Supreme Court of India
STATE THROUGH THE INSPECTOR OF POLICE versus LALY @ MANIKANDAN & ANOTHER ETC on 14 October 2022
STATE THROUGH THE INSPECTOR OF POLICE
v.
LALY @ MANIKANDAN & ANOTHER ETC.
(Criminal Appeal Nos. 1750-1751 of 2022)
OCTOBER 14, 2022
[M. R. SHAH AND KRISHNA MURARI, JJ.]
Penal Code – ss. 302 & 34 – Conviction on the basis of thedeposition of the sole eye witness – The respondents-three accusedwere tried for having committed the murder of victim-deceased –The respondents were held guilty of the offences u/s 302 r/w. 34 ofIPC by the trial Court – However, the High Court did not find thetestimony of PW1 credible and acquitted the accused – On appeal,held: PW1 was the eye witness to the occurrence at both placesi.e. the first part was at the time when the victim, PW1 and oneanother were travelling in the car, where A1 caused injury on theright shoulder of the victim and thereafter is the second part, whenvictim was trying to run away and reached a shed and all threeaccused entered shed and caused injuries to the victim-deceased –PW1 was fully cross-examined on behalf of the accused in whichhe stood by what he has stated and fully supported the case of theprosecution – No reasons to disbelieve and/or doubt the credibilityof PW1 – Merely because the original complainant is not examinedcannot be a ground to discard the deposition of PW1 – As per settledposition of law, there can be a conviction on the basis of thedeposition of the sole eye witness, if the said witness is found to betrustworthy and/or reliable – Recovery of the weapon used in thecommission of the offence is not a sine qua non to convict the accused– If there is a direct evidence in the form of eye witness, even in theabsence of recovery of weapon, the accused can be convicted –Similarly, even in the case of some contradictions with respect totiming of lodging the FIR/complaint cannot be a ground to acquitthe accused when the prosecution case is based upon the depositionof eye witness – Therefore, the judgment passed by the High Courtacquitting the accused is unsustainable and is set aside.
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634SUPREME COURT REPORTS
AAllowing the appeals, the Court
HELD: 1. On perusal of the deposition of PW1, it can beseen that PW1 is the eye witness to the occurrence at bothplaces. When first, the accused attacked while the deceased wastravelling in the car, PW1 was present in the car. At that time, theaccused dashed the car and broken the wind screen and A1 causedBinjury on the right shoulder of the deceased. That thereafter thedeceased tried to run away and he reached the shed and at thattime all the accused chased the deceased, went into the shed,caused injuries on the deceased and then came out of the shedand ran away. PW1 has categorically stated that he had seen allCthe three accused entering the shed and thereafter they cameout and the deceased was lying with the injuries and he was founddead. PW1 has been fully cross-examined on behalf of the accused.However, even after thorough cross-examination, PW1 stood bywhat he has stated and has fully supported the case of theDprosecution. There are no reasons to disbelieve and/or doubtthe credibility of PW1. [Para 6][640-D-G]
2. The submission on behalf of the accused that as theoriginal informant has not been examined and that the otherindependent witnesses have not been examined and that therecovery of the weapon has not been proved and that there is aEserious doubt about the timing and place of the incident, theaccused are to be acquitted cannot be accepted. Merely becausethe original complainant is not examined cannot be a ground todiscard the deposition of PW1. As observed hereinabove, PW1is the eye witness to the occurrence at both the places. Similarly,Fassuming that the recovery of the weapon used is not establishedor proved also cannot be a ground to acquit the accused whenthere is a direct evidence of the eye witness. Recovery of theweapon used in the commission of the offence is not a sine quanon to convict the accused. If there is direct evidence in the formof eye witness, even in the absence of recovery of weapon, theGaccused can be convicted. Similarly, even in the case of somecontradictions with respect to timing of lodging the FIR/complaintcannot be a ground to acquit the accused when the prosecutioncase is based upon the deposition of eye witness. As observed,PW1 is an eye witness. He has fully supported the case of theHprosecution. As per settled position of law, there can be a STATE THROUGH THE INSPECTOR OF POLICE v. LALY @MANIKANDAN & ANOTHER ETC.
conviction on the basis of the deposition of the sole eye witness,if the said witness is found to be trustworthy and/or reliable. Thereis no reason to doubt the credibility and/or reliability of PW1.Therefore, it will be safe to convict the accused on the solereliance of deposition of PW1. [Paras 7 & 8][640-G-H; 641-A-D]
Krishna Mochi v. State of Bihar (2002) 6 SCC 81 :[2002] 3 SCR 1; Kunju Muhammed v. State of Kerala,(2004) 9 SCC 193 : 2003 (7) JT 114 – referred to.
