Full Judgment Text
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PETITIONER:
ARUNACHALAM
Vs.
RESPONDENT:
P. S. R. SADHANANTHAM
DATE OF JUDGMENT06/03/1979
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
FAZALALI, SYED MURTAZA
CITATION:
1979 AIR 1284 1979 SCR (3) 482
1979 SCC (2) 297
CITATOR INFO :
O 1980 SC 856 (11)
RF 1981 SC 631 (12)
R 1988 SC1531 (182)
R 1989 SC1205 (17)
E&F 1989 SC1543 (22)
RF 1991 SC1108 (10)
R 1991 SC2176 (17,18)
RF 1992 SC 49 (9)
ACT:
Constitution of India, 1950-Art. 136-Scope of
jurisdiction. Criminal appeal not preferred by Government-
Private Party if could invoke jurisdiction under Art. 136.
HEADNOTE:
The prosecution alleged that there was enmity between
the deceased and his brother, P.W. 2 (Appellant) and P.W. 3
on the one side and A 1 (respondent), A 2, their father, A 4
and A 5 their nephews on the other on account of disputes
arising out of elections to the Gram Panchayat and
Cooperative Stores of the village. A few days before the
occurrence, the first accused demanded that the dance
performance being arranged in connection with a religious
festival in the village should be held under his
Presidentship, but this was rejected by PW 3. The
prosecution further alleged that on the night of the
occurrence when the stage was being decorated by PW 3 all
the accused came in a group, got up on the stage and A 1
questioned PW 3 with regard to the conduct of the dance
performance without his presiding over it. Accused 1, 2 and
4 started beating P.W. 3. Frightened by the fracas the men
gathered near the stage started running away. In the
meantime, the deceased and his men intervened, whereupon the
first accused took out a knife from his waist and stabbed
the deceased on the left flank, as a result of which he fell
down.
The deceased was first taken to the police station
where his statement Ex. P1 was recorded. He was then taken
to the local hospital but the stab injury being serious he
was removed to the headquarters hospital where a Magistrate
recorded his dying declaration Ex. P6. The next afternoon
the deceased succumbed to his injuries.
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In their defence, the accused claimed that they were
falsely implicated on account of factions and suggested that
some of the prosecution witnesses prevailed upon the
deceased to name the accused as assailants. In the course of
cross-examination of prosecution witnesses, the defence
suggested that a certain R was also injured at the same time
and place.
Accepting the prosecution case the Sessions Judge
convicted A-1 under s. 148 and s. 302 and the rest under
Sections 147, 323 and 149 read with 323.
On appeal the High Court acquitted the accused
primarily on the ground that neither the direct witnesses
nor the dying declarations explained the serious injury
caused to Ramalingam who it appeared from the evidence of
the Doctor, PW 4, had received a stab injury 5 cms. X 2 cms.
X 2 cms. near the left side of the abdomen on the back. The
High Court thought that though Ext. P-1 was purported to
have been recorded earlier than Ext. P-6 in point of time,
it was in fact recorded later. The High Court took the view
that the first accused must have been implicated by the
deceased as the assailant in Ext. P-6 at the instance of PW3
who met him in the hospital at about 1 a.m. The evidence of
the direct witnesses PWs. 1, 2, 3 and 5 was rejected
483
on the ground that they were interested and had not
explained how Ramalingam sustained the injury found on him.
The conduct of P.W. 3 was also severely commented upon.
The State did not prefer any appeal against the
acquittal of the accused by the High Court; but the appeal
was preferred by the brother of the deceased.
On the question whether a private party could invoke
the jurisdiction of this Court under Art. 136 of the
Constitution against an acquittal by the High Court.
^
HELD : 1. This Court could entertain appeals against
judgments of acquittal by the High Court at the instance of
a private party also. The fact that the Criminal Procedure
Code does not provide for an appeal to the High Court
against an order of acquittal by a subordinate court at the
instance of a private party has no relevance to the question
of the power of this Court under Art. 136 of the
Constitution. [488 D]
2. The appellate power vested in this Court under Art.
136 is not to be confused with ordinary appellate power
exercised by appellate courts and appellate tribunals under
specific statutes. The power under Art. 136 is plenary,
‘exercisable outside the purview of the ordinary law’ to
meet the pressing demands of justice. Art, 136, neither
confers on any one the right to invoking its jurisdiction of
this Court nor inhibits any one from invoking its
jurisdiction. The power is vested in this Court. The
exercise of the power is not circumscribed by any limitation
as to who may invoke it. Where a judgment of acquittal by
the High Court has led to a serious miscarruage of justice
this Court cannot refrain from doing its duty and abstain
from interfering with it on the ground that a private party,
and not the State, has invoked the court’s jurisdiction.
