R.PRABHU vs THE INSPECTOR OF POLICE
- Court
- Madras High Court
2026:MHC:3906
CRL A No. 273 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15-09-2026
CORAM
THE HONOURABLE MR JUSTICE N. SATHISH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
CRL A No. 273 of 2021
CNR:{HCMA010687302021}
and
CRL A No. 211 of 2021,CRL MP No. 4862 of 2025
R.Prabhu
Appellant(s)
Vs
State rep by The Inspector of Police
Bhavani Police Station, Erode
Respondent(s)
CRL A No. 211 of 2021
CNR:{HCMA010627082021}
Mansoor Ahmad
Appellant(s)
Vs
State Rep By
The Inspector Of Police,
Bhavani Police Station, Erode District
(Cr.No.465/2009)
Respondent(s)
Both these Criminal appeals have been filed under Section 374(2) Cr.P.C.
seeking to set aside the judgment of conviction and sentence dated 11.03.2021
passed by the learned IV Additional District and Sessions Judge, Erode at
Bhavani in S.C.No.164 of 2010 and thus render justice.
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For Appellants : Mr.S.Vijayaraghavan
for Mr.B.Karthik in Crl.A.No.211 of 2021
Mr.A.Kumaraguru
for Mr.P.Srinivasan in Crl.A.No.273 of 2021
For Respondent : Mr.C.R.Malarvannan
Additional Public Prosecutor in both appeals
- - - -
COMMON JUDGMENT
(Judgment of the Court was made by N.SATHISH KUMAR, J .)
Challenging the judgment of conviction and sentence, dated 11.03.2021
in S.C.No.164 of 2010 by the IV Additional District and Sessions Court,
Bhavani, A-1 and A-2 have filed these criminal appeals. By the abovesaid
judgment, A-1 and A-2 were convicted and sentenced to undergo imprisonment
as stated below:
Conviction Sentence
A-1 - Section 302 of IPC To undergo life imprisonment and to pay a fine of
Rs.10,000/-, in default to undergo six months
rigorous imprisonment.
A-2 - Section 302 r/w 109 IPC to undergo life imprisonment and to pay a fine of
Rs.10,000/-, in default to undergo six months
rigorous imprisonment.
2.The brief facts of the prosecution case is as follows:
2.1.The deceased was running a medical shop in the name of Kamatchi
Medicals in Bhavani main road. P.W.1 is the wife of the deceased. A-1, A-2 and
one Rajagopal were friends. A-3 is the wife of Rajagopal. A4 is the friend of
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A-3. A-3 had illicit relationship with A-1 which was objected by the husband of
A-3. Thereafter, A-1 has arranged a beauty parlour shop for A-3. While the
thing stood thus, one Senthilkumar, who was running a medical shop, called A-3
for illegal relationship. When A-3 tried to inform the act of Senthilkumar to A-1,
th
4 accused objected her as the said Senthilkumar is the friend of A-4 and instead
of divulging the name of Senthilkumar, the name of one Shanmugam, owner of
Kamatchi Medicals could have been pointed out to A-1. It is in these
circumstances, on the date of occurrence, while the deceased Shanmugam, after
closing the shop at around 09.30 p.m., was returning to his house. P.W.3, who
was residing in nearby place, saw two persons coming in a bike in a high speed
and turning towards the direction of Erode and he saw the pillion rider
removing his shirt and at that time, he had also heard a noise of the deceased
Shanmugam. Immediately, he saw the deceased with acid injuries. When he
tried to hold the deceased, P.W.3 also suffered some burn injuries due to acid.
P.W.3 also informed P.W.2 about the incident. P.W.2, who was working in the
medical shop, rushed to the spot and found burn injuries on the deceased. P.W.3
had also informed P.W.1, the wife of the deceased and she has also rushed to the
spot. Before she reaches the spot, the face and mouth of the deceased were
completely burnt and the deceased was only showing signs and immediately he
was taken to Loganathan hospital and as they could not do anything, the
deceased was taken to the Government hospital in Erode and from there, he was
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referred to the Coimbatore Government hospital, where he succumbed to
injuries. When the deceased was in Erode Government Hospital, the deceased
informed P.W.1 by writing a word ‘Apollo’ in a paper. Since Apollo medical
shop is also situate in that place, P.W.1 was under an impression that the people
in the Apollo medical shop could have done something to her husband.