Case Law Reference
[2002] 3 SCR 1referred to Para 3.4
CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1750-1751 of 2022.
From the Judgment and Order dated 12.06.2018 of the High Courtof Madras at Madurai Bench in Crl. A. (MD) Nos. 270 and 362 of 2017.
Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi,Sanjeev Kumar Mahara, Advs. for the Appellant.
Rao Ranjit, Adv. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
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1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 12.06.2018 passed by the High Court of Judicature atMadras, at Madurai in Criminal Appeal Nos. 270/2017 and 362/2017, bywhich the High Court has allowed the said appeals by acquitting therespondents – accused for the offences punishable under Sections 302and 302 r/w 34 IPC, the State has preferred the present appeals.
2. That the respondents herein – original accused were tried forthe aforesaid offences for having killed/committed the murder of deceasedSaravanan. It was the prosecution case that owing to animosity betweenthe friend of the accused viz., Selvakumar and one Periyavan @Murugan, there was a murder of Selvakumar on 31.07.2013. Suspectingthat the deceased Saravanan had informed the whereabouts ofSelvakumar, the accused, on a two-wheeler armed with weaponsobstructed the car in which the deceased, PW1 and one another were
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Atravelling and dashed the car and broke the wind screen of the car witharuvals. A1 caused the injury on the right shoulder of the deceased. Thedeceased Saravanan tried to run away, however, the accused chasedhim and thereafter all the accused caused injuries on the deceased in theshed in which the deceased reached and due to the injuries suffered thedeceased Saravanan died on the spot. The investigation started on theBFIR being registered on the complaint tendered by one Mahendran. Allthe accused came to the arrested on 02.08.2013/17.08.2013. During thecourse of investigation, the Investigating Officer collected the materialevidence and also recorded the statements of the witnesses. Afterconclusion of the investigation, a charge sheet was filed against theCaccused for the offences punishable under Sections 341, 506(2), 302IPC r/w 3(1) of TNPPDL Act. The case was committed to the Court ofSessions which was numbered as Sessions Case No. 254 of 2014. Allthe accused pleaded not guilty and therefore they came to be tried bythe learned Sessions Court for the aforesaid offences.
D2.1 During the trial, prosecution examined 21 witnesses and marked36 exhibits and 16 material objects. After the closure of the prosecutionevidence, further statements of the accused under Section 313 Cr.P.C.were recorded. During the trial, PW2, PW3 and PW5 did not supportthe prosecution case and were declared hostile. However, believing thedeposition of PW1, PW4 and PW6, the learned trial Court held theEaccused A1 guilty for the offence under Section 302 IPC and A2 & A3for the offences under Section 302 r/w 34 IPC and sentenced each ofthem to undergo life imprisonment and fine of Rs. 1,000/- each, in default,three months simple imprisonment.
2.2 Feeling aggrieved and dissatisfied with the judgment and orderFof conviction and sentence passed by the learned trial Court, the accusedpreferred the present appeals before the High Court. By the impugnedjudgment and order, the High Court has set aside the judgment and orderof conviction and sentence passed by the learned trial Court andconsequently has acquitted the accused for the aforesaid offences forGwhich they were convicted. The High Court has acquitted the accusedfor the reasons mentioned in paragraph 9 of the impugned judgment,which reads as under:
“9. These appeals succeed for the following reasons:
(i) The prosecution case is that the occurrence took place at 01.30Hp.m., on 31.07.2013 and the FIR was registered at 01.45 p.m. on STATE THROUGH THE INSPECTOR OF POLICE v. LALY @MANIKANDAN & ANOTHER ETC. [M. R. SHAH, J.]
the same day, on the complaint tendered by one Mahendran atthe police station. The said Mahendran has not been examined.
(ii) The Prosecution has examined P.W.1 to P.W.6 as eye-witnesses. While P.Ws.2, 3 and 5 have not supported theprosecution and have been treated hostile, P.W.4 and 6 have beendisbelieved by the trial Court. P.W.4 has been disbelieved as heinformed that the occurrence took place at 2.30 p.m., and that thedeceased fell down outside the thatched shed of P.W.2., whereasthe prosecution case is disbelieved since he has spoken to anattack by 8 to 9 persons, whereas the prosecution case is of anattract by the three accused/ appellants herein.
