High CourtDivision Bench2008-10-21Appeals allowed.

State by Inspector of Police, Tamil Nadu v. Rakiappan and Others

Case / Petition Number:Criminal Appeal Nos. 140 of 2003 and 141 of 2003

Neutral Citation:[2008] 15 SCR 301

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. Arijit Pasayat
C.K. Thakker
Lokeshwar Singh Panta
Judgment Date: 2008-10-21
Court Decision / Holding: Appeals are allowed to the extent stated, with remand to the High Court of Judicature at Madras for fresh consideration. The High Court is directed to examine whether PW2’s evidence, when weighed against other materials on record, is sufficient to fasten guilt on the accused as projected by the prosecution, and to decide the appeal afresh accordingly.
Final Disposition: Appeals allowed.

Parties to the Case

Appellants / Petitioners

State by Inspector of Police, Tamil Nadu

Respondents

Rakiappan and Others

Legal Representation & Advocates

Counsels for Petitioners

• M. Karpagavinayakam, Sr. Adv.
• S. Til-ananjayn
• P.N. Ramalingam
• Anil Kaushik
• Shiv Prakash Pandey
• Deepak Jain

Counsels for Respondents

• V. Krishnamurthy, Sr. Adv.
• T. Harish Kumar
• P. Prasanth H
• V. Vasudevan

Case Synopsis & Summary

Two appeals arise from a single homicidal incident in which four accused allegedly killed two persons in a house. PW2, a 12-year-old eye-witness, sustained injuries and his statement was recorded by the Investigating Officer on 13.12.1995 after his hospital admission. The Trial Court convicted the four accused under Section 302 and 307 read with Section 34 IPC, primarily on PW2’s testimony. The Madras High Court, however, allowed the appeals and acquitted the respondents, holding that PW2 was not in a fit condition to give his purported statement before PW6, and doubting the credibility of a child witness. The Supreme Court reverses this approach. It notes that medical evidence (PW17) shows PW2 had regained consciousness within days of the incident and that his statement was eventually recorded and placed before the court on 14.12.1995, undermining the High Court’s rationale. The Court finds that the High Court did not properly assess PW2’s evidence in the context of other materials on record and was driven by surmise. Consequently, the matter is remitted to the High Court for fresh consideration to determine whether PW2’s testimony is sufficient to fasten guilt on the accused, as charged by the prosecution. The appeals are allowed to that extent, with directions to re-evaluate the evidence and decide on the appropriate course.

Provisions of Law Cited

Section 302 IPCSection 307 IPCSection 34 IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that the High Court's acquittal was based on surmises and conjecture. PW2’s alleged statement, though given by a child witness, is not inherently unreliable and was supported by other materials in the record. The medical evidence indicates PW2 had regained consciousness and was capable of giving a statement by 9–10 December 1995. The fact that the statement was made and reached the court by 14 December 1995 undermines the High Court’s conclusion that PW2 was not fit to testify, and the Trial Court’s conviction based on PW2’s evidence should be considered on the merits after proper evaluation of credibility, not discarded on a hypothetical assertion of incapacity. The Court is urged to remand for fresh appraisal of the evidence in light of the entire record, rather than setting aside the conviction on grounds not grounded in the available materials.

Contentions of Respondents

The respondents contend that PW2, as a child witness, could have been tutored, and the entire purported statement may be unreliable. The High Court’s acquittal was justified given PW2’s condition at the relevant times and the lack of independent corroboration for his testimony. The nature and severity of injuries suggested that PW2 could not have provided an admissible statement in the manner recorded, and the possibility of tutoring undermines the credibility of the prosecution case. The High Court properly evaluated the evidence and should not be subjected to re-litigation of credibility on remand, as the consequences could amount to reversible errors in weighing the eyewitness account.

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Extracted Judgment Text

Exact text extracted from official judgment records.