Thereafter, P.W.1 lodged a complaint Ex.P1 to the police.
2.2.P.W.5, on 14.06.2009, while coming near the place of occurrence
between 9.00 p.m. and 10.00 p.m., he saw two people coming in a bike and
threw the acid on the deceased and immediately, P.W.3 caught hold the
deceased. The deceased was taken to the hospital. According to P.W.5, he had
seen seen both the accused in the bike at the relevant point of time. After 8 to 9
days, he has seen both the accused in Bhavani police station. Thereafter, he
identified them in the court only.
2.3.On 14.06.2009 at about 09.30 p.m., P.W.6 has seen both A-1 and A-2
in front of Palanisamy Tea Shop. At that time, the deceased after closing the
shop was returning to his home. After some time, both the accused left the place
in the two wheeler and within 2 to 3 minutes, he heard the noise and at that
time, the deceased suffered acid burn injuries. P.W.3 also suffered injuries since
he has touched the deceased. They all took the deceased first to Loganathan
hospital and from there, to the Erode Government Hospital and later, he was
referred to the Coimbatore Medical College hospital.
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2.4.When P.W.13, medical officer attached to Revathi hospital, was in
hospital on 14.06.2009, at about 10.15 p.m., A-2 came to the hospital and stated
that some people threw Acid on him. He has seen acid burn injuries on his left
side elbow and neck, left cheek and after the first aid, A-2 left the hospital by
saying that he would take treatment in some other hospital.
2.5.P.W.18 took up the investigation on the basis of Ex.P.12, FIR
registered by the Sub Inspector of Police in Crime No.465 of 2009 and he went
to the place of occurrence and prepared Ex.P.13 observation mahazar and had
drawn rough sketch Ex.P.14 in the presence of P.W.7 and one Suresh. He also
collected the remains of the acid and other material objects from that place
under a cover of mahazar. He examined the witnesses and recorded their
statements. Thereafter, he went to the Coimbatore Government hospital and
conducted inquest over the dead body of the deceased and prepared inquest
report Ex.P.15. He had also recovered dresses after the postmortem and sent
them to the court. He then recorded the statement of the witnesses. Later he took
the custody of A-1, who surrendered before the court and examined him. In the
meanwhile, on 22.06.2009, when P.W.8 VAO was in his office at about 05.00
p.m., A-2 appeared before him and confessed the crime that he had thrown acid
along with A-1 on the deceased on 14.06.2009. His confession and the special
report is Ex.P.7. P.W.18 arrested A-2 and recorded his confession. The
admissible portion of the confession of A-2 is Ex.P.16. The investigating officer
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has seized the motor cycle, blue colour jeans pant and a shirt with acid holes
from A-2 in the presence of P.W.8 and other witnesses.
2.6.P.W.19, the medical officer attached to the Government Hospital,
Erode has admitted the deceased at 11.20 p.m. on 14.06.2009 and she was
informed that two unknown persons threw acid on the deceased. After giving
first aid, the deceased was referred to the Coimbatore Medical college hospital,
in respect of which Ex.P.21 was filed. P.W.21, who was also having a medical
shop, on hearing the news about the incident, also went to the hospital and has
seen the deceased with acid burn injuries. P.W.22 in whose presence the
observation mahazar was prepared and remnants of the acid from the floor,
namely material objects were also seized under Ex.P.17 mahazar in his
presence. P.W.23 who was also running a medical shop, also went to the
hospital and saw the deceased writing the name of Apollo, as he could not speak
anything other than that. P.W.24 working in the Apollo medical shop was also
examined. P.W.26, who is also running a tea shop, has also seen the deceased
suffering injuries at the relevant point of time and the deceased was taken to the
hospital. P.W.28, who was working in the Apollo Medical shop, was also
examined by the police and later, they were let off since the accused
surrendered. P.W.29, who was the Manager of Apollo Pharmacy, Salem, was
also examined by the police in this regard.
