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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 381 OF 2018

ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 9297 OF 2016

SUDHAKAR @ SUDHARASAN … APPELLANT

VERSUS

STATE REP. BY THE INSPECTOR OF POLICE, … RESPONDENT

SRIRANGAM POLICE STATION, TRICHY,

TAMIL NADU

JUDGMENT

N.V. RAMANA, J.

1. Leave granted.

2. This appeal has been preferred against the judgment

dated 23

rd

January, 2015 passed by the Madras High Court, Bench

at Madurai in Criminal Appeal (MD) No. 298 of 2013 whereby the

High Court concurred with the judgment of the trial court and

dismissed the appeal preferred by the appellant—accused against

his conviction under Section 302 IPC.

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3. Facts of the case in brief, as advanced by the

prosecution, are that the appellant herein is a habitual drunkard

and used to live opposite to his grandmother’s house and always

indulged in quarreling with her demanding money. The incident has

taken place on 17

th

January, 2013 at about 6.30 p.m. The appellant

was found strangulating the neck of his grandmother, namely,

Mariyayee (deceased) with his hands. One Jayaraj—PW1 (son-in-law

of the deceased), who was sleeping in the adjoining room, upon

hearing the screams of the deceased, rushed to her and witnessed

the crime being committed by the accused on his grandmother. The

appellant then took surukupai (money bag) from the possession of

the deceased and fled away from the spot.

4. Jayaraj—(PW 1) then hired an auto and took his

mother-in-law to ABC hospital while informing about the incident to

his wife Maruthayee (PW5) over phone, PW5 in turn also reached

the hospital. The patient was admitted in the hospital at 7.30 p.m.

and Dr. Mohammed Ghouse Khan (PW8) examined her and found

that she was conscious but restless. However, Mariyayee had

passed away at 7.55 p.m. Jayaraj (PW 1) lodged complaint at

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Srirangam Police Station at about 11.30 p.m. and basing on the

same, Crime No. 22 of 2013 was registered against the appellant.

PW15—Inspector of Police (Balusamy) sent the FIR (Ext.P12) to

Court and inspected the place of occurrence. Subsequently, other

formalities such as preparation of observation mahazar (Ext. P2),

drawing of rough sketch (Ext. P13), holding of inquest were carried

on and the body of the deceased was sent for postmortem.

Meanwhile, the accused—appellant was taken into custody and

after recording his confessional statement, police recovered

surukupai (money bag) from his possession (M.O. 1).

5. Postmortem on the dead body of deceased Mariyayee was

conducted by Dr. RVS Renuga Devi (PW 9) who found linear

abrasions of varying lengths and contusion on the front of neck,

fracture of thyroid cartilage and tracheal rings, bruising of anterior

chest wall, fracture of left collar bone and manubrium stemi

transversely at the level of 4

th

rib attachment with surrounding area

bruising. Doctor expressed her opinion that the deceased appears

to have died of compression of neck and chest wound.

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6. The appellant—accused denied the charge of committing

the offence and claimed to be tried. In order to bring home the guilt

of the accused, prosecution has examined as many as 15 witnesses

and marked 16 exhibits. While so, the accused in his defence

examined his mother-in-law, Mala as DW1 and marked no

documents. There were however two material objects, one is the

surukupai (money bag) and the other is an amount of Rs.140/-,

both have allegedly been recovered from the possession of the

accused.

7. The trial court relying upon the evidences of prosecution

witnesses, particularly PWs 1 and 5, came to the conclusion that

often the accused used to quarrel with the deceased for fulfilling his

demands of money and had the motive to commit the offence. In

pursuance thereof, the accused came to the house of the deceased

and strangulated her neck and then pushed her down, hence the

deceased suffered asphyxia and injuries on her chest wall and ribs.

