Important Point
Where in a case under Section 302 of IPC, there were material contradictions in the evidence of prosecution witnesses, nobody had been named as an accused in the FIR and there was a delay of eight hours in lodging FIR, then conviction of appellant accused person could not be sustained.

Judgment

Markandey Katju, 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.

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 the other provisions of the IPC by the Trial Court and they were convicted to life imprisonment and awarded various other punishments 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 appellant before us, under Section 302 etc. was upheld. Aggrieved, the accused no.1 has filed this appeal before us.

5.The F.I.R. in the case was filed by one S. Elangovan, Forest Guard. The FIR reads as follows :

“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 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 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 time we saw a crowd coming towards us having sandalwood logs on their heads. They alerted ourselves 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 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 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 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. 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”.

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 ‘unidentified persons in a group consisting of 50 persons’. This 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 time gap of eight hours between the time of the occurrence 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 deposition before the Trial Court has named accused 1 to 6 as the persons who fired guns in the incident. We have carefully gone 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.

8.Before dealing with these glaring inconsistencies it may be pointed out that the incident occurred at 10.30 p.m. on 27.1.