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2011 (8) Supreme 174
SUPREME COURT OF INDIA
Aftab Alam and Ranjana Prakash Desai, JJ.
Jaisy @ Jayaseelan — Appellant
versus
State Rep. By Inspector of Police — Respondent
Criminal Appeal No.1389 of 2007
Decided on : 23-11-2011
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Indian Penal Code,1860- Sections 449, 341 , 302 read with Section 34- Prosecution of appellant along with co-accused persons for hatching a criminal conspiracy and trespassing into office of Chairman of the panchayat (PW-5) and wrongfully restraining deceased and indiscriminately and fatally attacking him- Conviction by Trial Court-Appeals thereagainst-Dismissed by High Court-Appeal-Plea that prosecution had suppressed the statement of PW-6 and that FIR was a fabricated document- High Court had dealt with this point and rightly recorded its finding that Ex. P1 was recorded prior in time and was not a fabricated document- PW-6 had stated in her evidence that she took deceased to the hospital in an auto rickshaw and her elder brother went to the police station and gave complaint- This indicated that brother reached the police station prior to the recording of the statement of PW-6- Merely because PW-6 had stated in her evidence that her statement was recorded around 10.00 A.M, it could not be concluded that her statement was prior to the FIR which was recorded at 11.00 A.M.- PW-6 used the words “around 10.00 A.M.” - It appeared to be an obvious error- PW-6 was not an eye witness- Said discrepancy being a minor discrepancy did not have any adverse impact on the prosecution case- Appeal dismissed (Paras 7, 8)
Facts of the Case :
Appellant along with coaccused persons was prosecuted herein in the instant case for hatching a criminal conspiracy and trespassing into office of Chairman of the panchayat (PW-5) and wrongfully restraining deceased and indiscriminately and fatally attacking him. Trial Court convicted accused persons Appeals thereagainst were Dismissed by High Court.
B. Present Appeal has been filed against said order of High Court on Plea that conviction could not be based on sole evidence of PW-1, brother of deceased, he being an interested witness.
Findings of the Court :
A. The Court Held that it was true that PWs-2, 3 and 4 who were examined as eye witnesses had turned hostile. But having perused evidence of PW-1, held that it could be safely relied upon so far as prosecution case against appellant was concerned. It is true that being brother of deceased, PW-1 was an interested witness. However, on that ground his evidence could not be discarded.
B. High Court rightly recorded its finding that Ex. P1 was recorded prior in time and was not a fabricated document. PW-6 had stated in her evidence that she took deceased to the hospital in an auto rickshaw and her elder brother went to the police station and gave complaint. This indicated that brother reached the police station prior to the recording of the statement of PW-6. Merely because PW-6 had stated in her evidence that her statement was recorded around 10.00 A.M, it could not be concluded that her statement was prior to the FIR which was recorded at 11.00 A.M. PW-6 used the words “around 10.00 A.M.” It appeared to be an obvious error- PW-6 was not an eye witness. Said discrepancy being a minor discrepancy did not have any adverse impact on the prosecution case. Appeal was dismissed
ORDER
(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. 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. 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 support of this submission he relied on the judgment of this Court in Marudanal Augusti vs. State of Kerala1 (1980) 4 SCC 425.
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, P
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