[487 H-488 C]
Mohan Lal v. Ajit Singh, [1978] 3 SCC 279; referred to.
3. There need be no apprehension that if appeals
against judgments of acquittal at the instance of a private
party are permitted there may be a flood of such appeals,
because appeals under Art. 136, are entertained by special
leave granted by this Court. Special leave is not granted as
a matter of course. It is granted only for good and
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sufficient reasons, as well established by the practice of
this Court. [488 F]
4. The power under Art. 136 is plenary in the sense
that there are no words in Art. 136 itself qualifying that
power. The very nature of the power has led the Court to set
limits to itself within which to exercise such power. Within
the restrictions imposed by itself, this Court has the
undoubted power to interfere even with findings of fact,
making no distinction between judgments of acquittal and
conviction, if the High Court, in arriving at those
findings, has acted "perversely or otherwise improperly".
[487 C-D]
State of Madras v. Vaidyanatha Iyer, [1958] SCR 580;
Himachal Pradesh Administration v. Om Prakash, [1972] 1 SCC
249, referred to.
5. In dealing with an appeal against acquittal, this
Court will, naturally, keep in mind the presumption of
innocence in favour of the accused, reinforced, as may be,
by the judgment of acquittal. But, this will not abjure the
court
484
of its duty to prevent violent miscarriage of justice by
hesitating to interfere where interference is imperative.
Where the acquittal is based on irrelevant ground, or where
the High Court allows itself to be deflected by red herrings
drawn across the track, or where the evidence accepted by
the trial court is rejected by the High Court after a
perfunctory consideration, or where the baneful approach of
the High Court has resulted in vital and crucial evidence
being ignored, or for any such adequate reason, this Court
may feel obliged to step in to secure the interests of
justice, to appease the judicial conscience as it were. [487
E-F]
6. The High Court was wrong and unjustified in
rejecting the testimony of the direct witnesses and the
dying declarations on the ground that they did not explain
the injury found on one of the persons (R) alleged to have
been present at the scene of occurrence. There is nothing to
suggest that R and the deceased received their injuries in
the course of the same transaction. According to the doctor
who examined R, the injured person did not know who his
assailant was. He was not shown to be connected with either
party but was surreptitiously and dexteously introduced into
the case by the defence in the course of cross-examination
of the prosecution witnesses. A conspectus of the evidence
clearly points to the conclusion that there was nothing to
connect the injuries or R with the stabbing of the deceased.
[488 G-489 A, 490 D]
7. Both the dying declarations could be safely relied
upon without any reservation. Though the second dying
declaration gives fewer details than the first it clearly
states that the deceased and others first went to the police
station. This clearly lends support to the prosecution story
that it was there that the first dying declaration was
recorded. There is, therefore, no ground to hold as the High
Court did that the second dying declaration was in point of
time, recorded earlier than the first. The difference
between the two was that while the first was recorded almost
immediately after the incident, the second was recorded a
few hours later by which time the condition of the deceased
had deteriorated and he was not in a position to give as
many details as before. There was, therefore, no reason to
doubt the genuineness of either of the two dying
declarations. [493 E, 491 F-492 A, 490]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
170 of 1973.
Appeal by Special Leave from the Judgment and Order
dated 17-11-1971 of the Madras High Court in Criminal Appeal
No. 217 of 1971.
R. K. Garg, V. J. Francis and D. K. Garg for the
Appellant.
