STATE REP. BY INSPECTOR OF POLICE versus SARAVANAN & ANR.

STATE REP. BY INSPECTOR OF POLICE v.

SARAVANAN & ANR.

(Criminal Appeal No. 832 of 2002)

OCTOBER 14, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDKAM SHARMA, JJ.]

Penal Cod, 1860 - s. 304 .(Part II) - Assault by two ac-cused - resulting in death of one and injuries to eye-witnesses - Eye-witnesses related to the deceased - Conviction by trial court of accused No. 1 ulss. 302, 307, 427 and 448 /PC -Accused No. 2 convicted u/ss. 302134, 307134, 323, 324, 427 and 448 /PC -Acquittal of both the accused of all the charges by High court - On appeal, held: Prosecution proved its case beyond reasonable doubt that the accused assaulted the eye-~ [witnesses and the ][deceased-][ Minor discrepancies in the state-]ment of the witnesses and the fact that witnesses were related would not affect prosecution case - However, in view of the fact of the case, it is not case punishable u/s. 302 - Hence, conviction of both the accused altered to one uls.304 (Part II).

Evidence - Testimony of related witness - Evidentiary value of - Held: Relationship is not factor to affect credibility of witness - Jn case of plea of interestedness of such witness, the court is required to analyse the credibility of such witness.

Respondents-accused were prosecuted for having caused cjeath of one person and for causing injuries to others. Trial Court convicted accused No. 1 u/ss. 302, 307, 427, 448 IPC. Accused No. 2 was convicted u/ss. 302/34, 427, 448, 307/34, 323 and 324 IPC. Conviction was chal-lenged on the grounds interalia that the evidence of eye-witnesses (viz. PWs. 1,2,3,4 and 5 could not be relied upon as they were closely related to the deceased and thus in-terested. High Court allowed the appeal of the accused 405

on the grounds interalia that there was delay in sending 1-~ formal FIR to the Court; that there was no clear evidence to prove as to who committed the crime; that there were discrepancies and improvements in the statement of wit-nesses. Hence the present appeal.

Partly allowing the appeal, the Court

HELD: 1. Relationship is not factor to affect the ..\.-, credibility of witness, for the mere reason that an eye-witness can be said to be an interested witness, his/her testimony need not be rejected. Most of the times, eyewit-. nesses happen to be family members or close associates because unless crime is committed in public place, strangers are not likely to be present at the time of occur-rence. It is more often than not that relation would not conceal actual culprit and make allegation against an in-0 nocent person. Whenever any plea is taken by the ac-cused persons about the interestedness of witnesses, materials have to be placed in that regard. In such cases, the Court has to adopt careful approach and analyse evidence to find out whether it is cogent and credible.

[Para 8] [413-8-E]

Dalip Singh v. .State of Punjab AIR 1953 SC 364; Masalti

v. State of U.P., 1964 (8) SCR 133; State of Rajasthan v. Teja Ram 1999 (3) SCC 507; Amzad Ali v. State of Assam 2003 (6) sec 270 - relied on.

1 _....2. While appreciating the evidence of witness, mi- ? ~

nor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the gen-G eral tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances ~. the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in

some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on mi-nor variations and discrepancies. [Para 11] [416-E-G]

State of UP v. MK. Anthony 1985 (1) SCC 505 - relied

3. In the instant case all the injured persons have cat-

egorically stated not only the manner in which the inci-dent on the day of occurrence took place but also the in-ci.dent which occurred on the previous week. The wit- nesses have been consistent. The deposition of the wit-nesses, as per record, indicates that all the injuries re-ceived by them were caused during the incident by ac-cused persons. The injured witnesses are eye witnesses and therefore there is no reason to rope in some other persons other than the actual culprits. The said evidence could not be shaken and when the factual scenario is examined in the light of the legal principles, the High Court was not justified in coming to the conclusion that it was not proved from the evidence available on record as to who committed the aforesaid crime. The injuries were caused by the accused persons not only on the person of eye witnesses but also on the person of deceased which resulted in his death and the prosecution has been able to prove its case beyond any reasonable doubt. [Paras 12 and 13] [416-H; 417-F-G]

