Subramani @ Jeeva @ Kullajeeva vs S.H.O., Odiyansalai

SUBRAMANI @ JEEVA @ KULLAJEEVA .. APPELLANT(S)

vs.

S.H.O., ODIYANSALAI .. RESPONDENT(S)

O R D E R

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:

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. 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, appellant-Subramani made

an abrasive comment on the complainant party. The deceased

however laughed at him on which the appellant called his

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friends and they surrounded the table of the complainants.

The appellant also took up a bottle 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 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 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 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

-3- Sec.149 of the IPC. The Trial 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 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 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 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

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

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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 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 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 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 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.

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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 acquittal appeal was fully

justified. He has also urged that there was no reason

whatsoever to disbelieve PW.1 who was an injured witness

and that the 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 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 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 the incident

happened. Even otherwise, the evidence that the incident

happened at about 10.30-10.45 p.m. on the 4th November 1991

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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 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 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 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 not be

identifiable.

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

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adversely on the conduct of the Trial Court in ignoring

this substantial and very pertinent 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 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

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 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.

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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 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.

.................J. (HARJIT SINGH BEDI)

....................J.

(CHANDRAMAULI KR. PRASAD)

New Delhi, March 30, 2011.