I t

MANO

,.__

STATE OF TAMIL NADU

APRIL 2, 2007

[DR. ARIJITPASAYAT AND LOKESHWAR SINGH PANT A, JJ.]

Criminal Trial:

c Penal Code, 1860; Section 302 rlw S.34:

Murder-Accused-appellant and three other accused persons armed with sharp edged weapons attacked the deceased in presence of his relatives- Deceased succumbed to the injuries-Complaint/FIR-Charge-sheet-

"~ -Conviction-Testimony of relative/interested witnesses vis-a-vis conviction of

D accused-Held: Relationship is not a factor to affect the credibility of a witness-A relative generally would not conceal the actual culprit and make a/legations against innocent person-Foundation has to be made if a plea of false implication is made-In such a case, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible- Plea that the witness being a close witness should not be relied upon, has E no substance-Evidence Act, I 872.

On the fateful day, at about 8.30 p.m., PWl and PW3, Uncles of the deceased were engaged in conversation near an electric post on the way to a graveyard, the deceased was also coming towards them. Suddenly, accused, Al armed with knife, accused Al, appellant armed with knife and other two F accused, A3 and A4 armed with a big stick and iron pipe respectively came from behind a thorny bush and began to attack the deceased. Consequently, the deceased sustained injuries and fell down. He was taken to a hospital, but on the way, he succumbed to injuries. PWI gave complaint to the Sub-Inspector of Police, PW12. On the basis of the complaint, PW12 registered a case under G Section 302 IPC. Subsequently, the Inspector of Police, PW13, received FIR on the same day and took up the investigation. Later, the Police arrested all the four accused and recorded the confessional statement of Al and that of . .

A2 and recovered the knives. On completion of the investigation, the Investigation officer filed charge sheet again!.( all the i.ccused for committing \_ the offence punishable under Section 302 read with Section 34 IPC. the Trial H 678

MANO v. ST ATE OFT AMIL NADU 679

Court found the appellant and the three other accused guilty of offence A u/s.302 r/w Section 34 IPC and sentenced each of them to undergo imprisonment for life. There were initially four accused persons. Only three of them i.e. Al, A2 and A3 filed appeal before the High Court which was dismissed by the impugned judgment. The present appeal is preferred by accused, Al.

Appellant contended 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; that the two witnesses on whose evidence the Trial Court recorded the conviction i.e., PW

1 and PW 3, were related to the deceased and the version unfolded during C trial is highly unbelievable; 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; that PWs 2, 4 and 6 did not support the prosecution version; and that the weapons were recovered long after and were not sent for chemical examination.

Dismissing the appeal, the Court

HELD: 1. Neither before the Trial Court nor before the High Court any plea was taken about there being earlier report regarding alleged incidence.

Therefore, it is not possible to accept the stand as presently urged. [Para 10] [683-B] E.

2.1. 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 &.ore often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation bas to be laid if a plea of false implication is made. In such cases, the Court has to F adopt a careful approach and analyse evidence to find out whether it is cogent and credible. [Para 12) (683-D]

Da/ip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364; Guli Chand and Ors. v. State of Rajasthan, [1974) 3 SCC 698 and Vadivelu Thevar G

v. State of Madras, AIR (1957) SC 614, relied on.

2.2. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, bas no substance.

(Para 15] (684-Bl H

1 680

SUPREME .GOURT REPORTS

(2007] 4 S.C.R.

~ A Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364; Masa/ti ,... '-, and Ors. v. State of UP., AIR (1965) SC 202; State of Punjab v. Jagir Singh, AIR (1973) SC 2407; Lehna v. State of Haryana, [2002) 3 SCC 76 and S.

Sudershan Reddy v. State of A.P .• AIR (2006) SC 2716, relied on.

3. Even if the reco.very 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. [Para 19) {685-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 462 of

2007. '

~ c From the Judgment and Order dated 12.01.2006 of the High Court of Judicature of Madras in CRLA No. 1861 of 2002.

' .

C.S.N: Mohan Rao for the Appellant.

D V. Kanakraj, S. Vallinayagam, S. Prabhu Ramasubramanian and V.G.

Pragasam for the Respondent.

The Judgment of the Court was delivered by ,_

DR. ARIJIT PASAYA T, J. l. Leave granted.

t- E

2. Chall¢nge 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 ofRs.4,000/- with default stipulation. Only three of them had preferred appeal i.. before the High Court.

