Arunachalam Vs. P. S. R. Sadhanantham
 INSC 60 (6 March 1979)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) FAZALALI, SYED MURTAZA
CITATION: 1979 AIR 1284 1979 SCR (3) 482 1979
SCC (2) 297
CITATOR INFO :
O 1980 SC 856 (11) RF 1981 SC 631 (12) R 1988
SC1531 (182) R 1989 SC1205 (17) E&F 1989 SC1543 (22) RF 1991 SC1108 (10) R
1991 SC2176 (17,18) RF 1992 SC 49 (9)
Constitution of India, 1950-Art. 136-Scope of
jurisdiction. Criminal appeal not preferred by Government- Private Party if
could invoke jurisdiction under Art. 136.
The prosecution alleged that there was enmity
between the deceased and his brother, P.W. 2 (Appellant) and P.W. 3 on the one
side and A 1 (respondent), A 2, their father, A 4 and A 5 their nephews on the
other on account of disputes arising out of elections to the Gram Panchayat and
Cooperative Stores of the village. A few days before the occurrence, the first
accused demanded that the dance performance being arranged in connection with a
religious festival in the village should be held under his President ship, but
this was rejected by PW 3. The prosecution further alleged that on the night of
the occurrence when the stage was being decorated by PW 3 all the accused came
in a group, got up on the stage and A 1 questioned PW 3 with regard to the
conduct of the dance performance without his presiding over it. Accused 1, 2
and 4 started beating P.W. 3. Frightened by the fracas the men gathered near
the stage started running away. In the meantime, the deceased and his men
intervened, whereupon the first accused took out a knife from his waist and
stabbed the deceased on the left flank, as a result of which he fell down.
The deceased was first taken to the police
station where his statement Ex. P1 was recorded. He was then taken to the local
hospital but the stab injury being serious he was removed to the headquarters
hospital where a Magistrate recorded his dying declaration Ex. P6. The next
afternoon the deceased succumbed to his injuries.
In their defence, the accused claimed that
they were falsely implicated on account of factions and suggested that some of
the prosecution witnesses prevailed upon the deceased to name the accused as
assailants. In the course of cross-examination of prosecution witnesses, the
defence suggested that a certain R was also injured at the same time and place.
Accepting the prosecution case the Sessions
Judge convicted A-1 under s. 148 and s. 302 and the rest under Sections 147,
323 and 149 read with 323.
On appeal the High Court acquitted the
accused primarily on the ground that neither the direct witnesses nor the dying
declarations explained the serious injury caused to Ramalingam who it appeared
from the evidence of the Doctor, PW 4, had received a stab injury 5 cms. X 2
X 2 cms. near the left side of the abdomen on
the back. The High Court thought that though Ext. P-1 was purported to have
been recorded earlier than Ext. P-6 in point of time, it was in fact recorded
later. The High Court took the view that the first accused must have been
implicated by the deceased as the assailant in Ext. P-6 at the instance of PW3
who met him in the hospital at about 1 a.m. The evidence of the direct
witnesses PWs. 1, 2, 3 and 5 was rejected 483 on the ground that they were
interested and had not explained how Ramalingam sustained the injury found on
The conduct of P.W. 3 was also severely
The State did not prefer any appeal against
the acquittal of the accused by the High Court; but the appeal was preferred by
the brother of the deceased.
On the question whether a private party could
invoke the jurisdiction of this Court under Art. 136 of the Constitution
against an acquittal by the High Court.
HELD : 1. This Court could entertain appeals
against judgments of acquittal by the High Court at the instance of a private
party also. The fact that the Criminal Procedure Code does not provide for an
appeal to the High Court against an order of acquittal by a subordinate court
at the instance of a private party has no relevance to the question of the
power of this Court under Art. 136 of the Constitution. [488 D] 2. The
appellate power vested in this Court under Art.