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2.7.P.W.32 is the owner of one Sri Vel Tex Company dealing with Acids.
th
He has stated that on 13 June, accused no.1 requested him over phone, the acid
for cleaning toilet and P.W.32 informed him that he can collect it from the
manager Veeramani and later his manager told him that he has supplied the acid
in a plastic can to A-1. P.W.35 is the wife of A-1 and A-1 informed her that he is
going to surrender in the court and on 17.06.2009, he went to the court and
surrendered.
2.8.P.W.14 medical officer attached to the Bhavani Government hospital,
when he was on duty on 24.06.2009, A-1 was brought for treatment through the
head constable. On examination, he found irregular margin injuries formed with
septicemia in his right elbow. Similarly, he has also noted injuries on the face
and body of A-1, in respect of which Ex.P.8 was issued. P.W.16, the head clerk,
as per the orders of the court, has sent the material objects to the forensic
science department under Ex.P.9 requisition, for examination.
2.9.P.W.17, the medical officer, attached to the Coimbatore Government
medical college hospital, conducted autopsy over the dead body of the deceased
and found the following injuries:
‘Excoriation of skin noted (n.c) entire face sparing patchy
areas of fore head, neck in its front, both side with tailing
backwards, front of chest and upper abdomen upto 4 cm
below to umbilicus with tailing down wards and back of
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patchy areas of back of both forearms. The base of the
wounds are grayish in colour and leathery in nature.
singeing of hairs in the injured areas noted. Both eye balls
found grayish in colour and dried. Oral cavity mucosa and
tongue found grayish in colour and leathery in nature.
On dissection of neck, chest and abdomen: Upper part of
food pipe mucosa found corroded and dark grayish in
colour. The larynx found odematous, on cut section the
mucosa found corroded and dark grayish in colour.’
He has issued Ex.P.10, postmortem certificate and gave the final opinion that
the deceased would appear to have died of Sulphuric acid poisoning and its
complications. P.W.12 Doctor of Bhavani Government hospital has examined
A-2 on 23.06.2009 and found the injuries aged about 9 to 10 days on the face,
forehead, chin and also in the right neck.
2.10.P.W.20 took up the further investigation as P.W.18, Inspector who
has conducted preliminary investigation went on transfer. P.W.20 continued his
investigation and recorded the statements of witnesses. After collecting the
forensic report, namely Ex.P.22 and P.23 and after completing the investigation,
he filed the final report against four accused under sections 302, 302 read with
120(B) and 302 read with 109 IPC.
3.After the filing of the final report by the investigating officer, on
appearance of the accused, the provisions of Section 207 Cr.P.C. were complied
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with and the case was committed to the Court of Sessions in S.C.No.164 of
2010 for trial.
4.The accused were charged as follows:
Accused Charges
A-1 to A-4 Section 120(B)
A-1 Section 302 IPC
A-2 Section 302 r/w 109 IPC
A-3 and A-4 Section 302 r/w 120(B) IPC
To prove the charges, the prosecution has examined as many as 42 witnesses,
namely P.W.1 to P.W.42 and marked 23 documents, namely Ex.P.1 to Ex.P.23
and 10 material objects were marked as M.O.1 to M.O.10. Further, two court
side exhibits were marked as Ex.C.1 and Ex.C.2.
5.On completion of the evidence on the side of the prosecution, the
accused were questioned under section 313 Cr.P.C. as to the incriminating
circumstances found against them in the evidence adduced by the prosecution
witnesses. They denied all the incriminating circumstances as false. On the side
of the defence, no evidence was recorded and no documents were marked.
6.The trial Court, after appreciating the oral and documentary evidence
and materials on record, by judgment dated 11.03.2021, found A-1 and A-2
guilty of the offences and they were convicted and sentenced, as stated above
and the trial court has acquitted A-3 and A-4 of the charges levelled against
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them. Challenging the conviction and sentence imposed on A-1 and A-2, they
have preferred two separate criminal appeal.
7.The learned counsel for the appellants have contended that the motive
as alleged by the prosecution is illogical and the same was not established.
