STATE BY INSPECTOR OF POLICE, T. NADUversusRAKIAPPAN AND ORS.

                                 [2008) 15 S.C.R. 301

-...

                    STATE BY INSPECTOR OF POLICE, T. NADU                     A
__,.,                                     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.]
        ~
       -~          Penal Code, 1860- ss.302 and 307 rlw s.34- Homicidal
              death - PW2, an injured child witness - His statement       1
                                                                              c
              recorded by PW6, Investigating Officer- Trial Court recorded'
              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 D
              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.
                   The prosecution case was that the accused- E
              Respondents 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 F
              Officer (PWG).
                   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         G

 r
  .           to give the purported statement before PW6. Hence the
              present appeal.
        -.:
                  Allowing the appeal and remitting the matter to the
                                         301
                                                                              H
    302                  SUPREME COURT REPORTS   [2008] 15 S.C.R.


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
  did .nut examine the acceptability, credibility and
0
  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 th~ Appellant.
     -   1   •   :   •        -
                                                                    \....

        V. Krishnamurthy, Sr. Adv., T.'Harish Kumar, P. Prasanth
H   and V: Vasudevan for the Respondents.
              STATE BY INSPECTOR OF POLICE, T. NADU v.                  303
                         RAKIAPPAN AND ORS.

     -        The Judgment of the Court was delivered by
              DR. ARIJIT PASAYAT, J. 1. Heard.
                                                                                   A


               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
-t       imprisonment for life for the first offence, nine years for the
     •   second offence. The accused persons preferred appeal before               F
         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

              3. Learned counsel for the appellant-State in Criminal
J.
         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<-
    304        SUPREME COURT REPORTS               [2008) 15 S.C.R.             >


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                       I.-
  submitted that PW2 was a child at the time of occurrence. Child               r
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
                                                                        'f
  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        "
                                                                        -j-     :


  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.

       5. In view of the above, we find that the High Court had
  not indicated any plausible reason to discard the evidence of
                                                                        ~-
                                                                         I

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
  the High Court to consider the appeal afresh· and decide
G
  whether the evidence of PW2 is sufficient to fasten the guilt on
  the accused persons as projected by prosecution.
                                                                        ,:1,.

          6. The appeals are allowed_ to the aforesaid extent.

    8.8.B.                                        Appeals allowed.
H