GANAPATHI & ANR. versus THE STATE OF TAMIL NADU on 27 March 2018

[2018] 3 S.C.R. 51

GANAPATHI & ANR.

v.

THE STATE OF TAMIL NADU

(Criminal Appeal No. 1312 of 2008)

MARCH 27, 2018

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

Penal Code, 1860 : ss. 302 and 302/34 – Marriage betweenM and accused no. 4 – However, strained relations between thecouple and their families – After a month, accused no. 4 left hermatrimonial home, due to grudge between the other accusedpersons-brothers of A-4, and M and his sister – Thereafter, accusedno. 1, 2 and 3 armed with deadly weapons attacked M – Accusedno. 1 instigated accused no. 2 and 3 who inflicted injuries on Mresulting in his death – Father and brother of M witnessed theoccurrence – On the same day accused no. 3, 2 and 4 attacked thesister of deceased in presence of her ten year old daughter –Conviction of accused no. 1 u/s. 302/34, accused no. 2 and 3 u/s.302 (two counts) and accused no. 4 u/s. 302 and sentencedaccordingly – High Court upheld conviction and sentence of accusedno. 2 to 4, however, acquitted accused no. 1 – Interference with –Held: Not called for – View taken by the High Court in convictingthe accused whose guilt has been proved beyond reasonable doubtcannot be faulted – There is no error in appreciation of evidence orany error of law in the judgment passed by the High Court – Motiveto commit the crime on the part of the accused is quite clear –Evidence of ocular witness-father and brother of the deceasednarrates the guilt of the accused beyond reasonable doubt – Non-examination of independent witnesses and conviction on the basisof the family members not fatal to the prosecution case – Further,the evidence of ten year old girl has credibility and corroborateswith that of medical evidence – Evidence – Witness.

Evidence: Related witness – Credibility – Held: Related is notequivalent to ‘interested’ - Relationship is not a factor to affectcredibility of a witness – Merely because the eye-witnesses are familymembers their evidence cannot per se be discarded – When there isallegation of interestedness, the same has to be established.

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ADismissing the appeals, the Court

HELD : 1. The view taken by the High Court in convictingthe accused whose guilt has been proved beyond reasonabledoubt cannot be faulted. For all the reasons, that there is no errorin appreciation of evidence or any error of law in the judgmentBpassed by the High Court. Therefore, the impugned judgmentdoes not call for interference. [Para 18] [59-F-G]

2.1 The motive to commit the crime on the part of accusedis quite clear inasmuch as on the previous day of occurrence also,the parties met at the police station and the accused had a heatedCdiscussion with the victims and laid a challenge to finish both Mand his sister P. [Para 11] [57-F]

2.2 The evidence of ocular witnesses, PWs 1 and 2, fatherand brother of the deceased, clearly exhibits the way in whichthe accused took away the life of deceased M. Their evidenceDnarrates the guilt of the accused beyond reasonable doubt andcorroborates with that of the medical evidence. It appears thatthere were two independent witnesses (PWs 5 and 6) projectedby the prosecution, but they have turned hostile. In several cases,only the family members are present at the time of incident, thenthe case of the prosecution will be based only on their evidence.EWhen their evidence is the only evidence available, Courts shouldbe cautious and meticulously evaluate the evidence in the processof trial and it cannot be said that the non-examination ofindependent witnesses and conviction based on the evidence offamily members is fatal to the case of the prosecution. [Para 12]F[57-G-H; 58-A-C]

2.3 ‘Related’ is not equivalent to ‘interested’. A witnessmay be called ‘interested’ only when he or she derives somebenefit from the result of a litigation; in the decree in a civil case,or in seeing an accused person punished. A witness who is aGnatural one and is the only possible eye witness in thecircumstances of a case cannot be said to be ‘interested’. Merelybecause the eye-witnesses are family members their evidencecannot per se be discarded. When there is allegation ofinterestedness, the same has to be established. Mere statementthat being relatives of the deceased they are likely to falselyHimplicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factorto affect credibility of a witness. It is more often than not that arelation would not conceal actual culprit and make allegationsagainst an innocent person. Foundation has to be laid if plea offalse implication is made. [Para 13, 14] [58-C-F]

State of Rajasthan v. Smt. Kalki and Anr. (1981) 2 SCC752 ; Maranadu and Anr. v. State by Inspector of Police,Tamil Nadu (2008) 16 SCC 529 – relied on.