According to the learned counsel, A-1 and A-3 had illicit connection. One
Senthilkumar, who is the friend of A-4 and running a medical shop, called A-3
for illicit relationship and when A-3 tried to inform the act of the said
th
Senthilkumar to the first accused, the 4 accused objected and stated that since
th
Senthilkumar is the friend of 4 accused, instead of divulging the name of said
Senthilkumar to the first accused, they decided to give the name of the
deceased, the owner of Kamatchi medical shop to avoid misunderstanding.
Accordingly, A-3 also informed A-1 about the deceased. Therefore, A-1 decided
to eliminate the deceased, but this motive has not been established.
8.It is the further contention of the learned counsel for the appellants that
the prosecution relied on the evidence of P.W.1 to show as if the deceased has
pointed out by writing the word ‘Apollo’, as he could not speak, but the said
writing has not been seized or recovered by the police. Further, all other
eyewitnesses have not seen the accused persons and no eyewitnesses were
available. P.W.5 though said to have seen the accused, but no test identification
parade was conducted and therefore, his evidence is highly doubtful. That apart,
A-1 and A-2 allegedly went to the hospital and got treated for the acid injuries
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but the same were not substantiated and no wound certificate was filed. Though
P.W.13, medical officer is said to have treated A-2 on 14.06.2009 for the alleged
acid injury, no wound certificate has been filed. Therefore, the evidence of
P.W.13 is highly doubtful. Further, P.W.12 and P.W.14 medical officers found
injuries of 10 days old on both the accused when they were produced by the
police. Their evidence did not point out that it is only the acid injury. Therefore,
the charge against the accused for throwing the acid cannot be held to be
proved.
9.The learned counsel for the appellants further contended that the alleged
extra judicial confession given to P.W.8 VAO by A-2 also cannot be given much
importance since the accused person is stranger to P.W.8 and therefore, the
possibility of A-2 giving confession of the incident is highly doubtful. Further,
A-1 admittedly surrendered before the court. The alleged seizure from the
accused persons alone will not prove the guilt of the accused. Further, as long as
the test identification parade was not conducted, the identity of the accused has
not been established. Hence, the trial court finding the accused guilty is not
based on proper appreciation of evidence and therefore, the accused /appellants
are entitled for acquittal.
10.The learned Additional Public Prosecutor would submit that though
the motive has not been established, the fact remains is that the accused nos.1
and 2 coming in the motor cycle, one of them was carrying a helmet and also
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throwing of the acid, was spoken to by P.W.5. P.W.5 who is a rustic villager, has
clearly identified the accused. P.Ws.1,3 and 6 also rushed to the spot
immediately. The evidence of P.Ws.5 and 6 clearly establish the presence of the
accused in the place of occurrence and later, they have fled away in the motor
cycle. P.W.13 Doctor in a private hospital has seen one of the accused, namely
A-2 on the same day and he has treated him as he has also suffered acid injury
and in fact, A-2 informed P.W.13 that somebody has thrown acid on him. After
the first aid, he has left the hospital stating that he will take treatment in some
other hospital. P.Ws.12 and 14, Doctors of Bhavani Government hospital have
also seen both the accused when they were produced by the police for treatment
and that the accused have not explained as to how the acid injury has happened.
Whereas the very suggestion by the accused clearly indicates that they suffered
acid injury at the relevant point of time. This fact coupled with the seizure of all
material objects from the accused and the detection of Sulphuric acid during the
forensic science examination, clearly points out the complicity of the accused
with the crime. Merely because the test identification parade was not conducted,
cannot be a ground to reject the entire prosecution version. The trial court has
rightly convicted the accused and it does not warrant any interference.
