REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 656  OF 2002

State Rep. by Inspector of Police, Tiruchy …

Appellant

Versus

Rettaimandaiyan @ Murugan …Respondent

(With Crl.A. No. 742 of 2003)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These two appeals have been filed by the State of Tamil

Nadu questioning correctness of the judgment rendered by a

Division Bench of the Madras High Court directing acquittal of

seven accused persons who had filed four appeals questioning

the  conviction  as  recorded  by  the  learned  IInd  Additional

sessions Judge, Tiruchirapalli Division at Tiruchy in Sessions

Case  No.68/92.  These  two  appeals  relate  to  A-2  and  A-7.

Seven  persons  faced  trial  for  alleged  commission  of  several

offences punishable under Indian Penal Code, 1860 (in short

‘IPC’).  Following  charges  were  framed  by  learned  Sessions

Judge against the accused persons:  

(i) 148 IPC A-1, A-3 and A-6

(ii) 147 IPC A-2, A-4, A-5 and A-7

(iii) 302 IPC A-1 and A-3

(iv) 302 r/w 149 IPC A-2, A-4 and A-7

(v) 324 IPC A-6

(vi) 324 r/w 149 IPC A-1, A-5 and A-7

(vii) 323 IPC A-7

(viii) 323 r/w 149 IPC A-1 to A-6

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2. The  prosecution  version as  unfolded  during  trial  is  as

follows:

PW-1 is the widow of Mathappan (hereinafter referred to

as  the  ‘deceased’).  She  resides  at  Mudakkupatti  which  is

situated  within the  limits  of  Tiruchirapalli  Corporation.  The

deceased was carrying on business as a fish vendor. PWs 2

and  3  are  the  daughters  of  PW-1  and  the  deceased.  PW-2

resides three houses away from the house of P.W.1 along with

her husband. All the accused reside at Mudukkupatti. A2 is

the  brother  of  Al.  A5 is  the  wife  of  Al.  A3,  A4 and  A6 are

brothers.  A7 is  the friend of  Al  to  A6.  The occurrence  took

place on 23.6.1991. One week prior to the date of occurrence,

around 1.30 p.m., P.W.3 went to collect water from a public

water tank. At that time Al came in a cycle and teased her.

P.W.3 informed about this to the deceased and the deceased

in  turn  questioned  Al.  At  6.00  p.m.  on  22.6.1991,  Al  was

coming in a cycle with a load of arrack. When he was passing

the house of P.W.2, he had a fall, during which time, the front

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wheel of the cycle hit against the daughter of P.W.2. On seeing

this, P.W.2 scolded A1, which was followed by a wordy quarrel

between  PW.2 and A1.  On coming to  know about  this,  the

deceased  and  P.W.1  went  to  that  place.  P.W.2  narrated  to

them as  to  what  happened.  On  hearing  this,  the  deceased

reprimanded A1 for his improper conduct.

At 7.30 p.m. on 23.6.1991, the deceased, P.Ws 2 and 3

were all watching the television in their house. At that time A1

and  A5  came  there  and  standing  opposite  to  the  house  of

P.W.1, challenged the deceased to come out. Accordingly, the

deceased came out of the house, followed by P.Ws 1, 2 and 3.

A2 to A4,  A6 and A7 were  also  there at that time.  A1 was

armed with suluki, while A3 and A6 were each armed with an

aruval. A4 looking at the deceased, asked him as to why he is

often inviting  trouble  and saying  so,  he  caught  hold  of  his

right hand. A2 caught hold of his left hand. A5 induced others

to stab him without wasting any further time. Immediately A1

stabbed on the stomach of the deceased with suluki,

followed  by  A3,  with  an  aruval  cut  on  the  head  of  the

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deceased. P.W.1, on seeing that her husband is being cut by