2.4 PWs 1 and 2, though father and brother of the deceased,are natural witnesses and there is no bar in law in examiningfamily members or any other person as witnesses. Theirtestimonies provided clear picture of the attack carried on bythe accused over the deceased. The evidences of PWs 1 & 2 areconsistent and inspire confidence in the mind of the Court. Thecourts below have also properly scrutinized their evidence beforetaking them into account and there is nothing unusual in believingtheir testimonies. Apart from that, the prosecution has examinedthe independent witnesses PWs 5 & 6 who turned hostile. Theprosecution has taken all possible steps to bring home the guiltof the accused. Hence, conviction based on evidence of PWs 1 &2 is not fatal to the case of the prosecution. [Para 15] [58-G-H;59-A]

2.5 The evidence of PW3 clearly depicted the circumstanceand narrated the way in which the deceased P was attacked bythe accused explaining the role played by each of the AccusedNos. 2, 3 and 4. Her evidence has the credibility and it clearlycorroborated with that of the medical evidence. [Para 16] [59-B]

2.6 The submission that the Courts below erred indisbelieving the evidence of DW-1, cannot be accepted for thereason that it is manifest on record that all the students weremarked as present in the attendance register of the school inwhich PW3 was studying, for a continuous period of seven monthsand there was not even a single absentee. Thus, it is indicative ofthe fact that irrespective of the fact whether the students haveattended the school or not, attendance was marked to all thestudents. Neither the evidence of DW1 nor the register will cometo the rescue of the accused and on this count, the evidence ofPW3 cannot be disbelieved. [Para 17] [59-D-E]

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[2018] 3 S.C.R.

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Case Law Reference

BCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1312 of 2008.

From the Judgment and Order dated 20.02.2007 of the High Courtof Madras at Madurai Bench in Criminal Appeal(MD) No.319 of 2004

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Criminal Appeal No. 1313 of 2008.

Shaik Mohamad Haneef, M. Vijaya Bhaskar, Ms. Promila, Advsfor the Appellants.

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

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. These appeals by way of special leavepetitions arise out of a judgment dated 20[th] February, 2007 passed by aDivision Bench of the Madras High Court, Bench at Madurai in CriminalEAppeal No. 319 of 2004. By the said judgment, the High Court confirmedthe conviction and sentence imposed by the trial Court against theappellants herein, while acquitting accused no. 1 of the charges levelledagainst him. Criminal Appeal No. 1312 of 2008 is preferred by AccusedNos. 2 & 3 and the appellant in Criminal Appeal No. 1313 of 2008 isAccused No. 4. As the order impugned in both the appeals is one andFthe same, we proposed to deal with both the appeals by way of a commonorder.

2. Briefly stated the prosecution case is that Muthulakshmi(Accused No. 4—appellant herein) had love affair with one Murugan,son of PW1—Armugam. When the said Muruganrefused tomarry her,Ga complaint was lodged in the Kovilpatty police station and with theintervention of villagers and police, their marriage was solemnized on5-2-1999.Ever since their marriage had taken place, there were frequentquarrels and rifts between both the families leading to strained relationsbetween the couple. Petchimuthu, the father of A-4 had even lodged a H

complaint against his son-in-law—Murugan, his father (PW1) and sister(Poomari) as she was held to be the root cause for all disturbancesbetween the couple. Police had called the couple and advised them tolive together peacefully, but after some days, Muthulakshmi (A4) cameout of her matrimonial home and returned to her parental home.

3. On 4.8.1999, Ponnu (A1), Ganapathi (A2) and Chitravelu (A3)carrying deadly weapons, spotted Murugan near a street hotel andattacked him. While Ponnu (A1) instigated the other two accusedto hackMurugan, Ganapathi (A2) stabbed Murugan with a knife on the chestand Chitravelu (A3) had inflicted cut injuries with a sickle on Muruganleading to his instantaneous death on the spot.The assailants then fledaway from the scene of offence. Father of the deceased—PW1(Armugam) and PW2 (Poomurugan—another Son of Armugam) whowere standing nearby had witnessed the occurrence.

4. While that being so, on the same day when Poomari (daughterof Armugam—PW1) along with her daughter Sakunthala (PW3) wentto a nearby well for washing clothes and taking bath, the four accused,appeared there and attacked Poomari in front of her daughter. Chitravelu(A3) inflicted cut injuries on Poomari witha sickle and Ganapathi (A2)stabbed thrice with knife in her stomach causing her intestine to comeout of her stomach. After that Chitravelu (A3) gave the sickle toMuthulakshmi (A4) and instigated her to attack Poomari. Muthulakshmithen inflicted cut injuries on the head, hand and face near nose of Poomariwith the sickle, and Poomari had died on the spot. PW3 (Sakunthala),daughter of Poomari, a ten year old school going child, who was presentat the scene, had witnessed the crime.

