inspector of police, Ayilpatti police station, subject
the complaint regarding the death of Shri Swaminathan,
Forest Guard, due to the firing of sandal wood smugglers
in Pilenadu reserved forest during the prevention of
smuggling activity duty. Humbly submitted, yesterday
F 27.1.1996 night about 10.30 p.m. myself along with Shri
Kaliaperumal, Forest Guard of Pilenadu Beat, Shri
Ramalingam, Forest Guard of Pudupatti West beat, Shri
Rajendran, Forest Guard of Pilnadu North beat, Shri
Swaminathan, Forest Guard of Namakkal range currently
G in the special duty in Rasipuram range. Chinnamnian
Forest Guard and Raja the gardener were performing the
vigilance duty in Kolladedu passage in Vialankuttai in
Kanavai Patti village which is about % kilometers from the
eastern boundary in Pilenadu Reserved Forest. At that
H time we saw a crowd coming towards us having
..,.
___
""jl
, TAMILSELVAN v. STATE REP. BY INSPECTOR 893
OF POLICE, TAMIL NADU [MARKANDEY KAT JU, J.]
'f·
sandalwood log~ on their heads. They alerted ourselves A
and I fired in the air once with my double-barreled gun,
warning them to download the wooden blocks. Immediately
the assailants also fired at us from their direction. Mr.
Ramalingam, Forest Guard, who was standing near to
me, also fired once cautioning the assailants. We came B
to know that the assailants would be in a group of 50 to 60
' in numbers. The above said persons after downloading
the wooden blocks came towards us pelting stones and

., f
firing at us. That time Shri Swaminathan amoung us fell
down on the spot after being shot down. As there was
threat to our lives we ran away from the spot and came out
c
of the reserved forest. After coming out of the forest I gave
information to the Forest Ranger. The Forest Ranger came
with a team and along with them I visited the place of
occurrence. We found Swaminathan lying dead in a pool
of blood. The sandalwood smugglers were not on the spot. D
We made arrangements for protection of the dead body
)" and this complaint has been submitted after coming to the
police station, Ayilpatti. I humbly request you to take action
on my complaint. Copy to the Forest Ranger of Rasipuram
for appropriate action". E
6. On a perusal of the above FIR, it appears that nobody
has been named as an accused in the FIR. In column 6 at the
beginning of the FIR the accused have been described as 'uni-
dentified persons in a group consisting of 50 persons'. This
FIR was lodged on 28.1.1996 at 6.30 a.m., whereas the date F
-! and time of the occurrence was 27.1.1996 at 10.30 p.m. Thus
" there is a time gap of eight hours between the time of the occur-
rence and the lodging of the FIR.
7. Although nobody was named in the FIR as an accused,
Elangovan, Forest Guard (who lodged the FIR) in his deposi- G
tion before the Trial Court has named accused 1 to 6 as the
persons who fired guns in the incident. We have carefully gone
t' through the evidence before the Trial Court and we find various
material inconsistencies between the version given in his FIR
and in the deposition before the trial court. H
..