136 is not to be confused with ordinary
appellate power exercised by appellate courts and appellate tribunals under
specific statutes. The power under Art. 136 is plenary, `exercisable outside
the purview of the ordinary law' to meet the pressing demands of justice. Art,
136, neither confers on any one the right to invoking its jurisdiction of this
Court nor inhibits any one from invoking its jurisdiction. The power is vested
in this Court. The exercise of the power is not circumscribed by any limitation
as to who may invoke it. Where a judgment of acquittal by the High Court has
led to a serious miscarruage of justice this Court cannot refrain from doing
its duty and abstain from interfering with it on the ground that a private
party, and not the State, has invoked the court's jurisdiction.
[487 H-488 C] Mohan Lal v. Ajit Singh, 
3 SCC 279; referred to.
3. There need be no apprehension that if
appeals against judgments of acquittal at the instance of a private party are
permitted there may be a flood of such appeals, because appeals under Art. 136,
are entertained by special leave granted by this Court. Special leave is not
granted as a matter of course. It is granted only for good and sufficient
reasons, as well established by the practice of this Court. [488 F]
4. The power under Art. 136 is plenary in the
sense that there are no words in Art. 136 itself qualifying that power. The
very nature of the power has led the Court to set limits to itself within which
to exercise such power. Within the restrictions imposed by itself, this Court
has the undoubted power to interfere even with findings of fact, making no distinction
between judgments of acquittal and conviction, if the High Court, in arriving
at those findings, has acted "perversely or otherwise improperly".
[487 C-D] State of Madras v. Vaidyanatha
Iyer,  SCR 580;
Himachal Pradesh Administration v. Om
Prakash,  1 SCC 249, referred to.
5. In dealing with an appeal against
acquittal, this Court will, naturally, keep in mind the presumption of
innocence in favour of the accused, reinforced, as may be, by the judgment of
acquittal. But, this will not abjure the court 484 of its duty to prevent
violent miscarriage of justice by hesitating to interfere where interference is
Where the acquittal is based on irrelevant
ground, or where the High Court allows itself to be deflected by red herrings
drawn across the track, or where the evidence accepted by the trial court is
rejected by the High Court after a perfunctory consideration, or where the
baneful approach of the High Court has resulted in vital and crucial evidence
being ignored, or for any such adequate reason, this Court may feel obliged to
step in to secure the interests of justice, to appease the judicial conscience
as it were. [487 E-F]
6. The High Court was wrong and unjustified
in rejecting the testimony of the direct witnesses and the dying declarations
on the ground that they did not explain the injury found on one of the persons
(R) alleged to have been present at the scene of occurrence. There is nothing
to suggest that R and the deceased received their injuries in the course of the
same transaction. According to the doctor who examined R, the injured person
did not know who his assailant was. He was not shown to be connected with
either party but was surreptitiously and dexteously introduced into the case by
the defence in the course of cross-examination of the prosecution witnesses. A
conspectus of the evidence clearly points to the conclusion that there was
nothing to connect the injuries or R with the stabbing of the deceased.
[488 G-489 A, 490 D]
7. Both the dying declarations could be
safely relied upon without any reservation. Though the second dying declaration
gives fewer details than the first it clearly states that the deceased and
others first went to the police station. This clearly lends support to the
prosecution story that it was there that the first dying declaration was
recorded. There is, therefore, no ground to hold as the High Court did that the
second dying declaration was in point of time, recorded earlier than the first.
The difference between the two was that while the first was recorded almost
immediately after the incident, the second was recorded a few hours later by
which time the condition of the deceased had deteriorated and he was not in a
position to give as many details as before. There was, therefore, no reason to
doubt the genuineness of either of the two dying declarations. [493 E, 491
F-492 A, 490]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 170 of 1973.
Appeal by Special Leave from the Judgment and
Order dated 17-11-1971 of the Madras High Court in Criminal Appeal No. 217 of
R. K. Garg, V. J. Francis and D. K. Garg for
K. Jayaram and R. Ramkumar for Respondent No.
A. V. Rangam for Respondent No. 6.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-P. S. R. Sadhanantham and four others were tried by the
learned Sessions Judge, Tirunelveli, on various counts. Sadhanantham (A1) was
convicted under Sections 148 and 302 Indian Penal Code while the four others
were convicted under Sections 147, 485 323 and 149 read with 323. The first
accused was sentenced to imprisonment for life on the charge of murder and to
rigorous imprisonment for a period of two years on the charge under Section
148. The others were sentenced to suffer imprisonment for a period of one year
on each of the counts on which they were convicted, the sentences to run
concurrently. All the five accused preferred an appeal to the High Court of
Madras. The High Court allowed the appeal and acquitted all the accused of all
Arunachalam the brother of the deceased has
preferred this appeal against the judgment of the Madras High Court after
obtaining special leave from this Court on 26-7-1973. The special leave was
granted against the first accused Sadhanantham only.
