Kerala High Court
Sahadevan Rajan And Ors. vs State Of Kerala on 17 January, 1992
Equivalent citations: 1992CRILJ2049
JUDGMENT Pareed Pillay, J.
1. Appellants are accused 1 to 3 in SC 128 of 1987 of the Sessions Court, Trivandrum. They challenge the conviction and sentence entered against them Under Sections 302, 307, 341 and 34 of the IPC.
2. Prosecution case is that accused 1 to 3 in furtherance of their common intention caused the death of Surendran and assaulted P. W. 2 (uncle of the deceased) who rushed to the scene imploring them to desist from doing anything against his nephew. Both the injured were taken to the Medical College Hospital. Doctor examined Surendran and pronounced him dead. P.W. 2 was admitted in the hospital. It was P.W. 1 who lodged Ext. P1 first information statement before P.W. 14 Sub Inspector. The investigation was conducted by P.Ws. 15 and 16.
3. Place of incident is near the house of P.Ws. 1 to 3. It is in the pathway leading to their house. Prosecution mainly relies upon the evidence of P.Ws. 1 to 3. Of them, P.W. 2 sustained injuries. He is the uncle of deceased Surendran.
4. A3's father was the caretaker of a property. That property was purchased by P.W. 2 in the name of his wife (C. W. 4). There was some dispute with regard to it between the families of P.W. 2 and the accused. A3's father was not agreeable to the enjoyment of the property by C.W.4. On 13-12-1986 Surendran had destroyed wash kept by the accused for illicit distillation. This aggravated the animosity of the accused. It was on 17-12-1986 that the incident culminating in the death of Surendran and P.W. 2 sustaining injuries occurred.
5. P.W. 1 who is the son of P.W. 2 deposed that on 17-12-1986 at about 8 p.m. he was sitting in the verandah of his house along with his father, mother and sister and it was then that A1 who came to the pathway along with A2 and A3 called Surendran. There were two chimney lamps on the verandah. Surendran went towards them. A2 and A3 forcibly caught hold of the hands of Surendran and asked him whether he would destroy wash. A1 standing in front of Surendran inflicted a cut injury on the left side of his neck with M.O.I chopper. On sustaining the bleeding injury Surendran fell down. Seeing the attack on Surendran P.W. 2 ran towards the accused imploring them to desist from the assault. A3 made the exhortation to kill P.W. 2. Immediately A1 attacked P.W. 2 with M.O.1 chopper aiming at his neck. P.W. 2 warded off the attack thereby sustaining injury. A1 again attacked P.W. 2 with the chopper aiming at his neck. It caused a bleeding injury below the left side of his neck. P.W.2 fell down. P.W.1, his sister (P.W. 3) and their mother raised an alarm. Hearing it neighbours Pushpavathi and others came. The accused fled away from the scene. The above evidence tendered by P.W. 1 has been corroborated by P.Ws. 2 and 3 in all material particulars.
6. The main attack on the evidence of P.Ws. 1 to 3 is that they are related to the deceased and inimical to the accused. Merely because they are related to the deceased their testimony cannot be rejected. So long as their evidence stands unscathed in cross-examination, it is not possible to hold that they have given a perjured version of the incident before the Court. As there is nothing inherently improbable in their evidence, no Court of law can discard it on the ground that they are related to the deceased. All that is necessary while scanning the evidence of an interested witness is that the Court must bestow extremely careful attention and should scrutinise it from every angle. On such scrutiny if the testimony of a witness who is related to the deceased is found acceptable, conviction can be based on it. Straight-forward evidence given by witnesses who are related to the deceased cannot be rejected on the sole score that they are interested in the prosecution. Cross-examination of P.Ws. 1 to 3 has not brought out a single adverse factor to hold that they have uttered falsehood before the Court. In this context it is useful to refer to Hari Obulla Reddi v. State of Andhra Pradesh AIR 1981 SC 82 : 1980 Cri LJ 1330 where the Supreme Court held (para 12) :
Interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor is it an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.
7. Straightforward and trustworthy evidence of relations of the deceased needs no corroboration for sustaining conviction. Such evidence cannot be discarded on the sole ground of interestedness in the prosecution case. As the incident occurred close to the residential house of P.Ws. 1 to 3, they are natural witnesses especially when their evidence shows that they were sitting in the veranda of the house and it was then that the accused came there and called out Surendran. As the evidence tendered by P.Ws. 1 to 3 does not in any manner show that they have falsely implicated the accused, it cannot be discarded merely on the ground that they are related to the deceased. It is fruitful to refer to the decision of the Supreme Court in the State of U.P. v. Paras Nath AIR 1973 SC 1073 : 1973 Cri LJ 850 where the Court observed :
There is no rule that even straightforward evidence of relations of the deceased needs corroboration for sustaining conviction. That such witnesses happen to be naturally able to identify the assailants (coupled with the recovery of the blood-stained earth from the place of occurrence) leaves no reasonable doubt about proof of guilt. In absence of circumstances showing witnesses as inclined to falsely involve the accused, their being related to the deceased is innocuous.