4. The present case, however, cannot be said to be

case falling under the provisions of Section 302 IPC. It appears from the evidence on record and the manner in which the occurrence had taken place that there was some altercation between the parties. The accused per-sons were also not armed with any deadly weapon. When they went to the house of PW 1 and damaged the cook-ing utensils there was no intention of killing. When PW 1

being followed by P.Ws 2, 3, the deceased and PW 5 came

[2008] 14 S.C.R.

to'. the house and' there was some altercation and ex-change of hot words, during that stage the accused gave. injuries tO PW 1, 2, 3 and also to the deceased. The said injuries were also caused by stick. In the said crusade injuries were also inflicted on the person of A1. Both the [accused persons are therefore,· convicted ][under ][Section ]304 Part II instead of 302 IPC and sentenced to undergo rigorous imprisonment for period of seven years. [Para 14] [417-H; 418-A-D]

Dharam and Ors .. v. State of Haryana JT 2007(1) SC 299

- relied on.

CASE .LAW REFERENCE

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal

No. 832 of 2002

From the final Judgment and Order dated 7.3.2001 of the

· High Court of Madras in Criminal Appeal No. 670 of 1992

S. Thananjayan and V.G. Pragasam for the Appellant.

V.J. Francis, A. Radha Krishnan and Anupam Mishra for

the Respondents.

The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. By this judgment

and order, we propose to dispose of the appeal filed against the judgment and .order of the Division Bench of the High Court of Madras, whereby the Division Bench set aside the judgment and order of the learned Additional Sessions Judge, Vellore

arid acquitted both the accus;d respondents of all the charges framed against them.

2. However, before we deal with the contentions raised before us in the appeal. it would be necessary to state the facts of the case leading to filing of the present appeal, which are as under:

The father Of the accused respondents is the brother of + P.W. 1 and P.W. 6. They inherited certain property which was again divided amongst them. There were two m~ngo trees on one acre of land at Kanililuppai village which belonged to P.W. 6. The father of accused had no share in that property. Accord-ing to the measurement done both the trees of mango fell within the land of P.W.6. One of the trees had become dead tree. How-ever, before the said measurement could take place the father of the accused respondents sold that tree to one Shanmugam for sum of Rs. 1,000/-.

The occurrence, which gives rise to the present appeal occurred on 01.06.1991. One week prior to the occurrence, P.Ws. 1, 2, 5 and Murugasan (hereinafter referred to as 'the deceased') were plucking mango fruits from the aforesaid tree when Janaki, who _is mother of the accused respondents, came there and collected some mangoes. However P. W. 6 did not allow Janaki to carry the mangoes, so collected by her. The same resulted in wordy quarrel between P.Ws. 1, 2, the de-ceased and Janaki. Janaki beat the accused with plate. An-noyed over that, P. W. 1 attacked Janaki with stick.

On the evening of 01.06.1991, P.Ws 1, 2, 3 along with deceased and P.W. 5 went to the house of one Kanniammal for weaving work, which is located nine houses away from the house of P.W. 1. At that time, P.W. 4 was cooking in the house. _ Around 6.45 p.m., accused/respondent 1 and 2 (for short 'A 1' and 'A2' respectively) trespassed into the house of P.W. 1 and damaged the cooking utensils. Frightened by that act of the accused, P.W. 4 informed about this incident to P.Ws. 1 to 3. From the place of weaving, P.W. 1 went back to his house and

j.....-

asked 1 and A2 as to why they damaged the pots. P.Ws. 2, 3, the deceased and P.W. 5 followed P.W. 1 to the house. At that )--stage, 1, with M.O. 1 attacked on the right side head, left up-per arm and left thigh of P.W. 1, who was caught and hold tightly by A2. At the time when P.W. 2 intervened, A2 with· M.O. 2 at-B tacked upon him on his head; his right shoulder and right leg knee. The deceased, Murugesan, intervened and 1 stating that he must die and with that, attacked on the back side of his head with M.O. 1. The brain came out. Deceased was bleeding -t through his nose and mouth. Struck by the aforesaid blow the deceased fell down, upon which A1 and A2 started kicking the deceased. P.W. 3 intervened to preventA1 from further assault-ing deceased. A2, with M.O. 3 - bamboo stick attacked P.W. 3 on his left forehead and shoulder, resulting in the left eye of P.W. 3 getting congested. Thereafter, 1 and A2 ran away from the

scene of occurrence.