5. On the complaint of PW1 (Ext.P1), Ottapidaram Police Stationregistered the Crime Case No. 72/99 against the accused under Section302, IPC and conducted investigation. The Investigating Officer visitedthe spots, conducted inquest (Ext.P31), prepared observation mahazars(Ext. P2, P3) and sketches of scenes of death (Ext.P27,P29), recoveredbloodstained earth and normal earth, severed hair locks, mangalsuthraand other incriminating articles from the scene of offence in presence ofwitnesses and obtained their signatures. Other formalities such asrecording of statements of witnesses and sending the bodies of thedeceased for postmortem were followed. The accused were arrestedon 5.8.1999 at 5.30 am on Velayuthapuram Junction at Ottapidaram A

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ACross Roads and the police seized weapons from them that were usedin the crime and sent the same for chemical examination. The case wasthen committed to the Court of Sessions and their statements recordedunder Section 313, Cr.P.C. the accused pleaded not guilty and claimedto be tried.

B6. In order to bring home the guilt of the accused, prosecutionhas relied on as many as 21 witnesses and marked Exts. P.1 to P.31 andthere were 27 material objects. On the defence side, a school headmasterwas examined as witness and marked Ext. D1. The trial Court, afterundertaking a full fledged trial, found the accused guilty and convictedaccused Ponnu (A1)under Section 302/34, IPC sentenced to undergoClife imprisonment and imposed a fine of Rs.500/-, in default, to furthersuffer six months imprisonment. Ganapathi (A2) and Chitravelu (A3)were awarded life imprisonment under Section 302, IPC (two counts)with a fine of Rs.1,000/-, in default, to suffer six months imprisonmentfurther. However, their sentenced on each count were directed to runDconcurrently. Muthulakshmi (A4) was sentenced to undergo lifeimprisonment under Section 302, IPC with a fine of Rs.500/-, and indefault, to suffer further imprisonment of six months.

7. The aggrieved accused approached the High Court by way ofappeal. By the judgment impugned herein, the High Court set aside theEconviction and sentence against Accused No. 1 and affirmed theconviction and sentence awarded by the trial Court against AccusedNos. 2 to 4. Being dissatisfied with the judgments of the Courts below,appellants are before us. As the State has not preferred any appealagainst acquittal of A1, we are only concerned with the appeals arisingout of conviction.F8. We have heard learned counsel for the parties and carefullygone through the entire material on record.

9. The contentious arguments as advanced by the learned counselappearing for the appellants are that the Courts below have erred inGgiving undue importance to the evidence of PWs 1 and 2 who areinterested witnesses as they are father and brother, respectively, of thedeceased and they are in inimical terms with the accused. The HighCourt though disbelieved their evidence against Accused No. 1, yet reliedon their evidence for sustaining the conviction and sentence of AccusedNos. 2 and 3, the appellants herein. The prosecution case cannot beH

believed for the simple reason that the alleged incident in respect ofdeceased Murugan had taken place at a hotel, which is a public place,but there was no independent witness to the incident. As regards to thecase of Accused No. 4, the wife of deceased Murugan, learned counselvehemently contended that the Courts below committed a grievous errorby giving weight to the evidence of PW3—the ten year old daughter ofthe deceased Poomari while disbelieving the evidence of Ponraj (DW1),the Headmaster of the school where PW3 was studying, who deposedthat the girl child was present in the school at the time of occurrence andsupported his claim with Ext. D-1, the attendance register of the schoolwherein it was clearly showed that the student was present in the school.

10. Learned counsel appearing for the State, however, supportedthe view taken by the High Court in affirming the conviction and sentenceawarded by the trial Court against the accused Nos. 2 to 4—the appellantsherein.

11. Having given our thoughtful consideration to the submissionsmade by the respective learned counsel, we have perused the materialon record in the light of facts and circumstances of the case. There is nodenial of the fact that the marriage between the deceased Murugan andaccused—Muthulakshmi did not take place ina cordial atmosphere andthere were strained relations between the couple and their families aswell. About a month after her marriage, Accused No. 4 came out of hermatrimonial home and due to that fact, the other accused persons(brothers of A-4) developed grudge against Murugan and his sister—Poomari, who was alleged to be the root cause of disturbances betweenthe couple. Thus, the motive to commit the crime on the part of accusedis quite clear inasmuch as on the previous day of occurrence also, theparties met at the police station and the accused had a heated discussionwith the victims and laid a challenge to finish both Murugan and hissister Poomari.