K. Jayaram and R. Ramkumar for Respondent No. 1.
A. V. Rangam for Respondent No. 6.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-P. S. R. Sadhanantham and four
others were tried by the learned Sessions Judge,
Tirunelveli, on various counts. Sadhanantham (A1) was
convicted under Sections 148 and 302 Indian Penal Code while
the four others were convicted under Sections 147,
485
323 and 149 read with 323. The first accused was sentenced
to imprisonment for life on the charge of murder and to
rigorous imprisonment for a period of two years on the
charge under Section 148. The others were sentenced to
suffer imprisonment for a period of one year on each of the
counts on which they were convicted, the sentences to run
concurrently. All the five accused preferred an appeal to
the High Court of Madras. The High Court allowed the appeal
and acquitted all the accused of all the charges.
Arunachalam the brother of the deceased has preferred this
appeal against the judgment of the Madras High Court after
obtaining special leave from this Court on 26-7-1973. The
special leave was granted against the first accused
Sadhanantham only.
The case of the prosecution, briefly, was that there
was enmity between the deceased Soundarapandian and his
brother Arunachalam (P.W. 2) and Natesan (P.W. 3) on one
side and Rajapalavesmuthu Nadar, his sons A1 and A2 and his
nephews A4 and A5 on the other. There were the usual
disputes arising out of elections to the Gram Panhayat and
to the local cooperative stores. In connection with the
village Amman festival, P.W. 3 was arranging to have a dance
performance on the night of 20th August, 1970, in the Gandhi
Maidan. About a week earlier, Sadhanantham, the first
accused demanded that the dance should be performed under
his presidentship but P.W.3 did not agree. On the night of
20th August, 1970, P.W.3 alongwith one Gopalakrishnan (P.W.
6) was decorating the stage. Tube lights were burning and
several persons had gathered in front of the stage. At about
8.45 p.m. accused 1 to 5 came there and got up on the stage.
At questioned P.W.3 how he dared to conduct the show without
his presiding over it. P.W.3 replied that the dance
performance would be conducted without the presidentship of
A1. A1 then slapped P.W.3 on the cheek. A2 to A4 also
started beating P.W.3 with their hands. P.W.6 and several
others who were there ran away apparently not wanting to get
involved in the fracas. P.W.3 jumped down from the stage and
attempted to run away when A3 caught him and began to
throttle his neck. A1, A2 and A4 joined in beating him with
their hands. The deceased P.W. 1, P.W. 2 and P.W. 5 came
running towards P.W.3. The deceased asked the first accused
why they were beating his younger brother. A.3 and A.5 who
were holding P.W.3 by the neck let him free. A.1 asked the
deceased who he was to question him and saying so he took
out a knife from his waist and stabbed the deceased on the
left flank. The deceased fell down shouting "stabbed,
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stabbed". Accused 1 to 5 then ran towards the north. P.W.3
chased them over a distance of about one and half furlongs.
They ran inside the forest. P.W.3 stopped chasing them
further. In the meanwhile the injured Soundarapandian was
taken by P.Ws. 1, 2 and 5 to the
486
Police Station and then to the hospital at Kayalpattinam. At
the Police Station, the writer P.W.14 recorded a statement
Exhibit P-1 from Soundarapandian at 9.15 p.m.
Soundarapandian when asked to sign the statement insisted on
signing the statement after dipping the pen in the blood
that was coming out of the wound. He was taken to the
hospital in a jeep requisitioned by the police. P.W.4 the
Medical Officer in charge of the Hospital examined the
injured and found that the injury was of a serious nature.
He sent the injured to the Government Headquarters Hospital
at Tuticorin for further treatment. The District Medical
Officer, P.W. 8 examined him and finding his condition very
serious, sent a requisition Exhibit P-5 to the Sub
Magistrate, Tuticorin to record the dying declaration of
Soundarapandian. Exhibit P-6, the dying declaration was
recorded by the Magistrate P.W.7 at 1.30 a.m. At 7.45 a.m.
next morning, P.W.8 performed an operation but
Soundarapandian could not be saved. He died at about 1.30
p.m. The autopsy was conducted by P.W.9 who, on dissection
found that the diaphragm and the upper lobe of the left lung
had been pierced. The police after completing the
investigation laid a charge-sheet against Sadhanantham,
Nithiyanantham, Thamilan, Kumaresan and Karthikeyan.
In support of its case, the prosecution examined P. Ws.
