REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1614 OF 2009
Raju @ Balachandran & Ors. …..Appellant (s)
Versus
State of Tamil Nadu …..Respondent (s)
J U D G M E N T
Madan B. Lokur, J.
1. The issue before us is
whether the Trial Court and the High Court
were both right in believing the testimony of PW-5 Srinivasan, a related
and interested witness, that his brother Veerappan and his mother Marudayi
were murdered by the appellants.
Whether such an issue is of such public
importance that it requires a decision from this Court is moot.
But, be
that as it may, we find no reason to disbelieve the witness and agree with
both the Courts that his evidence should be accepted.
2. Accordingly, we uphold the conviction and sentence of the appellants
for having committed the murder of Veerappan and Marudayi.
The facts:
3. Appellant No. 1 (Raju @ Balachandran) is the father of appellant No.
2 (Rajkumar) and of appellant No. 3 (Sekar).
4. The case of the prosecution was that there was some enmity between
the appellants and Veerappan relating to a ritual called “Mandu Vettal”
performed before worshipping God in their village. The enmity dated back
to about 4 or 5 years prior to the incident that we are concerned with.
5. On 4th May 2003 at about 5.30 a.m. Veerappan had gone to the tea shop
of PW-7 Kamaraj and was returning along with PW-1 Thangavel and PW-5
Srinivasan (brother of Veerappan) who were following him. As Veerappan
approached his house, the appellants stopped him in the middle of the road
and attacked him. Raju dealt a sickle blow on his right leg below the
knee. This was followed by sickle blows inflicted on his shoulder, neck and
head by Raj Kumar and Sekar. Veerappan died instantaneously, his head
having almost been severed from the body.
6. On hearing some shouting, Veerappan’s mother Marudayi came out of her
house. When she saw what was happening, she came to rescue Veerappan and
confront the appellants. At that time, Raju dealt her blows with his
sickle on her neck, shoulder and head. Marudayi succumbed to her injuries a
short while later en route to the hospital, where she was being taken by PW-
5 Srinivasan.
7. A First Information Report (FIR) of the incident was lodged by PW-1
Thangavel and thereafter investigations were started by the police.
8. According to the prosecution PW-1 Thangavel and PW-5 Srinivasan were
eye witnesses to the incident. Also, when the attack on Veerappan and
Marudayi took place, PW-2 Smt. Thangammal (wife of Srinivasan), PW-3
Rajagopal and PW-4 Smt. T. Vasugi came out of their house and witnessed the
incident.
9. The appellants fled away after attacking Veerappan and Marudayi.
Later on they surrendered in the local Court. When the investigating
officer came to know of this, he sought their custody by moving an
application in the Court. He was granted custody of the appellants on 14th
May 2003. According to the prosecution, their confessional statement led to
the recovery of the sickles used in the attack on the deceased. The clothes
worn by the appellants were also recovered.
10. On the conclusion of investigations, a challan was filed alleging
that the appellants had murdered Veerappan and Marudayi. In Sessions Case
No.76/2004 before the Additional District & Sessions Judge (Fast Track
Court), Tiruchirapally, the appellants pleaded not guilty and claimed
trial. The prosecution examined seventeen witnesses while the defence
examined two witnesses.
Decision of the Trial Court:
11. During the trial, PW-1 Thangavel, the author of the FIR, PW-3
Rajagopal and PW-4 Smt. Vasugi turned hostile. The Trial Judge was of the
view that PW-2 Smt. Thangammal and PW-5 Srinivasan were eye witnesses and
believed the testimony of PW-2 Smt. Thangammal (in part) and that of PW-5
Srinivasan (in full).
12. The Trial Judge held that PW-2 Smt. Thangammal generally stated that
all the appellants caused injuries to the deceased without being specific.
Consequently, her testimony relating to the sickle blows was not accepted.
13. As regards PW-5 Srinivasan, it was held that he was specific in
saying that Raju injured Veerappan with a sickle on the right leg below the
knee, while the other two appellants injured him on his shoulder and neck.
The nature of injuries was confirmed by the doctor PW-8 Dr. Sumathi Paul
Raj. The evidence on record showed that Veerappan’s head was almost severed
from his body and his death was instantaneous. The Trial Judge also
accepted the evidence of PW-5 Srinivasan that Marudayi was grievously
injured by Raju on the head, neck and shoulder. Again, the nature of
injuries was confirmed by the doctor PW-8 Dr. Sumathi Paul Raj who stated
that Marudayi died as a result of the injuries.