11.We have considered the submissions made by both sides and perused
the entire materials available on record. Though the prosecution has examined
as many as 42 witnesses, none of the witnesses have spoken about the motive
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and that the motive and the alleged charge of conspiracy theory have not been
established by the prosecution as rightly held by the trial court. But, the fact
remains is that the deceased while returning from the medical shop after closing
the shop at around 09.30 p.m., suffered serious acid burn injury. P.W.1, the wife
of the deceased, rushed to the spot immediately on hearing the same from
P.W.3. P.W.3 who is the neighbour has seen two people coming in a motor cycle
and he immediately heard the cry of a deceased. On hearing the sound of the
deceased, he immediately went there and touched the deceased, as a result of
which he had also suffered acid burns. He immediately took bath in the nearby
waterpipe. Therefore, it is the evidence of P.W.1 that he saw both the people
coming in a motor cycle in high speed and throwing acid on the deceased. At
that time, the severity of the acid is so much that the deceased could not speak
anything and immediately, all of them took the deceased to the hospital. P.W.1
also rushed to the hospital and when the deceased was enquired, he could not
speak, but he has written a word 'Apollo' and the same was also reflected in the
FIR. Later, based on the statement of P.W.1, the investigation was originally
proceeded against the persons who were working in the Apollo Medical shop
and they were examined and subjected to police investigation on many
occasions. P.W.24, P.W.27, P.W.28 and P.W.29, who were working in the Apollo
medical shop were subjected to police investigation based on the earlier version
and later, they were all left. But the fact remains is that P.W.3 heard the noise of
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the deceased and he saw two people coming in a motor bike. The evidence of
P.W.3 clearly shows that the two people came in a bike, threw the acid and he
also first touched the deceased and later informed P.W.1 and all others came and
took the deceased to the hospital.
12.Further, P.W.5, at the relevant point of time on 14.06.2009 at around
09.00 pm to 10.00 p.m., while coming in a two wheeler [TVS 50] in the
opposite direction, saw the deceased coming and he had also seen two persons
coming in a bike and that the pillion rider was having a can in his hand and they
have thrown something like water on the deceased and immediately, he heard
the sound from the deceased and at that time, he saw P.W.3 also came there and
found the deceased received burn injuries due to acid attack. The evidence of
P.W.5, when carefully looked into, it is seen that though in the chief
examination, he has not identified the accused, in the cross examination, it is
seen that he has clearly identified both the accused. He has clearly stated that he
has seen the accused only for the first time since they came in the bike at the
relevant point of time and he saw their face in the light and the person riding the
bike was carrying helmet in his lap. Thereafter, 8 to 9 days later, he had
identified both the accused in the police station. Thereafter, for the first time, he
had identified them in the court. It is relevant to note that the evidence of P.W.5
clearly shows that his shirt also got damaged in the acid when he touched the
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deceased. His entire evidence when carefully seen, it is clear that there is no
motive whatsoever for P.W.5 to implicate the accused. P.W.5 is a rustic villager.
His evidence is clear that he has seen the accused coming in the opposite
direction and suddenly, after throwing the acid, they turned back and went away
and thereafter, 8 to 9 days after the occurrence, he had also identified the
accused in the police station.
13.Further, the evidence of P.W.6 clearly shows that at the relevant point
of time, at around 09.30 p.m., on 14.06.2009, in front of one Palanisamy tea
shop, both the accused were found sitting. At that time, the deceased closed his
shop and proceeded to his house. Later, both the accused took the bike and went
in that direction and immediately, in 2 to 3 minutes, he heard the noise and at
that time, P.W.3 Vadivelu was bringing the deceased by holding him and
thereafter, they took him to the hospital. The very nature of the evidence of
P.W.6 shows that though he has not seen the accused throwing the acid, the fact
remains that when the accused left from tea shop, within two minutes, he heard
the noise and immediately saw the deceased with burn injuries in the acid
attack. It is relevant to note that P.W.13, the medical officer attached to Revathy
hospital, when he was on duty on 14.06.2009 in the hospital during night hours,
A-2 appeared for treatment for some acid burn injuries and informed him that
some one has thrown acid on him. After the first aid, he left the hospital
immediately to take treatment in some other hospital. P.W.13 though has not
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recorded any accident register copy as A-2 left the hospital before receiving the
full treatment, the fact remains that A-2 appeared before him after sustaining
acid injuries. There was no reason for P.W.13 doctor in a private hospital for
giving false evidence to implicate the accused persons. Therefore, it is clear that
before the accident register could be recorded, the accused left the hospital and
therefore, mere non recording of accident register, in our view could not dent
his evidence, since there was no motive for P.W.13 to give false evidence. The
evidence of P.W.13 has been corroborated by the evidence of P.W.12, medical
officer attached to the Government hospital, Bhavani who has also treated A-2
when he was produced by the police. According to him, on 23.06.2009, when
A-2 was produced with the police memo, he found the injury of 10 days on the
right side face, forehead, cheek, hands and also on the right side neck. A-2 has
not denied the acid injury sustained 10 days prior to the treatment. Further, for
the suggestion put to P.W.12 doctor, he suggested that the said injuries are
possible due to sprinkling of acid through the tanker lorry. Therefore, the very
suggestion to P.W.12 by A-2 clearly shows that he has not disputed the acid
injury.
