SUBRAMANI @ JEEVA @ KULLAJEEVAversusS.H.O., ODIYANSALAI

                      [2011] 4 S.C.R. 25


         SUBRAMANI @ JEEVA @ KULLAJEEVA                            A
                               v.
                    S.H.O., ODIYANSALAI
             (Criminal Appeal No.1033 of 2005)

                      MARCH 30, 2011
                                                                   B
    [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                   PRASAD, JJ.]

      Penal Code, 1860: s.304 (Part II) - Conviction under -
 PW-1, his brother-victim and friends assembled at restaurant      C
 for dinner- On slight pretext, the appellant and other accused
 present in the restaurant suffOunded the table on which victim
 and friends were sitting - Appellant stabbed the victim on his
 neck - PW-1 intervened
                   ./
                            and suffered injuries - Victim was
 taken to hospital where he was declared dead - Trial court        o
 doubted the presence of PW-1 at the time of incident and also
 raised doubt about the test identification parade and ordered'
 acquittal of all accused - High Court confirmed acquittal' of 6
 accused, however,·held acquittal of appellant to be perverse·
 and contrary to the evidence. on record - It relied upon the      E
 evidence of PW-1, medical evidence and test identification
parade and held that incidenttwas the outcome of sudden
 quarrel and, therefore, matter fell1within Exception 4 to s.300
_and accordingly convict~d appellant u/s.304 (Part II) and
imposed sef!tence .of 3 years R. I. keeping in view· that          F
               a
 appellant had mentally challenged brother to look after -
 On appeal, held: The fact that PW 1 was present at the place
of incident was fortified by the injuries found on his person -
 Though the incident took place in a public restaurant where
 there may be dim lighting but light in the restaurant in
 question was not so dim so as to preclude the identification      G
 of appellant- Admittedly, the appellant was not known to PW-
 1 before the incident - However, the physical de.scription of
 the appellant was given in the FIR itself - In the absen&e of
any evidence, the suggestion that PW-1 was drunk, was
                                25                           •     H
                                                                      .....
    26       SUPREME COURT REPORTS               [2011] 4 S.C.R.


A completely baseless - In the facts of the case, High Court's
    interference in the appeal in so far as the appellant was
    concerned, was fully justified - Keeping in view the fact that
    the incident had happened 15 years earlier and the appellant
    had a mentally challenged brother, High Court had chosen
B   to keep the sentence at only three years - No case made out
    for interference even on the quantum of sentence.
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1033 of 2005.
        From the Judgment & Order dated 2.2.2005 of the High
C   Court of Judicature at Madras in Criminal Appeal No. 769 of
    1996.
        Raju Ragupathi, C. Paramasivam, P. Ramesh, M.P.
    Parthiban, Rakesh K. Sharma for the Appellant.
D      V. Kanagraj, V.G. Pragasam, S.J. Aristotle, S. Prabu
    Ramasubramanian, Vipin Jai for the Respondent.
         The following Order of the Court was delivered
                             ORDER
E         We have heard the learned counsel for the parties at a
    very great length, more particularly, as the judgment before us
    is one of reversal; the Trial Court having acquitted all the
    accused and the High Court reversing the judgment qua the
    solitary appellant herein. The facts of the case are as under:
F      On the 4th November, 1991 PW.1, along with his brother
  the deceased-Tamilvendhan, went to a restaurant in Labortene
  Street, Pondicherry. At the restaurant his friends PWs. 2, 3,4
  and another person joined them. They ordered their food and
  while they were waiting to be served, asked for some drinks.
G A short while later they heard sounds of breaking of plates
  inside the restaurant. The seven accused then came out and
  while they were passing by PW's.1,2,4 and the deceased,
  appe!lant-Subramani made an abrasive comment on the
  complainant party. The deceased however laughed at him on
H which the appellant called his friends and they surrounded the
 SUBRAMANI @ JEEVA @ KULLAJEEVA v. S.H.O.,                    27
               ODIYANSALAI

table of the complainants. The appellant also took up a bottle A
lying on the table, broke it by hitting it on the table and stabbed
Tamilvendhan on his neck. When PW.1 intervened he too was
caused injuries in that process. On seeing this PW.2 came out
to rescue them and he too was attacked by the appellant. The
deceased fell down on the ground whereafter all the accused B
ran away from the place. The incident happened at about 10.45
p.m. The deceased, accompanied by the injured PWs 1 and
2, was then taken to the Government hospital, Pondicherry,
where they were examined by PW.10 at 11.10 p.m.
Tamilvendhan was found dead on arrival. Information was also       c
sent to the police at about 11.20 p.m. on which PW.20-the Sub-
Inspector, attached to the concerned police station, reached the
hospital and recorded the statements of PWs.1 and 2 and on
that basis a First Information Report was registered at 1.10
a.m. on the 5th November, 1991. All the accused were arrested
                                                                    0
on the 26th November, 1991 and were subjected to a test
identification parade three days later while in jail. PWs. 1 and
2 identified all the seven accused in the course of the test
identification parade. On the completion of the investigation the
accused were brought to trial for offences punishable under
Sections 148, 302, 324 read with Sec.149 of the IPC. The Trial E
Court held that the statement of PW.1 could not be believed
more particularly as both PW. 2 and PW.4 had been declared
hostile. Doubt was also expressed with regard to the test
identification parade by observing that the photographs of the
accused had been shown to the prosecution witnesses prior F
thereto. The Court also held that there was also some doubt
as to the place where the incident had happened. An appeal
was thereafter filed by the State before the High Court. The High
Court has, while confirming the acquittal of six of the accused,
set aside the judgment of the Trial Court with respect to the G
appellant Subramani, by holding that his acquittal was perverse
and contrary to the evidence on record. The High Court
accordingly relying on the evidence of PW.1, the medical
evidence, and the test identification parade held that the
appellant was involved in the incident but as the incident was H
    28       SUPREME COURT REPORTS               [2011] 4 S.C.R.


