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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION      CRIMINAL APPEAL NO. 1582 OF 2013

RAJAGOPAL                                    Appellant(s)                                 VERSUS MUTHUPANDI @ THAVAKKALAI & ORS.             Respondent(s)

J U D G M E N T R.F. Nariman, J. 1) The facts in the present case are as follows:- i) Five  accused  persons,  armed  with  deadly  weapons, attacked and injured Rajagopal (PW-1) at about 2.30 p.m. on 06.11.1999, who was standing at the Kandavilai bus stop, causing at least 12 grave injuries which involved fracture of his skull, fracture of the bones of both legs as well as on the wrist.  Subsequently, PW-1 suffered amputation of both legs as a consequence of the attack suffered by him. ii) The  prosecution  has  examined  as  many  as  19 witnesses, and Rajagopal (PW-1), the Complainant himself, has, both in his complaint and evidence, (which was not shaken in cross-examination), stated in detail as to the role of each of the accused.

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iii) It may be mentioned here that all the accused were identified by him, and accused No.1 abused him and stated “hack him to death.  Let him die and get lost.”  Accused No.2 hacked at his left arm left hand elbow with a sickle after  which  accused  No.1  hit  him  on  his  head  with  a sickle and further injured him by hacking at the left lateral malleolus.  Accused No.3, another son of accused No.1,  hacked  at  PW-1's  right  loin  and  back  and  also injured him by hacking at his right lateral malleolus. Accused No.4 hit his chin with a sickle, and accused No.5 hacked at his ring and middle fingers on the left hand and ring finger on the right hand with a sickle. iv) The  medical  evidence  corroborates  the  fact  that there  were  twelve  serious  injuries  together  with  the skull bone cracked and legs and hands fractured.  PWs 3,4,5,8 and 14, who were examined to speak of the arrest, confession and recovery of weapons from the accused, have turned hostile.  Even PW-6, the sister of PW-1 who was engaged to speak on behalf of the prosecution as to the motive for the alleged attack, has turned hostile.  PWs 7 and  13,  witnesses  to  the  mahazar,  have  also  turned hostile. v) The  Additional  District  Judge,  Fast  Track  Court No.II,  Tirunelveli,  convicted  all  the  five  accused persons under Section 148 and Section 307 read with 149 of  the  I.P.C.  and  sentenced  them  to  seven  years

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imprisonment with fine of Rs.5,000/ each. vi) The High Court has reversed the finding of the Trial Court, giving five reasons as to why in a case, like the present one, the conviction should be upset.  This is despite the fact that PW-1, the complainant, an injured eye witness who was lived to tell the tale, had deposed as aforesaid.  2) Mr.  V.  Prabhakar,  learned  counsel  appearing  on behalf  of  the  appellant-Complainant,  has  addressed  us. His argument is that the five circumstances mentioned by the High Court not only have answers to each of them which are largely given in the Trial Court judgment, but has also argued that without disturbing the evidence of the  injured  eye  witness,  the  High  Court  could  not possibly  have  come  to  the  conclusion  that  the  five persons  convicted  by  the  Trial  Court  ought  to  be acquitted. 3) According to the learned counsel, PW-1 has, in his evidence,  identified  each  one  of  the  accused  and  has stated each one's specific role in injuring him.  Lethal weapons  have  been  used,  and  it  is  obvious  that  the intention was to kill PW-1.  Fortunately, for him, since the incident took place at 2.30 p.m. in the afternoon, in a busy place, and because he shouted at the accused and there were people around, the five accused ran away.

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4) On behalf of the five accused persons, we have heard Mr.  Kathirvelu,  the  learned  senior  counsel,  who  has argued that each one of the five circumstances mentioned by the High Court, particularly, the point of delay would go to show that there were a large number of lapses on the part of the prosecution and that, therefore, the five circumstances mentioned by the High Court would at the very least lead to there being a reasonable doubt.  We were  also  told  that,  this  being  a  case  of  acquittal, since  the  High  Court's  view  was  a  possible  view,  we should  not  interfere  under  Article  136  of  the Constitution.  5) Having  heard  the  learned  counsel  for  both  the parties, we are of the view that without discrediting the evidence of PW-1, the injured witness, the judgment of the High Court has crossed the line of non interference in acquittals, namely, that it is not a possible view. Given the direct evidence of PW-1, as has been pointed out  by  learned  counsel  appearing  for  the  Complainant, the impugned judgment cannot be sustained. 6) As has been stated earlier, PW-1 has unequivocally stated both in his complaint and in evidence tendered before the Court, which has not been shaken in cross, that the five accused persons, after shouting and abusing him, assaulted him with deadly weapons.  Not only has he identified all five, but he has also stated with great

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clarity the role of each one of them as to what exactly each one shouted and which weapon was wielded on which specific part of his body.  There can be absolutely no doubt having regard to this direct evidence that from the weapons  used  and  from  what  was  shouted  and  from  the nature  of  the  injuries,  the  common  object  of  this unlawful assembly was to kill PW-1.  7) However, according to the High Court, the FIR was registered  after  some  delay  namely,  at  10.45  p.m.  at Radhapuram Police Station, that is roughly eight hours after the incident.  The Trial Court has adverted to the reason  for  the  delay  as  being  information  and communication  loss.   The  information  first  went  from Kottar Government Hospital to the Kottar Police Station and thereafter to the Radhapuram Police Station.  The finding of the Trial Court is that the reason for the delay is on the part of the police officials.  Whether this is in fact so is not necessary for us to decide finally, inasmuch as the direct evidence of PW-1, which has  not  been  adverted  to  or  disbelieved  by  the  High Court, is sufficient for us to disregard this delay of eight hours in the filing of the FIR. 8) We were also told that the page of the General Diary relating to 06.09.1999 was torn.  This, by itself, leads us nowhere.  The High Court adverts to the fact that the complaint  does  not  bear  any  communication  that  the

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concerned officer recorded the same, and that it bears the endorsement of the S.I. Pandian.  Here again, the Trial  Court  dubs  this  as  a  mistake  by  stating  that instead of saying “received by me and registered a case” it was stated “recorded by me and registered a case”. Such a mistake in any case would not be fatal given the fact that PW-1 has himself given direct evidence of the incident.  Points 3 to 5 mentioned in the High Court, namely, that nobody has been examined from residences and shops nearby; and that no taxi driver has been examined since PWs 1 and 2 claim to have gone to hospital in a taxi;  and  that  the  motor  cycles  on  which  the  accused drove are not seized, all pales into insignificance once direct evidence is available. 9) Equally, it is well established that motive does not have to be established where there is direct evidence. Given the brutal assault made on PW-1 by criminals, the fact that witnesses have turned hostile can also cut both ways, as is well known in criminal jurisprudence. 10) Given the fact that stares one in the face, namely, that the High Court has not at all dealt with the direct evidence of PW-1 and given the fact that such evidence has  stood  the  test  of  cross-examination,  we  are constrained to observe that the view taken by the High Court is not a possible view and we therefore set aside the acquittal of the five accused persons and restore the

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conviction and sentence imposed upon them by the Trial Court.  11) Accordingly, the appeal is allowed in the aforesaid terms. 12) The respondents are directed to surrender before the concerned Court within a period of two weeks from today to serve out the remainder of sentence imposed by the Trial Court.     

  ........................J    (ROHINTON FALI NARIMAN)

  ........................J    (MOHAN M. SHANTANAGOUDAR)

NEW DELHI;    February 28, 2017.