The case of the prosecution, briefly, was
that there was enmity between the deceased Soundarapandian and his brother
Arunachalam (P.W. 2) and Natesan (P.W. 3) on one side and Rajapalavesmuthu
Nadar, his sons A1 and A2 and his nephews A4 and A5 on the other. There were
the usual disputes arising out of elections to the Gram Panhayat and to the
local cooperative stores. In connection with the village Amman festival, P.W. 3
was arranging to have a dance performance on the night of 20th August, 1970, in
the Gandhi Maidan. About a week earlier, Sadhanantham, the first accused
demanded that the dance should be performed under his presidentship but P.W.3
did not agree. On the night of 20th August, 1970, P.W.3 alongwith one
Gopalakrishnan (P.W. 6) was decorating the stage. Tube lights were burning and
several persons had gathered in front of the stage. At about 8.45 p.m. accused
1 to 5 came there and got up on the stage.
At questioned P.W.3 how he dared to conduct
the show without his presiding over it. P.W.3 replied that the dance
performance would be conducted without the presidentship of A1. A1 then slapped
P.W.3 on the cheek. A2 to A4 also started beating P.W.3 with their hands. P.W.6
and several others who were there ran away apparently not wanting to get
involved in the fracas. P.W.3 jumped down from the stage and attempted to run
away when A3 caught him and began to throttle his neck. A1, A2 and A4 joined in
beating him with their hands. The deceased P.W. 1, P.W. 2 and P.W. 5 came
running towards P.W.3. The deceased asked the first accused why they were
beating his younger brother. A.3 and A.5 who were holding P.W.3 by the neck let
him free. A.1 asked the deceased who he was to question him and saying so he
took out a knife from his waist and stabbed the deceased on the left flank. The
deceased fell down shouting "stabbed, stabbed". Accused 1 to 5 then
ran towards the north. P.W.3 chased them over a distance of about one and half
They ran inside the forest. P.W.3 stopped
chasing them further. In the meanwhile the injured Soundarapandian was taken by
P.Ws. 1, 2 and 5 to the 486 Police Station and then to the hospital at
Kayalpattinam. At the Police Station, the writer P.W.14 recorded a statement
Exhibit P-1 from Soundarapandian at 9.15 p.m.
Soundarapandian when asked to sign the
statement insisted on signing the statement after dipping the pen in the blood
that was coming out of the wound. He was taken to the hospital in a jeep
requisitioned by the police. P.W.4 the Medical Officer in charge of the Hospital
examined the injured and found that the injury was of a serious nature.
He sent the injured to the Government
Headquarters Hospital at Tuticorin for further treatment. The District Medical
Officer, P.W. 8 examined him and finding his condition very serious, sent a
requisition Exhibit P-5 to the Sub Magistrate, Tuticorin to record the dying
declaration of Soundarapandian. Exhibit P-6, the dying declaration was recorded
by the Magistrate P.W.7 at 1.30 a.m. At 7.45 a.m.
next morning, P.W.8 performed an operation
but Soundarapandian could not be saved. He died at about 1.30 p.m. The autopsy
was conducted by P.W.9 who, on dissection found that the diaphragm and the
upper lobe of the left lung had been pierced. The police after completing the
investigation laid a charge-sheet against Sadhanantham, Nithiyanantham,
Thamilan, Kumaresan and Karthikeyan.
In support of its case, the prosecution
examined P. Ws. 1, 2, 3 and 5 as direct witneses to the occurrence and relied
upon Exhibits P 1 and P6, the two dying declarations made by Soundarapandian.
