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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 381 OF 2018 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 9297 OF 2016

SUDHAKAR @ SUDHARASAN …  APPELLANT

VERSUS

STATE REP. BY THE INSPECTOR OF POLICE, …  RESPONDENT SRIRANGAM POLICE STATION, TRICHY, TAMIL NADU

JUDGMENT

N.V. RAMANA,  J.

1. Leave granted.

2. This  appeal  has  been  preferred  against  the  judgment

dated 23rd January, 2015 passed by the Madras High Court, Bench

at Madurai in Criminal Appeal (MD) No. 298 of 2013 whereby the

High  Court  concurred  with  the  judgment  of  the  trial  court  and

dismissed the appeal preferred by the appellant—accused against

his conviction under Section 302 IPC.

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3. Facts  of  the  case  in  brief,  as  advanced  by  the

prosecution, are that the appellant herein is a habitual drunkard

and used to live opposite to his grandmother’s house and always

indulged in quarreling with her demanding money. The incident has

taken place on 17th January, 2013 at about 6.30 p.m. The appellant

was  found  strangulating  the  neck  of  his  grandmother,  namely,

Mariyayee (deceased) with his hands. One Jayaraj—PW1 (son-in-law

of  the  deceased),  who was sleeping  in  the  adjoining  room, upon

hearing the screams of the deceased, rushed to her and witnessed

the crime being committed by the accused on his grandmother. The

appellant then took  surukupai  (money bag) from the possession of

the deceased and fled away from the spot.

4. Jayaraj—(PW  1)  then  hired  an  auto  and  took  his

mother-in-law to ABC hospital while informing about the incident to

his wife Maruthayee (PW5) over phone, PW5 in turn also reached

the hospital.  The patient was admitted in the hospital at 7.30 p.m.

and Dr. Mohammed Ghouse Khan (PW8) examined her and found

that  she  was  conscious  but  restless.  However,  Mariyayee  had

passed  away  at  7.55  p.m.  Jayaraj  (PW  1)  lodged  complaint  at

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Srirangam Police Station at about 11.30 p.m. and basing on the

same, Crime No. 22 of 2013 was registered against the appellant.

PW15—Inspector  of  Police  (Balusamy)  sent  the  FIR  (Ext.P12)  to

Court and inspected the place of occurrence. Subsequently, other

formalities such as preparation of observation mahazar (Ext. P2),

drawing of rough sketch (Ext. P13), holding of inquest were carried

on  and  the  body  of  the  deceased  was  sent  for  postmortem.

Meanwhile,  the  accused—appellant  was  taken  into  custody  and

after  recording  his  confessional  statement,  police  recovered

surukupai (money bag) from his possession (M.O. 1).

5. Postmortem on the dead body of deceased Mariyayee was

conducted  by  Dr.  RVS  Renuga  Devi  (PW  9)  who  found  linear

abrasions of varying lengths and contusion on the front of  neck,

fracture of thyroid cartilage and tracheal rings, bruising of anterior

chest  wall,  fracture  of  left  collar  bone  and  manubrium  stemi

transversely at the level of 4th rib attachment with surrounding area

bruising. Doctor expressed her opinion that the deceased appears

to have died of compression of neck and chest wound.

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6. The appellant—accused denied the charge of committing

the offence and claimed to be tried. In order to bring home the guilt

of the accused, prosecution has examined as many as 15 witnesses

and  marked  16  exhibits.  While  so,  the  accused  in  his  defence

examined  his  mother-in-law,  Mala  as  DW1  and  marked  no

documents.  There were however  two material  objects,  one  is  the

surukupai  (money bag)  and the other  is  an amount of  Rs.140/-,

both  have  allegedly  been  recovered  from  the  possession  of  the

accused.

7. The trial court relying upon the evidences of prosecution

witnesses, particularly PWs 1 and 5, came to the conclusion that

often the accused used to quarrel with the deceased for fulfilling his

demands of money and had the motive to commit the offence. In

pursuance thereof, the accused came to the house of the deceased

and strangulated her neck and then pushed her down, hence the

deceased suffered asphyxia and injuries on her chest wall and ribs.

It further held that medical evidence on record clearly establishes

that the deceased had died due to compression of neck and chest

wounds.  Therefore,  the  trial  Court  held  that  the  trivial

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contradictions in the evidence of the witnesses will not affect the

prosecution  case  and  the  appellant—accused  was  guilty  of  the

offence  of  murder.  The  trial  Court  accordingly  convicted  the

accused under Section 302, IPC and sentenced him to undergo life

imprisonment and to pay a fine of Rs.1,000/-, in default, to further

suffer rigorous imprisonment for a period of six months.