1, 2, 3 and 5 as direct witneses to the occurrence and
relied upon Exhibits P 1 and P6, the two dying declarations
made by Soundarapandian. The prosecution also examined P. W.
6 to speak to the earlier part of the incident. All the
accused denied the offence and stated that they were falsely
implicated on account of enmity. In the cross-examination of
the witnesses it was suggested that one Ramalingam was also
injured at the same time and place. It was suggested that P.
Ws. 2 and 3 had prevailed upon the deceased to name A-1 as
the person who stabbed him. The learned Sessions Judge
accepted the dying declarations as true. He also accepted
the evidence of the eye witnesses. He convicted and
sentenced the five accused as mentioned earlier. The High
Court acquitted the accused primarily on the ground that
neither the direct witnesses nor the dying declarations
explained the serious injury caused to Ramalingam, who it
appeared from the evidence of the Doctor P.W. 4, had
received a stab injury 5 cms x 2 cms near the left side of
the abdomen on the back. The High Court thought that though
Exhibit P-1 was purported to have been recorded earlier than
Exhibit P-6 in point of time, it was in fact recorded later.
The High Court took the view that the first accused must
have been implicated by the deceased as the assailant in
Exhibit P-6 at the instance of P.W.3 who met him in the
hospital at about 1 a.m. The evidence of the direct
witnesses P. W.s. 1, 2, 3, and 5 was rejected on the ground
that they were interested and had not explained
487
how Ramalingam sustained the injury found on him. The
conduct of P.W. 3 was also severely commented upon. The High
Court acquitted all the five accused.
Before proceeding to discuss the evidence and the
findings of the High Court we remind ourselves of the
confines of our jurisdiction to deal with appeals by special
leave against judgments of acquittal by the High Court.
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Article 136 of the Constitution of India invests the Supreme
Court with a plentitude of plenary, appellate power over all
Courts and Tribunals in India. The power is plenary in the
sense that there are no words in Article 136 itself
qualifying that power. But, the very nature of the power has
led the Court for set limits to itself within which to
exercise such power. It is now the well established practice
of this Court to permit the invocation of the power under
Article 136 only in very exceptional circumstances, as when
a question of law of general public importance arises or a
decision shocks the conscience of the Court. But, within the
restrictions imposed by itself, this Court has the undoubted
power to interfere even with findings of fact making no
distinction between judgment of acquittal and conviction, if
the High Court, in arriving at those findings, has acted
"perversely or otherwise improperly". (See State of Madras
v. Vaidyanath Iyer,(1) and Himachal Pradesh Administration
v. Om Prakash. (2) In dealing with an appeal against
acquittal, the Court will, naturally, keep in mind the
presumption of innocence in favour of the accused,
reinforced, as may be, by the judgment of acquittal. But,
also, the Court will not abjure its duty to prevent violent
miscarriage of justice by hesitating to interfere where
interference is imperative. Where the acquittal is based on
irrelevant ground, or where the High Court allows itself to
be deflected by red herrings drawn across the track, or
where the evidence accepted by the trial court is rejected
by the High Court after a perfunctory consideration, or
where the baneful approach of the High Court has resulted in
vital and crucial evidence being ignored, or for any such
adequate reason, this Court may fed obliged to step in to
secure the interests of justice, to appease the judicial
conscience, as it were.
