SUDHAKAR @ SUDHARASAN versus STATE REP. BY THE INSPECTOR OF POLICE, SRIRANGAM POLICE STATION, TRICHY, TAMIL NADU

[2018] 4 S.C.R.

ASUDHAKAR @ SUDHARASAN

STATE REP. BY THE INSPECTOR OF POLICE, SRIRANGAMPOLICE STATION, TRICHY, TAMIL NADU

(Criminal Appeal No. 381 of 2018)

MARCH 12, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860 – s.302 – Prosecution case that appellantwas found strangulating the neck of his grandmother with his handsC– P.W-1(son-in-law of deceased), who was sleeping in the adjoiningroom, upon hearing the screams of the deceased, rushed to her andwitnessed the crime being committed – Appellant then took moneybag from the possession of the deceased and fled away from thespot – Accused was arrested next day at bus stand, in presence ofDPWs 11 and 12 – Appellant-accused convicted by the trial Courtand conviction affirmed by the High Court – On appeal, held:Conviction by the Courts below suffers from patent error of law –PWs 11 and 12 in their examination-in-chief denied the prosecutionstory about their presence at the time of arrest and seizure of materialobjects from the possession of the accused and they turned hostileE– Prosecution case rested on evidences of PW 1 and his wife (PW5) who were closely related to the accused-appellant – The relationsbetween accused-appellant and PWs 1 & 5 were strained overproperty issues and they were in inimical terms – As the prosecutionhas relied upon the evidence of interested witnesses, the Court hasFto be cautious while analyzing such evidence – Other than thesewitnesses, there were no independent witnesses to support the caseof prosecution – Nothing on record to support the version of PWs 1& 5 – It was on record that when the deceased was brought to thehospital, in the accident register, it was written as ‘history of fall’ –According to prosecution blood came out from the mouth and noseGof the deceased, but there appears no seizure of bloodstained clothesof the deceased and chemical analysis – There was inconsistencyin evidence by the alleged eyewitnesses as well as investigationagency – Thus, there exists reasonable doubt in instant case as thecase of prosecution is un-supported by independent witnesses,

ridden with contradictions, good motive for false prosecution andfilled with suspicious circumstances.

Allowing the appeal, the Court

HELD: 1. The whole basis for the Courts below to convictthe accused appears to be the version of the prosecution that theaccused was arrested next day at about 11 a.m. at bus stand, inpresence of PWs 11 and 12, and brushed aside the plea of alibipresented by the accused with due support by the evidence ofDW1. It is worthwhile to note that both of these witnesses (PWs11 & 12) in their examination-in-chief denied the prosecutionstory about their presence at the time of arrest and seizure ofmaterial objects from the possession of the accused and theyturned hostile. This fact casts serious doubts on the veracity ofprosecution story about the arrest of the accused. [Para 14] [619-C-D]

2. Admittedly, at the time of alleged incidence, PW 5 (wifeof PW1) and PW 6 (son of PWs 1 & 5) were not present near thealleged scene of offence. As regards the evidences of independentwitnesses (PWs 2, 3 and 4), who were residents of the same streetas that of the deceased and who were examined as ocularwitnesses, PW 2 (tenant of PW 5) turned hostile and did notsupport the prosecution case. Another shortfall in the prosecutioncase is that PW1 deposed that he gave oral complaint to police,but contrary statement was put forth by PW15—I.O. statingthat he got written complaint from PW1. [Para 15] [619-C-D, G]3.1 From the stated facts, it emerges that the entireprosecution case rests on the evidences of PWs 1 and 5 who areclosely related to the accused—appellant. The accused is noneother than the son of PW 5’s brother and PW 1 is the husband ofPW5 and PW6 is the son of PWs 1 & 5. Clearly, the relationsbetween the accused—appellant and PWs 1 & 5 were strainedover property issues and they were in inimical terms. Apparently,there was also civil suit pending between them for partition ofproperties. [Para 16] [619-H; 620-A-B]

3.2 It is settled law that there cannot be any hard and fastrule that the evidence of interested witness cannot be taken intoconsideration and they cannot be termed as witnesses. But, theonly burden that would be cast upon the Courts in those cases is

Athat the Courts have to be cautious while evaluating the evidenceto exclude the possibility of false implication. Relationship cannever be factor to affect the credibility of the witness as it isalways not possible to get an independent witness. [Para 17][620-E]