8. The aggrieved appellant  approached the  High Court  in

appeal which came to be dismissed with the observation that the

conviction and sentence imposed by the learned trial  judge is in

consonance with the penal provisions and does not suffer from any

infirmity.  Hence, the accused is before us by way of this appeal.

9. We  have  heard  learned  counsel  for  the  parties  and

perused the material on record.

10. Learned  counsel  appearing  for  the  accused—appellant

emphatically  contended  that  the  courts  below  have  erred  in

convicting the appellant even though prosecution case was full of

material  irregularities  and  inconsistent  depositions  by  the

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witnesses.  The  counsel  pointed  out  that  the  Courts  below

committed manifest error while disbelieving the defence of alibi of

the appellant that at the relevant time, the accused was not there at

his grandmother’s house but he was in his mother-in-law’s house

and police took him for enquiry from there on 17.1.2013 at 11 pm.

The counsel submitted that the prosecution has not successfully

established the motive part also. But the Courts below laid basis on

exaggerated  versions  of  prosecution  witnesses  and  convicted  the

appellant. All the prosecution witnesses, particularly PW 1 and PW

5, are interested witnesses as they had developed grudge on the

family of the appellant in connection with sharing of properties and

they want to get rid of him as they intend to grab the property of

appellant.  With  that  view in  mind,  PWs 1  and 5  implicated  the

accused in the offence which would disentitle  him to inherit  the

joint family property.

11. It  was  further  argued  that  there  was  no  independent

witness  to  the  alleged  crime  and  there  was  no  satisfactory

explanation for the delay in lodging complaint under Ext. P.1 and

the delay in FIR reaching to the Judicial Magistrate. PWs 2, 3, 4

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who were said to be the eyewitnesses, did not support the case of

prosecution. It is also contended by the learned counsel that it was

evidently  represented  by  PW5—daughter  of  the  deceased  at  the

hospital that her mother (deceased) had fallen down in the house

and  therefore  she  was  suffering  from  breathlessness,  the  said

statement is duly authenticated with the Accident Register (Ext. P3)

where it is mentioned as ‘history of fall’. But later on before Court,

PW5 denied of having said so and improved her statement thereby

implicating the appellant in the crime. More stress has been laid on

the  aspect  that  as  per  postmortem  report,  on  the  body  of  the

deceased, there were fractures over the rib and left collar bone as

well as over manuburium sterni, which does not support the case of

strangulation but supports the case of fall as stated by PW5 to the

Doctor. Concluding his arguments, learned counsel submitted that

despite  all  the discrepancies in the prosecution case, the Courts

below went ahead and convicted the appellant and the judgment

deserves to be set aside by this Court.

12. While  advancing  his  arguments,  learned  counsel

appearing for the State submitted that no case is made out by the

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appellant seeking interference of this Court while both the Courts

below  concurrently  found  him  guilty.  According  to  him,  the

accused, being a habitual drunkard, often used to quarrel with his

grandmother (deceased) for money and for transfer of property. On

the day of incident also, the accused picked up a quarrel with the

deceased at about 11 am and PW1 sent him away peacefully. But in

the evening, while PW1 was asleep in the house, the accused again

entered and committed the offence. The trial Court and High Court

had rightly relied upon the consistent and categorical evidence of

PW1, who happened to be the eyewitness to the incident, coupled

with  the  corroboration  of  medical  evidence,  and  by  way  of  a

reasoned order, convicted the accused. The recovery of  surukupai

(money bag) from the possession of the accused substantiates the

commission of crime and the case of the prosecution. Though the

accused tried to put forward the defence of alibi through DW1, the

defence could not succeed in its effort and they did not put a single

query or suggestion to the Investigating Officer in their endeavor to

ascertain that the accused was picked up by the police from the

house of DW1 and to falsify the prosecution case that the accused

was arrested from the bus stand.

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13. On a careful consideration of the matter in the light of

submissions made on either side and after perusing the material

available on record, the issue that falls for consideration is “whether

both the Courts below were right in convicting the accused for the

offence punishable under Section 302, IPC.”  

