REPORTABLE

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 140  OF 2003        

STATE BY INSPECTOR OF POLICE, T.NADU ...   Appellant(s)                         Versus    RAKIAPPAN & ORS. ...  Respondent(s)

With Crl. A. No. 141/2003

J U D G M E N T  

Dr. ARIJIT PASAYAT,J.

Heard.

These two appeals are directed against the judgment of a Division Bench of

the Madras High Court allowing the appeal filed by the respondents i.e.  Criminal

Appeal No. 281/1998.  The respondents faced trial for allegedly committing homicidal

death  of  two  persons  (hereinafter referred to  as  D1  and  D2  respectively).   The

occurrence according to the prosecution took place on 7.12.1995 around 7.30 P.M. All

the four accused persons entered into the house of the deceased Nos. 1 and 2.  A-1

held Nachimuthu Gounder while A-2 inflicted blows on the neck and cheek.  A-4

threw down Saraswati  while A-3 caught inflicted blow on her head, face and the eye.

PW2  who was about 12 years then was an eye-witness to the occurrence.  Ramu i.e.

PW2 tried to avoid the attack which was made on him because of

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the instigation of A1.  A2 inflicted blows on the head of PW2.  The injured persons

were  taken to  the  hospital,  PW2  regained  consciousness  and  his  statement  was

recorded by PW6 the investigating Officer on 13.12.1995.   On completion of  the

investigation, charge sheet was filed.  Since the accused persons pleaded innocence,

trial was held.   The Trial court relying on the evidence of  PW2 held the accused

persons guilty and convicted each under Section 302 and 307 read with Section 34

IPC.  Each was sentenced to undergo imprisonment for life for the first offence, nine

years  for the second offence. The accused persons preferred appeal before the High

Court which as noted above directed acquittal.  The primary reason which appears to

have weighed with the High Court to direct acquittal was that PW2 was not a in a fit

condition to give the statement.  Reference was made to the seriousness of the injuries

sustained by him as stated by the Doctor PW17.   

Learned counsel for the appellant-State in Criminal Appeal No. 140/2003

submitted  that  the  conclusion  of  the  High  Court  was  based  on  surmices  and

conjecture.  Many salient factors have been lost sight of by the High Court.  There

was nothing infirm in the evidence of PW2 to discard the same on the hypothetical

ground that he was not in a position to give any statement.  Learned counsel for the

respondent-accused  persons  supported  the  judgment  of  the  acquittal.   It  was

submitted that PW2 was a child at the

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time of occurrence.  Child witnesses are prone to be tutored and entire statement of

PW2 purported to have been recorded is the outcome of such tutored.  It was also

pointed out  with reference to the evidence regarding nature of  injuries,  that it  is

highly improbable that PW2 was in a for condition to give any statement.

As rightly contended by learned counsel for the appellant the High Court

appears to have proceeded on surmises to hold that it was not possible on the part of

PW2 to give any statement.  He was admitted on 08.12.1995 as an indoor patient.  The

evidence of  PW17 shows that he was in a position to give a statement as he was

conscious.   PW17  categorically  stated  that  on  9.12.1995,  10.12.1995  PW2  had

regained consciousness and therefore the hypothetical conclusion of the High Court

that PW2 was not in a fit condition to give any statement is clearly unsustainable.  To

add further vulnerability the statement of PW2 reached the concerned court on the

next date i.e. 14.12.1995.  This is a very significant factor.  

In view of the above, we find that the High Court had not indicated any

plausible reason to discard the evidence of PW2.  The High Court did not examine the

acceptability,  credibility  and  truthfulness  or  otherwise  of  PW2's  evidence   by

analysing  the evidence vis-a-vis the other factors and materials on record.  In the

circumstances while setting aside the impugned judgment of the High Court we remit

the matter to the High Court to consider the appeal afresh and

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decide whether the evidence of PW2 is sufficient to fasten the guilt on the accused

persons as projected by prosecution.

The appeals are allowed to the aforesaid extent.

              ...................J.                                   (Dr. ARIJIT PASAYAT)   

             ....................J.                           (C.K.THAKKER)              

   ....................J.

                              (LOKESHWAR SINGH PANTA)

New Delhi, October 21, 2008.