As observed by this Court far more important than
categorization of witnesses is the question of appreciation of
their evidence. The essence of any such appreciation is to
determine whether the deposition of the witness on to the
incident is truthful hence acceptable. While doing so, the
Court can assume that a related witness would not ordinarily
shield the real offender to falsely implicate an innocent
person. In cases where the witness was inimically disposed
towards the accused, the Courts have no doubt at times
noticed a tendency to implicate an innocent person also, but
before the Court can reject the deposition of such a witness
the accused must lay a foundation for the argument that his
false implication springs from such enmity.
The mere fact
that the witness was related to the accused does not provide
that foundation. It may on the contrary be a circumstance
for the Court to believe that the version of the witness is
truthful on the simple logic that such a witness would not
screen the real culprit to falsely implicate an innocent.
Suffice it to say that the process of evaluation of evidence of
witnesses whether they are partisan or interested (assuming
there is a difference between the two) is to be undertaken in
the facts of each case having regard to ordinary human
conduct prejudices and predilections.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1623 OF 2009
Shanmugam and Anr.
...Appellants
Versus
State Rep. by Inspector of Police, T. Nadu
Decided On:
This appeal arises out of a judgment and order dated
24th August, 2006 passed by the High Court of Judicature of
Madras at Madurai, whereby Criminal Appeal No.857 of 2004
filed by the appellants and two others against their
conviction for murder and sentence of life imprisonment has
been dismissed.
2.
On 5th January, 1999 at about 3.00 p.m. the deceased
Asokan was one amongst 200 other mourners who had
assembled to attend the cremation of a near relative who
had passed away and was being cremated at village
Veerappanayakan Patti.
Adikesavan (PW-1), Rajendran
(PW-4), Vellingiri (PW-5) and Paneer (PW-10) were also
among
those
present
at
the
cremation
ground.
The
prosecution case is that, that on account of strained
relations between the accused and the deceased arising out
of rivalry in relation to smuggling of sandalwood by the two
groups, there was, a few days earlier to the date of
occurrence, a quarrel between them which had turned ugly
with the two groups assaulting each other. The accused
were, therefore, looking for an opportunity to get even with
deceased which opportunity came their way when the
deceased who was a resident of another village joined the
funeral and the cremation ceremony.
It so happened that
no sooner were the mortal remains of the departed soul
consigned to flames, Perumal one of the accused (since
deceased) saw Asokan standing near a coconut tree in the
former’s land, and started moving towards him with the
remaining four accused including the appellants in this
appeal. Perumal who had picked up a stick gave a blow to
the deceased on the head because of which the deceased
collapsed to the ground. Shanmugam (A-1), appellant in the
present appeal, in the meantime picked up a stone and hit
the deceased on his face repeatedly while Mahendran (A-2)
caught hold of his legs. Raghu (A-3) squeezed the testicles
of Asokan while Ramajayam (A-4), appellant No.2 in this
appeal, assaulted the deceased with a heavy stone on his
head exclaiming “with that he must go”. The injuries so
inflicted crushed Asokan’s head and killed him on the spot.
Adikesavan (PW-1), Rajendran (PW-4) and Vellingiri (PW-5)
tried to intervene but were threatened by the accused
persons that they would also meet the same fate. Scared,
the witnesses ran for safety while the accused made their
escape good. Those attending the cremation also ran away
in panic. Adikesavan (PW-1) returned to the crime scene
and found his younger brother lying dead with his head
shattered. He informed Sudha (PW-3) about the incident and
rushed to Harur to meet his younger brother Ramalingam
(PW-2) who accompanied him back to the crime scene in a
car. The incident was then reported at Harur Police Station
in writing by Adikesavan (PW-1). The police swung into
action, conducted an inquest and seized the stick and stones
used by the accused persons for the assault and the blood
stained
clothes
of
the
deceased.
A
chargesheet
was
eventually filed by the Investigating Officer that led to their
trial before the Additional Sessions Judge, Dharamapuri who
recorded the statements of as many as 11 witnesses
produced on behalf of the prosecution. The defence did not
choose to lead any oral evidence.
3.
The Trial Court eventually came to the conclusion that
the prosecution had brought home the guilt to the accused
persons
and
accordingly
convicted
them
for
murder
punishable under Section 302 read with Section 34 IPC and
sentenced
them
to
undergo
imprisonment
for
life.
