Ganapathi vs The State Of Tamil Nadu

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1312 OF 2008

GANAPATHI & ANR. … APPELLANTS

VERSUS

THE STATE OF TAMIL NADU … RESPONDENT

WITH

CRIMINAL APPEAL NO. 1313 OF 2008

MUTHULAKSHMI … APPELLANT

VERSUS

THE STATE OF TAMIL NADU … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

These appeals by way of special leave petitions arise out Signature Not Verified

of a judgment dated 20th February, 2007 passed by a Division Digitally signed by ASHA SUNDRIYAL Date: 2018.03.27 15:46:30 IST Reason:

Bench of the Madras High Court, Bench at Madurai in Criminal 2

Appeal No. 319 of 2004. By the said judgment, the High Court

confirmed the conviction and sentence imposed by the trial Court

against the appellants herein, while acquitting accused no. 1 of the

charges levelled against him. Criminal Appeal No. 1312 of 2008 is

preferred by Accused Nos. 2 & 3 and the appellant in Criminal

Appeal No. 1313 of 2008 is Accused No. 4. As the order impugned

in both the appeals is one and the same, we proposed to deal with

both the appeals by way of a common order.

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 Murugan

refused to marry her, a complaint was lodged in the Kovilpatty

police station and with the intervention of villagers and police, their

marriage was solemnized on 5-2-1999. Ever since their marriage

had taken place, there were frequent quarrels and rifts between

both the families leading to strained relations between the couple.

Petchimuthu, the father of A-4 had even lodged a complaint against

his son-in-law—Murugan, his father (PW1) and sister (Poomari) as

she was held to be the root cause for all disturbances between the 3

couple. Police had called the couple and advised them to live

together peacefully, but after some days, Muthulakshmi (A4) came

out 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

and attacked him. While Ponnu (A1) instigated the other two

accused to hack Murugan, Ganapathi (A2) stabbed Murugan with a

knife on the chest and Chitravelu (A3) had inflicted cut injuries with

a sickle on Murugan leading to his instantaneous death on the

spot. The assailants then fled away from the scene of offence.

Father of the deceased—PW1 (Armugam) and PW2 (Poomurugan—

another Son of Armugam) who were standing nearby had witnessed

the occurrence.

4. While that being so, on the same day when Poomari

(daughter of Armugam—PW1) along with her daughter Sakunthala

(PW3) went to 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 with 4

a sickle and Ganapathi (A2) stabbed thrice with knife in her

stomach causing her intestine to come out of her stomach. After

that Chitravelu (A3) gave the sickle to Muthulakshmi (A4) and

instigated her to attack Poomari. Muthulakshmi then inflicted cut

injuries on the head, hand and face near nose of Poomari with the

sickle, and Poomari had died on the spot. PW3 (Sakunthala),

daughter of Poomari, a ten year old school going child, who was

present at the scene, had witnessed the crime.

5. On the complaint of PW1 (Ext.P1), Ottapidaram Police

Station registered the Crime Case No. 72/99 against the accused

under Section 302, IPC and conducted investigation. The

Investigating Officer visited the spots, conducted inquest (Ext.P31),

prepared observation mahazars (Ext. P2, P3) and sketches of scenes

of death (Ext.P27,P29), recovered bloodstained earth and normal

earth, severed hair locks, mangalsuthra and other incriminating

articles from the scene of offence in presence of witnesses and

obtained their signatures. Other formalities such as recording of

statements of witnesses and sending the bodies of the deceased for

postmortem were followed. The accused were arrested on 5.8.1999 5

at 5.30 am on Velayuthapuram Junction at Ottapidaram Cross

Roads and the police seized weapons from them that were used in

the crime and sent the same for chemical examination. The case

was then committed to the Court of Sessions and their statements

recorded under Section 313, Cr.P.C. the accused pleaded not guilty

and claimed to be tried.

6. In order to bring home the guilt of the accused,

prosecution has relied on as many as 21 witnesses and

marked Exts. P.1 to P.31 and there were 27 material objects. On the

defence side, a school headmaster was examined as witness and

marked Ext. D1. The trial Court, after undertaking a full fledged

trial, found the accused guilty and convicted accused Ponnu (A1)

under Section 302/34, IPC sentenced to undergo life imprisonment

and imposed a fine of Rs.500/-, in default, to further suffer 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

imprisonment further. However, their sentenced on each count were

directed to run concurrently. Muthulakshmi (A4) was sentenced to 6

undergo life imprisonment under Section 302, IPC with a fine of

Rs.500/-, and in default, to suffer further imprisonment of six

months.

7. The aggrieved accused approached the High Court by

way of appeal. By the judgment impugned herein, the High Court

set aside the conviction and sentence against Accused No. 1 and

affirmed the conviction and sentence awarded by the trial Court

against Accused Nos. 2 to 4. Being dissatisfied with the judgments

of the Courts below, appellants are before us. As the State has not

preferred any appeal against acquittal of A1, we are only concerned

with the appeals arising out of conviction.

8. We have heard learned counsel for the parties and

carefully gone through the entire material on record.

9. The contentious arguments as advanced by the learned

counsel appearing for the appellants are that the Courts below have

erred in giving undue importance to the evidence of PWs 1 and 2

who are interested witnesses as they are father and brother, 7

respectively, of the deceased and they are in inimical terms with the

accused. The High Court though disbelieved their evidence against

Accused No. 1, yet relied on their evidence for sustaining the

conviction and sentence of Accused Nos. 2 and 3, the appellants

herein. The prosecution case cannot be believed for the simple

reason that the alleged incident in respect of deceased Murugan

had taken place at a hotel, which is a public place, but there was

no independent witness to the incident. As regards to the case of

Accused No. 4, the wife of deceased Murugan, learned counsel

vehemently contended that the Courts below committed a grievous

error by giving weight to the evidence of PW3—the ten year old

daughter of the deceased Poomari while disbelieving the evidence of

Ponraj (DW1), the Headmaster of the school where PW3 was

studying, who deposed that the girl child was present in the school

at the time of occurrence and supported his claim with Ext. D-1,

the attendance register of the school wherein it was clearly showed

that the student was present in the school.