14.P.W.14, the medical officer attached to the Government hospital,
Bhavani examined A-1 on 24.06.2009. He has also seen the irregular margin of
acid injury. Ex.P.8 has been issued in this regard and multiple scald burn injuries
were noted by him on various parts of his body. Even for the suggestion put to
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the doctor as to the nature of the injury, it was suggested that the injury may also
be possible due to boiling liquid. Therefore, it is clear that the injuries sustained
by both the accused at the relevant point of time was not disputed. The
suggestions put forth during cross examination if incriminating the accused, the
same would be a substantive piece of evidence. In this regard, it is relevant to
cite a decision of Hon’ble Supreme Court in Balu Sudam Khalde Vs. State of
Maharashtra reported in (2023) 13 SCC 365 and in paragraph 44, the Hon’ble
Supreme Court has held as follows:
‘ 44.During the course of cross-examination with a view to discredit the
witness or to establish the defence on preponderance of probabilities
suggestions are hurled on the witness but if such suggestions, the answer
to those incriminate the accused in any manner then the same would
definitely be binding and could be taken into consideration along with
other evidence on record in support of the same.
’
It is further to be noted that A-1 surrendered before the Judicial Magistrate
court, Dindigul. P.W.35, the wife of A-1, has also clearly spoken about his
surrender. The custody of A-1 was taken by the investigating officer P.W.18 and
later, he examined him and recorded his confession. The admissible portion of
his confession was marked as Ex.P.4. Pursuant to the same, black colour helmet
and dark blue colour shirt in the presence of Village Administrative Officer were
seized under Ex.P.5, besides, a mug from the bush in the opposite side of Eduvai
Road was recovered under Ex.P.6. It is relevant to note that these materials were
also subjected to forensic examination. Ex.P.23 forensic report was filed in this
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regard.
15.All the material objects which were seized pursuant to the confession
statement of accused, also contained Sulphuric Acid which also got tallied with
the earth collected from the place of occurrence which also contains Sulphuric
acid. All other material objects seized from the accused including the white
gauze cotton piece which was used for taking sample from the bike where the
acid was found also detected with Sulphuric acid as per the forensic science
examination. Similarly, the helmet seized from the accused also was detected
with Sulphuric acid. It is relevant to note that A-2 surrendered before the VAO
(P.W.8) and P.W.8, in his evidence, has clearly stated that A-2 appeared before
him on 22.06.2009 and gave confession. His extra judicial confession was also
filed along with the special report, Ex.P.7, wherein he has also clearly narrated
the occurrence. Later A-2 also handed over to the police station. The Inspector
of Police arrested A-2 and recorded his confession statement separately under
Ex.P.16 and jeans pant was seized from A-2. On forensic examination with
other material objects, it is found that it also contains Sulphuric acid. Further,
the dresses recovered from the dead body of the deceased also contains
Sulphuric acid. The postmortem doctor's evidence also clearly shows that the
deceased died due to Sulphuric acid poisoning and its complications. The
accused also suffered injuries on the same day which has been clearly spoken to
by P.W.12, P.W.13 and P.W.14, medical officers. It is not the case of the accused
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that they never suffered any such injury, but different statements have been
given to the effect that the acid fell on them from the Acid tanker lorry and that
some one has thrown acid on the accused. Therefore, when the accused
themselves have not disputed the nature of the injuries suffered at the relevant
point of time and Sulphuric acid detected from the material objects seized from
them, it is for the accused to explain as to how they sustained injuries. These are
all facts which are exclusively within the knowledge of the accused. In the
absence of any explanation, it also points out the complicity of the accused to
the crime. That apart, the intention of the accused to kill the deceased can be
gathered from the evidence of P.W.32 from whom the accused no.1 has
procured the acid by saying that he needs acid for cleaning the toilet. Further,
the fact that the accused persons were waiting for the deceased is clear from the
evidence of P.W.6, who has stated in his evidence that he has seen both the
accused sitting in front of the Palanisamy tea shop and after the deceased
leaving the medical shop, both the accused also left the place in the bike and
within a couple of minutes, he heard the sound and saw the deceased with acid
injuries. Therefore, all these facts are within the knowledge of the accused
which he has to explain.