3. Prosecution version as unfolded during trial is as follows:

4. For the sake of convenience, the accused persons-appellants are described as Al, A2 and A3. The other accused is described as A4.

5. Sivaraman (Al) is a resident of Periyairusampalayam village. Mano (A2) and Nagappan (A3) are residents of Ariyankuppam village. Sivaraj (PW-

H 1) and Ganpathy (PW-3) are brothers and they are also residents of

-+ ,

MANOv. STATEOFTAMILNADU[PASAYAT, J.] 681

I Periyairusampalayam. There was quarrel between A I and PW-I at the time of A festival at Angalamman temple in Periyairusampalayam village. The said quarrel

WjlS pacified by one Pasupathy (hereinafter referred to as the 'deceased'), son of another brother of PWs I and 3 and thereby Al had impression that the deceased was a supporter of Srinivasan. Due to that impression, there was enmity between Al and. the deceased. On 8.5.2000, at about 8.30 p.m., PW~

I, PW-3, Vijayan, Murugan, Babu and Veerappan were engaged in conversation B 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 aiso following him. At that time, suddenly Al 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 C deceased. Particularly Al 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.Pl to the Sub D Inspector of police viz., Balakrishnan (PW-12) at about 5.00 a.m. on 9.5.2000.

On the basis of Ex.Pl, PW-12 registered a case in Crime no.132 of2000 under Section 302 IPC and prepared the printed FIR marked as Ex. Pl5 and sent the same to the Magistrate and copies to the higher officials. Subsequently, the Inspector of police viz., undarrajan, (PW-13) received the said FIR at about E 5.30 a.m. on 9.5.20QO '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.PIS and sent those M.Os. to the Magistrate. In continuation of the investigation, he proceeded to the Pondicherry Government Hospital and F 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 G meanwhile, Dr. Balaraman (PW-10) conducted post mortem and found the following five external injuries.

"I. Bluish discolouration and swelling present over right upper eye lid.

A 2.

Lacerated injury 4 x 1 x bond deep present over left Parietal region of head with fracture of underlying bone.

Lacerated injury 5 x 1 x bone deep over left occipital region of head.

Lacerated injury 4 x 1 x bone deep present over left occipital region of head.

Obliquely placed incised wound 10 x 1.5 x bone deep with fracture of underlying bone present over back of neck behind left ear."

6. Besides, there were internal injuries. He furnished post mortem report C marked as Ex. Pl 0 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 A I marked as Ex.P2 l and that of A2 marked as Ex. P 22 and recovered the knives marked as M.0.9 and M.O.

10 by preparing mahazars marked as Exs. P 23 and P 24 and examined Dr.

D Balaraman showing M.Os. 9 and 10 and then remanded the accused for juaicial 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

E IPC.

7. 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. A 1, A2 and A3 filed appeal before the High Court which was dismissed F by the impugned judgment. The present appeal is by A2.

8. 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 G lodged at 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 H 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 A 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.

9. In response, learned counsel for the respondent-State supported the judgment of the High Court affirming that of the Trial Court.

IO. It is to be noted that neither before the Trial Court nor before the High Court any plea was taken about there being earlier report regarding alleged incidence. Therefore, it is not possible to accept the stand as presently urged.

11. The other stand relates to the evidentiary value of statements of PWs 1 and 3 who were claimed to be related to the deceased.

12. In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a D 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.

13. 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 F 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 criticism and the mere fact of G 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 H

A must be limited to and be governed by its own facts."

14. The above decision has since been followed in Gu/i Chand and Ors.

v. State of Rajasthan, [1974] 3 SCC 698 in which Vadivelu Thevar v. State of Madras, AIR (195_7) SC 614 was also relied upon.

15. 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, 1.

C it was observed:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corrobotion.

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 ofRajasthan' AIR (1952) SC 54 at p.59. We find, however, that it unfortunately still persists, ifnot in the judgments of the Courts, at any rate in the arguments of counsel."

16. Again in Masa/ti and Ors. v. State of UP., 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."

17. To the same effect is the decision in State of Punjab v. Jagir Singh, H AIR (1973) SC 2407 and Lehna v. State of Haryana, [2002] 3 SCC 76.

I -r--

18. In S. Sudershan Reddy v. State of A.P., AIR (2006) SC 2716, it was A 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. B

19. 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.

20. Above being the position, there is no merit in this appeal, which is C accordingly dismissed.

S.KS.

Appeal dismissed.