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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1839 OF 2009

Raja @ Sasikumar & Anr.         …..Appellant(s)

Versus

State through Inspector of Police               ....  Respondent(s)

J U D G M E N T

P.Sathasivam,CJI.

1) This appeal is directed against the judgment and order  

dated 15.03.2007 passed by the High Court of Judicature at  

Madras  in  Criminal  Appeal  No.  963  of  2005  whereby  the  

Division Bench of the High Court disposed of the appeal by  

acquitting A4 to A6 and confirmed the order of conviction  

and  sentence  dated  27.10.2005  in  respect  of  A1  to  A3  

passed by the Additional  District  Sessions Judge, Salem in  

Sessions Case No. 254 of 2004.

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2) The facts and circumstances giving rise to this appeal  

are as under:

(a) This case relates to the death of one person by name  

Babu - resident of Kullaveeranpatti, Mettur, Tamil Nadu.  One  

Arumugam@Arupaiyan, who was working as a car driver at  

Sadurangadi,  Mettur,  was having an affair  with one Chitra  

(PW-6),  who, at  the relevant time, was working at  Krishna  

Medicals.   One  Palanichami,  who  was  working  as  a  car  

cleaner, too was in love with her.

(b) When  Chitra  informed  Arumugam@Arupaiyan  about  

Palanichami, he confronted the cleaner and when the driver  

of the car-Senthil (A-7) asked him as to why he confronted  

him,  Arumugam@Arupaiyan  started  beating  Senthil  which  

resulted in enmity between A-7 and Arumugam@Arupaiyan.  

A-7 also developed grudge against one Babu – the deceased,  

friend of Arumugam@Arupaiyan, who also helped him during  

the abovesaid incident and even at one point of time, when  

both the groups were fighting, A-7 shouted at him that he (A-

7) will not spare him at any cost.   

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(c)  On  18.04.2001,  when  Babu  was  trying  to  start  his  

motorcycle,  the  accused  persons,  viz.,  Saravanan  (A-1),  

Raja@Sasikumar (A-2), Natesan@Natarajan (A-3), Karthik (A-

4),  Chandran@Chandramohan  (A-5)  and  Sakthivel  (A-6),  

intercepted him and prevented him from going further from  

that spot and A-1 inflicted a sickle blow on his hand.   In  

order to escape, Babu went inside the shed of one Sengodan  

(PW-3), but A-1, A-2 and A-3 also went inside that shed and  

inflicted cuts on him indiscriminately as a result of which he  

fell down and the accused persons fled away assuming that  

he was dead.

(d) Babu  was  immediately  taken  to  the  Government  

Hospital, Mettur for treatment by one Radhakrishnan (PW-2)  

and  Sengodan  (PW-3)  but  he  succumbed  to  his  injuries.  

Radhakrishnan  (PW-2)  lodged  a  complaint  against  the  

accused persons with the Police Station, Mettur which was  

registered as FIR No. 402 of 2001 under Section 302 of the  

Indian Penal Code, 1860 (in short ‘the IPC’).

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(e) After investigation, charges were framed against all the  

above named accused persons including Senthil (A-7) under  

Section 302 read with Section 34, Section 120-B and Section  

342 IPC and the case was committed to the Court  of the  

Additional District Sessions Judge, Salem and was numbered  

as Sessions Case No. 254 of 2004.  The Additional District  

Sessions Judge, by order dated 27.10.2005, sentenced A-1 to  

A-6 to suffer rigorous imprisonment (RI) for 6 months for the  

offence  punishable  under  Section  342  of  IPC  and  

imprisonment  for  life  for  the  offence  punishable  under  

Section 302 read with Section 34 IPC along with a fine of Rs.  

1,000/- each, in default, to further undergo RI for 3 months.  

However, A-1 to A-7 were acquitted under Section 120-B IPC  

and A-7 was acquitted of all the charges.  