A doubt has been raised about the competence of a
private party, as distinguished from the State, to invoke
the jurisdiction of this Court under Article 136 of the
Constitution against a judgment of acquital by the High
Court. We do not see any substance in the doubt. Appellate
power vested in the Supreme Court under Article 136 of the
Constitution is not to be confused with ordinary appellate
488
power exercised by Appellate Courts and Appellate Tribunals
under specific statutes. As we said earlier, it is a plenery
power, ‘exercisable outside the purview of ordinary law’ to
meet the pressing demands of justice (vide Durga Shankar
Mehta v. Thakur Raghuraj Singh & Ors.(1) Article 136 of the
Constitution neither confers on anyone the right to invoke
the jurisdiction of the Supreme Court nor inhibits anyone
from invoking the Court’s jurisdiction. The power is vested
in the Supreme Court but the right to invoke the Court’s
jurisdiction is vested in no one. The exercise of the power
of the Supreme Court is not circumscribed by any limitation
as to who may invoke it. Where a judgment of acquittal by
the High Court has led to a serious miscarriage of justice
the Supreme Court cannot refrain from doing its duty and
abstain from inerfering on the ground that a private party
and not the State has invoked the Court’s jurisdiction. We
do not have the slightest doubt that we can entertain
appeals against judgments of acquittal by the High Court at
the instance of private parties also. The circumstance that
the Criminal Procedure Code does not provide for an appeal
to the High Court against an order of acquittal by a
Subordinate Court, at the instance of a private party, has
no relevance to the question of the power of this Court
under Article 136. We may mention that recently in Mohan Lal
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v. Ajit Singh,(2) this Court interfered with a judgment of
acquittal by the High Court at the instance of a private
party. An apprehension was expressed that if appeals against
judgments of acquittal at the instance of private parties
are permitted there may be a flood of such appeals. We do
not share the apprehension. Appeals under Article 136 of the
Constitution are entertained by special leave granted by
this Court. Whether it is the State or a private party that
invokes the jurisdiction of this Court, special leave is not
granted as a matter of course but only for good and
sufficient reasons, as well established by the practice of
this Court.
As earlier mentioned, the primary reason given by the
High Court for rejecting the testimony of the direct
witnesses and the dying declarations was the supposed
failure of the prosecution to explain the serious injury
found on the person of one Ramalingam alleged to have been
injured at the same time and place as the deceased. We may
at once say that nothing is known about this Ramalingam. He
is not shown to be connected, even remotely, either with the
prosecution party or with the faction of the accused. He was
very surreptitiously and dexterously introduced into the
case in the
489
course of the cross-examination of the prosecution witness
and thereafter made to loom large. He was, as we shall
presently point out nothing more than a "red herring" across
the track. We will refer to the whole of the evidence where
Ramalingam was made to appear in the case to examine whether
the High Court was right in rejecting the entire case of the
prosecution on the ground that the injury on Ramalingam was
not explained. P.W. 1 was put but one question whether he
was aware that injuries were caused to one Ramalingam Nadar
at the place of the occurrence on the night of occurrence.
He stated that he was not aware of that fact. No further
question was put to P. W. 1 pursuing the matter. Similarly
P.W. 2 was also asked in cross-examination whether he was
aware of the stabbing of one Ramalingam Nadar at the time of
occurrence. He stated that he was not and that was the end
of the matter and it was not pursued further. P. W. 3 was
also asked the same question. He too denied knowledge of
injuries sustained by Ramalingam Nadar on the night of
occurrence. P.W. 5 was also asked a similar question and he
too gave a similar answer. P.W. 4 the Medical officer,
Kayalpattinam, deposed in his evidence that he examined one
Ramalingam at about 11.30 p.m. on 20th August, 1970. and
found an incised wound 5 cms x 2 cms x 2 cms near the left
side of the abdomen on the back and one small irregular
edged wound on the inner side of the first injury. The
Doctor also stated that Ramalingam told him that he was
assaulted by some unknown person when he was witnessing the
dance show. P.W. 10 who had gone to witness the dance
performance but who ran away when trouble started stated
that when he was running away he saw one Ramalingam Nadar
running along with him and that the said Ramalingam Nadar
was keeping his hand near his waist and that the hand was
blood stained. P.W. 15 the Head Constable attached to the
Arumuganeri Police Station stated that 4 or 5 days after the
occurrence he came to know that a case was registered in
Arumuganeri Police Station on the strength of a complaint
given by one Ramalingam. P.W. 167 the Investigating officer
also stated that the First Information Report registered on
the strength of Ramalingam’s complaint had also been sent to
the Magistrate and that a final report had also been sent.
He denied the suggestion made to him that the First
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Information Report in respect of Ramalingam’s complaint was
suppressed as it was not in favour of the prosecution. These
are all the appearances which Ramalingam made, on the stage
of this case, in the mouth of the witnesses, though
Ramalingam did himself not enter upon the scene. None of the
accused made any reference to Ramalingam in his statement.