A the out come of a sudden quarrel the matter fell within Exception
  4, to Section 300 of the IPC and the appellant was liable to be
  convicted under Section 304 Part-II of the IPC and accordingly
  keeping in the mind the fact that the case was fifteen years old
  and the appellant had a mentally challenged brother to look
B after, the ends of justice would be met if a sentence of three
  years R.I. was imposed on him. The Court also observed that
  in the facts of the case the involvement of the other accused
  i.e. Respondents Nos.2 to 7 before the High Court could not
  be made out with the aid of Section 149 of the IPC. It is in this
c situation that present appeal is before us at the instance of the
  solitary appellant.
        Mr. Raju Raghupathi, the learned senior counsel for the
  appellant, has at the very outset argued that as PWs. 2 and 4,
  two of the eye-witnesses had been declared hostile the High
D Court's reliance on PW.1 alone was not acceptable more
  particularly in an appeal against acquittal. He has also pointed
  out that even assuming for a moment that PW.1 had been
  present at the place of incident the question of identification of
  the accused still remained alive as it had come in evidence that
E the light in the restaurant was very dim and as both parties were
  in a completely inebriated condition it was impossible for PW.1
  to have identified anyone. He has also doubted the very basis
  of the test identification parade and has urged that as the
  photographs of the accused had been shown to PW.1 the
F sanctity of the identification parade was also in doubt He has
  finally prayed that even assuming that no cause for the setting
  aside the conviction was made out, the facts of the case ·.
  required that the sentence of the appellant be reduced as the
  incident had happened twenty years ago.
G      Mr. V.Kanagaraj, the learned senior counsel for the State,
  has supported the judgment of the High Court and pointed out
  that in the light of the fact that the High Court had opined that
  the judgment of the Trial Court was perverse and based on a
  complete misreading of the evidence, interference in an
H acquittal appeal was fully justified. He has also urged that there
 SUBRAMANI @ JEEVA @ KULLAJEEVA v. S.H.O.,                     29
               ODIYANSALAI

was no reason whatsoever to disbelieve PW.1 who was an A
injured witness and that tlie injured and the deceased had been
removed to the hospital within 15-20 minutes and even the FIR
had been lodged within an hour or two supported the
prosecution story. He has also pointed out that there was
absolutely no reason to doubt identification parade more B
particularly as there was absolutely no evidence to show that
PW.1 was completely inebriated so as to be incapable of
recognizing any one.
      We have heard the learned counsel for the parties at a
great length. It is true that the High Court dealing with an appeal   C
against acquittal has its options some what circumscribed. It
has however been observed by the High Court that the judgment
of the Trial Court in so far as the appellant was concerned was
completely against the record and perverse. It is the conceded
position before us that PW.1 had indeed been present when             D
the incident happened. Even otherwise, the evidence that the
incident happened at about 10.30-10.45 p.m. on the 4th
November 1991 and the injured had reached the hospital within
20 or 25 minutes and that the doctor had sent intimation to the
police on which the ASI had reached the hospital within half an       E
hour and the formal FIR recorded at 1.10 a.m. on the 5th
November 1991 are all proved on record. The fact that PW.1
was present is fortified by the injuries found· on his person. Mr.
Raghupathi has, however, argued that as PW.1 was not in a
position to identify any one and to who had caused the specific       F
injuries, no relevance could be placed on his testimony. We find
this plea to be unacceptable. The incident took place in a public
restaurant and though such a place may have dim lighting but
complete darkness would be an impossibility. Even otherwise,
Mr. Raghupathi's argument that the dim light precluded the            G
identification of the accused is without substance. Admittedly,
the restaurant in question was a very small one having four
tables. It has also come in the evidence that there were four
tube lights in the restaurant. We must therefore assume that light
was not so dim that a person standing a feet or two away would        H
not be identifiable.
    30        SUPREME COURT REPORTS               [2011) 4 S.C.R.


A       There is another relevant circumstance. Admittedly the
  accused were not known to PW.1 before the incident. However
  the physical description of the appellant was given in the FIR
  itself. The High Court has opined very adversely on the conduct
  of the Trial Court in ignoring this substantial and very pertinent
B evidence given as to identity the appellant.
         Much time and effort has been expended by Mr. Regupathi
  on the fact that PW.1 was completely drunk at the time of the
  incident and therefore not in a position to identify any of the
  accused. We have gone through the evidence of PW.1 very
C carefully. There is not even a suggestion put to him that he was
  completely drunk at the time of the incident. We also find that
  no question had been put to the investigating officer or to the
  Doctor as to the condition of PW.1 at the time when he had
  been brought to the hospital or at the time when his statement
D had been recorded for the registration of the FIR. In the absence
  of any evidence the suggestion that PW.1 was drunk, is
  completely baseless. We must also emphasize the distinction
  between being drunk or having a drink. PW.1 and his friends
  and the deceased were having a drink in the restaurant prior
E to having their dinner but to say that PW.1 was drunk at that
  time is not forthcoming from the evidence. We therefore find in
  the facts of the case that the High Court's interference in the
  appeal in so far as the present appellant was concerned, was
  fully justified.
F      We have also considered Mr. Raghupathi's argument with
  regard to the quantum of sentence. The High Court was almost
  apologetic that a sentence of only three years was being
  awarded but keeping in view the fact that the incident had
  happened 15 years earlier and the appellant had a mentally
G challenged brother, had chosen to keep the sentence at only
  three years .
       We think that no cause is made out for interference even
  on the quantum of sentence.
       Dismissed.
H
  D.G.                                      Appeal dismissed.