B3.3 Then, next comes the question ‘what is the differencebetween related witness and an interested witness?’. The pleaof “interested witness”, “related witness” has been succinctlyexplained by this Court that “related” is not equivalent to“interested”. The witness may be called “interested” only whenhe or she derives some benefit from the result of litigation inCthe decree in civil case, or in seeing an accused person punished.In this case at hand PW 1 and 5 were not only related witness,but also ‘interested witness’ as they had pecuniary interest ingetting the accused petitioner punished. As the prosecution hasrelied upon the evidence of interested witnesses, it would beDprudent in the facts and circumstances of this case to be cautiouswhile analyzing such evidence. Other than these witnesses, thereare no independent witnesses available to support the case ofthe prosecution. [Para 18] [620-F-H]

4. There is nothing on record to support the version of PWsE1 & 5 that on earlier occasions also and particularly on the dateof incident, the accused quarreled with his grandmotherdemanding money and to settle the house in his favor. Further, itis on record that when the deceased was brought to the hospital,in the Accident Register, it was written as ‘history of fall’.According to the prosecution’s case, blood came out from theFmouth and nose of the deceased, but there appears no seizure ofbloodstained clothes of the deceased and chemical analysis. Thus,the inconsistent evidence by the alleged eyewitnesses as well asinvestigation agency would cause dent to the edifice on whichthe prosecution case is built, and it adversely affects theGsubstratum of the prosecution case. [Para 19] [621-A-C]

5. There exists reasonable doubt in this case as the case ofprosecution is un-supported by independent witnesses, riddenwith contradictions, good motive for false prosecution and filledwith suspicious circumstances. Further, there is not onlyHinsufficiency of evidence but also lack of credibility on the

trustworthiness of PWs 1 & 5 which culminated into disprovingthe prosecution case and alleged guilt of the accused. Theprosecution has, therefore, failed to establish the guilt of theaccused-appellant beyond reasonable doubt by adducing cogentevidence. [Para 22] [622-B-C]

Sarwan Singh v. State of Punjab (1976) 4 SCC 369;State of U.P. v. Kishanpal and Ors. (2008) 16 SCC 73 :[2008] 11 SCR 1048; Latesh v. State of Maharastra2018 (3) SCC 66 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.381 of 2018.

From the impugned Judgment and Final Order dated 23.01.2015passed by the Madurai Bench of Madras High Court in Criminal AppealNo.(MD) No.298 of 2013.

Thomas Franklin Caesar, S. Gowthaman, Ms. M. Venmani,Ms. S. Amali, Advs. for the Appellant.

M. Yogesh Kanna, Ms. Sujatha Bagadhi, Advs. for the Respondent.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. Leave granted.

rdF2. This appeal has been preferred against the judgment dated 23January, 2015 passed by the Madras High Court, Bench at Madurai inCriminal Appeal (MD) No. 298 of 2013 whereby the High Court concurredwith the judgment of the trial court and dismissed the appeal preferredby the appellant—accused against his conviction under Section 302 IPC.

3. Facts of the case in brief, as advanced by the prosecution, arethat the appellant herein is habitual drunkard and used to live oppositeto his grandmother’s house and always indulged in quarreling with herthdemanding money. The incident has taken place on 17 January, 2013 atabout 6.30 p.m. The appellant was found strangulating the neck of hisgrandmother, namely, Mariyayee (deceased) with his hands. One

AJayaraj—PW1 (son-in-law of the deceased), who was sleeping in theadjoining room, upon hearing the screams of the deceased, rushed to herand witnessed the crime being committed by the accused on hisgrandmother. The appellant then took surukupai (money bag) from thepossession of the deceased and fled away from the spot.

B4. Jayaraj—(PW 1) then hired an auto and took his mother-in-lawto ABC hospital while informing about the incident to his wife Maruthayee(PW5) over phone, PW5 in turn also reached the hospital. The patientwas admitted in the hospital at 7.30 p.m. and Dr. Mohammed GhouseKhan (PW8) examined her and found that she was conscious but restless.However, Mariyayee had passed away at 7.55 p.m. Jayaraj (PW 1)Clodged complaint at Srirangam Police Station at about 11.30 p.m. andbasing on the same, Crime No. 22 of 2013 was registered against theappellant. PW15—Inspector of Police (Balusamy) sent the FIR (Ext.P12)to Court and inspected the place of occurrence. Subsequently, otherformalities such as preparation of observation mahazar (Ext. P2), drawingDof rough sketch (Ext. P13), holding of inquest were carried on and thebody of the deceased was sent for postmortem. Meanwhile, theaccused—appellant was taken into custody and after recording hisconfessional statement, police recovered surukupai (money bag) fromhis possession (M.O. 1).