It would be noticed that it was not suggested to any of the
prosecution
490
witnesses that Ramalingam was connected with either the
prosecution party or the party of the accused. It was not
suggested that the injury to Ramalingam was caused by a
member of either group. It was not suggested that Ramalingam
intervened in the fight and received an injury. In fact
there was nothing to suggest that Ramalingam and the
deceased received their respective injuries in the course of
the same transaction. The only suggestion was that
Ramalingam received an injury that night at the place of
occurrence. It is in evidence that as soon as trouble
started, the people who had gathered there started running
helter skelter. While so running Ramalingam apparently
received a stab injury accidentally or deliberately from
someone. In fact according to the evidence of the Doctor,
Ramalingam told him that he did not know who his assailant
was. There was, therefore, absolutely nothing to connect the
stabbing of Ramalingam with the stabbing of the deceased
Soundarapandian. The evidence of P.W. 10 also was to the
effect that Ramalingam himself was one of those who ran away
from the scene alongwith him and that was before the
deceased was stabbed. There was thus nothing to indicate
that the deceased or any of the direct witnesses were aware
or could possibly be aware of the injury caused to
Ramalingam. In our opinion the High Court was entirely wrong
and wholly unjustified in rejecting the testimony of the
direct witnesses and the dying declarations on the
irrelevant consideration that they did not explain the
injury found on the person of Ramalingam.
In regard to the dying declarations the reason given by
the High Court to conclude that Exhibit P. 1 must have been
recorded later than Exhibit P-6 was that Exhibit P-1
contained several statements not to be found in Exhibit P-6.
We are afraid that the High Court was merely indulging in
speculation and approaching the question from the wrong end.
Exhibit P-1 which was recorded by P.W. 14 was as follows :
"Arumuganeri is my native place. I am doing shop
business. Record dance was arranged to take place in
Gandhi Maidan at Arumuganeri. I went to see the record
dance along with Arunachala Nadar my elder brother,
Gunesekaran younger sister’s husband, and Somasundaram
son of Adinarayana Perumal. We were talking, standing
in front of Ramaswami temple. Sadanandam, Nithianandam,
sons of P. S. Raja Nadar, Tamilam alias Subramaniam,
Kumarsan son of Thangapla Nadar, Karthikyan son of Raja
Pandia Nadar were beating my younger brother Natesan,
on the north of the dancing stage. Myself, and the
491
persons with me ran to that place. I questioned as to
why you beat my younger brother. Sadanandam son of P.
S. Raja Nadar forcibly stabbed me with the greece knife
in the hand, on my left flank, below the rib I cried to
the effect "Ayyoh : stabbed." I covered the stab injury
with my hand. My elder brother and Somasundaram, took
me to Police station. There is prior enmity between
myself and P. S. Raja Vagaria in connection with the
elections. I read the statement. It has been recorded
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as narrated by me.
Sd/- Soundarapandian"
Exhbiit P-6 which was recorded by the Sub Magistrate, was as
follows :
"There is one Gandhi Maidan in Arumganeri, Record
dance was to be performed there. I went to see it. The
dance was not begun. Myself, Arunachalam, my elder
brother, Gunasekaran, my sister’s husband were all
talking. There was quarrel at the place of performance
of the record dance. At that time, the record dance was
not begun. Myself and others ran to the place where the
quarrel took place. A boy called Sadanandem son of P.
S. Raja Nadar stabbed me with a knife. I cried to
effect "Ayyoh Stabbed, stabbed ?" The police station is
very near. We all went there. My hand was stained with
blood. There is no reason for stabbing me.
L.I.T. of Thiru Soundrapandian".
It is true that Exhibit P-1 gives more details than Exhibit
P-6. Exhibit P-1 mentions the names of A-2, A-3, A-4 and A-5
also in connection with the beating of P.W. 3. It also
mentions that the deceased was stabbed on the left flank
below the rib. It further mentions the prior enmity between
the deceased and P. S. Raja Vageria. On the contrary Exhibit
P-6 gives fewer details, and does not mention the names of
the participants in the fight which preceded the stabbing of
the deceased. The stabbing of the deceased by A-1 alone is
particularly mentioned. What is important to be noted in
Exhibit P-6 is that it refers to the circumstance that the
deceased first went to the Police Station. That statement
lends support to the prosecution case that the deceased and
others went to the Police Station and a Statement was
recorded at the Police Station from the deceased. What is
more important is the circumstance that while Exhibit P-1
was recorded within a very short time after the occurrence,
Exhibit P-6 was recorded a few hours after the occurence by
which time the condition of the
492
deceased had apparently deteriorated and he was not in a
position to make as detailed a statement as P-1. The
evidence of the District Medical Officer, P.W. 8, shows that
when he saw him at 1 a.m. the condition of the deceased was
very bad. P-6 was recorded, it may be noted at 1.25 a.m.