[2008) 15 S.C.R. 301 A ~ -~ # STATE BY INSPECTOR OF POLICE, T. NADU 11. RAKIAPPAN AND ORS. (Criminal Appeal No. 140 of 2003) ## OCTOBER 21, 2008 B ## [DR. ARIJIT PASAYAT, C.K. THAKKER AND LOKESHWAR SINGH PANTA, JJ.] -~ . _r_ -.: _Penal Code, 1860- ss.302 and 307 rlw s.34- Homicidal recorded by death_ - _PW2, an PW6, Investigating injured child witness OfficerTrial Court recorded'_ - _His statement 1 conviction placing reliance upon the evidence of PW2_ - _High Court directed acquittal holding that PW2 was not in_ a _fit,_ - _condition to give the purported statement before PW6 Propriety of_ - _Held, not proper_ - _Evidence of PW17, the doctor, showed that PW2 was in conscious state and in_ a! _position to give statement before PW6_ - _High Court did not indicate any plausible reason to discard the evidence of PW2 -Matter remitted to High Court for fresh consideration._ _1_ c D The prosecution case was that the accusedRespondents caused the homicidal death of two persons. PW2, aged 12 years at the relevant time, was allegedly an eye witness to the occurrence. He received injuries during the incident and was taken to hospital' where his s!atement was recorded by· the Investigating Officer (PWG). E F Placing reliance upon the evidence of PW2, the Trial Court convicted the Respondents under ss.302 and 307 r/w s.34 IPC. On appeal, the High Court acquitted the Respondents holding that PW2 was not in a fit condition to give the purported statement before PW6. Hence the present appeal. G Allowing the appeal and remitting the matter to the 301 H [2008] 15 S.C.R. SUPREME COURT REPORTS 302 ## A High Court, the Court HELD: 1.1. The High Court appears to hav.e proceeded on surmises to hold that it was not possible · on the part of PW2° to give any statement. He was admitted on 08.12.1995 as an indoor patient. The evidence of PW17 B shows that he was in a position to give a .statement as he was consc.ious. PW17 categorically stated that on 9.12.1995, 10.12.1995 PW2 had regained consciousness and therefore the hypothetical conclusion of the High Cou.rt that PW2 was not in a fit condition to give any C statement on 13.12.1995 is clearly unsustainable. [Para 4] [304-C, DJ 1.2. The High Court had not indicated any plausible reason to discard the evidence of PW2. The High Court 0[did ][.nut ][examine ][the ][acceptability, ][credibility ][and ] truthfulness or otherwise of PW2's evidence by analysing the evidence _vis-a-vis_ the other factors and materials on record. In the circumstances, the matter is remitted to the High Court to consider the appeal afresh and decide whet!ier the evidence of PW2 is sufficient to fasten the E guilt on the accused persons as projected by prosecution. [Para 5] [304-F, G] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 140 of 2003. F From the final Judgment and Order dated 25.4.2002 of the High Court of Judicature at Madras in Criminal Appeal No. 281 of 1998. ## WITH G Crl. A.No. 141 of 2003. · . M. Karpgavinayakam, Sr. Adv., S. Ttl-ananjayn, P.N. Ramalingam, Anil Kaushik, Shiv Prakash Pandey and Deepak Jain for - _1_ • : th~ • Appellant. - V. Krishnamurthy, Sr. Adv., T.'Harish Kumar, P. Prasanth H and V: Vasudevan for the Respondents. 303 - ~ .... ~ -~ # STATE BY INSPECTOR OF POLICE, T. NADU RAKIAPPAN AND ORS. The Judgment of the Court was delivered by **DR. ARIJIT PASAYAT, J.** 1. Heard. -t • _J._ 2. These two appeals are directed against the judgment of a Division Bench of the Madras High Court allowing the appeal filed by the respondents i.e. Criminal Appeal No. 281/ B 1998. The respondents faced trial for allegedly committing homicidaldeath of two persons (hereinafter referred to as 01 and 02 respectively). The occurrence according to the prosecution took place on 7.12.1995 around 7.30 P.M. All the four accused persons entered into the house of the deceased c Nos. 1 and 2. A-1 held Nachimuthu Gounder while A-2 inflicted blows on the neck and cheek. A-4 threw down Saraswati while A-3 caught inflicted blow on her head, face and the eye. PW2 who was about 12 years then was an eye-witness to the occurrence. Ramu i.e. PW2 tried to avoid the attack which was [!) made on him because of the instigation of A 1. A2 inflicted blows on the head of PW2. The injured persons were taken to the hospital, PW2 regained consciousness and his statement was recorded by PW6 the investigating Officer on 13.12.1995. On completion of the investigation, charge sheet was filed. E Since the accused persons pleaded innocence, trial was held. The Trial court relying on the evidence of PW2 held the accused persons guilty and convicted each under Section 302 and 307 read with Section 34 IPC. Each was sentenced to undergo imprisonment for life for the first offence, nine years for the F second offence. The accused persons preferred appeal before the High Court which as noted above directed acquittal. The primary reason which appears to have weighed with the High Court to direct acquittal was that PW2 was not a in a fit condition to give the statement. Reference was made to the seriousness I of the injuries sustained by him as stated by the Doctor PW17. G B E F 3. Learned counsel for the appellant-State in Criminal Appeal No. 140/2003 submitted that the conclusion of the High Court was based on surmices and conjecture. Many salient factors have been lost sight of by the High Court. There was H I<- [2008) 15 S.C.R. SUPREME COURT REPORTS 304 _>_ ~- _I_ A nothing infirm in the evidence of PW2 to discard the same on the hypothetical ground that he was not in a position to give any statement. Learned counsel for the respondent-accused persons supported the judgment of the acquittal. It was submitted that PW2 was a child at the time of occurrence. Child B[witnesses are prone to be tutored and entire statement ][of ][PW2 ] purported to have been recorded is the outcome of such tutored. It was also pointed out with reference to the evidence regarding nature of injuries, that it is highly improbable that PW2 was in a for condition to give any statement. c 4. As rightly contended by learned counsel for the appellant the High Court appears to have proceeded on surmises to hold that it was not possible on the part of PW2 to give any statement. He was admitted on 08.12.1995 as an indoor patient. The evjdence of PW17 shows that he was in a position D to give a statement as he was conscious. PW17 categorically stated that on 9.12.1995, 10.12.1995 PW2 had regained consciousness and therefore the hypothetical conclusion of the High Court that PW2 was not in a fit condition to ·give any statement is clearly unsustainable. To add further vulnerability E the statement of PW2 reached the concerned court on the next date i.e. 14.12.1995. This is a very significant factor. -- **==> picture [7 x 6] intentionally omitted <==** **----- Start of picture text -----**<br> I.-<br>**----- End of picture text -----**<br> 'f ~- _-j-_ : " 5. In view of the above, we find that the High Court had not indicated any plausible reason to discard the evidence of F PW2. The High Court did not examine the acceptability, credibility and truthfulness or othervyise of PW2's evidence by analysi.ng the evidence vis-a-vis the other factors and materials on record. In the circumstances while setting aside the impugned judgment of the High Court' we remit the matter to G[the ][High ][Court ][to ][consider ][the appeal afresh· and ][decide ] whether the evidence of PW2 is sufficient to fasten the guilt on the accused persons as projected by prosecution. ,:1,. H 6. The appeals are allowed_ to the aforesaid extent.[8.8.B. ] Appeals allowed.