10. Learned counsel appearing for the State, however,

supported the view taken by the High Court in affirming the 8

conviction and sentence awarded by the trial Court against the

accused Nos. 2 to 4—the appellants herein.

11. Having given our thoughtful consideration to the

submissions made by the respective learned counsel, we have

perused the material on record in the light of facts and

circumstances of the case. There is no denial of the fact that the

marriage between the deceased Murugan and accused—

Muthulakshmi did not take place in a cordial atmosphere and there

were strained relations between the couple and their families as

well. About a month after her marriage, Accused No. 4 came out of

her matrimonial 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 between the couple. Thus, the motive to commit the

crime on the part of accused is quite clear inasmuch as on the

previous day of occurrence also, the parties met at the police

station and the accused had a heated discussion with the victims

and laid a challenge to finish both Murugan and his sister Poomari. 9

12. The evidence of ocular witnesses, PWs 1 and 2, father

and brother of the deceased, clearly exhibits the way in which the

accused took away the life of deceased Murugan. Their evidence

narrates the guilt of the accused beyond reasonable doubt and

corroborates with that of the medical evidence. Dr. Danraj

(PW12) who conducted the postmortem on the body of deceased

Murugan, had pointed out as many as 10 cut injuries out of which

injury Nos. 1, 2, 5, 6, 7, 8, 9 and 10 are fatal which were possible

by sickle and capable of causing death whereas injury Nos. 7 and 9

were possible by knife. It appears that there were two independent

witnesses (PWs 5 and 6) projected by the prosecution, but they

have turned hostile. In several cases, only the family members are

present at the time of incident, then the case of the prosecution will

be based only on their evidence. When their evidence is the only

evidence available, Courts should be cautious and meticulously

evaluate the evidence in the process of trial and we are not able to

appreciate the contention on behalf of the accused that the

non-examination of independent witnesses and conviction based on

the evidence of family members is fatal to the case of the

prosecution.

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13. 'Related' is not equivalent to 'interested'. A 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. A witness who is a natural one and is the

only possible eye witness in the circumstances of a case cannot be

said to be 'interested' [See: State of Rajasthan Vs. Smt. Kalki

and Anr. (1981) 2 SCC 752].

14. Merely because the eye-witnesses are family members

their evidence cannot per se be discarded. When there is allegation

of interestedness, the same has to be established. Mere statement

that being relatives of the deceased they are likely to falsely

implicate the accused cannot be a ground to discard the evidence

which is otherwise cogent and credible. Relationship is not a factor

to affect credibility of a witness. It is more often than not that a

relation would not conceal actual culprit and make allegations

against an innocent person. Foundation has to be laid if plea of

false implication is made [See : Maranadu and Anr. Vs. State by

Inspector of Police, Tamil Nadu (2008) 16 SCC 529]. 11

15. Here in the case, PWs 1 and 2, though father and brother

of the deceased, are natural witnesses and there is no bar in law in

examining family members or any other person as witnesses. Their

testimonies provided clear picture of the attack carried on by the

accused over the deceased. We find from the record that the

evidences of PWs 1 & 2 are consistent and inspire confidence in the

mind of the Court. The Courts below have also properly scrutinized

their evidence before taking them into account and there is nothing

unusual in believing their testimonies. Apart from that, the

prosecution has examined the independent witnesses PWs 5 & 6

who turned hostile. The prosecution has taken all possible steps to

bring home the guilt of the accused. Hence conviction based on

evidence of PWs 1 & 2 is not fatal to the case of the prosecution.

16. Similarly, the evidence of Sakunthala (PW3) clearly

depicted the circumstance and narrated the way in which the

deceased Poomari was attacked by the accused explaining the role

played by each of the Accused Nos. 2, 3 and 4. Her evidence has the

credibility and it clearly corroborated with that of the medical

evidence. The postmortem report of the deceased Poomari (Ext. P16) 12

shows that there were about 10 cut injuries besides three stab

injuries on the body of the deceased. According to PW12—Dr.

Danraj, the cut injuries were possible by sickle and the stab

injuries were possibly caused by knife. Among all those injuries,

injury Nos. 1, 10, 11, 12 and 13 are grave and capable of causing

death instantaneously.

17. The argument of the learned counsel for the accused that

the Courts below erred in disbelieving the evidence of DW-1, cannot

be accepted for the reason that it is manifest on record that all the

students were marked as present in the attendance register (Ext.

D1) of the school in which PW3 was studying, for a continuous

period of seven months i.e. from June 1999 to December 1999, and

there was not even a single absentee. Thus it is indicative of the fact

that irrespective of the fact whether the students have attended the

school or not, attendance was marked to all the students. In those

circumstances, neither the evidence of DW1 nor Ext. D1 will come

to the rescue of the accused and on this count, the evidence of PW3

cannot be disbelieved.

13

18. Giving our consideration to the circumstances in totality,

we cannot find fault with the view taken by the High Court in

convicting the accused whose guilt has been proved beyond

reasonable doubt. For all the foregoing reasons, we are of the

considered opinion that there is no error in appreciation of evidence

or any error of law in the judgment passed by the High Court.

Therefore, we are not inclined to interfere with the impugned

judgment. The appeals are, therefore, dismissed.

…………......................J. (N.V. RAMANA)

..................................J. (S. ABDUL NAZEER)

NEW DELHI, MARCH 27, 2018.