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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

of  a  judgment  dated  20th February,  2007  passed  by  a  Division

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

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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

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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

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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

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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

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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,

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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

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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.

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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].

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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)

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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.

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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.