As the evidence of P.Ws. 1 to 3 has unfolded the prosecution case and as it stands unscathed in cross-examination, the learned Sessions Judge was justified in relying on their testimony.
8. P.W. 2 who sustained injuries has narrated in clear and categoric terms as to how the incident occurred. An injured witness is not at all likely to spare the real assailants and allow some others being falsely implicated. Moreover, P.W. 2's testimony gets ample support from that of P.Ws. 1 and 3. P.W. 4 doctor examined P.W. 2 and issued Ext. P-2 wound certificate. Ext. P-2 shows that P.W. 2 had sustained incised wound over supra clavicular region and also on the outer part of left forearm. P.W. 4 doctor opined that these injuries could be caused with a chopper like M.O. 1. He rules out the defence suggestion that injury Nos. 1 and 2 can be caused by single action.
9. Learned counsel for the accused submitted that non-examination of Pushpavathi who is an eye witness is really detrimental to the prosecution case. It is submitted that the prosecution deliberately withheld her from being examined in the Court with a view to suppress the real incident and to project the interested testimony of P.Ws. 1 to 3. Learned Public Prosecutor submitted that Pushpavathi was not an eye witness as could be seen from the testimony of P.Ws. 1 to 3 and also from the first information statement.
10. P.W. 1's evidence is that when Pushpavathi and others came to the place of occurrence accused ran away from the scene. He could only say that Pushpavathi might have witnessed the occurrence. P.W. 2 asserted that Pushpavathi came only after the incident. His evidence would show that he cried aloud and it was then that Pushpavathi and others came to the place of occurrence. P.W. 3 deposed that Pushpavathi reached the place of occurrence only after hearing the cry. Her evidence is that before Surendran was assaulted with the chopper no one raised any cry and that when her father fell down after sustaining injury she and others cried. Evidence of P.Ws. 1 to 3 sufficiently clearly discloses that Pushpavathi and others came to the place of occurrence only after the assault on the deceased and P.W. 2.
11. In the first information statement also it is clearly stated that P.Ws. 1, 2 and 3 cried aloud and Pushpavathi and others rushed to the place of occurrence. A stray sentence towards the concluding portion of Ext. P-1 that the occurrence was witnessed by P.W. 1's mother, sister and others has been highlighted by the counsel for the appellants to contend that in all likelihood Pushpavathi is an eye witness. That contention is not tenable in view of the unassailable evidence to the contrary. It is also significant to note that name of Pushpavathi is not specifically mentioned as an eye witness to the occurrence.
12. As the first information statement can be used only for the purpose of corroborating or contradicting the maker of the statement, the whole prosecution case cannot be thrown out on the basis of any statement in it. In a case as the present one where the evidence of the eye witnesses including the injured witness is totally acceptable, the attempt to demolish it on the ground that some other person who has witnessed the occurrence has not been examined is only an exercise in futility. The first information report cannot be utilised for contradicting or discrediting the testimony of other witnesses who speak about the occurrence. As the first information report cannot be considered as substantive evidence, it cannot encroach upon the periphery of the evidence tendered by other witnesses with regard to the incident. In this context the Supreme Court's decision in D. R. Bhagare v. State of Maharashtra AIR 1973 SC 476 : 1973 Cri LJ 680 is apposite. The Supreme Court held thus :
The first information report is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in court as a witness. Its value must always depend on the facts and circumstances of a given case.
The FIR can only discredit the testimony of its maker. It can by no means be utilised for contradicting or discrediting the other witnesses who do not have any desire to spare the real culprit and to falsely implicate him. Thus the prosecution case cannot be thrown out on the mere ground that in the first information report an altogether different version is given by its maker."
13. P.W. 12 Doctor who conducted autopsy and issued Ext. P-8 post mortem certificate stated that cause of death was due to the injury to the neck of the deceased. He opined that the injury could be caused by M.O.1 chopper and it was sufficient to cause death in the ordinary course of nature. Evidence of P.Ws. 1 to 3 established unerringly that the fatal injury to the deceased was caused by A1 while/A2 and A3 held his hands.
14. Contention that A2 and A3 have been falsely implicated also must fail in view of the trust-worthy evidence tendered by the eye witnesses. Defence contention that A2 and A3 did not share any common intention to commit the crime does not deserve acceptance as the evidence clearly unfolds that the criminal acts were done in furtherance of their common intention. The evidence is that the accused came together, that A2 and A3 caught hold of the hands of the deceased and that A1 inflicted the fatal injury on the deceased. The evidence also sufficiently clearly shows that on A3's exhortation A1 inflicted injuries on P.W. 2. In view of the evidence in the case, the learned Sessions Judge was justified in holding that A1 to A3 shared the common intention in the perpetration of the crime alleged against them.
On going through the entire evidence, we hold that the prosecution has succeeded in establishing its case against A1 to A3 (appellants). Conviction and sentence entered against them are confirmed. Criminal Appeal is dismissed.