The prosecution also examined P. W.
6 to speak to the earlier part of the
incident. All the accused denied the offence and stated that they were falsely
implicated on account of enmity. In the cross-examination of the witnesses it
was suggested that one Ramalingam was also injured at the same time and place.
It was suggested that P.
Ws. 2 and 3 had prevailed upon the deceased
to name A-1 as the person who stabbed him. The learned Sessions Judge accepted
the dying declarations as true. He also accepted the evidence of the eye
witnesses. He convicted and sentenced the five accused as mentioned earlier.
The High Court acquitted the accused primarily on the ground that neither the
direct witnesses nor the dying declarations explained the serious injury caused
to Ramalingam, who it appeared from the evidence of the Doctor P.W. 4, had
received a stab injury 5 cms x 2 cms near the left side of the abdomen on the
back. The High Court thought that though Exhibit P-1 was purported to have been
recorded earlier than Exhibit P-6 in point of time, it was in fact recorded
The High Court took the view that the first
accused must have been implicated by the deceased as the assailant in Exhibit
P-6 at the instance of P.W.3 who met him in the hospital at about 1 a.m. The
evidence of the direct witnesses P. W.s. 1, 2, 3, and 5 was rejected on the
ground that they were interested and had not explained 487 how Ramalingam
sustained the injury found on him. The conduct of P.W. 3 was also severely
commented upon. The High Court acquitted all the five accused.
Before proceeding to discuss the evidence and
the findings of the High Court we remind ourselves of the confines of our
jurisdiction to deal with appeals by special leave against judgments of
acquittal by the High Court.
Article 136 of the Constitution of India
invests the Supreme Court with a plentitude of plenary, appellate power over
all Courts and Tribunals in India. The power is plenary in the sense that there
are no words in Article 136 itself qualifying that power. But, the very nature
of the power has led the Court for set limits to itself within which to
exercise such power. It is now the well established practice of this Court to
permit the invocation of the power under Article 136 only in very exceptional
circumstances, as when a question of law of general public importance arises or
a decision shocks the conscience of the Court. But, within the restrictions
imposed by itself, this Court has the undoubted power to interfere even with
findings of fact making no distinction between judgment of acquittal and
conviction, if the High Court, in arriving at those findings, has acted
"perversely or otherwise improperly". (See State of Madras v.
Vaidyanath Iyer,(1) and Himachal Pradesh Administration v. Om Prakash. (2) In
dealing with an appeal against acquittal, the Court will, naturally, keep in
mind the presumption of innocence in favour of the accused, reinforced, as may
be, by the judgment of acquittal. But, also, the Court will not abjure its duty
to prevent violent miscarriage of justice by hesitating to interfere where
interference is imperative. Where the acquittal is based on irrelevant ground,
or where the High Court allows itself to be deflected by red herrings drawn
across the track, or where the evidence accepted by the trial court is rejected
by the High Court after a perfunctory consideration, or where the baneful
approach of the High Court has resulted in vital and crucial evidence being
ignored, or for any such adequate reason, this Court may fed obliged to step in
to secure the interests of justice, to appease the judicial conscience, as it
A doubt has been raised about the competence
of a private party, as distinguished from the State, to invoke the jurisdiction
of this Court under Article 136 of the Constitution against a judgment of
acquital by the High Court. We do not see any substance in the doubt. Appellate
power vested in the Supreme Court under Article 136 of the Constitution is not
to be confused with ordinary appellate 488 power exercised by Appellate Courts
and Appellate Tribunals under specific statutes. As we said earlier, it is a
plenery power, `exercisable outside the purview of ordinary law' to meet the
pressing demands of justice (vide Durga Shankar Mehta v. Thakur Raghuraj Singh
& Ors.(1) Article 136 of the Constitution neither confers on anyone the
right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from
invoking the Court's jurisdiction. The power is vested in the Supreme Court but
the right to invoke the Court's jurisdiction is vested in no one. The exercise
of the power of the Supreme Court is not circumscribed by any limitation as to
who may invoke it. Where a judgment of acquittal by the High Court has led to a
serious miscarriage of justice the Supreme Court cannot refrain from doing its
duty and abstain from inerfering on the ground that a private party and not the
State has invoked the Court's jurisdiction. We do not have the slightest doubt
that we can entertain appeals against judgments of acquittal by the High Court
at the instance of private parties also. The circumstance that the Criminal
Procedure Code does not provide for an appeal to the High Court against an
order of acquittal by a Subordinate Court, at the instance of a private party,
has no relevance to the question of the power of this Court under Article 136.
