REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO. 1033   OF 2005

SUBRAMANI @ JEEVA @ KULLAJEEVA ..  APPELLANT(S)

vs.

S.H.O., ODIYANSALAI ..  RESPONDENT(S)

O  R D E R

We have heard the learned counsel for the parties at  

a very great length, more particularly, as the judgment  

before  us  is  one  of  reversal;  the  Trial  Court  having  

acquitted all the accused and the High Court reversing the  

judgment qua the solitary appellant herein.  The facts of  

the case are as under:

On  the  4th November,  1991  PW.1,  along  with  his

brother the deceased-Tamilvendhan, went to a restaurant in  

Labortene  Street,  Pondicherry.   At  the  restaurant  his  

friends PWs. 2, 3,4 and another person joined them.  They  

ordered  their  food  and  while  they  were  waiting  to  be  

served, asked for some drinks.  A short while later they  

heard  sounds of breaking of plates inside the restaurant.  

The seven accused then came out and while they were passing  

by PW's.1,2,4  and the deceased, appellant-Subramani made  

an abrasive comment on the complainant party. The deceased  

however laughed at him on which the appellant called his  

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friends and they surrounded the table of the complainants.

The appellant also took up a bottle lying on the table,  

broke  it  by  hitting  it  on  the  table  and  stabbed  

Tamilvendhan on his neck.  When PW.1 intervened he too was  

caused injuries in that process.  On seeing this PW.2 came  

out  to  rescue  them  and  he  too  was  attacked  by  the  

appellant. The deceased fell down on the ground whereafter  

all  the accused ran away from the place.  The incident  

happened at about 10.45 p.m.  The deceased, accompanied by  

the injured PWs 1 and 2, was then taken to the Government  

hospital, Pondicherry, where they were examined by PW.10 at  

11.10  p.m.  Tamilvendhan  was  found  dead  on   arrival.  

Information was also sent to the police at about 11.20 p.m.  

on which PW.20-the Sub-Inspector, attached to the concerned  

police  station,  reached  the  hospital  and  recorded  the  

statements  of  PWs.1  and  2  and  on  that  basis  a  First  

Information Report was registered at 1.10 a.m. on the 5th

November, 1991.  All the accused were arrested on the 26th  

November, 1991  and were subjected to a test identification  

parade  three  days  later  while  in   jail.  PWs.  1  and  2  

identified all the seven accused in the course of the test  

identification  parade.   On  the  completion  of  the  

investigation  the  accused  were  brought  to  trial  for  

offences punishable under Sections 148, 302, 324 read with  

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Sec.149  of  the  IPC.   The  Trial  Court   held  that  the  

statement of PW.1 could not be believed  more particularly

as both PW. 2 and PW.4 had been declared hostile.  Doubt  

was also expressed with regard to the test identification  

parade by observing that the photographs of the accused had  

been shown to the prosecution witnesses prior thereto.  The  

Court also held that there was also some doubt as to the  

place  where  the  incident  had  happened.   An  appeal  was  

thereafter filed by the State before the High Court. The  

High Court has, while confirming the acquittal of six of  

the accused, set aside the judgment of the Trial Court with  

respect to the appellant Subramani, by holding that his  

acquittal was perverse and contrary to  the evidence on  

record.  The High Court accordingly relying on the evidence  

of PW.1, the medical evidence, and the test identification  

parade held that the appellant was involved in the incident  

but as the incident was the out come of a sudden quarrel  

the matter fell within Exception 4, to Section 300 of the

IPC  and  the  appellant  was  liable  to  be  convicted  under  

Section 304 Part-II of the IPC and accordingly keeping in  

the mind the fact that the case was fifteen years old and  

the appellant had a mentally challenged brother to look  

after, the ends of justice would be met if a sentence of  

three  years  R.I.  was  imposed  on  him.   The  Court  also  

observed that in the facts of the case the involvement of  

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the other accused i.e. Respondents Nos.2 to 7 before the  

High Court could not be made out with the aid of Section  

149 of the IPC. It is in this situation that present appeal

is before us at the instance of the solitary appellant.

Mr. Raju Raghupathi, the learned senior counsel for  

the appellant, has at the very outset argued that as PWs. 2  

and 4, two of the eye-witnesses had been declared hostile  

the   High  Court's   reliance  on  PW.1  alone  was  not  

acceptable  more  particularly  in  an  appeal  against  

acquittal.  He has also pointed out that even assuming for  

a  moment  that  PW.1  had  been  present  at  the  place  of  

incident  the  question  of  identification  of  the  accused  

still remained alive as it had come in evidence that  the  

light in the restaurant was very dim and  as both parties  

were  in  a  completely   inebriated  condition  it  was  

impossible for PW.1 to have identified anyone.  He has also  

doubted the very basis of the  test identification parade  

and has urged that as the photographs of the accused had  

been  shown  to  PW.1  the  sanctity  of  the  identification

parade was also in doubt  He has finally prayed that even  

assuming that no cause for the setting aside the conviction  

was  made  out,  the  facts  of  the  case  required  that  the  

sentence of the appellant be reduced as the incident had  

happened twenty years ago.

