RAJA@ SASIKUMAR & ANR.versusSTATE THROUGH INSPECTOR OF POLICE

                        [2013] 9 S.C.R. 230


A                  RAJA@ SASIKUMAR & ANR.
                                  V.
           STATE THROUGH INSPECTOR OF POLICE
              (Criminal Appeal No. 1839 of 2009)

                         AUGUST 22, 2013
B
        [P. SATHASIVAM, CJI AND RANJAN GOGOi, J.]

        PENAL CODE, 1860:

c        s. 302134 - Murder - Conviction of 3 out of 7 accused -
    Appeal. by two of the convicts -- Held: In a case of several
    accused persons, on the same set of evidence, if it is possible
    to remove the chaff from the grain, then the court would not
    be committing any mistake in sustaining the prosecution case
0   against whom the evidence is shown to be intact - In the
    instant case, testimonies of PWs are acceptable insofar as
    the involvement of appellants in the crime is concerned -- The
    conclusion arrived at by High Court is concurred with.

        FIR:
E
         Contents of FIR - Witnesses not named in complaint -
    Held: 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.
F
       The two appellants along with five others, were
  prosecuted for committing offences punishable u/ss 302/
  34, 120-8 and 342 IPC. The prosecution case was t.';',d'c -ill
  will between a car cleaner and a car driv~ 'oecause of a
G woman (PW 6), created bad ':,',ood between their
  respective supporters, ni!.~.e.ly, A-7 and deceased 'B'. On
  the date of incid~~;t A-1 to A-6 attacked 'B' who went
  inside the ~~ed of PW3 and fell down. PW and PW 3  2
  ~ook, ~.Im to hospital, where he succumbed to his injuries.
  PW 2 then lodged a complaint and the police registered
H                                230
    RAJA @ SASIKUMAR v. STATE THROUGH                   231
           INSPECTOR OF POLICE
the FIR. The trial court convicted A-1 to A-6 u/ss 302/34     A
and 342 IPC. A-1 to A-7 were acquitted of the charge u/s
120-B IPC; and A-7 was acquitted of all the charges. The
High Court affirmed the conviction of A-1 to A-3 u/s 302
IPC and acquitted the remaining accused. Aggrieved, A-
2 and A-3 filed the appeal.                                   B

    Dismissing the appeal, the Court

      HELD: 1.1 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 and if it is     C
possible to remove the chaff from the grain, then the court
would not be committing any mistake in sustaining the
prosecution case against whom the evidence is shown
to be intact. [Para 7] [236-F-G]
                                                                D
     1.2 It is true that in the earliest information, there was
no reference to the presence of PWs 2 to 5. However, the
High Court has rightly observed that there is no need to
mention all the details graphically in the complaint afld it
depends upon so many factors such as comlition of the
                                                                E
injured etc. The FIR was registered based on the written
complaint made by the c~mplainant (PW-2). In the
complaint PW-2 ha,~ 1mplicated A-1, A-2 and A-3, and
specifically st:(ed that they inflicted fatal injuries on the
dece~oed and. that with the aid of PW-3 he admitted the
                                                                F
deceased in the Government Hospital where he
succumbed to the injuries. The same has been endorsed
 by the Inspector. The genesis of the crime is also
 mentioned in the complaint. There was no delay in
 making the complaint and the same was duly registered
 by the police. PW-2 is a local resident. In his evidence, G
 he deposed that he knew all the accused persons. The
 injuries and other aspects have been noted in the
 Accident Register and a copy of the same has been
 marked as Ext. P-18. Though the Doctor who issued Ext.
 P-18 has not been examined, all the details have been H
    232       SUPREME COURT REPORTS            (2013] 9 S.C.R.


A e~plained 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. The
  evidence of PW 2 has been corroborated by PW 3,
  another local resident. The name of PW-3 has also been
B mentioned in the accident register (Ex. P-18). [para 8-12)
  [236-G-H; 237-A-D, F-H; 238-B-C, F-H; 239-A-C]

       1.3 There is no valid reason to reject the evidence of
  eye-witnesses, viz., PWs 2 and 3. The prosecution has
  established the motive for the commission of offence.
C The variations in the statements of PWs 2 and 3 and the
  Investigating Officer (PW-14) are negligible. The
  testimonies of PWs 2 and 3 are acceptable insofar as the
  involvement of A-2 and A-3 in the crime in question is
  concerned. This Court concurs with the conclusion
D arrived at by the High Court. [Para 12-13) [239-C-D, E-F]

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1839 of 2009.