We may mention that recently in Mohan Lal v. Ajit Singh,(2) this Court
interfered with a judgment of acquittal by the High Court at the instance of a
private party. An apprehension was expressed that if appeals against judgments
of acquittal at the instance of private parties are permitted there may be a
flood of such appeals. We do not share the apprehension. Appeals under Article
136 of the Constitution are entertained by special leave granted by this Court.
Whether it is the State or a private party that invokes the jurisdiction of
this Court, special leave is not granted as a matter of course but only for
good and sufficient reasons, as well established by the practice of this Court.
As earlier mentioned, the primary reason
given by the High Court for rejecting the testimony of the direct witnesses and
the dying declarations was the supposed failure of the prosecution to explain
the serious injury found on the person of one Ramalingam alleged to have been
injured at the same time and place as the deceased. We may at once say that
nothing is known about this Ramalingam. He is not shown to be connected, even
remotely, either with the prosecution party or with the faction of the accused.
He was very surreptitiously and dexterously introduced into the case in the 489
course of the cross-examination of the prosecution witness and thereafter made
to loom large. He was, as we shall presently point out nothing more than a
"red herring" across the track. We will refer to the whole of the
evidence where Ramalingam was made to appear in the case to examine whether the
High Court was right in rejecting the entire case of the prosecution on the
ground that the injury on Ramalingam was not explained. P.W. 1 was put but one
question whether he was aware that injuries were caused to one Ramalingam Nadar
at the place of the occurrence on the night of occurrence.
He stated that he was not aware of that fact.
No further question was put to P. W. 1 pursuing the matter. Similarly P.W. 2
was also asked in cross-examination whether he was aware of the stabbing of one
Ramalingam Nadar at the time of occurrence. He stated that he was not and that
was the end of the matter and it was not pursued further. P. W. 3 was also
asked the same question. He too denied knowledge of injuries sustained by
Ramalingam Nadar on the night of occurrence. P.W. 5 was also asked a similar
question and he too gave a similar answer. P.W. 4 the Medical officer,
Kayalpattinam, deposed in his evidence that he examined one Ramalingam at about
11.30 p.m. on 20th August, 1970. and found an incised wound 5 cms x 2 cms x 2
cms near the left side of the abdomen on the back and one small irregular edged
wound on the inner side of the first injury. The Doctor also stated that
Ramalingam told him that he was assaulted by some unknown person when he was
witnessing the dance show. P.W. 10 who had gone to witness the dance
performance but who ran away when trouble started stated that when he was
running away he saw one Ramalingam Nadar running along with him and that the
said Ramalingam Nadar was keeping his hand near his waist and that the hand was
blood stained. P.W. 15 the Head Constable attached to the Arumuganeri Police Station
stated that 4 or 5 days after the occurrence he came to know that a case was
registered in Arumuganeri Police Station on the strength of a complaint given
by one Ramalingam. P.W. 167 the Investigating officer also stated that the
First Information Report registered on the strength of Ramalingam's complaint
had also been sent to the Magistrate and that a final report had also been
He denied the suggestion made to him that the
First Information Report in respect of Ramalingam's complaint was suppressed as
it was not in favour of the prosecution. These are all the appearances which
Ramalingam made, on the stage of this case, in the mouth of the witnesses,
though Ramalingam did himself not enter upon the scene. None of the accused
made any reference to Ramalingam in his statement.
It would be noticed that it was not suggested
to any of the prosecution 490 witnesses that Ramalingam was connected with
either the prosecution party or the party of the accused. It was not suggested
that the injury to Ramalingam was caused by a member of either group. It was
not suggested that Ramalingam intervened in the fight and received an injury.