Aggrieved by the judgment and order passed by the Trial
Court the appellants and two other surviving accused
persons filed Criminal Appeal No.857 of 2004 before the
High Court of Judicature of Madras at Madurai, Perumal the
fifth accused having passed away in the meantime. By its
judgment and order impugned in this appeal the High Court
has concurred with the view taken by the Trial Court and
found the conviction and sentence to be perfectly justified
upon a reappraisal of the evidence adduced before the Trial
Court. The present appeal filed by two out of the four
accused persons calls in question the correctness of the said
judgment and order of the High Court.
4.
We have heard learned counsel for the parties at
considerable length who have taken us through the evidence
on record. The Trial Court as also the High Court have both
placed reliance upon the deposition of Adikesavan (PW-1)
who was an eye witness to the occurrence. The Courts below
have also noted that while Rajendran (PW-4) and Vellingiri
(PW-5)
have
turned
hostile,
they
have
nevertheless
supported the prosecution case in the past. The Courts also
found that enmity between the deceased and the accused
persons on account of smuggling of sandalwood was the
motive for the commission of the crime which motive was
satisfactorily established on the evidence adduced at the
trial.
5.
Appearing for the appellants Mr. Srilok N. Rath made a
three-fold submission before us. Firstly, it was contended
that there was un-explained delay not only in the lodging of
the first information report but also in dispatching a copy of
the same to the jurisdictional Magistrate. In the absence of
any cogent and acceptable explanation for the delay the
prosecution case was rendered doubtful. Secondly, it was
contended that the prosecution case rests entirely on the
deposition of Adikesavan (PW-1) who was closely related to
the deceased and could not be said to be an independent
witness. Relying upon the decision of this Court in Mahtab
Singh & Anr. v. State of U.P. (2009) 13 SCC 670, it was
contended that although the deposition of an interested
witness was not by itself inadmissible in evidence, prudence
demanded that his testimony be scrutinized more closely
and carefully. A careful evaluation of the evidence of
Adikesavan (PW-1) did not, according to the learned
counsel, inspire confidence which was full of embellishments
and improbabilities sufficient to demolish his credibility.
6.
Thirdly, it was contended that even if the prosecution
case was accepted in toto the offence could not go beyond
Section 304 Part II of the IPC. Reliance was in support
placed by the learned counsel upon the decision of this Court
in Camilo Vaz v. State of Goa (2000) 9 SCC 1.
7.
The incident in the case at hand took place at around
3.00 p.m. on the 5th of January, 1999 in a village. The first
information
report
about
the
same
was
lodged
by
Adikesavan (PW-1) at 10.00 p.m. on the same day. The
contention urged on behalf of the appellant was that the
delay of seven hours in the lodging of the report by
Adikesavan
(PW-1)
circumstances
of
was
the
inordinate
case
and
in
ought
the facts and
to render the
prosecution version suspect on that count itself. We do not
think so. Delay in the lodging of the FIR is not by itself fatal
to the case of the prosecution nor can delay itself create any
suspicion about the truthfulness of the version given by the
informant just as a prompt lodging of the report may be no
guarantee about its being wholly truthful. So long as there is
cogent and acceptable explanation offered for the delay it
loses its significance. Whether or not the explanation is
acceptable will depend upon the facts of each case. There is
no cut and dried formula for determining whether the
explanation is or is not acceptable. Having said that, Courts
need to bear in mind that delay in lodging of the FIR
deprives
it
of
spontaneity
and
brings
in
chances
of
embellishments like exaggerations and distortions in the
story which if narrated at the earliest point of time may have
had different contours than what is eventually recorded in a
delayed report about the occurrence. On the flipside a
prompt lodging of the report may not carry a presumption of
truth with it. Human minds are much too versatile and
innovative to be subject to any such strait-jacket inferences.
Embellishments,
distortions,
and
false
implication
of
innocence may come not only out of deliberation which the
victim party may hold among themselves or with their well-
wishers and supporters, but also on account of quick
thinking especially when all that it takes to do so is to name
all those whom the informant or his advisors perceive to be
guilty or inimical towards them. Decisions of this Court as to
the advantage of a report lodged promptly and possibility of
embellishment in cases where the report is delayed, as also
the approach which the Courts ought to adopt while
considering the effect of such delay in a given case are a
legion and the principles of law much too well settled to
require any elaboration or re-statement. Reference can all
the same be made to Meharaj Singh v. State of U.P
(1994) 5 SCC 188, Thulia Kali v. State of Tamil Nadu
(1972) Crl.LJ 1296, State of Himachal Pradesh v. Gian
Chand (2001) 6 SCC 71, Ramdas and Ors. v. State of
Maharashtra (2007) 2 SCC 170, Kilakkatha Parambath
Sasi and Ors. v. State of Kerala AIR 2011 SC 1064 and
Harivandan Babubhai Patel v. State of Gujarat (2013)
7 SCC 45.
8.
