Full Judgment Text
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CASE NO.:
Appeal (crl.) 462 of 2007
PETITIONER:
Mano
RESPONDENT:
State of Tamil Nadu
DATE OF JUDGMENT: 02/04/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Crl.) No.5227 of 2006)
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
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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 IPC 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 IPC.
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
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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 (AIR
1953 SC 364) 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
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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 (1974 (3) SCC 698) in
which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
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 \026
’Rameshwar v. State of Rajasthan’ (AIR 1952
SC 54 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. (AIR 1965
SC 202) 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 (AIR 1973 SC 2407) and Lehna v. State of Haryana
(2002 (3) SCC 76).
In S. Sudershan Reddy v. State of A.P. (AIR 2006 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
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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.