REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.566-567 OF 2002

Vijaykumar ….Appellant

Versus

State by Inspector of Police, Madras and Anr. ….Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These appeals have been filed by Vijaykumar who is accused no.2.

Challenge is  to the judgment of the Division Bench of the Madras

High Court allowing the Criminal Appeal filed by the State and the

Criminal Revision filed by the informant.  Two accused persons faced

trial  for  alleged  commission  of  offence  punishable  under  Sections

341,  302,  307  and  302  read  with  Section  34  IPC.   They  were

acquitted  by  the  trial  Court  i.e.  by  learned  Sessions  Judge,

Kanyakumari Division, Nagarcoil.  As noted above, the State and the

informant questioned the acquittal.      

2. Background facts in a nutshell are as follows:

The deceased Johnson is  the elder brother  of  Ravi  Kumar(PW.1).

The  first  accused  Rasalaiyan  and  the  second  accused  Vijaya  Kumar  are

cousin brothers.  PW.2 Suresh Kumar is the friend of PW.1 Vanaja (PW.3)

is  residing in a house situated very near to the place of occurrence.  All

these people belong to same village.

Three years prior to the date of occurrence, Vincent, the elder brother

of the accused was selling illicit arrack in a village. On being questioned

over the same by Johnson, the deceased, enmity developed between them.

Consequently, the said Vincent assaulted Johnson with reference to which a

police case was registered.

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On 10.8.1990  at  about  8.30  a.m.,  Ravi  Kumar  (PW.1),  his  friend

Suresh Kumar (P.W.2) and his brother Raj Kumar along with the deceased

Johnson were proceeding towards a river situated at the corner of the village

for taking bath. At that time, both the accused appeared in the scene and

waylaid them Rasalaiyan, the first accused was carrying a sword (Tamil) in

his hand. Vijay Kumar, the second accused was having a big knife (Tamil)

with him.  Both of them restrained Johnson from proceeding and exclaimed

“You are always disturbing us. Therefore, you should not be allowed to live

any more” and so saying,  A1 Rasalaiyan with the sword M.O.1 attacked

him.  When the same was warded off, the cut fell on the left hand. Again A1

Rasalaiyan attacked on the back of the head and forehead. A2 Vijaya Kumar

with the big knife M.O.2 gave a cut on the buttocks of the deceased.  On

receipt  of the  injuries,  Johnson sat  down. Then,  again A2 Vijaya Kumar

with M.O.2 gave cuts on the left arm, right hand and face. A1 Rasalaiyan

with the sword M.O.1 attacked again by inflicting injury on his back.  At

that time, accidentally, one of the cuts fell on the second accused.  When

PW.1 rushed and went near Johnson and tried to intervene, A1 attacked him

also and caused injury on the left parietal region.  The witnesses who were

present  there raised a hue and cry.  Both the accused ran away from the

scene with the weapons.

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Within a few minutes, a car was arranged and the victim was taken to

the hospital.  Doctor (PW.4) examined him and declared that he was already

dead.  PW.4 also gave treatment to PW.1 for his injuries.   Then, he sent

intimation Exs. P4 and P5 to the police Station at Kuzhithurai.

Head Constable (PW.11),  on receipt of this intimation, went to the

hospital  and recorded the statement  Ex.P1 from PW1 at  about  9.30 a.m.

The case was registered for the offence under Sections 341, 324 and 302

IPC against both the accused.  He sent Ex.P19 FIR to the Magistrate and

sent  one  copy  to  Kaliyakkavilai  Police  Station,  the  jurisdiction  police.

Therefore, PW.4 came to the scene,  prepared observation mahazar Ex.P8

and  rough  sketch  Ex.P2  and  recovered  blood  stained  earth  M.O.8  and

sample  earth  M.O.9  under  mahazar  Ex.P9.   PW.6  Gopalakrishnan  and

another attested Exs. P8 and P9.   

Various  injuries  were  found  on  the  body  of  the  deceased.

Investigation was undertaken and on completion thereof charge sheet was

filed.  Accused pleaded innocence and faced trial.

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3. On considering the materials on record the trial Court acquitted both

the accused persons.  