14. The Trial Judge rejected the contention that since PW-5 Srinivasan
was the elder brother of Veerappan and son of Marudayi, his evidence was
that of an interested witness and therefore should not be accepted. He also
rejected the contention that since the evidence of PW-5 Srinivasan was not
corroborated, his evidence should not be accepted.
15. PW-6 Marudai, father of Veerappan and husband of Marudayi testified
to the enmity between the parties as a result of the ritual “Mandu Vettal”.
16. PW-7 Kamaraj the owner of the tea shop visited by Veerappan also
turned hostile. He denied that Veerappan was followed by PW-1 Thangavel and
PW-5 Srinivasan, but he did not deny that Veerappan had visited his tea
shop on the fateful morning.
17. The other witnesses examined by the prosecution were the doctors who
conducted the post mortem, the officers who investigated the occurrence and
some others whose testimony is not of much significance.
18. The Trial Judge rejected the testimony of the two defence witnesses
as not credible. DW-1 Murugesan stated that the appellants had come to his
house on 3rd May 2003 and had stayed with DW-2 Smt. S. Vasantha. However,
this witness was not aware about when the appellants had come to his house
and after they left for the house of DW-2 Smt. S. Vasantha when did they
return.
19. DW-2 Smt. S. Vasantha was not believed since she stated that the
appellants had gone to a temple festival in her village but there was
nothing to support this statement.
20. Based principally on the evidence of PW-5 Srinivasan and the
recoveries made, the Trial Court, by its judgment and order dated 26th
November 2004 convicted Raju for offences punishable under Section 341 of
the Indian Penal Code (for short ‘IPC’) and Section 326 of the IPC in
respect of Veerappan and Section 302 of the IPC for the murder of Marudayi.
Rajkumar and Sekar were convicted of offences punishable under Section 302
of the IPC read with Section 34 thereof for the murder of Veerappan.
Decision of the High Court:
21. In Criminal Appeal No.4/2005 filed by the appellants before the
Madras High Court it was contended that since PW-1 Thangavel, PW-3
Rajagopal and PW-4 Smt. Vasugi had turned hostile, there was no credible
evidence against the appellants, more so, because the author of the FIR PW-
1 Thangavel had turned hostile. As such, the very basis of the case could
not be relied upon.
22. It was further submitted that the Trial Court had not fully believed
PW-2 Smt. Thangammal and the only witness who came out in support of the
case of the prosecution was PW-5 Srinivasan. It was submitted that there
were some discrepancies in his evidence and as per the FIR he was not
present at the place of occurrence. Therefore, it was submitted, the
evidence of PW-5 Srinivasan could not be relied upon.
23. On the credibility of PW-5 Srinivasan, it was contended that the
medical evidence did not match with his oral evidence and it would be
unsafe to rely on his oral description of the events. In addition, it was
submitted that since PW-5 Srinivasan was a related and interested witness,
his testimony should be closely scrutinized and on such close scrutiny it
would turn out that he was not a reliable witness.
24. The High Court rejected all the contentions urged on behalf of the
appellants. It was held that there was no doubt that Veerappan and
Marudayi died as a result of homicidal violence. It was further held that
on an examination of the evidence of PW-5 Srinivasan it could not be said
that he was an unreliable witness. While there may have been some minor
discrepancies in his description of the events, he was believed by the
Trial Judge and there was no reason for the High Court to disbelieve him.
25. The High Court noted that on a reading of the FIR it was clear that
PW-5 Srinivasan was present at the place of occurrence. In addition
thereto, the FIR also mentioned that PW-1 Thangavel had asked PW-5
Srinivasan to take Marudayi to the hospital for treatment. Consequently,
the presence of PW-5 Srinivasan at the place of occurrence could not be
doubted.
26. The High Court also held that there was some enmity between the
appellants and Veerappan and on an overview of the entire case, the
conviction handed down by the Trial Court must be accepted.
27. Accordingly, the High Court, by its judgment and order dated 2nd
August 2006 dismissed the appeal filed by the appellants.
Discussion:
28. Before us, only two contentions were advanced by learned counsel for
the appellants. Firstly, it was contended that since PW-5 Srinivasan was a
related and interested witness, his evidence must be closely scrutinized,
and if his testimony is put to close scrutiny, it will be quite clear that
he ought not to be believed. Secondly, it was contended that the
prosecution case was doubtful since there was no evidence except the
unreliable testimony of PW-5 Srinivasan.
29. The first contention relates to the credibility of PW-5 Srinivasan.
It was said in this regard that he was a related witness being the elder
brother of Veerappan and the son of Marudayi both of whom were victims of
the homicidal attack. It was also said that he was an interested witness
since Veerappan (and therefore PW-5 Srinivasan) had some enmity with the
appellants. It was said that for both reasons, his testimony lacks
credibility.