It further held that medical evidence on record clearly establishes

that the deceased had died due to compression of neck and chest

wounds. Therefore, the trial Court held that the trivial

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contradictions in the evidence of the witnesses will not affect the

prosecution case and the appellant—accused was guilty of the

offence of murder. The trial Court accordingly convicted the

accused under Section 302, IPC and sentenced him to undergo life

imprisonment and to pay a fine of Rs.1,000/-, in default, to further

suffer rigorous imprisonment for a period of six months.

8. The aggrieved appellant approached the High Court in

appeal which came to be dismissed with the observation that the

conviction and sentence imposed by the learned trial judge is in

consonance with the penal provisions and does not suffer from any

infirmity. Hence, the accused is before us by way of this appeal.

9. We have heard learned counsel for the parties and

perused the material on record.

10. Learned counsel appearing for the accused—appellant

emphatically contended that the courts below have erred in

convicting the appellant even though prosecution case was full of

material irregularities and inconsistent depositions by the

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witnesses. The counsel pointed out that the Courts below

committed manifest error while disbelieving 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 his mother-in-law’s house

and police took him for enquiry from there on 17.1.2013 at 11 pm.

The counsel submitted that the prosecution has not successfully

established the motive part also. But the Courts below laid basis on

exaggerated versions of prosecution witnesses and convicted the

appellant. All the prosecution witnesses, particularly PW 1 and PW

5, are interested witnesses as they had developed grudge on the

family of the appellant in connection with sharing of properties and

they want to get rid of him as they intend to grab the property of

appellant. With that view in mind, PWs 1 and 5 implicated the

accused in the offence which would disentitle him to inherit the

joint family property.

11. It was further argued that there was no independent

witness to the alleged crime and there was no satisfactory

explanation for the delay in lodging complaint under Ext. P.1 and

the delay in FIR reaching to the Judicial Magistrate. PWs 2, 3, 4

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who were said to be the eyewitnesses, did not support the case of

prosecution. It is also contended by the learned counsel that it was

evidently represented by PW5—daughter of the deceased at the

hospital that her mother (deceased) had fallen down in the house

and therefore she was suffering from breathlessness, the said

statement is duly authenticated with the Accident Register (Ext. P3)

where it is mentioned as ‘history of fall’. But later on before Court,

PW5 denied of having said so and improved her statement thereby

implicating the appellant in the crime. More stress has been laid on

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 over manuburium sterni, which does not support the case of

strangulation but supports the case of fall as stated by PW5 to the

Doctor. Concluding his arguments, learned counsel submitted that

despite all the discrepancies in the prosecution case, the Courts

below went ahead and convicted the appellant and the judgment

deserves to be set aside by this Court.

12. While advancing his arguments, learned counsel

appearing for the State submitted that no case is made out by the

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appellant seeking interference of this Court while both the Courts

below concurrently found him guilty. According to him, the

accused, being a habitual drunkard, often used to quarrel with his

grandmother (deceased) for money and for transfer of property. On

the day of incident also, the accused picked up a quarrel with the

deceased at about 11 am and PW1 sent him away peacefully. But in

the evening, while PW1 was asleep in the house, the accused again

entered and committed the offence. The trial Court and High Court

had rightly relied upon the consistent and categorical evidence of

PW1, who happened to be the eyewitness to the incident, coupled

with the corroboration of medical evidence, and by way of a

reasoned order, convicted the accused. The recovery of surukupai

(money bag) from the possession of the accused substantiates the

commission of crime and the case of the prosecution. Though the

accused tried to put forward the defence of alibi through DW1, the

defence could not succeed in its effort and they did not put a single

query or suggestion to the Investigating Officer in their endeavor to

ascertain that the accused was picked up by the police from the

house of DW1 and to falsify the prosecution case that the accused

was arrested from the bus stand.

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13. On a careful consideration of the matter in the light of

submissions made on either side and after perusing the material

available on record, the issue that falls for consideration is “whether

both the Courts below were right in convicting the accused for the

offence punishable under Section 302, IPC.”

