Jaisy @ Jayaseelan Vs.
State Rep. by Inspector of Police [Criminal Appeal No.1389 of 2007]
O R D E R
PRAKASH DESAI, J.
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
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.
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
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. 3The accused
denied the case, however, they did not lead any evidence.
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.
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. 4Conviction cannot be based solely on
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 5support of this
submission he relied on the judgment of this Court in Marudanal Augusti vs.
State of Kerala.
counsel for the State submitted that the impugned judgment and order needs no
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
However, on that
ground his evidence cannot be discarded. As stated by this Court in Sarwan
Singh & Ors. Vs. State of Punjab 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 4252 (1976) 4 SCC 3693 (2003) 7 SCC
643 6or that of an approver so as to require corroboration as a matter of
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.
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 7brother 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.
the circumstances, we find no merit in the appeal. The appeal is dismissed.
(RANJANA PRAKASH DESAI)