P.Ws 1, 2 and the deceased were taken by P.W. 5 and

two others in bullock cart to the Government Hospital atArani. The Medical Officer, who was later on examined as P.W. 10, examined P.W. 1 and found number of injuries on his person. He also examined P.W. 2 and found number of injuries on his person as well. P.W. 3 was also examined in the Government Hospital and on such examination number of injuries were also found on his person. All the injuries found on P.Ws 1, 2 and 3 were recorded in the accident register, which is marked as Exhibit P.12. Intimation, Exhibit P.13, regarding the admission of P.W. 1, P.W. 2 and the deceased in the Hospital was also sent to police station at Arani.

On receipt of the aforesaid intimation, Exhibit P.13, from the Government Hospital the police started investigation and examined P.W. 1 and recorded statement from him, which is marked in this case as Exhibit P.1. The same stood registered in crime No. 185/91 for offences punishable under Sections 341, 324, 325 and 307 of the Indian Penal Code, 1860 (for short "--' 'IPC'). Exhibit P. 26 is the F.l.R. During investigation the investi-H gating officer examined number of witnesses and recorded their

SARAVANAN & ANR. [DR. MUKUNDAKAM SHARMA, J.]

--f statements and also went to the scene of occurrence from where he recovered M.Os. 7 and 8. As the condition of the deceased was serious, he was referred to the Government Hospital at Vellor and on 9.45 p.m. on 01.06.1991, he was admitted in the Government Hospital at Vellor. Deceased succumbed to the injuries sustained by him at 3.50 a.m. on 02.06.1991. On re- s ceipt of the aforesaid death intimation, the investigation officer, --+- P.W. 15 altered the section of offence to Section 302 IPC. On conclusion of the enquiry, he submitted charge sheet" as against both the accused persons.During trial P.W.1, who is father of P.W. 2, P.W. 5 and de-ceased, as also P.W. 2 to 17 were examined as witnesses. On conclusion of the trial, the learned trial court found both the ac-cused guilty of the offences charged against them. 1 was sen-tenced to undergo imprisonment for the offence punishable un-der section 302 IPC and A2 was sentenced to undergo life im-prisonment for the offence punishable under section 302 read ~ with Section 34 IPC. They were also sentenced to imprison-ment for six months each under Section 427 and Section 448 IPC. 1 was also held guilty under Section 307 IPC and A2 under Section 307 read with Section 34 IPC and sentenced to undergo imprisonment for three years. They were also directed to pay fine of Rs. 1000/- and in default thereof both the ac-cused were directed to undergo imprisonment for one year additionally. A2, in addition to the abovesaid, was also held guilty under Section 323 and Section 324 IPC and sentenced to un---\ dergo imprisonment for six months and one year respectively. All the sentences were ordered to run concurrently.

3. Being aggrieved by the aforesaid judgment and order

passed by the trial court an appeal was filed by both the ac-cused before the High Court of Madras, which was heard by Division Bench of the said Court. The High Court allowed the appeal and set aside the judgment and order of the trial court and acquitted both the accused of all the charges.

4. The present appeal was filed by the State of Tamil Nacf u

being aggrieved by the order of acquittal passed by the High )-

Court of Madras. We have heard the learned counsel for the parties, who drew our attention to entire evidence existing on record. Having heard the learned counsel appearing for both the parties and having looked into various facts and evidences on record, we propose to dispose of this appeal by this appeal by this Judgment.

available on record, we propose to dispose of this appeal by this appeal by

5. Learned counsel appearing for the appellant brought to -+--

our notice the evidence of all the witnesses as also all other relevant documents inciuding the first information report in sup-of his contentions that the order of acquittal passed by the his contentions that the order of acquittal passed by the of acquittal passed by the acquittal passed by the learned Division Bench of the High Court cannot be upheld and requires to be set asise. Counsel for the respondents, on the other hand, submitted that the order of acquittal does not call for any interference for it takes notice of all the relevant facts and factors, and therefore, the appeal is required to be dis-missed.

