Vijaykumar Vs. State by
Inspector of Police, Madras & ANR  INSC 810 (21 April 2009)
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.
Dr. ARIJIT PASAYAT,
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.
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.
said Vincent assaulted Johnson with reference to which a police case was
2 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
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.
(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.
undertaken and on completion thereof charge sheet was filed. Accused pleaded
innocence and faced trial.
considering the materials on record the trial Court acquitted both the accused
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 had been examined. Hence the arguments on both sides were heard."
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.
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.
counsel for the respondent-State on the other hand supported the judgment.
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.
(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.
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
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.
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 that the Doctor was
informed that two known persons had attacked the deceased and P.W.1 in
Mulamootuvilai village with weapons.
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.
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 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.
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
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.
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.
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
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 accused came and attacked
Johnson and while PW1 intrervened, he was also attacked. Admittedly, she is not
related to the deceased family.
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
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.
being the position, we find no merit in these appeals which are accordingly
(Dr. ARIJIT PASAYAT)