In fact there was nothing to suggest that Ramalingam and the deceased received
their respective injuries in the course of the same transaction. The only
suggestion was that Ramalingam received an injury that night at the place of
occurrence. It is in evidence that as soon as trouble started, the people who
had gathered there started running helter skelter. While so running Ramalingam
apparently received a stab injury accidentally or deliberately from someone. In
fact according to the evidence of the Doctor, Ramalingam told him that he did
not know who his assailant was. There was, therefore, absolutely nothing to
connect the stabbing of Ramalingam with the stabbing of the deceased
Soundarapandian. The evidence of P.W. 10 also was to the effect that Ramalingam
himself was one of those who ran away from the scene alongwith him and that was
before the deceased was stabbed. There was thus nothing to indicate that the
deceased or any of the direct witnesses were aware or could possibly be aware
of the injury caused to Ramalingam. In our opinion the High Court was entirely
wrong and wholly unjustified in rejecting the testimony of the direct witnesses
and the dying declarations on the irrelevant consideration that they did not
explain the injury found on the person of Ramalingam.
In regard to the dying declarations the
reason given by the High Court to conclude that Exhibit P. 1 must have been
recorded later than Exhibit P-6 was that Exhibit P-1 contained several
statements not to be found in Exhibit P-6.
We are afraid that the High Court was merely
indulging in speculation and approaching the question from the wrong end.
Exhibit P-1 which was recorded by P.W. 14 was
as follows :
"Arumuganeri is my native place. I am
doing shop business. Record dance was arranged to take place in Gandhi Maidan
at Arumuganeri. I went to see the record dance along with Arunachala Nadar my
elder brother, Gunesekaran younger sister's husband, and Somasundaram son of
Adinarayana Perumal. We were talking, standing in front of Ramaswami temple.
Sadanandam, Nithianandam, sons of P. S. Raja Nadar, Tamilam alias Subramaniam,
Kumarsan son of Thangapla Nadar, Karthikyan son of Raja Pandia Nadar were
beating my younger brother Natesan, on the north of the dancing stage. Myself,
and the 491 persons with me ran to that place. I questioned as to why you beat
my younger brother. Sadanandam son of P.
S. Raja Nadar forcibly stabbed me with the
greece knife in the hand, on my left flank, below the rib I cried to the effect
"Ayyoh : stabbed." I covered the stab injury with my hand. My elder
brother and Somasundaram, took me to Police station. There is prior enmity
between myself and P. S. Raja Vagaria in connection with the elections. I read
the statement. It has been recorded as narrated by me.
Sd/- Soundarapandian" Exhbiit P-6 which
was recorded by the Sub Magistrate, was as follows :
"There is one Gandhi Maidan in Arumganeri,
Record dance was to be performed there. I went to see it. The dance was not
begun. Myself, Arunachalam, my elder brother, Gunasekaran, my sister's husband
were all talking. There was quarrel at the place of performance of the record
dance. At that time, the record dance was not begun. Myself and others ran to
the place where the quarrel took place. A boy called Sadanandem son of P. S.
Raja Nadar stabbed me with a knife. I cried to effect "Ayyoh Stabbed,
stabbed ?" The police station is very near. We all went there. My hand was
stained with blood. There is no reason for stabbing me.
L.I.T. of Thiru Soundrapandian".
It is true that Exhibit P-1 gives more
details than Exhibit P-6. Exhibit P-1 mentions the names of A-2, A-3, A-4 and
A-5 also in connection with the beating of P.W. 3. It also mentions that the
deceased was stabbed on the left flank below the rib. It further mentions the
prior enmity between the deceased and P. S. Raja Vageria. On the contrary
Exhibit P-6 gives fewer details, and does not mention the names of the
participants in the fight which preceded the stabbing of the deceased. The
stabbing of the deceased by A-1 alone is particularly mentioned. What is
important to be noted in Exhibit P-6 is that it refers to the circumstance that
the deceased first went to the Police Station. That statement lends support to
the prosecution case that the deceased and others went to the Police Station
and a Statement was recorded at the Police Station from the deceased. What is
more important is the circumstance that while Exhibit P-1 was recorded within a
very short time after the occurrence, Exhibit P-6 was recorded a few hours
after the occurence by which time the condition of the 492 deceased had
apparently deteriorated and he was not in a position to make as detailed a
statement as P-1. The evidence of the District Medical Officer, P.W. 8, shows
that when he saw him at 1 a.m. the condition of the deceased was very bad. P-6
was recorded, it may be noted at 1.25 a.m.