port of his contentions that the order of acquittal passed by the his contentions that the order of acquittal passed by the of acquittal passed by the acquittal passed by the

and factors, and therefore, the appeal is required to be dis-

6. We have carefully gone through the Judgment passed +

by the Division Bench of the High Court. bare perusal of the said judgment would ·indicate that the order of acquittal was on the fact that there was delay in sending Ex-the fact that there was delay in sending Ex-in sending Ex-sending Ex-hibit P.26, the formal F.l.R. to the court. The Division Bench also held that there was r.o clear evidence to prove and establish that it is the accused who caused injuries on the witnesses as well as the deceased. The Division Bench was also of the view

mainly based on the fact that there was delay in sending Ex-the fact that there was delay in sending Ex-in sending Ex-sending Ex-

that till the deceased died and case was converted into Sec-

tion 302 IPC, the accused persons were not identified. It was )-- ~"'also held by the Division Bench that there was no clear evi-dence to prove as to who has caused injuries on the witnesses as weir as on the deceased. In view of the aforesaid findings, the Division Bench has set aside the order of conviction passed of conviction passed conviction passed by the trial court.

the Division Bench has set aside the order of conviction passed of conviction passed conviction passed

7. We carefully scrutinized and analyzed the evidence ad-

duced by the parties. There is no denial and dispute to the fact th.at the deceased died due to the injuries sustained by him.

•• ~'-,

There is also no dispute with regard to the fact that P.Ws 1, 2

and 3 received their injuries during the incident and they are the eye witnesses to the occurrence. They have specifically stated in their deposition as to how the occurrence had taken place.

8. Before the High Court the stand taken by the respon-

8 dents was that the evidence of P.W. 1, 2, 3, 4 and 5 should not have been relied upon as they were closely related to the de-ceased and were interested witnesses. The law is long settled that relationship is not factor to affect the credibility of wit-ness, for the mere reason that an eyewitness can be said to be an interested witness, his/her testimony need not be rejected. [c ]Most of the times, eyewitnesses happen to be family members or close associates because unless a.crime is committed in public place, strangers are not likely to be present at the time of occurrence. It is more often than not that relation would not conceal actual culprit and make allegation against an innocent person. Whenever any plea is taken by the accused persons about the interestedness of witnesses, materials have to be placed in that regard. In such cases, the Court has to adopt careful approach and analyse evidence to find out whethe·r it is cogent and credible.

9. The theory that the witnesses being close relatives and

consequently being partisan witnesses, should not be relied upon, was repelled by this Court in the year 1953 itself in the case of Oalip Singh V. State of Punjab [AIR 1953 SC 364], wherein it was held as under:

"26. 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 enm.ity against the accused, to wish t~ implicate him falsely. Ordinarily, close relative 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 tendency to drag in an innocent person against whom witness has

grudge along with the guilty, but foundation must be laid for such criticism and the mere fact of relationship far from being foundation is often sure guarantee of truth. However, we are not attempting any sweeping generalisation. 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 general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

similar view was taken in later decision of this Court in Masalti v. State of U.P., [(1964) 8 SCR 133] wherein this Court observed as follows:

"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 cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

10. The principles laid down in the above said cases have been reiterated by this Court time and again. In State of Rajasthan v. Teja Ram, [(1999) 3 SCC 507] this Court further stated that over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. The ob-servations as enumerated in Para 20 are as follows:

"The over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If

,L,..,~ r-I

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the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is justification for making adverse comments against non-examination of such person as prosecution witness. Other.vise, merely on surmises the court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."

Moreover, in Amzad Ali v. State of Assam, [(2003) 6 SCC 270], wherein one of was member (Dr. Arijit Pasayat) this Court stated in clear terms that there is no rule of any presumption that the evidence of related witness will always be an inter-ested one or that such witness wiil have only hostile attitude towards the accused facing trial.

11. The High Court also held that as there were some dis-

crepancies and improvements in the statement of the witnesses, their evidence should not be relied upon. In State of U.P v. M.K. Anthony, [(1985) 1 SCC 505] this Court has laid down the ap-preach which should be followed by the Court in such cases:

"10. While appreciating the evidence of witness, the approach must be whether the evidence of the witness read as whole appears to have ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking

sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between rustic and refined lawyer ................... "

Even otherwise, it has been said time and again by this Court that while appreciating the evidence of witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evi-dence in its entirety. Further, on the general tenor of the evi-dence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the total-ity of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and dis-

crepancies.

