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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.