E5. Postmortem on the dead body of deceased Mariyayee wasconducted by Dr. RVS Renuga Devi (PW 9) who found linear abrasionsof varying lengths and contusion on the front of neck, fracture of thyroidcartilage and tracheal rings, bruising of anterior chest wall, fracture ofleft collar bone and manubrium stemi transversely at the level of 4[th] ribattachment with surrounding area bruising. Doctor expressed her opinionFthat the deceased appears to have died of compression of neck andchest wound.

6. The appellant—accused denied the charge of committing theoffence and claimed to be tried. In order to bring home the guilt of theaccused, prosecution has examined as many as 15 witnesses and markedG16 exhibits. While so, the accused in his defence examined his mother-in-law, Mala as DW1 and marked no documents. There were howevertwo material objects, one is the surukupai (money bag) and the other isan amount of Rs.140/-, both have allegedly been recovered from thepossession of the accused.

7. The trial court relying upon the evidences of prosecutionwitnesses, particularly PWs 1 and 5, came to the conclusion that oftenthe accused used to quarrel with the deceased for fulfilling his demandsof money and had the motive to commit the offence. In pursuance thereof,the accused came to the house of the deceased and strangulated herneck and then pushed her down, hence the deceased suffered asphyxiaand injuries on her chest wall and ribs. It further held that medical evidenceon record clearly establishes that the deceased had died due tocompression of neck and chest wounds. Therefore, the trial Court heldthat the trivial contradictions in the evidence of the witnesses will notaffect the prosecution case and the appellant—accused was guilty ofthe offence of murder. The trial Court accordingly convicted the accusedunder Section 302, IPC and sentenced him to undergo life imprisonmentand to pay fine of Rs.1,000/-, in default, to further suffer rigorousimprisonment for period of six months.

8. The aggrieved appellant approached the High Court in appealwhich came to be dismissed with the observation that the conviction andsentence imposed by the learned trial judge is in consonance with thepenal provisions and does not suffer from any infirmity. Hence, theaccused is before us by way of this appeal.

9. We have heard learned counsel for the parties and perused thematerial on record.

10. Learned counsel appearing for the accused—appellantemphatically contended that the courts below have erred in convictingthe appellant even though prosecution case was full of materialirregularities and inconsistent depositions by the witnesses. The counselpointed out that the Courts below committed manifest error whiledisbelieving the defence of alibi of the appellant that at the relevant time,the accused was not there at his grandmother’s house but he was in hismother-in-law’s house and police took him for enquiry from there on17.1.2013 at 11 pm. The counsel submitted that the prosecution has notsuccessfully established the motive part also. But the Courts below laidbasis on exaggerated versions of prosecution witnesses and convictedthe appellant. All the prosecution witnesses, particularly PW 1 and PW5, are interested witnesses as they had developed grudge on the familyof the appellant in connection with sharing of properties and they wantto get rid of him as they intend to grab the property of appellant. With

Athat view in mind, PWs 1 and 5 implicated the accused in the offencewhich would disentitle him to inherit the joint family property.

11. It was further argued that there was no independent witnessto the alleged crime and there was no satisfactory explanation for thedelay in lodging complaint under Ext. P.1 and the delay in FIR reachingBto the Judicial Magistrate. PWs 2, 3, 4 who were said to be theeyewitnesses, did not support the case of prosecution. It is also contendedby the learned counsel that it was evidently represented by PW5—daughter of the deceased at the hospital that her mother (deceased) hadfallen down in the house and therefore she was suffering frombreathlessness, the said statement is duly authenticated with the AccidentCRegister (Ext. P3) where it is mentioned as ‘history of fall’. But later onbefore Court, PW5 denied of having said so and improved her statementthereby implicating the appellant in the crime. More stress has been laidon the aspect that as per postmortem report, on the body of the deceased,there were fractures over the rib and left collar bone as well as overDmanuburium sterni, which does not support the case of strangulation butsupports the case of fall as stated by PW5 to the Doctor. Concluding hisarguments, learned counsel submitted that despite all the discrepanciesin the prosecution case, the Courts below went ahead and convicted theappellant and the judgment deserves to be set aside by this Court.