(iii) Contra to the prosecution case, it is the admission of P.W.1that the police were at the scene within 5 to 10 minutes of theoccurrence. Both P.W.1 as also P.W.4 would submit that thestatements of all the witnesses were recorded at the scene andtheir signatures were taken. P.W. 1 would particularly state thaton recording the statement of Mahendran, the complainant,Mahendran; signatures were obtained and the same was attestedby P.W.1 as also by P.W.4. The complaint in the case has notbeen marked, though by way of an inadvertent error, as we findfrom a perusal of the records, that the FIR has on the front sidebeen marked as Ex.P.20 while on the reverse has been markedas Ex.21 and the complaint is found annexed thereto. A doubtarises as to whether the FIR marked as Ex.P.20 and the complaintannexed therewith inform the original version as not only has thecomplainant not has been examined, it is the version of theprosecution witnesses that the complaint was recorded at thescene.
(iv) P.W. 20 Sub Inspector of Police, who has registered the FIRinforms the distance between the police station and the Court tobe 7 kms, FIR informs the scene to be a distance of 2 ½ km fromthe police station. The FIR has reached the Magistrate only at7.00 p.m. Such circumstance give rise to a doubt on thegenuineness thereof and raises the question of whether the genesisof the occurrence stands suppressed. The detailed narrative fromof FIR informing the grudge of the accused against the deceasedand the need to murder him only further fuels such doubt, Thefact that the Constable entrusted with handing over the FIR to the AB
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Magistrate has not been examined makes matters worse for theprosecution.
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(v) P.W. 1 has spoken to seeing the accused at the police stationon the very next day of the occurrence ie., on 01.08.2013, whereasthe prosecution case is that Al and A3 were arrested on 02.08.2013and A2 was arrested on 17.08.2013.
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(vi) According to the prosecution, the recovery of the aruvalshave been effected from all the accused. P.W.1 in cross, wouldstate that the aruvals were handed over by them ie., theprosecution party to the police.
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(vii) Blood stained aruvals have been recovered. Postmortemstands conducted, but the blood group of the deceased has notbeen ascertained. Ex.P.16 would inform the presence of bloodstains on the clothes worn by the deceased, and on the aruvals.No attempt has been made to correlate the blood group as admittedDby P.W.21, Investigation Officer.
Giving the serious lacunae above noted, we do not consider itnecessary to dwell on the delayed dispatch of the 161(3) Cr.P.C.,statements to Court.”
2.3 Feeling aggrieved and dissatisfied with the impugned judgmentEand order passed by the High Court acquitting the accused, the Statehas preferred the present appeals.
3. Dr. Joseph Aristotle S, learned counsel has appeared on behalfof the State and Shri Rao Ranjit, learned counsel has appeared on behalfof the accused.F
3.1 Learned counsel appearing on behalf of the State hasvehemently stated that in the facts and circumstances of the case, theHigh Court has committed a grave error in acquitting the accused byquashing and setting aside the judgment and order of conviction andsentence passed by the learned trial Court convicting the accused forGthe offences under Section 302 and 302 r/w 34 IPC.
3.2 It is vehemently submitted that in the present case theprosecution has fully proved the case against the accused by examiningthe relevant witnesses. It is submitted that PW1 is the eye witness to theoccurrence of the incident and he has fully supported the case of theHprosecution.
3.3 It is submitted that the incident occurred in two parts. Thefirst part was at the time when the deceased, PW1 and one anotherwere travelling in the car where A1 caused the injury on the deceasedon the right shoulder and thereafter is the second part when the accusedchased the deceased when he was trying to run away and reached theshed and all the three accused entered the shed, caused injuries on thedeceased and thereafter they came out of the shed and ran away. It issubmitted that at both the places, PW1 was present and he had seen theoccurrence of the incident at both the places. It is submitted that there isno reason to disbelieve the testimony of PW1. Learned counsel for theState has taken us to the deposition of PW1.
3.4 Making the above submissions and relying upon the decisionof this Court in the case of Krishna Mochi v. State of Bihar, (2002) 6SCC 81 (para 35), it is prayed to allow the present appeals and quashand set aside the impugned judgment and order passed by the HighCourt and restore the judgment and order of conviction and sentencepassed by the learned trial Court against the accused for the offencesunder Sections 302 and 302 r/w 34 IPC.
4. The present appeals are vehemently opposed by the learnedcounsel appearing on behalf of the original accused.
4.1 It is vehemently submitted that as such the High Court hasgiven cogent reasons while acquitting the accused.
4.2 It is submitted that out of the six witnesses examined by theprosecution as eye witnesses, three witnesses – PW2, PW3 and PW5have not supported the case of the prosecution. It is submitted that PW4has been disbelieved even by the learned trial Court due to materialcontradictions in his deposition and the case of the prosecution.
