LexSTATE BY INSPECTOR OF POLICE, T. NADU versus RAKIAPPAN AND ORS.
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[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 to give the purported statement before PW6. Hence the . present appeal. r -.: 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 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 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 A DR. ARIJIT PASAYAT, J. 1. Heard. 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 investigati
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