There is, in the case before us, delay of hardly a few
hours which the prosecution has explained to the satisfaction
of the Trial Court and
the High Court both.
Adikesavan
(PW-1), it appears, returned to the place of occurrence after
the accused persons had left only to find his brother dead
with his face and head severely injured.
According to the
witness, he travelled to Harur to inform his brother-
Ramalingam (PW-2) who accompanied him to the place of
occurrence in a car and then to the police station where
Adikesavan (PW-1) lodged the first information report. Some
time was obviously wasted in this process of travel to and
from the place of occurrence and to the police station for
lodging the report.
The report gave a detailed account of
the incident. No deficiency in terms of the omission of the
names or the role played by the accused was pointed out to
us by the learned counsel appearing for the appellants. The
version
given
by
Adikesavan
(PW-1)
has
remained
consistent with the version given in the first information
report. There is, in that view, no reason for us to disbelieve
the prosecution case only because the first information
report was delayed by a few hours especially when the delay
has been satisfactorily explained. The first limb of the
argument advanced by counsel for the appellants has,
therefore, failed and is hereby rejected.
9.
That brings us to the question whether Adikesavan
(PW-1) was a reliable witness. The contention, as seen
earlier, is that since the witness happened to be the brother
of the deceased, he must be taken as a partisan witness on
account of his close relation with the victim. The difference
between a partisan witness on one hand and an interested
witness who is unrelated to the victim but has some
beneficial interest in the outcome of a litigation on the other,
remains obscure. This Court in Raju @ Balachandran and
Ors. v. State of Tamil Nadu AIR 2013 SC 983, very
recently attempted a possible categorization of witnesses
and identified broadly four such categories in the following
words:
“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.”
(emphasis supplied)
10. As observed by this Court far more important than
categorization of witnesses is the question of appreciation of
their evidence. The essence of any such appreciation is to
determine whether the deposition of the witness on to the
incident is truthful hence acceptable. While doing so, the
Court can assume that a related witness would not ordinarily
shield the real offender to falsely implicate an innocent
person. In cases where the witness was inimically disposed
towards the accused, the Courts have no doubt at times
noticed a tendency to implicate an innocent person also, but
before the Court can reject the deposition of such a witness
the accused must lay a foundation for the argument that his
false implication springs from such enmity.
The mere fact
that the witness was related to the accused does not provide
that foundation. It may on the contrary be a circumstance
for the Court to believe that the version of the witness is
truthful on the simple logic that such a witness would not
screen the real culprit to falsely implicate an innocent.
Suffice it to say that the process of evaluation of evidence of
witnesses whether they are partisan or interested (assuming
there is a difference between the two) is to be undertaken in
the facts of each case having regard to ordinary human
conduct prejudices and predilections.
11. The approach which the Court ought to adopt in such
matters has been examined by this Court in several cases,
reference to which is unnecessary except a few that should
suffice. In Dalip Singh v. State of Punjab (1954) 1 SCR
145 this Court observed:
“26. 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.”
(emphasis supplied)
12. The above was followed by this Court in Masalti v.
State of U.P. (1964) 8 SCR 133 where this Court
observed:
“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.”
13. We may also refer to the decision of this Court in
Darya Singh v. State of Punjab (1964) 3 SCR 397 and a
more recent reminder of the legal principles in Takdir
Samsuddin Sheikh v. State of Gujarat and Anr. (2011)
10 SCC 158 where this Court observed:
“(i) While appreciating the evidence of witness
considering him as the interested witness, the court
must bear in mind that the term 'interested'
postulates that the witness must have some direct
interest in having the accused somehow or the other
convicted for some other reason. (Vide: Kartik
Malhar v. State of Bihar (1996) 1 SCC 614; and
Rakesh and Anr. v. State of Madhya Pradesh JT 2011
(10) SC 525).