16.With regard to certain facts which are within the knowledge of the
accused and it the accused who has to explain the same, the Hon’ble Supreme
Court in Ram Gulam Chaudhary v. State of Bihar reported in (2001) 8 SCC
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311 in paragraph 24 has held as follows:
‘ 24. Even otherwise, in our view, this is a case where Section 106
of the Evidence Act would apply. Krishnanand Chaudhary was
brutally assaulted and then a chhura-blow was given on the chest.
Thus chhura-blow was given after Bijoy Chaudhary had said “he is
still alive and should be killed”. The appellants then carried away
the body. What happened thereafter to Krishnanand Chaudhary is
especially within the knowledge of the appellants. The appellants
have given no explanation as to what they did after they took away
the body. Krishnanand Chaudhary has not been since seen alive. In
the absence of an explanation, and considering the fact that the
appellants were suspecting the boy to have kidnapped and killed
the child of the family of the appellants, it was for the appellants to
have explained what they did with him after they took him away.
When the abductors withheld that information from the court, there
is every justification for drawing the inference that they had
murdered the boy. Even though Section 106 of the Evidence Act
may not be intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable doubt, but the
section would apply to cases like the present, where the
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding death. The appellants
by virtue of their special knowledge must offer an explanation
which might lead the Court to draw a different inference. We,
therefore, see no substance in this submission of Mr Mishra. ‘
(emphasis supplied)
17.In Sabitri Samantaray v. State of Odisha reported in (2023) 11 SCC
813 , the Hon’ble Supreme Court has held in paragraph 18 as follows:
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‘ 18. Section 106 of the Evidence Act postulates that the burden of
proving things which are within the special knowledge of an
individual is on that individual. Although the section in no way
exonerates the prosecution from discharging its burden of proof
beyond reasonable doubt, it merely prescribes that when an
individual has done an act, with an intention other than that which
the circumstances indicate, the onus of proving that specific intention
falls onto the individual and not on the prosecution. If the accused
had a different intention than the facts are specially within his
knowledge which he must prove.
‘
18.Therefore, it is clearly evident from the postmortem doctor’s evidence
and the doctors who examined the accused persons that Sulphuric acid was
present on the body of the deceased and also in the injuries sustained by the
accused persons. Further, the material objects collected from the place of
occurrence and dresses recovered from the deceased and accused persons also
contains Sulphuric acid. That apart, the medical evidence and the scientific
evidence also clearly indicate the presence of Sulphuric Acid on the dead body
of the deceased and the material objects recovered from the place of occurrence
and from the accused persons. Therefore, the scientific evidence clearly points
out the guilt of the accused persons.
19.Further, fearing police action following the surrender of A-1 before the
Court, the possibility of A-2 also surrendering before the VAO is more probable
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and therefore, such a surrender by the accused persons would lead to a
conclusion that it is these accused persons who have committed the offence of
throwing the acid on the deceased, who succumbed to the injuries sustained
because of such acid attack and its complications which is clearly proved by the
medical evidence. Further, such an acid attack was also proved by the evidence
of witnesses and the evidence of witnesses are corroborated with each other
clearly pointing the guilt of the accused.