4. The reasoning given by the Trial Court for acquittal is as follows:

“There had been jealousy between the families of Vanaja and Ravikumar and his family. As stated by his elder  brother,  the  first  accused  herein,  since  the  first accused had not  agreed to  marry the younger  sister  of Vanaja,  there  had  been  enmity  between  Vanaja  and Ravikumar and his family.  On 10.8.1990 at about 6.30 a.m. in the morning, when he was going to take bath in the river at Mulamoottuvilai, Jobnson and 4 or 5 persons along with him came there having Aakkathi,  knife and stones in their hands and attacked him. He had sustained grievous injury.  They had attacked him on his cheek and back with stones.  Grievous injury had occurred to him. He  though  that  they  would  murder  him.  A  fight  had occurred between him and those persons.   He escaped from there and when he went to Kaniyakkavilai  Police station for giving a complaint, the police made him to sit there.   Since  his  vision  was  not  proper  and  he  was suffering  from pain,  the  police  took  a  doctor  from  a nearby  place  and  gave  him  medical  treatment.   On 12.8.1990 they took him to the Government Hospital at Kuzhithurai.  There he was given medical treatment.  On 13.8.1990  they  produced  him  before  the  Court  at Kuzhithurai.  From there he was sent to the Government Hospital  at  Nagarcoil  and  he  had  been  there  as  an inpatient.   Then  from  there  he  was  sent  to  the Government  Hospital  at  Kuzhithurai  and  he  had  been there as an inpatient.  He had not committed any offence. He is innocent.  At present he is working in the military. For  the  purpose  of  this  case,  at  present  he  is  at Trivandrum Camp. On the side of the accused no witness

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had been examined.  Hence the arguments on both sides were heard.”              

5. The High Court observed that the reasons for the acquittal are totally

erroneous based on conjectures and surmise.  The High Court noted that

while arriving at  conclusions  trial  Court  discussed various aspects  which

were  not  actually  available  on  record.   The  High  Court  set  aside  the

acquittal.    

6. Questioning the judgment, as noted above, A2 has filed this appeal. It

is submitted by learned counsel for the appellant that the evidence of PWs1

and  2  cannot  be  treated  as  credible.   They  were  students.   PW3  was

introduced to provide strength to the prosecution evidence.  Since recovery

has been disbelieved, the High Court should not have interfered.  The nature

of the injuries on the deceased clearly shows use of weapons as claimed is

unbelievable. PW1’s statement cannot be treated as FIR in view of Exhibits

4 and 5. The trial Court’s judgment did not warrant interference, and in any

event the injuries were not on any vital part and, therefore, it is not a case of

Section 302.            

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7. Learned counsel for the respondent-State on the other hand supported

the judgment.    

8. This Court in  Ajit Savant Majagvai v.  State of Karnataka (1997 (7)

SCC 110) and Narinder Singh v.  State of Punjab (2000 (4) SCC 603) laid

down the principles which would govern and regulate the hearing of appeal

by the High Court against an order of acquittal passed by a trial Court.  The

principles  which  have  been  set  out  on  innumerable  cases  have  been

reiterated as under:   

(1)  In  an  appeal  against  an  order  of  acquittal,  the  High  Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

(2)  The  High  Court  has  the  power  to  reconsider  the  whole  issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record  its  own  reasons  for  not  accepting  those  grounds  and  not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal, the High Court has to keep in view  the  fact  that  the  presumption  of  innocence  is  still  available  in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

(5)  If  the  High  Court,  on  a  fresh  scrutiny and  reappraisal  of  the evidence  and other  material  on  record,  is  of  the  opinion  that  there  is another  view  which  can  be  reasonably  taken,  then  the  view  which favours the accused should be adopted.

(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.

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(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.

9. In the instant case PWs 1 and 2 were treated by the doctor (PW3)

around  8.40  p.m.   Exhibits  4  and  5  are  the  intimation  regarding  the

occurrence and were sent  immediately.  PWs 4’s evidence clearly shows

presence of PW1. PWs. 2 and 3 are independent witnesses.     

10. When PWs. 1 to 3 and others cried aloud and the victim fell down in

pool of  blood, the accused ran away from the scene.  Immediately, a car

was brought.  At that time, the victim was alive.  Therefore, in order to give

immediate  treatment  to  him,  the  car  brought  and  he  was  rushed  to  the

hospital.   Then,  PW4  informed  them that  the  victim  had  already  died.

Without  any delay, at  8.45 a.m.,  PW4 sent  intimation to the  Kuzhithurai

Police.

11. In the  meantime,  P.W.4 gave  treatment  to  P.W.1 and  found  a  cut

injury on the left temporal region and issued accident register Ex. P6. P.W.1

gave information to the Doctor P.W.4 that he was attacked by two known

persons on 10.8.1990 at about 8.30 A.M. in his village. Exs. P6, could show

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that  the  Doctor  was  informed that  two  known  persons  had  attacked  the

deceased and P.W.1 in Mulamootuvilai village with weapons.

12. On receipt of the information, P.W. 11 Head Constable attached to

the Kuzhithurai Police rushed to the hospital and recorded the statement of

P.W.1 at  9.20  A.M. on  the  same day.  Since the  jurisdiction  Police  is  at

Kaliyakkavilai,  the  F.I.R.  was  sent  to  the  said  police.  P.W.12,  the

Kuzhithurai  Constable  got  the F.I.R.  copy and  handed  over  the  same to

P.W.13, the Head Constable of Kaliyakkavilai Police Station at about 11.00

A.M. There also, a case was registered by registering separate F.I.R. P.W.13

at about 11.30 A.M. sent the F.I.R. copy to the Court. P.W.12 handed over

the F.I.R. copy relating to the Kuzhithruai Police Station at 12.00 Noon to

the Court.  Therefore,  there is  no  delay either  in  taking  the  victim to  the

hospital  and  informing  the  Doctor  about  the  occurrence  and  on  the

immediate  information  given  by  the  Doctor,  P.W.1  came  and  got  a

compliant, registered F.I.R. and observed other formalities by sending the

F.I.R. to the Court without any further delay.