(f) Being aggrieved of the order dated 27.10.2005, A-1 to  

A-6 filed Criminal Appeal No. 963 of 2005 before the High  

Court.  The Division Bench of the High Court, by order dated  

15.03.2007, disposed of the appeal by acquitting A-4 to A-6  

while sustaining the conviction and sentence of A-1 to A-3.

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(g) Being aggrieved by the order of the High Court, A-2 and  

A-3 has preferred this appeal by way of special leave before  

this Court.

3) Heard Mr. V. Kanagaraj, learned senior counsel for the  

appellants-accused  and  Mr.  M.  Yogesh  Kanna,  learned  

counsel for the respondent-State.

Contentions:

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

appellants  submitted  that  the  evidence  of  eye-witnesses,  

viz., PWs 2 & 3, read with the evidence of other prosecution  

witnesses,  creates  a  doubt  about  the  case  of  the  

prosecution, hence, the conviction based on such evidence  

cannot be sustained.  He also submitted that inasmuch as  

Kasinathan (PW-14) - the Investigating Officer has stated in  

his evidence that he examined PW-3 on 20.04.2001 and PW-

3 in his evidence before the Court contradicted his statement  

that the police never examined him, the evidence of PW-3  

has to be disbelieved in toto.  He also pointed out that with  

regard to the actual place of occurrence, the evidence of PWs  

2 and 3 contradicts each other, therefore, it is not safe to rely  

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upon their evidence.  He further pointed out that both PWs 2  

and 3, could not identify the weapon and this aspect was also  

not considered by the High Court.  He also submitted that as  

per the evidence of PW-2, he has given only oral complaint  

which  was  reduced  into  writing  by  the  police  and  was  

attested  by  one  Maheswaran  whereas  as  per  the  

Investigating  Officer  (PW-14),  PW-2  has  given  a  written  

complaint and the same was registered and not attested by  

the aforesaid person. In such circumstance, learned senior  

counsel submitted that it is not safe to rely upon the case of  

the  prosecution.   He  also  submitted  that  the  prosecution  

failed  to  establish  the  motive,  i.e.,  the  love  affair  by  

examining  Arumugam@Arupaiyan  and  Palanichami.   The  

said  two  persons  having  enmity  between  them  and  the  

deceased  alleged  to  have  died  on  supporting  

Arumugam@Arupaiyan and the accused persons alleged to  

have supported Palanichami.   

5) On the other hand, Mr. Yogesh Kanna, learned counsel  

for the respondent-State submitted that the prosecution has  

fully established the motive for the crime.  He also pointed  

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out that the courts below, particularly, the High Court, rightly  

relied on the evidence of PWs 2 and 3, who witnessed the  

incident  and  convicted  the  appellants  herein.   He  also  

pointed  out  that  PW-2,  being  the  author  of  the  complaint  

(Exh. P-1), there is no reason to disbelieve his statement.  He  

further highlighted that PWs 2 and 3 were the persons who  

brought the injured to the hospital within 20 minutes after  

the occurrence and the presence of PW-3 was also proved by  

marking a copy of the Accident Register dated 18.04.2001 as  

Exh.  P.-18.  He  finally  submitted  that  due  to  minor  

contradictions in the evidence of the prosecution witnesses,  

the entire prosecution case cannot be thrown out.  

6) We have carefully considered the rival contentions and  

perused the relevant materials.

Discussion:

7) It is not in dispute that out of 7 accused, the conviction  

relating to A-1 to A-3 was confirmed by the High Court and A-

2  and  A-3  alone  preferred  this  appeal,  therefore,  we  are  

concerned about the role and involvement of A-2 and A-3 in  

the commission of the crime as projected by the prosecution.  