20.Considering all these aspects coupled with the evidence of P.Ws.5 and
6 who have seen the accused at the relevant point of time and further the
identity was also spoken to by P.W.5 and no motive whatsoever was established
against P.W.5 to give false evidence, we are of the view that the evidence of the
witnesses that they have clearly seen the bike of the accused persons passing
them and immediately, they heard the sound of the deceased who sustained
severe burn injuries on acid attack, the possibility of remembering the face of
the accused by the witnesses is more probable. Therefore, in the absence of test
identification parade, it cannot be said that the case in which the test
identification parade was not conducted would fatal to the prosecution. P.W.6
has also seen the two accused in the tea shop and when the deceased left the
place after closing the medical shop, these two accused also have gone in a bike
and immediately, within 2 to 3 minutes, the occurrence took place. The evidence
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of P.W.5 in his cross-examination is clear that he has seen the accused in the
light and later identified the accused in the police station, after their arrest and
he has also seen them in the court. Therefore, in such a situation, when the
identity of the accused is well established, we are of the view that the non
conduct of test identification parade will not be fatal to the prosecution case.
21.With regard to the principle that the non conduct of the test
identification parade is not fatal to the prosecution, it is relevant to note that the
Hon’ble Supreme Court in Dharmendra Kumar v. State of M.P., reported in
(2024) 8 SCC 60 in paragraph 47 has held as follows:
‘ 47. It is trite law that identification tests (TIP) do not serve as
substantive evidence but are primarily intended to assist the
investigating agency in ensuring that their progress in investigating
the offence is on the correct path. Holding a TIP is not obligatory.
Further, a failure to hold TIP cannot be a ground to eschew the
testimony of witnesses whose evidence was concurrently accepted
by the trial and appellate courts. [ State (NCT of Delhi) v. Navjot
Sandhu , (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] Additionally, a
failure to hold a parade would not make inadmissible the evidence
of identification in the court. [ Heera v. State of Rajasthan , (2007)
10 SCC 175 : (2007) 3 SCC (Cri) 461] . ‘
22.Considering all the aspects, we are of the considered view that though
the motive aspect was not established by the prosecution, when the other
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circumstances, materials available and the evidence of the witnesses clinchingly
prove the complicity of the accused to the crime and the involvement of the
accused in the offence, the motive assumes insignificance. In this regard, it is
relevant to mention here a decision of Hon’ble Supreme Court in Bipin Kumar
Mondal Vs. State of West Bengal reported in (2010) 12 SCC 91 and paragraph
23 is relevant which reads as follows:
‘ 23. In Shivji Genu Mohite v. State of Maharashtra [(1973) 3 SCC
219 : 1973 SCC (Cri) 214 : AIR 1973 SC 55] this Court held that in
case the prosecution is not able to discover an impelling motive, that
could not reflect upon the credibility of a witness proved to be a
reliable eyewitness. Evidence as to motive would, no doubt, go a
long way in cases wholly dependent on circumstantial evidence.
Such evidence would form one of the links in the chain of
circumstantial evidence in such a case. But that would not be so in
cases where there are eyewitnesses of credibility, though even in
such cases if a motive is properly proved, such proof would
strengthen the prosecution case and fortify the court in its ultimate
conclusion. But that does not mean that if motive is not established,
.
the evidence of an eyewitness is rendered untrustworthy ‘
23.In the light of the narrative thus far, we are of the view that the trial
court is right in finding the appellants guilty and has rightly awarded the
conviction and sentence, which in our view does not require any interference.
Accordingly, both the criminal appeals are dismissed, confirming the judgment
of the learned IV Additional District and Sessions Judge, Erode at Bhavani
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made in S.C.No.164 of 2010, dated 11.03.2021. Consequently, connected
miscellaneous petition is closed.
(N.SATHISH KUMAR J.)(K.RAJASEKAR J.)
15-09-2026
Index:Yes
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes
vvk
To
1.The IV Additional District and Sessions Court,
Erode at Bhavani.
2.The Inspector of Police,
Bhavani Police Station,
Erode District
(Crime No.465 of 2009)
3.The Public Prosecutor,
Madras High Court, Chennai.
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N.SATHISH KUMAR J.
AND
K.RAJASEKAR J.
vvk
CRL A No. 273 of 2021
and CRL A No. 211 of
2021,CRL MP No. 4862
of 2025
15-09-2026
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