E12. While advancing his arguments, learned counsel appearingfor the State submitted that no case is made out by the appellant seekinginterference of this Court while both the Courts below concurrently foundhim guilty. According to him, the accused, being habitual drunkard,often used to quarrel with his grandmother (deceased) for money andfor transfer of property. On the day of incident also, the accused pickedFup quarrel with the deceased at about 11 am and PW1 sent him awaypeacefully. But in the evening, while PW1 was asleep in the house, theaccused again entered and committed the offence. The trial Court andHigh Court had rightly relied upon the consistent and categorical evidenceof PW1, who happened to be the eyewitness to the incident, coupledGwith the corroboration of medical evidence, and by way of reasonedorder, convicted the accused. The recovery of surukupai (money bag)from the possession of the accused substantiates the commission ofcrime and the case of the prosecution. Though the accused tried to putforward the defence of alibi through DW1, the defence could not succeedin its effort and they did not put single query or suggestion to theH

Investigating Officer in their endeavor to ascertain that the accusedwas picked up by the police from the house of DW1 and to falsify theprosecution case that the accused was arrested from the bus stand.

13. On careful consideration of the matter in the light ofsubmissions made on either side and after perusing the material availableon record, the issue that falls for consideration is “whether both theCourts below were right in convicting the accused for the offencepunishable under Section 302, IPC.”

14. The whole basis for the Courts below to convict the accusedappears to be the version of the prosecution that the accused was arrestedon 18.1. 2013 at about 11 a.m. at bus stand, in presence of PWs 11 and12, and brushed aside the plea of alibi presented by the accused withdue support by the evidence of DW1. It is worthwhile to note that bothof these witnesses (PWs 11 & 12) in their examination-in-chief deniedthe prosecution story about their presence at the time of arrest and seizureof material objects from the possession of the accused and they turnedhostile. This fact casts serious doubts on the veracity of prosecutionstory about the arrest of the accused.15. Admittedly, at the time of alleged incidence, PW 5 (wife ofPW1) and PW 6 (son of PWs 1 & 5) were not present near the allegedscene of offence. As regards the evidences of independent witnesses(PWs 2, 3 and 4), who were residents of the same street as that of thedeceased and who were examined as ocular witnesses, PW 2 (tenant ofPW 5) turned hostile and did not support the prosecution case. Hedeposed that on 17.1.2013 at 7 pm when he found some crowd in frontof the house of deceased he rushed there and found the deceased inunconscious condition. Then, he along with PWs 3 and 4 took thedeceased to Srirangam Government Hospital and informed the same toPWs 1 & 5, they asked them to bring the deceased to ABC Hospitalwhere PWs 1 & 5 joined them later on. In his cross examination, hestated that PW 1 was not present in Srirangam on the date of incident.PWs 3 and 4 also turned hostile and similar statements were made bythem also. Another shortfall in the prosecution case is that PW1 deposedthat he gave oral complaint to police, but contrary statement was putforth by PW15—I.O. stating that he got written complaint from PW1.

16. From the above stated facts, it emerges that the entireprosecution case rests on the evidences of PWs 1 and 5 who are closely

Arelated to the accused—appellant. The accused is none other than theson of PW 5’s brother and PW 1 is the husband of PW5 and PW6 is theson of PWs 1 & 5. Clearly, the relations between the accused—appellantand PWs 1 & 5 were strained over property issues and they were ininimical terms. Apparently, there was also civil suit pending betweenthem for partition of properties.B

17. It would be appropriate to have look at the legal positionwith regard to the evidence of related and interested witnesses. InSarwan Singh v. State of Punjab, (1976 (4) SCC 369), para 10, thisCourt observed thus:

C“….. The evidence of an interested witness does not suffer fromany infirmity as such, but the Courts require as rule of prudence,not as rule of law, that the evidence of such witnesses should bescrutinised with little care. Once that approach is made and theCourt is satisfied that the evidence of interested witnesses have aring of truth such evidence could be relied upon even withoutDcorroboration.”

It is settled law that there cannot be any hard and fast rule thatthe evidence of interested witness cannot be taken into considerationand they cannot be termed as witnesses. But, the only burden that wouldbe cast upon the Courts in those cases is that the Courts have to beEcautious while evaluating the evidence to exclude the possibility of falseimplication. Relationship can never be factor to affect the credibility ofthe witness as it is always not possible to get an independent witness.

