JAISY @ JAYASEELAN Vs STATE TR.INSP.OF POLICE
Bench: AFTAB ALAM,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-001389-001389 / 2007
Diary number: 23397 / 2007
Advocates: K. K. MANI Vs
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1389 OF 2007
Jaisy @ Jayaseelan … Appellant
Versus
State Rep. By Inspector of Police … Respondent
O R D E R
(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellant is original accused no. 2. He was tried
along with six other accused in the court of Additional
District and Sessions Judge (Fast Track Court No.1)
Chidambaram in Sessions Case No. 175 of 2004 inter alia for
offence punishable under Section 302 read with Section 34
of the Indian Penal Code (for short, “the IPC”). The
Sessions Court by judgment and order dated 25th July, 2005
acquitted original accused nos. 5 to 7 and convicted accused
Nos. 1 to 4 under Sections 449, 341 and 302 read with 34
of the IPC. The appellant along with others carried appeals
to the Madras High Court. By the impugned judgment and
order dated 16.3.2007, the Madras High Court dismissed the
said appeals. Hence this appeal by special leave.
2. Shortly stated the case of the prosecution is that
pursuant to the criminal conspiracy hatched over a period of
one week prior to 9.6.2002, at 10.00 a.m. on 9.6.2002,
Sivakumar, Jayaseelan, Loghu and Lakshmanan (A1 to A4
respectively) trespassed into the office of the Chairman of
the panchayat i.e. Senthil Kumar (PW-5) and they
wrongfully restrained Ramesh (the deceased) and
indiscriminately and fatally attacked him. In the course of
the same transaction, A1 is stated to have caused hurt to
Ravi (PW-2) with a dangerous weapon. In support of its
case, the prosecution examined as many as 27 witnesses.
2
The accused denied the case, however, they did not lead
any evidence.
3. Thiru Vinoba (PW-1) is the elder brother of the
deceased. Tmt. Puratchimani (PW-6) is the younger sister of
the deceased. Ravi, Ashok and Sundar (PW-2, PW-3 & PW-
4 respectively) who were examined as eye witnesses, turned
hostile. There is no dispute about the fact that this case has
political overtones. The trial court as well as the High Court
believed the evidence of PW-1 to the extent it implicates the
appellant, A1, A3 and A4. The question is whether evidence
of PW-1 can be relied upon to confirm the sentence awarded
to the appellant.
4. Shri K.K. Mani, learned counsel for the appellant
submitted that almost all the witnesses have turned hostile.
He submitted that PW-1 claims to be an eye witness. Since
he is the brother of the deceased, he is an interested
witness. His evidence, therefore, needs corroboration.
3
Conviction cannot be based solely on his evidence. Learned
counsel pointed out that the other eye witnesses PWs -2, 3
and 4 have turned hostile. Thus evidence of PW-1 is not
corroborated. Learned counsel drew our attention to the
evidence of PW-6, the younger sister of the deceased who
took the deceased to the hospital. He submitted that in her
cross-examination, she stated that the police came to the
hospital in a jeep pursuant to the call made by the doctor.
The police made inquiry with her. She gave her statement
which was reduced into writing at 10.00 A.M. Learned
counsel submitted that therefore, this statement was
recorded prior to the recording of Ex.P1 i.e. the FIR which
was recorded at 11.00 A.M. Learned counsel submitted
that the statement of PW-6 should have been treated as FIR
being the earliest statement recorded by the police. The
prosecution has suppressed this statement. FIR (Ex. P1) is,
therefore, a fabricated document. He submitted that the
prosecution has suppressed the genesis of the case and,
therefore, adverse inference needs to be drawn against it. In
4
support of this submission he relied on the judgment of this
Court in Marudanal Augusti vs. State of Kerala1.
5. Learned counsel for the State submitted that the
impugned judgment and order needs no interference.
6. It is not possible for us to accept the submissions of
learned counsel for the appellant. It is true that PWs-2, 3
and 4 who were examined as eye witnesses have turned
hostile. But having carefully perused the evidence of PW-1,
we feel that it can be safely relied upon so far as prosecution
case against the appellant is concerned. It is true that being
the brother of the deceased, PW-1 is an interested witness.
However, on that ground his evidence cannot be discarded.
As stated by this Court in Sarwan Singh & Ors. Vs. State
of Punjab 2 and Sucha Singh & Anr. Vs. State of
Punjab]3, it is not the law that the evidence of an interested
witness should be equated with that of a tainted witness
1 (1980) 4 SCC 425 2 (1976) 4 SCC 369 3 (2003) 7 SCC 643
5
or that of an approver so as to require corroboration as a
matter of necessity. 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 the interested witness has a ring of
truth such evidence could be relied upon even without
corroboration. This submission of the learned counsel is,
therefore, rejected.
7. We are also unable to come to the conclusion that the
prosecution has suppressed the statement of PW-6 and that
the FIR (Ex. P1) is a fabricated document. The High Court
has dealt with this point and recorded its finding that Ex. P1
was recorded prior in time and it is not a fabricated
document. We concur with that finding. It is pertinent to
note that PW-6 has stated in her evidence that she took the
deceased to the hospital in an auto rickshaw and her elder
6
brother went to the police station and gave complaint. This
indicates that the brother reached the police station prior to
the recording of the statement of PW-6. Merely because PW-
6 has stated in her evidence that her statement was
recorded around 10.00 A.M, it cannot be concluded that her
statement was prior to the FIR which was recorded at 11.00
A.M. It must be noted that PW-6 used the words “around
10.00 A.M.” It appears to be an obvious error. It is also
important to note that PW-6 is not an eye witness. In our
opinion, this discrepancy is a minor discrepancy which does
not have any adverse impact on the prosecution case. The
judgment of this Court in Marudanal Augusti does not help
the appellant’s case. There, in the peculiar facts and
circumstances of that case, this Court held that once FIR is
held to be fabricated or brought into existence long after the
occurrence, the entire prosecution case would collapse. No
such conclusion can be drawn in this case. Therefore,
Marudanal Augusti is not applicable to this case. No other
point was urged by the learned counsel before us.
7
8. In the circumstances, we find no merit in the appeal.
The appeal is dismissed.
……………………………………………..J. (AFTAB ALAM)
……………………………………………..J. (RANJANA PRAKASH DESAI)
NEW DELHI, NOVEMBER 23, 2011.
8