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Mr. V.Kanagaraj, the learned senior counsel for the  

State, has supported the judgment of the High Court  and  

pointed out that in the light of the fact that the High  

Court had opined that the judgment of the Trial Court was

perverse  and  based  on  a  complete  misreading  of  the  

evidence,  interference  in  an  acquittal  appeal  was  fully  

justified.  He has also urged that there was no reason  

whatsoever to disbelieve PW.1  who was an injured witness  

and that the injured and the deceased had been removed to  

the hospital within 15-20 minutes  and even  the FIR had  

been lodged within an hour or two supported the prosecution  

story. He has also pointed out that there was absolutely no  

reason to doubt identification parade more particularly as  

there  was  absolutely  no  evidence  to  show  that  PW.1  was  

completely inebriated so as to be incapable of recognizing  

any one.

We have heard the learned counsel for the parties at  

a great length.  It is true that the High Court dealing  

with an appeal against acquittal has its options some what  

circumscribed.  It has however been observed by the High

Court that the  judgment of the Trial Court in so far as  

the  appellant  was  concerned  was  completely  against  the  

record and perverse.  It is the conceded position before us  

that  PW.1  had  indeed  been  present  when  the  incident  

happened.  Even otherwise, the evidence that the incident  

happened at about 10.30-10.45 p.m. on the 4th November 1991  

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and the injured had reached the hospital within 20 or 25  

minutes and that the  doctor had sent  intimation to the  

police on which the ASI had reached the hospital within  

half an hour and the formal FIR  recorded at 1.10 a.m. on

the 5th November 1991 are all proved on record. The fact  

that PW.1 was present is fortified  by the injuries found  

on his  person. Mr. Raghupathi has, however, argued that as  

PW.1 was not in a position to identify any one and to who  

had caused the specific injuries, no relevance could  be  

placed  on  his  testimony.   We  find  this  plea  to  be  

unacceptable.  The  incident  took  place  in  a  public  

restaurant and though such a place may have dim lighting  

but  complete  darkness  would  be  an  impossibility.  Even  

otherwise,  Mr. Raghupathi's argument  that the dim light  

precluded  the  identification  of  the  accused  is  without  

substance.  Admittedly, the restaurant in question was a  

very small one having four tables.  It has also come in the  

evidence  that  there  were  four  tube  lights  in  the  

restaurant.  We must therefore assume that light was not so  

dim that a person standing a feet  or two away would not be

identifiable.

 There is another relevant circumstance.  Admittedly  

the accused were not known to PW.1 before the incident.  

However the physical description of the appellant was given  

in the FIR itself.  The High Court has opined very  

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adversely on the conduct of the Trial  Court in ignoring  

this substantial and  very pertinent evidence given as to  

identity  the appellant.  

Much  time  and  effort  has  been  expended  by  Mr.  

Regupathi on the fact that PW.1 was completely drunk at the

time of the incident and therefore not in a position to  

identify  any  of  the  accused.  We  have  gone  through  the  

evidence  of  PW.1  very  carefully.   There  is  not  even  a  

suggestion put to him that  he was completely drunk  at the  

time of the incident. We also find that no question had  

been put to the investigating officer or to the Doctor as  

to the condition of PW.1 at the time when he had been  

brought to the hospital or at the time when his statement  

had been recorded for the registration of the FIR.  In the  

absence  of  any  evidence   the  suggestion  that  PW.1  was  

drunk, is completely baseless. We must also emphasize the  

distinction between being drunk or having a drink.  PW.1  

and his friends and the deceased  were having a drink in  

the restaurant prior to having their dinner but to say that  

PW.1 was drunk at that time is not forthcoming  from the  

evidence. We therefore find in the facts of the case that

the High Court's interference in the  appeal in so far as  

the present appellant was concerned, was fully justified.  

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We have also considered Mr. Raghupathi's argument  

with regard to the quantum of sentence. The High Court  was  

almost  apologetic that a sentence of only three years was  

being  awarded  but  keeping  in  view  the  fact  that  the  

incident had happened 15 years earlier and the appellant  

had a mentally challenged brother, had chosen to keep the

sentence at only three years .

We think that no cause is made out for interference  

even on the quantum of sentence.

Dismissed.

                   .................J.         (HARJIT SINGH BEDI)

                                         ....................J.

                                 (CHANDRAMAULI KR. PRASAD)

New Delhi, March 30, 2011.