SUPREME COURT OF INDIA
Mano
Vs
State of Tamil Nadu
(Arijit Pasayat and L. S. Panta, JJ)
Appeal (Crl.) 462 of 2007 (Arising Out of S.L.P. (Crl.) No.5227 of 2006)
02.04.2007
JUDGMENT
DR. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a Division Bench of the
Madras High Court dismissing the appeal filed by the present appellant and two
others. By the impugned judgment the conviction of the appellant and the two
others for commission of offence punishable under Section 302 read with Section
34 of the Indian Penal Code, 1860 (in short the
'IPC') is maintained. The Trial Court convicted the appellant and the three
others and sentenced each to undergo imprisonment for life and to pay a fine of
Rs.4, 000/- with default stipulation. Only three of them had preferred appeal
before the High Court.
Prosecution version as unfolded during trial is as follows:
For the sake of convenience, the accused persons- appellants are described as
A1, A2 and A3. The other accused is described as A4.
Sivaraman (A1) is a resident of Periyairusampalayam village. Mano (A2) and
Nagappan (A3) are residents of Ariyankuppam village. Sivaraj (PW-1) and
Ganpathy (PW-3) are brothers and they are also residents of Periyairusampalayam.
There was quarrel between A1 and PW- 1 at the time of festival at Angalamman
temple in Periyairusampalayam village. The said quarrel was pacified by one
Pasupathy (hereinafter referred to as the 'deceased'), son of another brother
of PWs 1 and 3 and thereby A1 had impression that the deceased was a supporter
of Srinivasan. Due to that impression, there was enmity between A1 and the
deceased. On 8.5.2000, at about 8.30 p.m., PW-1, PW-3, Vijayan, Murugan, Babu
and Veerappan were engaged in conversation near the electric post on the way to
graveyard. At that time, the deceased was coming towards the way of graveyard
for the purpose of attending nature's calls. PW-1 was also following him. At
that time, suddenly A1 armed with knife, A2 armed with knife and A3 and A-4
armed with a big stick and iron pipe respectively came from behind a thorny
bush and began to attack the deceased. Particularly A1 and A2 attacked the
deceased with knives on his neck and A3 attacked the deceased, with the big stick.
Consequently, the deceased sustained injuries and fell down. On seeing it, PW-1
and others rushed near and the accused persons ran away from the occurrence
place. The injured deceased was taken to the hospital at Pondicherry, but on
the way, he died. Thereafter, PW-1 gave complaint marked as Ex.P1 to the Sub
Inspector of police viz., Balakrishnan (PW-12) at about 5.00 a.m. on 9.5.2000.
On the basis of Ex.P1, PW-12 registered a case in Crime no.132 of 2000 under
Section 302 Indian Penal Code, 1860 and prepared the
printed FIR marked as Ex. P15 and sent the same to the Magistrate and copies to
the higher officials. Subsequently, the Inspector of police viz., Sundarrajan,
(PW- 13) received the said FIR at about 5.30 a.m. on 9.5.2000 and took up the
investigation and proceeded to Periyairusampalayam village and visited the
occurrence place in the presence of Gopu (PW-7) and Palani (PW-8), prepared
observation mahazar and also recovered from the occurrence place M.Os. 1 to 8
by preparing mahzar marked as Ex.P18 and sent those M.Os. to the Magistrate. In
continuation of the investigation, he proceeded to the Pondicherry Government
Hospital and conducted inquest upon the dead body of Pasupathy in the presence
of panchayatdars and witnesses and prepared inquest report marked as Ex. P 19
and also examined witnesses and then made arrangements for sending the body for
post mortem through Head Constable Thukkaram with the requisition letter marked
as Ex. P 20 and he searched for the accused persons. In the meanwhile, Dr.
Balaraman (PW-10) conducted post mortem and found the following five external
injuries.
"1. Bluish discolouration and swelling present over right upper eye
lid.
2. Lacerated injury 4 x 1 x bond deep present over left Parietal region of head
with fracture of underlying bone.
3. Lacerated injury 5 x 1 x bone deep over left occipital region of head.
4. Lacerated injury 4 x 1 x bone deep present over left occipital region of
head.
5. Obliquely placed incised wound 10 x 1.5 x bone deep with fracture of underlying
bone present over back of neck behind left ear."
Besides, there were internal injuries. He furnished post mortem report marked
as Ex. P10 along with his opinion that the said Pasupathy had died due to head
injuries sustained by him. The Inspector of police arrested all the four
accused on 15.5.2000 at about 3.30 p.m. at Thavalakuppam road junction and
recorded the confessional statement of A1 marked as Ex.P21 and that of A2
marked as Ex. P 22 and recovered the knives marked as M.O.9 and M.O. 10 by
preparing mahazars marked as Exs. P 23 and P 24 and examined Dr. Balaraman
showing M.Os. 9 and 10 and then remanded the accused for judicial custody and
also gave requisition of the Magistrate for sending the M.Os. for chemical
analysis. After receipt of chemical analyst's report, finally, he completed the
investigation and filed charge sheet against all the accused for commission of
offence punishable under Section 302 read with Section 34 Indian
Penal Code, 1860.