4.3 It is further submitted that in the present case, Mahendranwho tendered the complaint at the police station and on the basis ofwhich an FIR has been registered has not been examined. It is submittedthat though other independent witnesses were available, none of themhave been examined by the prosecution. It is submitted that therefore torely upon the sole witness – PW1 is not safe to convict the accused.
4.4 It is further submitted that even there are materialcontradictions in the deposition of PW1 and other witnesses about theinjuries caused. It is submitted that so far as the second part of theoccurrence is concerned, the same occurred in the shed and even AB
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Aaccording to PW1, he was outside the shed and he has not seen theaccused causing injuries on the deceased. It is submitted that thereforePW1 cannot be said to be reliable and trustworthy witness and thereforethe accused may not be convicted on the sole deposition of PW1.
4.5 It is further submitted by the learned counsel appearing onBbehalf of the accused that even the recovery of weapon cannot be saidto have been proved by the prosecution.
4.6 Making the above submissions and relying upon the decisionof this Court in the case of Kunju Muhammed v. State of Kerala,(2004) 9 SCC 193 (paras 9 & 10), on the timing and place of incident,Cit is prayed to dismiss the present appeals.
5. We have heard learned counsel for the respective parties atlength. We have gone through in detail the judgment and order ofconviction and sentence passed by the learned trial Court as well as theimpugned judgment and order passed by the High Court. We have gonethrough in detail the deposition of PW1 who can be said to be a starDwitness and the eye witness.
6. Having gone through the entire deposition of PW1, it can beseen that PW1 is the eye witness to the occurrence at both places.When first, the accused attacked while the deceased was travelling inthe car, PW1 was present in the car. At that time, the accused dashedEthe car and broken the wind screen and A1 caused injury on the rightshoulder of the deceased. That thereafter the deceased tried to run awayand he reached the shed and at that time all the accused chased thedeceased, went into the shed, caused injuries on the deceased and thencame out of the shed and ran away. PW1 has categorically stated thatFhe had seen all the three accused entering the shed and thereafter theycame out and the deceased was lying with the injuries and he was founddead. PW1 has been fully cross-examined on behalf of the accused.However, even after thorough cross-examination, PW1 stood by whathe has stated and has fully supported the case of the prosecution. Wesee no reason to disbelieve and/or doubt the credibility of PW1.G
7. The submission on behalf of the accused that as the originalinformant – Mahendran has not been examined and that the otherindependent witnesses have not been examined and that the recovery ofthe weapon has not been proved and that there is a serious doubt aboutthe timing and place of the incident, the accused are to be acquittedHcannot be accepted. Merely because the original complainant is not examined cannot be a ground to discard the deposition of PW1. Asobserved hereinabove, PW1 is the eye witness to the occurrence atboth the places. Similarly, assuming that the recovery of the weaponused is not established or proved also cannot be a ground to acquit theaccused when there is a direct evidence of the eye witness. Recoveryof the weapon used in the commission of the offence is not a sine quanon to convict the accused. If there is a direct evidence in the form ofeye witness, even in the absence of recovery of weapon, the accusedcan be convicted. Similarly, even in the case of some contradictions withrespect to timing of lodging the FIR/complaint cannot be a ground toacquit the accused when the prosecution case is based upon the depositionof eye witness.
8. As observed hereinabove, PW1 is an eye witness. He has fullysupported the case of the prosecution. As per settled position of law,there can be a conviction on the basis of the deposition of the sole eyewitness, if the said witness is found to be trustworthy and/or reliable. Asobserved hereinabove, there is no reason to doubt the credibility and/orreliability of PW1. Therefore, it will be safe to convict the accused onthe sole reliance of deposition of PW1.
9. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court acquitting theaccused for the reasons mentioned in paragraph 9 of the impugnedjudgment and order is unsustainable and the same deserves to be quashedand set aside. Accordingly, the impugned judgment and order passed bythe High Court acquitting the accused for the offences under Sections302 and 302 r/w 34 IPC is hereby quashed and set aside and the judgmentand order passed by the learned trial Court convicting the accused forthe offences under Sections 302 and 302 r/w 34 IPC is hereby restored.Now the accused to surrender before the concerned Jail authorities/concerned Court to undergo the sentence as imposed by the learnedtrial Court, within a period of six weeks from today. If the accused donot surrender with the time stipulated hereinabove, the concernedSuperintendent of Police/Court is directed to take the accused intocustody to serve out the sentence.
10. The present appeals are allowed accordingly.
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