14.  The  whole  basis  for  the  Courts  below  to  convict  the

accused  appears  to  be  the  version  of  the  prosecution  that  the

accused was arrested on 18.1. 2013 at about 11 a.m. at bus stand,

in  presence  of  PWs  11  and  12,  and  brushed  aside  the  plea  of

alibi presented by the accused with due support by the evidence

of DW1. It is worthwhile to note that both of these witnesses (PWs

11 & 12) in their examination-in-chief denied the prosecution story

about their presence at the time of arrest and seizure of material

objects from the possession of the accused and they turned hostile.

This fact casts serious doubts on the veracity of prosecution story

about the arrest of the accused.

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15. Admittedly, at the time of alleged incidence, PW 5 (wife of

PW1) and PW 6 (son of PWs 1 & 5) were not present near the alleged

scene of offence. As regards the evidences of independent witnesses

(PWs 2, 3 and 4), who were residents of the same street as that of

the deceased and who were examined as ocular witnesses, PW 2

(tenant of PW 5) turned hostile and did not support the prosecution

case. He deposed that on 17.1.2013 at 7 pm when he found some

crowd in front of the house of deceased he rushed there and found

the deceased in unconscious condition. Then, he along with PWs 3

and 4 took the deceased to Srirangam Government Hospital  and

informed the same to PWs 1 & 5, they asked them to bring the

deceased to ABC Hospital where PWs 1 & 5 joined them later on.  In

his  cross  examination,  he  stated  that  PW 1  was  not  present  in

Srirangam on the date of incident. PWs 3 and 4 also turned hostile

and similar statements were made by them also. Another shortfall

in  the  prosecution  case  is  that  PW1 deposed  that  he  gave  oral

complaint  to  police,  but  a  contrary  statement  was  put  forth  by

PW15—I.O. stating that he got a written complaint from PW1.

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16. From the above stated facts, it emerges that the entire

prosecution case rests on the evidences of PWs 1 and 5 who are

closely related to the accused--appellant. The accused is none other

than the son of PW 5’s brother and PW 1 is the husband of PW5

and PW6 is the son of PWs 1 & 5. Clearly, the relations between the

accused—appellant  and  PWs 1  &  5  were  strained  over  property

issues and they were in inimical terms. Apparently, there was also a

civil suit pending between them for partition of properties.  

17.     It  would  be  appropriate  to  have  a  look  at  the  legal

position  with  regard  to  the  evidence  of  related  and  interested

witnesses.   In Sarwan Singh v. State of Punjab, (1976 (4) SCC

369), para 10, this Court observed thus:

“….. 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 interested witnesses have a ring of truth

such  evidence  could  be  relied  upon  even  without

corroboration.”

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It is settled law that there cannot be any hard and fast rule

that  the  evidence  of  interested  witness  cannot  be  taken  into

consideration and they cannot be  termed as witnesses.  But,  the

only burden that would be cast upon the Courts in those cases is

that the Courts have to be cautious while evaluating the evidence to

exclude the possibility of false implication. Relationship can never

be a factor to affect the credibility of the witness as it is always not

possible to get an independent witness.   

18. Then,  next  comes  the  question  ‘what  is  the  difference

between a related witness and an interested witness?’. The plea of

"interested witness", "related witness" has been succinctly explained

by this Court that "related" is not equivalent to "interested".  The

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. In this case at hand PW 1

and 5 were not only related witness, but also ‘interested witness’ as

they  had  pecuniary  interest  in  getting  the  accused  petitioner

punished. [refer  State of U.P. v. Kishanpal and Ors., (2008) 16

SCC  73].  As  the  prosecution  has  relied  upon  the  evidence  of

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interested  witnesses,  it  would  be  prudent  in  the  facts  and

circumstances  of  this  case  to  be  cautious  while  analyzing  such

evidence. It may be noted that other than these witnesses, there are

no  independent  witnesses  available  to  support  the  case  of  the

prosecution.

19. Now,  it  would  be  appropriate  to  consider  whether  the

Courts  below  exercised  the  judicial  discretion  in  evaluating  the

evidence of PW1 and PW5 while convicting the accused. It may be

noted that there is nothing on record to support the version of PWs

1 & 5 that on earlier occasions also and particularly on the date of

incident, the accused quarreled with his grandmother demanding

money and to settle the house in his favor. Further, it is on record

that when the deceased was brought to the hospital, in the Accident

Register,  it  was  written  as  ‘history  of  fall’.  According  to  the

prosecution’s case, blood came out from the mouth and nose of the

deceased, but there appears no seizure of bloodstained clothes of

the  deceased  and  chemical  analysis.   Thus,  the  inconsistent

evidence by the alleged eyewitnesses as well as investigation agency

would cause dent to the edifice on which the prosecution case is

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built,  and it  adversely  affects  the  substratum of  the  prosecution

case.