30. What is the difference between a related witness and an interested
witness? This has been brought out in State of Rajasthan v. Kalki, (1981) 2
SCC 752. It was held that:
“True, it is, she is the wife of the deceased; but she cannot be
called an “interested” witness. She is related to the deceased.
“Related” is not equivalent to “interested”. A witness may be called
“interested” only when he or she derives some benefit from the result
of a litigation; in the decree in a civil case, or in seeing an
accused person punished. A witness who is a natural one and is the
only possible eyewitness in the circumstances of a case cannot be said
to be “interested”.”
31. In light of the Constitution Bench decision in State of Bihar v.
Basawan Singh, AIR 1958 SC 500 the view that a “natural witness” or “the
only possible eyewitness” cannot be an interested witness may not be, with
respect, correct. In Basawan Singh, a trap witness (who would be a natural
eyewitness) was considered an interested witness since he was “concerned in
the success of the trap”. The Constitution Bench held:
“The correct Rule is this: if any of the witnesses are accomplices who
are particeps criminis in respect of the actual crime charged, their
evidence must be treated as the evidence of accomplices is treated; if
they are not accomplices but are partisan or interested witnesses, who
are concerned in the success of the trap, their evidence must be
tested in the same way as other interested evidence is tested by the
application of diverse considerations which must vary from case to
case, and in a proper case, the court may even look for independent
corroboration before convicting the accused person.”
32. The wife of a deceased (as in Kalki), undoubtedly related to the
victim, would be interested in seeing the accused person punished – in
fact, she would be the most interested in seeing the accused person
punished. It can hardly be said that she is not an interested witness. The
view expressed in Kalki is too narrow and generalized and needs a rethink.
33. For the time being, we are concerned with four categories of
witnesses – a third party disinterested and unrelated witness (such as a
bystander or passer-by); a third party interested witness (such as a trap
witness); a related and therefore an interested witness (such as the wife
of the victim) having an interest in seeing that the accused is punished; a
related and therefore an interested witness (such as the wife or brother of
the victim) having an interest in seeing the accused punished and also
having some enmity with the accused. But, more than the categorization of a
witness, the issue really is one of appreciation of the evidence of a
witness. A court should examine the evidence of a related and interested
witness having an interest in seeing the accused punished and also having
some enmity with the accused with greater care and caution than the
evidence of a third party disinterested and unrelated witness. This is all
that is expected and required.
34. In the present case, PW-5 Srinivasan is not only a related and
interested witness, but also someone who has an enmity with the appellants.
His evidence, therefore, needs to be scrutinized with great care and
caution.
35. In Dalip Singh v. State of Punjab, 1954 SCR 145 this Court observed,
without any generalization, that a related witness would ordinarily speak
the truth, but in the case of an enmity there may be a tendency to drag in
an innocent person as an accused – each case has to be considered on its
own facts. This is what this Court had to say:
“A witness is normally to be considered independent unless he or she
springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the
accused, to wish to implicate him falsely. Ordinarily, a close
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 a tendency to drag
in an innocent person against whom a witness has a grudge along with
the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any sweeping
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 a general rule of prudence. There is no such
general rule. Each case must be limited to and be governed by its own
facts.”
36. How the evidence of such a witness should be looked at was again
considered in Darya Singh v. State of Punjab, (1964) 3 SCR 397. This Court
was of the opinion that a related or interested witness may not be hostile
to the assailant, but if he is, then his evidence must be examined very
carefully and all the infirmities taken into account. It was observed that
where the witness shares the hostility of the victim against the assailant,
it would be unlikely that he would not name the real assailant but would
substitute the real assailant with the “enemy” of the victim. This is what
this Court said:
“There can be no doubt that in a murder case when evidence is given by
near relatives of the victim and the murder is alleged to have been
committed by the enemy of the family, criminal courts must examine the
evidence of the interested witnesses, like the relatives of the
victim, very carefully. But a person may be interested in the victim,
being his relation or otherwise, and may not necessarily be hostile to
the accused. In that case, the fact that the witness was related to
the victim or was his friend, may not necessarily introduce any
infirmity in his evidence. But where the witness is a close relation
of the victim and is shown to share the victim's hostility to his
assailant, that naturally makes it necessary for the criminal courts
examine the evidence given by such witness very carefully and
scrutinise all the infirmities in that evidence before deciding to act
upon it…….. [I]t may be relevant to remember that though the witness
is hostile to the assailant, it is not likely that he would
deliberately omit to name the real assailant and substitute in his
place the name of the enemy of the family out of malice. The desire to
punish the victim would be so powerful in his mind that he would
unhesitatingly name the real assailant and would not think of
substituting in his place the enemy of the family though he was not
concerned with the assault. It is not improbable that in giving
evidence, such a witness may name the real assailant and may add other
persons out of malice and enmity and that is a factor which has to be
borne in mind in appreciating the evidence of interested witnesses. On
principle, however, it is difficult to accept the plea that if a
witness is shown to be a relative of the deceased and it is also shown
that he shared the hostility of the victim towards the assailant, his
evidence can never be accepted unless it is corroborated on material
particulars.”