12. The evidence of ocular witnesses, PWs 1 and 2, father andbrother of the deceased, clearly exhibits the way in which the accusedtook away the life of deceased Murugan. Their evidence narrates theguilt of the accused beyond reasonable doubt and corroborates with thatof the medical evidence. Dr. Danraj(PW12) who conducted thepostmortem on the body of deceased Murugan, had pointed out as manyas 10 cut injuries out of which injury Nos. 1, 2, 5, 6, 7, 8, 9 and 10 are AB

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Afatal which were possible by sickle and capable of causing death whereasinjury Nos. 7 and 9 were possible by knife. It appears that there weretwo independent witnesses (PWs 5 and 6) projected by the prosecution,but they have turned hostile. In several cases, only the family membersare present at the time of incident, then the case of the prosecution willbe based only on their evidence. When their evidence is the only evidenceBavailable, Courts should be cautious and meticulously evaluate theevidence in the process of trial and we are not able to appreciate thecontention on behalf of the accused that the non-examination ofindependent witnesses and conviction based on the evidence of familymembers is fatal to the case of the prosecution.

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13. ‘Related’ is not equivalent to ‘interested’. A witness may becalled ‘interested’ only when he or she derives some benefit from theresult of a litigation; in the decree in a civil case, or in seeing an accusedperson punished. A witness who is a natural one and is the only possibleeye witness in the circumstances of a case cannot be said to beD‘interested’ [See: State of Rajasthan Vs. Smt. Kalki and Anr.(1981) 2SCC 752].

14. Merely because the eye-witnesses are family members theirevidence cannot per se be discarded. When there is allegation ofinterestedness, the same has to be established. Mere statement thatEbeing relatives of the deceased they are likely to falsely implicate theaccused cannot be a ground to discard the evidence which is otherwisecogent and credible. Relationship is not a factor to affect credibility of awitness. It is more often than not that a relation would not conceal actualculprit and make allegations against an innocent person. Foundation hasto be laid if plea of false implication is made [See :Maranadu and Anr.FVs. State by Inspector of Police, Tamil Nadu(2008) 16 SCC 529].

15. Here in the case, PWs 1 and 2, though father and brother ofthe deceased, are natural witnesses and there is no bar in law in examiningfamily members or any other person as witnesses. Their testimoniesprovided clear picture of the attack carried on by the accused over theGdeceased. We find from the record that the evidences of PWs 1 & 2 areconsistent and inspire confidence in the mind of the Court.The Courtsbelow have also properly scrutinized their evidence before taking theminto account and there is nothing unusual in believing their testimonies.Apart from that, the prosecution has examined the independent witnesses H

PWs 5 & 6 who turned hostile. The prosecution has taken all possiblesteps to bring home the guilt of the accused. Hence conviction based onevidence of PWs 1 & 2 is not fatal to the case of the prosecution.

16. Similarly, the evidence of Sakunthala (PW3) clearly depictedthe circumstance and narrated the way in which the deceased Poomariwas attacked by the accused explaining the role played by each of theAccused Nos. 2, 3 and 4. Her evidence has the credibility and it clearlycorroborated with that of the medical evidence. The postmortem reportof the deceased Poomari (Ext. P16) shows that there were about 10 cutinjuries besides three stab injuries on the body of the deceased. Accordingto PW12—Dr. Danraj, the cut injuries were possible by sickle and thestab injuries were possibly caused by knife. Among all those injuries,injury Nos. 1, 10, 11, 12 and 13 are grave and capable of causing deathinstantaneously.

17. The argument of the learned counsel for the accused that theCourts below erred in disbelieving the evidence of DW-1, cannot beaccepted for the reason that it is manifest on record that all the studentswere marked as present in the attendance register (Ext. D1) of theschool in which PW3 was studying, for a continuous period of sevenmonths i.e. from June 1999 to December 1999, and there was not evena single absentee. Thus it is indicative of the fact that irrespective of thefact whether the students have attended the school or not, attendancewas marked to all the students. In those circumstances, neither theevidence of DW1 nor Ext. D1 will come to the rescue of the accusedand on this count, the evidence of PW3 cannot be disbelieved.

18. Giving our consideration to the circumstances in totality, wecannot find fault with the view taken by the High Court in convicting theaccused whose guilt has been proved beyond reasonable doubt. For allthe foregoing reasons, we are of the considered opinion that there is noerror in appreciation of evidence or any error of law in the judgmentpassed by the High Court. Therefore, we are not inclined to interferewith the impugned judgment. The appeals are, therefore, dismissed.

Nidhi Jain

Appeals dismissed.

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