20. We further find, to a certain extent, material infirmities,

irregularities and contradictions in the prosecution case as also in

the evidence of prosecution witnesses including the deposition of

PWs  1  &  5,  who  are  material  witnesses.  PW  1  in  his  cross

examination categorically stated that his wife (PW 5) has filed a suit

for partition against the accused and his family members whereas

PW 5 in her cross examination denied the same. Likewise, there are

contradictory  statements  of  witnesses,  primarily  to  the  aspect  of

happening  of  incident,  taking  the  victim  to  the  hospital,  the

presence  of  PW1  at  the  time  of  alleged  incident,  detaining  the

accused from bus stand or from his mother-in-law’s house, recovery

of material objects from the possession of accused and lodging of

complaint by PW1 etc, and the whole story appears to be an utterly

incredible one. More so, there was no explanation forthcoming from

the prosecution side on the questions raised by the defense that

soon after reaching the ABC hospital with victim, how can the PWs

1  &  5  directly  approach  Dr.  Mohammed  Ghouse  Khan  (PW8)

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without  going  to  Emergency Ward and why the  Doctors  at  ABC

hospital did not inform police when it was a medico legal case. Both

the  Courts  below  have  simply  noted  that  the  variations  and

contradictory statements are not material in proving the guilt of the

accused. We feel that the reasoning given by the Courts below is   

ex facie illegal.

21. This Court in Latesh V. State of Maharastra [Criminal

Appeal  No.  1301  of  2015,  decided  on  January  30,  2018]  has

explained that the reasonable doubt in a lucid manner as a mean

between excessive  caution and excessive  indifference to a doubt.

Moreover, it has been explained that reasonable doubt should be a

practical one and not an illusory hypothesis.  

22.  In view of the above discussion, we are of the view that

there exists reasonable doubt in this case as the case of prosecution

is  un-supported  by  independent  witnesses,  ridden  with

contradictions,  good  motive  for  false  prosecution  and  filled  with

suspicious circumstances. Further we are of the considered opinion

that  there  is  not  only  insufficiency  of  evidence  but  also  lack  of

credibility on the trustworthiness of PWs 1 & 5 which culminated

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into  disproving  the  prosecution  case  and  alleged  guilt  of  the

accused. The prosecution has, therefore, failed to establish the guilt

of  the  accused-appellant  beyond  reasonable  doubt  by  adducing

cogent evidence.  We are satisfied that the Courts below completely

misdirected  themselves  and  the  conviction  imposed  upon  the

accused by the trial Court and confirmed by the High Court suffers

from patent error of law and perversity of approach and deserves to

be set aside.  

23. Resultantly,  the  appeal  is  allowed  and  the  impugned

judgment passed by the High Court is set aside. The appellant is

stated to be in jail. He shall be set free forthwith unless required in

any other case.  Pending  applications,  if  any,  shall  also  stand

disposed of.

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

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

New Delhi, March 12, 2018.

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ITEM NO.1502               COURT NO.9               SECTION II-C                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal No.381 of 2018 @ Petition(s) for Special Leave to  Appeal (Crl.)  No(s).  9297/2016 SUDHAKAR @ SUDHARASAN                              Petitioner(s)                                 VERSUS STATE REP. BY TEH INSPECTOR OF POLICE,             Respondent(s) SRIRANGAM POLICE STATION, TRICHY, TAMIL NADU ([HEARD BY : HON. N.V. RAMANA AND HON. S. ABDUL NAZEER, JJ.]) Date : 12-03-2018 This matter was called on for pronouncement of  judgment today. For Petitioner(s)

Mr. Thomas Franklim Caesar, Adv. Ms. M. Venmani, Adv. Mr. S. Sethumahendran, Adv. Mr. P. Sandanadorai, Advk.

                   Mr. S. Gowthaman, AOR                    For Respondent(s)                     Mr. M. Yogesh Kanna, AOR                     Ms. Sujatha Bayadhi, Adv.

Hon'ble Mr. Justice N.V. Ramana pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S. Abdul Nazeer.

Leave granted. The appeal is allowed and the impugned judgment passed by the

High Court is set aside.  The appellant is stated to be in jail.  He shall be set free forthwith unless required in any other case.   

(SUKHBIR PAUL KAUR)                             (RENUKA SADANA)      AR CUM PS                                   ASST.REGISTRAR

(Signed reportable judgment is placed on the file)