14. The whole basis for the Courts below to convict the

accused appears to be the version of the prosecution that the

accused was arrested on 18.1. 2013 at about 11 a.m. at bus stand,

in presence of PWs 11 and 12, and brushed aside the plea of

alibi presented by the accused with due support by the evidence

of DW1. It is worthwhile to note that both of these witnesses (PWs

11 & 12) in their examination-in-chief denied the prosecution story

about their presence at the time of arrest and seizure of material

objects from the possession of the accused and they turned hostile.

This fact casts serious doubts on the veracity of prosecution story

about the arrest of the accused.

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15. Admittedly, at the time of alleged incidence, PW 5 (wife of

PW1) and PW 6 (son of PWs 1 & 5) were not present near the alleged

scene of offence. As regards the evidences of independent witnesses

(PWs 2, 3 and 4), who were residents of the same street as that of

the deceased and who were examined as ocular witnesses, PW 2

(tenant of PW 5) turned hostile and did not support the prosecution

case. He deposed that on 17.1.2013 at 7 pm when he found some

crowd in front of the house of deceased he rushed there and found

the deceased in unconscious condition. Then, he along with PWs 3

and 4 took the deceased to Srirangam Government Hospital and

informed the same to PWs 1 & 5, they asked them to bring the

deceased to ABC Hospital where PWs 1 & 5 joined them later on. In

his cross examination, he stated 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 by them also. Another shortfall

in the prosecution case is that PW1 deposed that he gave oral

complaint to police, but a contrary statement was put forth by

PW15—I.O. stating that he got a written complaint from PW1.

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16. From the above stated facts, it emerges that the entire

prosecution case rests on the evidences of PWs 1 and 5 who are

closely related to the accused--appellant. The accused is none other

than the son of PW 5’s brother and PW 1 is the husband of PW5

and PW6 is the son of PWs 1 & 5. Clearly, the relations between the

accused—appellant and PWs 1 & 5 were strained over property

issues and they were in inimical terms. Apparently, there was also a

civil suit pending between them for partition of properties.

17. It would be appropriate to have a look at the legal

position with regard to the evidence of related and interested

witnesses. In Sarwan Singh v. State of Punjab, (1976 (4) SCC

369), para 10, this Court observed thus:

“….. 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.”

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It is settled law that there cannot be any hard and fast rule

that the evidence of interested witness cannot be taken into

consideration and they cannot be termed as witnesses. But, the

only burden that would be cast upon the Courts in those cases is

that the Courts have to be cautious while evaluating the evidence to

exclude the possibility of false implication. Relationship can never

be a factor to affect the credibility of the witness as it is always not

possible to get an independent witness.

18. Then, next comes the question ‘what is the difference

between a related witness and an interested witness?’. The plea of

"interested witness", "related witness" has been succinctly explained

by this Court that "related" is not equivalent to "interested". The

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. In this case at hand PW 1

and 5 were not only related witness, but also ‘interested witness’ as

they had pecuniary interest in getting the accused petitioner

punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16

SCC 73]. As the prosecution has relied upon the evidence of

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interested witnesses, it would be prudent in the facts and

circumstances of this case to be cautious while analyzing such

evidence. It may be noted that other than these witnesses, there are

no independent witnesses available to support the case of the

prosecution.

19. Now, it would be appropriate to consider whether the

Courts below exercised the judicial discretion in evaluating the

evidence of PW1 and PW5 while convicting the accused. It may be

noted that there is nothing on record to support the version of PWs

1 & 5 that on earlier occasions also and particularly on the date of

incident, the accused quarreled with his grandmother demanding

money and to settle the house in his favor. Further, it is 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 the mouth and nose of the

deceased, but there appears no seizure of bloodstained clothes of

the deceased and chemical analysis. Thus, the inconsistent

evidence by the alleged eyewitnesses as well as investigation agency

would cause dent to the edifice on which the prosecution case is

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built, and it adversely affects the substratum of the prosecution

case.