It would also be seen that the condition of
Soundarapandian at that time was such that his thumb impression and not his
signature could be taken on Ex.P.6. The reason for less particulars in P-6 was
quite obvious but yet the High Court completely missed it because of its wrong
approach. There was no reason whatsoever to doubt the genuineness of Exihibit
P-1 or P-6. The High Court thought that P.W.3 might have met the deceased in
the Tuticorin hospital at 1 a.m.
and induced him to implicate the first
accused. This was nothing but speculation. As we mentioned the condition of the
deceased was very bad at 1 a.m. and it is too much to think that anybody would
have been allowed to go near the deceased in the critical condition in which he
was in the hospital and to tutor him to implicate someone falsely.
The evidence of three of the eye witnesses
namely P.Ws. 1, 2 and 5 was dealt with by the High Court in a most summary and
perunctory way. It was said:
"The name of this witness (P.W.1) was
not mentioned by the deceased in Exh.P-6. It has been elicited from this
witness that there was bitter enmity between him and the family of the accused.
This witness was appointed by the deceased as a clerk in Arumuganeri
Cooperative Stores and in the Panchayat election, P.W.1 proposed the name of
the person who stood against the father of Accused 1 and 2. He was a
prosecution witness in a criminal case instituted against the father of Accused
1 and 2. This witness is not only interested in the deceased as he was employed
under the deceased as a clerk but also inimically disposed towards the family
of the accused. It will, therefore, be unsafe to rely upon his evidence. P.W.2
is the brother of the deceased and P.W.5 is the brother-in-law of the deceased.
They are very much interested in the deceased and they were also inimically
disposed towards the accused. They are not telling the truth. They have not
explained as to how Ramalingam sustained the injury. They have fallen in line
with the statements made in the dying declaration. We do not accept their evidence".
493 The reasons given were that the witnesses
were interested and that they had not explained the injury found on the person
of Ramalingam. In the case of P.W.1 it was also stated that his name was not
mentioned in Exhibit P-6.
We do not think that the criticism of the
High Court bears any scrutiny. We have perused the evidence of P.Ws. 1, 2 and 5
and we are unable to discard their testimony for the sole reason that they are
interested witnesses. With regard to P.W.3 however, there is scope for much criticism
having regard to his conduct subsequent to the incident. According to his
evidence after he chased the accused he stopped for about an hour near the
forest and returned to the village thereafter. While he was on his was back he
saw his uncle's jeep on the road and learnt from his uncle that Soundarapandian
had been taken to the hospital at Tuticorin.
Therefore, he went to Tuticorin and saw his
brother in the hospital at about 1 a.m. Thereafter he went to a hotel where he
slept for the night. Next morning without going to the hospital to find out the
condition of his brother he returned to the village and made himself available
to the police for questioning at about 1 p.m. Though there cannot be any doubt
that he witnessed the occurrence his subsequent conduct does not inspire such
confidence as to place implicit reliance on his evidence. We, therefore, agree
with the High Court that P.W.3 was not a reliable witness.
In our view the two dying declarations
Exhibits P-1 and P-6 may be relied upon without any reservation and the
evidence of P.Ws. 1, 2 and 5 may also be safely accepted. We have considered
the reasons given by the High Court for acquitting the first accused and we
find them wholly unsatisfactory. In the light of the principled set out by us
earlier we think that the interests of justice demand that we should interfere
with the order of acquittal in the present case. Accordingly, we allow the
appeal, set aside the judgment of the High Court and restore the judgment of
conviction and sentence passed by the learned Sessions Judge of Tirunelveli
against the respondent (first accused) on the charge under Section 302 Indian
N.V.K. Appeal allowed.