       From the Judgment and Order dated 15.03.2007 of the
E High Court of Judicatuie Cit Madras in Criminal Appeal No. 963
  of 2005.

         V. Kanagaraj, Kovilan Poongkuntran, Gebtha Kovilan for
    the Appellants.
F
        Yogesh Kanna, A Santha Kumaran, S. Sasikala for the
    Respondent.

          The Judgment of the Court was delivered by

G       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
H of conviction and sentence dated 27.10.2005 in respect of A 1
      RAJA @ SASIKUMAR v. STATE THROUGH                   233
    INSPECTOR OF POLICE [P. SATHASIVAM, CJI.]
to A3 passed by the Additional District Sessions Judge, Salem     A
in Sessions Case No. 254 of 2004.

    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     B
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        C
in love with her.

     (b) VVhen Chitra informed Arumugam@Arupaiyan about
Palanichami, he confronted the cleaner and when the driver of
the car-Senthil (A-7) askeci hlrn as to why he confronted him,    D
Arumugam@Arupaiyan started beati:-!g Senthil which resulted
in enmity between A-7 and Arumugam@Al~paiyan. A-7 also
developed grudge against one Babu - the deceased, friend of
Arumugam@Arupaiyan, who also helped him during iii~
abovesaid incident and even at one point of time, when both
                                                                  E
the groups were fighting, A-7 shouted at him that he (A-7) will
not spare him at any cost.

      (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-       F
 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    G
 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         H
   ..!
    234       SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A 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
B Indian Penal Code, 1860 (in short 'the IPC').

           (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
C 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 suffe~ rigorous imprisonment (RI) for 6 months for the
  offence punishable under Section 342 of iPC and imprisonment
D for life for the offence punishable under Section 302 read with
  Section 34 IPC along ~i.t~1 a fine of Rs. 1,000/- each, in default,
  to further unde~i;,o RI for 3 months. However, A-1 to A-7 were
  acquitt~ under Section 120-B IPC and A-7 was acquitted of
  'd'1"1 the charges.
E
       (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
F while sustaining the conviction and sentence of A-1 to A-3.

         (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.

G          3. Heard Mr. V. Kana~araj, learned senior counsel for the
      appellants-accused and Mr. M. Yogesh Kanna, learned counsel
    . for the respondent-State.

     Contentions:
H         4. Mr. V. Kanagaraj, learned senior counsel for the
     RAJA @ SASIKUMAR v. STATE THROUGH                       235
   INSPECTOR OF POLICE [P. SATHASIVAM, CJI.]
appellants submitted that the evidence of eye-witnesses, viz., A
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 B
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 c
contradicts each other, therefore, it is not safe to rely 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
                                                                     0
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 E
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.                       F

      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 out that
the courts below, particularly, the High Court, rightly relied on. G
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 H
    236      SUPREME COURT REPORTS                [2013] 9 S.C.R.


A 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
B be thrown out.
        6. We have carefully considered the rival contentions and
    perused the relevant materials.

    Discussion:
c
        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
0 the commission of the crime as projected by the prosecution.
  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
E 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
F 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
G 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 rightly
H observed by the High Court, there is no need to mention all the
    RAJA @ SASIKUMAR v. STATE THROUGH                       237
  INSPECTOR OF POLICE [P. SATHASIVAM, CJI.]

details graphically in the complaint and it ~epends upon so         A
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       B
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   c
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     D
p.m. on the same day itself and an FIR being No. 402 of 2001
was registered based on the written complaint by 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         E
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         F
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          G
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       H
                            \.-'   .
    238      SUPREME COURT REPORTS                [2013] 9 S.C.R.


A a case was registered in Mettur PS Crime No. 402/2001 under
  Section 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
B 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,
C   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
D   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 furthe.r
    deposed that after inflicting cut injuries to Babu, they ran
E   towards the South of the Lathe Shed. 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
F   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.
G   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
H the entire incident implicating A-1 to A-3. He deposed before
       RAJA @ SASIKUMAR v. STATE THROUGH                    239
     INSPECTOR OF POLICE [P. SATHASIVAM, CJI.]
the court as to how Radhakrishnan (PW-2) came to the spot           A
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.
                                                                    B
     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-      C
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       D
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            E
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,    F
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.           G

R.P.                                        Appeal dismissed.