The Trial Court on analysis of the evidence came to hold that the appellant and
the three others were guilty of offence and sentenced each, as noted above.
There were initially four accused persons. Only three of them i.e. A1, A2 and
A3 filed appeal before the High Court which was dismissed by the impugned
judgment. The present appeal is by A2.
Learned counsel for the appellant submitted that the FIR which was treated to
be information on the basis of which law was set into motion was not really first
information report and there was another document anterior in point of time.
The FIR which has been taken note of by the Trial Court was lodged on 5 p.m. on
9.5.2000 whereas the earlier information given by the Hospital on 8.5.2000 at
2.30 p.m. The two witnesses on whose evidence the Trial Court recorded the
conviction i.e. PW 1 and PW 3 were related to the deceased. The version
unfolded during trial is highly unbelievable. It was submitted that it is
impossible that somebody would lie in hiding around 8.00 p.m. and would not
attack in darkness and instead committed murder near a lamp post. PWs 2, 4 and
6 did not support the prosecution version. The weapons were recovered long
after and were not sent for chemical examination. It is, therefore, submitted
that the conviction as recorded by the Trial Court and maintained by the High
Court cannot be maintained.
In response, learned counsel for the respondent-State supported the judgment of
the High Court affirming that of the Trial Court.
It is to be noted that neither before the Trial Court nor before the High Court
any plea was taken about their being earlier report regarding alleged
incidence.
Therefore, it is not possible to accept the stand as presently urged.
The other stand relates to the evidentiary value of statements of PWs 1 and 3
who were claimed to be related to the deceased.
In regard to the interestedness of the witnesses for furthering the prosecution
version, relationship is not a factor to affect the credibility of a witness.
It is more often than not that a relation would not conceal the actual culprit
and make allegations against an innocent person. Foundation has to be laid if a
plea of false implication is made. In such cases, the court has to adopt a
careful approach and analyse evidence to find out whether it is cogent and
credible.
In Dalip Singh and Ors. v. The State of Punjab  it has been laid down as
under:-
"A witness is normally to be considered independent unless he or she
springs from sources which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily a close relation would be the last to screen
the real culprit and falsely implicate an innocent person. It is true, when
feelings run high and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure guarantee
of truth. However, we are not attempting any sweeping generalization. Each case
must be judged on its own facts. Our observations are only made to combat what
is so often put forward in cases before us as a general rule of prudence. There
is no such general rule. Each case must be limited to and be governed by its
own facts."
The above decision has since been followed in Guli Chand and Ors. v. State of
Rajasthan  in which Vadivelu Thevar v. State of Madras  was also
relied upon.
We may also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
independent witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that
the testimony of the two eyewitnesses requires corroboration. If the foundation
for such an observation is based on the fact that the witnesses are women and
that the fate of seven men hangs on their testimony, we know of no such rule.
If it is grounded on the reason that they are closely related to the deceased
we are unable to concur. This is a fallacy common to many criminal cases and
one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State
of Rajasthan' Â at p.59). We find, however, that it unfortunately still
persists, if not in the judgments of the Courts, at any rate in the arguments
of counsel."
Again in Masalti and Ors. v. State of U.P. Â this Court observed: (p.
209-210 para 14):
"But it would, we think, be unreasonable to contend that evidence given
by witnesses should be discarded only on the ground that it is evidence of
partisan or interested witnesses. The mechanical rejection of such evidence on
the sole ground that it is partisan would invariably lead to failure of
justice. No hard and fast rule can be laid down as to how much evidence should
be appreciated. Judicial approach has to be cautious in dealing with such
evidence; but the plea that such evidence should be rejected because it is
partisan cannot be accepted as correct."
To the same effect is the decision in State of Punjab v. Jagir Singh Â
and Lehna v. State of Haryana Â
In S. Sudershan Reddy v. State of A.P. Â 2006 AIR(SC) 2716, it was
observed that relationship is not a factor to affect credibility of a witness.
It is more often than not that a relation would not conceal actual culprit and
make allegations against an innocent person. Foundation has to be laid if plea
of false implication is made. In such cases, the court has to adopt a careful
approach and analyse evidence to find out whether it is cogent and credible.
Even if the recovery of the weapons as claimed was after a long period and
those were not sent for forensic examination that does not in any way dilute
the evidentiary value of the prosecution version.
Above being the position, there is no merit in this appeal, which is
accordingly dismissed.