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Though the prosecution has examined PWs 2 to 5 as eye-

witnesses to the crime, the High Court itself has disbelieved  

the evidence of PWs 4 and 5 and the entire prosecution case  

rests upon the evidence of PWs 2 and 3.  We are conscious of  

the  fact  that  relying  upon  the  prosecution  witnesses,  the  

High Court set aside the conviction of A-4 to A-6 in toto and  

acquitted them.  It is also relevant to point out that the High  

Court  took  note  of  the  general  principle  that  if  the  

prosecution case is the same against all the accused or with  

regard to some of the accused on the same set of evidence  

available  on record with reference to any of the accused,  

then   the  Court  would  not  be  committing  any  mistake  in  

acquitting all the accused and conversely, if it is possible to  

do so, namely, to remove the chaff from the grain, the Court  

would  not  be  committing  any  mistake  in  sustaining  the  

prosecution case against whom the evidence is shown to be  

intact.

8) It is true that in the earliest information, there was no  

reference to the presence of PWs 2 to 5.  In other words, their  

names did  not  find place in  the complaint  (Exh.  P-1).   As  

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rightly  observed  by  the  High  Court,  there  is  no  need  to  

mention all  the details  graphically  in  the complaint  and it  

depends  upon  so  many  factors  such  as  condition  of  the  

injured  etc.   It  is  also  not  in  dispute  that  the  incident  

occurred on 18.04.2001 at 8.20 p.m.  Inasmuch as PWs 4 & 5  

were  examined  by  the  Investigating  Officer  only  on  

20.04.2001,  there  were  vast  inconsistencies  in  noting  the  

presence of the accused at the scene of occurrence as well  

as in the number of assailants at the earliest point of time  

and the High Court has rightly disbelieved the version of PWs  

4 & 5.  If there is any tangible and acceptable material from  

the evidence of PWs 2 and 3 in the earliest information, i.e.,  

the  complaint  (Exh.  P-1),  which  is  believable,  there  is  no  

reason to reject the case of the prosecution insofar as the  

appellants are concerned.

9) A  perusal  of  the  FIR  (Exh.  P-19)  discloses  that  the  

incident  occurred  on  18.04.2001  at  8.20  p.m.  and  the  

information  was  received  by  the  Police  Station,  Mettur  at  

10.00 p.m. on the same day itself and an FIR being No. 402  

of 2001 was registered based on the written complaint by  

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the complainant-Radhakrishnan (PW-2).  It is stated that one  

Arumugam@Arupaiyan was his friend and he was having an  

affair with one Chitra (PW-6), who at the relevant time was  

working  at  Krishna  Medicals.   Another  person,  by  name  

Palanichami, who was working as a car cleaner, too was in  

love with her.  It is further stated that Arupaiyan confronted  

the said cleaner and when the driver of the car, viz., Senthil  

(A-7)  questioned the same,  Arupaiyan had beaten Senthil.  

Based on the said incident, the accused persons, including  

the  present  appellants,  threatened  the  deceased  and  his  

persons.  In the said complaint, PW-2 has made a specific  

reference  about  the  role  of  A-1,  A-2  and  A-3.   It  is  also  

asserted that it was A-1 to A-3 who inflicted cut injuries on  

Babu (the deceased). The complainant has also stated that  

with the aid of one Sengodan (PW-3), he admitted Babu in  

the Government Hospital at Mettur for treatment but in spite  

of the same, he succumbed to the injuries.  The same has  

been endorsed by the  Inspector,  Mettur  on 18.04.2001 at  

2130 hrs. at  Government Hospital,  Mettur and a case was  

registered in Mettur PS Crime No. 402/2001 under Section  

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302 IPC  on 18.04.2001 at  2200 hrs.   It  is  clear  from the  

complaint that the complainant (PW-2) has implicated A-1 to  

A-3 (A-2  & A-3 are  the  appellants  herein)  and specifically  

stated that they are the persons who inflicted fatal injuries  

on  Babu  (the  deceased).   There  was  no  delay  in  making  

complaint and the same was duly registered by the police.