It would also be seen that the condition of Soundarapandian
at that time was such that his thumb impression and not his
signature could be taken on Ex.P.6. The reason for less
particulars in P-6 was quite obvious but yet the High Court
completely missed it because of its wrong approach. There
was no reason whatsoever to doubt the genuineness of
Exihibit P-1 or P-6. The High Court thought that P.W.3 might
have met the deceased in the Tuticorin hospital at 1 a.m.
and induced him to implicate the first accused. This was
nothing but speculation. As we mentioned the condition of
the deceased was very bad at 1 a.m. and it is too much to
think that anybody would have been allowed to go near the
deceased in the critical condition in which he was in the
hospital and to tutor him to implicate someone falsely.
The evidence of three of the eye witnesses namely P.Ws.
1, 2 and 5 was dealt with by the High Court in a most
summary and perunctory way. It was said:
"The name of this witness (P.W.1) was not
mentioned by the deceased in Exh.P-6. It has been
elicited from this witness that there was bitter enmity
between him and the family of the accused. This witness
was appointed by the deceased as a clerk in Arumuganeri
Cooperative Stores and in the Panchayat election, P.W.1
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proposed the name of the person who stood against the
father of Accused 1 and 2. He was a prosecution witness
in a criminal case instituted against the father of
Accused 1 and 2. This witness is not only interested in
the deceased as he was employed under the deceased as a
clerk but also inimically disposed towards the family
of the accused. It will, therefore, be unsafe to rely
upon his evidence. P.W.2 is the brother of the deceased
and P.W.5 is the brother-in-law of the deceased. They
are very much interested in the deceased and they were
also inimically disposed towards the accused. They are
not telling the truth. They have not explained as to
how Ramalingam sustained the injury. They have fallen
in line with the statements made in the dying
declaration. We do not accept their evidence".
493
The reasons given were that the witnesses were
interested and that they had not explained the injury found
on the person of Ramalingam. In the case of P.W.1 it was
also stated that his name was not mentioned in Exhibit P-6.
We do not think that the criticism of the High Court bears
any scrutiny. We have perused the evidence of P.Ws. 1, 2 and
5 and we are unable to discard their testimony for the sole
reason that they are interested witnesses. With regard to
P.W.3 however, there is scope for much criticism having
regard to his conduct subsequent to the incident. According
to his evidence after he chased the accused he stopped for
about an hour near the forest and returned to the village
thereafter. While he was on his was back he saw his uncle’s
jeep on the road and learnt from his uncle that
Soundarapandian had been taken to the hospital at Tuticorin.
Therefore, he went to Tuticorin and saw his brother in the
hospital at about 1 a.m. Thereafter he went to a hotel where
he slept for the night. Next morning without going to the
hospital to find out the condition of his brother he
returned to the village and made himself available to the
police for questioning at about 1 p.m. Though there cannot
be any doubt that he witnessed the occurrence his subsequent
conduct does not inspire such confidence as to place
implicit reliance on his evidence. We, therefore, agree with
the High Court that P.W.3 was not a reliable witness.
In our view the two dying declarations Exhibits P-1 and
P-6 may be relied upon without any reservation and the
evidence of P.Ws. 1, 2 and 5 may also be safely accepted. We
have considered the reasons given by the High Court for
acquitting the first accused and we find them wholly
unsatisfactory. In the light of the principled set out by us
earlier we think that the interests of justice demand that
we should interfere with the order of acquittal in the
present case. Accordingly, we allow the appeal, set aside
the judgment of the High Court and restore the judgment of
conviction and sentence passed by the learned Sessions Judge
of Tirunelveli against the respondent (first accused) on the
charge under Section 302 Indian Penal Code.
N.V.K. Appeal allowed.
494