(ii) This Court has consistently held that as a general
rule the Court can and may act on the testimony of a
single witness provided he is wholly reliable. There is
no legal impediment in convicting a person on the
sole testimony of a single witness. That is the logic
of Section 134 of the Evidence Act, 1872. But if
there are doubts about the testimony, the court will
insist on corroboration. In fact, it is not the number,
the quantity, but the quality that is material. The
time-honoured principle is that evidence has to be
weighed and not counted. The test is whether the
evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise. The legal system has laid
emphasis on value, weight and quality of evidence
rather than on quantity, multiplicity or plurality of
witnesses. It is, therefore, open to a competent
court to fully and completely rely on a solitary
witness and record conviction. Conversely, it may
acquit the accused in spite of testimony of several
witnesses if it is not satisfied about the quality of
evidence. (See: Vadivelu Thevar v. The State of
Madras AIR 1957 SC 614; Sunil Kumar v. State
Govt. of NCT of Delhi (2003) 11 SCC 367; Namdeo
v. State of Maharashtra (2007) 14 SCC 150; and
Bipin Kumar Mondal v. State of West Bengal AIR
2010 SC 3638).”
(emphasis supplied)
14. To the same effect are the decisions of this Court in
Amit v. State of Uttar Pradesh (2012) 4 SCC 107, Bur
Singh and Anr. v. State of Punjab AIR 2009 SC 157,
and Sate of H.P. v. Kishanpal and Ors. 2008 (11)
SCALE 233.
15. In the case at
hand the
deposition of Adikesavan
(PW-1) has been found to be reliable by the Trial Court as
also the High Court, no matter he was related closely to the
deceased. There is nothing in the cross-examination of the
witness that could be said to have adversely affected the
credibility of this witness nor is there anything to suggest
that apart from his being a relative of the deceased he had
any other reason to falsely implicate the accused persons or
any one of them. The version given by the witness as to the
manner in which the deceased was done to death by the
accused persons gets support from the medical evidence led
in
the
case.
The
doctor
conducting
the
post-mortem
examination found the death to be homicidal caused by the
following injuries on the person of the deceased :
“External Injuries: Face – Mouth lacerated. Lower
lip, lower jaw, nose – lacerated. Blood stained liquid
oozing from the mouth. Mandible and all the teeth i
the lower jaw broken into pieces. Neck – A skin
colour contusion over the neck present. Limbs –
contusion over right shoulder. Abdomen – Left
testicle crusted and exposed of the skin.
Internal Examination: Skull – Base of skull
fracture in the post cranial fossa crossing the
midline. Bain – Congested and contained about 100
ml of clotted blood. Neck – Hyoid bone intact.
Thorax – Sternum intact. No rib fracture. Lungs –
Congested. Right – 450 gms. Left – 420 gms. Heart
– Congested. Empty 150 gms. Liver – Congested.
Intact – 1100 gms. Kidney – Congested – intact –
120 gms. Each. Bladder – Empty. Stomach –
contains about 50 gms. Of undigested food. Spleen –
Congested – 90 gms.”
16. It is noteworthy that the other two witnesses namely
Rajendran (PW-4) and Vellingiri (PW-5) also supported the
prosecution case, no matter only in part. The fact that the
deceased was present at the cremation ground where the
occurrence took place is proved from their depositions as
well. It is equally important to note that one of the accused
persons, namely, Perumal (since deceased) had according to
these two witnesses also picked up a stick and assaulted the
deceased on his head as a result of which the deceased had
collapsed to the ground. The rest of the prosecution case, on
the role played by the other accused persons in the killing of
the deceased, has not been supported by these two
witnesses who were declared hostile and cross-examined by
the prosecution. Even so, the prosecution case as to the
manner
in
which
assaults
started
and
the
place
of
occurrence was proved by the deposition of Adikesavan
(PW-1) whom we find no reason to disbelieve.
17. That brings us to the contention urged on behalf of the
appellants that even if the prosecution version is accepted in
toto, the case falls under Section 304 Part II IPC and not
Section 302 IPC for which the appellants have been
convicted. There is, in our view, no merit in that contention
either. We say so because of the manner in which the
deceased was assaulted and the brutality of the assault
shows that the accused formed an unlawful assembly with
the object of killing the deceased. The blow landed on the
deceased by Perumal had brought the deceased to the
ground whereupon the accused continued brutalising the
deceased with the help of stones, in the process crushing his
head and squeezing his testicles.
We have no manner of
doubt that the nature of injuries caused to the deceased
were clearly indicative of the accused having had the
intention of killing him. The use of the words “with that he
must go” by appellant No.2 is only a manifestation of that
intention.
18. There is, therefore, no room for altering the conviction
from Section 302 to Section 304 Part II, IPC as argued by
the learned counsel.
19. In the result this appeal fails and is hereby dismissed.
..........................................................J.
(T.S. THAKUR)
New Delhi
September 11, 2013
............................................................J.
(VIKRAMAJIT SEN)
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