20. We further find, to a certain extent, material infirmities,

irregularities and contradictions in the prosecution case as also in

the evidence of prosecution witnesses including the deposition of

PWs 1 & 5, who are material witnesses. PW 1 in his cross

examination categorically stated that his wife (PW 5) has filed a suit

for partition against the accused and his family members whereas

PW 5 in her cross examination denied the same. Likewise, there are

contradictory statements of witnesses, primarily to the aspect of

happening of incident, taking the victim to the hospital, the

presence of PW1 at the time of alleged incident, detaining the

accused from bus stand or from his mother-in-law’s house, recovery

of material objects from the possession of accused and lodging of

complaint by PW1 etc, and the whole story appears to be an utterly

incredible one. More so, there was no explanation forthcoming from

the prosecution side on the questions raised by the defense that

soon after reaching the ABC hospital with victim, how can the PWs

1 & 5 directly approach Dr. Mohammed Ghouse Khan (PW8)

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without going to Emergency Ward and why the Doctors at ABC

hospital did not inform police when it was a medico legal case. Both

the Courts below have simply noted that the variations and

contradictory statements are not material in proving the guilt of the

accused. We feel that the reasoning given by the Courts below is

ex facie illegal.

21. This Court in Latesh V. State of Maharastra [Criminal

Appeal No. 1301 of 2015, decided on January 30, 2018] has

explained that the reasonable doubt in a lucid manner as a mean

between excessive caution and excessive indifference to a doubt.

Moreover, it has been explained that reasonable doubt should be a

practical one and not an illusory hypothesis.

22. In view of the above discussion, we are of the view that

there exists reasonable doubt in this case as the case of prosecution

is un-supported by independent witnesses, ridden with

contradictions, good motive for false prosecution and filled with

suspicious circumstances. Further we are of the considered opinion

that there is not only insufficiency of evidence but also lack of

credibility on the trustworthiness of PWs 1 & 5 which culminated

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into disproving the prosecution case and alleged guilt of the

accused. The prosecution has, therefore, failed to establish the guilt

of the accused-appellant beyond reasonable doubt by adducing

cogent evidence. We are satisfied that the Courts below completely

misdirected themselves and the conviction imposed upon the

accused by the trial Court and confirmed by the High Court suffers

from patent error of law and perversity of approach and deserves to

be set aside.

23. Resultantly, the appeal is allowed and the impugned

judgment passed 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. Pending applications, if any, shall also stand

disposed of.

……….......................J.

(N.V. RAMANA)

...............................J.

(S. ABDUL NAZEER)

New Delhi,

March 12, 2018.

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ITEM NO.1502 COURT NO.9 SECTION II-C

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No.381 of 2018 @ Petition(s) for Special Leave to

Appeal (Crl.) No(s). 9297/2016

SUDHAKAR @ SUDHARASAN Petitioner(s)

VERSUS

STATE REP. BY TEH INSPECTOR OF POLICE, Respondent(s)

SRIRANGAM POLICE STATION, TRICHY, TAMIL NADU

([HEARD BY : HON. N.V. RAMANA AND HON. S. ABDUL NAZEER, JJ.])

Date : 12-03-2018 This matter was called on for pronouncement of

judgment today.

For Petitioner(s)

Mr. Thomas Franklim Caesar, Adv.

Ms. M. Venmani, Adv.

Mr. S. Sethumahendran, Adv.

Mr. P. Sandanadorai, Advk.

Mr. S. Gowthaman, AOR

For Respondent(s)

Mr. M. Yogesh Kanna, AOR

Ms. Sujatha Bayadhi, Adv.

Hon'ble Mr. Justice N.V. Ramana pronounced the judgment of the

Bench comprising His Lordship and Hon'ble Mr. Justice S. Abdul Nazeer.

Leave granted.

The appeal is allowed and the impugned judgment passed 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.

(SUKHBIR PAUL KAUR) (RENUKA SADANA)

AR CUM PS ASST.REGISTRAR

(Signed reportable judgment is placed on the file)