13. This  evidence of  P.W.1 relating  to  the  attack on the  deceased and

P.W.1  and  the  taking  of  the  deceased  to  the  hospital  has  been  well

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corroborated  by  documentary  evidence  Exs.P1,  P4  and  P5  and  the  oral

evidence  of  P.Ws.4 and 11.  The Doctor  P.W.4 also  would  state  that  the

injuries found on the deceased and P.W.1 could be caused by M.Os.1 and 2.

14. Admittedly,  there  are  two  types  of  injuries  on  the  body  of  the

deceased  P.W.4  Doctor  specifically  stated  that  some  injuries  are  curved

injuries and some injuries are cut injuries. The reading of the evidence of

P.W.4, who conducted postmortem on the body of the deceased found as

many as eight injuries.  The first injury was curved.  PWs.1 to 3 stated that

A1 inflicted the injuries by MO1.  

15. Merely because P.W.1 happens  to  the  brother  of the  deceased,  his

evidence  cannot  be  rejected  especially  when  he  had  no  reason  to  speak

falsehood against both the accused. It is settled law that the relative witness

would not allow the real culprit to escape and implicate the person who is

innocent. But however, the evidence has to be carefully analysed.

16. In this case, the evidence of P.W.1 has not only been corroborated by

the other materials referred to above but also the evidence of P.Ws.2 and 3,

who are independent and unrelated witnesses.

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17. P.W.2 Suresh Kumar at the time of occurrence was studying in the

school.  He  is  the  friend  of  Raj  Kumar,  who  is  the  brother  of  P.W.1.

According  to  him,  on  the  date  of  occurrence,  P.W.2 and  his  friend  Raj

Kumar accompanied P.W.1 and the deceased to go to river for taking bath.

On  the  way,  the  occurrence  had  taken  place.  He  could  state  about  the

occurrence only. He did not refer about the other happenings with reference

to the  motive  as  spoken to  by P.W.1.  At the  time of deposition,  he was

studying B.A. in Nesamani Christian College. He clearly corroborated the

evidence of P.W.1 with reference to the overt acts attributed to each of the

accused.  Nothing has  been elicited  from P.W. 2 that  he had anything to

speak falsehood against the accused. As a matter of fact, when the victim

was  taken  in  a  car  to  hospital,  he  also  accompanied  him.  When  Ex.P1

complaint was given was given to P.W.11 Head Constable, P.W.2 attested

the  said complaint. In Ex.P1 also the name of P.W.2 is mentioned. P.W.2

was  examined  at  the  hospital  during  the  course  of  inquest  by  P.W.14.

Therefore, there is no reason to reject the evidence of P.W.2

18. The  most  important  witness  in  this  case  is  P.W.3  Vanaja,  whose

house is situate very near to the place of occurrence. According to her, on

10.8.1990 at about 8.30 A.M., she came out of the house and when she was

proceeding  towards  Southern  side  for  taking  water,  she  saw  that  the

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accused came and attacked Johnson and while PW1 intrervened,  he was

also attacked.  Admittedly, she is not related to the deceased family.

19. There is nothing to indicate that P.W.3 was having any animosity to

speak falsehood against the accused. The reading of her deposition would

make it  clear  that  she is  very natural  and reliable witness.  Ex.22 rough

sketch and Ex.P8 observation mahazar also would make it clear that the

occurrence had taken place just opposite to her house and from that place,

the blood stained earth was seized under Ex.P9 mahazar attested by her

husband P.W.6 Gopalakrishnan on the very same day. She also stated that

she had finished her S.S.L.C. and after her marriage, she was living with

her husband Gopalakrishnan near the place of occurrence. On coming to

know that  the  victim who was  taken  to  hospital  died,  she  went  to  the

hospital to see the dead body. She gave the reason as to why she went to

hospital immediately by stating that:

“The person who does not know any thing was killed so I

went to Kuhithurai Hospital to see Johnson."

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20. In the light of the above position, it can be held that even assuming

that the evidence relating to the arrest and recovery is not to be acted upon,

the prosecution succeeds on the basis of the evidence of ocular testimony

adduced  by  PWs.  1  to  3.   Out  of  these  three  witnesses,  it  is  to  be

emphatically  stated  that  the  evidence  PW.3  who  is  an  educated,

independent, not related and whose house is situated opposite to the place of

occurrence  would  inspire  confidence  that  what  all  she  stated  before  the

Court is cogent and credible.     

21. Above being the position, we find no merit in these appeals which are

accordingly dismissed.  

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

……..…………………..………J. (LOKESHWAR SINGH PANTA)

…………………………..……..J (P. SATHASIVAM)

New Delhi, April 21, 2009

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