the accused, intervened. At that time, A6 attacked her with an

aruval,  which  was  warded  off  by  P.W.1  with  her  hand,

resulting in an injury on her left elbow. He also attacked P.W.1

on her head. P.W.3 also stepped in, by raising her voice and

A7 with a stick attacked on the lip and hand of

P.W.3. The deceased was lying unconscious. On seeing that,

all  the  accused  ran  away.  The  entire  occurrence  was

witnessed by P.Ws 1 to 3.  Mahamuni,  the other son of the

deceased and P.W.1, on hearing about the occurrence, came

to the scene of occurrence and rushed his mother and

father  to  the  government  headquarters  hospital  at

Tiruchirapalli. Madhappan was asked as to who assaulted him

and  he  told  the  Doctor  that  he  had  come  to  sustain  the

injuries at the hands of 8 to 10 known persons with the use

of aruval, spear and stick at about 7.30 p.m, in his house on

23.6.1991. P.W.7, on examining him found two injuries, which

are noticed in Ex.P6.  She also examined P.W.1, who told her

that  she  came  to  sustain  the  injuries  at  the  hands  of  10

known persons in her house at 7.30 p.m. on the same day. On

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her, the doctor found various symptoms as found noticed in

Ex.P6.  

PW-11  was  the  Sub-Inspector  of  Police  in  the

Cantonment Police station at Tiruchirapalli.  At 8.40 p.m. on

23.6.1991,  he  on  receipt  of  the  information  over  telephone

from the hospital, went there and examined the deceased, who

was there as an in-patient. At that time, Madhappan gave a

statement. He reduced the same into writing and after reading

it  over  to  him,  his  signature  was  obtained  in  it.  The  said

statement  is  Ex.P.9.  He  came back  to  the police  station at

9.30  p.m.  and  registered  Ex.P9  in  Crime  No.63  of  91  for

offences  punishable  under  Sections  147,148,  341,  324  and

323 IPC. Ex-P10 is the printed First Information Report. He

went to the hospital again at 10.30 p.m. and recovered M.Os.

1 and 2 from Madhappan in the presence of PW.5 under a

mahazar. He examined P.W.1 in the hospital. He went to the

scene of occurrence and examined P.W.3 and another. He also

examined  P.W.2.  On  that  night,  he  stayed  at  the  scene  of

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occurrence in the village itself. At 6.00 a.m. on the next day,

he prepared Ex.Pl1)/rough sketch. Madhappan breathed his

last immediately after the mid night of 25.6.1991. Ex.P7 is the

death  intimation.  On  receipt  of  Ex.P7,  P.W.11  altered  the

section of offence into one under Section 302 IPC and sent the

altered printed first information report to the Court as well as

to the higher officials.  

The trial Court placed reliance on the evidence of the eye

witnesses PWs. 1 and 2 and the dying declaration Ext.P-9. The

conviction and the sentence imposed were challenged by all

the  seven accused  persons before  the  High Court which as

noted above directed their acquittal.  The  High  Court

held that the dying declaration Ext.P-9 was not believable. So

far as the evidence of the eye witnesses is concerned it was

noted that though the eye witnesses spoke about the incident,

their  evidence  has  to  be  discarded  because  the  dying

declaration had been discarded.  

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3. In  support  of  the  appeals,  learned  counsel  for  the

appellant  submitted  that  the  reasoning  given  by  the  High

Court to discard the eye witnesses’s version has no rationale.

Merely because the dying declaration has been discarded, that

cannot  per  se  render  the  evidence  of  the  eye  witnesses

suspect.  No  other  reason  has  been  indicated  by  the  High

Court to discard their evidence.  

4. There is no appearance on behalf of the respondents in

spite of service of notice.  

5. We find that the only reason indicated by the High Court

to discard the evidence of the eye witnesses is that the dying

declaration had been discarded.  Even if that be so, without

indicating any reason as to what deficiency was there in the

evidence  of  eye  witnesses,  the  High Court  should  not  have

discarded their evidence.  Nowhere it has been recorded by the

High Court that the eye witnesses’s evidence was in any way

deficient. That being so, the judgment of the High Court is not

sustainable.  Since  the  High  Court  has  not  discussed  the

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evidence of PWs. 1 and 2 independently to test whether it has

credibility or not, it would be appropriate to remit the matter

to the High Court to consider the matter afresh and examine

whether for any reason the evidence of PWs 1 and 2 need to

be discarded.  

6. The appeals are allowed to the aforesaid extent.  

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

……………………….…….J. (HARJIT SINGH BEDI)

New Delhi, September 18, 2008     

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