37. More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295
this Court dealt with the case of a related witness (though not a witness
inimical to the assailant) and while referring to and relying upon Sarwan
Singh v. State of Punjab, (1976) 4 SCC 369, Balraje v. State of
Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh,
(2011) 4 SCC 262, Israr v. State of Uttar Pradesh, (2005) 9 SCC 616, S.
Sudershan Reddy v. State of Andhra Pradesh, (2006) 10 SCC 163, State of
Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Jarnail Singh v. State of
Punjab, (2009) 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10 SCC
477 it was held:
“It is clear that merely because the witnesses are related to the
complainant or the deceased, their evidence cannot be thrown out. If
their evidence is found to be consistent and true, the fact of being a
relative cannot by itself discredit their evidence. In other words,
the relationship is not a factor to affect the credibility of a
witness and the courts have to scrutinise their evidence meticulously
with a little care.”
38. The sum and substance is that the evidence of a related or interested
witness should be meticulously and carefully examined. In a case where the
related and interested witness may have some enmity with the assailant, the
bar would need to be raised and the evidence of the witness would have to
be examined by applying a standard of discerning scrutiny. However, this is
only a rule of prudence and not one of law, as held in Dalip Singh and
pithily reiterated in Sarwan Singh in the following words:
“The evidence of an interested witness does not suffer from any
infirmity as such, but the courts require as a rule of prudence, not
as a rule of law, that the evidence of such witnesses should be
scrutinised with a little care. Once that approach is made and the
court is satisfied that the evidence of interested witnesses have a
ring of truth such evidence could be relied upon even without
corroboration.”
39. We have gone through the evidence of PW-5 Srinivasan by applying the
discerning scrutiny standard and find it difficult to overturn the view
expressed by both the Courts in their acceptance of his evidence. His
description of the events is simple and straightforward and the cross-
examination does not demolish his version of the events. In fact, the cross-
examination is directed more at proving that one Subramaniam may have been
the assailant since Veerappan had an illicit relationship with
Subramaniam’s first wife Periammal. This was ruled out by PW-5 Srinivasan
who did not want to shield the real assailant and put the blame for the
occurrence on someone else.
40. As far as the second contention is concerned, it overlaps with the
first.
Both the Trial Court and the High Court have concurrently held that
PW-5 Srinivasan was an eye witness to the murder of Veerappan and Marudayi.
The conclusion arrived at by both the Courts has not been shown to be
perverse in any manner whatsoever nor has it been shown deserving of
reversal.
41. The presence of PW-5 Srinivasan at the place of occurrence cannot be
doubted in view of the FIR lodged by PW-1 Thangavel and his testimony.
Even
though PW-1 Thangavel may have turned hostile, the fact remains that a
report was made to the police about the homicidal attack on Veerappan and
Marudayi.
That there was a homicidal attack on them is not in dispute.
This is confirmed even by the witnesses who turned hostile.
It is also not
in dispute that Veerappan died on the spot and that Marudayi was grievously
injured.
This too is confirmed by the witnesses who turned hostile.
That PW-
5 Srinivasan took Marudayi to the hospital immediately after she was
attacked is confirmed by PW-1 Thangavel.
On the basis of these facts, which
are evident from the record, there is no option but to accept the
conclusion of both the Courts that PW-5 Srinivasan was present at the place
of occurrence and was an eye witness to the incident.
His testimony is not
unreliable but is supported in its essential details by the testimony of
the other witnesses.
Conclusion:
42. We find the evidence of PW-5 Srinivasan credible notwithstanding that
he was a related and interested witness.
Accordingly, we uphold the
conviction and sentence awarded to the appellants by the Trial Court and
confirmed by the High Court.
43. The appeal is dismissed.
.…….……………………..J.
(Swatanter Kumar)
….…….……………………..J.
(Madan B. Lokur)
New Delhi
November 27, 2012