12. In the present case all the injured persons have cat-egorically stated not only the manner in which the incident on the day of occurrence took place but also the incident which occurred on the previous week. It has come in evidence that Janaki was not allowed to carry the mangoes collected by her

I •_,,,r__,

by PW 6, which resulted in wordy quarrel between P.Ws. 1, 2, the deceased and Janaki, consequent to which Janaki beat the deceased with plate and annoyed by the said fact PW 1 at-tacked Janaki with stick. The said incident establishes that there was quarrel going on between the parties consisting of P.Ws 1, 2, 3, the deceased and others as against the accused person and their mother- Janaki. The witnesses have been con-sistent with regard to the fact that when P.Ws 1, 2, 3 along with deceased and P.W. 5 went to the house of one Kanniammal for weaving work, which is situated nine houses away from the house of PW 1 and PW 4 was cooking in the house, at that time, 1 and A2 trespassed into the house of PW 1 and dam-aged the cooking utensils. Being so informed by PW 4 to P.Ws 1 to 3, PW 1 came to his house followed by P.Ws 2 and 3, the deceased and PW 5 and around the same time 1 attacked the deceased as also the PW 1 being so caught and held by A2. The deposition of the witnesses, as per record, indicates that all the injuries received by them were caused during the incident by accused persons. The injured witnesses are eye witnesses and therefore there is no reason to rope in some other persons other than the actual culprits. The said evidence could not be shaken and when we examine the factual scenario in the light of the above discussed legal principles we find that the High Court was notjustified in coming to the conclusion that it was not proved from the evidence available on record as to who committed the aforesaid crime .

13. Therefore, we have no hesitation in our mind to come

to the conclusion that the injuries were caused by the accused persons not only on the person of eye witnesses but also on the person of deceased which resulted in his death and the pros-ecution has been able to prove its case beyond any reason-able doubt.

14. Having come to the aforesaid conclusion, another

question that comes up for our consideration is whether it would be case punishable under section 302 IPC. It appears from the evidence on record and the manner in which the occurrence

[2008] 14 S.C.R.

had taken place that there was some altercation between the parties. The accused persons were also not armed with any deadly weapon, and therefore, it could be deduced that when they went to the house of PW 1 and damaged the cooking uten-sils there was no intention of killing. Accuseci could kill PW 4 at [that stage, which they did not. Rather when ][PW ][1 being fol-]lowed by P.Ws 2, 3, the deceased and PW 5 came to the house and there was some altercation and exchange of hot words, during that stage the accused gave injuries to PW 1, 2, 3 and also to the deceased. The said injuries were also caused by [stick. ][In ][the said crusade injuries were also inflicted ][on ][the per-]son of 1. Therefore, in our considered opinion, the present case cannot be said to be case falling under the provisions of Section 302 IPC. Both the accused persons are therefore, con-victed under Section 304 Part II instead of 302 IPC and sen-D [tenced to undergo rigorous imprisonment for period ][of ][seven ]years. While coming to the aforesaid conclusion, we are forti-tied by decision of this Court in Dharam & Ors. v. State of Haryana [JT 2007(1) SC 299], wherein also under similar cir-cumstances, this Court held that the offence committed by the [accused persons would fall within the ambit ][of ][Section 304 Part ]II. In that case_ the deceased and the accused happened to be blood relations and having regard to the peculiar circumstances of the case in which the incident took place, fatal injury inflicted on the head of the deceased, which was found to be sufficient in the ordinary course of nature to cause death could not be held as an injury intended by the accused persons to cause death or an injury likely to cause death of deceased. The facts, therefore, are almost similar to case in hand and the ratio is fully applicable to the facts of this case.

15. The appeal is partly allowed. The judgment of High

Court is set aside but with abovesaid modification. Both the accused are directed to surrender forthwith to serve the remain-ing sentence.

[K.K.T. ]

Appeal partly allowed.

/ ....,_

/ .;-' [" ]