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.  

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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.  

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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  

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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

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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  

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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.  

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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.

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