10) Insofar as the evidence of PW-2 is concerned, he is also  

a resident of Kullaveerampatti in Mettur.  In his evidence, he  

deposed  that  he  knew  all  the  accused  persons  and  on  

18.04.2001  when  he  and  Babu  (the  deceased)  were  on  

election duty, they parked their Bullet Motor Cycle in front of  

Sengodan’s  Lathe  Shed  near  Navapatti  Agricultural  

Cooperative Bank and, thereafter, they went for the election  

work.  When they returned after completing their work, at  

that  time,  suddenly,  5  persons came from the  west  main  

road and attacked  on the  back  of Babu.   Immediately,  in  

order to escape, Babu ran inside the Lathe Shed of Sengodan  

(PW-3).   In  the  open  Court,  PW-2  identified  A-2  and  A-3  

correctly.  He further deposed that after inflicting cut injuries  

to  Babu,  they  ran  towards  the  South  of  the  Lathe  Shed.  

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Thereafter, PWs 2 & 3 went inside the Lathe Shed and saw  

that Babu was lying in a pool of blood and struggling for life.  

They took Babu in an auto-rickshaw and admitted him in a  

Hospital  where Doctor informed them that  Babu has died.  

The  injuries  of  all  other  aspects  have  been  noted  in  the  

Accident Register and a copy of the same has been marked  

as Exh. P-18.   Though Shri R. Raju, the Doctor who issued  

Exh. P-18, i.e. the Accident Register, has not been examined,  

all  the  details  have  been  explained  by  the  Doctor  who  

conducted the post mortem on the body of the deceased.  It  

is also noted that PW-3 was also present in the hospital along  

with PW-2.

11) Deposition of Sengodan (PW-3) shows that he was also  

a native of Kullaveerampatti in Mettur.  He also narrated the  

entire incident implicating A-1 to A-3.  He deposed before the  

court  as  to  how Radhakrishnan  (PW-2)  came  to  the  spot  

along with Babu (the deceased) and how he was attacked by  

A-1 to A-3.  He also mentioned that it  was Radhakrishnan  

(PW-2) who took the deceased to the Hospital  in an auto-

rickshaw along with him.   

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12) As rightly observed by the High Court, inasmuch as in  

the  earliest  document,  namely,  the  complaint,  there  is  a  

specific  reference  to  the  involvement  and  role  of  the  

appellants including A-1 supported by the evidence of PWs 2  

& 3 and the name of PW-3 has also been mentioned in the  

accident register (Ex. P-18), there is no valid reason to reject  

the evidence of eye-witnesses, viz., PWs 2 & 3.  No doubt,  

there were some variations in the statements of PWs 2 & 3  

and  the  Investigating  Officer  (PW-14),  however,  when  the  

variations  are  negligible  about  making  of  the  complaint,  

taking  note  of  the  assertion  of  PWs 2  and  3  and  various  

injuries  inflicted  on  Babu,  we  concur  with  the  conclusion  

arrived at by the High Court in accepting their evidence (PWs  

2 & 3) on all aspects insofar as A-1 to A-3.   

13) Inasmuch as the prosecution has established the motive  

for the commission of offence, the evidence of PWs 2 & 3 are  

acceptable insofar as the involvement of A-2 and A-3 in the  

crime in question is concerned.  In view of the presence of  

PW-3, which is also noted in the Accident Register (Exh. P-18)  

and of the fact that the contradictions are minor in nature,  

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we agree with the conclusion arrived at by the High Court.  

Consequently,  we  reject  all  the  arguments  advanced  by  

learned senior counsel for the appellants.

14)  In the light of the above discussion, we do not find any  

merit in the appeal, consequently, the same is dismissed.   

       ……...…………………………CJI.                     (P. SATHASIVAM)                                  

       ………….…………………………J.                    (RANJAN GOGOI)  

NEW DELHI; AUGUST 22, 2013.

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