894 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 8. Before dealing with these glaring inconsistencies it may ....,
be pointed out that the incident occurred at 10.30 p.m. on
27.1.1996. It is alleged by the prosecution witnesses that they
identified the accused in moonlight. We find it difficult to accept
this version of the prosecution witnesses that they could have
B identified any of the accused merely by the moonlight. In the
evidence of the prosecution witnesses it is stated that the ac-
cused were carrying torches, but there is no indication whether
the victims, including the Forest Guard Swaminathan (de-
ceased) and Raju, Gardener, who sustained fire injuries, car-
e ried torches.
9. Since it was the accused who allegedly carried torches,
· we find it difficult to believe how the prosecution witnesses could
have identified the assailants. The position would have been dif-
ferent if the forest guards had been carrying torches and had been
D pointing them at the assailants, but here the position is just the
reverse. In fact due to the torches of the assailants the prosecu-
tion witnesses would have been partially blinded by the light of
the torch light, and would not have been able to identify anybody.
10. As regards the material contradictions we have already
E stated above that nobody has been named as an accused in
·the FIR. It is only later that the accused 1 to 6 have been impli-
.cated by name. It has already been noted above that the FIR
was lodged 8 hours after the incident. Thus there was opportu;;
nity of subsequent improvement in the prosecution case. PW
F .1- Elangovan, who was also the first informant, has stated in his
deposition before the Trial Court that he had not mentioned the
names of the accused in the FIR because he was shocked due
to the assault and because of the death of Swaminathan, and
hence the names of the accused did not strike his mind. We
G find it difficult to accept this version because the FIR was not
lodged immediately after the incident, but 8 hours thereafter.
Hence the shock in the mind of Elangovan would have been
subsided after these 8 hours, and there was no good reason
why he did not name the accused in the FIR, if he had actually
H seen and identified ther.1.
TAMILSELVAN v. STATE REP. BY INSPECTOR 895
OF POLICE, TAMIL NADU [MARKANDEY KAT JU, J.]
...,-
11 . Another inconsistency in the deposition of Elangovan A
is that while in his cross-examination he has mentioned that
accused no.1 (the appellant herein) had fired from a country
made gun due to which Swaminathan the Forest Guard and
Raju the Gardener sustained fire injuries, but in his cross-ex-
. amination he has stated that when accused no.1 fired at him B
)- nothing happened to him or others but only Raju sustained
wounds. There is no mention in the cross examination that
Swaminathan also sustained fire injuries by the firing of accused
no.1. Thus this is also a material inconsistency in the statement
of PW1- Elangovan.
c
12. It appears to us from the evidence that about six uni-
dentified persons had fired which caused the death of
Swaminathan and injuries to Raju, and that the rest had thrown
stones, but the identity of these assailants was not satisfactorily
established, particularly since it was 10.30 p.m. in the night and D
there was no light except moonlight. In our opinion it would be
)' unsafe to uphold the conviction of the appellant on these facts,
and the appellant has to be given the benefit of doubt which is
an established principle for criminal law. Furthermore, there is
no evidence to indicate that of the six persons who are alleged E
to have fired, it was the shot fired by the appellant which caused
the death of Swaminathan.

13. We are also in agreement with Shri Karpagavinayagam,
learned counsel for the appellant, that the case of the appellant
is not very different from that of accused nos. 2 to 6 because in F
). the evidence it has been stated that all the six accused had
fired. Since accused 2 to 6 have been acquitted we cannot up-
hold the conviction of appellant no.1 alone.
l
14. PW-3 Raju in his evidence has stated that he told the
' G
police during the investigation that some unidentifiable unknown
persons had fired on him and others. This also corroborates the
defence version that in fact no assailant was identified by the
t'
prosecution witnesses, and it was only a subsequent improve-
ment which was sought to be made in the prosecution case.
H
896 SUPREME COURT REPORTS [2008] 11 S.C.R.

"'{

A 15. It is curious to note that while PW-3 Raju mentioned in ':-
',--
his examination-in-chief that the appellant had fired with a country I
made gun which caused Swaminathan and him to sustain inju-
~
ries, in his cross- examination he has stated that in the police
investigation he said that unidentified and unknown persons fired
B at them. This is another glaring inconsistency in the deposition
of PW3-Raju. Raju has also stated that after the incident the f
police inspector did not ask him to identify the accused. Since
~
Raju has stated that unidentified persons had fired on him and
Swaminathan, his version in the examination-in-chief that ac-
r
c- cused no.1 had fired at them cannot be believed. We are of the ~

opinion that unidentified persons fired at Swaminathan and Raju.
At any event, the benefit of doubt has to be given to the appel-
lant.
16. Learned counsel for the appellant made several other
D submissions before us e.g. that no stones were recovered, there
were no stone injuries on anyone, there were no weapons on
'(
accused 1 to 6 at the time of their arrest, the pellets were not
sent for chemical examination, there was no test identification
parade, etc. but it is not necessary for us to go into these sub- L

E missions.
17. On the facts of the case we are of the opinion that the ~
prosecution has not been able to prove its case beyond rea-
sonable doubt. The appeal is, therefore, allowed. The convic-
tion of the appellant under Section 302 and other provisions of ·-,__
F IPC is set aside. The appellant shall be set at liberty forthwith r
unless required in some. other criminal case. A t-

'
18. Before parting with the case we would like to state that I-

learned counsels for both the parties argued the case before
l
us with great ability and deep knowledge of criminal law. ;...
~
S.K.S. Appeal allowed. t-
:I;-

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II

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