REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.832 OF 2002  

State Rep. by Inspector of Police …. Appellant

versus

Saravanan & Anr. …. Respondents

JUDGMENT

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 and acquitted

both the accused 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  mango  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.  According 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.  However, before the said measurement could take place the

father of the accused respondents sold that tree to one Shanmugam for a

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 a wordy quarrel between P.Ws. 1, 2, the deceased and

Janaki.  Janaki beat the accused with a plate.  Annoyed over that, P.W. 1

attacked Janaki with a 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 ‘A1’ and ‘A2’ respectively) trespassed into the house of P.W. 1

and damaged the cooking utensils.  Frightened by that act of the accused,

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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 asked A1 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, A1, with M.O. 1 attacked on the right

side head, left upper 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 attacked

upon  him  on  his  head;  his  right  shoulder  and  right  leg  knee.   The

deceased, Murugesan,  intervened and A1 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 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  prevent  A1  from  further

assaulting 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, A1 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

a bullock cart to the Government Hospital at Arani.  The Medical Officer,

who was later on examined as P.W. 10, examined P.W. 1 and found a

number of injuries on his person.  He also examined P.W. 2 and found a

number of injuries on his person as well.  P.W. 3 was also examined in the

Government Hospital and on such examination a number of injuries were

also found on his person.  All the injuries found on P.Ws 1, 2 and 3 were

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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 a 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.I.R.  During investigation

the investigating officer examined number of witnesses and recorded their

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 receipt 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 a charge sheet as against both the

accused persons.   

During trial P.W.1, who is father of P.W. 2, P.W. 5 and deceased, as

also P.W. 2 to 17 were examined as witnesses.  On conclusion of the trial,

the  learned  trial  court  found  both  the  accused  guilty  of  the  offences

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charged against them. A1 was sentenced to undergo imprisonment for the

offence  punishable  under  section  302  IPC  and  A2  was  sentenced  to

undergo life imprisonment  for  the offence punishable under section 302

read with Section 34 IPC.  They were also sentenced to imprisonment for

six months each under Section 427 and Section 448 IPC.  A1 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 a fine of Rs. 1000/- and in default thereof

both  the  accused 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 undergo 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 accused before the High Court of

Madras, which was heard by a 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  Nadu  being

aggrieved by the order of acquittal passed by the High Court of Madras.

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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 available on record, we propose to dispose

of this appeal by this Judgment.    

5. Learned counsel appearing for the appellant brought to our notice the

evidence  of  all  the  witnesses  as  also  all  other  relevant  documents

including the first information report in support of his contentions that

the order of acquittal passed by the learned Division Bench of the High

Court cannot be upheld and requires to be set aside. 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 dismissed.

6. We have carefully gone through the Judgment passed by the Division

Bench of the High Court.  A bare perusal of the said judgment would

indicate that the order of acquittal was mainly based on the fact that

there was a delay in sending Exhibit P.26, the formal F.I.R. to the court.

The Division Bench also held that there was no 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

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view that till the deceased died and case was converted into Section

302 IPC, the accused persons were not identified.  It was also held by

the Division Bench that there was no clear evidence to prove as to who

has caused injuries on the witnesses as well as on the deceased. In

view of  the aforesaid findings,  the Division Bench has set  aside the

order of conviction passed by the trial court.

7. We carefully  scrutinized and analyzed the  evidence adduced by the

parties.  There is no denial and dispute to the fact that 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 respondents 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  deceased  and  were  interested

witnesses.  The law is long settled that relationship is not a factor to

affect the credibility of a witness, for the mere reason that an eyewitness

can be said to be an interested witness, his/her testimony need not be

rejected. Most of the times, eyewitnesses happen to be family members

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or close associates because unless a crime is committed in a public

place, strangers are not likely to be present at the time of occurrence. It

is more often than not that a 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 a careful approach and analyse evidence to find out whether 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 Dalip Singh v. State of

Punjab [AIR 1953 SC 364], wherein it was held as under:

“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.”

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A similar view was taken in a 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 observations 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  a  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 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 a justification for making adverse comments against non-examination of such a person as a prosecution witness. Otherwise, merely on surmises the court should not castigate

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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 a member (Dr. Arijit Pasayat) this Court stated in clear

terms that there is no rule of any presumption that the evidence of a related

witness will always be an interested one or that such witness will have only

a hostile attitude towards the accused facing trial.

11.The High Court also held that as there were some discrepancies 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 approach which should be followed by

the Court in such cases:

“10.  While  appreciating  the  evidence  of  a  witness,  the approach must be whether the evidence of the witness read as a whole appears to have a 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 a 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

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to the root of the matter would not ordinarily permit rejection of the evidence as a 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 a rustic and refined lawyer……………….”

Even otherwise, it has been said time and again by this Court that

while appreciating the evidence of a witness, minor 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 general

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 minor variations and

discrepancies.

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12.In the present case all the injured persons have categorically 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 by PW 6, which resulted in a wordy quarrel between

P.Ws. 1, 2, the deceased and Janaki, consequent to which Janaki beat

the deceased with a plate and annoyed by the said fact PW 1 attacked

Janaki  with  a  stick.  The  said  incident  establishes  that  there  was  a

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 consistent 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, A1 and A2 trespassed into the house of PW 1 and damaged

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 A1 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

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shaken and when we examine the factual scenario in the light of the

above discussed legal principles we find that 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.   

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 prosecution has been able to prove its

case beyond any reasonable doubt.

14.Having come to the aforesaid conclusion, another question that comes

up for our consideration is whether it would be a case punishable under

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 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

utensils there was no intention of killing.  Accused could kill PW 4 at that

stage, which they did not.  Rather when PW 1 being followed 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

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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.  Therefore, in our considered opinion, the

present case cannot be said to be a case falling under the provisions of

Section 302 IPC.  Both the accused persons are therefore, convicted

under Section 304 Part II instead of 302 IPC and sentenced to undergo

rigorous imprisonment for a period of seven years.   While coming to the

aforesaid  conclusion,  we are  fortified  by  a  decision  of  this  Court  in

Dharam & Ors. v. State of Haryana [JT 2007(1) SC 299], wherein also

under similar circumstances, 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.

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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 remaining sentence.   

…………………………..J. (Dr. Arijit Pasayat)

……………………………J. (Dr. Mukundakam Sharma)

New Delhi, October 14, 2008

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