18. Then, next comes the question ‘what is the difference betweena related witness and an interested witness?’. The plea of “interestedFwitness”, “related witness” has been succinctly explained by this Courtthat “related” is not equivalent to “interested”. The witness may be called“interested” only when he or she derives some benefit from the result ofa litigation in the decree in civil case, or in seeing an accused personpunished. In this case at hand PW 1 and 5 were not only related witness,Gbut also ‘interested witness’ as they had pecuniary interest in getting theaccused petitioner punished. [refer State of U.P. v. Kishanpal and Ors.,(2008) 16 SCC 73]. As the prosecution has relied upon the evidence ofinterested witnesses, it would be prudent in the facts and circumstancesof this case to be cautious while analyzing such evidence. It may benoted that other than these witnesses, there are no independent witnessesHavailable to support the case of the prosecution.19. Now, it would be appropriate to consider whether the Courtsbelow exercised the judicial discretion in evaluating the evidence of PW1and PW5 while convicting the accused. It may be noted that there isnothing on record to support the version of PWs 1 & 5 that on earlieroccasions also and particularly on the date of incident, the accusedquarreled with his grandmother demanding money and to settle the housein his favor. Further, it is on record that when the deceased was broughtto the hospital, in the Accident Register, it was written as ‘history offall’. According to the prosecution’s case, blood came out from the mouthand nose of the deceased, but there appears no seizure of bloodstainedclothes of the deceased and chemical analysis. Thus, the inconsistentevidence by the alleged eyewitnesses as well as investigation agencywould cause dent to the edifice on which the prosecution case is built,and it adversely affects the substratum of the prosecution case.

20. We further find, to certain extent, material infirmities,irregularities and contradictions in the prosecution case as also in theevidence of prosecution witnesses including the deposition of PWs 1 &5, who are material witnesses. PW 1 in his cross examination categoricallystated that his wife (PW 5) has filed suit for partition against the accusedand his family members whereas PW 5 in her cross examination deniedthe same. Likewise, there are contradictory statements of witnesses,primarily to the aspect of happening of incident, taking the victim to thehospital, the presence of PW1 at the time of alleged incident, detainingthe accused from bus stand or from his mother-in-law’s house, recoveryof material objects from the possession of accused and lodging ofcomplaint by PW1 etc, and the whole story appears to be an utterlyincredible one. More so, there was no explanation forthcoming from theprosecution side on the questions raised by the defense that soon afterreaching the ABC hospital with victim, how can the PWs 1 & 5 directlyapproach Dr. Mohammed Ghouse Khan (PW8) without going toEmergency Ward and why the Doctors at ABC hospital did not informpolice when it was medico legal case. Both the Courts below havesimply noted that the variations and contradictory statements are notmaterial in proving the guilt of the accused. We feel that the reasoninggiven by the Courts below is ex facie illegal.

21. This Court in Latesh V. State of Maharastra [Criminal AppealNo. 1301 of 2015, decided on January 30, 2018] has explained that thereasonable doubt in lucid manner as mean between excessive caution

Aand excessive indifference to doubt. Moreover, it has been explainedthat reasonable doubt should be practical one and not an illusoryhypothesis.

22. In view of the above discussion, we are of the view that thereexists reasonable doubt in this case as the case of prosecution is un-Bsupported by independent witnesses, ridden with contradictions, goodmotive for false prosecution and filled with suspicious circumstances.Further we are of the considered opinion that there is not onlyinsufficiency of evidence but also lack of credibility on the trustworthinessof PWs 1 & 5 which culminated into disproving the prosecution caseand alleged guilt of the accused. The prosecution has, therefore, failedCto establish the guilt of the accused-appellant beyond reasonable doubtby adducing cogent evidence. We are satisfied that the Courts belowcompletely misdirected themselves and the conviction imposed upon theaccused by the trial Court and confirmed by the High Court suffersfrom patent error of law and perversity of approach and deserves to beDset aside.

23. Resultantly, the appeal is allowed and the impugned judgmentpassed by the High Court is set aside. The appellant is stated to be in jail.He shall be set free forthwith unless required in any other case. Pendingapplications, if any, shall also stand disposed of.

Ankit Gyan

Appeal allowed.